After the meetings in the last two weeks related to the development of Kootenai County's Unified Land Use Code, it is time to briefly comment on its progress. Now is the time for property owners to be involved in development of the law.

The Kootenai County Comprehensive Plan ("Plan") was passed by the Commissioners in December 2010. It is a done deal, but mistakes in its creation now haunt the zoning and subdivision ordinances that are required to come out of it.

In Idaho's Local Land Use Planning Act, a comprehensive plan must consider demographic, environmental, economic and other factors, and then create policies that while not legally enforceable must result in a zoning and subdivision ordinance. Consideration of each planning component in Idaho Code section 67-6508 does not mean each component must result in regulations related to it.

Kootenai County's key error is that each chapter of the Plan includes specific goals, policies, and implementation strategies for each planning component. This is not required or desirable. The statutory language respects and gives preference to private property owner planning in the exercise of their property rights over the preferences of a governing entity's planners. However, Kootenai County is not following the statutes, but is planning to implement regulations addressing every planning component. Thus, the resulting land use code will be misguided and overbroad.

As a matter of public policy, a property owner's preferences will not be given priority, in favor of whatever is designated by the County to be environmentally sound, fiscally responsible, and whatever it decides is to the benefit of the "public at large," whoever that may include. Since those criteria are undefined, a property owner has no certainty that his or her dreams will ever come to fruition. This presents a significant detriment to both economic growth and our children's birthrights as Americans.

Zoning Ordinance: After a comprehensive plan is passed, Idaho Code section 67-6511 requires "each governing board . . . [to] establish within its jurisdiction one (1) or more zones or zoning districts where appropriate. The zoning districts shall be in accordance with the policies set forth in the adopted comprehensive plan." (Emphasis added). Thus, if not appropriate, then no zone or zoning district need be created. Idaho Code recognizes a property owner is free to determine the land's use unless Idaho's police power bars such use due to nuisance, or dangers to health and safety.

Subdivision Ordinance: Along with zoning (if appropriate), "each governing board shall provide . . . for standards and for the processing of applications for subdivision permits . . .." The County is creating a Unified Land Use Code ("ULUC"), see http://www.zoningplus.com/regs/kootenai/, which will require compliance by all property owners who want to use their land, whether or not they can afford lawyers, engineers, surveyors, or land use planners. The regulation will be wrongly biased toward the wealthy, and against poorer landowners. One huge and complex regulation is bad public policy.

The draft ULUC states, "The BOCC finds that its responsibility to the residents of the County is to strike an appropriate balance between the unfettered use of private property and the rights of neighboring landowners to the quiet enjoyment of their land, completely undisturbed by activity on neighboring property." This is a fake argument, because few advocate "unfettered use" of property.

People know their uses are subject to police power regulations to avoid nuisance and dangers to health and safety. Also, the quiet enjoyment of land does not require being "completely undisturbed."

The true balance is determining whether a property use is a nuisance or a health or safety risk. Otherwise, uses of private property become a public political decision by non-owners who clamor for control over property owners through extension of the police power to suppress property rights. This is not only morally and ethically wrong, but is unenforceable as a practical matter.

The draft ULUC states, "The Comprehensive Plan acknowledges that private property rights are fundamental[, but] it also intends that future land-use policies be more environmentally sound, fiscally responsible and inure to the benefit of the public at large." However, the ULUC does not protect private property rights, or even discuss what those rights are, but merely acknowledges that they are fundamental. Except for outright Fifth Amendment takings, there is no explicit policy in the ULUC that requires a property owner's preferences for his or her land use to take precedence over the County's preferences, even if that use does not cause a clear nuisance or danger. Further, the ULUC lacks a process for determining how a particular land-use may or may not be viewed by the County as "more environmentally sound, fiscally responsible and inure to the benefit of the public at large."

This is bad management policy, because it is vague, and vagueness leads to litigation. The draft ULUC lacks hard boundary zoning districts, so property owners cannot plan with certainty. The County will become an involuntary business partner with landowners, and a decision-maker in what is allowed through the imposition of "standards" for land use that require compliance with them, even where no risk to health or safety or nuisance is foreseen - and with no financial investment by the County. The point of a republican form of government is that we do not go to our government for permission, but we only give it power to say no when a use is a danger or nuisance to others. Kendig Keast advocates we figure out "how to get to YES," but it is a shorter path to see what requires a NO.

Existing business uses may be allowed to remain, subject to rigorous environmental controls requiring mitigation of operations on behalf of non-investors like neighbors.

After public investments in KTEC, professional-technical facilities will soon be graduating hundreds of young potential employees with two-year certificates in various trades accepted by employers nationwide. The ULUC will not encourage job creation for the KTEC students in Kootenai County, unless a business fits into a city, but is thus biased toward encouraging that expertise to move away. Business investors considering Kootenai County should only plan on developing jobs within a city, and if the business cannot be developed inside a city, the business should reconsider whether Kootenai County is a proper location. Economic growth is thus wrongly a creature of government permission.

When Kootenai County is presented with a private property owner's dream for the future, the only pertinent question is whether that dream presents a danger to the public health or safety justifying triggering the police power to prevent such nuisance. Can't we ask only that simple question?

Conclusion: The Kootenai County Comprehensive Plan passed on December 30, 2010 is severely misguided and takes Kootenai County away from respect for freedom and toward inappropriate public control of land use. It encourages a public and distinctly political decision-making process that improperly dilutes a property owner's freedom. The Unified Land Use Code being developed is overly regulatory with societal controls that government lacks the capability to manage - and which it should not try to manage in a free society. Now is the time to speak out for what is planned to be the suppressed alternative: freedom. This should not be a difficult choice in Kootenai County.

Art Macomber is a real property and land use attorney who represents the Coeur d'Alene Chamber of Commerce on the County's Advisory Committee for the new Code, and represents the City of Hauser regarding Areas of City Impact.