Brent Regan
6100 Borley Road
Coeur d’Alene
(208) 676-1922

December 5, 2011
Kootenai County BOCC
Commissioner Tondee
Commissioner Nelson
Commissioner Green

Subject: Unified Land Use Code Development

Dear Commissioners,

In your ongoing efforts to create a new ULUC and new zoning it is essential that all information you consider be evaluated as accurately as practical. Good decisions will not be the result of bad information.  I have attended several meetings, reviewed the KCCODE material available online and conducted my own research. While I have strong opinions regarding this matter, my opinions are of little value to you.  However, you will find it beneficial to review some of the facts and the context in which these and other facts are presented. With that as a goal, I would like to offer the following for your consideration.

Property Rights Protections.

Idaho Title 67-6508 (LLUPA) requires the preparation of a Comprehensive Plan. The first provision calls for two analyses to be performed; first is an analysis that ensures land use policies do not violate property rights or adversely impact property values and the second is an analysis as prescribed  in Chapter 80 of Title 67 (Note) to identify constitutional “takings”.

(a)  Property Rights -- An analysis of provisions which may be necessary to ensure that land use policies, restrictions, conditions and fees do not violate private property rights, adversely impact property values or create unnecessary technical limitations on the use of property and analysis as prescribed under the declarations of purpose in chapter 80, title 67, Idaho Code.

This is above and beyond Idaho and Federal constitutional requirements.

The Comprehensive Plan relegates Property Rights to chapter 15, and does not contain the statutory required analysis. There is a discussion of Constitutional Takings and how “Takings” only occur when a government regulation eliminates all economic value of the property. However, LLUPA goes beyond this basic protection to “ensure that land use policies…do not violate property rights, adversely impact property values or create unnecessary technical limitations on the use of property”.  LLUPA does not limit the impact to “substantial”, “significant” or “elimination of all economic value”. LLUPA is clear that land use policies enacted under Chapter 65 may not have ANY adverse impact.

The Comprehensive Plan contains no such analysis of impact and is therefore non-conforming to the requirements of the statue.

Note: I have previously informed the Commissioners that the “Idaho Regulatory Takings Act Guidelines” latest edition from the AGs office is dated July 2007. There is a statutory requirement that this guide be updated at least annually.

67-8003: The attorney general shall review and update the process at least on an annual basis to maintain consistency with changes in law.

The first analysis was not performed and the second analysis cannot be performed as the guidelines are not current.

County Counsel likely has a different interpretation of 67-6508(a). The question that should be asked is if that interpretation would prevail when challenged.

The Comprehensive Plan Environment.

The Comprehensive plan was created during a period of economic boom and development. Overdevelopment and runaway housing costs were the “charging elephant” and took center stage in the plan’s development. The lack of economic development and prosperity were not even considered. The seven Kezziah/Watkins questions (attached)  do not address economic prosperity, private land use or future employment opportunities. If the comprehensive plan were redone today it is unlikely that preserving the environment would be the greatest concern. An informal random survey of Kootenai County residents put Economic Prosperity, Private Property Rights and Lowering the cost of government ahead of “the environment”.

The Danger of Smart Growth.

While Mr. Messenger is adamant that his “Performance Zoning” is not “Smart Growth”, it is heavily informed by Smart Growth which is also known as “New Urbanism”, “Sustainable Development”, “Open Land Preservation” and other euphemisms. Once you get past the names you find sweeping similarities in the underlying goals of higher density housing, curtailing of property freedoms and rights, restricting mobility and discouraging suburban development. The inevitable results of these policies are reduced prosperity, greater congestion and a higher cost of living.

I have attached two articles for additional information: “Focus on Agenda 21 Should Not Divert Attention from Homegrown Anti-Growth Policies” and “The Folly of ‘Smart Growth”.

These articles were written a decade apart and are a clear warning against the proposed policies.

The first article gives insight as to how Mr. Messenger’s proposals could embody so many of the elements detailed in the United Nations Agenda for the 21st Century (Agenda 21) while being ignorant of that fact.

From the UN’s Agenda 21 website
Agenda 21 is a comprehensive plan of action to be taken globally, nationally and locally by organizations of the United Nations System, Governments, and Major Groups in every area in which human impacts on the environment.

Mr. Messenger and his Mission.

Todd Messenger is an intelligent, articulate and likeable individual. He will no doubt be successful in his life’s endeavors. However, I have observed some unsettling characteristics that you should be aware of in your dealings with him. Also, when seeking the opinion of another, it is wise to consider the circumstance and perspective of the one giving the opinion so that the full truth can be known. For example, if a man says to you “I have been shot!” you may be inclined to render aid. If you go on to learn that the man was shot while committing the felony murder of member of your family it is unlikely you would render aid.

In order to better understand the facts, please consider the following:
Arguing the case versus presenting the facts.

Mr. Messenger is a trained lawyer and it is the function of a lawyer to win a dispute. It is not the function of a lawyer to present a balanced case for judgment. Mr. Messenger has strong opinions and policies that he believes are best. His presentations only contain information that supports his perspective. He has stated that he presses for what he believes is the right alternative until he gets strong opposition.

An example of his selective presentation of the facts can be found on page 12 of the “Strategic Assessment and Annotated Outline” under Affordable Housing (Note: the Comprehensive Plan quotation cited in the outline cannot be found at the designated page) where he makes the case that cluster housing  is cheaper because you don’t have to drive as far. He states that the largest household expense is housing at 34% followed by transportation at 18%. This is false. The highest household expense is the cost of government at 40%. Housing is 34% of the remaining 60% (which equals 20% of the total) and transportation is 11%.

He goes on to state that living in clusters will save $1,346.85 in fuel. Really? Perhaps so, but he completely ignores the market effects of concentrated work – play – shop – sleep villages. Because businesses in the village have a captive labor pool they can offer lower wages. “I can make more downtown but then I would have to drive farther”. Also, vendors in the village have a captive customer pool. Convenience store pricing is not Costco pricing. The net result is that because of a lack of strong competitive forces, village living would be overall more expensive despite the minor savings in fuel.

This example illustrates how Mr. Messenger is true to his training and is interested in winning the argument, not objectively examining the truth.
City Centrist view.

Mr. Messenger’s prior experience has been in code development for cities and not counties. Counties are far more diverse and offer significantly more challenges to planning. Cities can be considered as a subset of the County where population densities have exceeded a critical point. Mr. Messenger seems to view Cities as the superior political entity with the County supplying the feed stock for the expanding city. The eventual result of this thinking is that the city(s) will expand to subsume the County until there is no County that is separate from a City. Consider the County and City of San Francisco as an example.

Making the County more like a city.

A recurring theme seems to be for high density housing surrounded by open common space. In his density illustration, Todd presented three cases showing that for a fixed area the amount if impermeable area is lower if all the development is crowded into a corner. This true but completely ignores other effects of high density. In the same presentation he showed that aquifer pollution is increased if the source of the pollution is focused, as in the case of high density housing. Traffic is also more congested as the cars per hour per mile increases with density. Additionally, what becomes of the open space? Is it public? If so then it will suffer the “Tragedy of the Commons”? If it remains public land, then it will it be developed in the future to the densities established?

Mr. Messenger enjoys living in a high density community. He has said as much. He would not enjoy living of 5 or 10 acres and believe people who do are foolish or inferior as indicated by his derisive comments during his presentations.

Some people may share his views. People who like to think eggs come from cartons and meat comes from shrink wrapped plastic trays. The people who think that way are welcome to move to the city. But those who chose to live in a more rural setting of the County want some space. They do not want to have 5+ acres and still have another house “clustered” within talking distance. There are people who dream of a small farm and enjoy nature by getting their hands dirty in it. Views are great but they can’t replace a yard fresh egg for breakfast.
Motivation of the Contract.

Understand that Mr. Messenger’s goal is not to provide the best code for Kootenai County or to ensure the quality of the character or environment. Mr. Messenger’s goal is to meet his contractual milestones as quickly and with as little effort as possible so that he gets paid and moves on to the next project.
Would his efforts look the same if part of his pay was dependent on a public vote to accept the new code? Your vote will, in turn, be judged in a public election.

Mr. Messenger no doubt has skills and capabilities that are needed in drafting the new ULUC. He also has a perspective and views that must be taken into account when considering his counsel. He is not infallible and has already become aware of several areas where his assumptions were incorrect. He is not an expert on living in Kootenai County.

Primim non nocere.

First, do no harm. The existing County code is a mess and on this everyone agrees. Bringing order to chaos is a worthy endeavor. However in that endeavor there is always the temptation to overreach, to over-regulate. However, any regulation of future activity fails to be fully informed about that activity since it hasn’t happened yet. Excessive regulation now ensures that those regulations will not be optimal in the future.

For every new ordinance there are at least four things that happen:

1) Property rights are incrementally diminished.

2) The “problem” requiring the ordinance is affected in some way.

3) The ordinance creates unintended or unforeseen effects which can range from insignificant to catastrophic.

4) There are one time and recurring costs associated with the new ordinance.

Many of the unintended consequences are the result of a new ordinance’s interaction with other ordinances. Like drugs, it is relatively easy to predict the effect of a single ordinance by itself but it is not easy, or even possible, to predict the consequences of its interaction with the totality of the code prior to implementation. All regulations have costs associated with implementation and recurring costs as they need to be maintained, interpreted, revised and enforced. Therefore, the more rules and regulations you have, the fewer rights you enjoy and the more you have to pay in taxes.

The only constant is change so the utility of the code will be a function of its ability to change and adapt to future situations and needs. It is this adaptability that will cause future Commissioners and planners to look favorably on these efforts. If only your predecessors had been so wise.

In Summary.
  • The LLUPA requires the protection of Property Rights beyond the Constitutional limitations on “Takings”.
  • The Comprehensive Plan is not compliant to LLUPA.
  • It must be appreciated that the Comprehensive Plan was drafted in a radically different economic environment.
  • Smart Growth type policies are documented failures.
  • Mr. Messenger has demonstrated that he is willing to present only that information supporting his position(s). This requires the active seeking of the complete “picture”.
  • Mr. Messenger has views and preferences that are more city oriented than rural.
  • Organizing, simplifying and clarifying the county ordinances are a necessary and worthwhile endeavor.
  • Restricting, reducing or limiting property rights will result is significant opposition.
  • Government in general consumes 40% of the average household income. Reducing the direct and indirect cost of government has a direct, first order effect on prosperity which will be immediately felt by the voters.
  • Attempting to increase prosperity through “smart growth” style planning has been demonstrated to have the opposite effect and will not be well received.
I hope you find this information useful. Thank you for your attention in this matter. If there is any way I can be of future assistance, please do not hesitate to ask.

Brent Regan


10/30/2013 10:05am

Your blog looked so simple to design that I decided to create one, thanks!


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