HomeMy Public PortalAboutOrd. 626 - Supporting DocsORDINANCE NO. 6 „
AN ORDINANCE OF THE CITY OF MCCALL, IDAHO, ESTABLISHING A
MORATORIUM ON ISSUANCE OF BUILDING PERMITS, THE ACCEPTANCE OF
APPLICATION FOR, OR PROCESSING OF, ANY SPECIAL USES, VARIANCES,
RECLASSIFICATION OF ZONE (ZONING MAP AMENDMENT),'SUBDIVISIONS, OR
MOBILE HOME OR TRAILER FACILITIES, RESPECTING LANDS ARGUABLY
WITHIN 500 FEET OF THE PROPOSED MCCALL ALTERNATE ROUTE OF THE
IDAHO DEPARTMENT OF TRANSPORTATION, SOUTH AND WEST OF THE CITY;
AND PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE CITY OF MCCALL,
IDAHO, AS FOLLOWS:
Section 1. The Mayor and Council find that the Idaho
Department of Transportation desires to finalize planning for the
McCall Alternate Route for Highway 55 south and west of the City,
and has requested that the City suspend all development approvals
within 500 feet of the proposed alignment as depicted on an aerial
photograph received with the request. The Mayor and Council
furtherfind that a moratorium on development approvals is
necessary to avoid a threat to the public welfare, in that
individuals might seek to alter the status of lands in
anticipation of right of way acquisition, or commence private
development inconsistent with such right of way acquisition, so as
to frustrate a public improvement important to the safety of City
residents.
Section 2. The City shall not accept, nor shall it process
any application nevertheless received, affecting lands within 500
feet or arguably within 500 feet of the proposed alignment of the
McCall Alternate Route, according to the aerial photograph
received by the City with the letter of February 3, 1993, from
Robert R. Elvin, P. E. of the Idaho Transportation Department.
"Application" means, for these purposes, any application for a
building permit, special use, variance, planned unit development,
subdivision, or mobile home or trailer subdivision, park, or camp.
The referenced aerial photograph shall be preserved by the City
Clerk as a public record for these purposes within City Hall, and
shall be open to public viewing during normal business hours.
Section 3. This Ordinance shall be in full force and effect
from and after its passage, approval and publication as required
by law, for a period ending with the opening of the McCall
Alternate Route to routine public traffic. This ordinance need
not be codified, as it is of temporary effect.
Passed and approved , 1993.
ATTEST: Mayor
City Clerk
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DILLION, BOSCH & DAW
CHARTERED
ATTORNEYS
Lee B. Dillion
Allan R. Bosch
C. A. Daw
Russell A. Comstock
Robert A. Wreggelsworth
Kathleen P. Allyn, of counsel
April 7, 1993
Mayor and City Council
216 East Park
McCall, Idaho 83638
Re: McCall Bypass Moratorium
DBD File No. 343-RE01
I. PURPOSE OF LETTER.
Fidelity Building
242 N. 8th St., Suite 200
Boise, ID 83702
Telephone (208) 344-8990
Facsimile (208) 344-9140
HAND DELIVERED
Dillion, Bosch & Daw, Chartered ("DBD") represents Judd and Diane DeBoer
("DeBoers"). The purpose of this letter is to state our objections to the recently enacted
moratorium on the issuance of building and other land use permits within 500 feet of the McCall
Alternate Route for highway 55. The moratorium was identified as Ordinance No. 626, a copy
of which is attached as Exhibit A.
By action taken without notice and without any demonstrated need, the City of Mccall
has effectively taken 240 plus acres of the DeBoers' property.
H. BACKGROUND.
A. DeBoer Property. Attached as Exhibit B is a map setting forth (i) lands owned by
the DeBoers in the vicinity of the McCall bypass, and (ii) the approximate location of the
Alternate Route as proposed by the Idaho Transportation Department ("ITD"). Note that the
DeBoers, with land paralleling two miles of the Alternate Route, are the individuals most
affected by Ordinance No. 626. The bulk of the DeBoer land affected by the ordinance has been
owned by the DeBoers or their family for 40 years.
B. History of McCall Bypass. The possibility of a McCall bypass for Highway 55 has
been a topic of discussion for approximately 20 years. Thirteen years ago, ITD and the U.S.
Department of Transportation prepared a report entitled Environmental Assessment for Proposed
Highway Improvements from McCall to New Meadows, Idaho ("1980 ITD Report"), a copy of
which is attached as Exhibit C. On page 14 of the 1980 ITD Report, ITD identified a number
of possible alignments for the bypass, including the route (Route B) now identified as the
March 22, 1993
Page - 2
"Alternate Route. " Throughout the 80's, unsuccessful efforts were made to fund and construct
the bypass.
C. Moratorium. Without notice to affected landowners and without any substantive
showing of need by ITD (other than a brief letter of request), the City of McCall adopted
Ordinance No. 626. As a result of the City's actions, the DeBoers are prohibited from applying
for or receiving building or land use permits on 240 plus acres of property. The moratorium
affects an additional 1600 acres of property that are adjacent to the 240 acres.
III. POSITION OF THE DEBOERS.
A. No Basis for Emergency Moratorium. The Local Planning Act permits the
adoption of "emergency moratorium" only in situations where "imminent peril to the public
health, safety, or welfare. requires .... adoption of a moratorium . . Idaho Code §67-6523.
Other than the conclusory statement that such a peril exists, I can find no credible evidence of
an imminent peril to public health, safety, or welfare. To the extent that such a peril exists, it
can not seriously be characterized as imminent. Whatever peril now exists has existed for the
20 years that the bypass has been proposed. The only "imminent" peril is the constitutionally -
mandated peril that the State will have to pay fair value to private landowners for property
condemned for the bypass.
B. No Notice. The City's suspension of basic due process rights for affected
landowners is as disturbing as the fictional finding of imminent peril. The City adopted
Ordinance No. 626 without any notice to the public in contravention of the Local Planning Act
and due process guidelines. Please note that Idaho Code §67-6523 clearly requires public notice
and hearing (which may be abbreviated but not eliminated). Idaho Code §67-6523 provides, in
part, as follows:
"The governing board may then proceed without recommendation
of a commission, upon any abbreviated notice of hearing that it
finds practical, to adopt the ordinance or moratorium."
Idaho Code §67-6523 provides tremendous flexibility to the City. In contrast to standard
procedures, the finding of imminent peril to the public health, safety, or welfare allows the City
to (i) avoid a commission -level hearing, (ii) provide abbreviated council -level notice of hearing,
and (iii) accelerate the effective date of the legislation. It does not, however, allow the council
to dispense with public notice and hearing. Attempts by cities to avoid public notice and hearing
have been declared violative of due process:
"[I]t has become a well -established rule that while the legislative
authority has the power to enact or amend zoning regulations,
affected property owners have the right to be heard on the specific
matter under consideration, and failure of the legislative body to
March 22, 1993
Page - 3
conduct an appropriate hearing, after notice which affords • a fair
opportunity to be heard, will render the legislation invalid.
Moreover, such notice and hearing requirements cannot be avoided
by a legislative declaration that the ordinance is an emergency
measure. 83 Am Jur 2d Zoning and Planning 4,586. (Emphasis
supplied) .
C. No Justification. Finally, putting aside the legal niceties of sufficient findings and
due process, there is simply no justification for an emergency or interim moratorium in this
situation. You should ask yourself who is benefited by the moratorium. Is it the City who has
watched the State study this project for years as downtown streets became impassible? Is it the
property owners who have hadto deal with the on -again, off -again possibility of the bypass for
almost two decades? Or is it the State which benefits from a development ban on land the State
does not own, even though no evidence has been presented that suggests the bypass is any closer
to construction than it was in 1980. Until the State is prepared to pay fair value for the bypass
corridor, private property owners should have the right to develop their property for the highest
and best use.
IV. REQUEST BY THE DEBOERS.
A. Repeal of Emergency Moratorium. Initially we would request that Ordinance No.
626 be repealed on the grounds that (i) no imminent threat to public health, safety, or welfare
exists, (ii) the City violated due process rights of affected landowners by failing to provide an
abbreviated notice of hearing, and (iii) no credible evidence of the City's need for a moratorium
has been presented to the public.
B. Request for Actual Notice. In addition to our request for repeal of Ordinance No.
626, we would request that actual (i.e. mailed) notice be provided to the affected property
owners of any work sessions, commission hearings, or council meetings that may be convened
to discuss (i) the bypass, or (ii) any interim moratorium relating to the bypass.
C. Request that ITD Present a Complete Plan. An applicant for a conditional use
application, rezone request, or other land use permit is typically required to provide basic
information to the City on the application. Information that may be requested from an applicant
includes (i) the formal application, (ii) a description of the action sought, (iii) preliminary or
final soils, geological, hydrological, and other engineering studies, (iv) site plans and surveys,
(v) grading and drainage plans, and (vi) revegetation plans. With the appropriate information
in hand, planning staff and agencies can make informed decisions on land use applications.
In contrast, the information presented by ITD prior to the adoption of Ordinance No. 626
was virtually non-existent. At a minimum, ITD should be required to present clear and
convincing evidence that (i) the final alignment has been identified, (ii) the necessary engineering
studies have been completed, (iii) funding for the right of way acquisition exists and has been
March 22, 1993
Page - 4
committed to this project (and is not merely a "proposal" identified in a transportation plan with
a date of 2010), and (iv) funding for construction of the bypass and mitigation of adverse
impacts (e.g. landscaping) exists and has been committed to this project.
The City of McCall has an obligation to its citizens to ensure that no decisions are made
regarding the McCall bypass without (i) public notice, (ii) an opportunity by the public to be
heard, and (iii) a complete application and presentation by ITD on moratorium or other bypass -
related requests. I question the political and legal propriety of one public body granting a
request by another public body without notice to the private parties affected by the action.
Apparently the word "public" was overlooked.
The DeBoers respectfully request the opportunity to be involved in actions that affect
their. properties.. If youhave any questions regarding this letter please contact the undersigned
or the DeBoers directly.
Sincerely,
Dillion, Bosch & Daw
Chartered
By:�
Lee B. Dillion
cc: Judd and Diane DeBoer
" l O R D I N A N C E N O . 6 2 6
( E M E R G E N C Y )
A N O R D I N A N C E O F T I I E C I T Y O F
M c C A L L , I D A l 1 O , E S T A B L I S H I N G A
1 2 0 D A Y M O R A T O R I U M O N
I S S U A N C E O F B U I L D I N G : P E R M I T S ,
T i l E A C C E P T A N C E O F A P P L I C A T I O N "
F O R , O R P R O C E S S I N G O F , A N Y
S P E C I A L U S E S O R V A R I A N C E S ,
R E C L A S S I F I C A T I O N O F Z O N E
S U B D I V I S i O N S , O R M O B I L E 1 U M E '
F A C I L I T I E S , R E S I ' E C T I N G L A N D S
A R G U A B L Y W I T H I N 5 0 0 F E E T O F
T i I E P R O P O S E D M c C A L L
A L T E R N A T E R O U T E O F T I I E 1 D A I f O
D E P A R T M E N T O F T R A N S P O R T - .
A T 1 O N , S O U T i 1 A N D W E S T O F T i I E
C i T Y ; A N D 1 ' R O V i D I N G A N .
E F F E C T I V E D A T E .
B E i T O R D A I N E D B Y T i I E M A Y O R
A N D C O U N C I L O F T i I E C I T Y O F
M c C A L L , I D A I I 0 , A S F O L L O W S :
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t h a t t h e I d a h o D e p a r t m e n t o f
T r a n s p o r t a t i o n d e s i r e s t o f i n a l i z e p l a n -
n i n g f o r t h e M c C a l l A l t e r n a t e R o u t e f o r
I l i h w a y 5 5 s o u t h a n d w e s t o f t h e C i t y ,
a n d h a s r e q u e s t e d t h a t t h e C i t y s u s p e n d
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p i c t e d o n a n a e r i a l p h o t o g r a p h r e c e i v e d
w i t h t h e r e q u e s t . T h e M a y o r a n d
C o u n c i l f u r t h e r f i n d t h a t a m o r a t o r i u m 1
o n d e v e l o p m e n t a p p r o v a l s i s n e c e s s a r y
t o a v o i d a t h r e a t t o t h e p u b l i c w e l f a r e , i
i n t h a t i n d i v i d u a l s m i g h t s e e k t o a l t e r
t h e s t a t u s o f l a n d s i n a n t i c i p a t i o n o f
r i g h t o f w a y a c q u i s i t i o n , o r c o m m e n c e .
p r i v a t e d e v e l o p m e n t i n c o n s i s t e n t w i t h
s u c h r i g h t o f % v a y a c q u i s i t i o n , s o a s t o
f r u s t r a t e a p u b l i c i m p r o v e m e n t i m p o r -
t a n t t o t h e s a f e l y o f P i t y r e s i d e n t s .
1
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n e x t f o l l o w i n g t h e e f f e c t i v e d a l e o f t h i s
o r d i n a n c e , t h e C i t y s h a l l n o t a c c e p t , n o r j
s h a l l i t p r o c e s s a n y a p p l i c a t i o n n e v e r - :
t h e l e s s r e c e i v e d , a f f e c t i n g l a n d s w i t h i n
5 0 0 f e e t o r a r g u a b l y w i t h i n 5 0 0 f e e t o f
t h e p r o p o s e d a l i g n m e n t o f t h e M c C a l l
A l t e r n a t e R o u t e , a c c o r d i n g t o t h e a e r i a l
p h o t o g r a p h r e c e i v e d b y t h e C i t y w i t h
t h e l e t t e r o f F e b r u a r y 3 , 1 9 9 3 , f r o m .
R o b e r t R . E l v i n , I ' . E . o f t h e I d a h o
T r a n s p o r t a t i o n D e p a r t m e n t .
" A p p l i c a t i o n " m e a n s , f o r t h e s e p u r -
p o s e s , a n y a p p l i c a t i o n f o r a b u i l d i n g
p e r m i t , s p e c i a l u s e , v a r i a n c e , p l a n n e d
u n i t d e v e l o p m e n t , s u b d i v i s i o n , o r m o b i l e
h o m e o r t r a i l e r s u b d i v i s i o n , p a r k , . o r
c a m p T h e r e f e r e n c e d a e r i a l p h o t o g r a p h
s h a l l b e p r e s e r v e d b y t h e C i t y C l e r k a s
a P u b l i c r e c o r d f o r t h e s e p u r p o s e s w i t h i n
C i t y I l a l l , a n d s h a l l b e o p e n t o p u b l i c
v i e w i n g d u r i n g n o r m a l b u s i n e s s h o u r s .
S e c t i o n 3 . T h i s O r d i n a n c e s h a l l b e i n
f u l l f o r c e a n d e f f e c t f r o m a n d a f t e r i t s
p a s s a g e , a p p r o v a l a n d P u b l i c a t i o n a s
r e q u i r e d b y l a w , f o r a p e r i o d e n d i n g 1 2 0
d a y s a f t e r i t s e f f e c t i v e d a t e . T h i s o r d i -
n a n c e n e e d n o t b e c o d i f i e d , a s I t I s o f
t e m p o r a r y e f f e c t .
P a s s e d a n d a p p r o v e d M a r c h 2 5 , 1 9 9 3 .
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A T T E S T :
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