No Due Process, NO Development Plan, No Problem

DodgeCity.com: Dodge Globe: Op/Ed

Been reading the above on the ethanol plant and noted that we (as citizens) got sold out again. I have to ask why is everyone so quiet about our legal rights going down the river with our water?

[lurker]

I read that guest editorial as I was re-covering the bird cage floor. Valid points... all of them were valid.

It's too bad the author(s) of the county zoning regulations didn't include definitions such as Davis California included in their "Municipal Code" ...

Shall, May.* "Shall" is mandatory and "may" is permissive.


*For similar state law, see Gov. C., § .14

Can you copy the editorial on this thread?

[Highwayman]

Originally Posted by lurker

.....Can you copy the editorial on this thread?

No due process, no development plan, no problem

My Opinion

Lowell A. Brakey

I owe the Citizens of Ford County an apology. In 1996 and 1997, as a member of a County-appointed committee, I went around with other committee members and met with feedyards, businesses, farmers, ranchers and concerned citizens about the virtues of County Wide Zoning. We told them how Zoning could protect them against developers that might not want to ask “May I build here?” Further, those landowners would be afforded safeguards against developments and/or businesses being built without the proper questions being answered, lawful due process and an approved development plan.

On Nov. 27 and Dec. 18, I discovered that those regulations we urged the citizens of Ford County to adopt were not for everyone and that under the title of “economic development” the regulations can be ignored and lawful due process denied the landowners surrounding a new development. I refer to the ethanol plant that is proposed for one mile east of Wright.

None of the 12 people that signed the protest petition were against ethanol production. The other 229 people that live around this site and who signed another petition just wanted the opportunity to read and study a development plan to answer their questions, as was promised them by Article 12 of the Zoning Regulations. They were asking that due process be followed, that they be afforded rights that they were promised and that became law back in 1997. That is why they hired me as a consultant, as they were aware of the fact that I had been an advocate and one of the authors of our current zoning and subdivision regulations. Idealistically, I believed that the Zoning Board and the County Commission would follow legally established regulations.

On Nov. 27 the Ford County Zoning Board voted to recommend approval of the Conditional Use Permit request even though there had not been a properly signed application submitted on time, as required along with a development plan, as required by law. Publication in the newspaper told everyone interested that the development plan was on hand with a properly filled out application. This was not true.

A document was finally submitted on Nov. 20, seven days before the Zoning Board public hearing, titled a “development plan,” but this did not meet the requirements of a development plan as required under Article 12-103 of the Zoning Regulations. It was too little, too late. Citizens had read the public hearing notice in the newspaper or had been notified by registered mail of the file being complete. They had come and gone from the Zoning Office asking to see the development plan and there had been no signed application or development plan to see and review.

On Dec. 18, this same case came before the Ford County Commission. The County Commission admitted that the application had not been signed at the time required and that the so-called development plan, which was still incomplete, was only submitted on Nov. 20. Legal counsel for the County Commission informed the commissioners that the plain language used did not mean what it clearly said.

Article 12-102; 2- states: “The Development Plan shall be submitted at the time the application is submitted and no application shall be deemed complete nor set for public hearing until said Development Plan is submitted.”

Article 12-101 plainly states: “Said Development Plan is a required submission when seeking a Conditional Use Permit.”

We all heard the County Counselor inform us that the word “shall” can be interpreted to mean “may” and that this was his legal interpretation. The County Commission accepted Mr. Kerb’s opinion on the matter even with an opposite opinion being submitted by Jack Shultz, another attorney, which is completely supported by the above-quoted sections of the zoning law.

What does this mean? If the law can be ignored once by elected and appointed public officials, they can be ignored again at their whim. The Zoning Office and the Zoning Board now believe that they can get away with this and the County Commission will support their action. What is to stop them from doing this again? All certain investors have to do is brandish enough money by using the term “economic development” and your rights and my rights mean nothing in Ford County when it comes to land use issues.

We are sending a message that the law in Ford County is not binding on those to whom our elected and appointed officials decide to extend special favors to at the expense of the rights of the rest of us. I can remember being taught that “People get the government they deserve.” My opinion is that we deserve better.

[lurker]

law.com Law Dictionary definition:

shall
v. 1) an imperative command as in "you shall not kill." 2) in some statutes, "shall" is a direction but does not mean mandatory, depending on the context.

It would be interesting to know how our elected Judge(s) in the 16th. District would rule if asked.....

[Tee]

One thing about Lowell...

He is good at holding our elected officials feet to the fire. He is good at calling them on their abuse of power and neglect for due process. He is a good ombudsman for the people.

Rock on Lowell! Keep fighting the good fight!

[Value Pack]

Catching up on my reading on this site and I ran across this.

Sad state of affairs that we have three County Commissioners that knew they were flouting the law and went ahead and did the deed anyway. Talk is that John Swayze wanted to vote no, but he did not have the brass balls to vote that way with over 275 people in the room for this ethanol plant. Brass balls or not, that makes him along with Goodnight and Williams just as guilty. According to people there, you gave every sign of voting no but when the vote came you were looking down at the floor when you voted. What was that, shame?

What does this do for law in Ford County? This was fairly barefaced and everyone knows about this. Will the voters forget?

You have to wonder about the Ford County Zoning Commission. How are they going to be able to sit on that board knowing that everyone recognizes that they have two sets of regulations? One written and one invisible. One for people with lots of money and those without a lot of money.

Last week I was told that Ric Marbouef, a home contractor, built a $400,000 plus house in Summerlawn for Gary Harshberger, the president of Biofuels. I have to ask how does a voting commission member get to vote on the matter after getting $400,000.00+ for building a house for the applicant? Is that allowed?

Zoning Commission Members: John Mullen, Scott VanderHamm, Grant Powers, Josie Lix, and (good old let me build your house (2005) and get my vote) Ric Marbouef. Grant Powers and his family are getting to sell water rights on this from what I hear. (Anyone know about this?) The Commission Members that have no hidden agenda or motives on this should resign. Knowing Grant Powers and Ric Marbouel, I don’t expect them to resign in protest.

Seems like everyone is getting something out of this including us. We get to suffer the loss of some our legal rights and respect for law in Ford County.

[lurker]

Good post Value Pack. Lots of greased palms in this county.

Keep us posted.

[lurker]

Go Get'm Lowell!

Suit filed vs. Wright plant builders

Plaintiffs claim officials didn't follow zoning regulations

By Tim Vandenack

The Hutchinson News

tvandenack@hutchnews.com

DODGE CITY - Critics of a planned ethanol plant near Wright have filed a lawsuit, charging that the Ford County Commission didn't follow proper procedure in allowing the project to move forward.

"They didn't follow due process," said Lowell Brakey, a consultant for the plaintiffs, who include Rodney Helfrich and several other property owners that live near the proposed plant location.

The suit, filed late Tuesday afternoon in Ford County District Court, claims the plan submitted to zoning authorities by Boot Hill Biofuels, the project developer, didn't meet the county's zoning regulations. It asks that the county commission's Dec. 18 decision granting Boot Hill a conditional use permit be voided and that Boot Hill be ordered to halt their activities pending a decision from the court.

Ed Stahl, a consultant to Liberal-based Conestoga Energy Partners, which is working with Boot Hill, said project developers worked closely with Ford County planning officials in crafting the proposal.

"Had we been instructed to do different, we would have probably done differently," he said.

Ford County officials, meanwhile, couldn't immediately be reached for comment.

In the lead up to the Dec. 18 vote, Helfrich and many others had spoken out against Boot Hill's plans, which call for construction of a $185 million, 110-million gallon per year facility one mile east of Wright off U.S. 50. They expressed concerns about the plant's water consumption and truck traffic it would generate in and around Wright, among other things.

But Tuesday's lawsuit doesn't get to those complaints, and Brakey characterized the filing as a means of making sure Ford County officials follow the county's zoning regulations. "They cannot write and pass regulations that are then ignored," Brakey said.

Whatever the case, Brakey said the suit would stall Boot Hill's plans until a court can settle the matter. The ethanol plant developer's plans called for a July construction start date, with completion in September 2008.

The lawsuit alludes to a set of zoning regulations approved by Ford County authorities in 1997. Among other things, the regulations say any project proposal submitted to zoning officials must contain things like topographical survey maps of sites in question and details of where buildings are to be located.

Brakey said the actual submission was lacking and that the issue is important because without such information, critics aren't able to ask germane questions during an application process.

01/17/2007; 02:38:59 AM

I can't remember a time in the past where Ford County has been held accountable for their illegal actions before other then an open meetings violation. To take them to court?



IT IS LONG OVERDUE.........

[lurker]

I hope they don't give this case to that retired puppet-Judge in Wichita... you know... the Judge that didn't quite render the exact decision on the whine knot dodge funds and modified it to include funding of other tourist attractions?

Anyhoo, the best I see is the business plan being submitted and discussed and approved ... with another chance to sway Swayzee.