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1982 07-28 .; ,4. ~ ~ • ' ~~~~; ,~~ ~~a STATIE OF 9!?AFiO a FFlae of THE A'roRVUV c,eNERn~ DAVID H. LEROY AT`ORNEY GENERAL BOISE 8720 A`T'^'ORNEY GENERr'1L OPINION N0. 82-6 TO: uTOSeDh L. Glc:_SY^- Mayor, C'ty o_* '~:c~-idiaa 723 bier_dian Street Meridia.r., ID 336x2 Per Request for Attorney General's Opinion QJESTIOVS PRESF*,""~'~: TELEPHON[ (20 tl) 33t-2nC0 '. Does Ic".aho Code § 67-65'!9 require two hearings at both the ulanning and zoning commission and city council leveT_s where a material c_;ange has been made in the comprehensiti~e plan? 2. What constitu.tcz~ a "material change"? 3. '?^es Jdaho Code § 67-6525 *equire the city counc_1 to receive ;-econ~^T.enczaions from the, planning and zoni ;g commission as r_o necessary changes in the comprehensive plan and zoning ordinance t'_';at arise a<, a result of annexation? 4. Wh<•+- pracei'ures nn c;t be -`o"_owed in amending the comprehensive p.an as a result of annexation? 5. If the c'^,anges in the comprehensive plan are "material changes" must the procedure beg~r. anew at the planningr and ; on: r.a commission levei or clay the planning and zoning commission be bypassed. since they have already made their recommended changes in tt•_e comp.rehensiv~~• _~'~an and zoning ordinances as a result of the annexation? 6. If the necessary changes in the com~~xehensive plan that ari se from 'she arrexatio_^. are "material ch.anres" must ___ the planning-a.nd zoning commission hold two public hearings ATTORNEY G.5'NFn~k;, n-~T;~-n\ =a.ae 2 prior to makinc the recuired reco~tim-andatiens for the change in the compre'~ensive p'~an and zoning o:cdinance? CONCL?'SIO:QS 1. An ac?,d_~!oral hearina at the planning and zoning C OmSR1S51on ieVel i5 only IleCeSSary __f a "matE'rlal Ci7 aItge" 1S made _n the plan. Absent a change, no addi-ional hearing is necessary. `Cho same is true fo_r the city council. 2. A "material chance" .~s contemplated by Idaho Code § 67-6509 (b) pertains to a c'aanae ir, the substance o~ the' comprehensive plan rather e:^a.n m:u~or cha.^.ges made to coI rect typogr_z.phical errors, lege.l descri~o~ion.s, or the like. 3. The cour_cil must receive recommendations from the planning and zoning commmissior. prior o a^nexation. 4. The comprehensive plan -•houlc be amended. in the manner provided for in Idaho Coc.-^_ C7-5509. 5. As long as the procedural requirements have been followed throughout, __ is not necessary *_o begin the process anew. 6. In our opi-'_on, additional hearings are only required w:nen "materia~ changes" are mace in the matier after it was presented at a publ_c hearing. ANALYSIS: Question 1. Must two hearings be held at each 1evc~l? Idaho Code S 67-6509 (a? states in part that: Fo1'_owina the comm:_ssio^ henr~_na, if tho commission maces a material cha aye ir: t::e olan, further notice and hearing shall be provided before the commission ie-:,ards the plan ~r;ith i~~ recommendation to the governing board. Clearly, an additio.n<,? hearing at the commission level is only necessary if a .,:aterial change is made in the elan. Absen-'c a change, no aadi±ional hearing _.., necessary. Idaho Code § 57-6509(b) provides in part ha+..: _ _ .~ -e.~e. 3 5ollowina t_:e hearing of *_he governing board, if the governing board makes a material charge .. _;^,e p1a_^., further notice ._._ - t,~,ar_na sha11 be provided before the governing board adopts the o__e.n. Again, ar. add.:'.~ion~?_ hearing at the governinU board level is only required '_,`_ a material c_h_anae i s made in the plan as _~_ presented at t.:lo i'learl_1r?, $aIlc a. CnariQe, n0 add?trOrial hearing is necessary. Ta':irq it one ssteo further; sup,.,.^nse the governing board does make a material c'r.a.ng.:: is ar, additional hearing also necessary before the plannir~.g and. zoning commission? We believe not. 'he -i:•,b'_i^. hearing requirement is obviously in place to ensure oublic participation. On•;- repeat hearing at either level satisfies t,at requires-::_;-t. e'~dditior.a__ly, the statu±e is drafted in such a manner as to segregate the hearing requirements at each level. "_ the governing board makes the c'^:anae, __ ^;us*_ conduc'_ ar_ additional ..~ zinc but need rot eturn the plan to the plann~ng and•zonine commis s~ cn . Question 2. 41hat is t,,e deg inition of a mater~.a'_ change a.~ used in ~daho Code ~ 67-55Gi:.(b;? The ~,•crd "'materia"' when used as an adjective is defined ae; important; relating to the substance rather than t^.e form; noing t.o the :-~orit and essence. Ballantyne's Law Dictionary 7£ '_ ?3d ed. 1959? The term "mater=_a..l a'_t•^r<.tior~."' which is synonymous with "material change°' is defi_rec~ as "A c"~anae in the terms of a written instrument which gives a legal effect different from that wn1Ch 1t rJr' glnally ,^.ad. " '_allc ntyne' s , SUDra. In essence then, a material change is one which caould change t=ze substa;^ce of a comprehensive plan; and therefore change the effect that it might have. Cha.:ges which amount to nothing more Lhar. corrections of typographica'_ errors or gram4•.a_ical errors ape. so forth probab'.y do not rise t^ the _evei of material change. See a1s=o ~~~anger v. 7r=h, 256 N.Y.S.2c. 227, 45 .Mice. 93 ('_965); ''.oys ~ icn~, 265 2. 2d °_90, (Okla. 1954); S`rassf~r v. Bess, '65 :\ob. '?78 3?*,..':.2d ATTe~NEy c~~~r~~,?l~ o_' ..~;,_o a,-F, , Question 3. Does Idaho Code ;~ 67-6525 require the gover, poarc;. to receive recor'm.endations from the planning and zor.ina cr^+:!rission a.s a r~ _._t oY an annexation? Idaho Code ~ 57-6525 states that-: Prier to annexation of a.n unincorporated arer:_, a city council s^.a" request and receive a recommends*_io.^. from the p1a°~.ni_na and zoning comrr.ission, or the p'_c.:nninq commission and the onina commission, o,^: 'she proposed plan: and Z Onlr:a Ord'nr?.nC°_ CL?aiiC_~~c {Or thE`. uP.1 nCOrbO rat eC: area. The word "s^.all" when uses' _n a stat+~te is mandatory. Goff v. H.J.3. Co., 95 Ir~.aho 337, X21 P.7.d. 661 (1974;. It must ~e concluded therefore that by using _lirectory lana~.:age the legislature intended 'o ceu_re city councils to request and receive recommendat o:s _ro_n. plannir.a and zo_^.' ^:a commissions prior to annexation of an incorporated area. Once the council has received those r~acommendatio*_a it may go ahead and a^.r.ex the property <.nd *rake the necessary changes to the co. ~bm :ensive plan and zoning ord9_nances as required by the Local Planninc Ac±. Questio-,_ 4. What procedures should be follo~.~ed in enact~_,g changes in the comr_rer.ensive _lan as a result of t'~e annexation? ~dahe Code ~ 67-5525 further states that "Each commission and the city counci=_ sh<~.11 fol'~ow the notice and hearing procedures urovido?. in § 67-6509, Idaho Code" when discussing annexation. _ must be reasone3 that the procedures to be followed in t^.akinq changes to the COmprehE'.ns iVE?. Plan re SUlt:_;. ~ frOIC_ an anneX<!'_:iOP. are t'rre Same procedure that shou'_d be used when ma~inq any changes to the plan. Those proce< ,;res are eutl___~ed .in Idaho Code § 57-6509. Question 5. T_f_ the change:; as a result of the annex-+ticn ~ ~~ ma~~arial c : nqe,,, must the entire compret ::nsive plan ar~end~ng ;:+rocr~ss begin anew? Although the auestio^ is complicated, *_he answer is relatively simple. A^-,suzr.ing that the correct procedure, have been followed from.-the be~r.inr.i;^.c, that is, that when the council anticipated annexation of an unincorpors.%.ed ---area, it asJeed and received recommendations from the ,~,, planning .and zoning commission as to c'nanges in zoning • o~,,,. - ordinances and the comprehensive plan and further that in formui~,tir~c those r.ecos~mendations the ?Manning and zcning commiss~on~%~.~>,ld the requisite hearings, it can only be concluded that the council and the planning and zoning commission have met al' of the statutory recuireme*r,ts of the Local Planning Act. 3ecause the pr.ooosed change is a material cham:e l,actually any sabstaz:tive chance in the comprehensive plan would be a mater_al change), it does not invoke an.y special procedures dit=eren+_ from those th_ are normally used when cons7-derma, a change to the plan. If the plann=.ng and < .^ing ^i ,..:__on has consic,__red the annexation and, recommended changes to the --_an ar.d tie requisite uublic heari^g_^:as been held, there ._. ,., reed to start over again. Those recomme.^c:ations are ,~ ~~.~asdec. _ t'~e city ccunc~__ which concurrs~;'~iy or immed'_°cely afte_- adoption of the annexation crc:iaance ._ _ ~:nts the changes +_o the comprehensive plan. T_-:_is, of course, assumes that the council has also :^eld the r_eauisite ~a ~i~_'_'_c hearing recardina the material changes to be :Wade to the plan. T'^.e 1ang~_~.aee of ~ 57-6509 tha*_ pertains to additional hearincs if materi-a_ changes are made, s?e-:cs to changes made by th.,~ ~lannirg and zcning commission or the ci+_y cour_ci1 as ~_. result of informa±ion received at a public hearing. T^ese chances are. changes made in the recoruner_datioas received from a planning and zoning commission. If no chances are made :_r_ those recommerdatic^.s, ^.o m.ate~ i-__:_ changes have been mad-e as a result of the public ^.ee.rinc and the::-'fore additional heari;,_ are unnecessary. In summary, as to c_ as the plc-..z__ng and zoning commission and the city counciJ_ hsve he_e. the required hearings in +.he_nit.al process, there a ao need to be,~~n the process anew. - Question 5. If the chances ir. thr--~ coy:*±orehensive plan as a resu'~t of °he annexation are ma+er.a1_ mangos, must the planning and zonira commission hol..d two hearings? Again, we refer to the '_.ar.guage of Idaho Code § 67-65C~~ (a) . It indicatr-,~s that: The planning and coning conunission, prior to recom..nerding the pl,~:i, amer~~dment or repeal of the plan to the govern_ng, board, sha7_'_ cc;_duct at least one (1) nubli_e :nearing Follow_ ng the commission hccrring, if the commission. makes a. material chance in __ -~--.. the plan £t•.rther not._ce .w~.d hearing • ?'~,-E shat- be ^rov;.ded. before-: the commission Forwards t'^.e o].an with =-ts recortmendat:_o:~_ to 'ire governing board. ?emphasis added? <.bviously, if no material changes are made, ro further hea.rir.c is necessary. ~r7e must asp>urie that any reco:7~m~:r~led change in t'.^.e plan is a material charge. That, after a11, _s the purpose of the ini`_ia1 public hearing--tc allow public comment or any char,ae:- i n the ~: lan. Idaho Code § 67-6509 ,a) is argua'oly susceptible to two constructions. The first ~_s that a second hearing is reeuired even thouch the mat:eriai change is precisely the subiect matter of .the notice fe.r, and discussion at, the initial meetir.a_. The second and better construction follows. If, r„fter t_:e hearing, the commis~-=.on decides to make changes which were not addressed ire. ._".e notice material of the hearing and they amount to a "r;'.aterial ci•anc_e," then the commission must ho'-d an add=tior.al hearing to cive the ~ubla.c a^. o_oportu_r,ity to ce~^ment upon the new :naterir_. That is the only reason to Nave a second 'gearing. The initial proposals for charges in the comprehensive plan obviously have bee^ discussed at the public hearin.c. If no chances have bee!. mace s_n. _hose proposals, and those proposals are recommended to the rover.^.ing board; there is ~o need to gave a.r. u~.dit9_ena.l ~ubl_c '.:tearing. Therefore, it _s eur opin__-^__ __`_e.t =ne o^~_v ~~_me ±hat an additiona_ pudic hearing iS ne _'CSSary dt t'_^e 'J. anninc a^'..'' ZOn~ng COT_P~.'sSlOn level 1S 1f t.^_e D1aP.'1wnG an;~ '.On':n g C:Jmm15s10.^: ^1d:{es a material c^.ance~n t'^.e proposals pr-_•sented at the first Allb1iC hr r i .":q. T f n0 m.at2r 1a1 C ~?, ;4 S are maCle, n0 aC-~1.t'Ona~ .~:_,/ ..*`. C'..S ..C-`SSarV "r_'Ca r(.`.~e. ~'S Cf file nature Cf the original .. '-'oposal. The same ho.'_ds true for the city c:_~.nci'_. Although the annexation may amo unt to a materia l c`a.anc~e in the cempreher,.siveplan, the subject of the opportunity to comm so long '_n itia_ ent arid. as thosa material changes were hearing, t'_ze public had ar. ne changes were made in the proposals after t:,=_, ~irsi: ,.ing, a second.. hearing _., not necessary. The pr inci_p_e of ..._ ,!aa*ery cones'. *-•.rcticv; commonly knowr. as t`, ru'_e of reasonable ,n ^rc.retz.tion favors r. ra'~ional cad sensible resu'_'~. ~ _.'_Y?~ ~ ~ar-d , ,±_. + ^rv Cor.struc'~ i on ~ ~_5-12. The second interprets.° o'_ rE ~. the *!;re se^.sible resu'_t and shou'_d arevai'_. As te:~re =ire no Idaho Cases On POirit; t.~:15 C',;'. ^_Sti:J^. Of CCnStrUCtlCn, ~';OlJ2ver, Can -only be es3lved w_th absolute certainty by a juc':.ci.a_ _ue±erm-cacti on. ATTOR'~?`_'1' GE\Td''_?t"\`.. OFI~I".'~' a. 7° A~?T??OF.ITI~S CO'~ISSDER~D: 1. Case Law Goff v. H.J.u. Co., 95 Idaho 837, 421 P.2d 661 (1974) Strasser v. Ress, ib5 '<eb. 858, 87 N.W.2.d 619 (1954) Wanaer v. 7e''~, 255 N.Y.S.2d 227, ~i~ Misc. 93 rlyr;5) Boys .~. Lofa, ?~O ".2d 890 (C.tl. '_954' 2. Statutes Ida'no Code § 67-6509, e*. seq. Idaho Code § 67-6525 3. Other Bailantyne's Law Dicti_onarv 78' {3d ed. '_969) Sutherland, Statuterv Constr~;:ction § 45.12 - ~~~~ Dated this ~~ day of July, 1942. ATTORNEY. GE"'?Rl..~ Statof <.daho ~, ~~ a _~~a~4 ---L-- Daviu .~~ro ---- - SIS'BY: ) Deputy At.~uorney General Chief, Local Gove_-nment Divis RGR/t_ cc: Idaho Supreme Court Idaho Supreme Court maw Lbran~,- Idaho State Libra;~y X98 r, i ~ R ,. OP.DINANCE N0. ~T/(/ AN ORDIA]ANCE SETTING FORTH THE TOTAL AMOUNT OF PiONEY NECESSPr" TO BE RAISEp FROM TA:U/S ASSESSED ON THE TAXABLE PROPERTY WITHIN THE CITY OF PUERIDIAN FOR THE YEAR BEGINNING OCTOBER 1, 1932, AND ENDING SEPTEP4BER 30, 1933. BE IT ORDAINED BY THE D4AYOP. ArTD CITY COUNCIL OF THE CITY OF P~TERIDIAN, ADA COUNTY, IDAHO: Section 1. That there is hereby assessed upon all the taxable property within the limits of the City of reridian, Ada. County, Idaho, for all purposes for the year October 1, 1982, to September 30, 1983, the following amount: PWO HUNDRED NiNETY••SI THOUSAPJD, SEVEN HUNDRED TWELVE and NO/100 DOLI~nFS 0296,712,00), ,. •, , c General Fund---------,, ~. -~, 712 , M Section 2. WHEREAS, there is an emergency therefor, which emergency is declared to exist, this Ordinance shall take effect and be in force from and after its passage, approval, and publica- tion by law. PASSED by the City Council and approved by the ~Sa~~or of the City of Meridian, Ada County, Idaho this 7th day of September, 1982. ATTEST: pc: N.inutes Ada County Auditor/Recorder Secretan1 of State _ Sterling codifiers P.IC " State Tax Con¢nission Ada County Tax Collector APPROVED: 29~ ORDINANCE N0. 408 AN ORDINANCE ANNEXQQG AAID 2~1ING CEIZPAIN REAL PROPER'PY WHICH IS DF,S(,'R"CBED AS BEING SITUATE IN THE SOLIPH HALF OF THE NW QUARTER OF SECTION 8, TOWNSHIP 3 NORTH, RANC,E 1 EAST, B.M., ADA COUN'T'Y, IDAHO, ~ THE CITY OF MERIDIAN WHICH PImPERTY IS ADJACENT AND CONTIGWUS ID THE CITY OF MERIDIAN, ADA COUNTY, IDAHO. WHEREAS, the City Council and the Mayor of the City of Meridian have concluded that it is in the best interest of said City to annex to the said City real property which is described as follows: A tract of land located in the South half of the Northwest Quarter of Section 8, Township 3 North, Range 1 Fast, B.M., Ada County,"Ida`Yto,;more particularly described as follows: _ - Commencing at the brass cap marking the Southwest corner of sai3"NOrrhwe'st Quarter of said Section 8, which is the Real Point of Beginning;-`thence=~ North 0°41'00" West 606.29 feet along the Westerly boundary of said Northwest Quarter; thence North 89°19'00" East 182.73 feet to an iron:-pin in the oentexline of an irrigation lateral; thence South 60°04'03".~Eas£ 286.12 feet along the centerline of said irrigation lateral to an-iron pin; thence South 0°41'00" East 457.90 feet to an iron pin on the South boundary of said Northwest Quarter; thence South 88°57'50" West 429.00 feet along Said South boundary of said Northwest Quarter to the Real Point of Beginning, NOW, THEREFORE, BE IT ORDAINID BY THE MAYOR AND CITY COUNCIL OF THE CITY OF THE CITY OF MERIDIAN, ADA COUNTY, IDAHO: Section 1. That the aforanentioned real property, which is described as follows: A tract of land located in the South half of the Northwest Quarter of Section 8, Township 3 North, Range 1 East, B.M., Ada County, Idaho, more particularly described as follows: Commencing at the brass cap marking the Southwest corner of said Northwest Quarter of said Section 8, which is the Real Point of Beginning; thence North 0°41'00" west 606.29 feet along the Westerly boundary of said Northwest Quarter; thence North $9°19'00" East 182.73 feet to an iron pin in the centerline of an irrigation lateral; thence South 60°04'03" East 286.12 feet along the centerline of said irrigation lateral to an iron pin; thence South 0°41'00" East 457.90 feet to an iron pin on the South boundary of said Northwest Quarter; thence South 88°57'50" West 429.00 feet along said South boundary of said Northwest Quarter to the Real Point of Beginning. Section 2. That the City Clerk shall cause one (1) Dopy of the legal description and map which shall plainly and clearly designate the boundaries as altered, to be filed with the Ada County Recorder, Ada County Assessor, and the State Tax Commission within 10 days following the effective date of this ordinance. Section 3. The above described property to be known as the T.TJCUST GE'OVE- EAST PII~ ANNEXATION and to be zoned "D" Industrial is annexed to the City of Meridian subject to the requirement that all Ordinances of the City of Meridian be complied with by Petitioner for annexation. Section 4. This Ordinance shall be in full force and effect from and after its passage, approval and publication as required by law. 94 PASSID by the City Council and approved by the Mayor of the City of Meridian, Ada County, Idaho, this 19th day of July 1982. - ..~ ATl'FST: -_ ~ . Ci Clerk, La L remann pc: Recorder 7.26.82 Ada County Assessor 7.26.82 State Tax Commissioner 7.26.82 Ala County Crnmissioners Ada County Highway District Ada County Tax Collector Ada County Zoning Director Ada Planning Association Association of Idaho Cities Central District Health Idaho Power Co. Idaho Survey & Rating Bureau, Inc. Intermountain Gas Co. Mountain Bell Nampa-Meridian Irrigation State Electrical Board State highway Dept. State Plimibing Board Sterling Codifiers Ada County Bldg, Dept. Director Union Pacific Corp. U.S. Dept. of Com~~rce U.S. Post Office, M:sidian, Idaho J-U-B Engineers, Inc. City Minutes File Applicant HUB OF TREASURE VALLEI' • A Good Place to Ldve I CITY OF MERIDIAN LAWANAL. NIEMAN NLCity Clerk A. M. KIEBERT, Treasurer RICHARD D. NICHOLS, Chlel of Pollca 728 Meridian $trBet BRUCE D. BTDART, Water WOrks Supt. MERIDIAN IDAHO JOHN 0. FITZGERALD, Attorney 33842 ROGER WELKER, Fira Chiel EARL WARD, Waste Water Supl. Phoge 8H6-0433 JOSEPH L. GLAISYER Maroc July 28, 1982 Re: Correction of Ordinance Ntunber Previously Mailed to You as Ordinance No. 407: First Church of Christ Annexation COUNCILMEN GRANT P. KINGSFORD BILL BREWER RICHARD F. ORTON, JR. RONALD R. TOLSMA ANNETTE C. HINRICHS Chairman Zoning & Planning AN ORDINANCE ANNE}CING AND ZONING CERTAIN REAL PROPERTY WHICH IS DESCRIBED AS BEING SITUATE IN THE SOUPH HALF OF THE NW QUPSiTER OF SFX`PION 8, TOWNSHIP 3 NORTH, RANGE 1 EAST, B.M., ADA COUNTY, IDAHO, TO THE CITY OF MERIDIAN WHICH PROPERTY IS ADJACENT AND CONTIGUOUS ~ THE CITY OF MERIDIAN, ADA COUNTY, IDAHO. Has been published as Ordinance No. 408. Please change your records accordingly. pc: Ada County Assessor State Tax Calmissioner Prla County Cam~issioners Ada County Highway District Ada County Tax Collector Acla County Zoning Director Ada Planning Association Association of Idaho Cities Central District Health CIM2 Idaho Pacer Co. Idaho Survey & Rating Bureau, Inc. Intermountain Gas Co. Mountain Bell Nampa-Meridian Irrigation State Electrical Board State Highway Dept. State Plumbing Board Sterling Codifiers Ada County Bldg. Dept. Director Union Pacific Corp. U.S. Dept. of Caanerce U.S. Post Office, Meridian, Idaho J-U-B Engineers, Inc. City Minutes File Applicant HLT OE '_'RE~ISURE JALLEY ' - A .Good Place to L.iva ! ~. ~. OFFICIALS ¢/'1~R!~~ 1 ,g/~,4 7S'`~, ~T5 T COUNCILMEN I ~' ~` UWANAL NIEMANN, City Clrrk "mat g ~ "V' ~a~:~.~ GRANT P. 1(INGBFORD - `.A.M.KIEBERT,Treeeurer BILLBREWER Q • RICNARD D. NICNOIS, CNlel of Pollge X28 l~'_O_*.'d!&R ~a*^eCt RICHARD F.ORTON, JR. _ ~ ,' BRUCE D, BTUART,Weler WOrke Supt. MEF.=~.'A'1, IDAI-IC RONALD R. TOLSMA j ` JOHN O. FlT2GERA'_D, HttomeY `33at2 ANNETTE C. HINRICHS ROGER WELKER, F!re Cnlef EARL WARD, WArte Weter Supt PSpne RU^.4433 Cnrtrman ZoningaPirnninq }OSF.PF L. O`.APSYL~R Nuyor' Jtaiy 28, 1982 k M Re: Correction of Orc?is~ance'ltmuer ~ The]ma, As per phone conversation 7-28-82 please find enclosed Ordinance e to be re-reco?-cied as Ordinance Nt~ttber 408. a {d f This is to be re-recorded to correct Ordinance NLUnbes to _408. g It has been published as Orc?i.nance 408. 6 .. i ! i Y. y~ i YY~- \~'~~uI ~T' 1 t s City of Mericlz.an ,a pc: File ~~ t J .. A 'f s k ~r .,~. ~' 1 r r ~_c _