Zoning Ordinances, Maps and Rezones

The plan says where a community wants to go. The zoning ordinance is the law that says what you can build on your lot on Monday morning. Idaho Code 67-6511 requires each governing board to adopt one, by ordinance, after the same notice and hearing steps used for the plan. The districts it creates "shall be in accordance with the policies set forth in the adopted comprehensive plan."

Text, tables and maps

A zoning ordinance has two halves. The text creates districts and sets standards for each: height, stories, lot coverage, yards, density, and the location and use of buildings. Section 67-6511(1)(a) says the standards must be uniform for each kind of building throughout a district, though they can differ between districts. The map shows which district covers each parcel.

The heart of the text is usually a use table. Here is a slice of one from the invented Corvane County code:

Use	A (Agricultural)	R-1 (Rural residential)	C-2 (Commercial)	M-1 (Light industrial)
Farming and ranching	P	P		P
Single-family home	P	P
Farm produce stand	P	C	P
Contractor's yard	C		C	P
Warehouse and distribution			C	P
Gravel extraction	C			C

P means permitted outright, with a building permit and a check against the standards. C means conditional, which requires a hearing and a conditional use permit (the next lesson). A blank means prohibited. To put a prohibited use on a parcel, the owner needs a rezone to a district that allows it, or a text amendment that adds the use to the current district.

Overlay districts sit on top of base zones and add rules for airports, floodplains, historic areas and the like. The current text of 67-6511(1)(b) requires "clear and objective standards" for overlays and requires the board to make sure applying them does not amount to a regulatory taking.

What a rezone requires

A request to change the zoning map goes first to the zoning or planning and zoning commission, under 67-6511(2)(a). The commission must give "particular consideration" to how the change would affect services from other political subdivisions, school districts included. After the hearing process, the commission recommends and the governing board adopts or rejects an ordinance amendment.

Notice for a zoning district boundary change stacks several layers:

• Newspaper. The 67-6509 notice: time, place and summary at least 15 days ahead.
• Mail. Owners or purchasers of record within the land, within 300 feet of its external boundaries, and in any wider area the commission decides may be impacted. City and county lines do not cut the list short.
• Pipelines. Any interstate natural gas or petroleum products pipeline company with a center point within 1,000 feet, if the company has complied with 62-1104.
• Posting. A notice on the property at least one week before the hearing.

When 200 or more owners would get mailed notice, a local ordinance can set an alternative. Without one, the statute deems notice sufficient if the city or county runs a display ad at least 4 inches by 2 columns in the official newspaper at least 15 days ahead and posts all external boundaries of the site. Everyone entitled to specific notice has a right to take part in the hearings.

The plan must come first

Section 67-6511(2)(c) tells the governing board to check every proposed zoning change against the plan. If the request conflicts with the plan, or would cause demonstrable harm to service delivery by schools or other districts, the board can send it back to the commission or consider a plan amendment first. Only after the plan is amended does the rezone move forward. This is why big rezones often arrive as a pair of applications, one to change the plan map and one to change the zoning map, heard the same night.

The same section also protects owners. A denial of a rezone, or approval of a conditional rezone, can trigger a regulatory taking analysis under 67-8003 (covered in lesson 8). And under 67-6511(2)(d), when the board grants an owner's rezone request under a valid plan and ordinance, it cannot reverse that zoning for four years without the current owner's written consent. If it tries, the owner can go to court.

Legislative or quasi-judicial?

The same word, rezone, covers two very different acts. A county that redraws its zoning map for the whole north end is making policy for thousands of people. A county deciding whether the Hadley family's 40 acres can go from agricultural to light industrial is applying policy to one family's land, with identifiable neighbors on the other side.

Idaho courts have drawn that line for decades. Cooper v. Board of County Commissioners of Ada County (1980) treated a site-specific rezone as quasi-judicial, which brings due process: notice, a fair hearing, an unbiased decision maker and a decision based on the record. The court has also said, in Burt v. City of Idaho Falls (1983) as quoted in later cases, that a legislative zoning decision is not subject to direct judicial review.

Then came a gap. In Burns Holdings v. Madison County (2009), an owner asked for a plan amendment and a rezone and was turned down. The Supreme Court found no statute authorizing judicial review of either, because neither was a permit application under LLUPA as written. In 2010 the Legislature amended 67-6521. An "affected person" can now seek review of an ordinance first zoning land upon annexation, an approval or denial of a rezone of specific parcels or sites, and an approval or denial of a conditional rezone under 67-6511A.

Decision	Usual character	Judicial review under 67-6521?
Rezone of one owner's parcel	Quasi-judicial	Yes, since 2010
Conditional rezone with a development agreement	Quasi-judicial	Yes, since 2010
Initial zoning upon annexation	Quasi-judicial in effect	Yes, since 2010
Countywide map update or zoning text rewrite	Legislative	Not listed; no direct review on this path
Plan amendment alone	Legislative	Not listed, per Burns Holdings

Spot zoning

"Spot zoning" is the charge opponents reach for when one parcel gets a zone unlike its neighbors. Idaho courts, in Evans v. Teton County (2003), described two kinds. Type one simply means rezoning a parcel to a use the old zone prohibited; it is valid if the change is in accord with the plan. Type two means singling out a parcel for a use inconsistent with the rest of the district for one owner's benefit; that kind is invalid. In the 2015 Payette County nuclear plant case, the court rejected both claims. The county had amended its plan to designate the land industrial, and the board found nearby uses included a landfill and several confined animal feeding operations, with the nearest home more than three miles away.

Uses that were there first

When zoning changes, existing uses that no longer fit are called nonconforming, or "grandfathered." Idaho Code 67-6538 limits how fast they can be lost. A city or county cannot take away the right to use improvements for their designed purpose based only on nonuse of 10 years or less. After one year of nonuse, the government can ask the owner in writing to declare their intentions within 28 days, and an owner who wants to keep the right must notify the government, post the property and publish notice.