Sep 11, 2022
Laws Must be Written for "Persons of Ordinary Intelligence"
We are going to start with a quote from the City Attorney’s brief that was written in response to our complaints about Unenforceable Density Limits. Even though we disagree about density limits, we think she gets to the heart of several our complaints against Hayden's zoning laws.
. . . The due process guaranteed by the U.S. Constitution requires Hayden’s laws to be "definite and certain in their statement" so that a "person of ordinary intelligence" can understand them . . . .
In other words, in order to be fair and just, laws must be easy to understand and consistently enforced. But according to this standard, several of Hayden's zoning regulations are unconstitutional, including the self-contradictory definition of "Mixed Residential" zoning.
We have already written to the City Council about these contradictions and are not convinced by the city’s arguments that attempt to explain away the fact that the minimum MR lot sizes do not conform to their claimed density limits.
Now even the city attorney has weighed in. But when a city's zoning code is so convoluted that an Attorney needs to write a four page memo to clarify the meaning of three sentences, we think the “person of ordinary intelligence” standard has been violated.
The problem for the city of course, is that the information in the "site standards" table of Title 11-2-3 directly contradicts the three sentences in the "General Notes". No "person of ordinary Intelligence" could possibly be anything but confused by this.
Hayden Needs CLEARLY WRITTEN, Non-contradictory Zoning Laws
We believe that Hayden needs clear, unambiguous, non-contradictory zoning laws and that the zoning code for MR must be revised. And in the meantime it makes no sense to convert 500 parcels from a zoning designation that is well understood to a confused and self-contradictory zoning code.
The inherent problem with vague zoning laws is that they rely on the subjective interpretation of individuals. But why should anyone have to rely on the word of a city official? Why isn't the MR density limit obvious by inspection of the code itself?
When zoning laws are not clear, the arbitrary enforcement of vague laws ALWAYS favors the powerful, because wealthy corporations can afford lawyers to advance their interests. For individual property owners of limited means, Clear and consistently enforced laws are their only safeguard.
Before rezoning ANY parcels to MR, the city should change the MR zoning designation to make it conform to a predictable, enforceable density. This should be easy and straight forward.
Maximum Densities Determined by Minimum Lot Sizes
The following chart summarizes the minimum lot sizes provided in Section 11-2-3, and then derives maximum densities base on those numbers. The densities shown do not take the necessity of road access into consideration, so realistic densities would be 10-20% lower. But even so, MR densities determined by minimum lot size contradicts the cities claim of an eight dwelling per acre limit.
If the city wanted to define a Medium Density zoning code that limited practical densities to 8 dwellings per acre, it could easily do so, just by designating lot sizes that support the goal. To achieve practical densities of ~8 dwellings per acre, theoretical maximums should be 9-10 dwellings per acre.
For example, the minimum lot sizes in the following chart would guarantee densities in line with the desired 8 dwelling per acre maximums. In addition, the lot sizes of townhome structures have been defined so that owner-occupancy of multi-family dwellings can be achieved without a homeowner's associations.
The proposed zoning code outlined above is not only compatible with existing R-MF parcels, it provides more options and additional flexibility for both developers and existing property owners.
This chart only took a few minutes to prepare. It is an obvious, straight forward fix. Why didn't the city do this in the first place? And why doesn't it make the fix now?
Why the Contradiction? It's Intentional.
It's time to answer the burning question. Why do MR minimum lot sizes contradict the stated Density Limits? We know. The City Planner knows. The City Attorney knows. They just don't want to talk about it.
The fact is, the Planners who developed the 2040 Comp Plan never intended to limit MR development to eight dwellings per acre. The density limit is a ruse. And the minimum lot sizes of MR were selected for a specific purpose, and that is to enable the densification of existing single family neighborhoods.
The lot sizes minimums for both duplexes and triplexes were intentionally specified in such a way that they could be built on a single family lot of approximately 8250 sq ft. Once older an older single family neighborhood is designated as MR, developers will be able to buy up older, smaller homes and replace them with duplexes and triplexes. This is the exactly the type of development that "smart growth" advocates promote, and it is already being done in cities throughout the country.
The current MR code, as written, is a Trojan Horse. It is promoted by city officials as a medium density solution that will not significantly change the character of the neighborhoods that are rezoned. The opposite is the case. MR zoning will densify existing neighborhoods everywhere it is imposed.
The fact is, the MR density limit is meaningless for parcels of under an acre. The City Planner knows this. The City Attorney knows this. They know and have always known that the MR density limit is unenforceable.
The MR Density limit is a mere fig leaf and was never meant to be enforced. It is promoted is to hoodwink the public and to provide cover for city officials who are forcing an unpopular rezone that will densify the city and infringe on the rights of Hayden residents.
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Note: Regarding the comments of D. Bos, on this and previous articles. Thank you for your thoughtful response. We take your criticism seriously and will address the issue in a future article.
Debbie Bos says (Sep 14, 2022):
While your group clearly cares about Hayden and wants to help determine future growth in a more organized and less dense plan, I am very concerned about your tone and lengthy rants. You come across as arrogant and condescending! You attack our city's elected officials and accuse them of purposely destroying Hayden! Your ideas may be brilliant (as you represent yourselves as being), but who would want to work with you?! We need your ideas and creativity, and we need them structured in a way that can be accepted and implemented legally. If you want to gain anyone's trust and support, stop being so offensive!