Planning Commission tables decision on extraterritorial jurisdiction expansion
The Sabetha Planning Commission postponed a decision regarding the proposed expansion of the City of Sabetha’s extraterritorial jurisdiction. This comes after the Thursday, March 7, public hearing on the matter, during which members of the Planning Commission heard public comment from 15 individuals.
Planning Commission members present included Chairman Scott Wedel and commissioners Scott Krebs, Matt Heiman, Lynn Hartter, David Koch, Jerry Johnson and Bill Roggenkamp. Not present were commissioners Shannon Stapleton and John Rebant.
Earlier this year, the Sabetha City Commission prohibited commercial wind generation facilities within its extraterritorial zoning jurisdiction, which at that time extended approximately 1-1/2 miles from the City’s contiguous city limits. This prohibition was recommended following a hearing by the Sabetha Planning Commission.
At the Planning Commission’s meeting on that topic, members of the public asked if the extraterritorial zoning jurisdiction’s border could extend farther than it does currently. They were informed that it could, but this would require a change to the City’s Comprehensive Plan, in which the current extraterritorial zoning jurisdiction is specified.
After further review, a proposal to expand the extraterritorial zoning jurisdiction was prepared. The proposal would extend the extraterritorial zoning jurisdiction to the legal maximum distance, which is three miles from any property legally considered to be within Sabetha’s city limits — including Sabetha City Lake and Pony Creek Lake. In the cases in which the three-mile distance comes within three miles of another incorporated city’s potential three-mile jurisdiction, the City of Sabetha only can go half the distance.
Because the City of Sabetha did not previously include property surrounding the two city-owned lakes as extraterritorial zoning jurisdiction, the new proposal wouldn’t simply be doubling the extraterritorial zoning jurisdiction — it would expand the city’s jurisdiction four-fold. The jurisdiction would encompass property from as far south as U.S. Highway 36 and just a half mile shy of the Kansas-Nebraska state line to the north; from P Road in Nemaha County on the west, to halfway between Chickadee and Coyote roads in Brown County on the east.
At the March 7 public hearing by the Planning Commission, Chairman Wedel first explained that the commission makes recommendations to the Sabetha City Commission. The City Commission then makes all final determinations.
On this topic, Wedel said, the Planning Commission could decide to recommend the city expand the extraterritorial jurisdiction as proposed, recommend an expansion but tweak the boundaries or make no recommendation for expansion.
To answer a few frequently asked questions, Wedel made the following statements:
• Building permits will be required in the extraterritorial jurisdiction. Permits for agricultural buildings would cost nothing, and the city cannot limit agricultural operations.
• Per state statute, if the city has zoning outside of city limits, members from those areas must be included on the Planning and Zoning Commission. Currently, the Planning Commission includes three members from outside city limits.
• Anyone who has already signed a lease for commercial wind turbines is not “grandfathered in,” because construction has not started.
• The city cannot enforce nuisance ordinances in any of the agricultural zoned extraterritorial jurisdiction, unless it becomes a commercial business.
• The city has no authority on roads in the county and township areas, even if they fall within the extraterritorial jurisdiction.
• Hiawatha’s extraterritorial jurisdiction goes out three miles, and Seneca’s extraterritorial jurisdiction goes out two miles. Sabetha’s current jurisdiction goes out 1-1/2 miles, approximately.
Following this introduction, the meeting was opening for public comment.
Twelve members of the public offered comments during the hearing. There appeared to be more speakers opposed than in favor.
Area resident Jeff Grossenbacher said he was speaking on behalf of the Berwick Township Board, which opposes zoning outside of the current footprint.
“The board has very deep concerns about the zoning. We see it as an overreach of the city,” Grossenbacher said. “They may have good intentions; however, it does not have representation from the six affected townships.”
Citing a lack of representation, Grossenbacher noted that there is no guarantee that more restrictions will not be placed in the future, since those living outside of city limits have no right to elect any of the city council representatives.
“Before it advances, each of the township boards should be allowed to elect a representative.”
Area resident Steve Aberle said he believes the proposal is too much area.
“I was on the zoning board in the 1980s. I voted for it [zoning] then, and I would vote for it again now, but I would not vote for the area now being suggested,” Aberle said. “I think this is the wrong time to do it, and I think that is way too much area. I cannot see Sabetha ever needing to control 75 square miles.”
Area resident Doug Edelman said he opposes the expanded zoning, characterizing it as a “power grab.”
“Never let a crisis go to waste, and I feel this is a little that way,” Edelman said. “I feel it [wind turbine controversy] is going to divide our community more than it is right now.”
Edelman said he was “not an advocate for windmills,” but whether or not he would place one on his land would be determined by neighborly decency.
“I don’t think zoning is going to help this issue,” Edelman said. “A lot of places I’ve been where they have zoning, it turns into a nightmare eventually.”
Area Resident Todd Rokey stated he also had concerns about a lack of representation.
“We can vote on our county commissioners, but we cannot vote on Sabetha City Council members,” Rokey said.
Additionally, Rokey said, he believes that the proposal goes too far from the city center.
“I feel like we need a better reason to go out as far as we are [proposing], especially out around the lakes,” Rokey said. “That is eight miles from the city center. We are interested in protecting Sabetha and its future growth, but I think we just need it think about how far.”
Local resident Tom Nolte said that the issue of wind turbines is a county matter.
“If you do not like how the county is proceeding, you should elect new commissioners,” he said.
Area resident Tim Aberle, who said he is in favor of the proposal, said he lives just outside the current extraterritorial jurisdiction, and co-owns farmland within the current jurisdiction.
“For our operation, it has had zero affect on us. It has not affected one decision we’ve made, whether it is cow lot building, etc.,” Aberle said. “People worry about 15 years down the road, but in the last 15 years it has not affected us at all.”
If the area is expanded, Aberle said, it would include 50 percent of the acreage his family’s farm operation owns.
Aberle said he does believe windmills are a part of the discussion, and should be.
In terms of representation, Aberle said that the Sabetha area has one commissioner out of three. At the state level, he said, to Representative Randy Garber he (Aberle) is one out of 20,000.
“I feel like it is best kept in our control with people we know,” Aberle said.
“I think you are opening up a can of worms, and sometimes it is hard to get the worms back in the box,” said area resident Charles Gruber. “One of my concerns would be down the road whether you can keep good people on the zoning board.”
Also in favor of the proposal, Ed Steinlage agreed with Aberle, saying that he lives within the current extraterritorial district and has had “absolutely no problems,” and his family has built a new home, barn, raised livestock, and hayed the land.
“It does tie back to windmills,” Steinlage said. “Our counties have done very little to protect us. The only people that we’re relying on right now is our city. They’re the only ones who have stepped in to say they might protect us.”
Local resident Kurt Detweiler stated that he also is in favor of expanding the extraterritorial jurisdiction.
“I think it is absolutely a wind turbine issue,” Detweiler said. “At the time we built our house, the [Nemaha County] commissioners gave us protection with setbacks. Since then, they got rid of the setbacks and I do not know if they‘ll have the guts to put them back. To me, wind turbines surrounding us are a way bigger concern that any zoning issues 10 or 15 years down the road.”
Area resident Kent Grimm said he thinks the city needs to talk to the county and figure out what to do.
“You all need to ask that the city council sits down with the Nemaha County commissioners and Brown County commissioners and figure out who needs to be zoning this,” Grimm said.
Grimm said that his wife is from Minnesota, and her family did have an experience in which changes to zoning suddenly prohibited the farmers within the city’s zoning jurisdiction from using irrigation on their fields.
“They had no representation on the city commission, no representation on the council,” Grimm said. “There is a big danger in bringing that footprint out where there is not representation of the people living in it.”
Area resident Brian Bergman said he is in favor of the proposed expansion.
“I am for the city to protect its water, protect its airport, and frankly we cannot even anticipate all the issues that could come up in the next 30 years,” Bergman said. “Sabetha would just be exercising its right to protect its interests.”
David Edelman expressed his opposition.
“There is no one here that opposes wind farms more than me, but I do not think this is the answer,” he said. “Going eight miles out of town, around the lakes.”
Also commenting were two representatives from wind energy company Invenergy — Nat Drucker and Alan Anderson — and one representatives from Nemaha County Farm Bureau — Dan Korber.
Korber, on behalf of NCFB, said Farm Bureau urges its members to become involved in the planning process to prevent undesirable uses. However, he said, Farm Bureau opposes any extension of cities to zone outside of their borders.
On behalf of Invenergy, Drucker said it is Invenergy’s goal to work as closely as possible with the counties and communities in which they work, and “we have the same intention to do that same thing here.”
“We will voluntarily enter into agreements with counties before construction,” Drucker said. “We would invite the cities directly into those discussions with the counties.”
Drucker then stated that he believed that, because the city cannot further regulate agricultural use, it would be unable to regulate that agricultural land in terms of wind turbines.
Also representing Invenergy, attorney Alan Anderson stated that there are no wind projects that will impact the area being considered for expanded extraterritorial jurisdiction “anytime soon.”
He also contended that, even if the expanded extraterritorial zoning would be put in place it might not stop the wind turbines on that land.
“There is the potential that this does not even stop the windmills, because it is an agricultural zoned area,” Anderson said.
Following the public comment portion of the meeting, the Planning Commission discussed the proposal.
Chairman Wedel said he appreciates the discussions he has had on this topic.
“Just because we can do something doesn’t mean it is the right thing to do,” Wedel said. “I think about this a lot as I consider this topic. Is it logical to zone north of Pony Creek Lake?”
Wedel said it is his opinion that the Planning Commission should adjust the proposed expansion area, because he believes zoning past the lakes is too far from town.
Commissioners Krebs said he resides in current extraterritorial jurisdiction outside of town.
Krebs read aloud from the city’s Land Development Code regarding agricultural districts.
That code reads: “The purpose of this district is to provide for a full range of agricultural activities on land used for agricultural purposes, including processing and sale of agricultural products raised on the premises; and at the same time offer protection to land used for agricultural purposes from the depreciating effect of objectionable, hazardous, incompatible and unsightly uses.
“The District is also intended to protect watersheds and water supplies; to protect the use of natural resources in the production of agricultural products and prevent and/or discourage their conversion to other uses not int he interests of the citizens of Nemaha County and Brown County; to protect forest and scenic areas; to conserve fish and wildlife habitat; to promote forestry; and to prevent and/or discourage untimely scattering of residential, and/or more dense urban development.
“All lands used for agricultural purposes, as defined in this Code, are and shall be exempt from any and all restrictions or limitations. No administrative interpretation shall be made that results in any restriction or stipulation on land used for agricultural purposes as herein defined; provided, however, that consistent with state law, new agricultural buildings shall be subject to setback requirements on that part of agricultural lands fronting on designated major roads and highways.”
“I have heard ‘power grab,’ ‘future ramifications,’ and ‘economic infringements,’” Krebs said. “Of those things, what in that particular zoning of ag is a power grab? What are the economic infringements?”
Krebs said the city has to abide by Kansas Statute K.S.A. 12-715b, which says that the city cannot adopt regulations applying to or affecting any land in excess of three acres under one ownership which is used only for agricultural purposes. Further, it states that regulations adopted by a city “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.”
“Zoning authority creates a process for orderly growth,” Krebs said. “From a landowner perspective, I get it. Don’t tell me what to do. But from a city planning standpoint, we have a different thought process. If you own more than three acres, it falls to state statute anyway.”
Referencing questions about representation, Krebs said, the Planning Commission would have to include members from any expanded extraterritorial jurisdiction.
“It makes sense to have representation from the townships,” Krebs said. “But I’d much rather we be able to do this [discussion] as a community who has grown up together, than from Topeka or from Washington D.C. at some point.”
Commissioner Hartter said he would like to consider making some adjustments to the proposed expansion area, while still protecting the lakes and habitats.
Commissioner Koch also addressed the representation issue.
“When we expanded the zoning into the red [current] area, the same thing was brought up then about no representation,” Koch said. “And so members were brought on the commission from that area. If it were expanded, members from those areas would be able to sit on the board as well. So the no representation thing is not a major factor in my mind.”
Commissioner Heiman, who lives in the current extraterritorial district, said he is looking for specific examples.
“There are a lot of general statements being made about overreach, but there are not specific instances or examples ever given of how this may negatively affect what I do,” Heiman said. “I guess if there were specific reasons, those can be better addressed, but when it is thrown out as general overreach that is hard for us to give feedback to.”
Chairman Wedel noted that things can change at anytime.
“Due to the state statute, this can change anytime, and if this commission or the city commission decides to vote for it, they can do that anytime,” Wedel said. “The energy company said they wanted to invite the city into discussions, and I think it would be a good idea. I like the idea of extending it three miles, while also discussing with them the part in yellow [proposed expansion area] that is not covered. Because if we do not like what we hear, it can always be discussed again.”
Commissioner Roggenkamp said the Planning Commission can hold off on making a decision right now.
“I am of the opinion that once you expand government power, you are never going to be get it back. Do you really want us to give that power?” Roggenkamp said. “I am intrigued with the city council sitting down with the wind company. I think we should let them have a few discussions before we make a leap.”
Krebs made the suggestion to consider expansion of the extraterritorial district by approximately one more mile.
“I do think that the map as it is drawn is an overreach,” Krebs said. “But I think extending it another mile or section is prudent to the City of Sabetha.”
City Administrator Doug Allen presented maps to the Planning Commission members showing an expansion of approximately one additional mile to the current jurisdiction.
Heiman said he would not be opposed to having a conversation about the smaller footprint.
“I’d also like to point out that zoning is intended to help you out, never intended to be a burden,” Heiman said. “It was put in place to help out residents and give them a voice if something is being done that shouldn’t be done. If we are all great neighbors to each other, we don’t need to be here honestly.”
Koch noted that his parents had a home outside of city limits, and a salvage yard went in right next door.
“This [zoning] would have given them a say in that,” Koch said. “I have also heard a lot that we have two groups, one is the City of Sabetha and one is the yellow [proposed expansion] area. We are one big community.”
Commissioner Johnson said he does not see any sense in doing anything, if they don’t do the whole thing.
“You’ve got whole counties that are zoned. We’re not living in one of them,” Johnson said. “If there’s a problem, they can all come in to the zoning commission and talk about it.”
Commissioner Hartter said the city has seen a lot of expansion to the current city limits in the last 30 to 35 years, especially to the east and south.
“We’re considering a slight expansion, which might be something to be prudent to consider with our former patterns of growth and development. I would not be opposed at all to considering expansion that amounts to a section more in most areas.”
Chairman Wedel said he believes the town is developing more west and south.
Commissioner Koch said the growth is there, whichever direction it might be going more.
Commissioners agreed that they were not ready to make a concrete recommendation at that meeting, as they would like to give the public more time to give them further observations and research, as well as specific examples of ramifications or economic infringements.
The Planning Commission will re-visit the discussion at the next regular meeting, set for 7 p.m. Thursday, April 4.