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April 20th court hearing on moratorium injunction request

This report from the Friday, April 20th court hearing on the preliminary injunction request on the moratorium made by plaintiffs represented by Roy and Sean Moulton is not intended to be comprehensive but rather we will outline the main issues brought up and summarize how each side spoke to the issue.

The hearing was presided over by District Judge Jon Shindurling who stated clearly at the beginning of the hearing that its purpose was to address solely the issues of the injunction request and not substantive issues (i.e the reasons for and against the actual moratorium).

Roy Moulton presented the case for the injunction first. Stephanie Bonney, the county's attorney responded and then the floor went back to Roy Moulton for a brief rebuttal.

Procedural question: Proper Notice of Meeting
Roy Moulton began his argument by focusing on the procedural questions.  He said that regardless of whether someone experienced harm, the correct procedure has to be followed for an ordinance or statute to be legal.

Roy Moulton asserted that the purpose of the law in requiring proper notice of meetings is to ensure that the people have an opportunity to be heard. He argued that when the commissioners amended the resolution at the end of the public hearing and excluded conditional use permits (CUPs) from final resolution, they made a material change and therefore should have opened up public comment again.  He said, the fact that they did not violated this requirement of the law.

Stephanie Bonney in her response said that the Board met the requirements of the law in allowing public comment on all of the material in the resolution.  She said the that one of the items up for discussion and inclusion under the moratorium was conditional use permits (CUPs) and therefore the public knew that was on the table and had chance to comment at the public hearing.  In their deliberations the commissioners chose to exclude the CUPs, effectively making the moratorium less restrictive. During the public comment period, not one comment addressed CUPs and no one has claimed since the moratorium that not including CUPs has hurt them.

Procedural question: Open Meeting Law
Roy Moulton read from a transcript by Barbara Boyle of the advocacy group Teton Valley Alliance (TVA) that reported that the March 26th Monday commissioner meeting began with an executive session to discuss indigent issues.  The first item on the agenda after the executive session, at 9:15am, was the emergency proceedings.  Chair Larry Young began by saying that it was his duty to ensure an orderly process and stated that the Board had discussed and agreed on the procedure for setting a hearing.  He continued that having discussed procedural matters only, the Board had decided that if they chose to move forward with the resolution they would hold a hearing at 6:30pm at the high school

Moulton argued that in this case the setting of the time and place of a hearing was not merely administrative and ministerial (which is allowed to be discussed outside a public hearing) but was rather substantive and therefore violated open meeting law.  Therefore the failure to comply makes the decision null and void.  

Moulton also read from an email from Commissioner Stevenson to Nolan Boyle, Executive Director of the TVA, the night before the meeting indicating when the hearing would be held.  He asserted that this indicated that the commissioners had this discussion.  

Addressing the question of whether open meeting laws were adhered to Stephanie Bonney pointed out that the law allows for administrative and ministerial decisions to be made outside of a public meeting.  Before the public portion of the March 26th Board meeting, the Board made a purely administrative decision as to when and where to hold the hearing.  Judge Shindurling interjected to say that the fact that the decision was made for a hearing beforehand suggests to him some collusion.  Bonney replied that there was no evidence of collusion and that if deciding logistics such as the time and place for a hearing was not administrative then she did not know what was.

120 day requirement for processing applications
Roy Moulton also raised the fact that commissioners rescinded the 120 day requirement for the county to process a development application.  Moulton argued that lifting the120 day requirement violates Idaho law which requires a set time limit for making a decision on applications.

Stephanie Bonney replied that a moratorium suspends regular rules and the Board considered that the 120 day time limit could likewise be temporarily suspended temporarily.  However, she said that since Idaho statute does require a fixed time for processing applications, if the commissioners were incorrect in rescinding the 120 days, then there is a severability clause in the moratorium resolution which allows the court to remove that aspect of the resolution and leave the moratorium in place

Other points made by Attorney Stephanie Bonney
Stephanie Bonney argued that the plaintiffs' argument for being entitled to injunctive relief is weak because they merely speculate that land values will change and therefore hurt them.  She said that the plaintiff's request seems to indicate that they feel they have a right to a certain density.  In addition, although they assert they have been injured but not a single buyer or contract is named.  

The judge agreed that merely stating land values would go down did not go far enough in proving irreparable harm.  He stated that the commissioners have the power to make all kinds of decisions that people could perceive to affect their land values. Many decisions hurt some people and help others – “that's society” he said.

Stephanie Bonney commented that the plaintiff does not question the accuracy of the findings, but even if the plaintiffs, or even the court disagrees with whether or not there was an emergency, the legal standard is deference to Board findings as long as substantiated by evidence.  She added that the legal standard for evidence is even less than a “preponderance of the evidence.”  

The judge commented that he had a hard time seeing the health, safety and welfare element of the emergency and wondered whether the issues could have been addressed in another form.  He and Stephanie Bonney went back and forth on what constituted imminent peril to health, safety or welfare.

Some notes on "health, safety and welfare"
VARD believes that the county is on very firm ground in terms of the need for an emergency moratorium, especially when you examine how Idaho statute defines health, safety, and general welfare. According to Idaho Statute Title 67, Chapter 65 the purpose of local land use planning is “to promote the health, safety and general welfare of the people of the state of Idaho as follows: …
(b) To ensure that adequate public facilities and services are provided to the people at reasonable cost…
(d) To ensure that the important environmental features of the state and localities are protected…
(h) To ensure that the development on land is commensurate with the physical characteristics of the land…
(j) To protect fish, wildlife, and recreation resources.
(k) To avoid undue water and air pollution.
(l) To allow school districts to participate in the community planning and development process so as to address public school needs and impacts on an ongoing basis.”

Reading this statement it is plain to see that Teton County government has multiple issues where it is falling short of promoting the health, safety and general welfare of the people of the county. These are very real crises that need to be addressed and the moratorium allows them the time and resources to properly address them.  

At the close of the hearing Judge Shindurling said that he would take 7-10 days to consider the matter of the preliminary injunction only and deliver a written opinion.

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