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HomeMy WebLinkAbout1979-01-30city council minutesBook 20 Page 42 SPECIAL MEETING January 30 1979 12:00 Noon The Meeting was- called to order by Mayor Pasley. The Roll of the City Council was called with the following members,_,present: Olesen, Williams,. Raymond, Hopper,, and Bauman. Absent: McCloskey. (DISCUSSION REGARDING THE CHANGES IN THE COMPREHENSIVE,PLAN) The Mayor called the Meeting to order and asked Councilwoman Bauman to introduce the two guests who were invited to speak to the City Council regarding questions that have occurred -- regarding changes in the Comprehensive Plan. Councilwoman Bauman then introduced Ray Mickelson of the State Planning and Community Affairs and Skip Smyser from the Attorney General's Office. She further'explained that they were requested last week to look at some of the City of Caldwell's procedures to see if the City had followed through correctly, particularly with reference'.to the neighborhood on Cleveland - between Eleventh and Twelfth: -It was brought to .the attention of the City that perhaps the zoning procedure had not been followed correctly and and the proper notification not given., It.was.Councilwoman Bauman's hope that they would clarify where the City went astray or if this was actually the case. She stated that.the Comprehensive Plan map provides that the predominant land use for this area may change from Low Density Residential to Medium Density Residential by the year 2000. Only one building on the entire block was at the present nonconforming to R--2. Only two were nonconforming to R -1. There was eight buildings in the area in question. In reference to the area on Cleveland and Blaine, in November, 1976,.there was a- Chamber of .Commerce sponsored session at which Arlo Nelson stated that from the standpoint of the plan it would represent a major policy, change if the Residential character of these streets should change from what we see now to office and commercial.. Later,,the.Local Planning Act was reviewed and it was discovered that it stated that "existinE zoning ordinances shall be in effect until, January 1,,.. 1978, at which time they must be -in accordance with ' the.act. ". The recommendation of the Planning and Zoning Commission was to change the area from R -2 to R -3 on September 19, 1977. However, that was never followed through; the Council did nothing to substantiate this. The City did move to change the zoning to C -2 on November 29, 1977. Councilwoman Bauman then stated that they would like to know if the procedure followed in regards to this was.complete. The Mayor stated that he would like to raise one other point. The half block in question had been zoned Commercial in 1966 and the action of the Council was just to leave it as Commercial rather than change it to a different classification. It was not imposing new zoning, -but just following the zoning that had been established in 1966. Councilwoman Bauman stated that what the Council needed to know was what takes precedence; the old zoning or the new Plan. Mr. Mickelsou was then introduced and stated that' - Councilwoman Bauman had provided both he and Mr. Smyser considerable information and background of material of the chronological situation and a summary of what has transpired. She had asked in writing a couple of questions that she requested they discuss with the Council. He stated that he would discuss some generalities to begin with. He continued by stating that the Local Planning Act Book 20 Page 43 effective duly of 1975 requires a set deadline as far as updating the existing Comprehensive Plans. The deadline for the cities and counties to update their existing Comprehensive Plan was January, 1977, and by January of 1978 they should assess their existing zoning ordinances in accordance with those plans. The other issue that was raised was in terms of old zoning or new zoning. The old law as well as the new law states that the zoning shall be in accordance with the adopted Comprehensive Plan. The situation that the City was getting into here was the aspect that since the City has adopted the Comprehensive Plan, that they have complied with the new law requirement in that regard, the question was if the City could change previous zoning classifications to conform with the new Plan. He stated that this was correct; that you can change your prior zoning classification to be in accordance with your new Plan. He said that they would want to avoid in any way recommending that you should zone a particular piece of property a certain way or in any way try to come across that they would suggest that the City had made a mistake. He would rather that they look at the context the best they could and advise the City of the State Law and what other communities of the State were doing and the options as they see it that the City has. To carry on in;terms of changing an existing zoning ordinance to conform with the new plan has been done very consistently throughout the State. It was very seldom that a community will decide to down zone or zone to a more restrictive classification once the Comprehensive Plan was adopted. He felt that the City had a good legal base to do that in situations where the Comprehensive Plan clearly shows a different type of land use projection than previously zoned. There would be a good legal basis to change the zoning classifications even though they may have been zoned back in 1966. A Comprehensive Plan was a general guide. There was room for interpretation of what the Planning and Zoning Commission might want. In looking at the Comprehensive Plan to determine in your minds if the zoning was in accordance with the Plan, it would be good to look at both the map and the text. The Map was very general and does not identify streets, barriers, alleyways, streams or what have you in terms as a general guide. There was quite a bit of flexibility as to how you use the Plan in making decisions. The text portion of the Plan sometimes relates to specific areas. With regard to the concern on 12th Street and Cleveland Blvd., the text portion of the Plan does relate to a specific boundary situation in terms of the downtown commercial area. So in light of extending that commercial area beyond those boundaries, it would be according to the State Law provision so the City was on a good legal basis. It would then be a matter of looking back in the Plan and amending the Plan and the map if they felt it was necessary before zoning was applied and if the City felt it was in accordance with the Plan. The Grandfather Rights issue, even though there may be land uses nonconforming to a zoning classification, would be allowed to continue and he felt confident that the City's zoning ordinance does address that issue. Councilman Raymond was recognized and stated that he had a question he would like to ask Mr. Mickelson. He said that Mr. Mickelson had stated that the City can change the zoning to conform, but must the City change the zoning to conform to the Plan? Mr. Mickelson said from the standpoint that you do not zone everything all at once to conform he.would answer no. He further commented that the City would probably not want.to show everything Commercial, Residential, Industrial exactly to conform with the Plan because it was too far reaching. In stages, the City would eventually bring about the overall plan that was projected. Within the context of built up areas where there was no question that Book 20 Page 44 development has occurred, then if your plan does reflect a specific type of plan use, then.he would say in that instance yes. From the legal aspect, the City should in those cases amend the zoning to conform with the Plan so it would not be in conflict. In other words, you do not zone the entire City in accordance with the Plan all at once, but not in direct conflict with the Plan either. The Mayor then asked if they could.change the Plan to conform with the zoning. He explained that the Plan was an overall pattern and a guide; zoning, sets the specific boundaries. Mr. Mickelson said that he felt this was a somewhat backward approach. The Comprehensive Plan should be amended first before the zoning. If it was determined that the zoning and land use - was correct, he then felt the zoning would remain and the Plan changed to conform with the zoning. Normally, he would encourage that the Plan be amended first and then the zoning in accordance. Councilman Raymond pointed out that the City was not looking at a change that has taken place since the Plan was adopted; the City was looking at actions where in putting the Plan together a change was made in people'e property. The Comprehensive Plan map designated 12th Street as a barrier. The Mayor said,that this was in a general way. It states that the core area business district shall be Fifth to Twelfth, from the Railroad to Dearborn Street. Now there was fingers sticking out well beyond Dearborn Street that were Commercial and below Fifth that were Commercial and he would view this on Cleveland as another finger. It does not say.thatthe core area shall be confined exclusively to that area because that was in conflict with the existing Commercial enterprises. Mr. Mickelson stated that to take that type of interpretation anc make it a matter of record would be a basis for a decision to zone that half block area concerned with. Another interpretation was to say that the Comprehensive Plan was very clear and the citizens in that area have,spoken and that the boundary was supposed to have been set for Commercial. Another option would be to amend the Comprehensive Plan to,clarify that it was the intent to have at least a half block area or maybe more Commercial beyond that 12th Street boundary and then by amending the Plan and applying zoning.. It gets back to the interpretation that clarifies the matter of record of procedure. Mr. Mickelson then introduced Skip Smyser who was the Deputy Attorney General for th.e State of Idaho. Basically, he stated that from his position a lot of the decisions the City would be faced with were political decisions which he would certainly not wish to endeavor to join in or to try and say that the City was right or was wrong. Basically, what the City was working on now was that what was done in the past was right until someone takes the City to court and challenges it. What he felt the City was doing now was trying to work around this and hopefully settle it in the Council Chambers and not end up in court with it which he felt was very admirable from all points of view. In looking at some of the questions that Councilwoman Bauman provided for the, there was basically some,Code provisions; 67 -6511 of the Code talks about implementing a 'Plan and the zone shall follow the Plan. Amending the Comprehensive Plan was fine, but it was sort of going about it backwards as that was supposed to be the final document and you should go on from there. He felt that what the City must do was look at the boundaries in the Plan and then compare it to what has actually been zoned. The Council would then have to determine if the City was in accordance with it''or not. As the Book 20 Page 45 Mayor said, it has been the policy to exceed these in various areas. If that was the case, he felt that it should be put on the record, documented and go forward on that way. As it was right now, perhaps it would be an area that someone could challenge. It was something they should get tied down one way or another; if the City was going to follow the Plan or if there was a conflict there. He was not familiar enough with it to say if the City was in conflict or not. He felt this was something that the City needed to look at very seriously. The other question asked was whether adequate notice was given to the individuals. Once again, he said that he could only say what the Code states. This was that in a particular zoning ordinance or change, if you have more than two hundred involved the notice through the newspaper was fine, but if you were talking about fifty or twenty zoning changes and they were all lumped together perhaps then you would have a problem by giving just the notice through the newspaper. This was in the Code, 67 -6511, Section B. Any amendments that were made would be governed by 67 -6509 which covers the provisions for the hearings. He further commented that the other decisions were basically going to be political decisions as to whether you have actually followed through with the wishes of the people in the neighborhoods. The hearing procedures that the City has gone over in the past years were for the purpose of advising the City Council. He also pointed out that if one of the sides of the street was zoned one way, it was awfully hard not to have the other side of the street zoned the same. A few problems such as this would certainly have to be looked into and the case law involved searched. He informed the Council that they would be glad to answer any questions they might have. They were there to sit in on an advisory basis and would be glad to work with the City Attorney if there was a need. The Mayor explained that the Comprehensive Plan was adopted by Resolution as provided in the State Code. One of the reasons -- for doing it by Resolution was to avoid the publication costs with an Ordinance. It was also much easier to amend a Resolution than an Ordinance. Much discussion followed with the City Council, the City Engineer, Mr. Mickelson, and Mr. Smyser. Flexibility of the Plan was discussed and it was pointed out that one paragraph in the Plan was deleted regarding flexibility as a result of a recommendation from the Attorney General's Office. The City Attorney, Wayne Dpvis, was recognized and stated that as he understood the two gentlemen were recommending'` changing the Plan and then to zone accordingly. The Mayor then commented that they also pointed out that it was possible for the City to change the Plan to conform with the zoning if that was the desire of the Council. The City Attorney agreed that this was true, but that they were pointing out that it would be better procedure to change the Plan and then zone accordingly. In discussingflexibility, Mr. Smyser said that the map for the Plan was general even though there was a precise line and there was room for interpretation . He further stated that the text sometimes addresses the specific problem areas and he felt that it had addressed a specific downtown boundary area which sometimes occurs so that it cuts down the flexibility to the extent that the issue should be resolved and clarified. Therefore, it was necessary to consider both the text and the map. Councilman Olesen was recognized and stated that he would like to comment regarding the situation. He said that the Plan was a general pattern and then within that Plan you can establish exact Book 20 Page 46 straight lines of boundaries, but the overall pattern was just that. If it does not have flexibility, then the City does not need zoning. He said it may be just apolitical decision to make and it may be that there will be those who do not agree with their.decision. He also felt that the Council could not be bound by the decision of a few people: in contrast to what was written for the whole community as a whole. He could not conceive of having a !Plan that was rigid. If you have a.P.lan that was absolutely rigid, you already have the zoning and do not have to do anything about it. He felt that the Planning and Zoning Commission up to this point had recognized that this was a flexible sort of a boundary that can be only established firmly by zoning. The Plan can ebb -and flow with the normal growth of the City and he felt there would be , a number of places - that would change where three or four years ago it did not seem So. Councilman Raymond stated that he felt the Council should take action on this as soon as possible. The Mayor then said that March-6th was set as the date when the Council would vote on these changes because that was the .earliest date that all Council members would be present. Councilwoman Williams suggested that each area should be voted on individyially. The Mayor also recommended this and felt that those areas that had received protests should be considered separately. Councilman Raymond then asked the City Attorney if the Council would act on all of these changes now and then later one of these areas would be challenged, would a change at that later date tend to negate all of the actions. The City Attorney stated that if an individual contested one particular item that would be all the relief he would get. If there was ten iteats, and he was only contesting one that would be the only item considered. Councilman Hopper pointed out that the changes were all included on one Resolution at this time. The Mayor then said that to his knowledge, out of the nineteen changes, there was protests on only two of them. It was his suggestion that those with no protests be. presented on one Resolution and the two areas with protests be presented on two separate Resolutions. The City Attorney agreed that this would be the proper way to present them for approval. The City Attorney further stated that he felt the two gentlemen, Mr. Mickelson and Mr. Smyser should be commended for their comments, but that the problem was now for the City Council to determine what they felt was the correct procedure to follow. They were, in fact, emphasizing local control at this point. Mr. Smy.ser pointed out that Caldwell was not alone in the problems they were facing as many of the other communities were .having the'same type of problems. He felt that Caldwell should be commended for the manner in which they were going about the problem. The Mayor asked if anyone else had any questions or comments from Book 20 Page 47 the City Council. Since there was none, he expressed his appreciation to Mr. Mickelson and Mr. Smyser for coming to the meeting to offer their suggestions and guidance. There being no further business, the Meeting was adjourned at 2:10 p.m. APPROVED AS written THIS 6th DAY OF February 1979. Mayor ncilman ' Cou cilma Counc y, an Councilmafi Councilman Councilman ATTEST: City Clerk