Pinwheel (Lowther) BZA Presentation

BZA PRESENTATION
April 18, 2011

I’m Natalya Lowther, owner of Pinwheel Farm in Grant Township, Douglas County. I raise sheep and vegetables on a 12-acre farm that I’ve been developing since 1996. I respectfully come before you today to present my appeal concerning the interpretation and enforcement of Zoning regulation 12-306-2.17, which addresses Farm Worker Mobile Homes.

As a huge step forward from the violation notice that I received for similar activity in 2006, I truly appreciate the determination that the Director of Zoning and Codes granted on March 14, 2011, granting permission to use one Starcraft tent camper for housing myself and/or one paid employee for up to 90 days. I am currently utilizing the trailer and it is a great relief during this busy time of year with lambing and planting.

At the same time, 90 days, one camper, and severe restrictions on the nature of the relationship between myself and any other occupant, is relatively little help to me compared to the potential of the full range of use of the code.

TODAY’S CONCERN

I want to make it clear that I am not asking for any exemption, exception, variance, or waiver from existing regulations, or any other special treatment. I am asking to be able to use my existing permitted rights without interference or unusual scrutiny.

I am asking that an unwritten policy be reversed on a broad scale, not just for me but for other bona fide farmers. I am asking, on behalf of all Douglas County farmers, that the County’s policy of enforcing standards that are more stringent than the written zoning code be ended, and that all Douglas County farmers henceforth be free to utilize their permitted rights as set forth in the zoning code.

For this reason, any public comments that address perceived specific neighborhood impacts of the permitted use are essentially irrelevant. Neighborhood impact issues, and any legal issues surrounding the code, were considered when the zoning code was adopted, and the public had opportunity for comment at that time. If circumstances have changed and the code needs to be revised, then it must go through the same lengthy due process as before. Meanwhile, the zoning code as written must be followed. Public comment should focus solely on whether the County should or should not allow me to exercise these permitted rights.

REASONABLE EXPECTATION TO USE PERMITTED RIGHTS

When I bought the land in 1996, and when I had it rezoned from Industrial to Agricultural in 1997, I did so with the expectation that the structures and uses permitted by the zoning code would be available to me when I chose to implement them.

If any jurisdiction sets a precedent that landowners, especially businesses, cannot count on being able to use their land for its current legally zoned purposes, that is a very strong disincentive for businesses to start up or stay in that area. Economic stability relies on the orderly enforcement of duly promulgated regulations. Enforcement action against businesses that are in compliance with the code is harassment, not to mention a waste of our tax dollars.

Forbidding existing permitted uses devalues the land and discourages investment. It amounts to the County “taking” my land without just compensation, which is against our U.S. Bill of Rights. Douglas County has a longstanding reputation for being difficult for non-traditional farmers to work in, and many capable and profitable small farmers have chosen to locate just outside Douglas County for this reason.

I will assume that the Board of Zoning Appeals has carefully read the detailed appeal that I submitted and is familiar with my request. For the sake of others present, my appeal is for me and all qualified Douglas County farmers to be allowed to fully utilize the Agricultural Zoning Rights at 12-306-2.17 of the County codes, without restriction.

FOUNDATION IN STATE LAW

The farm use mobile home policy and definitions uphold the State’s declared policy, which specifically states,

2-3201. Protection of farmland and agricultural activities; purpose. It is the declared policy of this state to conserve and protect and encourage the development and improvement of farmland for the production of food and other agricultural products.

12-758. Same; existing uses; alterations; agricultural land exempted, exception. (b) Except for flood plain regulations in areas designated as a flood plain, regulations adopted by a city pursuant to K.S.A. 12-715b, and amendments thereto, or a county pursuant to this act shall not apply to the use of land for agricultural purposes, nor for the erection or maintenance of buildings thereon for such purposes so long as such land and buildings are used for agricultural purposes and not otherwise.

DEFINITIONS IN THE ZONING CODE

12-303-1.

For the purpose of this Resolution, certain terms and words are hereby defined. Words used in the present tense include the future; words in the singular number include the plural and words in the plural number include the singular; the word “building” includes the word “structure”; the word “shall” is mandatory and not directory. Words and terms not defined herein shall be interpreted in accord with their normal dictionary meaning.

“Dictionary meaning” refers to a published general dictionary, not to another section of the county code. The following are the only words or phrases in the subject regulation that are defined in the Zoning chapter:

12-303-1.02. ACCESSORY USE. An accessory use is one, which is clearly incidental to or customarily found in connection with, and (except as otherwise provided in this Resolution) on the same lot as the principal use of the premises.

12-303-1.60. MOBILE HOME. A vehicle used, or so constructed as to permit being used, as a conveyance upon the public streets and highways and constructed in such a manner as will permit occupancy thereof for human habitation, dwelling or sleeping places for one or more persons, provided further that this definition shall refer to and include all portable contrivances used or intended to be used generally for living and sleeping quarters and which is capable of being moved by its own power, towed or transported by another vehicle.

SUBDIVISION REGULATIONS NOT APPLICABLE TO SUBJECT PROPERTY

The Subdivision regulations were passed in 2006, long after the farm existed in its current parcels. No subdivision has occurred or is planned. Definitions used in the Subdivision chapter do not apply to the Zoning chapter, because the Zoning Chapter does not cross-reference its definitions to the Subdivision Chapter.

11-101(c) Applicability

Unless expressly addressed as an exemption in Section 11-101(d) below, no Lot, tract or parcel of land shall be divided into two or more parts for the purpose of sale, transfer or Development, whether immediate or future, except through the procedures and in accordance with the standards set forth in this Chapter. For property within the incorporated city limits of Lawrence, no building permit shall be issued unless the property is platted. If subdivision is required within the City of Lawrence, the Subdivider shall plat all of their contiguously owned lands that are not platted.

THE REGULATION IN QUESTION: 12-306-2.17

One or more mobile homes shall be allowed as an accessory use to a farm so long as they are occupied by a family related by blood, or marriage, to the occupant of the main dwelling, or by a person or persons employed on the farm. This mobile home must be at least 150 feet from another dwelling, and must be provided with a water supply and sanitary sewerage facilities, and may not be used as a rental income property. Mobile homes shall not be located within the “F-W” or “F-F” Overlay Districts.

“ONE OR MORE MOBILE HOMES”

  • Any number.
  • Vehicles that are portable contrivances used to or intended to be used for living and sleeping quarters and capable of being moved by their own power or towed or transported by another vehicle. This includes any sort of RV, travel trailer, conversion van, slide-in pickup camper shell, tent camper, etc.
  • No time limit.

“SHALL BE ALLOWED”

The word “shall” means it is mandatory that the use be allowed.

“ACCESSORY USE TO A FARM”

The farm is the main use of the land. Any other use is an accessory use.

Not all Agricultural zoned land is used as a farm, even if there are farm buildings, implements, and livestock present. Keeping a horse for pleasure or using a tractor to maintain landscaping are not farming. No agricultural product is produced. A farm:

  • Files Schedule F for income taxes
  • Produces, processes and sells agricultural products grown on the farm
  • Collects and remits Sales Tax if transactions are not exempt
  • Has insurance, licensing, certifications, etc. appropriate to the nature of the business
  • Likely participates in farm-related organizations, conferences, training, etc.

“EMPLOYED ON”/EMPLOYEE OF” THE FARM

By and large, it is not the business of Zoning regulations to stipulate specific business relationships/contracts/agreements, and 12-306-2.17 doesn’t. “Employed”, in its dictionary definition, indicates participation, use of resources, utility, etc. Zoning has no jurisdiction over whether a factory staffs itself through a temporary agency, for example. The nature of the relationship between a farm and the people who perform the work of that farm is confidential Human Resource Management information. With respect to Dept. of Labor regulations, confidentiality outside DOL is still maintained in the private sector.

One can employ a person, a wagon, or a pickup truck for transporting a bale of hay from one place to another. They are all employed on the farm. But only the person could be an employee.

Not all persons who move hay on the farm are employees. They could be the farm owner, business partners in the farm, relatives, friends, volunteers, apprentices/interns/trainees, contract labor, suppliers, service providers, independently self-employed, employees of a custom harvest crew, etc.

Any person who moves hay on the farm is performing an agricultural activity, unless the hay originates off the farm and is being used for non-agricultural purposes such as an archery target.

LIMITED SCOPE OF REGULATION

The Zoning and Codes department can easily allow farmers to utilize their rights under this section of code without restricting Zoning and Codes’ ability to enforce against non-farm abuses. I know there are valid concerns regarding “camping” and abuses of the Ag building exemption.

The “camping” that is permitted by this section of code is very limited, as shown here (Exhibit A). The criteria of “farm”, “mobile home” and “relative or person employed by” must all be met simultaneously for this section to apply.

In addition to human habitation uses, there are other possible agricultural uses for vehicles that meet the description of “Mobile Home”. Zoning and Codes does not regulate the use of vehicles other than “Mobile Homes”, so either any non-human-habitation use of vehicles is exempt, or none of them are exempt.

All that is necessary for farms to have free use of the rights granted by 12-306-2.17 is for farms to complete a checklist such as this one (Exhibit B). This should only be needed once for all uses, so that non-permanent mobile homes can be brought in and removed at will. Permanent mobile homes, as “structures”, are subject to different standards and permits may be needed for water & sewer connections, etc., but must be freely allowed through the use of such a checklist.

ECONOMIC IMPACT OF PAST RESTRICTIONS TO USE THIS RIGHT

Between July and December of 2010, people from out of town offered to employ themselves at the farm for a total of approximately 3000 hours, if I could provide simple housing on the farm. Some had their own RVs, some wanted to use mine. I had to turn them all away. This resulted in significant lack of help on the farm, loss of potential production, failure to accomplish essential infrastructure improvement goals, etc. I have people interested for this year that are waiting for an answer. I need their help. Other small farms would like to have similar help.

The fact that this right has been withheld for years has had a cumulative adverse effect on the farm. Not being informed of my right to appeal the decision to deny my right made the situation far worse. The 2006 code violation notice resulting from a retaliatory complaint by tenants who were being sued for breach of contract adversely affected my action against the tenants, increasing the damages I suffered from their breach. Not being able to provide surveillance to my flock on pasture last summer when the guardian llama died caused unnecessary mental anguish.

If I had been allowed the free use of these rights all along, I would not have tried to gain them through a Conditional Use Permit. The CUP process took a lot of time and money, and unnecessarily strained neighbor relationships that may be difficult to restore. The time for the CUP was time that could otherwise have gone into planning, infrastructure, production, and other business activities for the farm that would have resulted in significant progress compared with now.

SUMMARY

Using non-permanent mobile homes to house persons employed on the farm is a sustainable, economically efficient solution that benefits the farm, the people who want to work at the farm, the environment, and the community as a whole. Small farms are an important and growing sector of Douglas County economic development. As farmers, we already wear a great many hats and are regulated by many diverse regulations. We are professionals in a challenging career. Douglas County Zoning and Codes should trust our judgment and integrity, and work cooperatively to support this essential and challenging economic sector.

I ask that the Board of Zoning Appeals direct the Zoning and Codes Department to make several changes to its operational policies:

1.     Henceforth the Department shall follow the written County regulations in a broadly construed manner in regard to farms and agricultural activities, in support of the State policies, and

2.     Henceforth the Department shall work cooperatively with farmers to find mutually agreeable solutions that support and encourage agricultural production of all kinds, when there is any significant lack of clarity regarding the codes applicable to farming. Other County departments and staff such as Public Health, Sustainability, etc., shall be involved as appropriate.

3.     Agricultural activities shall be considered those which contribute to the production of agricultural products and the overall maintenance and operation of a farm. This includes providing for the basic needs, such as housing, of persons employed at the farm.

4.     If there is any question whether a farm exists, a checklist developed in cooperation with farmers of all types in the County shall be used to fairly assess the reasonable preponderance of evidence.

PUBLIC SUPPORT

I am not alone in my concerns. The signatures on this informal petition represent only a tiny fraction of those who support Douglas County small farms. These more than 70 people agree that:

Douglas County Zoning and Codes Department should support its family farms, which are already heavily regulated at the State and Federal level, by interpreting zoning and other local codes broadly regarding agricultural activities and purposes. Especially, Douglas County should encourage farms’ full use of existing permitted agricultural zoning rights to produce our local food in a sustainable, environmentally friendly manner.

Some of the people in this room have come to show their support for my position on this appeal. I would like them to stand so you can see their number.

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