[Vision2020] City Council's Material Change

[Scott Bauer]

  Phil,
   
  Idaho’s land-use legislation is complex at times; more than once during this process we scratched our heads, saying, “Huh?” So I will take it from the top and hopefully nothing will slip through the cracks.
   
  Ordinance No. 2005-33 is a zoning ordinance adopted by the City of Moscow pursuant to the Local Land Use Planning Act (Title 67, Chapter 65 of the Idaho Code) and Moscow City Code. Idaho Code § 67-6511 provides for zoning ordinances, and I.C. § 67-6511(a) states, “Requests for an amendment to the zoning ordinance shall be submitted to the zoning or planning and zoning commission which shall evaluate the request to determine the extent and nature of the amendment requested.”
   
  I.C. § 67-6511(b) shifts from P&Z to City Council (“the governing board”), stating, “After considering the comprehensive plan and other evidence gathered through the public hearing process, the zoning or planning and zoning commission may recommend and the governing board may adopt or reject an ordinance amendment pursuant to the notice and hearing procedures provided in section 67-6509, Idaho Code.”
   
  Thus far we see that Council cannot enact land-use legislation apart from P&Z and that I.C. § 67-6509 governs the legislation-hearing process.
   
  Now, please note the title of Moscow City Code 4-6-10: “Procedures for Legislative Hearings.” It refers to the hearing process for land-use legislation. Note that MCC 4-6-10(A)(1) states, “Legislative hearings are required when changes are proposed to the land use regulations of the City which are subject to the requirements of Title 67, Chapter 65 of the Idaho Code.” Again, please note that MCC 4-6-10(A)(2) states, “Legislative hearings are required in tandem.” The remainder of the section explains the hearing process for both P&Z and Council. And MCC 4-6-10(E)(1) states, “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.”
   
  Phil, this is mandatory language. It is not negotiable. Idaho Code and Moscow City Code agree that there must be two hearings: one at P&Z, the other at Council, before the City adopts land-use legislation.
   
  Here is the application: In July 2005, the Moscow City Council charged P&Z with considering an amendment to the Zoning Code relative to schools in commercial districts. P&Z forwarded their recommendation to City Council in October. Council instructed P&Z to strip the parking requirements and other conditions from their recommendation. The chair of P&Z replied in a memo to the Mayor, stating, “The Commission feels very strongly that parking in the Central Business District MUST be addressed” (October 10, emphasis original).
   
  Then P&Z significantly diluted their original recommendation and drafted a proposed amendment to the Zoning Code, which they forwarded to City Council pursuant to the aforementioned statutes. City Council held a public hearing on the proposed amendment on December 5, 2005, whereat they materially changed, or substantially modified, P&Z’s recommendation. In fact, Council excised the most critical element contemplated by P&Z: parking conditions for the CBD.
   
  We return now to the subject of my original post. Councilman Ament proposed a moratorium on CUPs for educational institutions in the CBD for a number of reasons, including City Council’s failure to remand the recommendation to P&Z pursuant to I.C. 67-6509(b), after they made a “material change to the proposed amendment.” This procedural failure exposes the ordinance to a declaratory judgment and years of appeals (judging from the affected party’s past performance). Further, Councilman Ament offered to withdraw this portion of his argument, if the City Attorney assured him that the City would prevail if challenged on this point. The City Attorney did not reply. However, if Council had passed the moratorium, they could have simultaneously repealed the illegitimate ordinance and drafted a cleaner one; thus sparing the City from unnecessary litigation.
   
  Finally, I find it ironic that on Tuesday night the City Supervisor and the City Attorney waxed meticulously scrupulous relative to the procedural requirements of a moratorium, but less than a month ago these same two attorneys ignored the procedures required by a “material change to the proposed amendment.” Given this, I hope that Mayor Chaney noticed their refusal to offer legal assistance when the majority of Council needed it. They sat there stonefaced when they could have easily converted Councilman Ament’s statement into a finding of fact.
   
  Thanks for your patience; I hope this helps,
   
  Scott


			
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