If an Idaho city wants to apply its zoning rules to land just outside the city limits in the 'area of city impact,' can the city council pass that ordinance on its own, or does the county also have to act?

Plain-English summary

Representative Jim Kempton asked the AG a question that mattered to several Idaho cities and counties in the mid-1990s: under the area-of-city-impact statute (Idaho Code § 67-6526(a)(1)), can a city council, acting alone, pass a zoning ordinance whose terms apply to land outside the city limits but inside the impact area? Some city governments had been reading the statute to allow exactly that, on the theory that subsection (a)(1) speaks of "[a]pplication of the city plan and ordinances . . . to the area of city impact" without expressly requiring the county to act.

Deputy AG William Von Tagen, writing for AG Alan Lance, said no. Only the board of county commissioners can exercise legislative authority in unincorporated land. A city ordinance does not become effective in the unincorporated impact area until the county adopts the city's terms by its own ordinance. Two reasons drove the answer. First, the statute itself, read as a whole (sections 67-6504 through 67-6526), sets up area-of-impact zoning as a joint city-county exercise: the joint planning and zoning commissions authorized by § 67-6505 are not even allowed to "adopt ordinances," and § 67-6526(a) directs that "[t]he governing board of each county and each city therein shall . . . adopt by ordinance . . . a map identifying an area of city impact," indicating two ordinances, not one. Second, even if the statute were ambiguous, the Idaho Constitution forecloses unilateral city action. Article 12, section 2 limits each local government's police-regulation authority to "within its limits." Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949), and Hobbs v. Abrams, 104 Idaho 205, 657 P.2d 1073 (1983), both confirm that this is a question of constitutional power, not just statutory drafting: the legislature cannot empower a city to legislate in unincorporated territory, even if it tried.

The opinion left intact the city's role in driving the substantive content of impact-area zoning. A city can draft a plan, propose ordinance language, even insist on the city plan as the basis for impact-area regulation under subsection (a)(1). What the city cannot do is enact that plan into law for unincorporated land. The county must do that, by its own ordinance.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is an "area of city impact"?

It is a designated band of unincorporated land outside city limits but close enough that growth and land use there meaningfully affect the city. Idaho Code chapter 65 of Title 67 (the Local Land Use Planning Act) requires every city and county to negotiate and map an impact area and adopt zoning that applies to it. The point is to coordinate land use just outside city limits, where the city often provides services or expects to annex eventually, even though the land is legally county territory.

Why can the county legislate inside city limits but not vice versa, or actually neither?

Neither can legislate inside the other's territory. Article 12, section 2 of the Idaho Constitution gives both cities and counties the power to "make and enforce, within its limits" local regulations not in conflict with general laws. Hess held that this is a question of power, not conflict: even if a county tries to enforce its rules in a city, or vice versa, the regulation has no force in the other's territory. Boise City v. Blaser, 98 Idaho 789, 572 P.2d 892 (1977), explained that giving effect to a county building permit inside city limits would violate Idaho's separation of city and county sovereignty.

So what does subsection (a)(1) actually do?

Subsection (a)(1) is a menu choice, not an enactment. The area-of-impact statute requires the county and city to choose, by mutual agreement, one of three approaches: (1) apply the city's plan and ordinances to the impact area; (2) apply the county's plan and ordinances to the impact area; or (3) apply some other mutually agreed-on plan. Picking subsection (a)(1) means both governments have agreed that the city's substantive zoning rules will govern in the impact area. But to make those rules legally effective in unincorporated land, the county still has to enact them through its own ordinance.

What if the city and county disagree?

Idaho Code § 67-6526(d), not quoted in this opinion but referenced, provides a dispute-resolution procedure if the two governing boards cannot agree on impact-area boundaries or applied rules within the statutory deadlines. The AG opinion does not get into that detail; it limits itself to the underlying constitutional point that the city alone cannot legislate for unincorporated land regardless of how the disagreement plays out.

What were Hess and Hobbs about?

Hess (1949) involved a Bonneville County regulation that the county tried to apply inside the City of Idaho Falls. The Idaho Supreme Court held that the county had no power to regulate inside an incorporated municipality's limits, period. Hobbs (1983) reaffirmed Hess and added a three-part test for ordinances under Art. 12, sec. 2: the regulation must be confined to the enacting body's limits, must not conflict with general laws, and must not be unreasonable or arbitrary. Both cases stand for the constitutional rule that the legislature cannot rearrange the city-county boundary by statute.

Background and statutory framework

The Idaho Local Land Use Planning Act (Idaho Code Title 67, Chapter 65) was amended in 1994 to require every county and each city within it to designate an area of city impact, adopt by ordinance a map of that area, and adopt a separate ordinance specifying which plan and which zoning rules govern within the impact area. The deadlines were October 1, 1994 (with possible extension to November 1) for the map and January 1, 1995, for the substantive zoning ordinance. By early 1995, several cities and counties were working through these requirements, and the question of whether subsection (a)(1) authorized unilateral city action had become live in at least some negotiations.

The AG's reading of the statute reflects standard Idaho practice in legislative drafting: when chapter 65 wanted joint or cooperative city-county action, it used phrases like "the board of county commissioners . . . together with the council of one or more cities" (§ 67-6505) and "the governing board of each county and each city therein shall . . . adopt by ordinance" (§ 67-6526(a)). Reading subsection (a)(1) to allow a city alone to legislate for unincorporated land would have been inconsistent with the rest of the chapter, and it would have raised a constitutional question of the kind Idaho courts try to avoid through statutory construction.

Citations

• Idaho Const. art. 12, § 2
• Idaho Code §§ 67-6504, 67-6505, 67-6509, 67-6526(a), 67-6526(a)(1), 67-6526(d)
• Boise City v. Blaser, 98 Idaho 789, 572 P.2d 892 (1977)
• Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949)
• Hobbs v. Abrams, 104 Idaho 205, 657 P.2d 1073 (1983)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP95-01.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 95-01
To:

The Honorable Jim D. Kempton
Idaho House of Representatives
HAND DELIVERED

Per Request for Attorney General’s Opinion
QUESTION PRESENTED
May a city council, pursuant to Idaho Code § 67-6526(a)(1) acting unilaterally and without parallel action by the board of county commissioners, pass an ordinance, the terms of which are enforceable upon land within the area of impact and outside of the city limits? CONCLUSION Only the board of county commissioners may exercise legislative powers in the unincorporated areas of the county. An ordinance enacted by a city pursuant to Idaho Code § 67-6526(a)(1) is not effective in the unincorporated area of impact until the county, by ordinance, adopts the terms of the city ordinance. ANALYSIS Statutory Authority Chapter 65, title 67, Idaho Code, covers areas of impact and provides for the adoption of a planning zoning ordinance to cover an area of impact. The chapter provides that the ordinance governing the area of city impact must be adopted by the governing board of each county and of each city. The ordinance is to be based upon mutual agreement. Pursuant to the statutory scheme found in chapter 65, title 67, Idaho Code, a governing board is a city council or a board of county commissioners. In Idaho Code
§ 67-6504, it is provided that the governing board may exercise all of the powers required and authorized by chapter 65 of title 67. Pursuant to Idaho Code § 67-6505, the board of county commissioners and a city council are authorized to establish joint planning and zoning commissions governing an area of impact. The code section provides, in relevant part:
[T]he board of county commissioners of a county, together with the council of one or more cities within a county. . .are empowered to cooperate in the

establishment of a joint planning, zoning, or planning and zoning commission, hereinafter referred to as a joint commission. . .a joint commission is further authorized and empowered to perform any of the duties for any local members governing board when the duties have been authorized by that member government. The authority of this joint commission is limited, however, by the language found in Idaho Code § 67-6504 “excluding the authority to adopt ordinances.” A joint planning and zoning commission may not exercise the legislative function of either of the member governing boards which created it. The language of Idaho Code § 67-6526(a) is somewhat ambiguous and has been read by some municipalities as authorizing cities to act unilaterally and without the consent of counties in creating areas of impact. The language of that subsection (a) provides: Areas of city impact—Negotiation procedure.—(a) The governing board of each county and each city therein shall, prior to October 1, 1994, adopt by ordinance following the notice and hearing procedures provided in section 67-6509, Idaho Code, a map identifying an area of city impact within the unincorporated area of the county. By mutual agreement, this date may be extended to November 1, 1994. A separate ordinance providing for application of plans and ordinances for the area of city impact shall be adopted no later than January 1, 1995. This separate ordinance shall provide for one of the following: (1) Application of the city plan and ordinances adopted under this chapter to the area of city impact; or (2) Application of the county plan and ordinances adopted under this chapter to the area of city impact; or (3) Application of any mutually agreed upon plan and ordinances adopted under this chapter to the area of city impact. Areas of city impact, together with plan and ordinance requirements, may cross county boundaries by agreement of the city and county concerned if the city is within three (3) miles of the adjoining county. In reading this subsection in conjunction with all of chapter 65 and, in particular, sections 67-6504, 67-6505 and the remainder of 67-6526, it is clear that the ordinance governing the area of impact must be adopted by both the city council and the board of

county commissioners. Section 67-6526(a)(1) merely states that a plan drafted by a city may be applied to the area of impact. The application of the city’s plan to the area of impact only occurs when ordinances adopting such plan are enacted by the city council and the board of county commissioners. Constitutional Limitations on Power Statutes are to be construed as being consistent with constitutional limitations on power. Reading Idaho Code § 67-6526(a)(1) as giving cities the power to act unilaterally in adopting ordinances governing unincorporated areas of impact would render it unconstitutional as violating art. 12, sec. 2 of the Idaho Constitution. Art. 12, sec. 2 of the Idaho Constitution provides: 2. Local Police Regulations Authorized.—Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws. (Emphasis added.) The power of cities and counties to enact or amend ordinances only exists within the limits of the city or county. For a city, this means within the city’s incorporated limits and for a county, this means the unincorporated area lying outside a city. The issue presented by art. 12, sec. 2, has been described by the Idaho Supreme Court as an issue not of conflicts but of power. In Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949), the court held: It also appears to be conceded that county regulations passed under such constitutional grant of power, cannot be enforced in a municipality in a field reserved to municipalities under the constitution, whether such field has been occupied by municipal ordinance or not. Therefore, the fact that it does not appear that the regulation in question is in conflict with any existing ordinance of a municipality is not important. The question is one of power and not one of conflict. Id. at 511, 210 P.2d at 804 (emphasis added; citations omitted). The court went on to note that because this is a question of power and constitutional provision, it makes no difference whether or not the legislature, by statute, authorizes a county or a city to undertake the thing it is doing:

The legislature can pass a general law effective upon all, but it cannot restrict the constitutional right of a municipality to make police regulations not in conflict or inconsistent with such general law. An attempt by the legislature to grant authority to a county to make police regulations effective within a municipality would be an infringement of such constitutional right of a municipality. Id. at 512, 210 P.2d at 805. In Hobbs v. Abrams, 104 Idaho 205, 657 P.2d 1073 (1983), the court reconfirmed its earlier ruling in Hess. In addition, the court went on to set forth the restrictions which apply to an exercise of power by a county or municipality under art. 12, sec. 2 of the Idaho Constitution: This Court has stated that there are three general restrictions that apply to ordinances enacted under the authority conferred by this constitutional provision: “(1) the ordinance or regulation must be confined to the limits of the governmental body enacting the same, (2) it must not be in conflict with other general laws of the state, and (3) it must not be an unreasonable or arbitrary enactment.” 104 Idaho at 207, 657 P.2d at 1075 (citation omitted). Art. 12, sec. 2, was applied to the issuance of a building permit by a county upon land which was subsequently annexed by the City of Boise in Boise City v. Blaser, 98 Idaho 789, 572 P.2d 892 (1977). In that case, the builders obtained a building permit for multi-unit housing which was to be constructed outside the city limits. Construction was delayed due to inclement weather and when Blaser attempted to resume construction, the land had been annexed by Boise City. The construction project was ultimately allowed to proceed but on grounds of estoppel. In the course of its opinion, the court discussed art. 12, sec. 2, and the effect it has upon the validity of county building permits issued on land within an incorporated city. Regarding the effectiveness of a county building permit within the city limits, the court stated: Generally speaking, to give effect to a county permit within city limits would be to violate the separate sovereignty provisions of Idaho Const. art. 12, § 2, and the careful avoidance of any county/city jurisdictional conflict or overlap which is safeguarded therein. Id. at 791, 572 P.2d at 895.

Under the statutory scheme found in chapter 65, title 67, Idaho Code, the governing board for an unincorporated area, including the area of impact, is the board of county commissioners. The legislative power possessed by the board of county commissioners may only be exercised by the board. Likewise, the legislative power of a city council is limited to the city’s corporate limits. Any reading granting a city the power to enact land use ordinances affecting unincorporated areas is inconsistent with chapter 65 of title 67. The exercise of legislative power beyond the corporate limit is also a clear violation of art. 12, sec. 2 of the Idaho Constitution. AUTHORITIES CONSIDERED 1.

Idaho Constitution:
Art. 12, sec. 2.

2.

Idaho Code:
§ 67-6504.
§ 67-6505.
§ 67-6509.
§ 67-6526(a).
§ 67-6526(a)(1).
§ 67-6526(d).

3.

Idaho Cases:
Boise City v. Blaser, 98 Idaho 789, 572 P.2d 892 (1977). Clyde Hess Distributing Co. v. Bonneville County, 69 Idaho 505, 210 P.2d 798 (1949). Hobbs v. Abrams, 104 Idaho 205, 657 P.2d 1073 (1983). DATED this 9th day of March, 1995. ALAN G. LANCE Attorney General

Analysis by:
WILLIAM A. VON TAGEN
Deputy Attorney General

Director, Governmental and Public Affairs