May 2012 Updates
Posted: May 6, 2012
Technical Committee Meeting
The ULUC Technical Committee will meet Thursday, May 10, 2012, from 2:00 PM to 4:00 PM in Room 2 of the Kootenai County Administration Building. For details, please contact Scott Clark at (208) 446-1080.
Important Information for Homeowners in Unincorporated Kootenai County
Posted May 6, 2012
Kootenai County’s ordinance consultant, Kendig Keast Collaborative, is proposing a new zoning district; Neighborhood Conservation (NC). This district would be applied to numerous established areas of Kootenai County. In this new district, ten sub-districts are proposed, each of which corresponds to an existing neighborhood pattern. By using this approach, large areas of the County with existing homes on parcels (10 acres or less) would be zoned with an NC sub-district as this will most closely relate to their typical parcel size.
First, unlike our existing land use regulations, the newly proposed NC districts will consider existing nonconforming lots and buildings as being conforming. In other words, if the lot or building was allowed when it was created, it will become legal and conforming under the proposed new code. In fact, many residents who currently own nonconforming properties today will greatly benefit from having their properties converted to conforming.
By having all lots and homes in the NC district conforming, the district is an important step towards making it easier to buy, sell, and improve homes in the County. Buyers and sellers benefit because financial lenders are usually more comfortable loaning on properties which conform to local codes.
Second, the NC sub-districts are designed with existing buildings in mind. They provide more flexibility than the current ordinances when it comes to adding onto an existing home. Special procedures, such as variances, will not be required for typical improvements under the NC sub-districts. For example, a homeowner who wants to expand a building may build up to the setback line, or may even build past the setback if certain standards are met. These standards are designed to help ensure that additions can be more easily accomplished and at the same time do not place unfair burdens on the neighbors.
Consequently, unlike current county ordinances, the Neighborhood Conservation district is designed to provide a more objective review process which will have a high level of predictability for land owners, contractors and developers.
In fact, the proposed Neighborhood Conservation district is specifically designed to protect property rights, protect property values and promote investment in Kootenai County.
For more information about the newly proposed NC district, the Kootenai County Board of Commissioners encourages the public and agencies to review the proposed regulations, and provide input online or attend and participate in one of the upcoming ULUC public meetings.
Join Us for Webinars
Posted: May 6, 2012
Webinars are held periodically during the project to discuss draft code provisions. You may contact Scott Clark at sclark@kcgov.us at any time to be included on the ULUC webinar invitation list. This will ensure you receive e-mail invitations to all future ULUC project webinars. Alternatively, you can join the webinars when they start by directly by visiting Kendig Keast Collaborative's WebEX Conference Center page (this option will not put you on the list for future webinar invitations; you'll also need a password, which is always kootenai); or join us for the webinar at the Kootenai County Administration Building.
About the Unified Land Use Code Project
Posted: June 24, 2011; Updated: August 29, 2011; Updated: March 20, 2012
The Policy Basis: The Kootenai County Comprehensive Plan
The Board of County Commissioners approved the Kootenai County Comprehensive Plan on December 30, 2010. The new Comprehensive Plan, which applies to the unincorporated areas of Kootenai County,* is the result of several years of research, community input, debate, meetings, writing, and thought. It addresses the changes in circumstances, values, needs, and demands since the adoption of the former plan (in 1994), and was developed in accordance with the standards and requirements of Idaho law (I.C. § 67-6508).
The Kootenai County Comprehensive Plan was developed by the residents of the county, county staff, and elected and appointed officials. It is the result of thousands of hours of volunteer work, considerable County resources, and much debate about the future of the County. A consulting firm called Kezziah Watkins helped the County during the early stages, but the plan was principally developed without the assistance of consultants.
The Unified Land Use Code
Creating new codes that are in accordance with plans is very hard work. There are several private firms across the country that are in business to help local governments through the process. After a competitive selection process that involved detailed proposal documents and a full day of interviews, the County hired Kendig Keast Collaborative to work with the County staff, elected and appointed officials, agencies, landowners, residents, and business owners to develop a new Unified Land Use Code ("ULUC") for consideration by the Board of County Commissioners.
The ULUC will be guided by the policies that the County set out in its Comprehensive Plan, which will be further refined through a process of extensive public input and review.
Why Is the County Updating Its Development Ordinances?
In addition to planning, Idaho law requires Counties to develop and enforce zoning and subdivision ordinances (I.C. §§ 67-6503 and 67-6513, respectively). These ordinances are important tools that Counties use to implement their plans. As such, it is important that the ordinances be consistent with the policies of the plan. In fact, with respect to zoning districts, it is required by state law ("The zoning districts shall be in accordance with the policies set forth in the adopted comprehensive plan." I.C. § 67-6511).
Since the new plan includes new and updated objectives and policies about land use and development, the ordinances that relate to the use and development of land should be revised to ensure that they help to implement the plan, rather than frustrate it. A comprehensive review and re-write of the County's land use regulations also offers the opportunity to:
- Resolve internal inconsistencies, add graphics, and simplify language;
- Reorganize and consolidate the separate ordinances into one place (a Unified Land Use Code);
- Streamline and standardize procedures to the extent allowable under Idaho law;
- Ensure that the ordinances comply with state and federal requirements; and
- Publish the rules in an easy-to-access fashion on the Internet.
What About My Property Rights?
Kendig Keast Collaborative are not bringing a "pre-packaged" set of regulations to Kootenai County. The code language that is presented on this site is in draft form. It is posted in a sincere effort to solicit public comment in order to ensure that the ULUC provides for what the residents of the County want. Accordingly, drafts are subject to substantial change in response to public comment and new information.
Since there is no final code yet (the process is ongoing), there is no way at this point to evaluate the difference between the current zoning and subdivision regulations and what the proposed ULUC might require on any specific property. Kendig Keast Collaborative understands that this is frustrating to some residents, but there is no other way to do this type of work.
The ULUC will be shaped by the following objectives:
- Make the code easier to use, which will make it easier to understand requirements and obtain approvals for the development and use of property;
- Revise or eliminate existing code provisions that are frustrating landowners because they are unnecessarily restrictive (i.e., they go further than they need to in order to achieve their stated objectives), or too difficult to understand; and
- Help implement Kootenai County's Comprehensive Plan, which represents the hard work of the County's residents in figuring out and articulating where their diverse values meet.
What are Property Rights?
Property rights are a cornerstone of western civilization, but too often their nature is misunderstood. Sometimes, the phrase property rights is used loosely. Generally, that stirs up an emotional response -- typically by suggesting that some undefined set of property rights is being put in harm's way. Unfortunately, this sort of rhetoric too often generates "more heat than light." It taps into a heartfelt intuitive image of property rights -- which is, in short, "I should be able to do anything I want with my property."
Yet, the intuitive image of property rights is not square with what centuries of Western and U.S. law describe as property rights. The legal definition (which is what applies to zoning and subdivision law), is much more complicated. Indeed, there are volumes of court cases and legal treatises on property rights.
The "common-law" (case law) on property rights describes them as a “bundle of rights” that come along with the ownership of property. The “bundle” comparison is used because property rights can be separated from each other and given, rented, or sold to others (e.g., a person may lease property to another – giving them a temporary right to possess the property – while still retaining ownership; a person may transfer mineral rights or water rights while retaining ownership of the surface; a person may grant an easement to another for a specific purpose, like access or drainage).
Key property rights in the "bundle" include the right to possess (which includes the right to exclude others), use, and dispose of property (for example, by sale, gift, or will). According to the U.S. Supreme Court, the “power to exclude [others from one’s property] is ‘one of the most treasured strands in an owner's bundle of property rights.’” Loretto v. Teleprompter Manhattan Catv Corp, 458 U.S. 419 (1982).
Property rights may also be created by state law. For example, in Idaho, there is a "right to farm" law, and a right of a property owner who requests and obtains a rezoning to not have the rules change within a certain period of time.
Property rights are not absolute. Courts have consistently held that through our republican form of representative government, the use of property may be regulated “within reasonable limits” (beyond mere nuisances) for “the public good.” As the U.S. Supreme Court puts it, “that is a burden borne to secure ‘the advantage of living and doing business in a civilized community.’” Andrus v. Allard, 444 U.S. 51 (1979). Significantly, the Andrus v. Allard decision was not simply the expression of an "activist court" that was "legislating from the bench." In fact, the opinion was joined by justices across the political spectrum.
The Court in Andrus v. Allard (citing the famous "takings" case of Pennsylvania Coal v. Mahon) ultimately concluded: “Suffice it to say that government regulation—by definition—involves the adjustment of rights for the public good. Often this adjustment curtails some potential for the use or economic exploitation of private property. To require compensation in all such circumstances would effectively compel the government to regulate by purchase. ‘Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.’ Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) . . . . The Takings Clause, therefore, preserves governmental power to regulate, subject only to the dictates of ‘justice and fairness.’”
Kendig Keast Collaborative's project manager describes the ULUC as "a set of rules for what it means to be a 'good neighbor' with respect to the use and development of land in Kootenai County." All are welcome to join in the effort to create proposed new rules that are purposeful, just, and fair.
That's why we're here.
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* If your property is within the City limits of Athol, Coeur d'Alene, Dalton Gardens, Fernan Lake Village, Harrison, Hauser, Hayden, Hayden Lake, Huetter, Post Falls, Rathdrum, Spirit Lake, State Line, or Worley, then the proposed ULUC will not apply to it. However, please note that in some cities there are one or more unincorporated "enclaves," which are areas of the County that are surrounded by incorporated parts of the city on all sides. These areas are not part of the city , and therefore are regulated by the County. For a map of the County's cities (which shows the enclaves), click here.