PRESENTATION OF TOM FITZGERALD, DIRECTOR,
KENTUCKY RESOURCES COUNCIL, INC.
ON PLANNING AND ZONING IN BARREN COUNTY
July 29, 2003
I'm Tom FitzGerald and I am Director of the Kentucky Resources Council, Inc., a non-profit environmental advocacy organization providing legal assistance without charge to individuals and communities in the Commonwealth regarding environmental issues.
I come to you from a perspective of an advocate who has for 31 years, 23 of them as an attorney, represented landowners in matters relating to the protection of the use, enjoyment, value and integrity of their homes and lands. I have been involved in representing low to moderate-income landowners in air, waste, water and mining cases. I have been involved in siting issues related to solid waste landfills, hazardous and medical waste incinerators, junkyards, slaughterhouses, strip and underground coal and non-coal mines, dredging operations, shopping malls, cell towers, railroad switching yards; in short, a full range of issues in counties with and without zoning, in which the proposed change of use of land by one entity potentially affects others.
My perspective gives me a somewhat unique view of growth and development issues among these panelists. No one ever calls me because they are having a good day. They call because they are in crisis, and there is no other place to turn - because they perceive that their homes, their family, their health, their community is threatened. In all too many cases, regrettably, the tools which could have prevented these crises from occurring, and which could have moderated the impacts of changes in other land uses or intensity of uses on their lands, were available to local governments, but were not used because residents of the county or city had opposed adoption of planning and zoning.
Right up until the day when the junkyard moves next door, it is probably accurate that, given the choice, most people would prefer less restriction on their land uses. But once threatened, they certainly want more restrictions on other people’s land uses to protect their own.
The question of whether to adopt county-wide zoning is not really an issue of "whether" there should be any controls on land use. There are already a number of laws to which our lands are subject – health laws, disclosure laws, environmental laws - that are intended to protect the public and which, indirectly, protect the value of a homeowner or landowner's investment in their lands against the imprudent decisions of others.
Historically, most of my work has taken me to counties that have not adopted comprehensive planning and zoning. My work occurs in that space between dramatically different land uses – in conflicts between uphill and downhill, upstream and downstream, upwind and downwind landowners and their desired uses of land. It has been my experience that certain types of land uses will gravitate towards those counties in which it is perceived that, because of a lack of local planning and zoning laws, siting, expansion or operation of potentially noxious uses is easier. The hazardous waste treatment or disposal facility, the medical waste incinerator, the landfill, the contaminated soil treatment facility - all are generally considered undesirable as neighbors, and all find it easier to locate in unplanned counties, often distressed rural counties, rather than communities or counties which have planned for development and have adopted tools to require more consideration of compatibility with other land uses and existing land owners expectations.
The question before you is whether to adopt zoning regulations and zoning districts to give meaning to the comprehensive land use plan that you have already adopted for this community. The real questions boil down to these:
Will those things about this county and this community that you most value endure without zoning?
Will zoning enhance your ability to protect the aspects of this community that you value most?
As the county develops, will you be able to manage the conflict among land use changes and to minimize the harm from those changes without this tool?
Counties have an array of tools – from health regulation to general "home rule" powers to regulate in the public interest and to prevent nuisance. And there are state laws that address certain types of harms – pollution from industrial operations and the like. But in many cases, those tools are not designed to address local issues of compatibility, and that is where good zoning can be a welcome tool.
Merely adopting planning and zoning is not a cure-all. It cannot be a top-down cookie-cutter zoning. It must be designed to be no more restrictive than necessary to assure compatibility in development while protecting the agricultural base of this community and the quality of urban and rural life here. Zoning is only as good as the design and only effective when the community is involved in all phases – from design to implementation. There is no surrogate for active public involvement in governance.
Some thoughts to consider as you move forward in crafting your zoning regulations:
* Zoning must be linked to a strategy for provision of essential services. Where the community determines low-density development is desirable, for example, in Lexington where protection of the agricultural lands for horse farms was deemed a priority, urban levels of service were not extended to areas of rural density and low-impact use. Infrastructure should follow and support land use and zoning, and not lead it. Local governments, in conjunction with utilities, should identify levels of water, sewer, gas, electric and transportation services for planning areas within the jurisdiction of the planning unit, and utility service provision, extension or expansion at a level of service inconsistent with designated level of service for the area under that plan should not be approved by the Public Service Commission or applicable transportation planning agency.
* Citizen involvement in all phases of land use planning and zoning, helps to insure that the decisions and actions of the agency and of local government are grounded upon complete and full information, and is a practical and legitimate method of assuring the agency’s compliance with the requirements of county ordinances. Participation by citizens should be encouraged early in the process.
* Alternative dispute resolution provisions shall be incorporated into the zoning and planning process to encourage communication, flexibility, and consensus in land change decisions, rather than "winners and losers" and litigation.
* A balanced representation shall be the goal of all administrative or advisory bodies. In making appointments to such bodies, every effort will be made to encourage diversity and participation by members of the public;
* A strict ethical code requiring disclosure prohibiting participation on administrative bodies by individuals who have a direct or indirect conflict of interest, or whose involvement would give rise to the appearance of impropriety, should be considered.
At the foundation, the health of our democratic system and the future social, political and economic well-being of our commonwealth and its communities rests on the quality of the relationships among neighbors relative to their uses of land, air and water resources, between businesses and the communities that host them, between elected and appointed officials and the electorate, between our species and the natural world we inhabit, and between ourselves and those for whom we shepherd the future. Comprehensive, thoughtful and collaborative planning and zoning can enhance these relationships by assuring compatibility in future development.
I am pleased to be here and proud of this community and each of you for taking the time during these forums to explore these issues, to ask pointed questions, and to remain engaged in local government decision making.