Property Poses Puzzle for Planning & Politics

I’m still not sure that this title agrees with me. But if it caught your eye, then maybe this story’s subject will as well. Let’s dive into some Moscow zoning history, as well as some reasons that the city could be in a bind with a developing situation downtown.

Read the full transcript of the video below:
(Two characters: Producer and Talent)

T: How’s it going y’all? Aiden Anderson here with the Moscow Minutes. I’m on the phone with my producer right now, because yes, this video is gonna be a little different than usual.

P: Are you recording right now?

T: A curious situation has caught my attention, and I think it would behoove you all to be paying attention to it as well. It involves the lovely combination of urban planning, legal conundrums, and a certain art gallery on main street.

P: Hey, no. Hold on. I’m still here, you know. I have a say in this too. You don’t just get to record on whatever topic you want. I’m not making sense of this. What even is this video title? Property Poses Puzzle for Planning and Politics. What’s with the alliteration? This isn’t a newspaper in a superhero movie!

T: You don’t like alliteration?

P: That’s not the point. I still don’t understand why we’re even talking about this.

T: Would you like me to explain it to you?

P: Yes, thank you. Wait, are you gonna record the whole thing?

T: Yes, definitely.

P: Oh gosh. Cue the intro!

T: On September 3rd, we are anticipating the city making a decision related to an appeal of current zoning restrictions downtown that will have significant implications not just for the parties involved, but for anyone interested in Moscow’s downtown corridor. The parties involved, in this case, are the city of Moscow, the owners of 414 South Main Street, and New Saint Andrews College.

This past year, college leadership signed a lease agreement with the owners of 414 South Main, which had previously been occupied by the Moscow Contemporary art gallery, and has historically been used as a gallery up to the present. New Saint Andrews has similar intentions to use the building as an art gallery, which they have named the Pierian. However, in the process of occupying the building, they have run into some snarls with the city related to an embargo on using space in the downtown corridor for educational purposes. This has resulted in a drawn-out back and forth between the college and the city, and an appeal process which should come to an end in September.

P: Ok. So far I’m hearing pretty run-of-the-mill stuff. Lots of folks get entangled in the planning and zoning process when making moves like this. So why are we focusing on this particular situation?

T: I’m glad you asked, my dear producer.

P: Don’t patronize me. We’re the same person.

T: In order to have a proper grasp of this situation, and the decisions which led to it being this complex, we’re going to have to go back in time a good bit.

P: Please don’t tell me the script is written this  way just so you can play some fancy back-in-time harp sound—

T: Let’s start by reviewing the history of a city ordinance. Specifically, Ordinance 2023-04. This ordinance was approved at the regular city council meeting on July 17th, 2023, and it addressed certain redundancies and duplications within Moscow city code related to the appeals process located in what was then Title 4, Chapter 10, Section 10-8.

Back on April 17th of the same year, an appeal was heard by council regarding a conditional use permit (CUP) for a Bed and Breakfast Inn at 2518 Itani Drive. The applicant, John Wright, made the appeal based on some parking requirements in the CUP that he felt didn’t make sense. As it turned out, the council agreed with him, and voted to reverse the conditions applied by the Board of Adjustment. As it also turned out, this hearing apparently highlighted some issues with the appeal process as a whole, which Wright would have had to go through in order to make his case before the council at all.

These issues began to be addressed at the council meeting on May 1st, 2024. Looking at the agenda for that meeting, you can see two items which were approved on the Consent Agenda. First, the written decision for Wright’s CUP appeal, and immediately after, a Repeal of Resolution 2000-17 which “details appeal procedures that are in conflict with provisions already in Moscow City Code. This redundancy creates confusion for those involved in the public hearing process. To eliminate this issue, Staff is recommending this resolution be repealed and users rely exclusively on provisions already established in Moscow City Code.” Being on the consent agenda, both of these items were approved together.

Fast forward a couple days to the Public Works & Finance Committee meeting on May 8th.

P: Please remind us what Public Works & Finance is all about.

T: Of course. The Public Works & Finance Committee focuses on internal city matters related to city public works activities, solid waste issues, and finances. At this particular meeting on May 8th 2023, Cody Riddle presented an ordinance which would amend Moscow City Code Title 4, which dealt with appeal procedures, including a repeal of Title 4, Chapter 10, Section 10-8.

Riddle stated that the main goal of these amendments were to clarify the appeal process as it was written in city code, and to consolidate the information. This process began back at that May 1st city council meeting with the repealing of Resolution 2000-17. With the approval of the Public Works and Finance Committee, the Ordinance would go to Planning and Zoning for a public hearing, and then be brought back to the City Council for final approval. 

The amendments proposed in this ordinance include the title change noted in section 8-2, which has been changed from Appeals to Appeals of Zoning Administrator Decisions. Make note of the term “Zoning Administrator”, because it will show up later. 

Of course, this ordinance arrived before the Council on May 15th, at which point they approved it to be presented before Planning and Zoning for a public hearing. At the time, council member Hailey Lewis asked a question related to the language of the ordinance as it would be presented in City Code, to which she received the following response…

…So, two things to pay attention to so far: The “Zoning Administrator Decision” term, and the fact that this term, among others, is brand new language when it comes to Moscow City Code. 

P: You took up 5 pages of script to explain those two things?

T: Moving on, the Planning and Zoning Commission held their public hearing on June 14th, 2023, and approved it unanimously for the City Council to hold their own public hearing on July 17th, 2023. So three months after that first appeal was made by John Wright, Ordinance 2023-04, which amended Moscow City Code to help clarify the appeals process and which introduced the new language of “Zoning Administrator Decisions” into the code, was approved and adopted by the city.

P: Okay, I think I’m tracking with you so far. But this just explains how one particular code amendment appears to have been formulated and adopted by the city. What’s so interesting that requires all this?

T: Well, now that you and the audience have the city, that ordinance, and it’s new language in mind, I can turn your attention to the other parties in the situation. Let’s look at New Saint Andrews for a minute.

T: Back in 2001, when New Saint Andrews first acquired the Skatteboe Block where their main campus currently resides, city zoning code allowed the college to occupy the space based on permitted use. This was eventually changed to a conditional use.

P: Go over those terms real quick. What’s the difference?

T: Permitted use is generally the use of a space that is explicitly allowed in a particular zoning district, without the need for additional permits or approvals. A change from permitted to conditional use by the city meant that the college now needed to meet specific conditions and obtain a conditional use permit (CUP) from the city in order to continue operating as they had been. At the time, this required the college to obtain both a CUP and additional parking space downtown.

Fast forward about 12 years, the college made the purchase of what was then called CJs, the building on the north end of Main Street that they are now using as a second campus. Again, NSA found themselves needing to obtain a CUP and meet another parking requirement in order to occupy the space. 

In 2018 and 2019, the city had a number of discussions internally that led to the creation and approval of Ordinance 2019-07. I’m gonna go through the relevant statements briefly.

Moscow City Council meeting, May 21st, 2018: The city council discussed zoning code amendments, which changed the zoning code format from a narrative format to a table format and adopted the North American Industry Classification System (NAICS) for its own organization purposes. Then-council-member Brandy Sullivan and council member Gina Taruscio discussed the possibility of removing educational institutions as a permitted use within the Central Business district, an area which includes Moscow’s downtown corridor.

At the time, Gina expressed concerns about potential discrimination, while Brandy argued that the focus was on protecting the downtown from losing more taxpaying businesses to non-taxpaying, educational institutions. With more information from city staff, the conversation eventually shifted away from taxes and towards educational square footage and student numbers in the same downtown area. 

Administrative Committee meeting, June 11th, 2018. This committee deals with internal city admin affairs, including police matters, community development, and legal affairs. At this meeting, Bill Belknap, then the Deputy City Supervisor, highlighted the change to city code which took place the previous month, including the discussion about educational institutions in the downtown corridor. Of particular note was Bill’s highlighting of the fact that the city uses land-use based zoning.  To quote Belknap, “…regulation is based on land use, not necessarily the tax status of an organization. Really, we’re looking at the use itself. So if it’s a professional office use, and it’s for a nonprofit organization, it’s still a professional office use.”

At this same meeting, Belknap reported on community concerns about educational institutions downtown, including their impact upon downtown parking. He reviewed New Saint Andrew’s efforts to offset their parking impact as well as the University of Idaho’s WWAMI program, located in one of Gritman’s buildings also in the same zoning district, which did not require the University to pursue parking requirements. Let’s take a look at Belknap’s comments on the matter at that meeting…

…This leads us to the adoption of Ordinance 2019-07, which took place at the Moscow city council meeting on July 15th, 2019.  This ordinance eliminated certain educational uses within the central business zone, including eliminating colleges, universities, and professional schools as being allowed altogether. Now, one thing to note is that this would not affect the existing educational institutions downtown, but would prevent their expansion into properties that they previously did not occupy. So NSA could continue their educational operations downtown, just not expand them. Likewise for the U of I and any other educational institutions interested in downtown property.

Are you tracking with me so far?

P: I mean, this is convoluted as all get out. So far we’ve got one city ordinance that clears up the zoning appeals process and tags the term “zoning administrator decision” onto the code. And now we have another ordinance that forbids new educational institutions in the downtown corridor. New Saint Andrew’s is most apparently affected because of how much stuff they’ve done downtown, but it’s not the only entity affected. Are these two ordinances related somehow?

T: We’re getting to that. In the summer of 2022, NSA leadership asked the city about the possibility of putting their music conservatory in the Nuart theater, one of the buildings which the college had access to. This was denied, with the college-educational use being forbidden under the zoning code. So instead, New Saint Andrews president Ben Merkle met with Mike Ray and Cody Riddle of city staff, to ask about putting administration and recruitment offices in the Nuart Theater. This was allowed with the conditions that these offices host no faculty, no student traffic, and no classes, as activity of these sorts would constitute a violation of the “no educational use” zoning restriction.

P: Ok, so the process worked. NSA got approval from the zoning admin for the business offices in the Nuart, and they made sure together with the city not to violate the educational use thing. So far so good?

T: You’re tracking. One thing to mention though. When communicating with the city about zoning determinations for these offices, Ben Merkle was told by Mike Ray via email that “The process of the Zoning Administrator making a determination is an informal process that is not codified in our City Code. These determinations are a fairly common occurrence and we request an email or letter explaining what the proposed use is.” 

P: Oh right. The zoning administrator thing from before. That didn’t get put into Moscow City Code until July 17th, 2023. And this conversation with Mike happened like a year before. So of course it would have been informal and not codified. Because it hadn’t been codified yet.

T: Let me continue. In May and June of 2023, Merkle was presented with the opportunity for NSA to take over the lease for the whole Nuart theater, not just the offices portion as they had previously agreed to. He again asked Cody Riddle about it, and instead of the previous back-and forth-correspondence, he was asked to go through a process involving a Zoning Administrator Determination Letter titled Zoning Administrator Decision 2023-01. This seemingly new official statement explained that the expansion of NSA activities into the theater itself would constitute a prohibited use of the property. Merkle did not appeal this decision at the time, and indeed the lease opportunity went away as well, though the offices in the Nuart remained active and presumably permitted by the city.

P: When was this Zoning Administrator Decision sent out?

T: The letter itself says the date of the decision was June 6th, 2023. 

P: And the city codified the whole zoning administrator appeal thing when?

T: July 17th, 2023.

P: Ok… so they don’t have anything codified regarding the zoning administrator until July 17th, and then they codify the appeal process. So it’s assumed and stated that the process is informal. Works fine at first. And then the guy goes up for round two and gets hit by a barrage of formal paperwork?

T: Seems like it. Anyway, we’ve finally caught up to the present year. Another opportunity was presented to NSA in the form of 414 South Main Street, which had once been the Prichard Art Gallery, and had just recently been vacated by Moscow Contemporary. The building itself has space for offices like the Nuart Theater did, and the use of the building as a gallery and gift store are already permitted uses under the zoning code.

As this building would serve their needs and consolidate their locations, Merkle contacted the city about shifting the administrative offices that had been allowed in the Nuart Theater from the Nuart to the art gallery. He received another Zoning Administrator Decision from Cody Riddle in response, indicating that no, the college could not make such a move, as it would constitute an educational use of the gallery space that would be in violation of the zoning code.

Merkle appealed this decision to the Board of Adjustment, who reviewed it at their meeting on June 11th, 2024. When looking at the situation presented to them by the City, NSA, and the owners of 414 South Main, Joe Bazzoli of the BOA commented that it was unlike any other that he’d been a part of in a long time.

Merkle based his appeal on the following criteria, according to the appeal guidelines set forth by the city: the decisions made by the Zoning Administrator exceeded the city’s statutory authority, was arbitrary, capricious, or an abuse of discretion, and violated statutory or constitutional provisions. Let’s look at some portions of his argument before the board of adjustment…

…The BOA also heard from one of the owners of the building, Brenda Von Wandruszka. She spoke on the historical use of the building as an art gallery by a number of different organizations, including those that were explicitly educational.

The board’s conversation focused on the vagueness of the wording located in Ordinance 2019-04, particularly when it came to the comments in the ordinance about use and education. Such vagueness made making a determination in this particular instance difficult — too difficult, in fact, for the BOA in its own capacities. In order to ensure clarity on the ordinance and its wording, they would need to get official reasoning from the city council. In order to get the document in front of the council, they would need to vote to reverse the Zoning Administrator’s decision, at which point city staff could appeal the BOA’s decision, and present the document to the city council. Ultimately, that is what they decided to do. They voted to reverse the Zoning Admin’s decision, city staff appealed that particular vote, and now the final hearing is scheduled to take place at the city council meeting on September 3rd.

And now we’re all caught up. Still hanging in there?

P:… Yes. I think. 

Okay, question time. You’ve got loose ends that need tying up. The New Saint Andrews admin offices were fine before at the Nuart, right?

T: In 2022 they had permission from the city to use the space in the Nuart theater for business office purposes.

P: But when they try to move those same offices from the Nuart to the gallery, it’s a no from the city. Why does the art gallery make a difference?

T: It’s not clear from the publicly available paperwork. Perhaps there’s an idiosyncrasy in the zoning code between the two spaces. Or perhaps the city has implicitly revoked their previous allowance of the offices at the Nuart using the Zoning Administrator Decision process. Either way, it’s something that needs to be publicly clarified.

P: Ok, let me ask about this whole Zoning Determination Decision process. It seems from your descriptions that this whole piece of paperwork sort of came outta nowhere and is being used in a seemingly arbitrary manner. Am I wrong?

T: There’s a lot that’s unclear, to be sure. To start, we know that the appeals process for Zoning Administrator Decisions was cleared up halfway through 2023. But that doesn’t say anything about the Zoning Administrator Decision process as a whole. It may have its own formalized section in city law that we haven’t looked at yet.

P: See, but you said earlier that Mike Ray described the process of a ZA making a decision as informal and not codified in city code.

T: Right. Also, ZA?

P: ZA. For zoning administrator. What? It’s better than the video title you came up with.

Anyway, so the process was informal and proceeded informally between NSA and city staff, right up until NSA asked about the Nuart in 2023, just before the appeals process in city code gets amended. And then we start to see this Zoning Administrator Decision piece of paper start to show up. 

If the process isn’t codified, then I suppose the city could use this more formal approach according to their discretion. Then it would just be a case-by-case basis what they do. Are there other examples of a ZA Decision in the past couple years not related to this situation?

T: I mean, if there are, I haven’t been able to find them. Right now, all the ZA Decisions I can find seem to pertain solely to New Saint Andrews.

P: Oh. Well that’s a question then.

T: Exactly. If the college is the only entity that has to deal with this, and the decision making process is arbitrary and non-codified… the Zoning Administrator Decision process could constitute a form of discrimination on the city’s part when it comes to this particular situation with NSA.

P: That could be circumstantial. What if no one else is putting themselves in the same situation as NSA? Then they wouldn’t be dealing with it at all.

T: For that, you’d have to look at the other educational institutions in the area. Take the U of I for example. They put up that new residence hall in that hotel on the west side of town, but a residence hall like that outside of the university district is forbidden by the zoning code. What about the proposed expansions of the WWAMI program, or the U of I Office of Civil Rights down on the corner of 6th and Asbury? Those situations would seem to require a similar line of appeal between the University and the City, and yet I haven’t seen anything.

Once again, I could be missing information here, but I would echo the BOA’s concern about clarity. If the code is hard to deal with because it’s confusing and the decisions come off as arbitrary even when they’re not, it seems like all you’re doing as a city is making it harder for people to abide by your processes, which is not great for community development or citizen relations.

P: That’s the other thing I wanted to ask about. Does this situation impact anyone else beyond the parties mentioned?

T: It very well might, if the city’s reasoning is applied consistently.

P: Go on.

T: Remember how at first, the admin offices at the Nuart were fine? They didn’t constitute an educational use. But now, when the offices being used for the exact same purposes are moved to the art gallery, it’s not permitted based on those offices being an educational use.

P: So it’s an expansion of the definition of “educational use”.

T: Right. The use of the space is for business offices, the industry is education. The definition has expanded to include uses that support the main industry as being covered under that industry.

P: But isn’t the city supposed to be utilizing land-use based zoning? As in “just focus on use, not the tax status” zoning?

T: At least based on statements back in 2018, they are. 

P: So if they continue to apply the educational use rule like they’re applying it here, they might find themselves contradicting their own zoning principles.

T: And that will lead to all sorts of problems. At worst, if you apply it consistently across zoning fields, you’ll end up telling people that a coffee shop is zoned as agriculture, or that the corporate offices for a manufacturing plant count as a manufacturing plant for real in the city code.

P: Sounds like a nightmare. And at best?

T: Well, at best, you’d just be applying the rule inconsistently. That leaves you open to being accused of being discriminatory, capricious, or at the very least incompetent. Not a great position for a city to be in.

P:… You know what. Fine. You win. I was wrong. This is worth putting out to show people. 

T: Oh. Well, thanks I guess.

P: Still don’t like the title… but this has been too wild a ride for me to think of a better one right now. I’m gonna go do producer things. Just call me when you’ve wrapped it.

T: Right on.

So, there you have it y’all. We’ll have some more clarity on this zoning policy situation when the city holds its hearing in September. Until then, it’s good to keep in mind that even small changes to a city’s planning processes and principles can have large impacts down the road. And larger changes? Even more so. All the more reason to pay close attention and read between the lines on stuff like this when you can.

I know there were a lot of twists and turns and meetings and paperwork and even a little time-traveling in this video. If you found it difficult to keep everything straight, first off — that’s totally normal when looking at city stuff as a citizen. That’s why I do what I do, to help bridge the gap in what ways I can. Secondly, please reach out in the comments, message us on social media, and email us on our website if you have any questions about this story and others that we cover; we’ll do our best to answer them.

I’m Aiden Anderson with the Moscow Minutes. See you next time!