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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Submission to the Smart Growth Task Force  Posted: August 18, 2001

WRITTEN STATEMENT OF TOM FITZGERALD, DIRECTOR,

KENTUCKY RESOURCES COUNCIL, INC.

BEFORE THE SMART GROWTH TASK FORCE

PLANNING COMMITTEE

July 31, 2001

Members of the Task Force Planning Committee, my name is 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 represented landowners in matters relating to the protection of the use, enjoyment, value and integrity of their homes and lands. Since 1978, 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 use of land or water resources by one entity potentially affects others. It is fair to say that in each of those cases, someone thought the proposed development to be less than smart.

My perspective gives me a somewhat jaundiced view of growth and development issues. 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.

And therein lies the rub it is always easier to ignore someone else s troubles, but today s advocate for less regulation, today s opponent of land use planning and zoning, today s one world government conspiracy theorist, today s red-baiter, is tomorrow s victim, asking too late that something be done to protect their rights.

Historically, most of my work took me to counties that have not adopted comprehensive planning and zoning. 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 tools to require more consideration of compatibility with other land uses and existing land owners expectations.

Because of the lack of effective planning and zoning in many counties and cities, the state legislature and executive branch become embroiled in these siting and land use issues, through consideration of whether local participation in siting issues should be maintained under Chapter 100 or foreclosed by state regulation; and by erecting regulatory frameworks which provide for some degree of local participation in permitting and siting decisions in the absence of local planning and zoning.

Thus, in recent years, the legislature as adopted mechanisms to provide local participation in siting decisions on solid waste landfills, on tire burning facilities, commercial hazardous and medical waste incinerators; and on contaminated soil treatment facilities.

As an advocate involved with many of those communities affected by these facilities, I support state intervention to prevent harm and assure accountability. I believe, however, that the process of state intervention in these siting and land use questions is not, in the longer term, a sufficient surrogate for local initiative and local participation in land use decisions.

As you review and evaluate growth and development in our Commonwealth, my first recommendation would be to identify incentives that could be employed to encourage communities to develop comprehensive plans and zoning procedures that are appropriate for their jurisdictions. Funding priority for economic development and other monies, where appropriate, should be linked to adoption of plans for development and infrastructure, just as we have linked state approval of new projects generating waste to local adoption of waste plans.

Among the needs, particularly of small communities, is a source of technical and legal support that could be provided through our state universities and colleges, to assist communities in assuring both proper adherence to the procedures for development, publication, adoption, and defense of comprehensive plans and zoning regulations, and to assure that the plans and regulations are appropriate for the geography, hydrology, economy and other needs and constraints of the community.

My second recommendation comes from my experience as one of the negotiators in the exhausting process of revising Jefferson County s land use plan and zoning regulations, called Cornerstone 2020. There are those who have suggested that it is so named because, at the current pace, that is approximately when it will be completed.

Like many other counties with a core urban center, Louisville and Jefferson County have seen a decline in the city core and expansion of development at the fringes of the formerly developed areas. Loss of arable farmland has been significant, and the lack of a clear plan for development of rural areas has led to decisionmaking concerning land use that is highly land-consumptive, and driven largely by infrastructure issues. The effect of the low-density development in the county areas has been significant - an increase in vehicle miles traveled, with attendant impacts on air pollution and economic development in the area; a field of dreams mentality concerning infrastructure which places many of the costs of development on the shoulders of the public, and which diverts funds, growth and investment from the urban center, and a leapfrogging of development into rural areas within and outside of the county.

As you review smart growth, it is appropriate to evaluate how to encourage better planning by linking development to capital investment in infrastructure, and requiring coordinated planning and investment so that infrastructure decisions follow rather than drive planning. 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.

My third recommendation addresses the many process issues involving planning and zoning. I believe that the strength of a community is in its health as a community, measured in its quality of life and in the stability and vitality of its neighborhoods, commercial and industrial areas.

What has become apparent in the process of trying to forge a consensus on planning and zoning matters in Jefferson County is how deeply divided and distrustful communities of interests exist in development matters. I don t believe that I am alone in my concern that the national trend of distance, disaffection and discontent that is often reflected in the relationship between the public and those elected and appointed to positions of governance, has carried over into the planning and development process. In many cases, the lack of real land use planning makes each zoning case a battlefield where any land use change is seen as creeping sprawl and the first domino to fall.

In order to grow healthy communities, we must do better at bridging the distance between the public and those elected and appointed to positions of governance.

In order to encourage more and more productive public participation in governance relating to development and land use, I would recommend these principles be affirmed by this Task Force and incorporated in any revision of comprehensive planning and zoning laws:

1. The right to petition government for redress of grievances, which is an inalienable and fundamental right that encompasses protection of the minority and the right to dissent in governmental processes, against litigation intended to stifle participation or silence dissent.

Lawsuits or threats of litigation against members of the public which are intended or which have the effect of chilling protected speech, and which constitute a strategic lawsuit against public participation, are direct and intolerable threat to our democracy. The Attorney General should be directed to intervene in such cases in order to assure that the right to petition government is not restricted or thwarted by such SLAPP suits. Any revision to Chapter 100 should address SLAPP suits and provide mechanisms for speedy resolution of such claims, and stringent penalties for abusive use of the legal process to chill protected speech.

2. Procedural due process is another bedrock right, which is broad enough to include the rights of adequate notice, timely review of complete applications for licenses or approvals from local government, including changes in land use, adequate opportunity to prepare comments, the right of access to the administrative record at reasonable cost or without charge under appropriate circumstances; adequate opportunity to present comments before the governing administrative and political bodies; and the elimination of physical, cultural and language barriers between the public and government.

As the focus of governance has returned to state and local government in recent years, the involvement of local governments in regulatory matters has increased. The success or failure of local land use, zoning, health, air quality, environmental and floodplain management programs will depend, to a significant extent, on the role played by citizens in the regulatory process. While public involvement is not a surrogate for governmental action, citizen participation in the monitoring of compliance with terms, conditions, and requirements of licenses, permits and approvals granted by local units of government is a legitimate and important supplement to the regulatory authority of local government. Citizen involvement in all phases of land use planning, zoning, air quality, health, floodplain, and other local regulatory programs, 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 in all phases of administrative processes should be encouraged and assisted; and participation by citizens in the review and determinations on requests for changes in land use, zoning, or other aspects of land use planning and zoning should be encouraged early in the process.

3. Alternative dispute resolution provisions shall be incorporated into the zoning and planning process to encourage communication, flexibility, and consensus in land changes, rather than litigation.

4. 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;

5. 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 required.

6. Administrative and appellate processes within county government shall be reviewed to assure that all barriers to public involvement are minimized, including cultural, language, and physical barriers.

7. The administrative appellate officials and boards which hear and decide appeals from decisions regarding licenses, authorizations or permits, shall be distinct from the governing bodies of the agencies whose decision is under review, and should be adequately trained.

8. Where licenses, permits, or authorizations are given, sufficient inspections shall be made and documented to assure compliance with the license, permit, authorization and any conditions thereof. Where a citizen initiates a request for inspection, the request and all action taken shall be recorded. Where the information provided would, if true, constitute a violation of the permit, license, or authorization, an inspection shall be made within a time certain (10 days) after receipt of the request. If the information, if true, could present an imminent harm, an inspection shall be made immediately in response to the request. Penalties assessed for violations shall be sufficient to remove any economic benefit derived from the failure to comply, and shall consider the degree of fault, the compliance history, whether the party to whom the violation is issued has timely acted to abate the violation, and the severity of the violation.

9. Ex parte communication between parties to zoning and land use cases, and the agency decisionmakers and elected officials who will hear the case on review, is prohibited, and violation of such a prohibition shall result in sanctions or denial of the application. Attempts to communicate ex parte should be logged.

10. Provisions for requesting local and evening hearings should be reviewed to determine whether the requirements for signatures are too onerous, and to determine which categories of land use, zoning and conditional use permits, approvals and modifications shall be subject to automatic scheduling of local hearings.

11. All persons attending and wishing to make comment before such administrative or political bodies shall be accorded a time period sufficient to allow communication to that body, and shall not be arbitrarily limited. Those with special needs should be accommodated.

12. All parties who submitted written or verbal testimony in a proceeding to approve a request for a conditional use permit or zoning or land use change, shall receive special notice and be accorded an opportunity to be heard if any request is made to alter, remove or vary any of the conditions, binding elements or provisions of the approval.

13. An Office of Neighborhood Advocacy should be established for each community adopting comprehensive planning and zoning, whose purpose would be to monitor land use, zoning, capital investment, transportation and other planning processes in order to assure that the processes are fair and open. The Office shall be charged with establishing lists of interested parties who wish to be notified of governmental actions which affect their neighborhood, or which have countywide effect. The Neighborhood Advocate shall be charged with monitoring the land use, capital investment, transportation and other local environmental and community programs and processes, and notifying interested parties when proposals are being evaluated which may be of interest; and is further charged with representing neighborhood interests in those cases where the advocate believes the public interest warrants direct involvement.

My fourth recommendation is that the utility exemption to planning and zoning statutes be reevaluated to:

* More clearly define service facilities and the relationship of public utilities and common carriers, private development needs and interests, and the larger community, in light of the Shelby County mixing center situation, in which a nominally public facility was allowed to be convert farmland and disrupt a rural area of a county with zoning and planning, for the apparent benefit of one industrial interest.

* Establish clear authority within the Public Service Commission and Natural Resources and Environmental Protection Cabinet to regulate siting and terms of service of all electrical generation facilities; thus ending the exemption of siting controls on merchant power plants;

My fifth recommendation is to address the lack of clear relationship under current law of zoning regulations to comprehensive plans, which can stymie the full implementation of those plans. Revision of zoning regulations to incorporate goals, objectives and elements of comprehensive plans, should be required.

My sixth recommendation is to clarify the agricultural exemption in Chapter 100 in order to empower local governments to establish planning and zoning controls to address concentrated animal feeding operations in which livestock and poultry are raised in confined conditions, generating significant waste disposal, nuisance, odor, air and water pollution concerns that can and often do materially harm the use and enjoyment of nearby land uses, including residential, agricultural and institutional uses.

My seventh recommendation is that the elements of the comprehensive plan required for each community be modified to include a new element for farmland protection, which would require development by each community of a comprehensive plan element, and goals and objectives, to identify prime and high quality farmland in the community, to require justification for conversion of farmland acreage above a de minimis threshold to other uses, and to require evaluation of alternatives that would lessen the impacts or avoid the conversion.

My last two recommendations are perhaps the most significant.

The first also addresses farmland conversion. The best hedge against unwanted sprawl and conversion of farmland to development is to keep farms viable. We have an unprecedented opportunity to reverse the destructive effects of a national farm policy that has devastated small farmers, and to bolster the ability of small and moderate size farms to remain economically viable. The tobacco settlement money should be invested in strategic loans and grants to small and moderate sized farms, and the marketing of their products, in order to help them take risks in diversification and to remain viable while growing healthy, affordable food.

Finally, and perhaps most fundamentally, adoption of a state environmental policy act that would require development of an environmental assessment and consideration of alternatives prior to commitment of state resources to support an infrastructure or economic development project, is long overdue. We cannot develop and grow smart when we do so without consideration of the impacts of such development decisions on the human and natural environment, other alternatives that could achieve the goals without causing adverse impacts, and measures that can mitigate those impacts.

Conclusion

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.

Any steps that you can take to encourage comprehensive, thoughtful and collaborative planning for land use and development, will be of great benefit to the public.



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