04-22-1974 Minutes135
City of Salina, Kansas
Regular Meeting of the Board
of Commissioners
April 22, 1974
The Regular Meeting of the Board of Commissioners met in the
Commissioners' Room, City -County Building, on Monday, April 22, 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 W. M. Usher, Chairman presiding
Commissioner Robert C. Caldwell
Commissioner Norma G. Cooper
Commissioner Mike Losik, Jr.
Commissioner Jack Weisgerber
comprising a quorum of the Board, also:
Edon Barta, Assistant City Attorney
Norris D. Olson, City Manager
D. L. Harrison, City Clerk
Absent:
L. 0. Bengtson, City Attorney
The Minutes of the Regular Meeting of April 15, 1974 were approved as
mailed.
STAFF AGENDA
AN ORDINANCE was introduced for second reading entitled: "AN ORDINANCE
providing for the amendment of Zoning Ordinance Number 6613 and the Zoning
District Map therein and thereby adopted and providing for the rezoning of
certain property within the City and prescribing the proper uses thereof."
(For the rezoning of Lots 8, 9, 10, Block 3, Riverview Addition from District "A"
(Second Dwelling House District) to District "C" (Apartment District) requested
in Petition Number 3402, filed by William D. Smith)
PETITION NUMBER 3422 was filed by Robert L. Marietta on April 16, 1974
for the denial of Petition Number 3402 for the rezoning of Lots 8, 9, 10, Block 3
Riverview Addition.
A REPORT from Keith Rawlings, Planning Director, indicates the protest
petition has been signed by owners of 45.5% of the property in the protest area,
and is therefore a valid protest petition.
There were no protesters present.
Mr. Smith was present and reported he had talked with the people in
the area and showed them pictures of the proposed improvement. He said he was
encouraged by everyone except two, and was surprised to learn that a protest
petition had been filed.
Commissioner Weisgerber moved to adopt the ordinance as read in view
of the fact that Mr. Smith had concurrence from most of the
people in the area and because the protest petition is so late in being filed.
"I have looked the situation over and I can't see but what it would add to the
area."
Commissioner Caldwell said, "I second the motion, however I think when
we voted on this last week we were all of the opinion everything was fine. I
don't know of any differences we had voting last week."
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Commissioner Cooper said, "Well there weren't any differences last
week. It went on first reading, as I recall, wasn't it last week, and I think
the people, this is a legal protest, I think the people in the area have,
someone correct me if I am mistaken, 20 days isn't it Keith?"
Mr. Rawlings said, "It is 14 days from the conclusion of the public
hearing, this would have been the 16th day of April, the day it was filed."
Commissioner Cooper said, "What kind of time are we talking about?"
Mr. Rawlings said, "Fourteen days from the Planning Commission hearing,
which was held on April 2nd. The 16th day of April was the expiration date of
the protest period."
Commissioner Cooper asked, "It was filed by the 16th?"
Mr. Rawlings replied, "Yes."
Commissioner Cooper said, "So they are within the legal time limit. Th
only thing I was going to suggest to Mr. Smith, when this went on first reading
I accepted, as you did, that there would not be any objection to it because there
wasn't anyone objecting, and the Commission had not received a petition; however
it would appear that there has been a change of minds of the people within this
area, and I think it would be of some value to you, because these are apparently
people you have visited with. Now something has happened to either mislead them
or make them misunderstand your project. If maybe you could visit with them
about it again and maybe explain and show them what you plan on doing, I feel
that your proposal would be an improvement to the general area, but apparently
they do not agree with this, and since you are seeking the zoning change, maybe
you could relieve some of the misunderstanding that they have. Do you think that
is possible?"
Commissioner Weisgerber asked the petitioner if he wants to continue
with the project or if he wants to drop it.
Mr. Smith said he wants to continue with the project.
The following vote was had on the motion to adopt the ordinance as
read: Ayes: Caldwell, Weisgerber, Usher (3). Nays: Cooper, Losik (2). The
ordinance did not carry as it needed a 4/5 vote because of the valid protest
petition.
AN ORDINANCE was introduced for second reading entitled: "AN ORDINANCE
providing for the amendment of Zoning Ordinance Number 6613 and the Zoning
District Map therein and thereby adopted and providing for the rezoning of
certain property within the City and prescribing the proper uses thereof." (For
the rezoning of Lot 8, Block 5, Walnut Grove Addition from District "B" (Two -
Family Dwelling House District) to District "D" (Local Business District) request
in Petition Number 3406, filed by Hanson and Hays)
PETITION NUMBER 3423 was filed by Paul Gene Woods on April 16, 1974
for the denial of Petition Number 3406 for the rezoning of Lot 8, Block 5, Walnut
Grove Addition).
A report from Keith Rawlings, Planning Director, indicates the protest
petition has been signed by owners of 22.40 of the property in the protest area
and is therefore a valid protest petition.
Mr. Hays was present and presented a layout of the lot and their
proposed placement of the building on the property.
After some discussion, a motion was made by Commissioner Losik,
seconded by Commissioner Cooper to table the matter for one week to allow the
petitioner time to contact some of the petitioners to see if they would remove
their name from the petition. Ayes: (5). Nays: (0). Motion carried.
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A RESOLUTION was introduced and passed entitled: "A RESOLUTION
authorizing and ordering certain curbing, guttering, paving, grading water main
and service lines and sanitary sewer and service line improvements, ordering
preparation of plans and specifications, and the estimate of costs." (Engineer-
ing Project 74-569 for Bonnie Ridge Addition). A motion was made by Commissioner
Caldwell, seconded by Commissioner Weisgerber to adopt the Resolution as read
and the following vote was had: Ayes: Caldwell, Cooper, Losik, Weisgerber,
Usher (5). Nays: (0). Carried. The Mayor approved the Resolution and it is
numbered 3183.
A MOTION was made by Commissioner Caldwell, seconded by Commissioner
Losik to introduce an ordinance for first reading creating a commission to be
known as the City Planning Commission of the City of Salina; providing for the
number of members and their appointment; amending Article I of Chapter 27 of the
Salina Code and repealing the existing section." Ayes: (5). Nays: (0).
Motion carried.
Ordinance Passed: Number:
None
COMMISSION AGENDA
PUBLIC AGENDA
A REQUEST was received from Robert M. Muir to present further infor-
mation on unlawful trespass.
Mr. Muir said he contacted Mr. Bonebrake, a retired engineer from
Wilson and Company who was responsible for most of the engineering work between
the City and the Corps of Engineers in the presenting of the flood control plans.
He said the engineer has a set of regulations that lists the property to be
covered by the flow -way easements. He said Mr. Bonebrake said it was his under-
standing that these easements were supposed to be acquired and he notified the
property owners that the City of Salina intended to acquire those easements.
Mr. Muir said he also had a copy of a resolution passed by the City Commission
on April 25, 1960 appointing 3 appraisers to appraise for the flow -way easements.
Mr. Muir said he asked if he could bring these documents down for
inspection by the City Commission, but Mr. Bonebrake said no, he wanted to keep
them, but they were open for inspection; he also said the city has a copy of
all records.
Mr. Muir said Mr. Bonebrake informed him if they were carrying out the
appraisement for flow -way easements that the appraisers would be registered with
the District Court. He said he searched the District Court records and found
no evidence that they were ever registered in the District Court as appraisers.
He said he searched the City Commission records for a year past and found no
record of any more direction being given to them, and no record of them being
dismissed. He said it was apparently dropped.
Mr. Muir said "I think this is definitely proof that the City at one
time agreed to buy those flow -way easements to protect the land owners out
there."
Mayor Usher said, "One of the problems I see as a City Commissioner
is the fact that in these situations like the one you have brought to us, we
depend on the staff to advise us on what we should do. Certainly I am not
smart enough to make a decision on it, and at this point our City Attorney has
advised us of the fact that we are not liable, and until you can prove without
a doubt that the City is liable, I think we have to stand on what our staff
advised us."
Mr. Muir said Mr. Bengtson's letter brought up the statute of
limitations. "When I was informed they were not going to buy these flow -way
easements I was informed that by Howard Engleman, shortly after 1960, he said
you have nothing to worry about, until the City buys those flow -way easements
they will be responsible for any and all damage that happens to your property
by flood."
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Commissioner Losik said, "Mr. Muir, it is unfortunate, that things
like this happen, and I can understand and I can appreciate the situation. The
thing I cannot understand is why we the Commission are not willing to research
deeper into this thing before it goes to court; which there is no doubt in my
mind that it will end up there, and I would hope we would work and try to re-
solve this thing before it has to come up because a court case is not going to
prove a whole lot it is going to end up costly to both ends and regardless as
to how it turns out there is going to be bitterness in the thing. I would
wish we would get together someway and have a conference or something with the
legal people to research this further before it has to become a hard-nosed
court case. I don't know how we can do it.
I would hope there is someway my colleagues could go along with that
thinking and perhaps somehow encourage the staff to try to dig in and try to
find out if we are or are not at fault. We have inherited this, but it is an
honest inheritance and we have to live by what the previous commissioners
have done. If this is what they have done, and they haven't done this, we
have a problem; but if somewhere along the line there has been some legal
document which relieves the City of this, then you should be aware of this
and we should be aware of this. But at this point we have two complete opposite
opinions that have only one place to go and I would hate to see it go there
without a little more work behind the scene to see what could be brought up."
There was no formal action taken.
A MOTION was made by Commissioner Caldwell, seconded by Commissioner
Losik that the Regular Meeting of the Board of Commissioners be adjourned.
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D. L. Harrison, City Clerk