When the noise resolution was presented on Monday, the commissioners’ lawyer said it should be given to the planning committee. After hearing this recommendation, Beerbower moved to vote on it in the current meeting. He and Tran passed it over Milburn’s objections.

If you read through what they voted for, you’ll notice something interesting  in  this  section:
Now you might see the term “heating toss” and assume it is a misspelling that just went unnoticed. Perhaps the commissioners who voted for it treated the whole adage of “read things carefully before you vote for them” just like the “listen to your lawyer.” Stuff like that might be nice to say, but don’t let it get in the way of creating new regulations for the taxpayers. What good is a commission meeting if the citizens have the same legal rights after the meeting as they had before?

So while you might think they didn’t actually take the time to read it, why assume the worst?  I’d like to suggest that we assume the best!

Let’s assume Beerbower and Tran DID indeed read it carefully, thought through exactly the repercussions of what the document says, carefully examined any side effects, and believe it does exactly what they want to see enacted for the betterment of Bourbon County. If we make those assumptions, maybe “heating toss” is the name of a game, a time-honored tradition that has been played in Bourbon County all the way back to the time when dragoons camped at Fort Scott, and bison roamed the plains.

The game is often called “hot potato.” With careful reflection, Tran and Beerbower have determined that they want to prevent people from playing “Heating Toss” (aka “hot potato”) in Bourbon County. You may think it is a harmless game, but they know better and have made a law to fine people who introduce this hated game (well, hated by two of the commissioners anyway) into the county. It is for the betterment of the county as a whole! You may think that you’d rather live in a county where commissioners do not waste their time making laws against various children’s games, but you’d be wrong. Wrong, wrong, wrong. Your government knows better. You may just be too dumb to understand.

That’s the optimistic view that assumes they carefully read what they voted on. Or maybe, just maybe, they just didn’t take the time to read what they were voting for.

Had they read it, you’d think they might have questioned whether it was a good idea to fine people $500 for “any noise” that is greater than 45 dB at 75 feet between the hours of 10 pm and 7 am.   That is a level of sound that includes things like older air conditioning units, a dog barking, a donkey braying, or starting a semi.

But surely they wouldn’t vote for something they didn’t fully understand or hadn’t read. Right?

PDF of the noise resolution in the agenda packet from 12/18

In October, I wrote a piece about how the commissioners had passed a resolution to ban running a particular computer program. Ostensibly, they were trying to make it illegal to run loud generators, but instead of writing an ordinance about generators or sound, they issued an ordinance that would include three silent computers that can fit in the palm of your hand without saying a single thing about what they claimed they were trying to address.

Despite having full access to paid legal counsel, despite technologically savvy citizens who are happy to provide advice for free, despite knowing that the issue with a loud generator is, well, the loud generator, the commissioners managed to pass an ordinance that was completely divorced from the actual sound problem. It was written to ban what a tech- and business-savvy middle schooler might run in their bedroom, while being useless when it comes to preventing another identical generator-run installation that uses a different algorithm.

If the commissioners, in an effort to prevent loud, noisy generators, accidentally ended up banning things so trivial, we should be very concerned that when they spend your taxpayer money in lobbing their nuclear bomb of zoning at solar and wind installations, it might not only miss what they say is the mark, but do significant collateral damage. That was my concern back in October. What happened since that silly moratorium made me realize that I severely underestimated just how bad that blast radius could be.

There is a planning committee created by the commissioners to make recommendations on zoning. As usual, this committee contains people who were not elected. They also didn’t go through the normal process of having citizens submit letters of interest. Instead, the members were hand-selected by the commissioners. This isn’t necessarily a bad way to select people and it has a distinct advantage for anyone trying to figure out where the commissioners are trying to take the county. This hand selection means that when the committee passes a resolution, it is being made by the people the commissioners felt most represented their goals for the future.

So with that background, residents should be paying very close attention when the planning committee votes on a resolution. We got a very insightful glimpse on page 7 of the agenda packet for the commissioners meeting on 11/17. There was a resolution, passed unanimously by the planning committee, that said:

The Planning Committee, passes unanimously. recommends that the Bourbon County Board of Commissioners enact a moratorium, effective immediately, requiring that any new business—specifically, commercial or industrial—that is not agricultural in nature and located in unincorporated areas of the county, be required to obtain a special use permit prior to commencing operations. This moratorium should reference the existing Bourbon County zoning (taxation) map as the basis for determining current land use designations.

The purpose of this moratorium is to protect the county and its residents while the Planning Committee continues the process of developing more detailed and comprehensive zoning regulations.

There were some legal issues with the recommendation, so the commissioners didn’t end up discussing it, but even if they couldn’t put a moratorium on all businesses worded in this way, it doesn’t diminish the desired goal. We can clearly see what the committee (and the commissioners who appointed them) see as a desired future. The planning committee, that hand-selected group the commissioners thought were the best people in the county to accomplish their zoning goals, unanimously resolved to recommend a moratorium on all new non-agricultural businesses in the county. It didn’t pass by a small margin; it wasn’t just discussed. They unanimously passed a resolution to make this recommendation, and that is a very big deal.

Some might say it was just the political back and forth and doesn’t really mean anything, that some of the people voting for it didn’t think it would pass, etc. But consider the actual implications: If you want to start a commercial lawn mowing business and you are outside the city limits, they want you to have to get special permission from the commissioners. If you want to start a business doing small manufacturing of high-end telescopes, the resolution recommends that your business should be illegal until the commissioners give it their blessing. If you want to start exercising your skills as a mechanic, start a printing company, create an LLC to make furniture, or anything else in the rural county areas, every single person on this committee voted that you should be required to come hat in hand to the commissioners and answer all their questions about your business and beg them to make an exception to the moratorium to allow you to pursue your business idea. 

This desired change by the planning committee is a fundamental shift. We currently live in a county where the default position is that you are allowed to start any legal business and move forward with it. You might have a good idea and do well. You might have a bad idea and go bankrupt. Either way, you are free to pursue your capitalistic endeavors without being subject to the whims, biases, and the sometimes general confusion of the commissioners.

For an average member of the community, voting for a resolution to recommend such an action would have come with a huge reputational risk. Would you really want to be on the record as having voted to move from a default of saying yes to business to a default of saying, “you have to get permission from the commissioners first”? Somehow, not a single person on the committee, who I might remind you, were hand-selected by the commissioners, looked at the resolution and said, “I’m not sure I want my name on something that does this to our local economy.” Instead, every single one voted for it.

As I’ve said before, the issue with zoning is not whether there is a hypothetical way to implement it that would do no or only minimal harm. The question is how likely we are to get a future where the damage from zoning isn’t egregiously worse than whatever the commissioners think they are trying to attack by this massive expansion of their powers. This unanimous resolution from the planning committee gives us a peek into the future we are headed toward, a future that further increases the probability that the “cure” of zoning will turn out to be worse than the “disease.”

Mark Shead

Note: FortScott.biz publishes opinion pieces with a variety of perspectives. If you would like to share a perspective or opinion, please send a letter to [email protected]. 

Mark explains two approaches to dealing with loud generators. This video shows the protections we have in place today and contrasts them with the proposals for the future.

Last Monday, the commission voted to put together a resolution to create a planning committee with the idea that it could eventually become the zoning committee when they implement zoning. It sounds like they want to try to vote to approve it today on August 11th.

After listening to all the zoning discussions in the community meetings, I am convinced that there is a potential future where zoning could be implemented in the county that would not be harmful and might even provide some benefits. Even with perfect execution, I’m not sure it is worth it. But either way, just because something is possible does not necessarily mean it is probable. So the real question is, how likely is Bourbon County to end up with zoning that is not harmful if implemented today? The answer for today is very near 0%. It might be different in the future, but right now, every piece of evidence we have indicates that implementing zoning would be a fiasco.

Does that sound like a bold statement? Not really. All we have to do is look at a few recent situations that are much less complex than zoning and use the outcome of those situations to project what would happen if zoning is implemented today.

First, let’s consider the recent lawsuit where the county lost by default. When a lawsuit comes to the county, it is supposed to make its way to the county counselor, and they will show up for the hearing date and defend the county.  Despite receiving a summons, despite knowing that the lawsuit was in process, and despite the hearing date being clearly posted to kscourts.gov, no one showed up to represent the county. It isn’t exactly clear why, and for the purposes of my argument here, it doesn’t matter. The point is that the county is struggling to function in what should be a very trivial matter of showing up to defend against a lawsuit when the judge schedules a hearing.

But maybe that was just a fluke. Do we have any other similar situations?

Let’s consider a second example: the issue of the Southeast Kansas Regional Juvenile Detention Center.  In June, the Sheriff’s department suggested that the county could save money by switching to a different provider. Later in June, the county learned that it owns 1/10th of the detention center—ownership that would be forfeited if they pull out of the contract. Not only does the county own part of the detention center, but one of the commissioners is on the board that sets the prices. Unfortunately, he has never attended any of the board meetings.

Later in July, the commissioners voted to cancel the contract, but they missed the July 1st deadline by about 20 days, so the county is stuck in the contract until 2027.  Was it a good idea to cancel the contract? I have no idea. But I do know that if you are on the board that sets the price and you don’t like the price, the first thing to do is to show up for the board meetings. And, if for some reason you actually do have enough information to know it is a good idea to cancel, it seems like it would have been a good idea to not miss the date by 20 days so you are committed for another year. And if you do miss the date by 20 days, it might make sense to attend at least one board meeting before you vote to cancel the contract.

The list goes on. Now when I look at these types of situations, I don’t see a commission that is necessarily doing a bad job. I see a commission that is new. There is a huge body of knowledge they are trying to acquire quickly. Based on their past work history, it is unlikely they are going to have much prior experience to draw from. That isn’t criticism, it is just pointing out that there is a lot to do and learn, and it is reasonable to expect some missteps along the way as they find their footing.

However, we can also look at these types of situations and get a pretty good idea of what type of results the county will have to live with if they move forward with creating a planning committee as a step toward implementing zoning. The county commission is struggling with basic functions like showing up for a lawsuit, showing up for board meetings of county-owned entities, and deciding on issues before contracts lock you in for another year. These are things that have a high probability of being handled correctly once the commissioners acquire the experience and knowledge they need to effectively do their jobs. Implementing zoning has a very high probability of doing injury to the county and a small chance of being done in a way that is beneficial—even once they have experience. Without experience, we can easily extrapolate the expected results.

Imagine you are Houdini’s manager and he wants to do a stunt where he is fastened in chains, put in a box, and dumped in the ocean. If many of his attempts to do the stunt on land result in failure, you would be wise to caution him against doing the far more risky version underwater. Once he has a solid track record of escaping his bonds on land, then the underwater version starts having a chance of being successful.

Until the commissioners have a track record of handling the basic functions, they shouldn’t launch a planning committee taking steps toward something that has a high degree of risk. The two examples I listed above give the expected, most probable outcome if they decide to do it before.

Mark Shead

Note: FortScott.biz publishes opinion pieces with a variety of perspectives. If you would like to share your opinion, please send a letter to [email protected]. 

After attending all the community meetings by the zoning advisory committee, there were a few things that stood out. In particular, it was very interesting to hear the different views of property rights and how much control individuals feel they should have over what their neighbors are allowed to do with their land.

One individual explained that when he burns his grass, he sometimes loses control of the fire and burns off his neighbor’s field as well. Right now, he didn’t seem to think it was any big deal, but if his neighbor was to put up solar panels (or presumably anything else valuable), his out-of-control fires might cause damage. The actual destruction didn’t seem to be a concern, but he was worried his fire-burning practices might make his insurance rates go up.  He wanted zoning implemented to keep his neighbor from being able to install solar panels. By the same logic, he’d probably oppose someone building a valuable house across the road from his land or anything else that might require any change in his fire-burning habits to avoid destroying his neighbor’s property.

Other people explained that they had bought their small hobby farm because they liked the way the neighbor’s land looked and didn’t want to see it change from the pretty fields they were used to looking out. They wanted zoning so they wouldn’t have to look at solar panels. Others said that they felt their house was more valuable because it looked out over their neighbor’s pastureland, and if the neighbor decided to put in something different, their view wouldn’t be as nice, and that might make their house not be worth as much. They wanted county zoning to make sure their neighbor kept their fields looking the way that they think makes their house the most valuable.

What is fascinating about all these positions is the shift it represents in the belief that the property owner has a right to use their land as they see fit. Instead, they see that right as being diminished from what is normally expected, and instead, neighbors have an increased right to determine what the property owner is allowed to do with their land.

In the late 1800s, Kansas had a similar issue, but back then it was driven by the invention of barbed wire. Cattle owners who were used to letting cattle run free weren’t particularly excited about farmers and ranchers who were putting fences around the land they owned. The range ranchers felt they had a right to run their cattle on their neighbor’s land, and this disagreement launched the “fence cutting wars.” From the perspective of the free-range cattle owners, it didn’t matter who owned the land. They had a right to their neighbor’s land in a way that was impeded by fencing.

The “fence cutting wars” were eventually settled in favor of property owners. The current difference of opinions on how much control people should have over what your neighbor’s land looks like (or how much effort you should be expected to expend avoiding catching it on fire) might eventually be resolved with the pendulum swung the other way.

Mark Shead

Note: FortScott.biz publishes opinion pieces with a variety of perspectives. If you would like to share your opinion, please send a letter to [email protected].