COEUR D’ALENE, Idaho – February 23, 2015. At a public meeting of the Kootenai County Board of Commissioners today there was discussion regarding the so-called “technical fix” to the land-use ordinances, plus discussion over whether a comprehensive plan update should be undertaken. Both are now to be undertaken in the order mentioned in the previous sentence. I made comments at the meeting. “[Builders] tell me we need certainty in this County,” said Art Macomber, a Coeur d’Alene-based property and land-use attorney. He added, “We need to have some clear, simple, simple rules, so people can make investments and move forward.” Macomber also asked that the technical fixes to the land-use codes be the first order of business, and on the Comprehensive Plan, he said, “The simpler the better.”

After the meeting ended, including the public comment section, I returned to the office to put the following specific input into letter format, and emailed it to the BOCC and Planning Commission today:

In terms of an update to the December 2010 Comprehensive Plan, an update is critical to undertake and do not see why it could not be initiated — even if not completed — during the same time as the “technical fix.” December 2010 is the date when the plan was finalized, but much of its analysis was done 3 to 4 years prior to that date. Surely an update is due in 2015.

When the Planning Commission looks at how to proceed with an update, there are two long-standing characteristics of the County which must be accounted for, and three guidelines which will allow speed and the prevention of resource waste in completing the update.

Long-standing characteristics of Kootenai County: (1) economically it is a tertiary market, which is to say when Seattle sneezes, Spokane gets a cold, and Kootenai County comes down with pneumonia; and (2) we are a financially-challenged market in that the vast majority of the about 34,000 property owners will never have the money it takes to navigate what I have come to call “blue-state” rules, which I define as a hyper-detailed set of requirements that is nearly impossible for one to comply with without the expenditure of many thousands of dollars in experts to assist in interpretation and navigation. Simple and clear should equal inexpensive, while promoting economic growth that is sustainable.

The three guidelines I recommend are that the planning and zoning commission (A) adhere to the plain language of the statutes, (B) understand the focus is properly the exercise of the police power related to health and safety, and (C) that public planning must step aside for private plans when the exercise of the police power is not implicated by a private plan. Each is discussed below.

(A) Adhere to the plain language of the statutes. Idaho Code section 67-6508 details the approach required to create a comprehensive plan.

Example #1: One example of adhering to the statutes was raised today at the meeting: whether city dwellers should have input to this process. That statute clearly states, “[t]he plan shall include all land [not people] within the jurisdiction of the governing board.” (Emphasis added.) The governing board is the Board of County Commissioners, and the BOCC does not have jurisdiction over lands inside municipal boundaries. Therefore, the answer to the question about city dwellers having input is no. City dwellers have input to their own municipal comprehensive plans, and even though a city dweller might complain that they should have an input to their County plan, the statute clearly forbids it, so city dwellers are out of the picture.

Example #2: That statute later states the plan “shall be based on the following components [(a) – (q)] as they may apply to land-use regulations and actions unless the plan specifies reasons why a particular component is unneeded.” (Emphasis added.) The threshold question then is which of the (a) through (q) components may apply to land-use regulations and actions. That language severely restricts the focus of the plan. The plan is restricted by that language, because each (a) through (q) component calls for an “analysis,” which is obviously a higher level information gathering effort, after which the question to be asked is “how does the information we have gathered “apply to land-use regulations and actions?” Notice it doesn’t say only land-use regulations or only land-use actions, but both regulations and actions must be implicated by the analysis for it to appear in the plan. Even though Idaho Code 67-6508(b) requires information gathering and analysis of population, it does not state that the County should determine population, such as mandating a maximum or minimum family size. Using my analysis in this paragraph, the effect of population growth, such as it can be known at a County level in terms of actual and projected population distribution (i.e., for example, Rathdrum-area versus Worley versus Rose Lake areas), especially since it includes “such characteristics as total population, age, sex, and income,” indicates that the Planning Commission needs to consider population when the comprehensive plan looks at roads, schools, and other attributes to accommodate population growth that may apply to land-use regulations and actions. Although for the life of me, I cannot see how sex has anything to do with it, and income itself is surely tangential at best.

These two examples are only that, but strict adherence to the plain language is important, not only to avoid legal challenge, but so that precious resources are not wasted.

(B) Understand its focus is the exercise of the police power related to health and safety. Given the two characteristics of being a tertiary and a financially-challenged market, and with expected cutbacks in available federal monies such as those provided to former logging communities under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub.L. 106–393; formerly Craig-Wyden), it is really important to get this right.

Neither Kootenai County, the State of Idaho, nor the federal government have or will have funds to undertake rigorous and detailed “blue state” planning regulations that we saw in the rejected ULUC. Concentrating on health and safety, and making those things very simple, will go a long way toward proper husbanding of County and private funds, given that availability of State and federal funds is going to be shrinking over any reasonable financial planning time horizon. Exercises of the police power should be accomplished very narrowly to get the core job done right, so that we don’t pretend Kootenai County will be financially able to do much more than protect health and safety well.

(C) Public planning must step aside for private plans, except for health and safety.

Public planning has become so fashionable that it has unfortunately become a noose on economic development. For various reasons, including (1), (2), (A) and (B) above, but more importantly based on a strong tradition of private property rights and liberty in a free society, private plans should always take precedence over public plans, except where health and safety must be protected by preventing the implementation of private plans that would threaten health and safety. This requires public planning be merely a backseat driver to private planners, only directing them when they are about to cause an accident or otherwise run off the road.

Private property rights have been unnecessarily suppressed and restricted by overly complex planning laws. Ordinary private property owners can neither afford nor tolerate further suppression of their liberty, especially where use of their property does not constitute an imminent threat to the health and safety of their neighbors.

The Planning Commission should update the Plan so that a title owner with an eighth grade to 12th grade education can understand it and use it when formulating their own private plans so that the police power of the government is not triggered. The Plan update should — as a conscious and explicit direction of public policy — work to deconstruct existing law and guide the process toward a simpler regulatory environment. Such an environment will allow private planning to control land-use outcomes, except when an exercise of the police power is absolutely required. If such police power is required, exercises of that power must be constrained given the financial and the tertiary market position characteristics of Kootenai County. The government should have the burden of proof to scientifically show how private land-use plans justify the exercise of the police power in creating specific requirements or restrictions to a particular owner’s plan. If the government cannot support its justification, then the private owner should be at liberty to move forward. — ABM