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Private Property Rights vs. the "Comprehensive Plan"
There is a storm a brewin' in Clark County right now. The debate is private property rights vs. the Comprehensive Plan Winchester KY. The following letter to the Editor of the Winchester Sun tells the tale. But first, a little background: A local couple, who had worked their 102-acre Winchester farm for many years, recently sold the farm at auction to Richard Monahan, owner of The Allen Company. The farm was appropriately zoned A-1 Agriculture.* The new owner immediately applied for a zone change which Planning & Zoning (P&Z) promptly recommended for approval without a backward glance, ignoring all the rules in place for such a change. Hmmm.
Dear Editor: I want to bring the public's attention to an evolving situation in Clark County. The Allen Company, which operates a quarry in Madison County, is requesting a zone change for 102 acres of prime farm land from Agriculture (A-1) to Heavy Industry (I-2), to create an open-pit limestone quarry, with rock crushers, truck scales and sediment ponds. This farm is on Kentucky 627, just north of the Kentucky River, and is adjacent to my home. The Director of Planning and Community Development, Rhonda Cromer, has recommended approval to the Winchester/Clark County Planning Commission "based on the 2012 Comprehensive Plan" [pdf]. The 2012 Comprehensive Plan Winchester KY designates this part of the county as a Tourism area, which includes Fort Boonesborough, Lower Howards Creek Nature and Heritage Preserve, Hall's on the River and a Civil War fort. Sites the plan designates for I-2 zoning are in the I-64 corridor north of Winchester. Anyone driving from I-75 toward Winchester has seen the Allen Company's current mining and asphalt production facilities. The existing mine in Madison County is underground. What is planned across the river, alongside the highway with no buffer zone (required for this use by the Comp Plan) and adjacent to several communities, is an OPEN-PIT mine. This is in no way compatible with the Comprehensive Plan, and many in Clark County are at a complete loss as to why the Zoning Commission would recommend approval. There are many things wrong with the recommendation. The open-pit mine would destroy the viewshed at this major gateway to our county, create hazards with mineral dust and sediment ponds next to an open waterway on the farm, destroy the quality of life of communities near the property, devalue our homes and add fully-loaded gravel truck traffic to Highway 627. These trucks would be entering the road midway in a steep grade, into often heavy traffic, with tractor-trailers barreling down the hill toward Madison County, school buses and frequent fog from the river. 2012 tourism expenditures in Clark County alone were just under $79 million in a multi-county area defined as "Bluegrass, Horses, Bourbon and Boone" in official State publication ECONOMIC IMPACT OF KENTUCKY’S TRAVEL AND TOURISM INDUSTRY – 2011 AND 2012. Clark County's part in this is "Boone"and this proposed open-pit mine would be in the heart of the oldest historic areas of Kentucky, the Boone settlements. The most disturbing thing is the irresponsible manner in which our county officials are approaching this request, which does not serve Clark County citizens, only the economic interests of a company based in Fayette County with primary operations in Madison County. If approved, this open-pit quarry will permanently destroy this beautiful, historic gateway to the county in which I chose to build my home and spend the rest of my life. This deserves scrutiny from anyone concerned about Kentucky's heritage. Sincerely, Beth Meredith
So who prevails here: the individual private property owner who wants to do with his property as he wishes (Richard)? Or the surrounding owners (neighbors) who believe that, because the city is ignoring its own Comprehensive Plan, their property rights are being significantly compromised?
How significant is that loss of property rights?
They will certainly suffer loss of "quiet enjoyment." Property owners who live near the Allen Co.'s current mines must endure the shaking and loud BOOMS produced by regular blasting. Since this will be an open pit mine, there will be significant dust produced as well. Since dust travels on the wind, it is a concern for neighbors farther away, too. The neighbors will realize significant loss of property value due to the dust, booms and shaking, not to mention damage to foundations, walls and ceilings as reported by owners living near current mines. Selling a home in an area zoned Heavy Industrial? Good luck. Real estate brokers are required by law to disclose any facts materially affecting the value of a home. Would you buy a house you knew was subject to nearby blasting? Or a home where one of the permitted uses below could be installed? Hell no. Maybe a better question is: who in their right mind would?
Let's add a little insult to injury here: technically, each succeeding level of permitted use includes the previous zones permitted use. So, in an I-2 area, virtually anything goes. The result? While the surrounding residential property values plummet, this property's will skyrocket.
When a city/county passes a Comprehensive Plan, don't they have to follow it?
In fact, they do. KRS 100.213 says so:
P&Z ignored its legal obligations completely in making its recommendation. What is going on here? In an unzoned world, the quarry guy's neighbors would have to sue him which is why we have courts in the first place: they are the last defense against property rights' transgressions. However, in this world, the neighbors bought into a zoned neighborhood. KRS 100.213 was put in place precisely because it's not fair to change the deal now. If this zoning change is approved, the door is wide open to other Heavy Industry on scenic 627. Actually, this will have been such an easy swap, the door will be wide open in your neck of the woods, too. "Why not? Winchester did it!" Seriously, if A-1 Agriculture -- the least intrusive of all the zones -- can be changed to I-2 Heavy Industry -- the most intrusive -- with zero justification... why do we have zoning at all? And why would a savvy business person spend several hundred thousand dollars cash on a property, hoping for a zoning change?
What can you do?
Attend the Planning and Zoning Commission meeting next Wednesday night 6pm at the Clark County Courthouse. Keep up with the situation at StopTheQuarry.virb.com. And you can follow on Facebook. See you Wednesday!
Footnote: UN Agenda 21?
Private property rights are the foundational principle upon which the Constitution was created. These rights are being steadily eroded, mostly through local planning and zoning, often in lockstep with federal alphabet agency regulations and legislation at all levels. Once these rights are gone, history proves them to be quite difficult to reclaim. Learn more about Agenda 21 here. Kentucky General Assembly Senators John Schickel and Robin Webb are aware of the dangers. In the 2013 session, they co-sponsored a bill to stop Agenda 21 in Kentucky. It will be back in 2014 -- please call your legislators and ask them to support it!
*To compare A-1 Agriculture zoning with I-2 Heavy Industrial, click here to get into the City of Winchester codes, then click on APPENDIX A - ZONING ORDINANCE, then ARTICLE 6. - ZONING DISTRICTS, then 6.1 - Agricultural District (A-1) and then 6.16 - Heavy Industrial District (I-2).
The citizens won this battle, the mine is not going in on the Clark County side of the river. FYI, after the first battle in fall 2013, the Allen company changed some of its requirements and brought the issue back to the city again in spring of 2014 -- even though they were not supposed to for two years. They were soundly and quickly defeated again. This issue should be dead in the water now. At least for two years. Stay tuned.