No Super Wal-Mart

Dear Nancy,

I haven’t rec’d Randy’s analysis so I can not comment on it. However, if
your message is based on it, I would strongly disagree with its
conclusion. Until such time as the governing body (council) receives on
its agenda the recommendation on a matter from P&Z, the issue is not
before the governing body. Any other conclusion would mean that the
council could not hear any public input, either as a body or as
individuals (without disclosure of such at the proceeding in the
matter) from the time any application on any matter is received by the
city staff. Seeing as the mayor and council are likely unaware of the
moment that submittal occurs, it would stand to reason that some
applicant unhappy with the outcome of an issue would use that gap to
appeal a decision to district court.

In fact, there is no case law even remotely indicating that is the
correct interpretation. Absent any case law the statute’s are read and
their face: what they say is what they say. If they are silent on an
issue, they are silent. To my knowledge, they are silent on this issue
meaning the council does not have the issue before them until after the
P&Z forwards you their recommendation.

However, in this instance it, to me, is even clearer. Our request is
for a comprehensive plan change and a stay on any formal proceedings by
the city while the underlying plan question is examined. Our petition
contains no reference to Walmart as Walmart is not a part (or should not
be a part) of the request for a rezone of property on the east edge of
town. Past city practice of combining rezone/CUP/preliminary plat
hearings on the same night have created confusion as to the appropriate
hat for council members to be wearing at any particular moment.

The public hearing is still only “anticipated”, it is not scheduled.
In my opinion, the window is still open for council to request P&Z to
begin a comp plan amendment. A plan change does not confer a property
right by case law. Only a rezone does.

Mark

>Dear Mark,
>
>In that Wal-Mart has an application in process and a public hearing is
>anticipated, I cannot allow input on that during the citizen comment
>period. Realizing that there has to be a mechanism for decision makers
>to receive petitions and to incorporate them as parts of the public
>record, this afternoon I asked Randy Fife about the best way for that
>to happen.
>
>Randy said that it could be presented to P&Z along with ones own
>request for a rezone of the property in question to something other
>than Motor Business and a change of the Comprehensive Plan map.
>
>I don’t want to jeopardize the process by any hint of manipulation, so
>I asked Randy to clarify the options if the subject arises on Tue. or
>in case you are willing to call him between now and then. Randy said
>that he sent me an email about the matter and gave me permission to
>forward it to you, if you haven’t seen it yet. (I’m guessing that it
>was in response to Linda’s email reply to you, copied to Randy, and
>Gary.) Unfortunately, I have not received Randy’s email and have yet to

>discover if he sent it to a defunct address. Please let me know if you
>have not received it either and I will see that it is forwarded to you.
>
>Nancy
>
>—–Original Message—–
>From: Mark Solomon [mailto:msolomon@moscow.com]
>Sent: Wednesday, January 11, 2006 8:28 AM
>To: nchaney@moscow.com
>Subject: petition presentation
>
>Hi Nancy,
>
>As you’re probably aware, NoSuperWalMart is circulating a petition to
>the City council requesting a comprehensive plan amendment for the
>Thompson property and a stay on rezone hearings until that issue is
>resolved. It is our intention to present it to the council at next
>Tuesday’s meeting. The question for you is whether you would wish to
>place the presentation formally on the agenda so it may be discussed by

Randy, Mark, Randy: Jan 13
From: “Randy Fife”
To: “Mark Solomon”
Cc: “Gary Riedner” ,
“Joel Plaskon”
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1. I am of the opinion that the filing of an application which is not rejected because it is not substantially complete (please forgive the double negative) is notice to the City/ governing board and holds the applicants “place” in the law. Otherwise a city could simply keep rejecting an application by looking for insubstantial errors and/or omissions in order to frustrate the process. Accepting an application which is not substantially complete is also inappropriate for the same reason. Another policy consideration is how much interest the City has in facilitating a good application and whether it is treating all applicants fairly.

I am not sure how to set up an oversight process for determining when an application is substantially complete other than perhaps to designate certain things as “required” so I trust that the experts in such matters (i.e. the person responsible for the receipt of an application) will be competent, fair, reasonable and honorable. A discussion regarding more precision in the matter certainly could be helpful. Predictability and consistency are important goals of government. You might suggest a process. There may be something “out there” which the City could look at. As time permits, I’ll ask/look around, too. In the meantime, I will trust Joel and his department on the issue. Unless he tells me otherwise, the applications are before the City in this matter for purposes we’ve been discussing.

2. I forgot to give you the Moscow City Code cites for the support of the zoning as quasi judicial. Look at MCC 4-10-3(B) and 4-10-5. The City website is here:
http://www.ci.moscow.id.us/citycode/index.asp It is now searchable.

3. I have spoken to the Mayor and she wanted me to relay to you that she intends to follow my advice and decline your request to present the petition to the City Council on Tuesday at the meeting but she also wanted me to set out your options.

As I understand it, you have the option of submitting the petition to the Community Development department as a request for a Comp Plan change to be considered by the Planning and Zoning Commission pursuant to Idaho Code Section 67-6509. The fee is $550, as far I can determine today. Joel Plaskon (883-7011) or someone in his office (Andrew 883-7008 or Anne 883-7095) can help you with the specific process.

As you know, anyone who has an interest in the pending applications is invited to participate in the public hearings which must be held by the P&Z and the Council. I don’t think they have been scheduled yet but Joel could give you an idea when that is likely to occur. Notice will be posted according to Idaho Code and City policy (i.e. posting on the site, notice in the paper, and mailings to property owners within 300 feet of the borders of the property, as I remember it).

I recommend that you talk to Joel about whether there are other options available. He was not in today so this part may not be complete. He should be back on Tuesday. Call me with questions Tuesday.

randy

From: Mark Solomon [mailto:msolomon@moscow.com]
Sent: Friday, January 13, 2006 4:18 PM
To: Randy Fife
Subject: Re: case law

Randy,

I concede on the point quasi-judicial v legislative. Thank you for bringing this case to my attention. However, the issue of when an application is pending before the governmental body is still in play in my estimation. I attempted to talk to Joel P. today but he left the office. Anecdotally I hear that he has sent a rather extensive set of comments/questions back to the applicant in the near past.

m.

Mark,

I believe that the attached case supports my position that a rezone is a quasi judicial matter. See the discussion on pages 3 and 4 starting with the paragraph (1) and ending after paragraph (3). You may also be interested in the discussion of the motion on rehearing which holds that the date of the application “fixes’ the law which is to be applied and explains why that is the case (although filing does guaranty an approval). See page 5. This case has been cited often and has been recently cited for these propositions. Hope this adds to the discussion.

randy

Mark to Randy, Jan 17
Randy,

Thanks for your research and responses to the issues I’ve been raising. It’s been very helpful in focusing attention on areas of murkiness in the law and/or proceedings where exploring the boundaries of case law may be beneficial to City process and the issue at hand.

As attorney for the City, I understand your reluctance to advise the mayor and council on approaches that have not yet been defined in statute or case law. I agree with that approach when a city action under the authorities delegated by the Local Land Use Planning Act (LLUPA) could end in a court judgement against the city that ordered a specific city action or was found to be a violation of a valuable property interest. However, there are instances in which a Planning and Zoning action by the City is undefined in statute or case law and, even if the city’s action were found by a court to be in violation, would only set the clock back to the beginning of the process. I believe it is this second scenario that we have been discussing.

Allow me to elaborate.

One way to view when a Comprehensive Plan Amendment is appropriate is with a hypothetical. Let’s say there is an average of three months between the time an application is first submitted to the Community Development Department and its placement before the P&Z. Given meeting schedules, public notice requirements and deliberations, P&Z takes two months to send their recommendation to Council who takes another two months to issue a final decision. Just before the Council issues their decision, another similar application is received and the cycle begins again. And again. And again.

In this scenario, the only way for a governing body to legislate is with the imposition of a moratorium or an emergency ordinance - a process certainly not anticipated as the common way of changing a Comprehensive Plan. While seemingly a scenario that might not be “real” in Moscow, it would certainly seem to be reality in larger urban areas such as Boise or Coeur d’Alene where the pace of development is currently much faster.

Because the planning aspects of the LLUPA only offer a speculative property interest, not a valuable or vested interest and in the light of the hypothetical just related, the governing body must have the right to legislate changes to the Comprehensive Plan at any time within the strictures of process detailed by statute.

When is a matter “not currently pending before the Planning and Zoning Commission or Board of Adjustment”?

You have defined for me the City policy as a matter is “pending before P&Z” from the moment an applicant submits a “substantially complete” application to the Community Development Department. In our conversation, you have used the phrase “substantially complete” to indicate a difference between a real and a frivolous application. To my knowledge, “substantially complete” is undefined by statute, policy or case law.

This gap raises more questions than it answers. Is it when someone submits an application with their name and address? When a fee is collected? When the application is filled out? When the city staff has no more questions? How is that information provided to the governing bodies (P&Z, Council) so they may know to abide by the rules of ex parte? Absent adopted City policy incorporated into the city’s ordinances, “substantially complete” is without practical or legal meaning.

The fact of the matter is there is no mechanism I am aware of for providing notice to the governing bodies and the public until the application is truly complete and is forwarded to P&Z for hearing and to the newspaper of record for public notice in the legals. It is only happenstance that some matters, such as the Thompson application, come to public attention through the news reporting function of the media.

Both of us have now researched Idaho case law to determine if there is any guidance available from that quarter. There isn’t. I will not pretend to be an attorney, but I can find my way around a law book. As there is no on-point case law, the practice is to read the statute with its plain meaning. If the statutes are silent on an issue, no meaning can be read into the silence. Thus, the phrase “pending before P&Z ” (referring to issues that may be presented during the Council’s Public Comment section of its regular agenda) can only mean matters noticed by publication as required by law. If it were otherwise, it stands to reason that over 30 years of LLUPA litigation would have generated some case law on the issue. It hasn’t.

When can the Council act as a legislative body for purposes of administering LLUPA authority?

The Council can at any time act as a legislative body. The question more rightly becomes, what is the effect of the Council utilizing their legislative authority if a LLUPA application submitted to the City for consideration would be affected as a consequence of that legislation? I believe this question resolves to the assessment of the property interest and how it would be changed by the legislative action. Case law reveals a difference in property interest between planning and zoning:
“In fact, there is a substantial difference between planning and zoning. Planning is long range; zoning is immediate. Planning is general; zoning is specific. Planning involves political processes; zoning is a legislative function and an exercise of the police power. Planning is generally dynamic while zoning is more or less static. Planning often involves frequent changes; zoning designations should not. Planning has a speculative impact upon property values, while zoning may actually constitute a valuable property right.” (emphasis added) Balser v Kootenai County 110 Idaho 37

Thus, Council has the right and ability at any time to change the Comprehensive Plan in accordance with the procedures detailed in statute and city code without changing a valuable property interest. It is only the act of zoning that confers a valuable property interest. As argued above, only matters publicly noticed for hearing before P&Z after an application is complete could be in any way affected by a change to the Comprehensive Plan and then only to the speculative nature of their property interest.

I look forward to further discussing these issue with you and the Council.

Replies Randy, Mark: Jan 17
Randy,

I’ve reviewed Lomond before. It is an interesting case that focuses on the rights of a property owner in the absence of a planning and zoning process established in code. That is not our present issue: Moscow has a fully established comprehensive plan and zoning ordinance. The question I keep raising is when does a valuable property interest attach to a property in terms of LLUPA. Both Lomond and Cooper point to the establishment of zoning for a particular parcel as that point (although in Lomond, as just mentioned, it was the absence of a zoning ordinance). If a valuable property interest has not attached, then legislative actions can not diminish them.

Mark

At 2:46 PM -0800 1/17/06, Randy Fife wrote:
Mark,

I read your latest email and think that the Ben Lomond case (decided in 1968) has a good discussion of the issues related to when an application establishes the law to be applied in a particular land use related matter. It was cited as authority in the last case I sent to you (Cooper v. Board of Commissioners of Ada County, 101 Idaho 407, 412 (1980)) in support of the holding on rehearing that the law to be applied was that in existence when the application was filed. I believe that Ben Lomond is still good law.

The reason I temper my answer with the words “substantially complete” (even though Idaho cases on point seem only to refer to a payment of the fee and the filing of an application) is so that an applicant cannot just file an inadequate application to establish an interest. This, to me, seems more in the spirit of a balanced interpretation than a strict reading of Idaho case law on the matter. I respectfully disagree that “substantially complete” has no practical or legal meaning but I do agree that it does leave the matter open to some discretion. I am not sure how to eliminate discretion no matter who is ultimately charge with determining how and under what conditions to accept an application.

Who initially determines when an application is substantially complete is certainly a fair discussion point (assuming that my interpretation is reasonable). I think that the citizens would want that to be someone who is familiar with the process and has some training in the matter. In the City’s case that is usually the Clerk, the Human Resource Director, someone at the police department, several people at Community Development or Engineering, etc. Maybe there is another way to do it. I support something that is fair, predictable, consistent, and efficient. As I stated before, this seems to be more of a policy issue than a legal issue so I’ll leave it to others.

I do not believe that the LLUPA requires a moratorium to change the Comp Plan. The procedure set out in the LLUPA is to handle legislative matters in due course and to impose emergency measures where there is a finding of imminent peril. This aspect of the LLUPA has caused consternation in the past because it is sometimes hard to get out ahead of emerging issues; however, the process is what the Idaho legislature has set up. I am sure there are all sorts of competing policy issues which led to the current state.

My final comments on this subject for now (because I think we may just have to “agree to disagree”) are these:

The establishment of the law in question necessarily includes the procedure set out in the Moscow City Code (in this case, quasi judicial). I would think it unusual that the filing of an application would establish only part of the law to be applied (the date of matter and the general law of zoning to be applied) and not the procedure required to follow such law.

Although I appreciate that there may be a feeling that broad discussion regarding a particular application may be desirable, the State Code, the courts, and the City Council, have determined that zoning applications, etc. receive public input within the strictures of the quasi judicial, rather than the legislative, public process.

Whether a matter before the P&Z or Council is legislative or quasi judicial both are PUBLIC processes. They have different focuses but each requires compliance with the open meetings laws, the open records laws, and each requires that the decisions be based upon the public’s input. Although the quasi judicial format is more “formalized” (for lack of a better word), the public hearing portion is required.

Hope some of this helps with the discussion. randy