DG CO “Position Statement” from BZA hearing

BEFORE THE BOARD OF ZONING APPEALS OF DOUGLAS COUNTY, KANSAS

In the matter of Appeal of
Natalya M. Lowther

In addition to the March 14, 2011 determination letter (hereinafter, the “Determination Letter”) sent to Natalya M. Lowether (hereinafter, the “Appellant”) which is the subject of this appeal, Keith Dabney, the Director of the Douglas County Zoning & Codes Department (hereinafter the “Zoning Administrator”) provides the following information:

I. Jurisdiction.

In considering this appeal, the Board of Zoning Appeals must be cognizant of its limited jurisdiction. The Board of Zoning Appeals only has jurisdiction to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of the Douglas County Zoning Regulations. Zoning Regs. 12-323-2.01. The Board of Zoning Appeals does not have the jurisdiction or authority to grant exceptions to the provisions of the Zoning Regulations where the use or exception contemplated is not specifically listed as an exception in the Zoning Regulations. Zoning Regs. 12-323-2.02. This means that the Board of Zoning Appeals cannot grant a “use variance” that permits a property owner to use his or her property for a use not otherwise permitted by the Zoning Regulations.

In addition, part of the appeal appears to request that the Board of Zoning Appeals set policy for the Zoning Administrator and the Zoning & Codes Department. With all due respect and as further provided below, the Zoning Administrator submits that this portion of the appeal is outside of the jurisdiction or authority of the Board of Zoning Appeals.

II. Appeal Issues.

The Appellant raises 7 issues in this appeal, which are addressed in sequential order as follows:

A. Issue Number One – Number of Mobile Homes.

The Determination Letter limits the Appellant to one mobile home on her small 10-acre tract. The Zoning Regulations permit one or more mobile homes as an accessory use to a farm”. Zoning Regs. 12-306-2.17. This does not say that the owner of a farm can maintain as many mobile homes on his or her property as the owner desires—the mobile homes must be an accessory use to a farm. Reference to the definition of accessory useis relevant here. An accessory use must be one that is customarily foundin connection with a farm of the nature of Appellant’s farm. Zoning Regs. 12-303-1.02.

The basis for limiting the Appellant to one mobile home is that she has provided no justification whatsoever as to how or why she needs more than one mobile home as an accessory use to a farm and the Zoning Administrator has no evidence whatsoever that more than one mobile home is customary for other farms of a similar nature to Appellant’s.

Note that the Zoning Regulations require a Conditional Use Permit for a Mobile Home Park. See Zoning Regs. 12-319-4.17. A “Mobile Home Park” is defined as an area of land on which two or more mobile homes are used for living purposes. Zoning Regs. 12-303-1.62. When interpreting and applying the Zoning Regulations, the Zoning Administrator must be careful not to allow a de-facto Mobile Home Park or permit property owners not to use Section 12-306-2.17 of the Zoning Regulations as a ruse to permit a Mobile Home Park or other use that is otherwise not permitted. In considering the Appeal’s appeal, the Board of Zoning Appeals should have the same considerations.

More justification for multiple mobile homes is necessary, than Appellant saying, “it’s an agricultural activity and I’m entitled to as many mobile homes as I desire”. The Zoning Administrator believes that his decision should be upheld because there is no justification for additional mobile homes and additional mobile homes are not customary for a farm of this type. As a result, the multiple mobile homes are not permitted because they would not be an accessory use to a farm.

B. Issue Number Two – Make and Model of Permitted Mobile Home.

Not much time need be spent worrying about this issue. The Zoning Administrator permitted a “Starcraft Trailer” because that is the type of mobile home that the Appellant told the Zoning Administrator that she wanted to use on her property. The Zoning Administrator doesn’t have an objection to her using a different/substitute mobile home as long as it satisfieds the definition of “mobile home” in the Zoning Regs.

C. Issue Number Three – Time Limit.

The Determination Letter limits Appellant to a limited timeframe for use of the mobile home on her property for reasons similar to the reasons the Determination Letter limits the number of mobile homes—that the mobile home must be an accessory use to a farm”. Once again, the Zoning Administrator is concerned that this provision in the Zoning Regulations not be used as a ruse to permit a use that is otherwise not permitted. Members of Douglas County Zoning & Codes Staff made multiple inquiries to sheep farmers in Douglas, Jefferson, and Leavenworth Counties and confirmed that sleeping facilities in close proximity to the sheep may be useful (but not necessarily required) on a temporary basis during lambing season (which is the basis for the Zoning Administrator’s even permitting one mobile home on the subject property). The Zoning Administrator was not provided information that indicates a mobile home, in addition to the existing primary residence, is customary or is needed on a year-round basis on a tract of land as small as the Appellant’s property. Although the sheep farmers indicate that sleeping in an SUV or truck, rather than a mobile home, is the more common method to be close to sheep that are close to birthing, the Zoning Administrator gave the Appellant the benefit of the doubt here and permitted use of the mobile home for limited times. The Zoning Administrator concluded, however, that occupancy of a mobile home for additional times would not be an accessory use to a farm.

As stated above with respect to the number of mobile homes, more justification for a year-round mobile home is necessary than Appellant saying, “it’s an agricultural activity and I’m entitled to year-round mobile homes if I want.” The Zoning Administrator believes that his decision should be upheld because there is no justification for year-round mobile homes and a year-round mobile home is not customary for other farms of this type and, as a result, the mobile home would not be an accessory use to a farm.

D. Issue Number Four – Agricultural Activities.

Once again, a mobile home is only permitted if it is an accessory use to a farm. The only justifiable reason for the accessory use of a mobile home (which, as noted above, the Zoning Administrator has determined is questionable at best) is during shearing and lambing seasons. Appellant’s property is only a 10-acre tract and a year-round mobile home, in addition to the primary residence, on this small acreage is not customary, nor is there justification as to how or why a mobile home is needed for any additional farming/agricultural operations.

E. Issue Numbers Five and Six – Number and Type of Occupants.

The Zoning Regulations require that a mobile home used as an accessory to a farm must be occupied by a family related by blood, or marriage, to the occupant of the main dwelling, or be a person or persons employed on the farm”. Zoning Regs. 12-306-2.17. The Zoning Administrator’s limitation as to number of occupants relates to the fact that Appellant has provided not credible explanation or justification as to why she needs multiple employees to work such a small farm and there is certainly nothing customary about this. (Note, the Zoning Administrator does not object if the employee/occupant has immediate family members who also reside in the mobile home during the limited time-periods, but the Zoning Administrator doesn’t believe that the Appellant has objected to this aspect of the Determination Letter.)

The main issue for the Board of Zoning Appeals to determine here is whether the Zoning Administrator was correct in interpreting Section 12-306-2.17 of the Zoning Regulations to require that the occupant of the mobile home must be related by blood, or marriage, to Appellant, or be an employee, working for bona-fide wages.

The Appellant urges that the Board of Zoning Appeals conclude that persons employed on the farmmay include “apprentices, interns, trainees, volunteers, etc”. The Zoning Administrator strongly disagrees with this assertion and believes that such an interpretation is simply a ruse to permit people to live in and occupy the mobile home in a manner not otherwise permitted under the Zoning Regulations. If the Appellant’s interpretation is accepted, it opens the door for landowners to improperly permit her to maintain and use additional residences on Agriculturally zoned property in contravention to the Zoning Regulations.

The Zoning Regulations state that words and terms not otherwise defined therein are interpreted in accordance with normal dictionary meaning. Zoning Regs. 12-303-1. Normal dictionary meaning of being employed requires that the person be an employee and actually be paid wages. The Zoning Administrator provides the following dictionary definitions:

Webster’s New World Dictionary: employee = A person employed by another for wages or salary.

Black’s Law Dictionary: employer = One who employs the services of others; one for whom employees work and who pays their wages or salaries. The correlative of “employee”.

Dictionary.com: employee = a person working for another person or a business firm for pay.

Merriam-Webster’s Learner’s Dictionary: employee = a person who works for another person or for a company for wages or a salary.

All of these dictionary meanings are consistent with one another: an employee must be paid wages or salary. The reason the Determination Letter requires that the person be paid “bona fide” wages is to make clear that wages of one dollar per day or other nominal wages doesn’t work—the person must be working on the farm for the purposes of earning wages and must be occupying the mobile home in connection with the farming activities the person is providing. The employed on the farmrequirement should not be interpreted allow occupancy of an otherwise illegally occupied mobile home.

F. Issue Number Seven – How Construed.

Appellant’s Seventh Issue is not an appeal of a determination of the Zoning Administrator, but rather a request that the Board of Zoning Appeals instruct the Zoning Administrator on the approach to use for future interpretations of the Zoning Regulations. With all due respect to the Board of Zoning Appeals, this issue falls outside of the jurisdiction of the Board of Zoning Appeals. The Board of Zoning Appeals has the authority to hear and decide appeals where it is alleged that the Zoning Administrator has made an error in the enforcement of the Zoning Regulations, but does not have any jurisdiction or authority to instruct the Zoning Administrator on how to make future determinations or interpretations.

III. Conclusion.

The Zoning Administrator requests the Board of Zoning Appeals to make the following findings and determinations:

A. Section 12-306-2.17 of the Zoning Regulations does not give Appellant the right to have an unlimited number of mobile homes on her property, occupied year-round by an unrestricted number of people.

B. The use and occupancy of mobile homes pursuant to Section 12-306-2.17 of the Zoning Regulations must be an “accessory use to a farm”. To determine otherwise would be to allow the creation of a “mobile home park” in the Agricultural District without having obtained a Conditional Use Permit pursuant to Section 12-319-4.17 of the Zoning Regulations.

C. For a mobile home to be an accessory use to a farm, Section 12-303-1.02 of the Zoning Regulations requires that the mobile home must be incidental to or customarily found with other similar farms.

D. Appellant’s farm is only a small 10-acre tract of land. There is no evidence that supports the need, nor is it customary, for a farm of this size to employ multiple year-round employees and to require multiple housing accommodations for these year-round employees.

E. The Zoning Administrator’s limit on one mobile home should be affirmed as limiting the mobile home to an accessory use to a farm.

F. The Zoning Administrator’s time limit on the occupancy of the mobile home should be affirmed as limiting the mobile home to an accessory use to a farm.

G. Other than for use during shearing and lambing operations, Appellant’s request for administrative determination provided no evidence or justification to conclude a mobile home on Appellant’s 10-acre tract is an accessory use to a farm. The Zoning Administrator’s decision to limit the use of the mobile home to Appellant’s shearing and lambing operations should be affirmed as limiting the mobile home to an accessory use to a farm.

H. To be “employed on the farm” as that term is used in Section 12-306-2.17 of the Zoning Regulations, the person must be earning bona-fide wages—apprentices, interns, trainees, volunteers, etc. do not qualify. The occupant of the mobile home cannot be “employed on the farm” as a sham to avoid the requirements of the Zoning Regulations and to permit an otherwise impermissible second dwelling unit on the property. As such, the occupant of the mobile home must be residing in the mobile home in connection with his or her employment and because his or her duties require the person to remain close to the farm. The Zoning Administrator’s interpretation of this term should be affirmed.

I. Occupancy of a mobile home on Appellant’s 10-acre farm should be limited to the Appellant, her family related by blood or marriage, or employees, working for bona-fide wages, of the farm. The Zoning Administrator’s limitation on the occupants of the mobile home should be affirmed.

J. The Board of Zoning Appeals has the jurisdiction to hear and decide appeals where it is alleged that the Zoning Administrator has made an error in any decision or determination, but the Board of Zoning Appeals does not have the jurisdiction or authority to instruct the Zoning Administrator as to how to interpret or construe the Zoning Regulations before a decision or determination is made. Thus, the Board of Zoning Appeals should not hear or decide Appellant’s request that the Board of Zoning Appeals guide the Zoning Administrator in policy matters for future determinations.

Respectfully submitted,

Keith R. Dabney
Director of Douglas County Zoning & Codes Department
2108 W. 27th St.
Lawrence, KS 66047

 

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