Article written by Angel Cushing
Yes, they really did try to ban barbed wire fences. The original zoning regulations went before county commissioners in August of 2019. They were described by citizens as a Homeowners Association for the entire county.
“5.9.4 Prohibited fences. No barbed wire or other sharp fence and no electrically charged fence of any type shall be erected or maintained. Provided, the Zoning Administrator may, when he or she deems necessary for security around commercial, industrial or public properties, authorize the placing of barbed wire on top of a fence no less than six feet in height. The Zoning Administrator shall determine the direction that such barbed wire must be installed. No wall or fence may be located within any required drainage or utility easement.”
Lyon County Proposed Zoning Regulations 2019, page 79
The Lyon County Zoning Administrator claimed this regulation was for city properties only and citizens were interpreting the regulations incorrectly.
Ok. Naturally, the next question is: How is the Zoning Administrator instructed to interpret these regulations?
“1.6.2 Overlapping or contradictory regulations. Where the conditions imposed by any provision of these regulations upon the use of land or structures are either more restrictive or less restrictive than comparable conditions imposed by any other provision of these regulations or of any other law, rule or regulation of any kind, the regulations which are more restrictive shall govern unless otherwise excepted.”
Lyon County Proposed Zoning Regulations 2019, Page 6.
Citizens were told that the requirements outlined in 1.6.2 did not apply to livestock producers outside of city limits because there was no contradictory or overlapping in the regulations. After all, rural areas are outside of the jurisdiction of the city.
Ok. So, what is the jurisdiction of these regulations?
“1.3.1 The jurisdiction of these regulations shall apply to all land located within the corporate limits of the City of Emporia and within Lyon County as established by the joint agreement of the governing bodies of the City of Emporia and Lyon County, Kansas.”
Lyon County Proposed Zoning Regulations, Page 5
The City of Emporia and Lyon County created one Comprehensive Plan and Zoning Regulations.
Using inter-local agreements, both the city and the county agreed to be governed by one set of zoning regulations. The Joint Comprehensive Plan was passed in 2017. The language of the Plan referenced all property as public property. For example, The Joint Comprehensive Plan (Plan ELC) detailed a map of public-use trails along creeks and rivers. Many of which, went across back porches and through barnyards.
City and County Planning Commissions and Zoning Boards are also combined under Joint Comprehensive Planning and Zoning. And the city will usually have the majority of representatives on those Joint Commissions and Boards. The problem is most people living in cities, would be happy to camp in the cattle’s pasture and fish out of the livestock watering ponds.
This diagram below illustrates how Joint Comprehensive Planning and Zoning found the cowboys of the Flint Hills in Lyon County, Kansas:
Joint Comprehensive Planning and Zoning is being pushed all over the United States as a method of implementing Affirmatively Furthering Fair Housing, Climate Justice and various other policies that would not be considered popular among the majority of Americans. They are commonly nicknamed with the word “Plan” followed by the first letter of the city and county being combined (PLAN Emporia Lyon County – PLAN ELC).
We have our fences, for now
Citizens in Lyon County managed to stop the completion of combining the Zoning and Appeals Board. The Zoning Board Members managed to get the Joint Planning Commission and County Commissioners to remove most of the language that referred to private property as public use in the Comprehensive Plan. And the county chose to separate planning and zoning from the city. However, we still ended up with form-based zoning.
“1.8.3 Exemption Determination. (For Properties less than forty (40) acres) The regulations rely on the Kansas Attorney General (96-86 Op. Att’y gen. 11, 1996), which summarized the “agricultural purpose” test as follows: “The agricultural use shall be substantial enough to indicate that the owner is not masking a residential use of the property within agricultural pretense as a ruse to gain exemption from zoning regulations.” The ZA is hereby granted the authority to determine whether facts support an agricultural use exemption is warranted in accordance with the criteria specified in this section. Upon such determination, the ZA shall issue a letter stating the facts supporting or denying the exemption, and the Department shall maintain a record of such exemption. Any person not in agreement with the Administrator’s determination may appeal the decision to the LCPAB.
1.8.4 Forty (40+) Acre Exemption/
Lyon County Zoning Regulations 2020, Page 3.
Parcels consisting of forty (40) or more acres will automatically be considered Agricultural without the need for an exemption determination.”
In this regulation, the Zoning Administrator has been given the power to determine which parcels will be considered agriculture, and the burden of proof is on the landowner. When citizens brought this example of form-based zoning to the attention of the Zoning Administrator and Lyon County Commissioners, they were given responses that stated: “The zoning administrator does not determine taxes.”
The Attorney General Opinion quoted above, actually concludes that if the owner is not obviously faking agriculture for cheaper taxation rates, counties should assume that the land use is agriculture. Kansas law states that regardless of the number of acres in a parcel, if the purpose of that parcel is agriculture, it should be zoned as agriculture.
This is just one example of the regulations. Every section is similar. The purpose of the regulating document is to give the Zoning Administrator authority over citizens. The Zoning Administrator is an unelected individual trained and awarded by various government bureaucracies to follow their instructions.
Form-based zoning is sold to elected officials as “Freeing up time by allowing the Zoning Administrator to be the gate-keeper.”
Form-based zoning was created for developments.
That cookie-cutter suburb is form-based zoning. It allows the developer to use the same study and permit on multiple parcels, as each parcel will be similar. This saves the developer a great deal of money and elected officials a great deal of time. It allows the Zoning Administrator to make decisions as problems are expected to be within the scope of conformation. Form-based zoning was never intended to be placed on entire municipalities.
Most of the zoning in the United States is Euclidian-based. Euclidian zoning is based on the geography of the land and how it is used. Form-based zoning is based on ideals and aesthetics.