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Supernatural progressive planning

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Among the following choices, what would you rather have:

  1. A business that employs 40 people, or
  2. The potential for county tax revenues from a non-existent business.

How about:

  1. A business that employs 40 people in a plain looking industrial building, or
  2. A planning-approved nicely-landscaped and harmoniously-designed business building, that does not exist.

Or perhaps:

  1. A business that employs 400 people in an industrial activity, or
  2. A planning-approved industrial park with various support businesses built to serve a local working population, that does not exist.

Or how about:

  1. A residential community of starter homes and apartments, or
  2. A planning-approved planned unit development that protects rodent habitat, contains various support businesses to serve those residents, includes improvements to roads and schools for the expected demographic impacts from the full residential community, and none of it exists.

Elbert County’s Master Plan is built for a progressive community. A progressive community is a community in and of the future where everything harmoniously works in a sustainable balance forever after. A progressive community is relatively easy to visualize. Visualizations happen in the imagination, and the imagination has no limits.

The idea of a progressive community is easy to sell. Who wouldn’t want to live in such an idyllic place?  And sell it they did.  Planners built extensive laws and regulations to enforce a progressive outcome on us.

Unfortunately, reality doesn’t work the way planners visualize. Progress is an incremental process that incorporates unpredictable human adaptations that happen in the future and change how real things and places are used to maximize benefit to the humans living in that future.

Planners are not clairvoyant. They have no special gift for seeing future adaptations. But rather than recognize this human limitation, they build legal structures that limit options. These legal structures – zoning regulations – don’t enable the progressive outcome that planners intend.

They front-load progressive outcomes with a script of forced harmonious visualizations that must be satisfied, and that no one can afford.

Planners fail to see how the sustainable, working, efficient, human communities that already exist, came about through many years of trial and error – in a free environment that enabled men and women to try different things and discover the solutions that worked.

You can’t take that evolutionary element out of human development and jump to the finish. No one knows what our future communities will look like. No one knows how those future humans will use the space and resources available to them to maximize benefit to themselves and their children. No one can see an optimization 10 or 20 years from now. If such a human talent existed, there would be no war, no losses in the market, and no winners. It’s not in our nature to see those things. It’s not in the nature of any real being to see such things.

So what does this mean? Planners are trafficking in the supernatural, vainly writing legal fictions out of a fear of the unknown, and a presumption that free humans will produce the worst possible outcomes.  Ironically, the same freedom that enabled humans to build the communities that planners think they can mandate into existence, is the freedom they fear most.

Planners fear freedom because it puts them out of a job.  There is no higher principle at work here.  Planning is no more than a rice-bowl protection racket for petty bureaucrats.

We need to stop enabling planners. We need to change zoning laws so that all of the #1s above happen, and the #2s, which today are the norm, become a bad memory.

It’s time we traded the progressive basket of expensive unrealistic visions for a functioning reality.

Zoning produced an economic dead zone in Elbert County.  The experiment failed.

The Elbert County Free Press

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It’s always a challenge to excerpt from Daniel Greenfield’s Sultan Knish writings because he rarely includes a sentence one could consider less meaningful than the rest.  With that caveat, he writes today;

The voters who most depend on government vote to break it far more thoroughly than any Tea Party politicians could.  No Republicans could have done to Detroit what Detroit did to Detroit.  Not even the most extreme Tea Party politician could have done as much damage to the Federal government as Obama did.

Corruption and ineptitude are far more of a threat to the progressive vision than any number of people waving Gadsden flags.  Republicans can shut down or slow a progressive program, but only progressives can discredit it from the inside[.]

Surely much of what I’ve held forth about the effect of Elbert County zoning falls neatly into this paradigm.

In a preface to Chapter 2 of Inventing Freedom, Daniel Hannan included a quote by Roger Scruton,

The English law existed not to control the individual but to free him.

Scruton has written books about environmentalism from a conservative approach, pointing out both the failures of statist solutions along with examples of successful environmental protection by vested owners of natural resources.  He reminds us of the futility of dispossessing individuals of environmental ownership – call it regulation in America – along with an expectation that those same individuals will carefully husband that which they no longer control – a restatement of the tragedy of the commons.

Which brings us to New-Plains poster-boy Chris Bailey explaining, in effect, his view of law as the polar opposite of Scruton’s.  He laments that the county laws and MOU passed this week were not what he wished for in “minor” facility O&G property control;

  • He wanted the planning commission to retain approval authority for O&G development, despite their over 3 years of endless deliberations to get to square one of a passable law.
  • He wanted the CDS director to have no authority to administrate O&G zoning, despite New-Plains’ love of former planning director Richard Miller.
  • He wanted the dozen anti-O&G activists in Elbert County to retain the ability to stage public procedural delays, er, opportunities to scrutinize, O&G zoning administration.
  • He wanted an un-flawed MOU, notwithstanding other regulatory conflicts and litigation such a document would have initiated.
  • He wanted to make the O&G industry pay for the right to exploit their property.

In his zeal to uphold the collective Bailey doesn’t show much concern for individual property holders.

And let’s not forget the delusional Bishops at the Prairie Times this week.  Susan and Jerry apparently told SOS Scott Gessler that,

Many conservatives were delighted by this judge’s ruling,

.  .  .in reference to the heavily Democrat partisan decision against Commissioner Rowland published last month.

Really?  On what planet?  Oh, that’s right, this one–the planet where Leftist Susan Bishop is still a Republican PCP.

One hopes that Republican caucus attendees take the opportunity afforded them in a couple weeks (March 4th) to relieve people like Susan of their conflict of interest, and excuse them from the ranks of the ECRCC.

As for the progressive tidal wave awash in America, with so many self-referential enforcement devices available to them, light at the end of the tunnel looks dim.

The Law Of The Land

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In Inventing Freedom, Daniel Hannon writes, “English-speaking peoples still commonly, and exceptionally, talk of “the law of the land.”  Not the King’s law, not God’s law, but the law of the land–a set of rights and obligations immanent in the country, growing incrementally, passed down as part of the patrimony of each new generation.”

As President Obama continues to demonstrate, the Left do not hold the law of the land in the high regard traditionally upheld by “English-speaking peoples.”  Conservative writers and speakers chronicle this feature of our new age on a daily basis, and mentioning it here has earned this writer a variety of libels–short of using the blood of Leftist babies to make matzah balls, though the day is still young.

Anyway, with due respect to the objectives of the Left with regard to Elbert County oil & gas development, I find their chosen tactic – to cause local zoning operational conflicts with COGCC – legally insufficient.  It is my 1st Am. right to make the finding and to publish it.

Over the years I’ve documented in these pages evidence of a Leftist policy to push Elbert County into expensive litigation over oil & gas regulation, and county vs. states rights.  I maintain that the county cannot afford that expensive litigation, and I applaud the BOCC for avoiding it thus far.

Rather than address the substance of my analysis, the Left comes back with libel on the front end, and politicking out the back door.  The Left continue to push for operationally conflicting local regulation and they just don’t care about the legalities.

The Sierra Club recently entered the Elbert County oil & gas political arena by sponsoring a letter containing the following language:

Elbert County needs strong oil and gas regulations to protect our air, water, land, public health, safety, and quality of life.  We are asking you to protect Elbert County residents by adopting regulations which would prohibit open pits for toxic produced water and prohibit spraying of toxic produced water to mitigate dust on county roads.

We also urge you to support citizen-drafted MOUs which would protect Elbert County citizens by increasing drilling set-backs to 1320 feet from homes, require green completion systems to reduce air emissions, require operators to notify residents within a mile of production activities, and increase baseline water sampling.

Please do everything in your power to ensure that Elbert County residents and their property are protected from the toxic spills, groundwater contamination, ozone-inducing emissions and other impacts that the Colorado Oil and Gas Conservation Commission has documented. The industry averages more that a spill per day across Colorado and has been found to be responsible for more than half of the ozone pollution causing federal air quality violations in nine Front Range counties. A recent Colorado School of Public Heath study found an increase in the incidence of congenital heart defects within 10 miles of drilling operations.

You have a duty to protect Elbert County from these impacts and risks and we are relying on you to do so.

Thank you for your consideration.

Well, the President may be able to walk all over Congress and get away with blatant constitutional violations, but Elbert County need not follow his “leadership.”  The duty of the BOCC runs first to the law of the land, and I am relying on the BOCC to not break that trust.  Under our system, the ends don’t justify the means.

If the Left cannot abide that framework, there are plenty of totalitarians in the world who would be glad to have them as subjects.

BOCC should turn down proposed regs

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As currently written and approved by the Elbert County Planning Commission, the proposed zoning amendment for Part II, Section 27, Administrative Review and MOU Process for Minor Oil and Gas Operations and Related Facilities to Elbert County Zoning regulations will expose Elbert County to multiple lawsuits.

The proposed regs define the nature of a minor oil & gas operation in terms of equipment, operational characteristics, etc.  In addition to specifying the physical characteristics of a minor oil & gas operation, the regulations require that a “voluntary” Memorandum of Understanding be inked between Elbert County and a prospective operator.  Without a “voluntary” MOU, an operator’s physical equipment cannot constitute a minor operation.

Moreover, this fiction was invented to shelter the incorporation of local zoning operational conflicts with COGCC regulations into local law through the MOU.  Operational conflicts are more restrictive regulations that conflict with state regulations, unless an operator voluntarily agrees to them.  They cannot be required by local regulations.

Elbert County Planners are attempting to hide operational conflicts in plain sight by placing them inside a voluntary contract of an MOU.

Except the MOU isn’t voluntary.  It’s a document required by zoning  before equipment – with certain characteristics that don’t change whether or not the MOU exists – can meet the terms of a minor oil & gas facility in the proposed zoning section.

In this context, the MOU fits the definition of a contract of adhesion between parties of substantially unequal bargaining power.  A “voluntary” MOU in the context of a required regulatory framework will not survive a court challenge as an enforceable contract.

Elbert County Planners have every right to follow a policy to seek truly voluntary MOU agreements with oil & gas operators.  And an operator has every right to agree to more restrictive operational terms in an MOU with Elbert County.

But the construct currently proposed is not voluntary, it is regulatory.  As such, it fails as a contractual construct, and it fails as a local regulatory operational conflict with COGCC state regulations.

The BOCC would be wise to turn this proposed language down.  Passage will lead to litigation which can only delay the onset of oil & gas operations in Elbert County.

The Elbert County Planning Commission raised more rebuttable presumptions in their 1-2-14 recommendation to the BOCC, however, the above major problems should be sufficient to cause a re-tool of this zoning debacle.

Bailey assumes too much

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In his Oil & Gas regulus opus, Christopher Bailey assumes too much.

In a first-pass careful reading, the assumptions I noticed are:

  • Operators intend to pollute to the extent regulations permit.
  • Drinking groundwater may be contaminated at the surface.
  • Drilling of water sampling wells is a cost-free option.
  • Regulations can compensate for imperfect knowledge.
  • Because something is permitted to happen, means that it will happen.
  • Things that might happen, will happen, without any historical evidence.
  • Any information an Operator produces is contaminated by its personal interest.
  • Water loaded to pits is not sampled and tested.
  • Well casing integrity is not tested and is assumed to leak.
  • Regulatory exceptions are cited without any historical evidence of usage.
  • Regulatory exceptions are cited without any citations.
  • If regulations aren’t duplicated within each regulatory body, they go away at some point.
  • The logical outcome of any argument against a COGCC rule construct is assumed to exist in fact, without any evidence.
  • Possible harms are treated as proven.
  • Temporal harms are treated as permanent.
  • Suppositions are treated as findings.

Local enviros will love his analysis because it affirms all of their prejudices.  They seem to be an earnest bunch but their standards for proof, logic, and evidence, need considerable work.  It’s too bad the New Plains’ attempt to sell Bailey’s essay did not address any of the substantive weaknesses of his analysis.

Oh, and Bailey’s regulatory MOU suggestions are in operational conflict with COGCC regs.

The Sultan’s Laws

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“The domestic left destroys everything it does not control as part of a cultural war[.]”

“Once the left achieves its dream of absolute power in a nation, that nation becomes socially backward, technologically backward and culturally backward.”

“[U]nplanned change is locked out of the equation because reactionary progressive utopias have to be relentlessly planned.”

“Time slows down and utopia sinks into its own progressive muck.”

“[T]he flower children became professional activists and politicians and ran a system of stale conformity[.]”

“The left only believes in change when it moves in their direction. But once change has been achieved, then their ideal is a static changeless society.”

“The progressive movement .  .  .  depends on the egocentric tantrums of individuals for its philosophy, its art and its activism[.]”

“Fuel, water and even the atmosphere are all on the verge of running out. Everything must be safeguarded, counted and put in a locked box where qualified personnel will only distribute it at need.”

“Progressives equate progress to redistribution.”

“[U]topia becomes an economic police state.”

“The utopian is really a cynic, certain that individualism will unleash everyone’s worst impulses, and offering instead the iron order of his vision.”

“[T]he utter undoing of humanity is only a land use resolution or unrecycled plastic bottle away.”

“Utopians fear the unregulated and unplanned and they replace the true expansive progress of the human spirit with the false progress of social controls.”

“Under their rule, progress in this country, once its secular faith, has slowed to a crawl outside of a few select industries that are able to move faster than the speed of progressive regulations.”

From:  Sultan Knish: Progressives Without Progress

MOU continued

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My side of a continuing MOU discussion –

I don’t think one can sufficiently torture the English language so as to disguise the fact that this MOU, written into this county zoning process, is a regulatory document that must exist, must be agreed to, is contemplated to contain certain elements, and will be integral to further regulatory enforcements in both county and state jurisdictions.

The Elbert County MOU is framed as a voluntary agreement – a contract.  This interpretation is a precedent condition necessary to make the argument that the MOU is non-regulatory – and an MOU with terms in operational conflict with COGCC regulations must be non-regulatory, else the county will be non-compliant with COGCC rules on regulatory operational conflicts, and will get sued by the Colorado Attorney General. 

At the very least this MOU is a non-voluntary contract of adhesion within a mandatory regulatory framework enforced by a superior power.  As currently conceived and extensively written into proposed ECZR, looking at the totality of the circumstances, I don’t see how this MOU + ECZR can survive judicial review as a contract.

The Left is hung up on the MOU in Elbert County because they need a device to enforce more stringent operational requirements and end run operational conflicts with the COGCC.  They’re attempting a “cake and eat it to” construct.  It’s inappropriate to stand by while they corrupt language and common sense in order to accommodate a partisan purpose. 

As currently conceived, this MOU is obviously a regulatory device.  To make it non-regulatory, it needs to completely come out of the proposed zoning regulations.  The Left is free to follow their objectives, however, they are not free to re-engineer our common language, or set up disingenuous zoning artifices.

And to further the point, I see no problem with the county having a policy to seek MOU agreements and to use them to augment regulatory processes when they are voluntarily obtained.  The key is that those regulatory procedures need to function equally well in the absence of an MOU agreement.  Only then will you be able to say that the MOU is non regulatory.

References to the MOU should come out of the Part II Section 27 proposed zoning regulations.  If not, the BOCC should not approve those regs.

Oil & Gas MOU is a bad idea

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P.S. On the claim that the MOU “is not regulation and cannot be regulation” 

There are over 30 references to the MOU in the proposed Part II Section 27 zoning regulations, in a variety of usages.   ECZR even specifies that the MOU must be submitted to COGCC, a requirement which would seem to present an operational conflict with COGCC. 

The writers of the new section of ECZR [that the BOCC will consider on 2-12-2014] seem to take the position that because the county offers alternative zoning approval through SUR, that the MOU is optional and non regulatory. 

I don’t find that argument persuasive. 

If the BOCC enacts Part II Section 27, the MOU will become regulatory for that section of the ECZR.  The fact that alternative ECZR exists would not make the new Part II S 27, MOU inclusions any less regulatory. 

——————-

It’s a bad idea for Elbert County Oil & Gas zoning regulations to base any zoning decision points, in the application of county zoning laws, on the existence or substance of an MOU contract between Elbert County and an Operator, or between Elbert County and a mineral rights owner. [Read more…]

Eamonn Butler on Daniel Hannan

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Rush covered this from Dr. Butler today.  I had the good fortune to have a class with Dr. Butler at Hillsdale, a long time ago in a galaxy far far away.

Published on Adam Smith Institute (http://www.adamsmith.org)

Written by Dr. Eamonn Butler [2] | Monday 20 January 2014

I was struck by a passage in Daniel Hannan’s new book How We Invented Freedom And Why It Matters. As a UK Member of the European Parliament, he is always asking other MEPs why they think new rules are needed, in banking, working hours, herbal remedies and much else. As he says:”The response is always the same: ‘But the old system was unregulated!’ The idea that absence of regulation might be a natural state of affairs is seen as preposterous. continue

story of Elbortopia

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As if to defy the ruling logic of Elbortopian Leftist Dinosaurs, the sun rose again today.  Mother Gaia continued to spin the earth underneath the sacred alluvium that supports beloved Elbortopia, and brought our little patch of heaven into the light once again.

Elder Dinos predicted we would not see this future day.  They told us that only the sacred statutory zoning scrolls of Elbortopia would satisfy [Read more…]

time for Brown to be excused

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According to the BOCC, the Oil & Gas MOU on the table is the draft from 11-27-13.

Mr. Rick Brown of the Planning Commission expressed dissatisfaction with this MOU in the Prairie Times this week, and said that the BOCC is “rushing to judgment on an inadequately vetted MOU” and that Commissioners Rowland and Schlegal [sic] have “contempt for transparency and citizen involvement.”

I’d have to say it’s Mr. Brown showing contempt for Elbert County citizens – in particular the Elbert County citizens who have waited 3 years now while the Planning Commission played cat-and-mouse delaying games with the Oil & Gas industry.

The problems I see with the above MOU are as follows; [Read more…]

sticky zoning laws

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Writing them is a lot easier than cleaning them up.

Elbert County Republicans ceded direction of Elbert County zoning law to the Left years ago. Under the Left, master planning – what used to be a guideline for officials – became, effectively, regulatory.

Discretion by elected County Commissioners, who citizens used to go to for reasonable treatment in the face of overwhelming bureaucratic power, has been replaced by heavy-handed zoning laws written by Leftist planners. [Read more…]

on a mission from God

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P.S.  After meeting update.

The Left played nice last night as they ratcheted regulations for minor oil & gas facilities into place.  Groundwork is laid for future battles on MOU contents and language designed to precipitate operational conflicts.  CDS’s Fenner, EC’s LGD, knows that an “official” MOU walks a zoning line that can be construed as regulatory, and by its expected content, will operationally conflict with state regs.  The Left would love nothing better than a good long lawsuit on the question.  And of course there is a commissioner on the ballot to be peppered with mudballs.  While the playground was orderly last night, I expect their diplomacy won’t last long. [Read more…]

Community and Development Services

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“The essential principle of totalitarianism is to make laws that are impossible to obey.  The resulting tyranny is even more impressive if it can be enforced by a privileged caste or party which is highly zealous in the detection of error.  Most of humanity, throughout its history, has dwelt under a form of this stupefying dictatorship, and a large portion of it still does.”

Hitchens

Why don’t Elbert County Republicans show up to fight encroaching totalitarianism from the expansion of impossible to obey zoning law?

All the Democrats show up.

B_Imperial

Rick Brown on discretion

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discretion – A public official’s power or right to act in certain circumstances according to personal judgment and conscience. [Black’s Law Dictionary]

Mr. Brown – the Democrat Party official placed on to the Elbert County Planning Commission by BOCC member Larry Ross, a recent Democrat himself – does not trust the Republican majority on the BOCC to administer the law in the best interest of Elbert County.

Mr. Brown pushes regulations that, in the name of discretion, remove all discretion from the process.

First off, this is an impossible task.  Second, if Mr. Brown has his way Elbert County will be saddled with an impossibly tortuous body of regulatory law for oil and gas development that will put a stop to all oil and gas development.

Coincidentally, this has been Mr. Brown’s, and Larry Ross’s, objective all along.

Mr. Brown is on the Planning Commission to push the left’s agenda by any means possible.  If he can’t control the wording of the regulatory law, his fallback strategy is to delay the implementation of it.  Either one serves the purpose of preventing oil and gas development.  Brown is a determinist who intends to dictate the zoning law out of the mistaken belief that law can control human behavior.  While law can certainly influence human behavior, law will never control people to the extent the left believes.

It’s a mistake to put legal zealots in Planning Commission seats.  All they need is a foot in the door to insinuate anything they desire into the process.  That’s what lawyers do – they build cases out of thin air.

Take a step back from the particular points Mr. Brown and company ceaselessly argue.  Look at the one-way trend toward their objective of obstructing oil and gas development.  For almost 3 years now in Elbert County, their contributions to this nascent oil and gas industry have been about: control, delay, refusal, preemption, denial, suspension, constriction, prevention, etc., all performed in the name of good regulations.

Bullshit.

Are we not supposed to notice that nothing that they suggest actually facilitates this industry?

B_Imperial

A conflict of models

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Planners attempt to imitate reality through regulatory law.  You could call it modelling reality.

Private sector businesses make all sorts of models for controlling their businesses.  These models accept data, they associate data elements through defined relationships, they produce performance metrics for their businesses, and they attempt to predict, at least for the near term, future business requirements for the firms.

Public sector modelling in regulatory law aspires to reach the standards of modelling success seen in the private sector.  But regulators aren’t private sector operators.  They don’t run the businesses that their regulatory models attempt to control.  They don’t have a survival motivation to make a correct model. [Read more…]

dodo birds

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I’ve been assured the days of the BOCC accepting partisan regulatory language from ad hoc citizen committees for incorporation into county zoning regulations are over.
This begs questions of what new hobbies Rick Brown, Ric Morgan, Grant Thayer, Paul Crisan, Tony Corrado, their assorted chums and Green acolytes, will find to occupy themselves on Tuesday evenings.  Nothing springs to mind off the top of my head that might satisfy their needs for social justice and environmental redemption, absent dictatorial empowerment.
Dodo bird bowling

A local bowling alley with an attached bar might be nice for them to repair to on Tuesdays, but under the wisdom of their planning commission hats they’ve probably turned thumbs down on those sorts of plans dozens of times.  Had they not done so at least they could topple a few pins and imagine the sound of cracking an environment-despoiling conservative skull, over a few brews.

This isn’t to say the planning work product of purely governmental origin will be any better. I set the bar pretty high in favor of free markets, contractual rights and remedies, personal responsibilities, and adult citizenship in my planning expectations — principles which planning documents from Elbert County don’t generally recognize on the part of applicants.

Elbert County Planning Approved Outhouse

In Elbert County, planning applicants are treated as some sub-human species who have forsaken citizenship — incapable of exiting a bathroom without a planning document for cleaning themselves properly, complete with inspections, time-line loops, bureaucratic blessings, and penalties for non-compliance, not to mention the elaborate building code specifications for the construction, location, and approval of such conveniences.

I contingently welcome this BOCC planning epiphany, lament that it came too late to save us from the mess of Special District Regulations, and eagerly hope for a reversal in the heretofore repressive planning saga of Elbert County.

Freedom built a great country.  It could build a great county too.

Farewell dodos.  Happy trails.

B_Imperial

A fair trade

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Will trade tax vote for zoning repeal.

If the BOCC repeals land use zoning regulations, I’ll vote for their tax increases.

If Elbert County wants to take more money from citizens, citizens should be free to earn money in Elbert County.

B_Imperial

RE: (land use zoning regulations)

Please click on the links below to download various Regulations & Plans:

LAND USE APPLICATIONS
(Please refer to the Section identified on each application in either the Subdivision or Zoning Regulations for more information.)

Please click on the links below to download various Applications:

Administrative Applications
(All administrative applicants shall meet or talk with Community and Development Services Office staff prior to application submittal to determine if application can be handled administratively.)

Non-Administrative Land Use Applications
(All applicants shall meet or talk with Community and Development Staff to find out about the required Pre-Application Meeting, its submittal requirements and scheduling prior to formal application submittal.)

Please contact the Community and Development Services Office if you have questions.

Thomas Jefferson

"It is error alone which needs the support of government. Truth can stand by itself."

Aristotle

"Only an armed people can be truly free. Only an unarmed people can ever be enslaved."

Karl Popper

“A theory which is not refutable by any conceivable event is nonscientific. Irrefutability is not a virtue of a theory (as people often think) but a vice.”