Concerned citizens of Kootenai County have actually started reading the new proposed Unified Land Use Code (ULUC). What they are finding is shocking. Contrary to the commissioners' claim that they seek public input, the genuine concerns of the citizens are being ignored, criticized and ridiculed as evidenced by their recent press release.

It is a FACT that the consultant hired by the County Commissioners has a policy of introducing as much regulation as possible. During his July 18, 2011, meeting with the County Commissioners he said: "(I) start with allowed [level of regulation] but want to use up all available authority as a starting point and scale back...for political reasons we do that. But we want to make sure we have every avenue available."

Commissioner Dan Green, in a meeting with the consultant on July 18, 2011, said: "...our punitive ability is embarrassingly weak...so if we are going to give people rights to do things, OK, then if you break the law how do we 'rap' your hand...something with teeth to it...if we are going to give them latitude, fine, if you cross the line it will hurt." "I would love to see a civil penalty like a lien on a property that does not get waived with title transfer." "I love it. An 'appreciating penalty.'"

It seems Commissioner Green is more interested in the power to punish than in protecting property rights.

Public outcry has the Commissioners in a panic and they are trying to spin the overly complex, intrusive and punitive "you have to pass it to see what's in it" ULUC into a good thing for Kootenai County.

Here are the claims, the county's spin and the verifiable truth. You decide.

Claim: Every use is forbidden unless approved.

Spin: The proposed ULUC actually states (Section 2-3-10) that if proposed use is not in the ordinances then it will be evaluated and "may be unregulated, permitted, conditional, special or prohibited based on the evaluation." As is true today, a number of uses will be permitted without even the need for a land use permit. The ULUC proposes to streamline and simplify the process for approval for which permits will be required. Furthermore, the ULUC proposes to allow certain uses which are currently prohibited under today's ordinances.

Truth: All land uses are prohibited unless the county says they are allowed. The burden is on the landowner to get permission for uses that are not covered in the code. This is Un-American. You should be free to do what you want except those things specifically prohibited by law.

Claim: The new ULUC contains restrictions the purpose of which is to create a demographic which places 90 percent of the population inside city limits and allowing only 10 percent of the population to live in rural areas.

Spin: Ordinances cannot dictate population growth. With that being said, the Comprehensive Plan does have a goal which recognizes that the majority of future urban type growth should take place within cities where services can be provided, while at the same time allowing rural areas to develop in ways which maintain their character. The ULUC is being drafted with this balance in mind.

Truth: Ordinances do dictate population growth by enacting onerous regulations and prohibitive fees to build on your property. What services does the county provide rural residents? Electricity, water, phone, sewer and propane are provided by private contractors, and most roads in the rural subdivisions are privately maintained. The new ULUC discourages growth in rural areas and encourages growth in cities. Development in rural settings becomes harder and cities become more crowded and congested.

Claim: A proposed increase of over 300 percent in land use regulation.

Spin: Currently there are approximately 30 ordinances related to land use. These ordinances are outdated and inconsistent. The ULUC proposes to consolidate all of those regulations into a single cohesive ordinance and eliminate inconsistencies within and between existing ordinances, as well as those regulations which no longer make sense. Compared to our current ordinances, there's much more language about what's not to be regulated!

Truth: The proposed ULUC micromanages property uses with intrusive and detailed requirements that will turn Kootenai County into a generic "well planned" community. There is consensus of those reviewing the code for the county that the code written by the consultant is too overreaching, too confusing and too complicated.

Claim: The Director of Community Development will have the power to arbitrarily decide what land is a "Wetland."

Spin: A determination of wetlands (with today's code and the ULUC) is under the jurisdiction of and is typically made by the U.S. Army Corps of Engineers as well as the applicant's professional consultant, utilizing the U.S. Department of Interior National Wetlands Inventory maps.

Truth: The maps do not address individual properties. They only outline areas where wetlands may exist. It is the Director who will arbitrarily decide if that drainage swale or seasonal stream is a "wetlands."

Claim: Prior to developing your property you may be required to perform an Environmental Impact Analysis while coordinating with EPA, U.S. Forest Service, State and Federal Departments of Fish & Wildlife.

Spin: Compliance and/or State and Federal agencies are already required for certain types of projects. The county will continue to refer certain applications to any agency with jurisdiction for their review and comment.

Truth: Here again the Director is given the power to decide what hoops you must jump through. Shouldn't the county protect us from overreaching federal agencies?

Claim: There will be new restrictions on subdividing and developing your land. Some will lose the right to build on their own property.

Spin: No one will lose the right to build on their property! The new code will recognize, and in some cases, actually enhance development rights in order to reduce the need for variances and other lengthy land use approval processes. Some of these include recognizing existing neighborhoods and acknowledging the vested rights of recent zone changes.

Truth: You still may have the "right" IF you comply with onerous regulations, hire engineering firms, pay soils experts, coordinate with federal and state agencies, purchase development rights, set aside open space, agree to restrictions and comply with whatever "flexible" rules the director decides you must. Do you still have a "right" if the burden of regulation prevents you from exercising that right? As Lane Kendig (the consultant's boss) said on July 18, 2011:

"... don't tell them what they can't do ... tell them 'how' they can do it ... if they've got a million bucks and can do it safely, let them ..."

Claim: For properties of 5 acres or more, 90 percent of the land must be set aside to preserve "open space." 40 percent of the county is already public lands but future private land development will be restricted to promote additional public "open space" which cannot be developed.

Spin: These claims are totally lacking in truth--future land development will not be mandated to provide public open space.

Truth: The Spin has no basis in truth. From the ULUC posted online:

Chapter 3-1-1 "The purpose of this Chapter is to establish standards regarding the density and intensity of development, and for the amount of common open space or landscaped area that must be provided for different development types"

Claim: The proposed ordinance update constitutes a "taking".

Spin: The proposed ordinance update will not constitute a "taking" as defined by both the United States Supreme Court and Idaho Supreme Court. Changes to zoning or development ordinances do not constitute a "taking." Both courts define a "taking" in this context as a deprivation of all economically beneficial uses of property.

Truth: In 1995 additional property rights protections beyond a simple "takings" were added. Specifically Idaho Code 67-6508(a) states: "...ensure that land use policies, restrictions, conditions and fees do not violate private property rights, adversely impact property values or create unnecessary technical limitations on the use of property..."

The county is ignoring these protections and repeatedly points to the "takings" definition as a distraction. It has been stated "There will be winners and there will be losers." Anyone who is a loser suffers a taking. Will you be a "Loser?"

Claim: "I do not approve of bringing in an outsider to write code for our county."

Spin: In September 2009, a request for proposal was advertised in the western United States. A total of nine firms responded. No firms from Kootenai County applied or submitted a proposal. One firm from Spokane and one from Boise applied. Kendig Keast was chosen after a thorough interview process that incorporated interview panels consisting of realtors, builders, environmentalists, chambers of commerce members, municipality representatives, land use consultants and numerous citizens.

Truth: The "expert" hired to write the code is from Colorado, lives in a planned community, is 7 years out of law school and has NEVER written the land use code for a county before. He stated his philosophy about regulation during his July 18, 2011, meeting with the county Commissioners where he said: "(I) start with allowed [level of regulation] but want to use up all available authority as a starting point and scale back...for political reasons we do that. But we want to make sure we have every avenue available."

Nice choice, County Commissioners!

Claim: The proposed ordinances will be more restrictive for waterfront property.

Spin: The ULUC includes increased flexibility than the ordinance in effect today. The site disturbance regulations will be developed with greater flexibility in order to make it easier to construct and maintain improvements within and along shorelines. Existing residential lots will have several flexible alternatives to encourage investment.

Truth: What does "flexibility" mean? Flexibility is regulation. Flexibility gives the county options for saying "NO." Flexibility means the rules can be bent for some and not others. Flexibility results in litigation. What ever happened to EQUAL protection under the law?

Tom Robinson is chairman of the legislative subcommittee, KCRCC, and precinct 2 Republican committeeman.