City of Kimberly 132 North Main St. P.O. Box Z Kimberly,ID 83341

May 8, 2008   Webmaster   

  Pat Bermingham

Special Use Permits

Q. What is a special use permit?

A. Cities that have a zoning ordinance are divided into zones. Special use permits deal with those uses that don't fit into any zoning category.

Churches, cemeteries and drive-in theaters are examples of some uses that may not be permitted until they are reviewed individually. These uses can create additional traffic. They may require special parking, landscaping or fencing to ensure they fit in with their neighbors.

In some cities, these are called conditional uses because they are often approved only if certain conditions are met -- for instance, the installation of special fencing or landscaping.

Commonly used evaluation criteria for special use permits require that special uses:

    1. Be compatible with the existing and permitted uses in the local neighborhood.

    2. Not create excessive traffic in the neighborhood.

    3. Not generate noise, smoke or other environmental pollutants that are foreign to       the neighborhood.

    Variances

Q. What is a variance?

A. A variance is a permit that allows exceptions to development standards in unique situations generally related to lot size, shape or geography. All structures developed on any property in a zoned city must adhere to the development standards of the zone in which they are built unless they have been granted a variance.

According to the Local Planning Act, a variance is a modification of the requirements of the zoning ordinance as to lot size, lot coverage, width, depth, setbacks, parking spaces, height of buildings and other  ordinance provisions affecting the size or shape of a structure or the placement of a structure upon lots, or the size of lots.

Most variances are directly related to geographic features of a particular parcel, such as a swampy area, steep slope or a rocky area within the parcel. Such features would place an undue hardship on the landowner in development his or her property if a variance were not granted.

A variance shall not be considered a right or special privilege, but may be granted to an applicant only upon the showing of undue hardship because of characteristics of the site and that the variance is not in  conflict with the public interest.

Q. What factors should be considered when making a decision on granting a variance?

A. Consider the following items when making variance decisions:

  • Variances are not meant to authorize wholesale departures from the intent of the zoning ordinance.
  • A variance is said to be proper only if it poses no substantial detriment to the public or to immediate neighbors.
  • A variance is only justified when the property cannot yield a reasonable return under the existing zoning, for example, where the zoning prevents any reasonable use of the property.
  • A variance is not justified upon the mere showing that the variance would be profitable to the property owner and no harm would be done to others.
  • The applicant must prove that an "undue hardship" exists, which is found to be "unnecessary," not a "mere" hardship, as well as unique or peculiar to the property involved.
  • "Mere" hardship does not justify a variance because all zoning imposes some hardship. An increase or decrease in land value as a result of the granting or denial of a variance does not in itself constitute a sufficient unnecessary hardship.
  • Courts have found that "practical difficulty" (used interchangeably with "unnecessary hardship") exists if the ordinance unreasonably burdens the property owner who attempts to use the property as allowed. A few  courts hold a practical difficulty exists only when a "taking" has occurred.
  • The variance is property specific. For example, hardship must relate to specific character of the site, not circumstances of the owner.
  • The hardship must arise naturally from the unique character of the property and not from the owner's actions. A hardship cannot be self-created.
  • Courts have stated that a variance may be granted only if it does not constitute a special privilege for the owner that is inconsistent with the limitations on other properties in the zone; if application of the  zoning ordinance will deprive the property rights and privileges enjoyed by other properties in the vicinity due to special circumstances applicable to the property, including size, shape, topography, location or surroundings.

  • Ordinances

Q. What is the purpose of a governing body when adopting an ordinance or a resolution?

A. The purpose of passing ordinances or resolutions is to provide evidence that the governing body has taken official action. A resolution is ordinarily used in connection with matters of a temporary or  administrative nature and is used to regulate the internal affairs of the city. An ordinance sets out local law and prescribes the general and permanent rules that apply within a city's jurisdiction. Here are some  guidelines that may be useful in determining when to use an ordinance or a resolution:

 

A regulation of persons and property that imposes a fine or forfeiture must always be in the form of an ordinance.

 

An ordinance is required when state law expressly requires an ordinance.

 

An ordinance must be used to amend or repeal an existing ordinance (the "equal dignities" rule requires that whatever procedure is necessary to take an action in the first place is required to modify or eliminate the original action).

 

A resolution would be used to adopt policies that regulate the internal affairs of the city, for example, a resolution would be used to adopt personnel policies.

 

A resolution must be used to amend or repeal an existing resolution.

 

Ordinances must be published in full or by summary. You can avoid some publication costs by using a resolution, where appropriate, instead of an ordinance.
Q. Our city pays a lot of money for publishing ordinances. Can we publish ordinances by summary?

A. Yes. State statute provides for publication of ordinances by a summary of their contents, rather than their entirety, providing certain criteria are followed. However, the full text of any ordinance that is summarized must be promptly provided to any citizen on personal request.

Section 50-901A, Idaho Code, provides that a city may publish a summary of the ordinance to include:

    1. The name of the city;

    2. The formal identification or citation number of the ordinance;

    3. A descriptive title;

    4. A summary of the principal provisions of the ordinance, including penalties provided and the effective date;

    5. Any other information necessary to provide an accurate summary; and

    6. A statement that the full intent is available at the city hall.

    7. Before submitting a summary to a newspaper for publication, the city attorney must sign a statement, to be filed with the ordinance, that the summary is true and complete and provides  adequate notice to the public.

    8. Any ordinance with legal descriptions or provisions regarding taxation or penalties concerning real property must have those sections published in full and not just summarized. Legal descriptions of real property must also include the street address. Maps may be substituted for written legal descriptions of properties.

Example:

SUMMARY OF GEM CITY STREET CLOSURE/ PARADE ORDINANCE

ORDINANCE NO. 963

The City of Gem, Idaho, hereby gives notice of the adoption of Gem Ordinance No. 963, the Gem Street Closure/Parade Ordinance, an ordinance regulating the closure and use of streets for public activities and funeral processions, repealing Chapter 10.28 of the Gem Municipal Code, enacting a new Chapter 10.28 regulating parades, street closures and funeral processions within the corporate limits of the city, requiring permits therefor, establishing conditions and fees associated with such permits, providing for appeals and administrative procedures, setting forth requirements for funeral processions, repealing conflicting ordinances, providing for severability, and providing that the ordinance will be effective upon publication of this summary. The full text of the Gem Street Closure/Parade Ordinance is available at Gem City Hall, 123 Main Street, Gem, Idaho 83000, in the office of the City Clerk.

Example:

ORDINANCE NO. 963

SUMMARY CERTIFICATION

The undersigned City of Gem legal advisor, having reviewed Ordinance No. 963 and the summary for Ordinance No. 963, believes the summary of Ordinance No. 963 is true and complete andthat it provides  adequate notice to the public of the identity and principal provisions of the ordinance.

Example:

SUMMARY OF POST FALLS ORDINANCE NO. 973

ANNEXING LANDS LOCATED EAST OF GREENSFERRY ROAD ON BOTH SIDES OF MULLAN AVENUE BETWEEN I-90 AND 12TH AVENUE

The City of Post Falls, Idaho, hereby gives notice of the adoption of Post Falls Ordinance No. 973, the Viking Construction Annexation Ordinance, annexing and zoning lands located East Of Greensferry Road On Both Sides Of Mullan Avenue Between I-90 And 12th Avenue. Such lands are more particularly described as follows:

All of tracts 56, 57 and 58 and all of tract 55, except the north 120.00 feet of the east 120.00 feet thereof, Post Falls Irrigated Tracts as Recorded in Book C, page 80 Kootenai County Records located in the Southwest quarter of Section 36, T51N, R5W, B.M., Kootenai County, Idaho including the full width of all adjacent right-of-ways that are not within the existing City of Post Falls boundary; and all of government lots 3 and 4 except the west 880.00 feet thereof lying north of Interstate 90 in the Northwest quarter of Section 1, T50N, R5W, B.M. Kootenai County, Idaho, including the full width of all adjacent right-of-ways that are not within the existing City of Post Falls boundary.

The lands annexed by this ordinance lying north of Mullan Avenue shall be zoned as Single-Family Residential (R-1). The land annexed by this ordinance lying south of Mullan Avenue shall be zoned as Light Industrial (LI).The ordinance further provides that the official zoning map of the City shall be changed to depict the zoning authorized hereby and provides that the annexation and zoning shall be  effective upon publication of this summary. The full text of the summarized Ordinance #973 is available at Post Falls City Hall, 408 Spokane Street, Post Falls, Idaho 83854, in the office of the City Clerk.

Q. What is the difference between an ordinance and a resolution?

A. Ordinances are formal legislative acts of the council and should be used whenever the council intends  to pass a regulatory measure, especially when it provides a penalty for violation. A resolution is a binding decision of the council and is used for more administrative matters.

The procedures for adoption of an ordinance are prescribed by Idaho Code, Sections 50-901, 50-901A, and 50-902 and must be strictly followed.

The following are examples of when to use an ordinance:

  • to regulate people (e.g. disturbing the peace)
  • to regulate property (e.g. zoning)
  • to grant franchises
  • to authorize bond issues
  • to adopt the annual appropriation
  • to adopt a records retention schedule

Unlike the adoption of an ordinance, there are no reading and notice requirements for resolutions.

Examples of actions that may be best accomplished by resolution include:

  • adoption of council procedures
  • adoption of a personnel policy
  • to authorize the mayor to sign a contract on behalf of the city
  • to authorize a schedules of fees (e.g. building permit fees, sewer rates)
  • to authorize the destruction of records (the schedule of which would be set by ordinance)
  • to authorize the sale of surplus equipment

Even though the subject matter of an action may appear to be administrative, and therefore a proper subject for a resolution, sometimes state statute or even a city's own ordinance requires that certain actions be established by ordinance.

Q. What is the process for adopting an ordinance?

A. It is important that the city follow the laws set forth in Section 50-901 for passing and adopting ordinance since failure to follow the requirements may result in the ordinance or resolution being voided by a court.

Three steps must be completed for an ordinance to be in effect:

    1. Conduct the proper readings;

    2. Pass the ordinance by a roll call vote of the council and record it in the minutes; and

    3. Publish the ordinance in full, or by summary, once in the official newspaper (or mail it) within one month of the adoption of the ordinance by the council.

Upon completion of these requirements, the ordinance takes effect. However, the statute does provide for an emergency effective date that allows an ordinance to become effective before the normal effective date. Section 50-901 provides: " ... that in cases of riot, infections or contagious disease, or other impending danger, requiring its immediate enforcement, such ordinances shall take effect upon the proclamation of  the mayor or president of the council, posted in at least five (5) public places of the city."

The mayor has three choices of action upon the passage of the ordinance by the council.

    1. The mayor may sign and date the original ordinance, in which case the city clerk should attest to the signature of the mayor by signing and dating the original ordinance too.

    2. The mayor may choose to veto the ordinance, according to Section 50-611. If the mayor vetoes the ordinance, the council may override the veto by a vote of one-half plus one of the members of the full council.

    3. The mayor may choose to return the unsigned ordinance to the council, stating his or her objections in writing at the next regular meeting of the council. In this case, the ordinance becomes  law without his or her signature.

A copy of an ordinance is proved to be an official copy by a certificate of the city clerk under the seal of the city and may be received in evidence in any court.

Q. May the city suspend the rule requiring three readings of an ordinance on three different dates?

A. Yes. The council may dispense with the reading rule (found in Idaho Code 50-902) by a vote of one half plus one of the members of the full council. For example, a four-member council must have a minimum of three affirmative votes, and a six member council must have a minimum of four affirmative votes to dispense with a reading rule.

There are three ways to suspend this rule.

    1. Read the ordinance by title only on two different dates. At the third meeting, the council votes to suspend the reading of the proposed ordinance in full and has the proposed ordinance read by title only.

    2. The council votes to suspend reading the proposed ordinance on three different days and has the proposed ordinance read in its entirety only once. The mayor may now entertain a motion to adopt it. (It is recommended that a city only uses this when the proposed ordinance was listed on the posted agenda prior to the council meeting so public is aware of its consideration at the meeting.)

    3. The council votes to suspend reading the proposed ordinance on three different days and has the title of the proposed ordinance read once. The mayor may now entertain a motion to adopt it.