Suing to enforce the law

This is from Paul Faber, resident of Ellis County, Kansas:

Kansas farmers and ranchers are an inventive lot. A number of small- to medium-sized companies in Kansas owe their origin to a farmer who thought of a better way of getting the job done.

But when a little guy invents a better mousetrap, sometimes the big cats in the neighborhood want it. And sometimes they steal the idea.

More than one small company has seen the huge implement manufacturer just walk right over the inventor's patent and start to manufacture the better mousetrap itself.

How do they get away with this? How can the big guys get away with stealing the idea?

Money is how they do it.

Even if the little guy clearly has the law on his side, the only way to enforce laws about patents is through a lawsuit. And it costs lots of money to file a lawsuit and to carry on a lawsuit, which might include deposing witnesses and bringing in expert witnesses from a distance. When the big guy loses, he can appeal and make it even more expensive for the little guy to protect his rights.

Of course, it costs the big guys just as much to fight the lawsuit, but there is a tremendous inequality in what percent of one's income or one's wealth the lawsuit will cost.

For example, suppose that you or I invented something, had the idea stolen by a big company, and then sued the big company. Your lawyer may very well tell you that it may cost about $50,000 to see this lawsuit through. For you or me, that may very well exceed one's annual income. But for a really big company, $50,000 is just a drop in the bucket. In fact, the company may already have the lawyer on the staff. Of course, the company still has to pay that lawyer, but if they are paying her anyway, then defending against a suit does not add anything to the costs they already have.

So even though your cause may be right as rain, it is awfully hard to afford to defend your right. Some people just give up.

Nine families in Victoria are facing that sort of difficulty right now, and they are saying they will not give up. It is not about an invention, though; it is about the Ellis County Commission not following the law. And the only thing these families can do about it is spend their own money to file a suit against the county.

This is what I understand to be happening.

The Hays Daily News reported that in its Nov. 14 meeting, the Ellis County Commission voted to authorize a conditional use permit -- which is something like an exception to the zoning laws -- so that a new cell tower could be built right outside the city limits of Victoria.

The county commission has the authority to issue conditional use permits, but the county commission has to follow the law in its consideration.

There are two things about the commission's decision-making that seem to be clear violations of the law.

First, from what I understand, the zoning ordinances talk about conditional-use permits for parcels of land. Parcels is the key here. Then, in order to try to ensure that a community agrees to a neighbor's use of land, there is a "petition" procedure. If owners of at least 20 percent of the land within 1,000 feet of the boundaries of the parcel in question sign this petition, then the county commission must be unanimous in their approval if they are to approve the conditional-use permit at all.

In the Victoria cell tower case, however, the county commission allowed the applicants for the conditional-use permit to set the boundaries of the permit area to be just a very small area around the base of the structure. They did not set the boundaries of the permit area at the boundaries of the parcel of land. (Even the support wires come from outside of the permit area.)

And they did this so that only the owner of the land, the person who stands to gain financially from the conditional-use permit, would be within 1,000 feet of the boundary of the permit area. Thus, the county commission is allowing someone to use a shady way of avoiding the requirements of the law.

So that is the first way that the county commission looks to have acted illegally. Then secondly, the zoning regulations say, "No new commercial telecommunication tower location shall be approved unless the applicant shall show that there is not sufficient or usable space on existing or approved towers in the same service area. Such verification shall be in the form of written correspondence from the owner of such towers or structures of their unavailability." Nex-Tech, I understand, has the rights to the co-op elevator, and Alltel to an existing tower built specifically for cell phone communication.

During the commission's deliberations, one commissioner pointed out the requirements of the law and that the applicants do not have "written correspondence" showing that the existing towers are unavailable. But the county commission, despite the vote of this one commissioner, decided to approve the application anyway.

The law sets a requirement, but the county commissioners ignore it.

So now a group of Victoria citizens is ready to file a lawsuit against the county. But it will cost them money. The lawyer says it will cost $1,500 or so just to file the suit, and then it will probably cost about $4,500 if it is a simple trial, and much more should the county eventually appeal the court's decision.

Now I personally do not know whether having a new cell tower right on the edge of Victoria is necessary or not. But even if it is a good idea, it should not be brought about by a county commission that violates the law.

And it is a shame that the little guys have to spend big bucks to try to get the county commission to obey the law.

Submitted by:
Paul Faber
Hays, Kansas

Zoning must be fair or leadership must change

(submitted to Hays Daily News Nov. 17 by John Schmeidler)

Until recently, local government in Ellis County has consisted of a group of "insiders" who ran things the way they want. This good ol' boys club has run roughshod over the entire county for years and gotten away with it because people do not get involved in the political process.

Zoning is based on the premise that people who own property have a constitutionally guaranteed right to control of their property. Whenever courts have considered the constitutionality of zoning, which unquestionably constitutes a governmental control of private property (a power of government which did not exist until 1921, or thereabouts) the courts have always concluded that zoning is constitutional because, in assuming control over private property, the government is giving back something of equal value. That something is the government's protection from having their property diminished in any way and is also a right guaranteed by the government.

What this means is that people have a right to their property as it exists at the time of zoning. Agricultural, i.e. farmers and ranchers have a right to always use their property for crops and livestock. But that also means they have no right to use their property for an industrial complex because the same protection extends to the adjoining landowners. They also have a legally defensible expectation that their adjoining neighbors cannot use their property for anything non-agricultural. Although some courts have not honored this concept, it is nevertheless, the only way that zoning can be interpreted as constitutional and not a violation of individuals' rights.

No one in the wind farm project area who purchased their property when it was zoned agricultural should have to accept industrial activity on that land because they are being denied their right to enjoy their property as it existed before zoning took effect. That is the guarantee that zoning must provide to be constitutionally legal.

Unfortunately, zoning as it now exists in Ellis County has been corrupted. It is being used as a tool of interested parties to force people to accept something adverse to their property. A right that, as above, should be protected by our local government and a right that is clearly being abused in the current application process for the cell phone tower next to Victoria.

No matter what political affiliation we subscribe to, we should always remember that all political power rests with the people. It is up to the people of Ellis County to hold local government accountable for the responsible administration of zoning laws or effect changes in leadership as needed.

What exactly were their intentions when they implemented zoning in the first place?

Written and submitted by Rod and Pat Bittel, longtime residents of Ellis County:

When our kids were small and we would ask them why they liked something, typically they would say, "Because it's fun." We can now say for at least two of the three county commissioners (the two that voted in favor of zoning) zoning isn't fun anymore. If you have been following the stories published recently in the HDN covering the county commission meetings, it seems that zoning has become a millstone around the necks of county commissioners Vernon Berens and Dennis Pfannenstiel.

Maybe we need to ask what made zoning so appealing to these two gentlemen in the first place. Mr. Berens and Mr. Pfannenstiel intentionally pushed to establish county-wide zoning. What was their purpose for doing this? According to Article 1-102 in our zoning regulations, the first purpose of zoning is to promote the health, safety, comfort and general welfare of the citizens of Ellis County, Kansas. Was that their intention when they voted to pass zoning?

Now the tide has turned. In the county commission meeting of November 15, 2007, Mr. Pfannenstiel said, "If we get rid of county-wide zoning and this thing moves forward (the cell tower) we'd have no problems, I'm very much in favor of just abolishing it, getting rid of it, letting them do what they want."

Mr. Berens said, "We're getting to the point where we are going to abandon county wide zoning and that's very, very, close." Why was an idea that was so good two years ago to become the scourge of the county commission chambers? What took the bloom off of zoning for the commissioners?

Perhaps one possible answer is that now there are regulations that need to be followed. A regulation is an authorized set of rules. The county commission established by law the regulations when they passed zoning. These same commissioners are now disregarding the regulations that they established. Here�s an example. In the case of the proposed cell tower near Victoria, it states clearly in Article 27.7, 32 c., of our zoning regulations that "No new commercial telecommunication tower location shall be approved unless the applicant shall show that there is not sufficient or usable space on existing or approved towers in the same service area. Such verification shall be in the form of written correspondence from the owner of such towers or structures of their unavailability."

Our third county commissioner, Perry Henman, read this regulation out loud to the other commissioners and then pointed out that there were no such letters from Nex-Tech or All-Tel, both of which have potentially available space.

How was the news of this received? Mr. Pfannenstiel moved to approve the project, "I'll make the motion because I think everything's in line." He continued, "I think it's a good thing. We need cell communication towers."

Even if it means breaking the law?

While Mr. Pfannenstiel and Mr. Berens are singing the county-wide zoning blues, Mr. Henman has a solution to their woes. The solution is to establish a comprehensive plan for Ellis County. The solution is to take our current zoning seriously to guide future development. But Mr. Pfannenstiel will have no such thing in his county stating, "A comprehensive plan would say we do nothing in Ellis County."

When we first started paying attention to the actions of the Ellis County Commission, we found some of their reasoning to be like that of a grandpa, inattentive but who meaning no harm. "Now Dad, you forgot to use your blinker. Be careful!" Now their actions seem to be entering into the intentionally harmful stage. "Dad, you are heading straight down a ravine. Stop!!"

We've stopped having fun.

Submitted by:
Rod & Pat Bittel
1101 Noose Road
Hays, Kansas

Why not Nuclear Waste Storage in Ellis County?

(submitted to Hays Daily News, Nov. 17)

In last Mondays' Commission meeting, Commissioner Perry Henman pointed out many serious problems associated with the application for a conditional use permit for a cell phone tower in Victoria: The irregularity of seeking to permit "a parcel within a parcel" instead of the entire property, the potential for violation of zoning rules regarding proximity of towers to property lines, the public safety risk of a tower collapse across Hwy 40, and the lack of evidence, required by law, that existing towers cannot be used.

However, none of these issues were a problem for Commissioner Pfannenstiel who judged that "everything is in line". His position? If all projects are opposed, Ellis County will not progress. The question is - progress how? With Berens and Pfannenstiel in charge, we might expect even a nuclear waste storage facility would be welcome in Ellis County - provided it yielded a good profit for the right people it could well fall under their current definition of progress.

Perhaps Mr. Pfannenstiel should consider the possibility that truly beneficial projects are typically welcomed in a community without creating social divisions and family feuds. Perhaps it is only those projects with significant negative impacts, and those implemented through unscrupulous tactics, that are likely to be opposed vociferously by local residents. Have you forgotten them Mr. Pfannenstiel? These are the people who will have to live with your "progress."

Commissioners Berens and Pfannenstiel seem unwilling to challenge any zoning recommendations, no matter how flawed. They would rather hide behind bad recommendations and use them as justifications for arbitrary decisions they wish to make that are not in the public's best interest. No wonder they oppose a comprehensive zoning plan for the county - they have discovered the conditional use permit to be a convenient mechanism than can be bent to suit their every whim.

Mr. Berens stated that if we have a zoning board then "we need to have faith in those people." No, Mr. Berens we are under no such obligation, and neither are you. The recommendations of the zoning board should be considered, but there were also dissenting votes. However, these are just a handful of appointed people, many with their own private agendas, whereas you were elected to use YOUR judgment to ensure the best interests of Ellis County are served. That means subjecting those recommendations to rigorous scrutiny - just like Commissioner Henman. If you take recommendation at face value, despite obvious irregularities, you become delinquent in the execution of your duties.

Mr. Pfannenstiel has repeatedly threatened to abolish zoning in order to railroad his favored projects over public resistance. So Mr. Pfannenstiel, you zoned the county for wind energy (against overwhelming public opposition) but now, since zoning isn't working to suit your interests, you want to revoke it in order to deny people the legal protection it provides them - just when they need it most? You seem to want to change the rules of the game every time you don't get your way. Maybe its time for you to just pick up your toys and leave the playground.

ECEAC Addresses Ellis County Commissioners Regarding Zoning Irregularities

The HDN newspaper article reprinted below describes ECEAC's continuing commitment in advocating for and assisting local citizens in preserving all aspects of the natural rural environment of Ellis County:

Proposed tower still causing concerns

A proposed cell phone tower to be located near Victoria city limits again was discussed at Monday's Ellis County Commission meeting, as several residents addressed commissioners between scheduled agenda items.

Several of the speakers are representatives of the Ellis County Environmental Awareness Coalition, a group formed to "preserve all aspects of the natural rural environment," according to its Web site, ellliscoalition.blogspot.com...

Jacinta Faber was one of the coalition members to address the board, voicing concern about the application process and Ellis County zoning regulations.

"After reading the zoning regs, my belief is the purpose (of zoning) is to live together harmoniously," Faber said. "The basic point is that when a structure or use has a visual, auditory or olfactory impact on others, their welfare and wishes deserve consideration."

Article 32-102 of the Ellis County zoning regulations states written notice of proposed rezoning shall be mailed at least 20 days before the public hearing to all landowners within 1,000 feet of the unincorporated area proposed to be altered. It also states the notice shall extend 200 feet where the notification area extends within the corporate limits of a city.

"Is Victoria being treated as unincorporated area? Does the 1,000-foot limit apply?" Faber asked. "The big issue is what is the area being proposed for this conditional-use permit?"

Article 27-102 also requires the zoning commission to do a "careful study" of the effect of such structures, she said.

"Can we see the study that they've done?" Faber said. "A study is a thing. It is a product. It should be documented."

John Schmeidler, co-chairman of the ECEAC, questioned the project area, which is a 100 foot square along the west side of Paul Schippers' property, he said. Such a small project area eliminates the possibility of a formal protest petition, which owners of 20 percent of the land within 1,000 feet of the affected area must endorse.

The area also does not include the tower's guide wires, Schmeidler said, which will extend about 270 feet from the tower's center.

"These are fundamental errors that we have to do something about," he said. "There are usually support structures ... a physical support structure, and that should be included in the permitted area. In this case, it is not."

The application for a conditional-use permit was filed by Paul Schippers, and the Ellis County Planning and Zoning Commission voted 4-2 on Oct. 24 to recommend approval of the application, which began the two-week protest period.

The tower, which would be constructed on behalf of Overland Park-based RCC Atlantic, would be more than 300 feet tall.

Rose Ann Dreiling, who lives near the affected area in Victoria, also approached the commissioners with concerns.

"Why do we want to depreciate other land that is close to Victoria that could be potential growth for our city?" Dreiling said.

"People aren't going to want to build next to a cell tower that's 340 feet."

Dreiling also expressed concern at the required setback distance. According to article 27-104 of the Ellis County zoning regulations, the structure must be located at a minimum distance of half the height of the tower from all property lines.

Commissioner Perry Henman agreed some of these issues might require further consideration when the application comes before the commissioners, and agreed the entire tract of property should be rezoned, rather than a small portion of it.

"If there's a certain spot, then we need the legal description of that spot. And it should include all the pieces of that structure," he said. "And we can look at things like public safety, is that too close to the highway and we can make them move it a little further away from the highway. It might still be the same piece of ground.

"But we can do things like that, and we can send that back to the planning board and tell them, 'Here's our concerns,' and they can think about it again and make their recommendation." (Hays Daily News)

Citizens wishing to contact the Ellis County Environmental Awareness Coalition about their rights or concerns regarding the cell phone tower in Victoria, the industrial wind complex proposed just south and west of Hays, or any other related environmental impact or rural zoning issue, may write to us at P.O. Box 464, Hays, KS 67601, or directly contact these individuals:

• Tim Davis, Co-Chair of ECEAC, todavis{at}fhsu.edu, 785-623-3590
• John Schmeidler, ECEAC Co-Chair, jschmeidler{at}ruraltel.net, 785-259-4314
• Jacinta Faber, Media Liaison, 785-628-8817

Additionally, any Ellis Co. citizens concerned about this tower proposed in Victoria, Kansas, should make their opinions known by attending Ellis County Commission meetings (Commission Room at the Courthouse, 1204 Fort Street, Hays, Kansas), held every Monday, and the Ellis County Planning & Zoning Meetings, held every month. Concerned citizens should also write letters to their county commissioners directly by mailing to 1204 Fort Street, Hays, Kansas. The three current commissioners for Ellis County are:

• Perry S Henman, Ellis Co. Commissioner, 1st District (City of Ellis, western Hays & western Ellis Co.)
• Dennis J Pfannenstiel, Ellis Co. Commissioner, 2nd District (central Hays & central Ellis Co.)
• Vernon L Berens, Chairman, Ellis Co. Commissioner, 3rd District (Victoria, eastern Hays, & eastern Ellis Co.): 785-735-9364, 785-735-2883

More Zoning Irregularities

(Submitted to HDN, Nov. 5)

What is 340 feet tall and makes a mockery of zoning in Victoria? Answer: A proposed cell phone tower with a rigged application. Just like the wind farm, it is not the project itself, as much as the process, that should concern Ellis County citizens.

1. The permitted area.

Scrutiny of the application reveals that the area proposed for conditional use is only 100 ft by 100 ft - instead of the complete parcel of land. Why? To render a protest petition impossible and deny neighbors their legal right to object. Even the guy wires supporting the tower will extend beyond 100 feet. Some board members we spoke with were unaware they had voted to permit a tiny 'parcel within a parcel', assuming it was the entire property. If this is allowable, then anyone can zone a tiny subsection of their property for any purpose and bordering properties can be denied the legal recourse they are guaranteed by zoning law.

In responding to opponents' requests that the tower be moved closer to an existing waste lagoon, Mr. Wing noted that if the zoned area were changed, this would require a new application. Yet, the zoning board subsequently moved the tower 300 feet within the property, changing the zoned parcel. Why then was a new application not required?

2. Tower regulations.

Our zoning regulations state that any tower must remain at least half its height in distance from any property line. This is irregular because the standard is 1.5 times the tower height to provide safety for neighbors in case of a collapse. Nevertheless, even this regulation would seem to rule out a permit for a 340 ft. tower on a 100 ft square, as this could allow the placement of towers less than 1/3 their height from property lines. As proposed, the tower could collapse right across Hwy 40.

3. Description of the protest area.

The protest area outlined on the application map is a square 2,100 ft on each side. However, this square has been swiveled about 40 degrees counter clockwise from compass coordinates, the proper legal orientation. Why? Once again, the intent is to 'stack the deck' against any opposition and deny yet another group of opponents their right to be included in the protest area.

4. The Conditional Use Permit.

The CUP is a mechanism intended to provide a special exemption for a structure or activity that would not normally be a permissible land use in a zoned area. But without a comprehensive zoning plan, we have nothing guiding specific land uses anywhere in Ellis County, so the CUP can be abused by powerful landholders to put anything anywhere they want - provided they have a fix in with the zoning board. This abuse of the CUP contradicts the fundamental intent of zoning, which is to provide people with a reasonable expectation of future land uses in specific localities - before they buy their properties.

If this application is approved by our County Commission, it will create a very dangerous precedent, that of allowing CUPs for small plots of land drawn up at the whim of the applicant as to deny dissenting neighbors their legal right to protest. To issue a CUP for a small plot within a legal parcel flaunts the intent of zoning law because it allows any applicant to become, in effect, their own neighbor and circumvent the obligations they have to their real neighbors. What would prevent the same policy being applied to wind turbines? The county might well have to use tax dollars to defend such a decision in district court.

It is disturbingly evident that those leading our zoning board are not conducting zoning in the service of their community, but rather in the service of special interests. The people of Ellis County should stand up to Gene Bittel and Lance Russell and cry foul. It won’t be the first time either.

Citizens wishing to contact the Ellis County Environmental Awareness Coalition about their rights or concerns regarding the cell phone tower in Victoria, the industrial wind complex proposed just south and west of Hays, or any other related environmental impact or rural zoning issue, may write to us at P.O. Box 464, Hays, KS 67601, or directly contact these individuals:

• Tim Davis, Co-Chair of ECEAC, todavis{at}fhsu.edu, 785-623-3590
• John Schmeidler, ECEAC Co-Chair, jschmeidler{at}ruraltel.net, 785-259-4314
• Jacinta Faber, Media Liaison, 785-628-8817

Additionally, any Ellis Co. citizens concerned about this tower proposed in Victoria, Kansas, should make their opinions known by attending Ellis County Commission meetings (Commission Room at the Courthouse, 1204 Fort Street, Hays, Kansas), held every Monday, and the Ellis County Planning & Zoning Meetings, held every month. Concerned citizens should also write letters to their county commissioners directly by mailing to 1204 Fort Street, Hays, Kansas. The three current commissioners for Ellis County are:

• Perry S Henman, Ellis Co. Commissioner, 1st District (City of Ellis, western Hays & western Ellis Co.)
• Dennis J Pfannenstiel, Ellis Co. Commissioner, 2nd District (central Hays & central Ellis Co.)
• Vernon L Berens, Chairman, Ellis Co. Commissioner, 3rd District (Victoria, eastern Hays, & eastern Ellis Co.): 785-735-9364, 785-735-2883