|
|
February 22, 2005
Michael E. Curley
109 S. Washington Ste. 5
Moscow , ID 83843
RE: Complaint Regarding Current Uses at 405 South Main Street
Dear Mr. Curley,
I am in receipt of a written complaint regarding the educational-related use of the above-referenced property which has been filed by ——, —— and ——, for whom you provide legal representation. As I understand it, the complaint is that New St. Andrews College is an “educational institution”[1] as defined by the City of Moscow Zoning Code and, therefore, is prohibited because educational institution is not explicitly listed as a permissible use in the Central Business (CB) Zoning District in which it is located.
There are various ways to interpret the Zoning Code;[2] for example, looking at the intent, reading the law as an integrated whole, focusing on the literal meaning and/or the ordinary meaning or a strict, narrow reading.[3] After reviewing the information that New St. Andrews has provided to the City regarding the use which, it appears, is primarily educational, I reviewed the Moscow Zoning Code and Moscow Comprehensive Plan which places emphasis on the Central Business District,[4] and which is adopted by reference in the Zoning Code as the policy guide for such Code. My review has resulted in my determination that New St. Andrews College is an allowable use in the CB Zoning District as a “. . . similar public or private institution”[5] (MCC 4-3-5(B)(7)) as supported in the Zoning Code and in the Comprehensive Plan. I render this determination pursuant to MCC 4-11-5 and using my “reasonable discretion”[6] as to whether the use is encompassed by a listed use.
It appears that educational uses have been allowed to exist in commercial zoning districts by various means, over time. There have been various changes in the Zoning Code since its establishment in 1931. For example, “educational institutions” were allowed as a permissible use in what is now the Central Business (CB) Zoning District from 1931 until 1990. “Schools”[7] were allowed in what is now the Central Business (CB) Zoning District from 1931 until 1990. I have found no explanation for their current absence from the list of permissible uses.
“Commercial Schools”[8] were allowed in the Central Business (CB) Zoning District from 1931 to 1957 but were not listed as a permissible use between 1957 and 1990. “Commercial Schools” were listed as a permissible use from 1990 until 1998 when their existence was only pursuant to a Conditional Use Permit. “Commercial Schools” were then allowed as a use by right following a change in 1999. According to the history of the ordinances I have available to me, there does not appear to have been a consistent Zoning Code approach to educational uses within the City. From a planner’s perspective, it is difficult for me to understand the purpose for appearances and disappearances of these uses in the same Zoning District over time.
I acknowledge that the current use of New St. Andrews College is not explicitly listed as a permissible use in the CB Zoning District. However, such use has been explicitly permitted as a use by right in the past, and I interpret the Zoning Code to otherwise allow educational uses in certain commercial zoning districts.[9] Additionally, I read the law as an integrated whole and considered the intent of the Zoning Code and the Comprehensive Plan. Therefore, it is my determination that such use be allowed to continue while the City more thoroughly reviews the Zoning Code regarding these types of uses and considers amending the Code to clarify or explicitly allow such uses in such Zoning Districts, either by right or by Conditional Use Permit.
The City Attorney has advised me that he does not believe the City’s zoning or relevant land use regulations run afoul of the Religious Land Use and Institutionalized Persons Act (RLUIPA) in this case, even though New St. Andrews College is affiliated with a religious entity and tradition.
As you are likely aware, you may appeal this determination pursuant to MCC § 4-8-2(A).[10]
Thank you for your interest in this matter.
Respectfully,
Joel D. Plaskon, ICP
Community Development Director/Zoning Administrator
[1] “Institution, Educational. A college or university supported by public or private funds, tuitions, contributions or endowments, giving advanced academic instructions as approved by the State Board of Education or by a recognized accrediting agency, excluding preschool, elementary and junior or senior high schools, and trade and commercial schools; including fraternity and sorority houses.” (MCC 4-11-9(B)(47))
[2] “In their interpretation and application, the provisions of this Zoning Code shall be held to be minimum requirements. . . Whenever the requirements of this Zoning Code are at variance with the requirements of any other lawfully adopted rules, regulations, resolutions, deed restrictions, or covenants, the most restrictive or that imposing the higher standards, shall govern.” (MCC 4-11-4)
[3] “For the purpose of this Zoning Code, certain words and terms used herein are defined as follows: . . . . All words used in the present tense include the future tense. . . . [T]he word ‘shall’ is mandatory and not directory. The word “used” shall be deemed also to include ‘designed, intended or arranged to be used.’” (MCC 4-11-9 (A), “Definitions”)
[4] “Intent: The principal purpose of the CB Zoning District is to provide a location for groups of compatible commercial uses having the common characteristic of not involving more than incidental and minimal assembly, fabrication or storage of commodities; for example, enterprises dispensing retail commodities, and those providing professional and personal services to the individual. The CB Zoning District is the most intensive commercial Zoning District. To promote pedestrian use, unbroken, street-level, commercial frontage is encouraged in this Zoning District.” (MCC 4-3-5(A))
[5] “Commercial schools, churches, synagogues, mosques, governmental offices, libraries, museums, art galleries, police and fire stations, and similar public or private institutions.” (MCC 4-3-5(B)(7))
[6] “This Zoning Code is an exclusive zoning ordinance wherein the stated uses are the only uses which are permitted in each zoning district. Those uses not listed as permitted or conditionally permitted are not authorized. The question whether a specific use is encompassed by a listed use shall be subject to the Zoning Administrator’s or designee’s reasonable discretion. Further, when, as a result of subsequent changes in technology, business practice, or lifestyle, a use has not been mentioned in this Zoning Code, the Zoning Administrator or designee may permit such use if it is clear that the use is comparable to listed uses for a particular zoning district. Alternatively, the Zoning Administrator or designee may refer such proposed use to the Board of Adjustment for review as a conditional use. Any other use not listed may only be permitted upon amendment of this Zoning Code to include such use in the appropriate zoning district.” (MCC 4-11-5)
[7] “School. An institution of learning which offers instruction in several branches of learning and study required to be taught in the public schools by the Idaho State Board of Education including elementary, junior or senior high, including public, private and parochial and also including preschool and kindergarten.” (MCC 4-11-9(B)(79))
[8] “School, Commercial. A program whereby instruction is given to pupils in arts, crafts or trades and operated as a commercial enterprise.” (MCC 4-11-9(B)(80))
[9] “Sec. 3-2. Residential/Office Zoning District (RO).
“A. Intent: The RO Zoning District is a moderately intensive zone including both offices and high density housing. It serves as a transitional Zoning District between residential Zoning Districts and commercial or industrial Zoning Districts. The RO Zoning District is appropriately applied in the following circumstances: . . .
“D. Conditional Uses
“1. Schools, commercial schools and educational institutions.” (MCC 4-3-2 (A)(D)(1))
[10] “Appeals to the Board of Adjustment concerning interpretation or administration of this Zoning Code by the Zoning Administrator may be made by any applicant, City representative or person adversely affected thereby. Such appeal shall be made within thirty (30) days from the date the appellant first knew of or, with reasonable diligence, could have known of such interpretation or administration of the Zoning Code by the Zoning Administrator. An appeal shall be made by filing with the Zoning Administrator a written notice of appeal specifying the grounds thereof. Upon the filing of an appeal, the Zoning Administrator shall forthwith submit to the Board of Adjustment all materials constituting the record upon which the appeal is made.” (MCC 4-8-2(A))
|