Monday, June 20, 2011

Norman Tea Party protest proposed Storm Water Master Plan


We protest the passage of the two zoning ordinances that are being proposed by the City Council, to rezone the east side of Norman. These ordinances represent an unfair burden on the Norman citizens in general since it does not address the other communities in the Lake Thunderbird watershed, which contribute more pollutants than Norman does. These ordinances also represent an unfair burden on the Norman citizens in East Norman since no ordinance is being suggested that would limit the activities of West Norman with respect to storm water runoff, i.e. use of herbicides, fertilizers, and pesticides within the city center. Any ordinance that unfairly burdens the citizens to the benefit of other Norman citizens and also other communities is basically unfair.

It is unclear just what the zoning plan is supposed to accomplish. It is ostensibly being enacted to support the Storm Water Master Plan (SWMP), but it is unclear as to what problem the SWMP addresses. Is it the water quality of Lake Thunderbird, street flooding in various parts of the central community, or establishing greenbelt areas in East Norman? Or it is all three? The SWMP does not address any of these issues well and should be reaccomplished before the city goes to the draconian step of implementing a sweeping zoning change without a clear objective.

Because of this lack of clarity, the ordinances also represent an impermissible taking of personal property rights by the city. A close reading of the present SWMP, dated October 2009, shows a financial budget of approximately $9M-$10M per year to implement the plan. According to the financial analysis of the SWMP, there is a line item for “trail construction” of approximately $1.2M/year. It is arguable that the city has the right to prevent citizens from various legal uses of their land and to take away these rights for the city, but to then allow the city a proactive use of those rights for their own purposes, e.g. to build hiking and biking trails, goes beyond the powers of the city. This impermissible taking of property rights will result in a number of lawsuits and expense to the city in asserting this assumption of property rights.

These zoning ordinances, in following the recommendations listed in the SWMP, seem to be directed towards setting up a network of hiking and biking trails in east Norman. It might be more advisable to put these measures to a vote of the people, in order to gauge the level of interest in, say, establishing trails for the purpose of getting from one point in the city to another instead of strictly recreational use.

The zoning ordinances should be held in abeyance until other, less stringent measures have been investigated. After studying the SWMP, we cannot find if any of these less stringent measures have been considered. It is similar to finding that the cigarette lighter of your car is defective and then deciding to buy a new car because of it. Enacting these zoning ordinances takes the most drastic step possible without examining the alternatives. No other alternative to stringent zoning measures seems to have been examined. A number of such alternatives come to mind, such as, for example:

educating landowners as to proper fertilization and herbicide practices;

controlling the times that pesticides and herbicides can be used, much like the permits for burn days are controlled by the city;

offering incentives for landowners to voluntarily build detention ponds on their property to capture runoff water;

requiring landowners to offer the city a first option to purchase on a prorated basis land affected by the zoning ordinances at the same price that an arm’s length buyer offers for the land;

measuring runoff pollutants (nitrogen, phosphorous) in order to charge offending landowners for the actual point pollution that they may be contributing; and so on.

Another suggestion that doesn’t seem to have been investigated is, instead of a draconian zoning ordinance, to use the monies being budgeted for the SWMP to build a lake water purification plant in order to fix the pollution problem at the end point rather than at the beginning. Such a solution would be less expensive than operating 10 years at the budget suggested in the SWMP. It could be funded by a general obligation bond issue like the current plan requires, but the bonds could be allocated by some means to all the contributors to the Lake Thunderbird water problem. There are numerous processes that can be used to clean up lake water; a short Google search will reveal page after page of processes, projects, success stories, and so forth which bear on the problem of how to clean up water contaminated with excessive nitrogen and phosphorous.

The zoning ordinances represent an overbroad restriction of activities on the affected land area. The prohibition of using pesticides is of particular concern, since it represents a public health hazard. The spread of diseases by ticks has been known for some time, but with the increase of the deer population in East Norman, the growth of the tick population, and the presence of various diseases in the tick population (i.e. Lyme Disease, Rocky Mountain Spotted Fever, Babesiosis, Ehrlichiosis, Micoplasm Fermentins, Tularemia, Bartonella, Encephalitis, and the like) have necessitated the use of pesticides to keep the tick population in check. We live near Lake Thunderbird and contracted Lyme Disease in 2001 and 2004 from tick bites on our property. We finally were able to get rid of the problem after spending $70,000 over a two year period on medical treatment. We further have direct knowledge of at least two individuals who live within five miles of us who have contracted Lyme Disease or Rocky Mountain Fever and died. To prevent the responsible use of pesticides to control ticks could possibly contribute to a future health problem for the city of Norman.

The prohibition of activities on the zoned lands has not been thoroughly thought through and can lead to many unforeseen consequences. For example, there are numerous invasive plant species, e.g. the Western Red Cedar, that are encroaching upon our Norman land area. Many areas are blanketed with the tree to the point where nothing else will grow under or around them. This is because they absorb all the water that falls on their area and prevent it from nourishing the plants under it, as well as shade the ground from sunlight. Without the foliage to hold the soil, erosion running through an area blanketed with red cedar will take away the topsoil, cause silting of our waterways, and result in the need for more frequent dredging of the lake so that it remains a viable reservoir. Selective removal of red cedar would seem to be desirable, but the zoning ordinance would prevent such activities. Furthermore, there are other invasive species that take over large areas, and compete with and replace native plant life. One such species is Ceresa Lespedeza. This legume was imported in the 30’s to prevent soil erosion and to provide cattle with forage. However, it has spread unchecked; rapidly replacing native plants, and does not contribute appreciably to the landscape. It can be killed by spraying with herbicides or mowing before it has had a chance to produce seed in late June, but without such controls, it will take over an area. I am aware of other such non-native plants that are similarly invasive. A prohibition on the use of herbicides and other removal methods for such plants could result in a seriously adverse affect on the native habitat.

The zoning ordinances will prevent the proactive use of a number of activities that might otherwise mitigate the runoff problem, e.g. planning of water-loving trees such as pecans, terracing, dam building to capture runoff water for personal use, mowing brush to remove wildfire dangers, etc. All these activities would be performed by the landowner at his/her own expense for his/her own benefit and would also contribute to the cleanliness of storm water runoff. However, they will be prevented by this zoning ordinance.

The zoning ordinances will not fix the problem that they are purported to fix, namely, improvement of the quality of Lake Thunderbird water. Norman, both east and west, contributes less than fifty percent of the runoff into the lake, with the remainder coming from other communities in the watershed such as Moore, Del City, and Oklahoma City. The zoning of the Norman areas will not fix the problem since these other communities will continue to contribute their share to the lake water.

The amount of pollution has not been assigned to any point source, but has been extensively modeled for only the Norman contributions. Thus it has not been established that any Norman area is responsible for any portion of the lake water pollution; this is at present only an assumption based on modeling and the experiences in other communities, so Norman “must” be contributing something. However, this has not been established in quantifiable numbers based upon actual measurement. Therefore these zoning ordinances are being set up without any positive connection to actual pollution, only a theoretical value. A better solution would be to measure actual contributions and penalize those responsible. Until that occurs, an expansive zoning solution is unwarranted.

In conclusion, it is apparent that the two zoning ordinances that are being proposed for a vote of the Norman City Council have not been thoroughly investigated by the planning commission. While the SWMP has been out since October, 2009, it was not widely known by the citizens until recently when approval has been requested. The planning commission has not done a good enough job in obtaining a buy-in by Norman citizens. Furthermore, three council members who will be leaving office in July will be voting on these measures, but these departing council members will not have to live with the consequences of their vote or be held accountable. At a minimum, the vote should at least be delayed until their replacements take office and study the problem. Having a fresh set of eyes to look at the situation can often prove to be beneficial and there is not good reason why this should not happen.

The charge has been made that it is only the “greedy developers” who object to these ordinances for their own profit motive. A vast majority of the people living in East Norman are private citizens who don't want to have their property rights encumbered in this manner. This “greedy developer” objection is just a red herring on the part of those favoring the ordinance. The city can control development in other ways if they want to, e.g. granting permits and approving plats, without going to the extreme solution of zoning the entire east side.

Therefore, we would respectfully request that these zoning ordinances be postponed until other, less invasive alternatives be considered and evaluated for feasibility.


James F. Harvey

Mallory R. Harvey

Norman, Oklahoma

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