County commissioners Tuesday decided to delay decision until 2007 on whether or not to implement revisions put forth last year by the planning commission to the county's rural residential code.Why? Simple:
Last Monday, Prosecutor Denis Tracy submitted to commissioners an 8-page briefing on his evaluation of the code's legality.Shades of I-933!
"It is my job to try to prevent the passage of confusing or unenforceable ordinances," read Tracy's memo.
"In my view, the current proposal still has a number of obvious constitutional flaws, as well as areas which need very significant clarification."
Among these areas, Tracy noted that in cases where lots are declared non-buildable, the county might be on the hook to those landowners for the difference in the lot's value before the new code was instituted.
County Planner Mark Bordsen said owners of those lots would have the opportunity to obtain a variance by mitigating conditions that violate the code, which would then allow for development.Does this not validate many people's concerns that individual property rights were being threatened by these proposed changes? You bet it does.
Tracy noted that one of the conditions for obtaining a variance, that the owner not sell the land for ten years after the variance is granted, would not hold up in court.
"The restriction on transfer of property is very clearly unconstitutional," he wrote. You cannot require a landowner to promise not to sell the land for ten years as a condition of getting a variance."
Tracy also noted several definitions in the code that lacked clarity. He added the code needs to be clearly understood by every landowner and potential landowner in the county.
Among the issues needing clarification, according to Tracy's memo, were how the 1500 foot "viewshed" buffer would be measured - along the slope of the ground or along a straight horizontal line - what constitutes a development "on" a hilltop, and where the front of a house would be.
At last week's public hearing on the ag zone, Colfax farmer Don Nelson asked about the possibility of legal changes to the code.I consider Jerry Finch a friend, but we disagree on this issue. The protection of "viewsheds," in my mind, does not justify unconstitutional trampling of private property rights. If voters were so concerned about high costs of litigation brought about by I-933, they had better be concerned about this proposed rural residential zoning ordinance for the same reason. It's all much ado about nothing anyway. The county is not suddenly going to have houses on every hilltop in ten years, or a hundred years. We need some reasonable growth to get affordable housing in this county to attract and keep young families. It's been deliberately restricted for 30 years now. In particular, the smaller towns in Whitman County desperately need to attract more residents to keep their local businesses and schools alive. For example, Colfax, Palouse, Colton and Uniontown are all planning residential developments. I don't want a picture taken in ten years of empty rolling hills because everyone moved out of the county. There has to be a balance, but people should always come first.
[Whitman County Commissioner Jerry] Finch replied to Nelson that lawsuits can be brought for any reason. He later added the protection of viewsheds and hilltops are vital to Whitman County, and therefore worth the risk.
He mentioned a picture of rolling Palouse hills that adorns the lobby of the courthouse.
"My hope is that in 10 years that picture can be taken again without obstructions," he said.
Partch said commissioners will hold workshops with Tracy and the planning commission to come up with a document that will be acceptable.
While dates have yet to be set for the workshops, Partch went on to say that if any major changes were made to the code, the commission would hold another public hearing.