In a surprising move, the three-member Blaine County Commission voted unanimously Thursday to initiate a repeal process for the county's inclusionary housing ordinance, based on a legal recommendation by Blaine County Deputy Prosecutor Tim Graves.
The decision came during a discussion about the legality of requiring developers to provide affordable housing.
In commencing the repeal of one of the county's most effective tools to establish affordable housing, county officials—particularly Graves—pointed to restraints placed upon them by Idaho's conservative Legislature.
"My own view is to follow (the prosecutor's) advice on this," Commissioner Larry Schoen said.
Blaine County's inclusionary housing ordinance, approved by the County Commission less than two years ago in June 2006, requires all future developments in the unincorporated areas of the county to include 20 percent affordable housing.
Graves based his unexpected recommendation on a review of a Feb. 19 decision by 4th District Judge Thomas F. Neville that declared illegal McCall's requirement that 20 percent of new development be set aside for deed-restricted housing. Neville ruled that the resort community's affordable housing requirement is unconstitutional and amounts to an illegal tax.
Graves said the judge's ruling noted that the Idaho Legislature, a body known for its strong property rights stance, did not expressly authorize local governments to require developers to provide affordable housing as part of the state's Local Land Use Planning Act. He said McCall authorities failed to convince Neville that they had the implied authority under the planning act to require developers to provide affordable housing.
"It has to be expressed," he said. "We've been given very few tools to combat this (affordable housing) problem.
"The fact of the matter is we live in a very conservative state."
Graves said that while Neville's decision is not binding for the county, he could not find enough distinguishing characteristics between the county and McCall ordinances "to warrant going forward with our inclusionary housing ordinance."
He said the first step in the process to repeal the ordinance should be to send it to the Blaine County Planning and Zoning Commission.
"And then come through the board (of County Commissioners) for a final determination," he said.
At the same time that he was recommending that the county dispose of its inclusionary housing ordinance, Graves also made it clear that he understands that the county's need for affordable housing remains. He said the county should consider providing stronger incentives to encourage developers to provide affordable housing in their development plans.
"There are creative ways ... for us to maintain affordable housing," he said. "We should definitely look at how we can accomplish this goal."
Graves reminded the commissioners that he felt the ordinance language met legal muster prior to their approving it in 2006. Speaking Thursday, Graves said that while he still stands by that recommendation, he believes the current judicial climate in Idaho would be unfavorable toward the county ordinance.
"I don't see Judge Neville's decision being disposed of," he said.
One of the major questions now is how the county will treat developments that were required to provide affordable housing units since the inclusionary housing ordinance was passed. Another major question is how local municipalities such as Bellevue, Hailey and Sun Valley that have their own ordinances requiring affordable housing will choose to proceed in light of the county's decision.
Within the Wood River Valley, only Ketchum lacks an ordinance mandating affordable housing. Rather, the city has created incentives for developers to provide it. Ketchum City Planner Stefanie Webster said city leaders feel their affordable housing approach is legal.
Caught off guard by the decision was Jim Fackrell, executive director of the Blaine County Housing Authority.
"I guess I'm a bit shocked," Fackrell said. "I certainly didn't see this coming."
On hand during the commissioners' discussion was Ned Williamson, attorney for the city of Hailey. Williamson said he's spoken with Graves about his concerns, but hasn't concluded how Hailey leaders should proceed.
"Hailey has looked at the decision," he said.
Also present during the discussion was a visibly stunned Hailey Planning Director Beth Robrahn.
Robrahn said she agreed with a comment by Schoen stating that the county and local municipalities need to work together to provide affordable housing, especially in light of Neville's ruling.
"I'm very supportive of that as a planner," she said. "We need to have that conversation."
Speaking from her office on Thursday, Sun Valley Planner Diane Shay said the city does have an inclusionary housing ordinance on the books, and the city is still enforcing it.
After the commissioners' vote, Blaine County Commissioner Tom Bowman laid out steps the county will need to proceed with immediately. He said those include finding a way to repeal the ordinance, suspending enforcement of the ordinance and pursuing new ways to provide affordable housing.
Bowman added that the county should also consider working with the Idaho Association of Counties and state legislators to find a legislative fix making it legal for local governments to mandate affordable housing.
According to the Blaine County Planning and Zoning Department, several developers have been required to provide affordable housing units since the county's inclusionary housing ordinance was approved. Which developments those are was not available by press time on Thursday.
Schoen said repeal of the ordinance won't impact two developments approved prior to the enactment of the housing requirement. He said the developers of these projects volunteered to provide affordable units in exchange for certain incentives. He said the developments include Agave Place, a 12-unit project built as part of construction of Village Green, a high-end subdivision adjacent to The Valley Club, and the Croy Creek Ranch near Hailey.
"Those were offers by the developer," he said. "So they're not affected."
With the county's ability to require developers to provide affordable housing diminished, the Agave Place and Croy Creek Ranch models may provide something of a way forward as the county looks for ways to encourage affordable housing.
Blaine County Commissioner Sarah Michael was the first to recommend that the commission pursue an aggressive plan to create stronger incentives for developers to provide much-needed affordable housing.
"The community is dying without it. The economy is dying without it," she said.
Although the state's land-use planning act would appear to prohibit mandated affordable housing, Graves said it does give local governments authority in other ways that might be helpful to the local affordable housing cause.
One idea floated during the meeting was to create a maximum size limit for new homes built in Blaine County, but allow developers to exceed that limitation if they agree to provide affordable housing.