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03-25-1974 Minutes108 City of Salina, Kansas Regular Meeting of the Board of Commissioners March 25, 1974 The Regular Meeting of the Board of Commissioners met in the Commissioners' Room, City -County Building, on Monday, March 25, 1974, at seven o'clock P.M. The Mayor asked everyone to stand for the pledge of allegiance to the Flag and a moment of silent prayer. There were present: Mayor Jack Weisgerber, Chairman presiding Commissioner Robert C. Caldwell Commissioner Norma G. Cooper Commissioner Mike Losik, Jr. Commissioner W. M. Usher comprising a quorum of the Board, also: L. 0. Bengtson, City Attorney Norris D. Olson, City Manager D. L. Harrison, City Clerk s Absent: None The Minutes of the Regular Meeting of March 18, 1974 were approved as mailed. STAFF AGENDA THE CITY CLERK reported that the Assessment Rolls are ready for the following completed improvements, to -wit: (Engineering Project 73-555A & 73-555 ) Concrete curbing, guttering, paving and grading of Kirwin Avenue from the east curb line of Ohio Street to a point 430 feet East. Concrete paving and grading of Third Street from Mulberry Street south to the Smoky Hill River. Asphalt paving, grading and water mains for Dewey Street from the west lot lines of Lots 2 and 3, Brown and Brown Addition to Bromac Street. as authorized by Resolution Number 3146, passed by the Board of Commissioners on June 4, 1973, has been determined and that the final costs have been filed by the City Engineer. A MOTION was made by Commissioner Losik, seconded by Commissioner Caldwell to instruct the City Clerk to publish Notice in the official city newspaper at least once not less than ten days prior to the date of April 8, 1974 the date set for the public hearing on said assessments, and that at the same time notice is published to mail to the owners of property made liable to pay the assessments, at their last known post office address, a notice of hearing and a statement of the cost proposed to be assessed against the land so owned and assessed. Ayes: (5). Nays: (0). Motion carried. 109 THE CITY ENGINEER filed a Feasibility Report for street improvements on Planet Avenue from Otto Avenue 300 feet South, and for water main extension to service the South 100 feet of the North 300 feet of Lot 8, Block 2, Wallerius Addition, both petitions were filed by Max McClintock. A motion was made by Commissioner Usher, seconded by Commissioner Losik to accept the Feasibility Report as filed by the City Engineer. Ayes: (5). Nays: (0). Motion carried. A MOTION was made by Commissioner Cooper, seconded by Commissioner Losik to introduce an ordinance for first reading authorizing the issuance of Park Improvement Bonds, Series PK -216 of the City of Salina, Kansas, in the aggregate amount of $100,000 to pay the cost of improving the public parks in said City. Ayes: (5). Nays: (0). Motion carried. Ordinance Passed: Number: A LETTER was received from the Metropolitan Planning Commission recommending the approval of Petition Number 3398, which was filed by Mr. Ben J. Frick, for the rezoning of the South 45 feet of Lot 26 and all of Lot 28, Block 6 Bonds Addition from District "B" (Two -Family Dwelling House District) to District "C" (Apartment District). A motion was made by Commissioner Usher, seconded by Commissioner Losik to accept the recommendation of the Metropolitan Planning Commission and introduce the rezoning ordinance for first reading. Ayes: (5). Nays: (0). Motion carried. Ordinance Passed: Number: A LETTER was received from the Metropolitan Planning Commission recommending the approval of the rezoning of a tract of land in the Southwest Quarter of Section 26, Township 14 South, Range 3 West of the Sixth Principal Meridian, from District "A" (Second Dwelling House District) to District "D" (Local Business District), requested in Petition Number 3380, which was filed by Raymond E. Haggart. Mr. Keith Rawlings, Secretary of the Metropolitan Planning Commission, read the letter from the Planning Commission. Mr. Clarence King, Jr., Attorney representing people protesting the rezoning, reviewed the history of the rezoning petition and the proposed land use plan, and asked the City Commission to deny the petition for rezoning, and to ask some very pointed questions of Oblinger and Smith before accepting the 1974 land use plan. Mr. King stated the people within 100 feet, instead of 200 feet, were the only ones who received notice of rezoning; also they received notice 8 days before the hearing instead of 20 days. He also stated the proposed land use plan was modified concerning the area in question after the public hearing and there- fore they (the protesters) did not have an opportunity to discuss it with the Metropolitan Planning Commission. THE CITY ENGINEER reported on Petition Number 3408 which was filed by the National Bank of America, requesting curbing, guttering, and paving on Century Plaza Drive in Meadowlark Acres Addition Number 2, that the petition signers own 100; of the property in the benefit district, and that the petition is valid and will come under the provisions of Resolution Number 3113. A motion was made by Commissioner Cooper, seconded by Commissioner Losik to accept the City Engineer's report and approve the petition. Ayes: (4). Nays: (0). Commissioner Usher abstained. Motion carried. THE CITY ENGINEER filed a Feasibility Report for street improvements on Century Plaza Drive, requested in Petition Number 3408 which was filed by the National Bank of America. A motion was made by Commissioner Losik, seconded by Commissioner Caldwell to accept the Feasibility Report as filed by the City Engineer. Ayes: (4). Nays: (0). Commissioner Usher abstained. Motion carried. THE CITY ENGINEER filed a Feasibility Report for street improvements on Planet Avenue from Otto Avenue 300 feet South, and for water main extension to service the South 100 feet of the North 300 feet of Lot 8, Block 2, Wallerius Addition, both petitions were filed by Max McClintock. A motion was made by Commissioner Usher, seconded by Commissioner Losik to accept the Feasibility Report as filed by the City Engineer. Ayes: (5). Nays: (0). Motion carried. A MOTION was made by Commissioner Cooper, seconded by Commissioner Losik to introduce an ordinance for first reading authorizing the issuance of Park Improvement Bonds, Series PK -216 of the City of Salina, Kansas, in the aggregate amount of $100,000 to pay the cost of improving the public parks in said City. Ayes: (5). Nays: (0). Motion carried. Ordinance Passed: Number: A LETTER was received from the Metropolitan Planning Commission recommending the approval of Petition Number 3398, which was filed by Mr. Ben J. Frick, for the rezoning of the South 45 feet of Lot 26 and all of Lot 28, Block 6 Bonds Addition from District "B" (Two -Family Dwelling House District) to District "C" (Apartment District). A motion was made by Commissioner Usher, seconded by Commissioner Losik to accept the recommendation of the Metropolitan Planning Commission and introduce the rezoning ordinance for first reading. Ayes: (5). Nays: (0). Motion carried. Ordinance Passed: Number: A LETTER was received from the Metropolitan Planning Commission recommending the approval of the rezoning of a tract of land in the Southwest Quarter of Section 26, Township 14 South, Range 3 West of the Sixth Principal Meridian, from District "A" (Second Dwelling House District) to District "D" (Local Business District), requested in Petition Number 3380, which was filed by Raymond E. Haggart. Mr. Keith Rawlings, Secretary of the Metropolitan Planning Commission, read the letter from the Planning Commission. Mr. Clarence King, Jr., Attorney representing people protesting the rezoning, reviewed the history of the rezoning petition and the proposed land use plan, and asked the City Commission to deny the petition for rezoning, and to ask some very pointed questions of Oblinger and Smith before accepting the 1974 land use plan. Mr. King stated the people within 100 feet, instead of 200 feet, were the only ones who received notice of rezoning; also they received notice 8 days before the hearing instead of 20 days. He also stated the proposed land use plan was modified concerning the area in question after the public hearing and there- fore they (the protesters) did not have an opportunity to discuss it with the Metropolitan Planning Commission. 110 Mr. Tom Hampton, Attorney for the petitioner, said the petitioner has done everything that has been requested by either the Metropolitan Planning Commission or the City Commission; and the Metropolitan Planning Commission has given the City Commission its reasons, in writing, for recommending the approval of the rezoning. He urged the City Commission to accept the recommendation of the Metropolitan Planning Commission and approve the rezoning. Mr. Tom Darnell, Planner from Bucher and Willis, was present and explained several points in the land use plan. Mr. Rawlings clarified several points raised by Clarence King that every property owner within 200 feet was notified, and the 20 days notice is the one published in the official city newspaper, and this was done. A motion was made by Commissioner Usher to accept the recommendation of the Metropolitan Planning Commission and approve the rezoning, and to introduce the rezoning ordinance for first reading. The motion died for the lack of a second. A motion was made by Commissioner Losik to disapprove the petition. Commissioner Cooper said, ''I am going to second that motion, but I'd like to explain why. Both petitions have merit. I believe both sides feel that the rules support their request. Planning says that Industrial Bond issues creat a demand for commercial zoning. If this is so, it has not created any demand elsewhere in the City where there have been other industrial bond issues. Everyone appears to have the facts, we just disagree on what the facts prove. Planning can't be sure that their conclusions are right, I don't know that my views are right, and certainly the majority isn't always right. Nonetheless the opinions of the majority are the results we all live with from Congressional decisions to the kinds of cars we drive and how our children are educated. The basis is what the majority want. This problem isn't any different, and for those reasons I second the motion to deny the petition." Commissioner Caldwell said, "I would like to make one comment on the letter from the Metropolitan Planning Commission, items 1 and 2, but item 3, 1 think we were here the night, after the City Commission had turned down the petition, and that was the night that this area was marked for rezoning commercially. I thought at the time it was very untimely coming from the Planning Commission because they had all this time before to do that, and as I said I felt it was very untimely to change this to a different zoning at this particular time. So I think item 3 here, as stated it is in compliance with the proposed land use plan and map, which is true now, but it wasn't at the time on March 19th until that time." Commissioner Usher commented, "Except that they had given their consultants instructions to change it before that, by two weeks." Commissioner Caldwell replied, "I didn't know that, I am not familiar with it. I didn't hear that." Commissioner Cooper said, "I think we have, in writing also Bob, on one of their recommendations to us that the Haggart petition was in compliance with both the present and the proposed. This was before the change in the proposed, that it complied with both the present land use and the proposed land use, and I'll have to confess that that puzzled me how it could do both, but then there appeared to be some kind of a contradiction there." Ayes: Caldwell, Cooper, Losik (3). Nays: Usher, Weisgerber (2). Motion carried. Mayor Weisgerber said, "Let me go back a little. I am always slow to override the Metropolitan Planning Commission because I think on the whole they work on these things very hard with the benefit of the staff and with the staff's input and professional planner,and I think also they are much more likely to take the long range view as to what is likely to happen and what is for the best interest of the city in the long run, and are able better than this Commission to overcome the pressures of the moment from sheer numbers of the people that may be involved. On this particular piece of property, I have been to a great number of the Planning Commission meetings as they worked on this land use plan, and that incidentally is a guide, a general long term guide, and does not necessarily represent current zoning; but this particular piece of property that we are talking about was a question in their minds, and a piece of property that they discussed a great deal all through the period of time that they worked on this land use map. Up until the time that they had the hearing in fact, they left it really unresolved. When they had this hearing, they had in mind precisely what they did. They had in mind that there were some areas of property that they were not sure of, they wanted to have a hearing, they wanted to see what reactions they got from people from different pieces of property. They had no intention at that time of simply having a hearing as sort of a false front and then immediately approving the land use plan as they had done it. They had in mind incorporating into the plan the information that they would get from that hearing. So partly as a result of the presentation that was made at that time, since this particular piece of property was not really settled in their minds anyway, that in the subsequent meetings they talked this over and realized the almost impossibility of housing directly on the 4 lane 9th Street area, decided that some area along there should also be commercial. They didn't necessarily mention and I don't believe that the present land use map as they have changed it, shows the precise number of acres and the precise design that the petitioner for this requested, was simply a guide that some area along there should be zoned commercial, and I have to feel that they have taken the long range view on this, and have weighed your petitioners request both sides. It is also interesting to note perhaps that because it has come up before, but I believe that the most complaint that I personally have gotten from you folks on this have been based on the traffic flow on Magnolia. Now Magnolia is designed to be a thoroughfare, there is no way to prevent this from happening no matter how this is zoned or when it may be zoned. It is also possible, however, that as traffic on the street grows, it may be necessary to change the stop signs, the traffic lights, walk lights, whatever, and for your information if you don't already know - Engineering Department has a set of criteria being used in the recent school zone survey to guage the number of cars passed certain intersection and on certain streets. From this they can tell rather accurately what type of safety device needs to be installed to take care of traffic flow, so as traffic on Magnolia increases and we are sure it will, I think Engineering will try to keep abreast of this and provide whatever traffic control may be necessary. It really isn't an argument so far as any zoning for any type is concerned, but it can be an argument that the regulation of the traffic keep up with the current traffic flow. But I am sympathetic with what you are saying, I have however to agree pretty much with Planning. I don't believe that you, with the exception of a very, very few, that you have the problem that is going to hurt your property at all. I don't think that it is, and in fact I think that a development on that corner may actually increase the value of some of these properties because it will be close enough to serve the area well. I have to feel that this commission here is bending to the number of petitioners on the one side, rather than to logic of what is really going to happen in that area in the long run, and also of what it really will do to any of your property values. If I felt that it was really going to damage your property and cause you harm, certainly I would be on the other side, but I just don't believe it is that way." Commissioner Losik commented, "It seems to me you have already voted, Jack, I call for the question." Ayes: Caldwell, Cooper, Losik (3). Nays: Usher, Weisgerber (2). Motion carried. .112 F1 Mayor Weisgerber said, "Tom, the cause is lost for the time being. In this particular petition I think the timing also has been bad. Either earlier or later might have been better, but one never knows these things." Commissioner Cooper said, "I didn't speak for anybody else, and it was not for the benefit of the people in the room, or any exclusive purposes that it was in response to the people who signed the petition opposed to it as well as yourself who are representing the petition for the change. I agree, you do not step lightly on someone's rights to use their property at the highest and best use, but this was the question. You are not denying them that this is where the problem comes in. Some said that that was the highest and best use. I didn'- happen to agree, and I expressed my vote in that manner. I think if the people had wanted to have developed that land as you are now proposing, they could have done it even several years ago, and they may not have had anyone complain about it, or anything in the land use plan that would object to it because you weren't even in the city. There was a time it could have been developed any way you wanted to without ever coming to the City to get their consent on it." Mayor Weisgerber commented. "We have a difference of opinion on this particular proposition, but suppose we look down the road. Are we then going to be in the position, and anyone who - particularly in -`the Planning Commission area but on other things too, but particularly in the Planning Commission area - are we going to say that if there is a lot of organized opposition to any petition that comes along, are we going to vote it down on the basis of the number of people who oppose it, or are we going to look past this and really study both sides of the question and see whether the people who oppose it maybe really are hurt or whether they just happen to be stirred up for the moment. It concerns me a little that anything that comes along to which there is opposition, we seem to immediately jump on the band wagon with those opposed to it, without looking past this and seeing how the issue really affects the overall growth of the City. I think we have a fundamental difference on this Commission in thinkinc What would be a really, truly democratic method perhaps where you really weigh the people who are here or that express an interest in the issue. This isn't really what representative government is, and that is what we are. As . representatives we have to look further than the protestors of the moment, and I just question that we sometimes do this." Mr. Hampton said, "I would just like to make a couple of comments, maybe just to get a couple of things off my chest. Zoning is an exercise of police power. Exercise of zoning is designed to be sure to take care of the health and welfare of the people; not an exercise in numbers - or the number of people that appear at a hearing to voice their objections or their support of a particular proposition. When the police power is exercised in such a manner as to deprive the owner of the use of property it seems that we get into some other pretty fundamental rights. You talk about the rights of majorities and people and so forth. At some time I recall that property rights are pretty important rights and the right to use property in a reasonable manner and in such a manner that it doesn't interfere with the adjoining land owner, with its best and highest use is important and valuable legal right that we all have. I don't want to see it get stepped on. When you deprive a person of the right to use property for its highest and best use I think you have effectively taken that property. You have effectively taken the value of that property. The reasons as I understand it for the vote that was taken was basically that you are going to go along with the majority of the people present in this room. We don't have the provision for town meetings in Kansas. We elect a city commission to exercis( their responsibilities and discharge their duties as they see fit; and if in the exercise of your judgement runs contrary to the minds of the majority of the people in the entire community, not the people sitting in this room, chances are you will not be re-elected, but at least you will have discharged your obligation. I really strongly feel that this is a frustrating effort on the part of this land owner. I have the distinct feeling that the answer would have been available on January 21, 1974, and we have been playing games since that time at great expense, time and effort of everyone involved, the petitioners, the protesters, and everyone. I think it is a shame that we can't get these cards on the table immediately at the first hearing, and if we can't regardless of the facts, convince you of the appropriatness of a petition I think that you would save everyone's time and trouble if you would so state at the outset. I appreciate your time." F1 Mayor Weisgerber said, "Tom, the cause is lost for the time being. In this particular petition I think the timing also has been bad. Either earlier or later might have been better, but one never knows these things." Commissioner Cooper said, "I didn't speak for anybody else, and it was not for the benefit of the people in the room, or any exclusive purposes that it was in response to the people who signed the petition opposed to it as well as yourself who are representing the petition for the change. I agree, you do not step lightly on someone's rights to use their property at the highest and best use, but this was the question. You are not denying them that this is where the problem comes in. Some said that that was the highest and best use. I didn'- happen to agree, and I expressed my vote in that manner. I think if the people had wanted to have developed that land as you are now proposing, they could have done it even several years ago, and they may not have had anyone complain about it, or anything in the land use plan that would object to it because you weren't even in the city. There was a time it could have been developed any way you wanted to without ever coming to the City to get their consent on it." Mayor Weisgerber commented. "We have a difference of opinion on this particular proposition, but suppose we look down the road. Are we then going to be in the position, and anyone who - particularly in -`the Planning Commission area but on other things too, but particularly in the Planning Commission area - are we going to say that if there is a lot of organized opposition to any petition that comes along, are we going to vote it down on the basis of the number of people who oppose it, or are we going to look past this and really study both sides of the question and see whether the people who oppose it maybe really are hurt or whether they just happen to be stirred up for the moment. It concerns me a little that anything that comes along to which there is opposition, we seem to immediately jump on the band wagon with those opposed to it, without looking past this and seeing how the issue really affects the overall growth of the City. I think we have a fundamental difference on this Commission in thinkinc What would be a really, truly democratic method perhaps where you really weigh the people who are here or that express an interest in the issue. This isn't really what representative government is, and that is what we are. As . representatives we have to look further than the protestors of the moment, and I just question that we sometimes do this." 113 COMMISSION AGENDA None The City Attorney explained, "We are in compliance with State Law that Commissioner Caldwell said, 111 would like to say something to Tom. says they cannot be open after 11 o'clock. You could, by ordinance, if you PUBLIC AGENDA Tom you made some good points there on certain people being deprived of things. They can voluntarily close at 10 o'clock if they want to, there is nothing that America isn't perfect, you know, not by a long shot. It has been doing this to PETITION NUMBER 3410 was filed by the Retail Liquor a lot of people a long time. It isn't just in this particular plot that you are else from opening, I think they could challenge it on the grounds that it is talking about that you are concerned about, but there are a lot of things in requesting a change in the closing time of the retail America that have to be worked out. Now we could take the same stand on all the taxing our police force because of extra surveillance, if it is causing us things we want as far as people are concerned, rather in a business way, I think we would get a better job done. You are saying now, something about Kansas, from 11:00 P.M. to 10:00 P.M. re-election, which is a great thing to say. I imagine every Commissioner up perfectly within your rights to do it; however to do it without such a here right now wished they were not even up here, whether they were elected or Mr. Dale Brooks, were Mr. Joe Martin, Mr. Carl Garrett, not, but we do have a job to do. I would like to say this that this isn't the A motion was made by Commissioner Usher, seconded by Commissioner Caldwell to only favor you are going to ask the City Commission. I think we have seen you present and requested the City Commission amend quite a few times this year. Some have been in your favor, this one just didn't Commissioner Losik abstained. Motion carried. happen to be. So I think you have got to take them both ways. Now I am not the closing time. The petition was signed by all but saying that we are right or we are wrong, but you said that you were up here trying to acknowledge what we thought was the will of the people. It just so a letter from Sheriff Ery Hindman, supporting happens the vote went a different way this time, and I still think we are trying to do the will of the people." hour. Mr. Hampton replied, "Bob, I don't doubt your sincerity one minute, and if I was overly harsh, I am sorry." COMMISSION AGENDA None The people present and the City Commissioners discussed the necessity of changing the code. The City Attorney explained, "We are in compliance with State Law that says they cannot be open after 11 o'clock. You could, by ordinance, if you PUBLIC AGENDA wanted to, reduce it, but I think you would have to show good grounds for it. They can voluntarily close at 10 o'clock if they want to, there is nothing that PETITION NUMBER 3410 was filed by the Retail Liquor Dealers of Salina, else from opening, I think they could challenge it on the grounds that it is Kansas, requesting a change in the closing time of the retail liquor stores in taxing our police force because of extra surveillance, if it is causing us Salina, Kansas, from 11:00 P.M. to 10:00 P.M. a problem involved, that it would help the situation, then I think you are perfectly within your rights to do it; however to do it without such a Sullivan Mr. Dale Brooks, were Mr. Joe Martin, Mr. Carl Garrett, and Mrs. Richard A motion was made by Commissioner Usher, seconded by Commissioner Caldwell to present and requested the City Commission amend the Salina Code to Commissioner Losik abstained. Motion carried. change the closing time. The petition was signed by all but 4 of the store owne They presented a letter from Sheriff Ery Hindman, supporting the change in the closing hour. The people present and the City Commissioners discussed the necessity of changing the code. The City Attorney explained, "We are in compliance with State Law that says they cannot be open after 11 o'clock. You could, by ordinance, if you wanted to, reduce it, but I think you would have to show good grounds for it. They can voluntarily close at 10 o'clock if they want to, there is nothing that prohibits this whatsoever. There are two or three, they are not unanimous, that say you go ahead and pass this for the reason you are going to eliminate someone else from opening, I think they could challenge it on the grounds that it is unconstitutional. I think if you are going to reduce this and make it manditory then I think you need some reason to do this. If there is a problem, if it is taxing our police force because of extra surveillance, if it is causing us problems, and if we have a recommendation from our Chief of Police that there is a problem involved, that it would help the situation, then I think you are perfectly within your rights to do it; however to do it without such a recommendation or just to eliminate competition from someone that might stay open, I don't think this is a valid grounds to do it." A motion was made by Commissioner Usher, seconded by Commissioner Caldwell to refer the petition to Chief of Police Woody for his written recommendation. Ayes: Caldwell, Cooper, Usher, Weisgerber (4). Nays: (0). Commissioner Losik abstained. Motion carried. 114 PETITION NUMBER 3411 was filed by William J. Stover, 2087 Roach, for the rezoning of Lots 5, 6, 7, 8, Block 20, Key Acres Addition from District "A" (Second Dwelling House District) to District "B" (Two -Family Dwelling House District). A motion was made by Commissioner Caldwell, seconded by Commissioner Cooper to refer the petition to the Metropolitan Planning Commission. Ayes: (5). Nays: (0). Motion carried. A MOTION was made by Commissioner Usher, seconded by Commissioner Losik that the Regular Meeting of the Board of Commissioners be adjourned. Ayes: (5). Nays: (0). Motion carried. D. L. Harrison, City Clerk 1 1 J 1- 15 WAIVER AND CONSENT TO HOLD A SPECIAL MEETING OF THE BOARD OF COMMISSIONERS We, the undersigned, being the duly elected, qualified and acting Commissioners of the City of Salina, Kansas, and constituting all the Board of Commissioners of the City of Salina, Kansas, do hereby waive notice and consent to the holding of a special meeting of the Board of Commissioners on the 2nd day of April, 1974, at 4:00 o'clock P.M., for the purpose of considering business regularly scheduled to come before said Board of Commissioners on the 1st day of April, 1974, at 4:00 o'clock P.M., the regularly scheduled meeting date and time. Dated this 2nd day of April, 1974. / t / Commissioners