BOARD OF ZONING APPEALS
Courthouse Lawrence, Kansas
I, Natalya M. Lowther, the owners of the property having the following legal description in Douglas County, Kansas, to-wit:
SE ¼, SE ¼, Section19-12-20 10 acres, pin no: 023-074-19-0-40-01-004.05-0
hereby notify the Douglas County Board of Zoning Appeals and the Administrative Officer that I appeal from the ruling of the Administrative Officer made on the 14th day of March, 2011, and that I desire to be heard and present my facts and evidence to the Douglas County Board of Zoning Appeals as provided by the Zoning Regulations under Section 23-323 and such appeal is taken by me for the following reasons,
At issue is the interpretation and application of 12-306-2.17 of the Zoning Regulations, which outlines the permitted right in the “A” Agricultural district to use mobile homes (including RVs and camping trailers) to house persons employed at the farm.
In his March 14, 2011, letter, Mr. Dabney made a “narrowly construed” determination that pursuant to 12-306-2.17 I am only allowed to use one Starcraft camper (meeting the definition of “mobile home” in the same chapter) for a maximum of 90 days (with a possibility, not a promise, of extension) for occupancy “limited to [myself] and/or up to 1 [one] employee receiving bona-fide wages and carrying out legitimate agricultural activities on the farm.”
I will commence to implement the use permitted by the determination as allowed in the letter to meet immediate needs. However, for the longer term, I am appealing the following specific aspects of the determination, so that the very narrowly construed approval can be extended to the full range of activities permitted by right in the zoning code:
1) NUMBER OF MOBILE HOME: The zoning code states “one OR MORE mobile homes [RVs and camper trailers meet the Chapter 12 definition of “mobile home”] SHALL be allowed…” The zoning code does not limit the number of mobile homes allowed, presumably relying on common sense and utility to impose reasonable natural limits. My farm operation would possibly use up to 6 small units at any given time, generally only one or two, but I would like to be allowed the full range of use permitted by the code at my discretion to carry out my agricultural business of raising sheep and vegetables for local markets, without having to file a separate determination or appeal for each change. Opportunities and situations can change at a moment’s notice. This is why I want to use non-permanent mobile homes instead of permanent ones.
I am appealing the determination that only one mobile home is being allowed.
2) MAKE AND MODEL OF MOBILE HOMES: The determination limits the definition of “mobile home” to “Starcraft Trailer”. This does not allow the flexibility to upgrade, nor to replace the Starcraft if it is damaged by a storm, etc. If a mobile home is not able to be conveyed on public highways under its own power or by towing with a light-duty pickup truck, then I understand it would require permanent sanitary and water facilities, ties downs, etc. as a permanent mobile home. Otherwise, alternate sanitary and water provisions approved by the health department are sufficient so that the portable nature is retained throughout its use. Assuming the Board of Zoning Appeals affirms the zoning code as written, additional mobile homes would probably be different designs, types, brands, etc. Some might be owned by the person working at the farm and occupying the mobile home. The code does not specify ownership of the mobile homes
I am appealing to be allowed to use any vehicle(s) that fits the zoning code definition of “mobile home”.
3) TIME LIMIT: The determination sets an unusually limited time (90 days) for the permitted use, and even references that this is a departure from usual determinations regarding accessory uses for farms.
I am appealing for all time limits be removed, so that my farm activities are not disrupted by on-going re-application to implement uses that are permitted by right with no time limitation in the zoning code.
4) AGRICULTURAL ACTIVITIES: The determination addresses shearing and lambing only, and does not address other agricultural activities at which the occupants would be employed at the farm, including security for the flock on pasture throughout the summer and fall, and other general farm duties associated with vegetable production, harvest, etc.
I am appealing to be able to use the permitted mobile home(s) for occupancy by persons engaged in all agricultural activities at the farm.
5) and 6) NUMBER AND TYPE OF OCCUPANTS: The determination letter limits the occupancy of the “mobile home” to only myself (the farm owner) and one “employee”, and stresses that this applies only to employees receiving wages. The zoning code permits occupancy by “a person or persons employed at the farm”; based on my research, the primary dictionary definitions of “employed” specify use, service, effort, work, etc., but do not specify wages or other compensation. In absence of a single official definition, the word “employed” must be construed broadly to include anyone who is currently doing work on the farm, as a contractor, self-employed, volunteer, unpaid apprentice or trainee, etc. It must not be confused with the different word “employee” (not used in the code) which does refer to financial or other compensation.
I am appealing for the mobile home(s) to be occupied by more than one person other than myself if needed.
I am appealing for the mobile home(s) to be occupied by persons employed at the farm, i.e., “used in some process or effort; put to service” or “devoting or applying (one’s time or energies) to some activity”, without the necessity of “bona fide wages”. “Persons employed at the farm” may include those who are self-employed at a particular aspect of farming (harvester, sheep shearer); contract labor receiving wages from a third party (part of a custom crew) or performing similar work on various farms (a professional caretaker managing the farm or doing chores during the farmer’s absence, who does similar work for other farms, for a fee); apprentices; interns; trainees; volunteers; etc.
7) HOW CONSTRUED: Given the history of the situation (beginning about 1999, when I learned that non-farm-related permanent tent camping was not allowed and therefore such camping never occurred; continuing in 2006 when I was cited for using the Starcraft in essentially the manner now approved in the determination except not knowing that a written permit or electrical inspection was required, nor being notified of these requirements in the violation notice that I recall) and the ongoing confusion between this permitted-by-right mobile home use and “camping”, I am concerned that the statement directing that the determination be “narrowly construed”, as well as other specific wording in the determination, is indicative of a desire to prevent me from freely exercising my permitted rights under 12-306-2.17. It remains to be seen what other stumbling blocks are put in my way, and what other rights are unreasonably withheld. My farm has already suffered an unreasonable burden of expense, effort, lost opportunities, and interruption of activities due to the citation in 2006, ongoing difficulties in obtaining accurate information (resulting in this appeal being filed now instead of more than a year ago, or in 2006), having to go through the CUP process in order to exercise permitted rights that should not require a CUP, etc., and now going through the formal determination and appeal process. Inability to use this permitted right resulted in the loss of an estimated 3000 hours of volunteer labor from apprentices/trainees between July 2010 and December 2010 alone.
I am appealing that the Board of Zoning Appeals determine that the code at 12-306-2.17 should be broadly construed in my case as well as in the case of other farms wishing to use non-permanent “mobile homes” to house persons employed in agricultural activities at the farm, whether or not for wages. A checklist similar to the one I presented with my Request for Determination should be sufficient to recognize legitimate requests to exercise this permitted use.
Further, I am appealing to the Board of Zoning Appeals that they strongly encourage the Zoning and Codes Department to make all reasonable efforts to encourage, rather than obstruct, my bona fide agricultural activities through working cooperatively with me to address any particulars that arise in implementing this permitted activity or any other permitted activities on my properties. I am asking to use non-permanent vehicles to carry out a permanent use (housing persons employed at the farm). I need to do so in a manner that can adapt readily to the changing needs of the farm season–rather than having several permanently installed mobile homes all the time but used infrequently, we can move non-permanent units to the places they are needed. Some flexibility in the application of codes geared towards permanent structures is reasonable, provided that sanitation, water, and basic safety needs are met. Beyond a reasonable level of checking that I am making a diligent effort, as I have all along, to respect and follow the regulations as written, further repeated attempts to thwart a permitted use are clearly beyond the call of duty and might be mistaken for a bias or personal interest against me or my activities.
The names and addresses of record owners of adjoining property within a 1,000 foot radius are listed below:
See separate email attachment.
[Signature, address, etc. and office use forms on actual submittal]