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Lesson 1 of 9 · about 16 minutes

The Planning Act and Who Decides

You'll be able to

  • Explain what Idaho Code Title 67, Chapter 65 requires of every city and county
  • Describe how a planning and zoning commission is created, staffed and limited
  • Apply the county commission membership rules to a real roster
  • Tell a legislative land use decision from a quasi-judicial one

Every city and every county in Idaho has to plan and zone. That is the whole of Idaho Code 67-6503, a single sentence that has been on the books since 1975. The rest of Title 67, Chapter 65, the Local Land Use Planning Act, explains how. People in the business call it LLUPA, pronounced "loo-pa," and you will hear it at every hearing you attend.

The Water, Land and Agriculture course in this series has a lesson on land use that covers the basics of the plan, conditional use permits and written decisions (Land Use: Plans, Zoning, Permits and Farmland). This course goes further. It follows a land use case from the people who decide it, through every kind of application, to the courthouse steps.

What the Act is for

Idaho Code 67-6502 lists thirteen purposes, labeled (a) through (m). They do not all point the same way, and that is the point. The first one is to protect property rights while making room for other needed development such as low-cost housing. Others tell local governments to make sure public facilities are provided at reasonable cost, to encourage protection of prime farm, forest and mining land, to encourage urban development inside incorporated cities, to avoid undue water and air pollution, and to protect airports.

Purpose in 67-6502Tends to favor
(a) Protect property rightsThe owner who wants to use or develop land
(b) Adequate public facilities at reasonable costTaxpayers and service providers
(e) Encourage protection of prime agricultural, forestry and mining landsKeeping working land working
(f) Encourage urban development within incorporated citiesGrowth inside city limits rather than scattered across the county
(k) Avoid undue water and air pollutionNeighbors and downstream users

When someone at a hearing says "the purpose of the Act is to protect property rights," they are right. When the next person says "the Act is about protecting farmland and public services," they are also right. Anyone following the case should hear both out and then ask which local standard actually decides it.

Two kinds of decision makers

The statute calls the city council or the board of county commissioners the governing board. Under Idaho Code 67-6504, a governing board can do all the planning and zoning work itself. Many small cities do exactly that. If it does not, it must create, by ordinance, a planning commission and a zoning commission, or one planning and zoning commission that does both jobs.

A commission can act with the governing board's full authority with two exceptions. It cannot adopt ordinances, and it cannot give final approval to land subdivisions. Everything else depends on the local ordinance. In one county the commission makes the final call on conditional use permits. In the next county over, it only recommends and the commissioners decide. Read the ordinance before you tell anyone "the commission approved it."

A county's powers under the Act apply to the unincorporated area. Cities zone inside their limits. Counties zone everything else, including the ring around a city called the area of impact, which gets its own lesson later in this course.

Application and fee Staff report standards checked Commission hearing Governing board decides Written decision Some ordinances let the commission or a hearing examiner decide, skipping the board unless someone appeals.
A common path for a site-specific application. Your local ordinance sets the actual steps.

Who can serve on a commission

Section 67-6504 sets the ground rules. A commission has at least 3 and no more than 12 voting members. The mayor or the chair of the county board appoints them, and a majority of the governing board confirms. Members must have lived in the county for at least two years before appointment and must keep living there. Terms run 3 to 6 years, set by ordinance. Nobody serves more than two full consecutive terms unless two-thirds of the governing board agrees by recorded motion. Members can be removed for cause by majority vote, and they are chosen "without respect to political affiliation."

County commissions have two extra geography rules, written so that rural residents are not outvoted by town residents on decisions about rural land:

  • The one-third cap. No more than one-third of county appointees may live in an incorporated city of 1,500 or more people, and those seats rotate among the qualifying cities.
  • hearing examiner, a professionally trained or licensed planner, attorney, engineer or architect, to hear subdivisions, special use permits, variances and rezones that fit the plan. Depending on the ordinance, the examiner decides or recommends.

    Conflicts of interest

    Idaho Code 67-6506 is short and strict. A board member, commissioner or employee cannot take part in a proceeding when they, their employer, a business partner or associate, or a relative within the second degree by blood or marriage has an economic interest in it. Second degree reaches parents, children, siblings, grandparents and grandchildren, plus the same relatives of a spouse. Any actual or potential interest has to be disclosed at or before the meeting. A member with a conflict sits out every part of the decision, and a knowing violation is a misdemeanor.

    Disclosing a conflict does not cure it. Under 67-6506 a member with an economic interest does not vote after disclosing it. They step away from the whole matter.

    The two hats

    The same five people can spend the first hour of a meeting writing policy and the second hour acting like a panel of judges. Idaho courts have recognized the difference since Cooper v. Board of County Commissioners of Ada County in 1980, which treated a site-specific rezone as quasi-judicial. The Idaho Supreme Court repeated the point in Eacret v. Bonner County (2004): when a board applies general rules to specific people or situations, its decision is quasi-judicial and subject to due process.

    LegislativeQuasi-judicial
    ExamplesAdopting or amending the plan, rewriting zoning text, countywide map updatesConditional use permits, variances, subdivisions, rezoning one parcel
    Who is affectedMany people, as a classAn applicant and identifiable neighbors
    Private talks with officialsOrdinary lobbyingEx parte contact that must be disclosed on the record
    Decision based onPolicy judgmentExpress standards applied to facts in the record
    Court reviewNarrowJudicial review on the record under 67-6521

    This table drives most of the rest of the course. Notice rules, ex parte rules, written decisions and appeals all hinge on which hat the board is wearing.

    Common mix-ups

    • Claim: Planning commissioners are elected. What the evidence shows: They are appointed by the mayor or county chair and confirmed by the governing board under 67-6504. Voters reach them only through the officials who appoint them.
    • Claim: The state approves local zoning decisions. What the evidence shows: The state writes the framework. Cities and counties decide, and courts review. No state agency signs off on an ordinary rezone or permit.
    • Claim: The commission always has the final word. What the evidence shows: It cannot adopt ordinances or finally approve subdivisions, and on everything else the local ordinance decides whether it recommends or decides.

    Reporting angle

    • Request the ordinance that created the commission, its bylaws, and the appointment and confirmation records for every current member. The Idaho FOIA / Public Records Letter Generator drafts the request.
    • Build a roster with each member's city of residence, impact area status, term start and term number. Check it against the caps in 67-6504.
    • Search the minutes for conflict disclosures. Note who recused, on what, and who did not.
    • Find out which decisions the commission makes and which it only recommends. The answer is usually in a table in the zoning ordinance.

    Research angle

Check yourself

1. Under Idaho Code 67-6503, which local governments must exercise the planning powers in the Local Land Use Planning Act?

2. What can a planning and zoning commission never do on its own, even with full delegated authority?

3. A county planning and zoning commission has 9 voting members. Under 67-6504, at least how many must live outside every city's area of impact (absent the vacancy exception)?

4. A commissioner's brother-in-law owns the parcel up for a rezone. What does Idaho Code 67-6506 require?

5. Which of these is the clearest example of a quasi-judicial land use decision?

6. Who appoints members of a county planning and zoning commission?

Terms in this lesson

LLUPA
Common shorthand for the Local Land Use Planning Act, Idaho Code Title 67, Chapter 65, adopted in 1975.
Governing board
The statute's name for the city council or the board of county commissioners.
Planning and zoning commission
An appointed citizen body, 3 to 12 voting members, that recommends or decides land use matters as the governing board's ordinance allows.
Quasi-judicial decision
A decision that applies existing rules to a specific person or parcel, such as a permit or site-specific rezone. Due process rules apply.
Legislative decision
A decision that sets general policy for many people, such as adopting a plan or rewriting zoning text.
Hearing examiner
A trained planner, engineer, architect or attorney appointed under 67-6520 to hear certain applications in place of the commission.

Full glossary

Sources