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Posts Tagged ‘zoning’

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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Faced with a subdivision proposal on a steep hillside above Hayden Lake, the Kootenai County Commissioners struggled today with the County’s subdivision ordinances and denied the request. The subdivision would have placed some 34 homes on steep slopes and erodible soils just above Hayden Lake – not far from where East Hayden Lake Road washed out in the recent spring rains.

The Commissioners wrestled with the fact that they thought some development could occur at the site, but not to the extent that was proposed, and the proposal was not in accordance with badly-drafted development rules. Commissioners Dan Green and Jai Nelson voted to deny the subdivision request on the grounds that it did not avoid steep slopes, “did not contribute to the orderly development” of the community, “did not create lots of reasonable utility and livability,” and it would have imposed “an unreasonable burden” on future lot owners. Nelson was further concerned about potential stormwater and soil stability impacts on Hayden Lake. Commissioner Todd Tondee disagreed, and thought that the subdivision complied with the requirements and could be engineered to accommodate the slopes and soils and difficult drainage.

In particular, one procedural step in a problematic section of the development code became one focus for the Commissioners frustration:

Section 10-4-5: CONSERVATION DESIGN PROCEDURE: 

Conservation subdivisions shall be designed according to the following procedure: …

…Step Three:  Determine zoning districts and expected numbers of base and bonus lots.  Select building sites positioned to avoid slopes in excess of 15% and to take advantage of views and green space.  Note:  Though building sites should be designed to avoid slopes, this is a recommendation, not a requirement.   … (italics in original)

The Commissioners lamented that “shall be designed … to avoid slopes in excess of 15%” seems pretty clear and that the proposed subdivision design could clearly not comply — all of the lots on slopes steeper than 15%, and much of the development was proposed on slopes as steep as 35%.

But, the Commissioners struggled with the County Code’s “Note” making it a “recommendation, not a requirement.”  If it’s not a requirement, what is the proper standard to apply?  Ultimately, the Commissioners took the law’s “recommendation” and determined that the subdivision was simply requesting too much on land too steep.

This is obviously the correct decision. Otherwise, the bizarre “recommendation, not a requirement” language would have effectively negated the ordinance entirely, and thus defeated its clear purpose to restrict development on steep slopes. But again, it points out the desperate need for a new development code in Kootenai County — a process just now getting underway.

 

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A fellow Kootenai County resident who toils in the planning and zoning trenches, called in response to our recent blog posting about Euclidean zoning and performance zoning. He suggested a great analogy to help explain the complicated zoning typology without forcing the poor reader to click off into Wikipedia or something to figure out what we’re talking about.

He suggested that Euclidean, use-based zoning, is a lot like a box of chocolates. Each different chocolate in a precise position in the box according to the map on the box lid. Some are super-delicious, some aren’t as good, but they are all similarly chocolates.

Performance-based, or form-based codes, he said, are more like a bouquet of flowers. Flowers of different colors, different lengths and varieties, along with some greenery and ribbons and other stuff that isn’t strictly flowers but help make the whole bouquet look nice.

We think that helps. Happy Mothers Day!

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The ink is barely dry on the new Kootenai County comprehensive plan, but it’s been in the works so long, it’s as if we can’t stop working on it. The next step, of course, is for the county to re-write the zoning and development regulations to come into accord with the new plan. County officials and local leaders are evaluating potential consultants to help with the re-write this week.

Because the County Commissioners avoided putting development densities in the comprehensive plan, clearly that will be a point of contention as the regulations get written. But what else? Here is an initial list of things to watch in the regulations, but we’d like to hear your concerns too:

1. Rural densities – this was a battle that was fought to a draw in the comprehensive plan. In our view, rural character requires rural development densities. The current allowed density of one unit per five acres is too dense to be truly rural, and not dense enough for efficient growth patterns over the long term.

2. Shoreline regulation – the new comp plan provides a lot of soft language purporting to protect our waterbodies. But to do so legitimately, the development regulations will need to be much stronger than they are now.  Currently the county relies on strict and cumbersome development limits in a very narrow buffer strip along shorelines and stream banks. A proven better solution, for builders and waterways alike, would be to control development on a much larger buffer, but allow more building flexibility within the buffer too.

3. Form-based development codes – The city of Post Falls recently adopted “Smart Code” regulations, an innovative and different approach to development regulation being adopted in many communities around the Country.  Rather than zoning which relies on the regulation of the “use” of the property, the regulations deal with the “form” of the development to make a more integrated and coherent community. To use a recent fiasco in the County as an example, rather than trying to determine the proper zoning regulations to apply to something described as a “party barn” in a rural zone, a form based code would use more general performance standards — for building design, parking, noise, setbacks, signage, landscaping, traffic, etc. – appropriate for any type of development in a rural zone. In this regard, we think Kootenai County has the opportunity to do something smart and innovative, if it chooses to do so.

4. The zoning map – The text of the development regulations will apply to properties according to zones actually drawn on a county map. This is, of course, where the impacts to individual properties will be felt. But it is also where impacts to our resources will occur if the map is too accommodating to development interests. It will be important that the map keep high-density development where it is appropriate and provide specific resource protections to the specific locations where they are most needed.

5. Grandfathering – We expect (and hope) that a lot of properties currently zoned for higher sprawl-level densities will be zoned for lower rural densities under the new code. We expect that some property owners will lobby to have the higher development potential grandfathered into the new zoning. The types of properties (and property owners) which will be eligible for grandfathering, and the circumstances and time limits under which it will be allowed will be a source of controversy. As a general rule in any rezoning exercise, the less grandfathering, the better.

 

 

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