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  the regulation’s economic effect on the
landowner,  the extent to which the regulation interferes with reasonable investment-backed expectations, and
 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,
2. Specifically, Idaho Code section 67-6511 states in the first paragraph:
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
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
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
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
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.
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.’”
? Edmund Burke, Reflections on the Revolution in France (Arlington House, 1955)
? 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
? 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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