Posts Tagged ‘zoning code’

Just as Kootenai County gets on with the long-overdue business of re-writing the dysfunctional land use codes, the chronic malcontents have indeed crawled out from under their rocks to wail about their property rights and to attempt to derail an important process. Unfortunately, their lack of concern for everyone else’s property rights illustrates how misguided they actually are.

In a hysterical email that was widely circulated, several local residents are stirring up opposition to the County code revision process. The email opens with:

“If you care about Freedom and Property Rights and you live in Kootenai County, WAKE UP!”

And in the Coeur d’Alene Press article about the controversy, local representative Kathy Sims is quoted as saying “We’ve got to be very, very careful we don’t lose our private property rights.”

The problem is that what I am allowed to do on my property needs to be balanced with the impacts I have on yours. Indeed, your property values are probably protected by reasonable restrictions on my property rights.

In fact, land use planning and land use codes are actually required by state law in Idaho. It is not an option for our County Commissioners. The fact that they are taking the job very seriously and inviting a broad spectrum input is healthy and wise.

The advisory committee formed by the Commissioners for the code-drafting process is heavily weighted toward the business and development community, with advisers representing builders, realtors, developers, planners, land use lawyers, the local Chambers of Commerce, and even the so-called Citizens for Balance – a group that fought hard for a slack comprehensive plan. These business representatives are well-equipped to defend property rights in the code-writing process.

But they also recognize that this process needs to be followed to completion. Property rights – both yours and mine – are better protected with clarity and certainty in our land use laws. The current patchwork of laws, many of which date back to the 1970s, are utterly unclear and hopelessly uncertain. We need to fix our codes, we are required by Idaho law to do it, we have a process underway, and constructive input will be very important. But hysterical claims of property rights violations are decidedly not helpful to anyone. Rep. Kathy Sims, in particular, should know better.


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Idaho’s tradition of fierce protection of private property rights is well known and well established. The State of Idaho has legislated layers and layers of protection for the wide majority of Idahoans who particularly value the rights that accompany the ownership of land. However, as the Supreme Court has repeatedly upheld – property rights are not absolute. The right to own property is not the same as the right to do whatever one wants.

Indeed, for nearly 100 years, the U.S. Supreme Court has upheld land use regulations of property as a proper role for the government to protect the health and general welfare of the public. Indeed, zoning and other land use regulations have helped to define what it means to be a good neighbor in a particular community. In a perfect world, everyone would have perfect neighbors. However, courts have enforced land use regulation as real-world protection for real-world bad neighbors.

It is fundamental, for example, that ownership of a property does not give anyone the right to interfere with someone else’s use and enjoyment of their property. Ownership of a property does not give anyone the right to use more than their fair share of community resources or other resources held in common.

What I am allowed to do on my property, therefore, is properly balanced with the impacts I have on yours. Indeed, your property values are probably protected by reasonable restrictions on my property rights.

Laws and regulations are how a community achieves this balancing. In our community, where we hope to preserve a rural lifestyle in North Idaho, we should expect that our land use regulations would balance rural land uses more favorably than suburban sprawl. Similarly in our community, where our economy and quality of life so greatly depend on natural resources, we should expect that our regulations should balance resource protection more favorably than, for example, land uses that could lead to degradation of our beautiful lakes and drinking water supplies.

This regulatory balancing is intricate, difficult, and fraught with local complications. But despite the increasingly vocal complaints of the increasingly misinformed, this balancing is indeed legal, it is indeed constitutional, and it is indeed much more preferable than no regulation at all. Proper land use regulation is certainly important for environmental protection but it is also important to the growth of our community. Most critically, though, proper land use regulation is actually important to mutual protection of everyone’s property rights.


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With a whirlwind week of committee meetings, focus groups, and “Citizen Congress” town hall gatherings, Kootenai County is finally getting on with the business of re-writing its out-dated land use laws. The initial meetings this week will set the stage for an 18-month process in which the laws that govern everything development-related in the county — from subdivisions to signage, from hearing procedures to shoreline protection – will be overhauled.

In the first meeting of a stakeholder committee set up to advise the process, problems with the current code were enumerated and hopes for the new code were discussed. Most community members were adamant in the need for regulations to protect our valuable waterways and the natural and scenic resources that make North Idaho a great place to live. Most were also adamant that property rights be protected. Developers were interested in creating a code that provides “certainty” and clarity in decision-making. Rural residents emphasized a need to protect the character of their rural communities.

Todd Messenger, the project leader for Kendig Keast the consulting group in charge of the code project, noted that in most instances, 80% of community values are shared and entirely non-controversial. Of the remaining 20%, maybe half is less important, leaving only 10% to be difficult to reach agreement.

Nevertheless, the advisory group also acknowledged the difficulty in the process to come. For example, how to protect rural character is an open question. The community will need to decide if it wants to maintain working farmland and private forests in rural areas or whether the predominant land use should be relegated to some form of “rural residential.” How to better protect stream banks and shorelines is another open question. Can there be a balance of stronger shoreline regulation coupled with development flexibility?

There will be numerous opportunities for public input and comment. The consultants promised that the entire process will be open and available on-line.  (Bookmark www.kccode.com now!) But the consultants are certainly getting an earful this week.

Lane Kendig, a principal in the code-writing consulting firm, said a good set of land use regulations will require foremost a “look at the land.” Development on land well-suited for development should actually be encouraged.  Development on land not-suited for development? Not so much. So, in fact, a code that actually requires a careful look at the land does indeed seem a good place to start.



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Earlier this morning, we received this notice from Kootenai County’s Community Development Department.  And we would echo their call for marking your calendar and attending the event in your part of the county.



As part of the public participation and outreach program for the development of the new “Unified Land Use Code”, Kendig Keast Collaborative (KKC) will be conducting three (3) countywide kick-off meetings to start the code development process.   In order to ensure that a broad range of interests are heard and represented, the County and KKC wish to invite and encourage the public to attend any or all of the upcoming “Citizens Congress” meetings that will be held around the County.  These meetings are intended to provide an opportunity for the public to share ideas about key land use and regulatory issues, opportunities and concerns from all regions and aspects of the County, and to learn more about the project and upcoming opportunities to get involved.  Please mark your calendar and come meet the project team and share your thoughts and ideas; you are needed in the process!!  We look forward to seeing you there.

The Citizens Congress kick-off meetings will be held:

Monday, July 18, 2011, beginning at 6:00 PM
Athol Community Center
30355 N 3rd Street
Athol, ID 83801
Tuesday, July 19, 2011, beginning at 6:00 PM
Harrison EMT Building
108 Fredrick Avenue
Harrison, ID 83833
Wednesday, July 20, 2011, beginning at 6:00 PM
Kootenai County Administration Building, Room 1
451 Government Way
Coeur d’Alene, ID 83814

For more information about the project, the above meetings and how you can get involved, please contact Kootenai County Community Development located at 451 Government Way, Coeur d’Alene ID 83816, (208) 446-1070, or visit the project web site at http://www.kccode.com.



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The Kootenai County Commissioners got an up-close look at the current condition of the County zoning code last Thursday night. Faced with a long-running and messy decision over a “party barn” in a rural zone at the Washington state line, the Commissioners found themselves stuck in a procedural morass that was only made possible by the currently antiquated approach to zoning, and which would have been so much simpler under a more modern code.

Although the strictly environmental impacts of a “party barn” facility are probably minimal, the impacts on a rural community could be significant. For example, traffic, noise, hours of operation, and the availability of public safety and other services are concerns that any neighborhood might have. Yet, the county code isn’t designed around impacts, it is designed around “uses.” And this is where the party barn — and the County — got into trouble.  What exactly IS a party barn? How do you classify it under the county’s 1970s vintage zoning code.

The county’s old-school Euclidian zoning scheme is based on a general rule that commercial uses go in commercial zones, industrial uses in industrial zones, and residential uses in residential zones. Exceptions to the general rule are allowed only if they fit a set of specifically enumerated “conditional uses” within a particular zone.

The party barn applied for a conditional use called a “commercial resort” which would be allowed in the rural residential zone where it was located.  Over the objections of neighbors, the county planning staff and the previous Board of County Commissioners approved the classification and approved the conditional use permit. The problem, though, is that in Kootenai County, a “commercial resort” is defined as:

“a privately owned, outdoor recreation area, operated for profit. A commercial resort may include permanent facilities for overnight and seasonal living, camping areas, recreational vehicle parks, and for limited commercial activities associated with convenience goods and services that serve to enhance the primary recreational use or facility.”

When the neighbors appealed the prior Board’s decision to a court, the judge issued an overly-lengthy opinion that pointed out the simple and obvious problem:

The problem with [the county’s] determination is patently obvious. [The county] finds the proposed use of applicant’s barn located on applicant’s land for a wedding facility inside that barn to be a “commercial resort.” But a “commercial resort is defined only as an outdoor recreation area,” and none of the examples of an “outdoor recreation facility” are indoor activities.

The judge takes 20 pages to explain, but on page 14 he says in his own bold and underline type, “Indoors is different from outdoors” and  “A wedding is different than a convenience food store.

So, on Thursday night, the County Commissioners wrestled with the implications of the Judge’s decision. If it’s not a commercial resort, what is it? And once it is decided what it is, is it allowed in the rural zone in the quiet valley near the state line? Ultimately, the Commissioners couldn’t find an appropriate “conditional uses” and had to revert to the general rule, it’s a plain vanilla commercial use, and therefore it belongs in a commercial zone not a rural one.

Although this is almost certainly the right substantive result in this case, nobody can be really happy with how it was achieved.  The general Euclidian rule is so obviously problematic: Rural areas can handle commercial activity if it is appropriate for the rural lifestyle.  But using Euclidian zoning to define every single use that will or will not be allowed is doomed to failure in this modern age of new and mixed uses.

More modern form-based or performance-based zoning is more flexible and more appropriate.  For example, if parking and traffic and noise are the real practical issues, then the zoning code should regulate parking and traffic and noise.  The standards need to be thoughtful and they need to be rigorous in protecting rural (and environmental) values. But, if the property looks rural, feels rural, and doesn’t impact rural neighbors, then it simply shouldn’t matter what the use is.

A party barn shouldn’t be allowed in a rural area because loud amplified music and a hundred cars at a time isn’t compatible with rural neighbors. Not just because it is a commercial venture that is primarily indoors.

UPDATE 5/18: Here’s a Spokesman Review article on the dispute.

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Understanding that the job is difficult, but also extremely important, the Kootenai County Commissioners are wasting no time getting on with the business of re-writing zoning and development regulations. On Friday and Saturday, we were pleased to be invited to participate in an interview process for the consultant team to be hired to rewrite the land use laws in the County. The Commissioners signaled that they will make a final decision on the code-writing team very soon.

In an exhausting all-day session Friday, four finalist teams interviewed round-robin-style with four panels of local interviewers. The interview panels included the County Commissioners, Planning Commissioners, planning staff from the county and the county’s municipalities, developers and private planners, and neighborhood and environmental interests. On Saturday morning, the local interviewers reconvened with the Commissioners to debrief.

The job, as all the code-writing candidates acknowledged, won’t be easy. The candidates were all candid that tough decisions left undone in the comprehensive plan (e.g. development densities) will need to be revisited and resolved sooner rather than later by the County Commissioners. All of the candidates acknowledged that the current prevalence of 5-acre-lot rural zoning is problematic in achieving the comp plan goals of rural and natural resource protection. And all of the candidates commented that the current patchwork of 1970s-era land use coding absolutely positively needs the overhaul.

The good news, as strange as it sounds, is that the Commissioners will have a very difficult final decision. Each of the consultant teams had strengths and weaknesses and differing styles and approaches. But each of the teams also brought clear and convincing competence and capability. The across-the-board consensus among interviewers during the post-interview debriefing was that the candidates for the job were more-than-qualified.

The County Commissioners and the County planning staff deserve a great deal of credit for moving the process along, and for (soon) bringing very talented professionals to our County to bring our zoning and development codes up to date.


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