Thursday, April 24, 2008

New Wind Application is an End-Run Around Zoning Law

The new wind energy application by Iberdrola uses a ‘cookie cutter’ approach to delineate carefully selected sub-parcels of land within legal parcels for a Conditional Use Permit. The intent is to deny neighbors their rights to a protest petition, a right they have already successfully exercised under zoning law.

The stated intent of zoning is the protection of the property rights and quality of life of all residents. There is a statutory requirement in Kansas for inclusion of a protest petition clause in all county zoning regulations. It is implicit in zoning regulations that CUP applications apply to complete legal parcels, or the protest petition statute would be pointless. Those seeking to host turbines are now essentially claiming to be their own neighbors, and trying to deny adjacent landholders their legal status as neighbors. Is this not unscrupulous?

Nowhere in our zoning regulations does it say anything about protecting people’s right to profit from any development that might happen to come along, as Gene Bittel would have us believe. He expressed concern about passing wind energy regulations that might harm someone’s (or his) ability to profit from turbines. He fails to understand that the purpose of zoning is exactly the opposite – to protect existing real estate investments and quality of life from unsuitable developments that will detract from their value and harm innocent people.

It is clear from the folly of the last zoning board meeting that at least four, if not five, of the board members are dead set on gutting the ordinance submitted by concerned residents to regulate wind energy. They won’t take an oath of office (as required by law) or publicly disclose their conflicts of interest (as explicitly stated in the zoning regulations they themselves adopted) because they are all planning to profit from wind turbines however they possibly can. They have consistently represented their own families’ financial interests instead of the interests of the people of Ellis County. And they certainly don’t want to change the 1,000 ft. setback because that would spoil their plans to eliminate a protest petition by pulling turbines back just a bit more than 1,000 ft. from their property lines.

Iberdrola’s new application seeks to circumvent the spirit and intent of zoning law and will certainly be vulnerable to legal challenge in district court. If the County Commission grants them a waiver for early submission and then approves this application, they will be exposing the county to the same legal action that will target Iberdrola.

Monday, April 21, 2008

Moral Imagination

The following has submitted by Jacinta Faber to the Hays Daily News. It has been slightly revised from the form that was posted on April 21.

A gentleman named G.J. Warnock described empathy as “moral imagination.” He viewed putting oneself in another’s shoes as one of the components of a moral compass leading to the good life. I am married to a philosopher, and as a family, we have spent many an evening around the dinner table discussing what living the good life means. When our kids were younger, our son tended to equate the good life with the number of toys he owned. His acquisitiveness was scorned by his older sister, who thought that there must be more to living the good life than acquiring things. She seemed to be more on the path of developing her moral imagination.

The industrial wind project is challenging the moral imagination of Ellis County. The situation reads as follows. First, there are one hundred plus families who are located in or on the border of the wind project and who feel threatened by having an industry located close to their homes. Second, we have land owners who want as many turbines as possible on their land to augment their income. Lastly, we have a wind company which is determined to place the industry in the same spot where a formal protest petition, as designed by law, was able to stop the first go around.

How can Ellis County use its moral imagination to resolve this conflict? Shouldn’t zoning take care of the situation? After all, as stated in the regulations, the chief purpose of zoning is, “To promote the health, safety, comfort and general welfare of the citizens of Ellis County, Kansas.” Can laws promote empathy in people? Much of the time we have selfish motives for keeping the law. We tend to keep to the speed limit to avoid paying a fine, not to expand our moral conscience.

In our zoning laws, for example, a 1000 foot setback for turbines from residences is required in Ellis County. If you have taken a trip east lately, you probably have seen the Smoky Hill Wind Project. The towers inspire awe in most people due to the incredible size of the blades spinning in the Kansas sky. Now imagine having one of those turbines 1000 feet from your doorstep, or as seen in the latest proposal from the Hays Wind Project, being surrounded by the turbines in every direction from your home. It would seem unwise to think zoning would stir our moral imagination.

What about the land leasers? One argument given is “It’s my property. I can do what I want with it.” Another is, “My Dad wants ‘em.” These arguments fall more in line with property rights and desire, but don’t speak to the “walk a mile in another man’s shoes” theology. In fact, the zoning chair is leading the consideration of the rules that could help determine the number of turbines he could profit from on his property during phase two or three of the project. He even went so far as to indelicately rub his fingers with his thumb (the money sign) when discussing the optimum setback to allow for the most turbines. Self –interest tends to dull the moral imagination.

Add to this, three more zoning commissioners with substantial interest in the wind project, aided by Iberdrola blowing hot air, and we now have a collective moral imagination dangerously close to withering on the vine.

Would a wind company like Iberdrola base its decisions for Ellis County on the Golden Rule? I doubt it, but if anyone has witnessed this in action, please let me know. Iberdrola would be a shoo-in for the number one spot in the Eight Wonders of Ellis County, if not the world. In reality, mega-corporations don’t become mega by doing good deeds, but by making mega profits.

This leaves us to our last resort: the county commissioners. It is time for them to use their moral imaginations. The law cannot demand that someone uses his moral imagination. The county commissioners are in the unique position to seek the welfare of the people of the county. They have been given an opportunity—and responsibility—through their elective office to exercise their moral imagination.

Jacinta Faber

Thursday, April 17, 2008

Wind developers still circling like wolves

(Submitted to HDN, Apr. 15)

These days wind developers circle Kansas like packs of rapacious wolves with a never-ending thirst for tax-credits. Allaying themselves with short-sighted landowners, themselves blinded by dollar-signs, they tirelessly harass rural communities, threatening peaceful country residents with forced industrialization, visual and noise pollution, safety hazards, and an end to the peace and quality of life they had come to assume was their right to enjoy.

In her continuing quest to flog her environmentally disastrous wind project in Ellis County, Krista Gordon has requested a waiver of the one year waiting period for re-application on behalf of Iberdrola. Never mind that more than 50 % of residents in the project area don’t want it and have signed a legal protest petition to stop it. Never mind that her lies, misrepresentations and attempts to bribe local government are now common knowledge. Never mind that numerous members of the community are consumed in an ongoing discussion on how to regulate large scale wind energy projects to protect people and the environment. Much better for the windies if they can get a waiver signed by two stupid old men with the collective environmental consciousness of a bulldozer – before any regulations can be put in place by educated citizens truly concerned about protecting the community.

First it was all hush, hush – now it's all rush, rush. The only reason the windies oppose a careful, independent evaluation of the community impact of their project is they know it would never survive one. The only reason they oppose the development of a sensible wind energy ordinance to protect public safety is they have no intention of following regulations or being held responsible for their actions. It is time, once again, for every concerned citizen to stand up and speak out against this attempted rape of our county by a Spanish corporation.

Monday, April 7, 2008

Conflict of Interest, Oath of Office, and Comprehensive Plan

Jacinta Faber gave the following little speech to the Ellis County Commissioners as they were meeting in session on April 7, 2008:

Gentlemen of the County Commission,

I thank you for giving me as a citizen the opportunity to address you, as the governing body of Ellis County.

One of the distinctive features of American government has been the rule of law. We are not governed by the commands of a king nor by the whims of people seeking favors from their friends. Rather, we the people—through our representatives—make the law, and we the people accept the law as legitimate because the law we make is enforced uniformly, fairly, and without favoritism.

Although I have concerns about bringing the wind industry into residential areas of Ellis County, I come to you today to bring to your attention my concerns not about the wind industry, but about the governmental process.

Through you, we have accepted the words and thoughts of the Zoning Regulations of Ellis County, the Bylaws—Rules and Regulations of the Joint Planning Commission of Ellis County, the Ethical Principles of the Ellis County Joint Planning Commission and Staff, and the relevant state statutes. As you no doubt know, KSA 54-106 says that everyone appointed to an office shall take the following oath:

"I do solemnly swear [or affirm, as the case may be] that I will support the constitution of the United States and the constitution of the state of Kansas, and faithfully discharge the duties of ______. So help me God."

As you also no doubt know, the Office of the Attorney General of the State of Kansas has offered the legal opinion that taking the oath within a reasonable time after selection is a pre-requisite for holding the position. Although we would expect the commissioners of the Joint Planning Commission to uphold the constitutions and faithfully discharge their duties without having taken the oath, that the commissioners have never taken the oath is an indication of a disappointing lack of concern for the law of the land.

That lack of concern for the rule of law is also shown in the apparent unwillingness of the Joint Planning Commissioners to comply with the bylaws and the ethical principles that have been adopted. The “Bylaws of the Joint Planning Commission” say, and I quote,

Members of the Joint Planning Commission who shall legally have a conflict of interest or believe that they may have a substantial interest, as defined in K.S.A. 75-4301, in any matter that is on the Commission's agenda shall voluntarily excuse themselves, vacate their seat and refrain from discussion and voting on said item as a Commission member. Conflict of interest includes ownership of property or business in which the Commission is considering action, receipt of fees, salaries or gratuity from such business or businesses, or a family relationship to an applicant seeking Commission action. (“Bylaws—Rules and Regulations,” Article XI.)

And similarly, the “Ethical Principles of the Joint Planning Commission” say (and again, I quote)

To avoid conflict of interest and even the appearance of impropriety, Joint Planning Commission members who may receive some private benefit from a public planning decision must not participate in that decision. The private benefit may directly or indirectly create a material personal gain, or provide an advantage to an immediate relative. A member with a conflict of interest must make that interest public, abstain from voting on the matter, not participate in any deliberations on the matter, and step down from the Joint Planning Commission and not participate as a member of the public when such deliberations are to take place. (“Ethical Principles,” paragraph 6)

I am concerned about conflicts of interest and the appearance of impropriety because it has been publicly reported in the Hays Daily News and elsewhere that one member of the Joint Planning Commission has an immediate relative who would may benefit from decisions of the commission, and other members of the commission may themselves receive payment for having wind turbines sited on their property in publicly reported future stages of planned development. Yet these members of the commission have not excused themselves from deliberating and deciding.

The disregard for their own bylaws and ethical principles undercuts the legitimacy of the actions of the Joint Planning Commission.

Beyond the disregard for the oath of office and the appearance of conflicts of interest, another thing that seems to show disregard for the rule of law is the Joint Planning Commission’s lack of concern for a comprehensive plan for the county. Paragraph 1 of Article I of the Bylaws—the paragraph setting the very foundation of the responsibilities of the Joint Planning Commission—says, and I quote once more,

It shall be the responsibility of the Joint Planning Commission to cause the preparation, development and adoption of a Comprehensive Plan in accordance with Kansas statutes upon the authorization of the Governing Body. (“Bylaws—Rules and Regulations,” Article I, paragraph 1)

Yet the Joint Planning Commission has made no effort in its three years of existence to prepare or develop such a plan. Again, this sort of disregard for the law undercuts public confidence in the operation of government.

As the Governing Body of Ellis County, you oversee the operation of the Joint Planning Commission. I understand that zoning and the operation of the Joint Planning Commission are relatively new to the county and that beginnings can be hard. But if the Joint Planning Commission is really to serve the purposes set forth by the zoning regulations, the first of which is, “To promote the health, safety, comfort and general welfare of the citizens of Ellis County, Kansas” (“Ellis County Zoning Regulations,” Article 1, Section 1-102), then the County Commission must exercise its oversight function effectively. As a citizen of Ellis County, Kansas, I appeal to you to see that the Joint Planning Commission follows the law. I want to see the law respected in all ways, but right now we know that there are specific problems with taking the oath of office, with avoiding even the appearance of a conflict of interest, and with the legal requirement for a comprehensive plan.

Let us work together to preserve the rule of law.

Thank you.

Wednesday, April 2, 2008

Changes in Local Government are Sorely Needed

(submitted to HDN Apr. 2, 2008)

According to recent quotes reported in the Hays Daily News, Commissioner Dennis Pfannenstiel now wants to abolish county-wide zoning, or at least put it to a public vote. How perverse is this? If the laws you institute for specific purposes don't serve those purposes, just repeal them. Just dismiss the zoning board and squander all the time and effort expended by volunteer citizens and board members trying to safeguard this community while they develop a plan for controlled growth.

If Mr. Pfannenstiel cared anything for the opinions of his constituents, he would never have forced zoning down everyone's throats in the first place in order to obtain a wind farm for his cronies. Now that the protections afforded common citizens by zoning law have been effectively employed to block this covert objective, he seeks to capitalize politically on the unpopularity of zoning to get re-elected. Does he really think the voters in Ellis County can't see through his blatant hypocrisy?

Mr. Pfannenstiel further revealed his ignorance of state law, if not his outright contempt for it, by publicly asserting that zoning board members were under no obligation to take an oath of office – and by extension, not liable for conflict of interest disclosures that would disqualify four board members from voting on wind ordinance regulations – because they are appointed, rather than elected, officials. Kansas State statute chapter 54-106 'Oaths and Affirmations' clearly states that all officers "elected or appointed under any law" shall take an oath of office.

Changes in local government are sorely needed if this county is to obtain responsible representation for its people. What we presently have is a callous exploitation of elected office by special interest groups with no respect for the law or the rights of common citizens. As a constituent in Mr. Pfannenstiel's district, it is my sincere hope that his candidacy is contested in his own party's primary, rather than in a general election that he is sure to lose.