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Planning and Zoning Wrangle Over Requesting Noise Conditions on Businesses

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Planning and Zoning has meetings for Conditional Use Permit public hearings to consider new businesses/land use and established businesses that are expanding. Once they make an approval at a public hearing, then there is one more meeting for final approval. This is to make sure there is nothing else to consider through fact finding and that any recommended stipulations are carried out.

At a recent tele-conference on August 31, 2017, Chairman Dan Gasiorowski, Edith Williams, Charlie Haupt were present with Rora Canody, P&Z Administrator with Attorney Steven Meade.  Gasiorowski call the meeting to order to get final approvals of three CUP applications.

After fact finding review, Gasiorowski was ready to approve the FCO for CUP 2017-006 Haven Hot Springs located in Lowman. Gasiorowski asked for a motion to approve the CUP application. Instead, Williams made a motion to amend the FCO (Find of Facts, Conditions and Order) by removing site specific conditions regarding noise level stipulations. She explained the lack of noise definitions in the Boise County ULO (Unified Land Ordinance) that can be specific enough. Haupt seconded the motion.

Gasiorowski asked for legal opinion from Attorney Meade.  Meade’s response was that he felt that the condition was valid in his findings that would follow the Ordinance Ch. 3 that applies restriction to commercial and/or industrial regulations. He read the portion of the ordinance to the Commission, saying no land or building shall be used or occupied to create the hazardous condition that adversely affects the surround property. The ordinance requires to follow the acceptable use and safeguards to protect and create acceptable limits established by the following criteria and noise mitigation readings should be applied at the property boundary. To Meade’s interpretation of this ordinance he said, “I have reason to believe that the condition of the CUP is valid.”

It was further discussed that the ordinance prohibits noise that could be hazardous to adjoining neighbors and apply safeguards if deemed hazardous.  Williams referred to the fact that “The Haven did not receive any complaints or testimony from the public or law enforcement to the Commission about noise. The Haven has been in operation for many years and even though there were inquiries about noise enforcement during quiet hours, there were not any noise complaints filed. No noise was hazardous nor detrimental in the past.”

Williams also notes that in the ULO, “If there is a pattern of excessive noise, then it would require mitigation.  Boise County has not adopted a noise ordinance of hazardous or excessive noise levels or what level or type of noise is detrimental to a person or adversely affects surrounding property.”

After doing research, Williams found noise was only to be monitored by an authorized agent in Boise County according to the ULO. Williams found that Planning and Zoning could not designate someone to be an “authorized agent” and or designate applicants to self-certify compliance.  “An authorized agent,” according to Williams, “is one appointed by the County Commissioners so that they can be held accountable.”

Not finding anything in the ULO to authorize preconditions to be place on an applicant to measure the noise was of concern to Williams.  She located the Idaho Code that already governs noise complaints, disturbing the peace, etc.  and they can become a misdemeanor. She said, “This is already a standard condition and is enforced by the Boise County Sheriff and burden of proof is upon the plaintiff.”

Williams asked the Commission to think about potential scenarios where an applicant follows the noise condition and places noise meters in designated property lines. Williams goes on to explain, “Who is to say that a malicious neighbor could anti-up the noise levels in some form to give falsely high noise readings. Sometimes neighbors will do that if they know they can get an applicant in trouble.  The applicant would have to file a monthly report and the burden of proof is on the applicant to prove they are innocent. I just don’t see how the concept of requiring somebody to regularly prove they have done nothing wrong at great inconvenience and cost to them is even constitutional when there is no finding of wrong doing in the first place.”

Haupt is new to the P&Z Commission but felt that additional input from neighbors would be beneficial to get a better opinion of previous noise. Gasiorowski reminded Haupt that testimony time is over and it is time for a vote.

Once again, Williams reminded the commission that the neighboring residents just wanted to make sure noise levels were kept down during night quiet time, however they also were excited to have the Haven as neighbors. “There were no specific complaints. The applicants follow the standard and typical rules as with any campground and RV camping lots, that noise is kept down by 10:00pm,” Williams said. She expressed concern that noises can come from either property line side., therefore the applicant could potentially be after neighbors to keep their noise down.

Gasiorowski asked Haupt if he had any further opinion and he said “No”.  Dan was ready to make a vote on the motion to amend the noise condition for the Haven. With a Roll Call vote, Gasiorowski voted “No”, – Edith Williams voted “Yes”, and  Haught voted “No”.  The Amended Condition failed as stated by the Chairman Gasiorowski.

Gasiorowski then went to make for a motion to approve the Haven Hot Springs CUP 2017-006 and accept it. Haught seconded it. Motion carried and Haven Hot Springs CUP 2017-006 was approved with noise conditions set.

The Horseshoe Bend 3 Springs Hunting Ranch CUP 2017-007 had a similar noise stipulation but it was removed for legal advice after Williams pointed out that placing such a stipulation on the hunt ranch violated Idaho Code. The stipulation was removed after Attorney Meade agreed the stipulation violated Idaho code. A motion to approve it was made by Gasiorowski with a second made by Haught. Role Call vote: Gasiorowski “approved”, Williams “abstained”, Haught “approved”. Motion carried for the 3 Springs Hunting Ranch CUP 2017-007.

The Horseshoe Bend Flight Park CUP 2017-008 was next for final approval. Gasiorowski made the motion to approve with a second made by Williams. Roll Call vote with Gasiorowski voting “approve”, Williams voted “yes”, Haught voted to “abstain”. Motion carried to approve Horseshoe Bend Flight Park CUP 2017-008. No noise restrictions were asked of the Flight Park.

The ULO is part of the Boise County Zoning guide along with the Boise County Comprehensive Plan. Items can be researched at http://www.boisecounty.us/Planning_and_Zoning.aspx with a link to the ULO.

Written by Janet Juroch

1 Comment on Planning and Zoning Wrangle Over Requesting Noise Conditions on Businesses

  1. It seems to me that to use a conditional use permit to regulate future activities at a site is somewhat futile. Unless resources are going to be dedicated to measuring noise levels on an ongoing basis, how will it be enforced? Use ordinances that address the issue (in this case noise), and use conditional use permits to regulate physical conditions of the development.

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