Sep 18, 2022
This is a companion piece to the article Hayden Needs "Definite and Certain" Zoning Laws.
In that article we pointed out how confusing and contradictory the City's "Mixed Residential" zoning code is, and made suggestions for changes to the code's lot size minimums that would bring it into alignment with the City's claimed density limit of eight dwellings per acre. We also mentioned that Hayden's city Attorney had weighed in on the matter and had written a four page brief to clarify the city's position on the matter.
In this article the City Attorney's memorandum is published in full.
It is futile to criticize legal reasoning in the abstract. In order to understand the logic with which Hayden's attorneys defend their revisions to the Zoning Regulations, one has to actually read their legal opinion.
We would like people who are so inclined to read the brief and judge for themselves whether the City Attorney's explanation is convincing. Only by seeing the quality of the city attorney's legal reasoning, can people judge for themselves whether their arguments are convincing, or whether Hayden's current legal team is truly representing the best interests of the residents of Hayden.
Background for understanding the Memorrandum
Legal briefs can be difficult to understand, especially when they are intended to obfuscate and divert attention. In order to help those who are unfamiliar with legal writings understand what they are reading, we have annotated the Attorney's memo with clarifying comments and indicated which statements are most relevant. Our notes are in Red.
The article referred to above provides a good understanding of the fundamental conflict between the city's density claims and the MR zoning code, and the article Promised MR Density Limits are Unenforceable was the basis of the citizen complaint. We have also provided a link to the complete text of the Title 11-2-3 zoning definition, so you can see how the problematic "general note" on which the city bases its claim is presented in context.
It is the contention of the citizen critic that the "general note" in question refers only to assumptions made by planners; is not a statute; is not enforceable; and is directly contradicted by the site requirements table listed above it. The city's lawyer reasons that a person of "ordinary intelligence" would not understand these distinctions, and would be bamboozled into ignoring the obvious contradictions.
Who is right? You be the judge.
If this memo strikes you as badly reasoned, bear in mind, that it was never intended to be presented in a court of law, or to be subject to any critical review. Its sole purpose was to provide cover for P & Z commissioners and other city officials who are already on board with the plan to densify Hayden, intend to vote in favor of the rezone.
The City's Attorney's memorandum is not a serious piece of legal reasoning. It is merely a stonewalling tactic, meant to obfuscate, delay, and provide plausible deniablity, but its central thesis is of great interest. Hayden's City Attorneys believe that average citizens—and all such "persons of ordinary intelligence"—are numbskulls that they can continue to deceive, mislead, and ignore indefinitely.
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