October 24, 2014
Mr. Stephen Zollinger
Driggs City Attorney
80 Main Street,
Driggs, Idaho 83422
RE: Request for Reconsideration and Notice of Procedural Errors.
Your last email (dated September 26, 2014) did not confirm whether any findings and conclusions of law would be forthcoming. However, I am submitting this request for reconsideration pursuant to I.C. § 67-6535 and also to put the city on notice of serious procedural flaws which (1) presently render the Teton Land LLC property not annexed to the city of Driggs and (2) void all action taken by the city on September 16, 2014.
On information and belief, the members of the Driggs City Council are presently unaware of what specific approvals and entitlements they have granted Teton Land LLC. This includes the fact that the land was not annexed and within the city’s jurisdiction at time of the Sept 16, 2014 hearing, and is presently still not properly annexed into the city boundaries. It appears that City has been so hasty to approve entitlements on the Teton Land LLC property that proper statutory and municipal annexation, planning and zoning procedures have not been followed.
The end result is this: The City has extended itself by purporting to grant height exemptions and virtually unlimited commercial use entitlements to an entire 140-acre parcel of land, which was not within the city’s jurisdiction at the time. Having personally attended all of the City hearings for the Huntsman Springs resort hotel and shopping plaza, I sincerely do not believe the City Council intended to grant such broad and open ended entitlements because the Council would surely have recognized how detrimental this would be to the health of downtown Driggs.
The entire premise behind the City’s recommendation to approve the new 4-story Huntsman Springs resort hotel up to a 52-foot maximum height on the east facing side (and 62 feet on the west facing side) and shopping plaza is based on nine incorrect positions. If any one of these positions is incorrect, the City’s actions regarding this annexation, PUD amendment, and use exemption proposal are void. They are:
- The City never properly adopted annexation Ordinance 344-14 by motion and majority vote of the city council as required by § 50-902.
- The City failed to publish annexation Ordinance 344-14 in full or in summary within 30 days of passage as required by I.C. §§ 50-901 and 50-901(A).
- Failure to follow these procedures is a failure to follow the mandatory procedures to effectuate an annexation ordinance as required by I.C. § 50-222.
- All action taken by the city regarding the Teton Land LLC property at the September 16, 2014 City Council hearing was ultra vires and void because the land was still in Teton County’s jurisdiction at the time, and the City had no planning and zoning authority over the property as per Idaho Const. art. XII, § 2.
- The Applicant and planning staff incorrectly calculated the height of the proposed building.
- Planning staff misapplied the ordinance that permits a 20% increase in the authorized base height for certain structures that are typically based on or protrude from a building roof (e.g., a chimney, HVAC equipment, and the like).
- The Idaho Supreme Court’s decision in Burns and subsequent legislation bars the City’s attempt to grant any form of height exemption pursuant to the City’s PUD ordinance because it does not comply with the post-Burns legislative criteria and standards.
- The use exemption provisions in the City’s PUD ordinance do not give the City authority to grant a height variance.
- The City cannot maintain neither Huntsman Springs PUD nor the MUR-1 as unique zone where there are no affixed zoning standards or clear criteria for establishing those standards.
A brief history of the City’s actions:
On May 6, 2014 the Driggs City Council held a hearing to consider an annexation request by Teton Land LLC for roughly 140 acres of land into the city that is the location a proposed Huntsman Springs resort hotel and shopping plaza. The notice for this hearing made no reference to the potential passage of any annexation ordinance. At this hearing, the City Council passed the following motion:
“Council Member Mossman made a motion to waive the rule and read by title only Ordinance 344-14 with staff recommendations and conditional on the Annexation Agreement. Council Member Dye seconded the motion. A roll call vote was taken; Council Member Jones, aye; Council Member Mossman, aye; Council Member Christensen, aye; Council Member Dye, aye. The motion passed with all in favor.” (May 6, 2014 Driggs City Minutes)
After this motion passed to waive the rule and read Ordinance 344-14 by title only, no further motion was made to adopt Ordinance 344-14. City Ordinance 344-14 purports to annex the 140 acres owned by Teton Land LLC. It was signed and dated the day of this hearing, but it was not recorded until August 13, 2014 — 99 days later.
Also in August, the City published notice for a September 16, 2014 City Council hearing to consider a “PUD Amendment & Use Exception for a hotel and commercial” for this property. The Driggs planning staff issued a September 11, 2014 Staff Report (hereafter “Staff Report”) for this hearing which was the basis of the Driggs City Council’s analysis for conditionally approving a 62ft tall resort hotel and shopping plaza. This Staff Report declared the Teton Land LLC property already annexed and zoned MUR-1:
“Recently, an annexation was approved that incorporated 140 acres with MUR-1 zoning for a total of 255 acres inside Driggs city limits.”
The Staff Report further stated that the resort proposal is reviewed under the “use exception” provisions of the city’s PUD ordinance; the applicable provision reads:
“USE EXCEPTIONS: Upon recommendation of the commission, the council may authorize specific uses not normally permitted by the use regulations of the district in which the development is located.” [Emphasis added.] (Driggs Code 10-6A-4)
The criteria for evaluating use exemptions focus entirely on just that – uses – not height:
According to the City’s position, the property where this resort hotel is proposed is presently zoned “Mixed Use Residential 1” (MUR-1), but on the Driggs zoning maps, it is further identified as “Mixed Use Residential” (MUR). The MUR zone prohibits any retail over 800+SF, resort hotels, residences over 2 stories, or 52 foot tall buildings. The maximum building height limitation in the MUR zone is 35 feet.
In the Driggs zoning code, MUR-1 is identified as a “sub-district” of the MUR zone. According to the land use chart and development standards tables for the MUR zone, the MUR-1 sub-district the column is left completely blank – – all land uses and development standards are stated as “subject to the Huntsman Springs planned unit development”. (See image below)
Looking specifically to the Huntsman Springs Mixed Use Neighborhood Framework Plan within the MUR zone, this is the sum total of all the regulations and standards in the Framework Plan:
Looking to the Driggs PUD ordinance, there are absolutely no specific land uses or specific development standards (height, square footage, etc.) that are permitted or prohibited within the Driggs PUD ordinance. In fact, there are no standards or criteria of any kind for this sub-district, or within the PUD ordinance.
As for what may be contained in the “Huntsman Springs planned unit development approval” (as cited in Driggs Code 9-12A-4 above) – there is nothing in the City’s record regarding development standards for the MUR-1 zone. The entire Huntsman Springs public record (City Council minutes, Driggs Planning & Zoning Commission minutes, earlier staff reports, development agreement, and all of the Huntsman Springs plats) is silent on specific uses, heights, or zoning standards for the MUR-1 sub-district or even for the Huntsman Springs PUD in general.
At the September 16, 2014 City Council hearing, the council unanimously approved the 62-foot tall resort hotel and shopping complex based on the use exemption provisions within the PUD ordinance – all of this being subject to your approval that the proper process was followed. The annexation plat for the Teton Land LLC property was not recorded until September 18, 2014 – – two days after the Sept 16th hearing, and 135 days after the original May 6th annexation hearing.
After this hearing, VARD contacted you to express some of our concerns in writing. (Sept 18, 2014 letter to Stephen Zollinger from VARD President David Axelrod) On Sept 23rd, 2014 you responded via email that the City’s newer position is that the September 16th hearing was actually a zoning amendment to establish standards and parameters for the MUR-1 sub-district, but that you and the City were reviewing the matter and would issue a final decision. We have never received that decision. We responded by providing all of the prior public notices which made no reference to this being a zoning amendment of any kind, but rather, a “PUD amendment and a request for a Use Exception.” On September 26, 2014 you responded via email:
“I have been able to discuss the Huntsman rezone several times over the last few days with Doug Self and Ashley Koehler, and one thing you and I apparently both failed to understand, is that the matter is not yet completed in the eyes of City staff, as they are intending to formally submit the parameters established so far in the form of an Ordinance to the P&Z and the Council. You may want to touch base with them to get a preliminary copy of the Ordinance, but I maintain that it will create the necessary backing for what they believe they have created.”
We responded with the following:
“We will of course wait and see what the City proposes to do, as we understand you are advising that the Council decision on September 16 is not a final determination. If that understanding is incorrect and you believe the September 16 decision is final subject to the required findings/conclusions, please provide the City’s findings of fact and conclusions of law.”
We have received no further response from the City. Then, on October 2, 2014, the City published a Notice of Ordinance Adoption for Ordinance 344-14. This was sixteen days after the September 16th City Council hearing, and 149 days after the May 6th annexation hearing.
The city’s approval for the 62ft resort hotel and shopping plaza was improperly granted for the following reasons:
REASON #1: Because the City failed to follow proper annexation procedures, the Teton Land LLC property was in county jurisdiction at the time of the September 16, 2014 hearing and remains there to this day. The City’s actions taken at the September 16, 2014 hearing are void.
Idaho cities have planning and zoning authority and the power to govern and regulate only within their municipal boundaries. See also, Idaho Const. art. XII, § 2 Municipalities may exercise only such annexation powers as are expressly granted by statute, or necessarily implied from the express grant. To effect a valid annexation, the statutory procedures must be followed and the substantive elements must be satisfied: “If the essentials of the statute are lacking, the annexation ordinance is invalid.” Accordingly, I.C. § 50-222(2) declares the authority of cities to annex so long as the statute’s procedures are followed, which includes:
“The implementation of any annexation proposal wherein the city council determines that annexation is appropriate shall be concluded with the passage of an ordinance of annexation.” [Emphasis added]
Idaho Attorney General’s Opinion, OAG 95-1 further supports this requirement and opines that for an annexation to be effective, it must be adopted via an ordinance. To properly adopt any municipal ordinance, I.C § 50-901 requires the following:
“The style of all ordinances shall be: ‘Be it ordained by the mayor and council of the city of ………’ and all ordinances of a general nature, unless otherwise required by law, shall, before they take effect and within one (1) month after they are passed, be published in full or by summary as provided in section 50-901A , Idaho Code, in at least one (1) issue of the official newspaper of the city, or mailed as provided in section 60-109A.” [Emphasis added]
The statutory roll call procedure to pass or adopt an ordinance, require the following:
“The passage or adoption of every ordinance, and every resolution or order to enter a contract shall be by roll call of the council with the yea or nay of each being recorded, and to pass or adopt any ordinance or any such resolution or order, a majority of the council shall be required….. Ordinances shall be read on three (3) different days, two (2) readings of which may be by title only and one (1) reading of which shall be in full, unless one half (1/2) plus one (1) of the members of the full council shall dispense with the rule.” [I.C. § 50-902]
In its haste to move the Teton Land LLC property through the entitlement process, the City of Driggs failed to follow the statutory procedures for annexation in four significant ways:
- The City never properly adopted annexation Ordinance 344-14 by motion and majority vote of the city council as required by § 50-902. The only motion passed at the September 16, 2014 hearing was to waive the rule and read by title only Ordinance 344-14. This is the proper process to waive the reading rules, however, no motion of any kind was made to adopt Ordinance 344-14.
- The City failed to publish annexation Ordinance 344-14 in full or in summary within 30 days of passage as required by I.C. §§ 50-901 and 901(A). The Ordinance was published 149 days after the alleged passage at the May 6, 2014 hearing.
- Failure to follow these procedures is a failure to effectuate an annexation ordinance as required by I.C. § 50-222.
- All action taken by the city regarding the Teton Land LLC property at the September 16, 2014 City Council hearing was ultra vires and void because the land was still in the county’s jurisdiction at the time, and the City had no planning and zoning authority over the property as per Idaho Const. art. XII, § 2. The land remains in county jurisdiction to this day, where it is presently zoned, ADR 2.5, ADR 0.5, A-20, R-3, and Airport Overlay.
REASON #2: Misapplication of the City’s own height standards.
With regards to the resort hotel, the Staff Report recites: “the structure would have a walk-out “basement” (4 stories) on the west/golf course facing site of the hotel for a total height of 66.6’” measured from the existing terrain (there is no established curb level). The city’s building code has no definition of a “basement”, “daylight basement”, or “walk-out basement.” It is not a structure component with any legal meaning, but the planning staff relied upon this fiction to ignore the first story of the building on the west side. The City’s code does not permit this fiction. The city’s zoning code defines height as follows:
“Height, Building: The vertical distance measured from the established curb level or existing terrain, whichever is higher, to the highest point of the coping of a flat roof, or to the deckline of a mansard roof, or to the mean height level between eaves and ridge for gable, hip or gambrel roofs. Chimneys, spires, elevator penthouses, cooling towers and similar projections other than signs shall not be included in calculating building height.” (Driggs Code 9-1-5) [Emphasis supplied.]
The city code defines a “story” as:
“Story: That portion of a building included between the surface of any floor and the surface of the floor next above it, or if there be no floor above it, the space between such floor and the ceiling above it. A basement shall be counted as a story if its ceiling is over six feet (6’) above the average level of the finished ground surface adjoining the exterior walls of such story or it is used for business or dwelling purposes.” (Driggs Code 9-1-5) [Emphasis supplied.]
Here, the Staff Report measures from a hypothetical future “finished grade /curb line” and not from the existing, or the expected finished terrain — even though the staff report admits that “at least 3-4’ of excavation would be needed along the back side of the building.”
Additionally, it appears that the staff report measures the height from only the east-facing side, rather than taking in the mean of the total roof as required for roofs with gables. Because the proposed design of the building on the west includes commercially rented rooms on the bottom floor, and a ceiling more than 6’ about the finished ground surface the hotel by definition is a 4-story structure on the west side. Measured on the west side of the building, the applicant’s objective submission mandates a calculation of 66.6 feet in building height under the City’s ordinance. This is not disputed. On the east side, measuring from a hypothetical future curb height (not the existing curb height mandated by the code, as there is none, of from the existing terrain), the height is not less than 54 feet.
The proposed hotel structure is not permitted under the City’s existing rules for a zone classification with a 35 foot height limit.
REASON #3: The hotel lobby does not qualify for a 120% height exemption.
Starting form the erroneous premise that a 45 foot height limitation applies to the MUC-1 commercial zone at the southeast corner of the development, planning staff then erroneously applied the 120% exemption for certain features provided by Driggs Code 9-2D-2 to establish a maximum height of 52 feet for the MUR-1 zone. The first proposed justification provided in the Staff Report for approving the height of the resort hotel applies the city’s height exemption regulations:
If the peak of the lobby facing the east/Hwy is reduced to 51’6” then is meets the 54’ height exemption maximum that is set for other areas and is a reasonable request and is supported. (Emphasis included in Staff Report.)
Apart from starting from an incorrect zoning height limitation (45’ instead of 35’), staff misapplies Driggs Ordinance 9-2D-2. Also known as the “120% Height Exemption”, section 9-2D-2 provides the following:
First, section 9-2D-2 cannot justify a 54 foot height limitation regardless of the 120% Height Exemption. The height maximum in the MUR zone is 35 feet — not 45 feet. Any 120% Height Exemption in this zone would be to 42 feet — not 54 feet. The applicant has not applied for a rezone from MUR to Mix Use Commercial (MUC) where 45 foot buildings are allowed. The height maximum is 35 feet, and maximum height for this zone classification cannot be adjusted via the PUD ordinance (as explained via REASONS #4 and #5 below).
Secondly, the City seeks to apply the exemption to the entire lobby roof which encompasses not less than 40% of the hotel roof line. Section 9-2D-2 does not apply to exempt any feature that accounts for more than 20% of the building’s roofline.
Third, the 120% Height Exemption is plainly limited to “building features such as church spires, belfries, cupolas, or domes, chimneys, ventilators, skylights, parapet walls, cornices, solar energy systems, elevators penthouses, or necessary mechanical appurtenances” that extend above the roof of the proposed structure – not to the roof itself.
Here, the requested height exemption is for the peak height of the lobby of a four-story hotel – not including the chimney. This lobby and it’s roof height are clearly not a “building feature” but, rather, it is the principal part of the structure itself. Moreover, the staff report plainly states that this height measurement “does not include chimneys in the calculation of height” despite the fact that the lobby’s chimney is the only feature in this calculation that would qualify as a “building feature” for purposes of the 120 Height Exemption.
Finally, the record does not contain any showing whatsoever of necessity for this height exemption in order for the building feature to properly function. The roof element would function the same whether the building is 15 feet or 65 feet in height. The 120% Height Exemption simply cannot apply to the proposed structure.
REASON #4: Driggs has no legal authority for granting any form of a height exemption via the PUD ordinance.
With the unanimous Idaho Supreme Court decision in the recent case of Burns Holdings Inc. v. Teton County Board of County Commissioners, 2012 Op. No. 19 (January 25, 2012), the court took a sharp look at the process previously selected by Driggs to deviate from the City’s height regulations. In Burns, the court unanimously held that a height exemption granted by Conditional Use Permit was void and that a height exemption could only be granted by variance. After Burns, the Idaho Legislature quickly enacted HB. 691, which “clarifies that the Legislature intended the conditional use permit to be a process through which waivers or of exceptions to zoning standards could be permitted.” Thus, the Idaho Legislature amended I.C. § 67-6512 to add:
“In addition to other processes permitted by this chapter, exception or waivers of standards, other than use, inclusive of the subject matter addressed by section 67-6516 [the variance statute], Idaho Code, in a zoning ordinance may be permitted through issuance of a special use permit or by administrated processes specified by ordinance, subject to such conditions as may be imposed pursuant to local ordinance drafted to implement subsection (d) of this section.” I.C. 67-6512 (effective July 1, 2012)
Driggs has both Conditional Use Permit and variance processes on their books. (Driggs Code 9-2B and 9-2C respectively.) Both of these city ordinances reflect the post-Burns state statutes. (I.C. §§ 67-6512 and 67-6516, respectively.) However, the City is choosing to forgo the notice, hearing, and evaluation criteria enumerated in all of these city ordinances and state statutes to instead invoke the use exemption provision in the City PUD ordinance authority to, in essence, ignore the height restrictions of the zoning code. The City’s PUD ordinances have no express provisions directed to varying form the maximum height limitations of the zoning code.
The Driggs PUD ordinance has remained unchanged since 2005. After the adoption of HB 691, no action was taken by the city to amend the PUD ordinance to effectuate the requirements of the amended I.C. § 67-6512 or to adopt any other form of a local ordinance that would create another process for granting height exemptions in compliance with this new statute. Furthermore, there is absolutely no language in the Driggs PUD ordinance “to implement subsection (d)” of I.C. § 67-6512, which reads as follows:
(d) Upon the granting of a special use permit, conditions may be attached to a special use permit including, but not limited to, those:
(1) Minimizing adverse impact on other development;
(2) Controlling the sequence and timing of development;
(3) Controlling the duration of development;
(4) Assuring that development is maintained properly;
(5) Designating the exact location and nature of development;
(6) Requiring the provision for on-site or off-site public facilities or services;
(7) Requiring more restrictive standards than those generally required in an ordinance;
(8) Requiring mitigation of effects of the proposed development upon service delivery by any political subdivision, including school districts, providing services within the planning jurisdiction. I.C. § 76-6512(d).
To the contrary, the language of subsection (d) has been, and continues to be found only in the City’s Conditional Use Permit ordinance (9-2B-5) which has remained un-changed since 2010. Thus, after the Burns decision, and after HB 691, the only means by which a height of 52ft is to be presently granted in the MUR or the MUR-1 zone by the City (or any Driggs zone for the matter) is either via the CUP or variance process. Neither of the authorized procedures was followed here.
REASON #5: The use exemption provisions in the City’s PUD ordinance do not grant authority for any form of a height exemption.
The Driggs PUD ordinance is entirely silent on height, and the use exemption provisions in this section are entirely focused on just that – uses. The use exemption provision clearly stares that it is limited to authorizing “specific uses not normally permitted by the use regulations of the district in which the development is located.” (Driggs Code 10-6A-4) Building height is not a use. (In fact, there are absolutely no specific uses permitted in the land use chart for MUR-1, or statutorily permitted anywhere else in the city’s code, for that matter.) The City simply cannot proceed down the path of approving this height exemption via the use exemption provisions within the PUD ordinance.
REASON #6: The City cannot maintain the Huntsman Springs PUD as it’s own unique zone where there are no affixed zoning standards or clear criteria for establishing those standards.
The city staff’s position that all zoning standards in MUR-1 are set by the Huntsman Framework Plan and PUD ordinance makes no sense and is not justified by the prior Huntsman Springs record. The only defensible construction of the MUR-1 zone is that it includes all of the MUR standards except those that the City has legislatively amended through its legislative processes. So construed, all of the MUR conditions apply, as the City has never adopted any legislative amendments to the MUR-1 district. So construed, the MUR-1 sub-district and the PUD ordinance would be constitutional in these respects.
On the flip side, if the zoning classification is construed to have no standards and to be subject to individual case-by-case legislative determination — which your emails indicate is the City’s latest position — then the PUD ordinance is unconstitutionally vague. As such, all zoning standards for the MUR-1 zone will have been tucked into an unconstitutionally vague Framework Plan and PUD ordinance that that lack uniformity and any sufficient criteria or standards whatsoever.
Ordinances need to be driven by development standards in the base zoning district or on standards within the PUD ordinance itself. To simply stay that the MUR-1 zone is governed by the Framework Plan and PUD ordinance, where there are absolutely no clear standards or criteria of any kind leaves no predictable means for guidance and control of the decision making process. It leaves total, unbridled discretion to the decision makers. Under the city staff’s logic, this MUR-1 “zone” has been used to allow for any uses of any size or intensity with no restrictions whatsoever – anywhere within Huntsman Springs PUD.
There are very clear zoning requirements in the MUR zone. But yet, within this zone allegedly exists the MUR-1 sub-district where the land use chart and development standards are left completely blank and all details are deferred to the Framework Plan and PUD ordinance where there are also no zoning requirements or clear criteria for establishing requirements. To have a completely open-ended “anything goes” zone tucked within a zone that has clear standards and criteria violates the uniformity requirement of zoning. The MUR-1 zone, the Driggs PUD Ordinance, and the Framework Plan are all unconstitutionally vague, leaving too much discretion to the decision makers with no standards or criteria to guide them.
For the reasons stated above, it VARD’s position that the 62ft height and use approvals for resort hotel and shopping plaza have been impermissibly granted via an illegal process and the land is still within the county’s jurisdiction.
We request the City to follow its own procedures and properly review, process, and annex this resort hotel application according to state and city statute. There is much to be gained for the applicant, the city, and for the community by doing the process correctly this time. For example, Teton Land LLC’s development entitlements will finally be properly secured and no longer be in legal limbo. Likewise, the City Council can take a closer look at the broad commercial uses and square footages purportedly granted to Teton Land LLC at the Sept 16th hearing. The Council will also have more time to study the development proposal’s impact and need for employee housing. Most importantly, with a second bite at the apple, the City Council can next time require effective (and legally enforceable) mitigations from the applicant.
At this point, I also feel that the round-about nature of our correspondence between me, you, and city staff could best be curtailed by having an in-person meeting where all of us sit down together discuss these procedural issues as a group. I am available to meet at your earliest convenience, and look forward to your response.
Anna Trentadue, ISB 7519
Program Director / Staff Attorney
Valley Advocates for Responsible Development
CC/: Driggs Mayor Hyrum Johnson
Council Chairman Greer Jones
Council Member Wade Kauffman
Council Member August Christensen
Planner Ashley Koehler
Economic Development Director Doug Self
Teton County Prosecutor Kathy Spitzer
 The September 11, 2014 City Staff Report is included as Attachment A.
 The Driggs Zoning map is included as Attachment B.
 “Therefore, a city has jurisdictional authority to make zoning decisions including subdivision plat approvals, but only when the subdivision lies within the city limits.” Blaha v. Eagle City Council (“Blaha I”), 134 Idaho 768, 770, 9 P.3d 1234, 1236 (2000) (see also, Blaha v. Bd. of Ada Cnty Comm’rs (“Blaha II”), 134 Idaho 770, 9 P.3d 1236 (2000), see also, Allen, Gary, The Idaho Land use Handbook, page 67.
 Hendricks v. City of Nampa, 93 Idaho 95, 98, 456 P.2d 262, 265 (1969).
 Hendricks, 93 Idaho at 98, 456 P.2d at 265.
 I.C. § 50-901(A) permits ordinances to be published in a summary form.
 Alternatively, the staff report proposed deferring the height consideration “to the subdivision review.” No authority is cited for this procedure and it would seem unfair to the applicant and the public.
 Statement of purpose for RS21549.
 Looking through the entire Huntsman Springs public record of City Council minutes, Driggs Planning & Zoning Commission minutes, earlier staff reports, the development agreement, and all of the Huntsman Springs plats, there are no specific uses, heights, or zoning standards specified for the MUR-1 sub-district or for the Huntsman Springs PUD in general.
 We could find no opinions addressing challenges to PUD ordinances that had no specific standards whatsoever, such as the Driggs’ ordinance. However, there is an abundance of developed law invalidating PUD ordinances with significantly more “meat” and detail than the city’s regulations.