Friday, March 20, 2009

Is private horse trading on development compatible with public interest?

Idaho's Local Land Use Planning Act and the courts are of two minds.

The courts say public officials must consider development applications in the open in "quasi-judicial" proceedings.

Yet, Idaho law says counties and cities can enter into mediation—read private horse-trading—with developers at any point during consideration of a development application.

Last year, Blaine County entered into mediation with the developers of the controversial Cove Springs development after the Planning and Zoning Commission and the county commissioners had rejected the project and after developers filed suit against the county.

Blaine County Commisioner Larry Schoen, Deputy Prosecutor Tim Graves and Planning Director Tom Bergin met in closed-door mediation sessions with the developers and their attorney last year.

Subsequently, Cove Springs developers modified the original proposal and received P&Z approval. The Blaine County Commission, including Schoen, soon will decide the fate of the revised project.

The idea of people coming together to work out differences outside a courtroom looks good on its face, but in practice it raises legal and ethical questions.

Mediation between public officials and developers conflicts with the body of law that says elected officials and developers may not reach agreements or meet behind closed doors.

Northwest courts call consideration of proposed developments "quasi-judicial" proceedings. They have ruled that in such matters appointed and elected officials are acting like judges in a court of law and must behave accordingly.

Elected officials are prohibited from talking privately to proponents or opponents of developments. They must deliberate and hear comments in meetings open to the public.

The guidelines foster the appearance of fairness in zoning and development.

Attorneys for cities and counties today advise elected officials to scrupulously observe prohibitions on discussions of development proposals outside public meetings lest they risk court action. They caution elected officials to refrain from observing proceedings of an associated planning and zoning commission lest their own decision-making become tainted.

So, which is it—open or closed?

The way the law works now, development applications are considered in public—until disagreements arise. Then, public officials may slam the door, throw out the public, rework a plan, send it to the P&Z and three county commissioners—one of whom shaped project revisions.

In the public interest, Idaho needs to bring land-planning mediation law into line with the spirit of court rulings.

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