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]. 

In the Zoning Meeting in Fulton on Tuesday night, I raised a concern that there seems to be a big difference between what two members of the committee (Brian Ashworth and Brian Wade) think zoning will accomplish. (See Two Brians, Two Views Of Zoning) It is very different for anyone to form any coherent opinion of zoning when the committee has polar opposite ideas of what it will actually do in Bourbon County. What I stated in the meeting was:

“Brian Ashworth said it won’t prevent anything, just make sure there are common-sense guidelines being followed. For example, with solar, it might require setbacks from neighboring buildings, EMS training, or fully funded decommissioning agreements. However, Brian Wade has said that zoning is the tool to keep landowners from leasing their land to solar companies. These are two very very different goals. Mr. Ashworth thinks zoning will be a scalpel to carefully shape the way landowners use their land, Mr. Wade thinks it is a sledgehammer that will dictate what can and can’t be done.”

When I said this, Mr. Wade shook his head as if I was misrepresenting him. I want to make sure I correctly represent him, so I went back to find the video. It is hard to hear because it was recorded on a cell phone, since at this point they were not streaming their meetings, so the mics at the table weren’t being used.

Here is what Mr. Wade said:

“ My neighbor hit me up this morning at the gas station. He lives in Linn County, and, uh, him and another partner farm a bunch around us and he said if it wasn’t for zoning in Linn County, he’d have 5,000 solar or 5,000 acres around their house off of 52 highway.”

My best understanding of his statement is that the land owners who wanted to lease their land for non-agricultural use (to solar companies) were stopped by the fact Linn County is zoned.  The result of zoning wasn’t to simply require a certain amount of setback or a decommissioning agreement. It didn’t provide some type of”common-sense” guidelines. Instead, he seems to indicate that they were prohibited from using their land how they wished.

If you want zoning to be used as a tool to keep solar out as Mr.Wade said it did in Linn County, then you should be concerned by Mr. Ashcroft’s view that it won’t do that.

If you support zoning because you feel it will still let land owners do what they want with their land as long as they follow “common-sense guidelines,” then you should be concerned when Mr. Wade indicates it is the mechanism that prohibits certain land use.

The point in my statement on Tuesday was that, despite trying to understand what zoning would mean for Bourbon County, I have no basis for forming any logical opinion on the topic because I have no idea what it would mean for land use other than farming and cattle.  Based on the differences between what members of the zoning advisory committe have said zoning will do, it appears I’m  in good company.

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].                                                                                                                                                                                                                                                            

Up until last week, the zoning advisory committee remained shrouded in mystery for everyone except those who could find the time to attend in person. No minutes have been published, and the meetings were not streamed to the public like advisory committees have been under previous commissioners. (See Commissioner Beerbower’s explanation of his view of the Zoning Advisory Committee as a democracy vs. the need for transparency.)

The veil was ripped last Wednesday when FortScott.biz streamed the meeting. Looking through the hole that had been torn in the opaqueness, those of us who couldn’t physically attend the meetings got our first look at the workings of that committee and the things being discussed that had formerly been obscured from the public view. So maybe that is a bit dramatic, but the point remains, the public was now able to see what was happening with the same level of transparency as city and previous county advisory committees.

For me, the statements made by two people named Brian on the Zoning Advisory Committee (Brian Ashworth and Brian Wade) provide the best illustration of the fundamental disagreement between members of the committee (and possibly the public and commissioners) when it comes to zoning. Understanding these two views of people who support zoning is key in any thoughtful discussion of the benefits and drawbacks of implementing zoning, as Beerbower says, the commission has already established they will do.

Brian Ashworth stated that the goal of zoning is not to prevent anyone from doing what they want to with their land. He said the purpose of zoning is to make sure a landowner wanting to put in something commercial or industrial would need to follow some guidelines to be a good neighbor, but it wouldn’t stop them from using their land as they see fit.

This sounds completely reasonable and could mean things like, if a landowner is going to put in a field of solar panels, they might be asked to put a row of trees between the panels and their neighbor’s house. Or maybe it would mean asking the solar company to locate battery arrays 500 feet or more from neighboring property and make sure the fire department is comfortable with understanding what to do in the rare, but still possible, event of a fire from the electrical systems or the situation most of us have experience where a neighbor’s field being burned that gets out of control if it happens to threaten the solar field. Those types of suggestions probably fall into the common-sense type of things that would happen on their own among neighbors who are actually looking for reasonable accommodation. Maybe zoning helps make those conversations more likely. Sounds reasonable, right?

However, Brian Wade offered a different view of the purpose of the zoning committee. He talked with admiration about how Lynn County’s zoning was able to prevent landowners from renting their land out to solar companies. He didn’t talk about how the zoning laws allowed the county to guide installations with some best practices for fire preparedness. He didn’t talk about how zoning allowed some reasonable setbacks that gave neighbors some nice trees to look at. No, he talked about how great it was that zoning had been used as a tool to prevent the landowners from leasing their land.

Mr. Wade’s goals as presented in the meeting were completely different from Mr. Ashworth’s stated goals.

If you want zoning to be a tool to prohibit landowners from using their land in legal ways that you don’t want, then Mr. Wade’s goals probably match yours. If you want zoning to be a process that helps guarantee good communication and reasonable accommodations between neighbors, then Mr. Ashworth’s goals probably align with what you want.

However, the bigger question is this: If zoning is implemented, what will we actually get?

(Note: Commission Mika Milburn says she will have the meeting streamed on May 13th, so hopefully the process will be more transparent going forward & kudos to her for trying to bring the transparency of these meetings back to the same level of previous commissioners.)

Several weeks ago, there was a reasonably cordial exchange between David Foster, who opposes zoning, and Mika Milburn, who supports it. County Commissioner Mika made a very good point about zoning that is worth considering:

I understand your fear, but I have fear as well that bourbon county will some day be primarily owned by out of state or even out of county people that do not care nor respect our county and the people that call it home, so many counties in Kansas are zoned and it did not kill them! Although I disagree with you that this will kill our county David I certainly respect your opinion and agree with you on many other things.

At a high level, I believe Mika is saying that there is a way to do zoning that is good for the long-term interests of Bourbon County. This is a perfectly reasonable position, and I completely agree with her. Zoning done perfectly and administered perfectly could potentially have some benefits for the county over not being zoned.

However, we shouldn’t be comparing a utopian execution of zoning with no-zoning. We should be comparing the zoning we will actually get with the lack of county zoning we have today. What makes it difficult is that it is hard to predict exactly what we will get, and it is impossible to say how it will actually be used by current and future commissioners. So, while Mika may be optimistic about her goals for zoning from the commission she sits on, residents should be weighing the risks and rewards of zoning under both the current and future commissioners. It is less of a question of whether good things could come from the decisions made by the best commissioners and more a question of the harm that might result under the worst commissioners in the future. People will evaluate these risks in different ways and will likely come to different conclusions.

So that is thinking about the way zoning might be administered in the future, but what about the way it is enacted today? In other words, what type of zoning are we likely to actually get? Well, let’s look at the current zoning advisory board. This board consists of Brian Wade, Christine Farbo, Brian Ashworth II, James L. Banworth Jr., Mary Pemberton, Jason Yaunt, Amanda Spicer, Pete Owensby, and Mike Houston. They are meeting in the commission room at the courthouse on Thursdays at 5 p.m. starting April 17th and running for 5 weeks. Hop on over to the county’s YouTube channel where all the county meetings are streamed and archived, to see how the process is going.  What’s that? You say you can’t find any of the meetings? Are you sure you looked hard enough? Does that seem strange?

Even though the advisory board meetings under previous commissioners were streamed, the current commissioners have inexplicably broken with this tradition and made the peculiar decision to leave the streaming turned off for these meetings. It isn’t just past commissions that make these types of meetings accessible to the public. A similar advisory board at the city streams their meetings in order to maintain transparency. The commissioners have also decided to forgo taking minutes at the meetings, so there is no official record of what is discussed.

Multiple requests by citizens asking the commissioners to stream these meetings have been denied. In a recent poll, every participating voter except one asked that the meetings be streamed. The sole exception was a vote by Commissioner Beerbower, who voted that the meetings should not be streamed.

Since the evidence suggests that the commissioners think their goals are better served by making these advisory meetings less transparent to the broad population than what has been done in the past, how likely is it that those goals are in the best interest of the broad population of Bourbon County?

That isn’t a rhetorical question. Apparently, Mika feels confident that this process will produce zoning that will be used in a way that will be better than no zoning in the county. This isn’t an unreasonable position, and I’m sure she is not alone. Others may see the downsides of zoning outweighing any potential benefits. The important thing is to look at the process, ask yourself the above question, and then let your commissioner know what you think.

Mark Shead

Additional note: After the meeting ended on Wednesday, Brian Wade indicated that he was unhappy with this piece because it wasn’t the truth. He was walking out the door, so I may not have caught everything, but it seemed he felt that the decision to not make the meetings available in the way that past commissioners have done with past advisory commission meetings was made by the advisory committee, not the commissioners. I would suggest that, since the advisory committee is appointed and directed by the commissioners, the decision is ultimately that of the commissioners, and if the commissioners wanted to make sure the meeting was conducted with the same level of transparency as similar meetings, they could have done so. However, it is worth noting that Mr. Wade felt the committee had the option to make the meetings accessible but chose not to. He mentioned several times that he didn’t want people to be able to see the meetings unless they came in person.

In my first article about zoning, we examined Beerbower’s statement, “Those that hold on to the outdated ideology that zoning somehow robs their freedom and right to do whatever on their land are shortsighted.” (source) We looked at whether zoning actually does nothing as he claimed or if it does change what you are allowed to do with your land. In my second article, we examine why rational people might be both for and against zoning and how, even if everyone were to assume that the current commissioners were incredibly competent and would fully represent their interests, some people may still side with Jefferson’s core principles regarding government. Commissioner Beerbower may consider Jefferson to have “outdated ideology” and be “shortsighted,” but, just like there are rational reasons to want zoning, it isn’t unreasonable for someone to agree with Jefferson.

Given we’ve considered zoning with a premise of the commissioners acting in the very best interest of the county, it is worth considering whether or not that premise holds.

In November, the three commissioners-elect, David Beerbower, Leroy Kruger, and Brandon Whisenhunt joined local citizens  Bob Casper, Katie Casper, Timothy Emerson, Samuel Tran, Karen Tran, and Michael Wunderly in suing the county commissioners and the solar companies to try to undo the actions of the then-current commission. The details of the case are interesting, though for the sake of this discussion, it shouldn’t matter too much what you think of the merits of the case. What we are going to look at is how you are being represented as a citizen of Bourbon County.

On 12/30/24, the lawyer representing the county made a motion asking the judge to dismiss the case because the lawsuit (filed by the three incoming commissioners and some local citizens) “fails to state any cause of action or set forth facts sufficient to support any claim under Kansas law.” The way that a motion to dismiss is handled is that the judge has to “pretend” that the plaintiffs can prove every single thing they have claimed in their lawsuit. If in this “pretend” scenario, the plaintiff still wouldn’t win, then the case is dismissed. If there is some possible scenario where one of the plaintiffs’ claims could win, then the case is not dismissed.

So when the commissioners Beerbower, Kruger, and Whisenhunt took office in January of 2025, the county found itself in the absolutely ridiculous position where every sitting commissioner was paying with their own money to fund a lawsuit against themselves and then using taxpayer money to defend against that lawsuit. I’ve heard people argue that they didn’t know they were going to be elected when they filed the lawsuit, but since the election was November 5th and the lawsuit was filed November 20th, fifteen days had elapsed when the commissioners-elect could have recognized the gross conflict of interest and asked to be removed from the lawsuit. Even if they were sympathetic to the cause of the other plaintiffs on the lawsuit, it is clear that they couldn’t play both sides at the same time without either behaving unethically to the other citizens who were plaintiffs or choosing to act against the best interest of the county as a whole.

Instead of defending the lawsuit with their recently hired county lawyer (who cost $110,000 per year), they retained outside counsel to defend the county. If they believed that outside counsel could reduce the costs of defending a lawsuit more quickly and at less expense than the recently hired county attorney, then it would have been their duty to the taxpayers to do so. However, their next action made it clear that wasn’t the plan.

Remember, there was an open motion asking the judge to dismiss the case if there was no way the plaintiffs could win, even if they proved every one of their claims. Every taxpayer in the county has a vested interest in making sure that the county doesn’t spend thousands of dollars of tax money on defending against a lawsuit that a judge knows the county will win ahead of time, no matter what the plaintiffs prove in court.

On March 3rd, 2025, the commissioner’s lawyer withdrew their motion to dismiss. This meant that they told the judge, “Never mind. Even if you know that we will win the lawsuit, we want the lawsuit to continue.”  Why would commissioners do this? Why would they want to continue paying the outside lawyer to continue the case? Why would they ask the judge to NOT consider if there was any legal basis for the lawsuit? It clearly is not in the best interest of Bourbon County to drag out the lawsuit if it is clear what the end result will be.  However, there are a few people who might want to drag out a lawsuit that the judge knows they can’t win. Those are the people paying for the lawsuit against the county in the first place, including the three commissioners-elect when it was filed.

The fact that the commissioners intentionally filed a lawsuit, knowing they would use their own money to sue themselves and then use your taxpayer money to defend against that suit, is unexplainable. The most gracious explanation is that they didn’t fully realize what type of situation that was going to create, but the fact is that they refused to drop off despite calls to do so on ethical grounds. The fact that they have hired an additional lawyer with your taxpayer money only to instruct him to ask the judge not to give an early ruling on the merits of the case appears to me to be completely unconscionable.

Given the clear preference for undermining the county’s defense of the lawsuit by withdrawing the request for the judge to rule on the merits of the plaintiffs’ case, it is hard to imagine any way that the commissioners on the lawsuit could be said to be operating in the best interest of the county.

Bringing this back around to the original point. In my previous piece, we assumed that you have no doubt that the current commissioners are acting completely and 100% in your best interest as a citizen and taxpayer of the county. That allowed us to look at zoning in a best-case scenario. But now you should consider the facts of the decision to file a lawsuit, knowing they would soon be in office and have to use your taxpayer money to defend against it. Consider that they hired an outside lawyer, not to expedite the end of the lawsuit, but to prolong it. Consider that the commissioners on the lawsuit have refused to drop off to avoid the clear conflict of interest.

Next, consider whether or not that track record gives you confidence in their ability to fairly represent your interests and the longterm interests of the county in implementing zoning. If it does and you support the idea of zoning, then by all means, give them your full support. However, if it raises concerns, then even if you support the idea of zoning, you should consider the track record of the two (originally three) commissioners who chose to file a lawsuit against themselves with their money and pay to defend it with yours.

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].

BB-2024-CV-000075 – Motion to Dismiss

BB-2024-CV-000075 – Original Petition

BB-2024-CV-000075 – Withdrawal of Board of County Commissioners Motion to Dismiss

In my last piece, we looked at the commission’s stated position that people who don’t want zoning have an “outdated ideology” and are “shortsighted.” (source) We looked at reasons that a person might agree with implementing zoning in Bourbon County, and also some reasons why someone might disagree.  There are rational reasons for both sides. Some, if not most, of the people I know who oppose zoning do so on the grounds of core principles and a long view of the different viewpoints and quality of leadership that they expect to cycle through the commissioner seats over the coming years.

Months before George Washington was elected President for the first time, Jefferson wrote, “The natural progress of things is for liberty to yield, and government to gain ground.” He was commenting on the need for limits to the government’s power—especially in how long someone could stay President. While he agreed that the presumed President, George Washington, would make a good leader, he felt that our system of government should be designed to work well with a good President, but also work with a bad one that we may not yet anticipate. Jefferson felt that the amount of authority given to the government becomes the starting point from which it will continue to “gain ground” and the way to preserve liberty is to make sure you don’t give the government more control when you had a good leader than what you’d want if you happen to get a bad one.

Many people who oppose zoning share a similar core principle that leads them to approach any growth of government with the same concerns as Jefferson.  The establishment of a framework where landowners must obtain permission from the commissioners to use their land in ways that are otherwise lawful is a long-term concern. Even if they have full faith and trust in the current commissioners, looking to the future means realizing that other commissioners will come, just as Jefferson recognized about the Presidency.

Zoning enables the county to designate specific land uses that require commissioner approval.  If you have a core principle that believes that the county commissioners today and in the future are going to make these approvals in your best interest, then zoning is a great way to make sure that if your neighbor has to get permission from the commissioners in order to make sure their use is more in keeping with what you will find acceptable. (According to Johnathan Eden Commissioner Beerbower has said a shooting range would require this permission.)

On the other hand, some people have a core principle that reflects Jefferson’s concerns.  Even if they would like to see their neighbors have to ask the commissioners for permission for everything the current commissioners propose today, they recognize the natural tendency of government to “gain ground” and believe that the potential inconvenience of their neighbor using their land as they see fit is a much lower risk than the cumulative ordinances that will be enacted by current and future commissioners if given the authority provided by zoning.

It is easy to see why people might rationally support zoning. It is equally easy to see why they might rationally be opposed to this. For the sake of argument, let’s assume that the current commissioners are Washington-level leaders and no one in the entire county has any concerns that they would make any decision that isn’t in the best interest of the county as a whole. Jefferson tells us the authority that we give to our government should be constrained in a way that handles the worst leadership we can imagine, along with the best. Whether you support zoning or not, you should be wary of political rhetoric that dismisses the core principles that embody Jefferson’s concerns as “outdated ideology” and labels those who hold these principles as “shortsighted.”

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].