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ABC’s of the ULUC

June 27, 2013, Coeur d’Alene, Idaho

Handout for Reagan Republicans Presentation, By Art Macomber, Attorney at Law

Materials: Current and proposed Zoning Maps, ULUC Draft v. 4.11.2013, Hayek article.

A) Appropriate: The question is whether the proposed ULUC is an appropriate method of governance. I do not think so, based on the following reasons:

1. The property owners’ plans are supplanted by the government’s plan.

2. The government’s job is to protect the populace from harm, not to remove from property owners the right to freely determine the economic use of real property where such uses do not cause harm.

3. In a citizen Republic, the government is reactive not proactive, except as to its own economic assets. In this case, the County is proactively determining the specific economic uses that will be allowed for all of the approximately 34,000 parcels of land in the county.

4. The County purports to have market-related information about the highest and best use of every single parcel in the County, not only from the snapshot taken for the December 2010 Comprehensive Plan, but on an ongoing basis such that its determination of uses is based on current valid economic information.

THE ULUC IS AN ECONOMIC PLAN. (See ULUC, Tables 2-3-2 through 2-3-7 for uses allowed).

5. The document is too complex for an ordinary landowner to navigate.

6. Due to the complexity, it is unenforceable, but if it was enforceable, it would be unaffordable, see section C) Costs.

7. The County is planning a slash-cutover to a radical new system of zoning, and there is no transition plan for owners who have “reasonable investment-backed expectations” for the use of their land.

Penn Central Transportation Co v. New York City, 438 U.S. 104 (1978).

1 Why spend County money on regulatory takings challenges? Hasn’t the County wasted enough money to reach the current draft ULUC?

8. Management transition and process planning is lacking, with no cost analysis.

9. For the above reasons, the ordinance is revolutionary, and not merely a reform of existing ordinances, and should be rejected.

B) Bureaucracy: Too much law that does too little good.

1. The Local Land Use Planning Act (LLUPA, 1975) at Idaho Code § 67-6501, et seq.

requires two ordinances to be created after the adoption of a comprehensive plan:

a. A zoning ordinance, and

b. A subdivision ordinance. No more is required by statute.

1 “The Penn Central analysis involves ‘a complex of factors including [1] the regulation’s economic effect on the

landowner, [2] the extent to which the regulation interferes with reasonable investment-backed expectations, and

[3] the character of the government action.’”

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, fn. 10, 122 S.Ct. 1465 (2002); citing Palazzolo v. Rhode Island, 533 U.S. 606,

617 (2001).

2. Specifically, Idaho Code section 67-6511 states in the first paragraph:

ZONING ORDINANCE.

Each governing board shall, by ordinance adopted, amended, or repealed in

accordance with the notice and hearing procedures provided under section

67-6509, Idaho Code, establish within its jurisdiction one (1) or more

zones or zoning districts where appropriate.

The zoning districts [not necessarily the  zones] shall be in accordance with the policies set forth in the

adopted comprehensive plan.

NOTE: Kootenai County never asked whether zones or zoning districts were

appropriate, the consultant simply assumed every parcel was required to be zoned. See

ULUC, Sec. 1-1-2 (5): “As required by I.C. § 67-6511; and Sec. 2-1-1 (1): “. . . as required by

Idaho law in I.C. § 67-6511.” This fundamental error drove the draft ULUC into a ditch.

NOTE: Kootenai County did not notice or ignored the lack of commas in the clause

establish within its jurisdiction one (1) or more zones or zoning districts where

appropriate. ” The language does NOT necessarily require at least one zone, but only “one (1)

or more zones or zoning districts where appropriate.” If not appropriate, then no zones or

zoning districts! In this case, at least one zone is prudent, because Kootenai County does not

have a clean slate, but is essentially rezoning the entire County from a previous ordinance.

The question for which parcels zoning was appropriate was never asked.

By not asking the question, (1) the transition to the new radical zoning could not be addressed, i.e., which

parcels need new zoning at all; (2) and the priority of changes in zoning could not be

implemented, i.e. which parcels should be rezoned now and which might be able to wait, see

Penn Central case. For example, it may be a better idea to zone along roadways and where

uses are already constricted due to the density of human activity, such as near city limits as

opposed to places where the same activities have been occurring for decades with relatively

little change, such as places near Worley, Medimont, or other outlying areas. The draft ULUC

lacks a transition plan.

3. Then, the second paragraph of Idaho Code section 67-6511 states:

Within a zoning district, the governing board shall where appropriate,

establish standards to regulate and restrict the height, number of stories, size,

construction, reconstruction, alteration, repair or use of buildings and

structures; percentage of lot occupancy, size of courts, yards, and open

spaces; density of population; and the location and use of buildings and

structures.

NOTE: In this paragraph the legislature recognized that the LLUPA will be

implemented by both cities and counties. In counties, and even in some cities, the question

must be asked by planners:

Where is it appropriate to establish standards that suppress or

eliminate the freedom of an owner to follow his or her own plans?

Kootenai County struck out the words “where appropriate” from both sentences of I.C. § 67-6511, and only used the

See I.C. § 67-6511, #1 See I.C. § 67-6511, #2

wording the consultant knew would increase the County’s political power over the economic

uses of private land. It established standards on every parcel, and thus disregarded the initial

question the legislature built into the law for the purpose of not completely supplanting an

owner’s freedom.

What zoning ordinances has Kootenai County enacted since LLUPA was enacted?

4. The first sentence of Idaho Code section 67-6513 requires a subdivision ordinance:

SUBDIVISION ORDINANCE. Each governing board

shall provide, by ordinance adopted, amended, or repealed in accordance with the notice and

hearing procedures provided under section 67-6509, Idaho Code,

for standards and for the processing of applications for subdivision permits

under sections 50-1301 through 50-1329, Idaho Code.

NOTE: The requirement is for standards and for the processing of applications for

subdivision permits. The definition of “standards” is not in LLUPA, but the language gives us

a clue: “for standards and for the processing of applications for subdivision permits.

There is no comma after the word “standards,” thus it is meant to be tied to the words

following: “and for the processing of applications for [ ] permits.”

Therefore, the standards to be enacted are standards for permits under Chapter 13, Title 50, Idaho Code – nothing

more.

NOTE: Some will argue that an analogy to I.C. § 67-6511’s use of the word

“standards” will result in specific types, sizes, placements, acreages by zone, and other criteria

for subdivisions, but this is not in the statute, and is thus created from thin air. It is merely a

guess at what the legislature required. The better argument is that the explicit tie to I.C. § 50-

1301, et seq. requires standards for the requirements found in Chapter 13 of Title 50.

What subdivision ordinances has Kootenai County enacted since LLUPA was enacted?

The consultant ignored key provisions of Idaho law in favor of over-engineered outcomes not

appropriate for Kootenai County, did not listen to the Advisory Committee, and created an

unwieldy document that is the poster child for a bad bureaucratic result.

To be fair, the creation of the Comprehensive Plan very likely misled the consultant into

believing such hyper-engineered technicalities would be welcomed by its client, Kootenai

County and its citizens. However, upon reflection and study, the ULUC as drafted is not what

the Idaho legislature had in mind, given the minimalist language of the LLUPA statutes, and

Kootenai County should reject it.

See I.C. §67-6513

See Zoning Ords. Slide See Subdivision Ords. Slide

C) Costs. The potential costs of the ULUC are too high.

1. “Find the cost of freedom, buried in the ground. . .”

2 Burke’s admonition.

2. Unknown, but high financial costs to individual landowners:

a. Costs of figuring it out,

b. Costs to pay others to figure it out,

c. Costs to defend their private planning, including experts of various types,

d. Costs of lawsuits to enforce private property rights

e. Costs inherent in delay in development, missing market opportunities.

3. Unknown, but high costs to the County that have not been forecasted as of today:

a. Costs of implementation in terms of alteration of processes,

b. Costs of lawsuits to challenge (takings claims) or to clarify (declaratory

judgments),

c. Costs of initial and ongoing training of employees,

d. Costs for new hiring due to complexity,

e. Costs for enforcement, if county expands its enforcement division,

f. Costs imposed on private individuals by continuing the socially-destructive

practice of turning neighbors into informers to bring alleged code violations to

the County’s enforcement personnel.

D)

Solution. Some of the below ideas may be more or less prudent, if not from a political

standpoint, from a governing standpoint.

1. Shrink it, redline it, edit it with the minimalist requirements of I.C. §§ 67-6511 and 67-

6513 in mind, such that it reduces or eliminates the costs stated above.

2. Scrutinize the Comprehensive Plan to determine what in it are actually Policies (I.C. §

67-6511), and which are unworkable or unenforceable Goals or other elements.

3. Amend the Comprehensive Plan to filter the content into

actual policies of governance

that accord with wider political realities, such as markets and property rights.

4. Write-off current draft ULUC expenditures, tell consultant to start from ground zero.

5. Write-off current draft ULUC expenditures, fire consultant, start from ground zero

with local expertise to write from a blank page.

6. Write-off current draft ULUC expenditures, fire consultant, start from ground zero

with local expertise to write from current and/or past ordinances examples.

Quote from Wall Street Journal, June 18, 2013 by Niall Ferguson:

“Genius that he was, Tocqueville saw [the over-regulated] transformation of

America coming. Toward the end of ‘Democracy in America’ he warned

against the government becoming ‘an immense tutelary power . . . absolute,

detailed, regular . . . cover[ing] [society’s] surface with a network of small,

complicated, painstaking, uniform rules through which the most original

minds and the most vigorous souls cannot clear a way.’

Tocqueville also foresaw exactly how this regulatory state would suffocate the

spirit of free enterprise: ‘It rarely forces one to act, but it constantly opposes

2 An ode to the Civil War fight for freedom, by Crosby, Stills, Nash (1970), written by Stephen Stills, ©

Sony/ATV Music Publishing LLC.

itself to one’s acting; it does not destroy, it prevents things from being born; it

does not tyrannize, it hinders, compromises, enervates, extinguishes, dazes,

and finally reduces [the] nation to being nothing more than a herd of timid and

industrious animals of which the government is the shepherd.’”

Recommended Reading:

? Edmund Burke, Reflections on the Revolution in France (Arlington House, 1955)

(1790).

? Friedrich A. Hayek, The Use of Knowledge in Society, The American Economic

Review, Vol. 35, Iss. 4 (1945).

? Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

(Thomson/West 2012).

? Joseph Story, Commentaries on the Constitution of the United States, Volumes 1-2,

Thomas M. Cooley, Ed. (Little, Brown, & Co. 1873) (1833).

? Thomas Cooley, A Treatise On the Constitutional Limitations Which Rest Upon the

Legislative Power of the States of the American Union (Little, Brown, & Co., 1868).

? Alexis de Tocqueville, Democracy in America (Penguin Classics, 2003) (1835).

? Niall Ferguson, The Great Degeneration, (Penguin Press, 2013).

Biography: Arthur Macomber is Managing Attorney of Macomber Law, PLLC. Mr.

Macomber practices law in Washington, Idaho, and Montana. He brings 30 years of

experience to the law including an education in forestry and business management, and

employment in construction, real estate sales, and high technology. Mr. Macomber has a

common sense, business orientation to the law. His intellectual passion is legal history and

constitutional law. He graduated from the University of California Hastings College of the

Law, and has taught contracts for paralegals at North Idaho College and legal contract writing

at the Gonzaga University School of the Law.

 

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