Overcoming Challenges: Growth Pressures, Resource Limitations, and Moving Forward

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Challenging Times
 
U
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P
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E
D
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G
R
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W
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P
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,
 
R
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L
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A
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P
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F
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T
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A
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  Growth
  Land Use and Budgets
  Moratoria
  Public Hearing Procedures
  Topics to Discuss – your choice
 
G
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h
 
P
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e
s
s
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s
?
 
  How extensive is current pressure?
  Source of demand?
  Where are people coming from?
  How are local people affording housing?
  What questions or contentions are you confronting?
 
L
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d
 
U
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,
 
C
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S
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  Structure of Idaho local government – counties and cities
  Doctrine of separate sovereignty – Article XII, section 2
  Counties are established by state law; methods for forming cities
are situational
  Counties as providers of urban services
  Who receives services; who pays?
  Where revenues are capped, what are the long-term
consequences?
 
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t
 
t
h
e
 
M
 
W
o
r
d
 
 
(
m
o
r
a
t
o
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)
 
 
Emergency Ordinances or Moratoriums (I.C. §67-6523)
 Finding of imminent peril to public health, safety and general welfare - written
 Can by-pass recommendation from p-z commission – proceed on any abbreviated notice (agenda)
 Max duration 182 days – no consecutive on same subject – 1-year gap
 
Interim Ordinances or Moratoriums  (I.C. §67-6524)
 Plan being prepared or changes under consideration - establish interim ordinance/moratorium
  Public hearing required per I.C. §67-6509
  Interim ordinance doesn’t require comprehensive plan policy support
  Max duration – 1 year
  To sustain, must adopt regular ordinance
  
Regular Ordinances
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From Public Hearing to
Defensible Decision
 
PUBLIC HEARINGS AND FINAL LAND USE DECISIONS
 
Starting at the Conclusion …
 
 
Know where you are headed
 
Shape the process with the end in mind
 
Avoid aimless wandering
 
Focus on two important components:
“Final” decision – after public hearing
 Public hearings – procedural compliance
 
Final Decision Essentials
 
 
Must be based on standards and criteria in:
Comprehensive plan policies (zoning changes only – not conditional uses, etc.)
Zoning ordinance
Other applicable ordinances
 
Standards must be set forth in express terms
 
Identify basis of compliance/non-compliance
 
Decision must be written – accompanied by reasoned statement
Decision Criteria
Facts (from the record)
Rationale – explain why
 
Fail to comply – appeal may invalidate decision
 
In the Shoes of the Applicant
 
 
Applicants’ rights are defined by law
 
Applicant must understand 
what must be proven
 
Significant differences between experienced
applicants and “never done this before”
 
Process should be somewhat predictable and
understandable
 
Burden of 
persuasion
 must be appreciated
 
From the Staff Perspective
 
 
County staff should project “neutrality” – even if a
challenge
 
If staff knows of route to success, should disclose
 
Focus on issues in controversy – others are routine
 
Set the stage to create defensible record
 
Should the staff participant express an ultimate
opinion about approval/denial?
 
Through the Eyes of the Public
 
 
May be first public exposure to planning and zoning – or county gov’t
 
Procedures may seem foreign and unfamiliar
 
To create better record, must aid participants in understanding
 
Be wary of being too “friendly” with frequent flyers
 
Communicate decision criteria and explain what will be effective
from the outset
 
Take precautions in scheduling for public benefit (and for your
decision-makers) – no all-nighters
 
Clearly Expressed Decision Criteria
 
 
Application form, staff reports and final decisions should focus
around decision criteria contained in ordinances/statutes
 
Differences in criteria vary based upon legal standards required
 
Communication of decision criteria should start with first mailed
notice
 
Criteria should be prominently displayed in hearing room*
 
A decision worksheet containing applicable criteria may be helpful
for commission
 
Subdivisions – Standards/Criteria
 
 
Public hearing not required by state
law- everybody requires hearing
 
Meet standards of:
Road design and circulation
Water system capacity and design
Sewer system capacity and design
Pedestrian paths
 
Street lighting
Surface water management
Bicycle paths
Traffic signs
Zoning compliance
Slope stability
Flood hazard avoidance
Etc.
 
What Question is Asked?
 
 
When you send a notice of public hearing, do you
clearly state the purpose of the hearing?
 
To those who receive your notice, do you know what
they perceive?
 
What does the public want in a typical subdivision
hearing?
 
How do you reach your final answer?
 
P
r
e
l
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m
i
n
a
r
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W
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k
 
B
e
f
o
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e
 
P
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l
i
c
 
H
e
a
r
i
n
g
 
 
When a public hearing is required*
 
Publish notices – official newspaper and website
(document)*
 
Mail notices – first class USPS
 
Solicit comments from public agencies
 
Prepare staff report – note compliance/non-compliance
 
Make sure meeting space will accommodate
 
Prepare hearing materials
 
Consistent Procedures
 
 
Hearing procedures resolution required by Idaho Code §67-
6534*
 
Must draw distinctions between legislative and quasi-
judicial decisions
 
Alert potential participants to risks of 
ex parte
 contact in
notice
 
Make rules of procedure readily available – on website
 
Adjust hearing procedures resolution as issues arise
 
Quasi-judicial Public Hearing –
Procedures and Order of Steps
 
Introduction by presiding officer or designee
(commission chairman) – keep explaining
Description of project by applicant
Summary staff report – ultimate opinion or not?
Written comments on sign-up sheets*
Testimony by supporters of application – then neutrals
Testimony by opponents – spokesman?
Rebuttal of opponents by applicant – hearing closes
 
 
 
Developing a Written Decision
 
 
Abandon/suspend Roberts Rules of Order if you have adopted them
 
Solicit comments from commissioners before developing decision motion
 
After hearing from all who wish, have someone shape a motion that includes
the primary decision points surrounding contested issues
 
If decision is routine, without serious contention, the motion may stand on its
own – including approval of worksheet
 
If the decision is contested, seek staff and/or legal support in developing the
final written decision.
 
If developing recommendation, save the time of finalizing
 
Reaching a Decision
Start With the End in Mind
 
 
Application Forms
 
Mailed notice – more than published
 
Display Decision Criteria in the hearing room
 
Decision sheets for decision-makers
 
Final decision approved by decision-makers
 
Appellate Procedures
 
 
Before appeal, must notify possible appellants (§67-6535)
 
Prospective appellant must seek reconsideration – 14 days
 
Reconsideration must identify specific deficiencies in
decision
 
Final decision-maker for the county can:
Stand by original decision
Conduct another public hearing and stand by original decision
Conduct another public hearing and change original decision
Must act within 60 days or appeal can move forward
 
J
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I
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D
i
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r
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C
o
u
r
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Court will review final decision and decision-making
process
 
Court will order transcription of proceedings
 
Decision must address decision criteria and be backed by
information in record
 
Decisions are to be judged “upon sound reason and
practical application of recognize principles of law”
 
Remedy available only upon showing of “actual harm or
violation of fundamental rights”
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Addressing the unprecedented growth pressures and resource limitations faced in challenging times raises crucial topics like land use, county budgets, public services, and the use of moratoriums. From understanding growth pressures to making defensible decisions, the path forward involves navigating public hearings, final land use decisions, and shaping processes towards sustainable outcomes.


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Presentation Transcript


  1. Challenging Times UNPRECEDENTED GROWTH PRESSURES, RESOURCE LIMITATIONS AND UNPRECEDENTED GROWTH PRESSURES, RESOURCE LIMITATIONS AND THE PATH FORWARD THE PATH FORWARD

  2. Topics and Additions Topics and Additions Growth Land Use and Budgets Moratoria Public Hearing Procedures Topics to Discuss your choice

  3. Growth Pressures? Growth Pressures? How extensive is current pressure? Source of demand? Where are people coming from? How are local people affording housing? What questions or contentions are you confronting?

  4. Land Use, County Budgets and Land Use, County Budgets and Public Services Public Services Structure of Idaho local government counties and cities Doctrine of separate sovereignty Article XII, section 2 Counties are established by state law; methods for forming cities are situational Counties as providers of urban services Who receives services; who pays? Where revenues are capped, what are the long-term consequences?

  5. About the M Word About the M Word (moratorium) (moratorium) Emergency Ordinances or Moratoriums (I.C. 67-6523) Finding of imminent peril to public health, safety and general welfare - written Can by-pass recommendation from p-z commission proceed on any abbreviated notice (agenda) Max duration 182 days no consecutive on same subject 1-year gap Interim Ordinances or Moratoriums (I.C. 67-6524) Plan being prepared or changes under consideration - establish interim ordinance/moratorium Public hearing required per I.C. 67-6509 Interim ordinance doesn t require comprehensive plan policy support Max duration 1 year To sustain, must adopt regular ordinance Regular Ordinances

  6. From Public Hearing to Defensible Decision PUBLIC HEARINGS AND FINAL LAND USE DECISIONS

  7. Starting at the Conclusion Know where you are headed Shape the process with the end in mind Avoid aimless wandering Focus on two important components: Final decision after public hearing Public hearings procedural compliance

  8. Final Decision Essentials Must be based on standards and criteria in: Comprehensive plan policies (zoning changes only not conditional uses, etc.) Zoning ordinance Other applicable ordinances Standards must be set forth in express terms Identify basis of compliance/non-compliance Decision must be written accompanied by reasoned statement Decision Criteria Facts (from the record) Rationale explain why Fail to comply appeal may invalidate decision

  9. In the Shoes of the Applicant Applicants rights are defined by law Applicant must understand what must be proven Significant differences between experienced applicants and never done this before Process should be somewhat predictable and understandable Burden of persuasion must be appreciated

  10. From the Staff Perspective County staff should project neutrality even if a challenge If staff knows of route to success, should disclose Focus on issues in controversy others are routine Set the stage to create defensible record Should the staff participant express an ultimate opinion about approval/denial?

  11. Through the Eyes of the Public May be first public exposure to planning and zoning or county gov t Procedures may seem foreign and unfamiliar To create better record, must aid participants in understanding Be wary of being too friendly with frequent flyers Communicate decision criteria and explain what will be effective from the outset Take precautions in scheduling for public benefit (and for your decision-makers) no all-nighters

  12. Clearly Expressed Decision Criteria Application form, staff reports and final decisions should focus around decision criteria contained in ordinances/statutes Differences in criteria vary based upon legal standards required Communication of decision criteria should start with first mailed notice Criteria should be prominently displayed in hearing room* A decision worksheet containing applicable criteria may be helpful for commission

  13. Subdivisions Standards/Criteria Street lighting Surface water management Bicycle paths Traffic signs Zoning compliance Slope stability Flood hazard avoidance Etc. Public hearing not required by state law- everybody requires hearing Meet standards of: Road design and circulation Water system capacity and design Sewer system capacity and design Pedestrian paths

  14. What Question is Asked? When you send a notice of public hearing, do you clearly state the purpose of the hearing? To those who receive your notice, do you know what they perceive? What does the public want in a typical subdivision hearing? How do you reach your final answer?

  15. Preliminary Work Before Public Hearing Preliminary Work Before Public Hearing When a public hearing is required* Publish notices official newspaper and website (document)* Mail notices first class USPS Solicit comments from public agencies Prepare staff report note compliance/non-compliance Make sure meeting space will accommodate Prepare hearing materials

  16. Consistent Procedures Hearing procedures resolution required by Idaho Code 67- 6534* Must draw distinctions between legislative and quasi- judicial decisions Alert potential participants to risks of ex parte contact in notice Make rules of procedure readily available on website Adjust hearing procedures resolution as issues arise

  17. Quasi-judicial Public Hearing Procedures and Order of Steps Introduction by presiding officer or designee (commission chairman) keep explaining Description of project by applicant Summary staff report ultimate opinion or not? Written comments on sign-up sheets* Testimony by supporters of application then neutrals Testimony by opponents spokesman? Rebuttal of opponents by applicant hearing closes

  18. Developing a Written Decision Abandon/suspend Roberts Rules of Order if you have adopted them Solicit comments from commissioners before developing decision motion After hearing from all who wish, have someone shape a motion that includes the primary decision points surrounding contested issues If decision is routine, without serious contention, the motion may stand on its own including approval of worksheet If the decision is contested, seek staff and/or legal support in developing the final written decision. If developing recommendation, save the time of finalizing

  19. Reaching a Decision Start With the End in Mind Application Forms Mailed notice more than published Display Decision Criteria in the hearing room Decision sheets for decision-makers Final decision approved by decision-makers

  20. Appellate Procedures Before appeal, must notify possible appellants ( 67-6535) Prospective appellant must seek reconsideration 14 days Reconsideration must identify specific deficiencies in decision Final decision-maker for the county can: Stand by original decision Conduct another public hearing and stand by original decision Conduct another public hearing and change original decision Must act within 60 days or appeal can move forward

  21. Judicial Review Judicial Review In District Court Court will review final decision and decision-making process Court will order transcription of proceedings Decision must address decision criteria and be backed by information in record Decisions are to be judged upon sound reason and practical application of recognize principles of law Remedy available only upon showing of actual harm or violation of fundamental rights In District Court

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