The Legislature might be the next stop for supporters of Ketchum's transfer-of-development-rights ordinance, which hit a roadblock last year following an Idaho Supreme Court ruling.
The city has been reviewing ways to revive the nullified TDR ordinance, which aimed to preserve historic properties by allowing owners to sell development rights to property owners in other areas.
"The Supreme Court said the ordinance wasn't valid under the (existing) TDR statute," said Ketchum City Attorney Stephanie Bonney. "The only thing TDRs can be used for is the protection of open space."
Ketchum Planning & Zoning commissioners and city staff have discussed the issue several times this year. During a P&Z meeting Monday, they narrowed in on a potential course of action: a legislative fix.
TDRs are a land-use planning tool used to encourage the voluntary preservation of buildings that represent local history or heritage. Under the TDR ordinance, certain sites were designated "sending areas." Owners of historic buildings in those areas could sell development rights up to the city's allowable maximum height. Property owners in "receiving areas" could then buy those rights to build taller buildings.
"You're not increasing development," Bonney said in an interview. "You're sometimes shifting where that development takes place."
Those "receiving areas" were areas that were considered not as sensitive to taller buildings or denser development.
In January, city staff presented four other options to preserve historic structures: Create overlay districts that designate some sites as protected from development and others as having development rights; create a subdistrict within the Community Core in which sloping sites would be allowed to have a fourth floor, with the idea being to preserve views; create a conditional-use permit for all of the Community Core, allowing a fourth floor if the city benefits; and relax affordable housing requirements for fourth floors to promote more workforce housing.
"None of them are good," Bonney said.
The staff report noted that the first option designates developable and protected properties without offering any incentives to those without development rights; the second could be seen as unfair to owners of properties that aren't on a slope; the third would be hard to administer and enforce; and the fourth does not address historic preservation.
The course of action favored by commissioners—and recommended by the city attorney—is to ask the Legislature to pass a narrow amendment to the existing statute to allow TDRs to be used for historic preservation.
State lawmakers might be more easily persuaded if the effort is led by citizens rather than a municipality, Susan Buxton, another Ketchum city attorney, said during Monday's meeting. Supporters of expanding the TDR statute language could lobby the Legislature in the 2012 session.
The other four options could remain on the table in case a legislative attempt fails.
"It's always tricky trying to get legislation passed," Bonney said.
Even if the Legislature passes an amendment, there is no guarantee that it will solve the TDR puzzle. Bonney said there is "at least a slight chance" that the court may rule that expansion of the TDR statute to include historic preservation would still face a constitutional "uniformity" problem, meaning that all buildings within a zone must be treated the same. In that case, voters would have to approve a constitutional amendment.
The issue reached the Idaho Supreme Court in 2009 as the result of a suit filed against the city in 2007 by KGF Development, owner of the Copper Ridge building at 271 Washington Ave. KGF alleged that the city's TDR ordinance constituted spot zoning and broke city and Idaho laws.
A 5th District Court judge ruled against KGF, preserving—for a time—the TDR ordinance, but last July, the Supreme Court reversed the District Court decision.
Rebecca Meany: rmeany@mtexpress.com
