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]. 

On April 7th, the Bourbon County Commissioners discussed zoning. Commissioner Beerbower read some prepared remarks and said, “Let me reiterate, it is not a matter of if we will zone. It is a matter of what zoning will look like.” (source) He further addressed people who don’t want zoning in the county, saying,  “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)

I can definitely see some reasons zoning might be valuable as well as some reasons it might not. But let’s take an imaginary person named Fred who fits Commissioner Beerbower’s description. Fred believes that if zoning is implemented, it will place some type of limits on what he can do with his land. Commissioner Beerbower calls Fred’s belief an “outdated ideology.” But is it? If we were to enumerate all the things Fred might possibly do with his land without zoning, and then do the same thing with everything he might do with his land after zoning, are those two lists the same? If they are, then zoning does nothing.

If they aren’t the same, then zoning does remove some of the freedoms of what he can do to his land versus what he could do with it before. Now, that might not matter to Fred. If Fred wants to put a shooting range on his property, he’d need to get permission from the county commissioners. If Fred’s neighbors decide they want to prevent Fred from doing this, it isn’t a matter of working with their neighbor to create a compromise. They can now go to the commissioners and try to convince them to stop Fred. Now, whether you see that is a good or bad thing probably depends on whether you are Fred or the neighbor trying to determine what Fred is allowed to do.

(Note: The shooting range example comes from Mr. Eden’s comment about a conversation with Commissioner Beerbower.)

Commissioner Beerbower may call Fred’s view “outdated ideology,” but there are definitely some things that Fred can do without zoning that he cannot do with zoning. That’s kind of the point of zoning.

Now try to see Beerbower’s statement about zoning not taking away anyone’s freedom from his point of view. He might think he would never deny Fred’s request and it is just a matter of making sure it is safe. So from that perspective, Fred can still do what he wants with his land, it is just a matter of the commissioners making sure he does it in a way that makes his neighbors happy. So maybe the neighbors say they would be fine with the shooting range as long as it had a berm of a particular height. Fred may say, “Sure, we were going to do 6 feet, but if you feel more comfortable with 7, I can do that.” Everyone works together. Everyone is happy.
But what if everyone isn’t going to be happy? Maybe what would make Fred’s neighbors happy isn’t something Fred wants or can do. Well then it becomes a matter for the commissioners to tell Fred what he can or can’t do.

This isn’t necessarily good or bad, but it introduces a step in the way that Fred uses his land that wasn’t there before. Without zoning, Fred is the one who decides whether he wants to put in a shooting range. Zoning would give the commissioners the authority to say yes, no, or ask for changes.

When it comes to me personally, Commissioner Beerbower is right that zoning isn’t going to “rob [my] freedom and right to do whatever on [my] land.” But that is because I have no intention of doing anything on my property that anyone is going to want to control with zoning. Other people who actually make a living off their land are much more likely to want to do something with their land that would require commissioner approval. 

Zoning requires you to take on the burden of getting permission for things that are otherwise legal uses of your property, but it also gives you a greater say in what your neighbor is allowed to do with their property. If you think the commissioners are going to endorse the plans you want on your land, but oppose the ones you don’t want on your neighbor’s, then maybe you’ll retain your “freedom and right to do whatever on your land” for anything you might want to do and the extra step of getting permission will be just a formality. Once again, this isn’t necessarily good or bad, it is just a tradeoff.

It makes perfect sense why some people might support making this tradeoff and some people might be against it. It isn’t an irrational position to think that the current laws are sufficient, nor is it an irrational position for someone to be willing to take on more oversight in what they are allowed to do if it means they can have a greater voice in what their neighbor is allowed to do.

A lot of how people weigh the tradeoffs has to do with core principles, what someone thinks they might want to do with their property in the future, and how much they trust current and future commissioners. Since those three things vary wildly between individuals, we should expect to see people on both sides of the fence when it comes to zoning. We’ll look at some of those issues in the future, but if someone has a position different than yours, it might not be because of an “outdated ideology” and being “short-sighted.”

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]. 

Earlier this week, I wrote an opinion piece suggesting that there is no positive outcome to be had by commissioners using their personal money to fund a lawsuit against themselves and then spending your taxpayer money to defend against that suit. I walked through my logic as to why this is true regardless of whether you 100% support solar, 100% oppose solar, or fall somewhere in between. I maintain that there is no possible positive outcome (regardless of how you feel about solar) where the commissioners continuing to sue themselves is beneficial to the county. This is true regardless of the outcome of the lawsuit. Based on this, I called for the commissioners to drop their role as plaintiffs on the lawsuit.

At first, I was delighted to see that Mary Pemberton wrote a response and looked forward to reading what part of my logic she disagreed with. However, after working through her 1,100+ word submission, I was disappointed. While she definitely articulates her anger at a number of things and is clearly upset that anyone would suggest the commissioners’ lawsuit isn’t in the best interest of the county,at no point does she address the concerns I raised in my argument. She doesn’t point to any possible outcome where the county benefits by the commissioners maintaining their position as plaintiffs on a lawsuit they started before they were elected.

She mentions a number of grievances with how decisions have been made in the past. She calls on people to join her in unsubscribing from the places that publish her opinion because…they publish people’s opinions. She expresses her fear of fires, claims that Halloween is a “scary date” for signing contracts, complains about the county being responsible for maintaining roads, and offers her insights the lifespan of power inverters. There is plenty to read on various subjects, but there is one thing missing. She doesn’t dispute my argument. There is no mention of a path forward where an overall positive state is achieved by the commissioners’ continued use of their own money to pay for a lawsuit against the county and use your taxpayer money to defend against their suit.

My original point still stands. No matter how you feel about what has happened in the past, we need to look at where we are today and think rationally about where different paths will take us in the future. Whether you share Mary’s outrage at past commissioners, whether you give any credence to her concerns about “scary dates,” whether you are indignant or indifferent about solar, the path forward is based on where we are today. It branches from here. One path has the commissioners continuing to join a few plaintiffs against the county and burn taxpayer money to defend against that suit. There are no possible good outcomes for the county on that path.  But there is another path that has them drop off the suit and continue working to achieve the best results for everyone they represent.

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]. 

Bourbon County finds itself in the singular position of having every county commissioner joined with a few landowners as plaintiffs in a lawsuit against the county commissioners. Like most people in Bourbon County, I want to see more industries come to the county. Also, like most people, I want my county representatives to be fully engaged in carefully understanding any potential side effects, finding ways to address concerns, balancing risks, and working hard to facilitate healthy growth without throwing up unnecessary roadblocks.

The lawsuit creates an extraordinary state of affairs that has made me question whether the concerns of people like me were being represented fairly. I reached out to my commissioner, asking how he felt they could fairly represent all their constituents as a whole while actively joining a few citizens in a lawsuit against the county. I explained that this seemed like a pretty significant conflict of interest, but I wanted to have an open mind and hear what he had to say before fully forming an opinion.

I’d encourage you to ask your commissioner the same question. After carefully reading my commissioner’s position and re-reading the lawsuit a few times, I now have no doubt that the commissioners have positioned themselves such that it is impossible for them to make decisions for the best of the county as a whole—especially when it comes to working with solar companies. Whether the commissioners win or lose in their lawsuit against the county, the citizens lose by being deprived of commissioners who can ethically execute their duties.

I recognize that in their capacity as individuals on the lawsuit, they think they are doing something good for the county, but they are no longer merely private individuals. Their activities that may have started as individuals ruin their ability to function as commissioners for the county in this matter. Citizens should want commissioners who are sympathetic and will listen to the claims of the landowners who want to bar their neighbors from renting land to solar companies. However, remaining party to a lawsuit suing the county creates conflicts that prevent them from fairly executing their duties.

As plaintiffs in the lawsuit, the commissioners are making a bet that they can sue themselves to undo their predecessors’ decisions. Should they succeed as plaintiffs, it would catastrophically undermine the ability of this and future commissions to make agreements with any business that wants to expand into the county. It would likely expose the county and taxpayers to much larger lawsuits from landowners who have signed contracts to lease their land. It is hard to imagine any way for the commissioners to work with their defense lawyer and try to bring the lawsuit to an end to preserve taxpayers’ money while simultaneously funding and participating in the lawsuit as plaintiffs who are trying to take the lawsuit all the way to trial. Even for people who oppose industrial solar in any form, a win for the plaintiffs could hardly be seen as a net positive once the collateral damage is accounted for.

It appears to me that the most likely outcome is for the county to win the defense against the lawsuit, even with the commissioners’ best efforts as plaintiffs to make the county lose. In the scenario where the county wins the lawsuit, the commissioners will have squandered their ability to work with solar companies to address citizens’ concerns during the time that those concerns have the best chance of being addressed.

This isn’t hypothetical. Advance Power tried to have a meeting with the public on March 19th. This is precisely the sort of meeting that constituents would want the commissioners to attend. They could hear citizens’ concerns along with the solar company’s responses and information. However, the commissioners let everyone know they were refusing to attend, saying, “With everything that’s going on and things that we’re working on, we’re not going to associate ourselves with them at this point in time.”

Their response makes perfect sense from the standpoint of an individual who is suing both the solar companies and the county commissioners, but it is the exact opposite of the type of leadership we need from our commissioners. The commissioners are spending their personal money to sue the county and spending your taxpayer money to defend against their lawsuit.

As citizens of the county, we all have a vested interest in seeing our county commissioners remove themselves from this lawsuit as soon as possible so they can fully function in their capacity as our elected representatives, free of the ethical conflicts with which they are currently encumbered.

Based on all of this, I have asked my commissioner to drop himself from the lawsuit so he can function as a representative of all his constituents. I would encourage you to do the same.

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].