[Vision2020] City Council's Material Change

[Scott Bauer]

    Phil & Visionaries,
   
  I was drafting a correction when you posted, so here is my correction as well as a response to the issues you raised. Yes, you are correct. Subsection (a) refers to P&Z and subsection (b) refers to City Council. However, you missed one very important phrase in subsection (b): “as provided by local ordinance,” which in this case refers to Moscow City Code 4-10-6. Beginning at subsection (D)(2), it states:
    “The Planning and Zoning Commission shall forward its recommendation to the Council within forty-five (45) days of the close of the initial public hearing. The recommendation shall be in writing and shall set forth the reasons for the Planning and Zoning Commission’s recommendation. Dissenting members may submit written comments stating their reasons for disagreement with the majority position on the proposal.
   
  “3. Upon receipt of the Planning and Zoning Commission’s recommendation, the Council shall determine whether to hold a second public hearing on the subject of the initial legislative hearing. Upon an affirmative finding the City shall publish notice of a legislative public hearing before the Council stating the nature of the proposal and the time, place, and date of the hearing.”
  Moscow City Code 4-10-6(E) provides for City Council’s notice and hearing requirements, stating, 
    “Second Hearing Procedures:
  “1. Procedures for the second hearing, conducted this time before the Council, shall be the same as for the initial hearing before the Planning and Zoning Commission.
  “2. At the conclusion of the second hearing the Council may take any of the following actions:
  “a. Adopt the proposal in ordinance form as originally proposed or as recommended or modified by the Planning and Zoning Commission.
  “b. Reject the change as proposed.
  “c. Propose SUBSTANTIAL MODIFICATIONS to the proposal originally made or to the proposal recommended by the Planning and Zoning Commission and return the substantially modified proposal to the Planning and Zoning Commission for a new initial hearing.” [Emphasis added]
  Moscow City Code 4-10-6(E) implements Idaho Code 67-6509(b), which states,
    “Following consideration by the governing board, if the governing board makes a MATERIAL CHANGE in the recommendation or alternative options contained in the recommendation by the commission concerning adoption, amendment or repeal of a plan, further notice and hearing shall be provided before the governing board adopts, amends or repeals the plan.” [Emphasis added]
  Please note that City Council did not have the option of making a substantial modification or material change to P&Z’s proposal without remanding the amendment to P&Z, hence my “slap in the face” remark.
   
  Regarding the moratorium, City Council did not have to declare a state of emergency “that claimed that the health and safety of the citizens of the city were at risk.” They simply had to say that “an imminent peril to the public . . . welfare requires” the moratorium (see below). As the City Attorney said, there is no case law interpreting the words “imminent peril.” Presumably, the courts would analyze this phrase in relation to land-development impact, vis-à-vis interference with Comprehensive Plan objectives, not in terms of personal injury or property damage.
   
  Scott
   
    67-6523. EMERGENCY ORDINANCES AND MORATORIUMS.
  If a governing board finds that an imminent peril to the public health, safety, or welfare requires adoption of ordinances as required or authorized under this chapter, or adoption of a moratorium upon the issuance of selected classes of permits, or both, it shall state in writing its reasons for that finding. The governing board may then proceed without recommendation of a commission, upon any abbreviated notice of hearing that it finds practical, to adopt the ordinance or moratorium. An emergency ordinance or moratorium may be effective for a period of not longer than one hundred eighty-two (182) days. Restrictions established by an emergency ordinance or moratorium may not be imposed for consecutive periods. Further, an intervening period of not less than one (1) year shall exist between an emergency ordinance or moratorium and reinstatement of the same. To sustain restrictions established by an emergency ordinance or moratorium beyond the one hundred eighty-two (182) d!
 ay
 period, a governing board must adopt an interim or regular ordinance, following the notice and hearing procedures provided in section 67-6509, Idaho Code.



		
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