City councils have power to control growth

In an Aug. 8 front-page article (“Moratorium on growth: Not an option”), Post Falls City Attorney Warren Wilson and Mayor Ron Jacobson said there’s nothing Post Falls can do to slow the city’s out-of-control growth because Idaho law prohibits a city from enacting a “moratorium on growth” unless the Council finds there’s an “imminent peril” to public health, safety or welfare.

They’re completely wrong.

It’s true that IC 67-6523 and -6524 allow a city council to adopt “a moratorium upon the issuance of selected classes of permits” only if it finds an “imminent peril.”

But according to Webster’s unabridged dictionary, a “moratorium” is “a suspension of activity” or “a temporary ban” — a complete stoppage. Post Falls residents (and the citizen initiative) never asked for a “moratorium” on anything.

Post Falls residents have asked the city to slow or control growth — so that public services, infrastructure, roads, and schools can keep pace. The city council can do plenty to control growth that’s completely legal.

Don’t take my word for it. Ask the Kootenai County planning department. Their recent “white paper” says local cities have a variety of “growth management” tools to deal with too rapid development:

“Growth management can be a useful land use planning approach to implement in communities where unrestrained development threatens to outpace the provision of adequate infrastructure needed to support it. Growth management may be especially necessary in places experiencing faster than average population growth, pressure to convert agricultural land to other uses, and traffic congestion problems, all of which characterize Kootenai County to some degree.

Growth management should be viewed as a tool kit rather than a single tool, with many approaches to choose from.”

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The Idaho Constitution (Art. XII, sec. 2) grants Idaho city councils broad “police power” — to make all local laws (not conflicting with state law) they deem needed for the public welfare. That gives them their power to control land use and building construction, as well as provide police and fire, build roads and parks, and do countless other things.

In land use, the Local Land Use Planning Act establishes a statewide framework within which any city has great flexibility to adopt ordinances — on zoning, subdivision, density, and the like — its city council deems best suited to its own particular circumstances. Sandpoint is not the same as Boise.

And as time goes by, the city council has the power to amend and add to those ordinances to adapt to changing circumstances. What was good for Post Falls 20 years ago is not necessarily good for it today. New situations develop — like exploding growth.

The County “white paper” discusses how two cities adopted plans to deal with exploding growth — Ramapo, N.Y., after the opening of the Tappan Zee Bridge made the rural city a short commute to Manhattan; and Petaluma, Calif., after expansion of U.S. 101 made the small Sonoma County city an easy commute to San Francisco.

The courts upheld both plans against legal challenges by the building industry and developers, noting that controlling growth is a permissible objective of local land use law:

“We conclude therefore that under Belle Terre and Los Altos Hills the concept of the public welfare is sufficiently broad to uphold Petaluma’s desire to preserve its small town character, its open spaces and low density population, and to grow at an orderly and deliberate pace.” Petaluma, 522 F.2d 897, 909 (9th Cir. 1975).

“In sum, where it is clear that the existing physical and financial resources of the community are inadequate to furnish the essential services and facilities which a substantial increase in population requires, there is a rational basis for “phased growth,” and hence the challenged ordinance is not violative of the Federal and State Constitutions.” Ramapo, 30 N.Y.2d 359, 383 (N.Y. 1972).

You can Google “Lakewood, Colorado” and “Question 200" to read about that Denver suburb’s 2019 adoption of an annual limit on residential building permits to control growth. There are many other examples around the country.

Here local city councils have the power to adopt/amend ordinances so as to annually limit new dwelling units, residential building permits, and the like, and to rezone or downzone to a lesser density.

The Idaho Supreme Court, in accord with the federal courts, has repeatedly held that mere diminution in value from downzoning property is not an unconstitutional “taking”:

“However, once again, we hold that a property owner has no vested interest in the highest and best use of his land, in the solely monetary sense of that term. This Court has repeatedly declared that a zoning ordinance which downgrades the economic value of property does not constitute a taking of property in violation of the United States Constitution, where some residual value remains in the property.”

Sprenger, Grubb & Associates v. Hailey, 127 Idaho 576, 581-82 (1995).

And no one has a right to have their property annexed. Annexation (governed by IC 50- 222, not the LLUPA) rests solely in the city council’s determination whether it’s good for the city — whether it’s “reasonably necessary to assure the orderly development” of the city, “allows efficient and economically viable provision of … municipal services,” and “equitably allocates the costs of public services in … development of the urban fringe.” Annexation is easily controlled.

But too many local city officials, instead of shouldering their responsibility to their constituents to deal with too rapid growth, seem more intent on falsely telling the public there’s nothing they can do. Many of the FAQ’s about growth on local cities’ websites do just that — as did the Post Falls officials in the Aug. 8 article.

Why?

Are they afraid to confront the development industry? Beholden to that industry? Part of it? Some other reason?

Whatever, if their current political weakness is allowed to continue, those city officials’ legacy will be that they turned the Rathdrum Prairie into another San Fernando Valley.

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David Lyons is a resident of Coeur d’Alene.