"Farmers have a right to do what they want on their own land."
It is a statement we have heard numerous times from those seeking to profit from the placement of wind turbines in Ellis County. It was stated to me personally by Lance Russell as the reason he got involved with zoning in Ellis County, no doubt parroting the views of his step-father, Harold Kraus, and it has been stated publicly by Gene Bittel, current chair of our zoning board, and by Charlie Rohr, another zoning board member.
Regardless of any merits or pitfalls of wind energy, I would point out that there are many legal limitations to what people can and cannot do on their own land - farmland or otherwise - even without zoning. You cannot hunt wild game out of season, or without a license, simply because it happens to occur on your property. You cannot divert water courses or damn up streams without obtaining special permits from the appropriate authorities. You cannot willfully contaminate ground water with toxic substances. And you cannot cultivate marijuana or construct a still to produce your own whisky.
These laws were enacted to preserve the environment, conserve society's public resources, and protect against perceived human health and safety hazards. They exist because many activities cause impacts far beyond the actual property on which they occur. The same is true for wind turbines. Those demanding to do whatever they want on their own land essentially seek to ignore the common good and the interests of society in pursuit of their own personal gain.
When we introduce county-wide zoning to the equation, we add a layer of complexity. We further diminish individual property rights in order to give local government more control over the nature of property use. Zoning becomes increasingly necessary as communities grow because the potential for conflicts over land use increases with population density and development. But in return, zoning provides some guarantee about what is reasonable to expect from one's neighbors. You lose freedom as a property owner, but you gain rights as a neighbor. As previously pointed out by Mr. Schmeidler, without this give-and-take, zoning law would not be constitutional.
Thus it is exceedingly remarkable that members of any zoning board would espouse the idea that property owners should be able to do whatever they please on their own land. It belies a complete ignorance of the very fundamental principles of zoning. It is therefore not surprising that these same people should approve a conditional use permit for a communications tower that is unfairly rigged to deny neighbors any recourse to object - against the very spirit of zoning law.
I find it ironic that those responsible for zoning Ellis County did so with the intent of protecting wind developers (and themselves) from liability, confident in their ability to manipulate the conditional use permit in their favor, only to be foiled by the protest petition that zoning law provides to protect the rights of neighbors. With the cell tower CUP, these same zoning board members are testing the waters for yet another way to corrupt due process and zone all their wind towers on tiny postage stamps of land that would, in effect, be 'neighbor-free'. In approving this CUP, two of our County Commissioners have not only revealed their complicity in this corruption, but have thumbed their noses at the very rules they themselves instituted and exposed Ellis County to a costly law suit it cannot possibly win.
Surely these are reasons enough for all citizens of Ellis County to rise up, pack these public meetings, expose this corruption to public embarassment, and invest in the processes necessary to remove these puppets of private interest and replace them with responsible representatives of the people.
Saturday, December 15, 2007
"Farmers have a right to do what they want on their own land."
Friday, December 7, 2007
Saturday, December 1, 2007
'Twas brillig, and the slithy toves, Did gyre and gimble in the wabe: All mimsy were the borogoves, And the mome raths outgrabe.
As I struggled to understand Mr. Lowry admonishing the county to “not get too hung up on a comprehensive plan” (among a few other statements), the words of Lewis Caroll sprung into my mind. As they did it hit me, that similar to the “Jabberwocky”, the only way to make sense of nonsensical lyricism is to accept that it’s not supposed to. I’m not sure there is any other way to interpret a statement that implies that the Ellis County Zoning and Planning board shouldn’t have a plan to guide their zoning decisions.
If you have spent any time in or around any organization, you probably know the difference between vision, goals and objectives. Vision gives you direction, goals give you specificity to achieve the vision and objectives outline specific actions necessary to reach the goal.
Similarly, a comprehensive plan quantifies the vision and outlines specific goals for the community. The zoning regulations give the specific actions needed to reach those goals and thereby achieve that vision. You can engage in all the action you want, but until it is guided by a vision and goals, those actions may or may not serve your best interest.
It may well be true that in Kansas the comprehensive plan has no specific statutory authority. However, it does not then imply that a plan is unnecessary. Many states wisely require a detailed comprehensive plan prior to adopting zoning regulations. In most of the other states (Kansas included) a community takes a higher risk for judicial intervention if they have zoning without a comprehensive plan (Golden v. City of Overland Park).
As Lorraine A. Cortés-Vázquez, the New York secretary of state put it; The comprehensive plan is insurance that the zoning ordinance is reasonable and “bears a reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end.”
Right now, we don’t have an agreed upon notion of what the “end sought” vision for zoning is in Ellis County, because we don’t have a comprehensive plan. If our vision of zoning is "to protect agriculture" as it has been mentioned numerous times by the Zoning and Planning Board, then we need a comprehensive plan to quantify what that means and set specific goals by which we hope to achieve that end. Then and only then does it make sense to set specific courses of action or zoning rules by which to meet those goals. Without the vision and goals, we cannot hope to have specific enough objectives or rules to accomplish what we want (whatever that is). In other words, one cannot hope to interpret or accomplish the letter of the law, without understanding the spirit of it.
Without a comprehensive plan, the vision for the community is dependent on the individual commissioners along with the zoning and planning board members at any given time. The rules and the application of them are therefore guided more by personal interest, bias and politics of the moment than upon a guiding vision set by the community at large. Imagine if the United States of America were only guided by a series of laws passed by the legislature. Without the guiding vision of a constitution, there is no set vision for our country, no stability over time and no protection from the whims of individual government leaders. Ultimately, we owe our success as a country more to our constitution than to our individual laws.
Community development is a long complicated journey. I for one want a clear sense of where I’m going, why and how I want to go there BEFORE I just start walking. In the end, the investment in this process will pay exponential dividends in time, effort, resources and outcomes. It is only rational to assume that our community would want the same thoughtful process to guide us.
As a result, I’m assuming that Mr. Lowry’s suggestion was not intended to be rational. That being the case, though Carrols “Jabberwocky” is typically regarded as the greatest nonsense poem ever penned in the English language, the editorial in the 11-30-07 edition of the HDN has to be a close second.