Thursday, November 29, 2007

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

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