HomeMy WebLinkAbout1979-01-30city council minutesBook 20
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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
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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
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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
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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
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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
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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