Thursday, Nov. 13, 2008
Yearout sets record straight on zoning for commissioners
by Kenneth Lassiter
A consultant who has been working closely with the county planning and zoning commission on revisions to the zoning and subdivision regulations warned county commissioners against being shortsighted with proposed additional provisions.
David Yearout, who has worked with the county through his company, Yearout Associates Inc., was brought in for Monday’s discussion by commissioners and Eloise Tichenor, planning and zoning director, as commissioners move closer to approving the revised regulations.
Also on hand were planning and zoning commission members Roger Wood, Tim Bailey and Paul Johnson, who were silent throughout the discussion between Yearout and the commission. Commissioners have expressed reservations in recent months about moving forward with the revisions without adding a provision that would allow the commission to deviate from the regulations in certain cases. Commissioners have also asked for provisions to address emergency situations with references to the aftermath from the Greensburg tornado where regulations there tied officials’ hands.
Yearout, who worked directly with Greensburg officials for months in the aftermath of the storm, said there is only one way for commissioners to loosen the regulations in cases of emergency – abolition.
“There’s only one way – abolish the regulations and abolish the planning and zoning commission,” Yearout said.
Yearout pointed out that smaller changes were made in Greensburg to loosen up the zoning processes, including zoning officials meeting once a week rather than once a month, but the statutory requirements for notice and hearings was still followed. Commissioner David Christy asked how long it took to get a matter through the process and Yearout said all the regular processes were followed. Christy said that was too long and Yearout’s response was to suggest abolishing the planning board. Christy replied he wasn’t going to do that. Yearout responded the commission has no choice, therefore, but to abide by state statute, which provides no process to circumvent the requirements for public notice and public hearings. Christy suggested the statutes need to be changed and Yearout replied that would be a legislative issue.
Yearout said officials in Haysville and Hoisington had taken steps to suspend normal zoning procedures during cases of emergency and had regretted the move. He said suspending the regulations in cases of emergency allows the area property owners to rebuild on their own terms but also could put a “cloud” on the property later when the owner tries to sell it or make another move with it during normal times.
“You learn how fortunate it was to be tough with the citizenry up front and make them go through that process,” Yearout said. “Those people’s lives have been turned upside down and it’s extremely desirable for officials to want to not get in the way and let them get things back in order. That’s what Haysville and Hoisington did, and they regret it to this day. All kinds of things can happen. The most long-term compassionate thing is to not bend the rules.”
Yearout said the key in Greensburg was to put more of the process in the hands of staff and the zoning administrator rather than making absolutely everything come through the zoning commission. He said some rules were loosened but the basic processes stayed the same.
“The truth of the matter is there was nothing we weren’t able to handle and we still went by what the statutes said,” Yearout said.
Yearout said a government can craft its regulations with the idea of putting a minimal amount of oversight on the public to make it easier to keep business as usual when an emergency arises. He said some things, like notice and required time between that notice and the hearing, are set by statute and can’t be avoided short of abolishing the board, as he had found while researching the matter for Greensburg. He said he wasn’t sure the county commission would want such a condition in place to allow deviation from the regulations in emergency situations because of the potential pitfalls.
“I want that condition,” Christy replied. He pointed out the legal implications of the decisions are why “we have lawyers.”
Commissioner Don Edmonds said the commission also wanted the ability to deviate from the regulations to respond to situations that happen about four to five times a year where apparently favorable circumstances for a zoning change are denied by the county. Yearout said the building of a good set of regulations can handle most of those issues. Edmonds said the revisions had been handled well by the planning and zoning commission but he “guarantees” within 90 days of their adoption a situation will arise to present a quandary for commissioners because it makes common sense but doesn’t fit the regulations. Yearout said there is no perfect set of zoning regulations anywhere, as there’s always situations that fall into the cracks.
Christy reiterated his main concern that there is no way for commissioners to provide immediate relief to the afflicted in case of an emergency through the zoning regulations.
“There are exceptions to every rule – you know that as well as I do,” Christy said. He said he had met with officials who had been at Greensburg, including an adjutant general, who said their biggest frustration was the amount of time it took to take care of matters.
Yearout asserted that the rebuilding process wouldn’t move faster just because the commission was able to push things through the zoning process faster. He said his experience in Greensburg hadn’t resulted in the same reflections.
“The immediate needs down there were monetary more than regulatory,” Yearout said. “Had the city abolished its regulations, nothing would have gotten done faster.”
Christy disagreed based on what he had been told. Yearout said the biggest issue he saw in Greensburg was that the city needed a place for people to put temporary structures to live in while their residences were being rebuilt. He said as long as the day-to-day matters can be handled at the staff and administration level, the notice and time delay factor is cut as much as it can be.
Discussion turned toward the commission’s recent stated intentions of dissolving the board of zoning appeals as it sits now and forming a new commission-appointed board of zoning appeals. The planning and zoning commission currently also sits as the board of zoning appeals. Yearout said the move is a county option, but the zoning appeals board only grants variances and special exceptions and argues the interpretation of regulations by administration.
Discussion meandered between the board of zoning appeals and the commission’s ability to deviate from the regulations. Yearout said the commission has the choice to set up a new board of zoning appeals but, by design, that board would rarely meet if the regulations are set up correctly. He said when state statutes changed in 1991 to allow a planning and zoning commission to also serve as the board of zoning appeals, he was originally against the idea but he now considers that viewpoint wrong, as he hasn’t seen a situation where the set-up caused an “inconvenience” to the public. Christy said he had received complaints about the attitude and behavior of the planning and zoning commission toward applicants, which caused concerns from him when it came to the appeals process.
The discussion moved on to the zoning authority of the county in lakeside improvement districts. Yearout said in his understanding the county’s zoning regulations apply in the improvement districts unless the districts are exempted by the county. One problem with that is the improvement districts, if exempted, don’t have the power to create their own zoning regulations.
Commissioners raised concerns about frontage requirements and their hampering of development and Tichenor said commissioners could remand that topic back to the planning and zoning commission for a recommendation on how those could be changed in the regulations. Edmonds said the requirements keep some land undeveloped when it could have a home sitting on it generating tax revenue.
“Everybody tries to do the right thing and the correct thing but sometimes you’ve gotta use common sense,” Edmonds said.
Yearout said that balance between being too lenient in zoning matters and micromanaging zoning is a hard thing for counties to maintain. Christy said he leans toward allowing landowners to do what they want with their land “within reason.” Yearout said determining what is reasonable is the key part of that process. Edmonds said he didn’t want the regulations to get so restrictive prospective property owners simply decided to go to another county rather than fight the red tape in Jefferson County.
Commissioners took no action in the matter.
In other business Monday, the commission:
• Canvassed the Nov. 4 general election.
• Heard an update from County Clerk Linda Buttron. She said the county would need to know what course to take with the switch to Kansas Police and Fire retirement for certain officials by Dec. 1.
• Heard an update from Francis Hubbard, acting road and bridge director. Hubbard said the county would receive some additional salt soon. Potential equipment purchases were also discussed but nothing was approved.
• Heard an update from Eileen Filbert, health department director. Filbert said no deficiencies had been found in a state survey of the home health program.
• Met with Filbert and County Counselor Jan Hayes in executive session for 15 minutes to discuss matters of non-elected personnel.
• Met with Susan Newell, 911 director. Newell reported Embarq’s rates for 911 maintenance rose roughly $400 per month in the new 36-month contract. She said those costs would be covered by 911 fees and, hopefully, grant funds.
• Met with Newell and Hayes in executive session for 10 minutes to discuss matters of non-elected personnel.
• Met with Chris Schmeissner, geographic information systems and information technology director, Buttron, and Hayes in executive session for 10 minutes to discuss matters of courthouse security.
