06-12-1972 Minutes1
City of Salina, Kansas
Commissioners' Meeting
June 12, 1972
The Regular Meeting of the Board of Commissioners met in the Commissioners' Room,
City -County Building, on Monday, June 12, 1972, at four 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 Leon L. Ashton
Commissioner Robert C. Caldwell
Commissioner Norma G. Cooper
Commissioner Mike Losik, Jr.
comprising a quorum of the Board, also:
L. 0. Bengtson, City Attorney
Norris D. Olson, City Manager
D. L. Harrison, City Clerk
Absent:
None
The Minutes of the Regular Meeting of June 5, 1972 were approved as mailed.
STAFF AGENDA
AN ORDINANCE was introduced for second reading entitled: "AN ORDINANCE annexing
certain land to the City of Salina, Kansas, in conformity with the provisions of K. S. A.
1970 Supplement 12-520." (For the annexation of Parkwood Village Addition, as requested
in Petition Number 3235, which was filed by Presley Builders, Inc., on March 16, 1972)
A motion was made by Commissioner Ashton, seconded by Commissioner Losik to adopt the
ordinance as read and the following vote was had: Ayes: Ashton, Caldwell, Cooper,
Losik, Weisgerber (5). Nays: (0). Carried. The Mayor approved the ordinance and it is
numbered 8227. The ordinance was introduced for first reading June 5, 1972.
A LETTER was received from the SALINA CITY PLANNING COMMISSION recommending the
approval of the final plat of Parkwood Village Addition, (Requested in Petition Number 3236
which was filed by Presley Builders, Inc., on March 16, 1972) A motion was made by
Commissioner Losik, seconded by Commissioner Ashton to accept the recommendation of the
Salina City Planning Commission and approve the final plat of Parkwood Village Addition.
Ayes: (5). Nays: (0). Motion carried.
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 1 and 2, Block 1; Lot 1,
Block 6, and all of Block 7, Parkwood Village Addition, which was requested in Petition
Number 3237, which was filed by Presley Builders, Inc., on March 16, 1972). A motion was
made by Commissioner Cooper, seconded by Commissioner Ashton to adopt the ordinance as read
and the following vote was had: Ayes: Ashton, Caldwell, Cooper, Losik, Weisgerber (5).
Nays: (0). Carried. The Mayor approved the ordinance and it is numbered 8228. The
ordinance was introduced for first reading June 5, 1972.
A LETTER was received from the SALINA CITY PLANNING COMMISSION recommending the
approval of the final plat for the formation of Lot 2, Block 2, Westport Exchange Addition.
(Requested in Petition Number 3248, which was filed by William Holgerson on May 4, 1972).
A motion was made by Commissioner Losik, seconded by Commissioner Caldwell to accept the
recommendation of the Salina City Planning Commission and approve the final plat for the
formation of the lot. Ayes: (5). Nays: (0). Motion carried.
A LETTER was received from the SALINA CITY PLANNING COMMISSION recommending the
approval of Petition Number 3232, which was filed by Union Cemeteries Association, Inc.,
for the rezoning of the North 200 feet of the NE4 of the NE4 of Section 19-14-2, from
District "A" (Second Dwelling House District) to District "DD" (Office District), with
approval to be based upon the following contingencies: (A) Filing of an approved plat with
the Register of Deeds, describing the boundaries of the land requested for rezoning
(B) Restricting the access to three points. (C) Establishing a building set -back line
30 feet beyond the future street right-of-way line.
Mr. Stan Nelson was present and recalled for the City Commissioners that about
two or three weeks ago a protest petition against the rezoning was filed with the City
Clerk. The petition was signed by 35 objectors who claimed to be owners of one or more
burial places in the Memorial Park Cemetery or of crypts in the Mausoleum Williamsburg.
He said the issue before the Commission today is a very public issue because it involves
the public and public interest in great detail.
He read from the original plat which was filed by the Union Cemeteries
Association on July 21, 1927, which showed that the NE4 of the NE4 of 19-14-2, containing
40 acres more or less, had been subdivided into lots and sections with streets, avenues,
and walks for the purpose of sepulture, and that the foregoing described tract of land,
as subdivided and platted, was dedicated for that purpose and the faith of the organization
was pledged for its preservation and improvement, He added that the document was signed
by its president, attested by its secretary and its corporate seal was affixed on the 8th
day of July, 1927.
Mr. Nelson continued that if the request is allowed on the North 200 feet of this
property, it will certainly be inconsistent with burial. He said the City Commission is
well acquainted with the many uses that can be made in a "DD" zone, and these objectors
protest any use other than as a cemetery.
Mr. Nelson said there was some mention made in the Planning Commission meeting
that this type of thing is similar to a restriction in a plat. He said the situation here
is the owners of this land dedicated it for this purpose and people have purchased lots —.
for years for the burial of their dead and their loved ones.
Mr. Nelson said the attempt here before you is by an individual or two individuals
who own all the stock in the Union Cemeteries Association and want to utilize this land for
some other purpose for their own private profit, and this is completely inconsistent and
improper in view of the prior dedication of this land.
He added that the courts have construed this before, and no doubt will construe
it again, but the point before the Commission is not just that the courts may again take
a look at this particular situation, but whether the people of Salina have a true public
interest in whether or not this is maintained as a cemetery as it was originally platted
and dedicated by the original incorporators.
Mr. Nelson concluded by saying, "we sincerely request that the recommendation
of the Planning Commission be turned down, be rejected, and that this petition be rejected."
Mr. Robert Marietta, representing Mr. Frobenius, was also present. He said he
through we put the legal issued to rest when we went back to the Planning Commission. He
said they argued this same thing there, and the City Attorney's office ruled that the
cemetery did have authority to do what it is asking to be done.
He said when the original plat was filed, the cemeteries were tax exempt, and
since that time the exemtpion has been lifted and any unsold lot is taxable, so the
situation is entirely different now than it was in 1927. He emphasized a couple of words
from the original plat "that the faith of the organization is pledged for its preservation
and improvement". Improvement is what we are talking about. He said what we are asking
to be done in the way of rezoning is for the improvement of the cemetery, and he took
issue with Mr. Nelson's statement that some individuals are trying to do something for
their own private profit, or personal profit. He said this will be for the benefit of the
cemetery, not any individual.
Mr. Marietta explained that the area to the right of the entrance, or to the
East nearing Marymount Road has never been platted for burial purposes because it is low
and wet and families don't want to be buried next to the street, and that street is about
to become a four lane street.
He said the question is raised, does the cemetery have the authority to do this?
He said they supplied the City Attorney's Office with copies of the charter, amendments to
the charter of this corporation, and the cemetery specifically has the authority to establish,
layout, improve, conduct, maintain, cemeteries, mortuaries, mausoleums, vaults, chapels and
other buildings and improvements for the protection, preparation for the burial, cremation
and care of the remains of the dead; so these are all within the authority of the cemetery.
He added that the cemetery deeds say that all the grantee gets is the right to put a body
on that space of ground, subject to the rules, regulations, restrictions, conditions, and
limitations of the cemetery association. He said he thinks the City Attorney's Office
has so determined, otherwise this matter wouldn't be back here for rezoning. He added that,
as further evidence, this is a growing trend. He said there are two cemeteries in Wichita
which have rezoned some of their cemetery area and have built mortuaries on the cemetery
ground. They have the same laws governing them that we have here, the same set-up. He
pointed out that K.S.A, 17-1310 specifically states that such corporations shall have
complete management and control of all lands held, laid out, and sold by it for cemetery
purposes, until such time as all such burial lots have been sold or until such time as the
cemetery and said corporation shall be dissolved in the manner as provided by Kansas Statute$.
Mr. Marietta called to the attention of the City Commissioners that this effort
to rezone was started last August or September of 1971. He said it has been before this
group and the zoning group a number of times, and it wasn't until two weeks ago that we
had any opposition. The other matters were technical matters, which were complied with.
Mr. Marietta concluded by saying that they contend this improvement, this
rezoning, is going to be for the benefit if the community at large. We are going to set
up some land for development; it will be taxable improvement, which will benefit the
community. He said it will provide employment for maybe 4 people. It will provide a
service for the community, so all these things taken into consideration, we feel should
dictate that the Commission should grant the rezoning to "DD".
Commissioner Losik said this thing has been around, back and forth, and in
addition to this, we referred it back to the Planning Commission, and it has been
established by them, so he then moved that the recommendation of the Salina City Planning
Commission be accepted and the rezoning be approved.
Mayor Weisgerber recalled from the minutes of the previous meeting that Commissioner
Losik referred this back to the Planning Commission for a recommendation of the overall
area.
Commissioner Losik replied that, "the Planning Commission was well aware of this
and if they weren't ready to resubmit it, they should have pulled it back. I feel at this
time the Planning Commission has had this twice and if we don't,act on this now, then this
Commission is sidestepping an issue it should make a decision on, and I again move that we
approve the recommendation of the Planning Commission.
Commissioner Cooper seconded the motion.
Commissioner Ashton said he is not against the project, but he said he feels we
should have a better understanding, they are talking about a shopping center up to this
area. He asked if they were aware of what is coming in beside there and whether this will
affect their thinking down the line? He said we are trying to put this all together so
it will come up with something realistic and acceptable to everyone. He said he still
feels the Planning Commission should be made aware of all these things that are trying to
go along there and put it all together in one package so the Commission can approve it.
Mr. Marietta replied that this effort was started last August or September, and
it was our position at that time that we needed rezoning and wanted it; we still would like
it. He said they do not feel they are related to the other arrangement. This is something
that is going to have to stand on its own. He said he didn't think they are related to
that, nor they to us. He said the Planning Commission knows all about that as well as this
one, and we feel it is time to act, and we feel it is the proper thing to make a decision
now. As far as the property line is concerned, that is not anything that need delay this
action.
Commissioner Cooper said the people who have applied for this rezoning know what
kind of businesses can go in this zone. Planning has said it is acceptable, and they have
been waiting a considerable period of time. She said she can't believe they are going to
do anything which is going to defeat the purpose that they are there for, which is the
cemetery. She said they are not going to put in some of those things that would be
permitted in "DD" zone in a cemetery section. She added they are just trying to do this
in order to improve.
14
The City Attorney said Mr. Marietta indicated that the City Attorney's Office
ruled that Roselawn had the power and rights to do this. He said this is not quite correct.
He said this would certainly not be their prerogative to determine whether Roselawn has the
right to ask for this rezoning. He added he could not speak for Ron Barta who does sit in
on Planning Sessions, but he said he certainly made no such rulings. He said, "We have
ruled this, that the fact that there are covenants there that may prohibit them, does not
prohibit you from proceeding to rezone it." He added, "We told the Planning Commission,
irrespective or irregardless of these covenants in the plat, if you feel that this is good
planning, these do not prohibit you from making a recommendation to rezone. Now the fact
that you rezone it, or the fact that you rezone an area where there are restrictive covenants,
does not prohibit the people living within that area, people who may be owners, at the time
someone started to develop it, to file an injunction at that point and let the courts
determine how valid these dedications are. This is the point I am trying to make. The
City Attorney's Office decision is that certainly you can take into consideration these
covenants, but they do not prohibit you from acting now upon it."
Mayor Weisgerber said, "What you are saying then, it is up to the court to
determine about these covenants, as read in the original plat which was filed in 1927."
The City Attorney said that is correct. He said as far as good planning is
concerned, it would not be objectionable to have this rezoned. It would be up to the
court to determine whether the covenants contained in the plat are valid and enforceable,
and can be upheld by an injunction.
Commissioner Losik said, "This was my opinion that since Ron is acting in the
capacity of your assistant, he advises from the legal standpoint, that obviously if he felt
there was a legal exception here, he would have so stated and it would have been incorporated
in here; so with their recommendation, stating the three following contingencies, I feel
that Ron has properly gone ahead and advised the board, and they in turn have made their
recommendation to us. So I don't feel that it is as it has been shown here that it is not
up to us to determine on the covenants, restrictive covenants, that it up to a court of law,
if it is pursued, but as far as the rezoning here, I would feel that we are at a point
we should make a decision one way or another, so Mr. Mayor, I would call for the question."
Commissioner Caldwell asked if the 30 foot setback had been established.
The City Attorney said no, that one of the conditions of the rezoning was that
it be contingent upon any improvement being located back 30 feet from any contemplated
right-of-way in the area.
Commissioner Caldwell said when this came up before, we asked for clarification
on it.
Commissioner Ashton asked if the Planning Commission met following last Monday's
meeting.
Mr. Darnell said they met on Tuesday, following the meeting Monday. The City
Planner clarified for the Commissioners that the City Clerk would not publish the rezoning
ordinance in the paper, until the petitioner has complied with the three contingencies
upon which the rezoning is granted, and if the petitioner, for some reason, decided not
to conform with these requirements, the property would not be rezoned. The City Planner
explained that these three items make record to what conditions the City feels have to be
met in order to reasonably integrate that zoning with the transportation system, and this
is why the rezoning will not damage the City.
Commissioner Losik said, "What it boils down to is we can approve this today or
disapprove it, whatever the will of this Commission is, now if it is approved, then the
burden of compliance with these three items rests with the petitioner. It is just that
simple. If they don't comply, there is no rezoning."
Mr. Marietta said he understands this, and they will be complied with.
The Mayor called for a vote on the question. Ayes: Caldwell, Cooper, Losik (3).
Nays: Ashton (1). Mayor Weisgerber abstained.
A MOTION was made by Commissioner Caldwell, seconded by Commissioner Ashton to
introduce an ordinance for first reading levying special assessments against certain lots
to pay the cost of sidewalk repair on certain lots and parts of lots in the City of Salina,
Saline County, Kansas. (Sidewalk Repair in the Central Business District - Engineering
Project 72-533). Ayes: (5). Nays: (0). Motion carried.
Ordinance Passed: Number: 823 0
COMMISSION AGENDA
RECONSIDERATION of the City Engineer's report on the traffic survey and study
of the location of Broadway Boulevard and Cloud Street. (This report was tabled on
June 5, 1972 for one week so the Commissioners could examine the accident sketches of the
intersection.
The City Engineer, in his written report, did not recommend the installation
of signalized traffic control at the Broadway Boulevard, Cloud Street intersection at this
time.
Commissioner Losik asked the City Engineer if we would have to get State Highway
Commission permission to install a traffic signal at this intersection.
The City Engineer replied, "Yes, we will until January 1, 1973, at this time the
State Highway Commission will probably turn this over to the City."
A motion was made by Commissioner Losik, seconded by Commissioner Ashton to
refer the report back to the City Engineer until he finds it appropriate to return it.
Ayes: (5). Nays: (0). Motion carried,
PUBLIC AGENDA
PETITION NUMBER 3257 was filed by William H. Graves and L. F. Eaton for the
placement of street lights on Graves Boulevard from Crawford to the end of the pavement
north. A motion was made by Commissioner Losik, seconded by Commissioner Cooper to refer
the petition to the City Engineer for a report. Ayes: (5). Nays: (0). Motion carried.
PETITION NUMBER 3258 was filed by Ruben T. Thomas for the removal and replacement
of sidewalk and replacement of driveway at 122 West Pacific Avenue. A motion was made by
Commissioner Caldwell, seconded by Commissioner Losik to refer the petition to the City
Engineer for a report. Ayes: (5). Nays: (0). Motion carried.
PETITION NUMBER 3259 was filed by C. C. McAninch for sewer facilities to serve
Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, Brown and Brown Addition. A motion was made by Commissioner
Losik, seconded by Commissioner Cooper to refer the petition to the City Engineer for a
report. Ayes: (5). Nays: (0). Motion carried.
A TREE TREATING license application was filed by Paul Handlin and Fred Handlin
d/b/a Handlin and Son Tree Service, Route 1, Marquette, Kansas. (This license is in addition
to the current tree trimming license). A motion was made by Commissioner Losik, seconded
by Commissioner Ashton to approve the tree treating license application, and authorize
the City Clerk to issue the license. Ayes: (5). Nays: (0). Motion carried.
A CEREAL MALT BEVERAGE License Application was filed by Fred E: Hensley, d/b/a
Sazerac Lounge, 417 South Broadway. (New). The City Clerk reported that he has paid his
licnese fee, the application has been approved by the Health Department, the zoning officer,
and the Police Department. A motion was made by Commissioner Losik, seconded by Commissioner
Ashton to approve the license application and authorize the City Clerk to issue the license.
Ayes: (5). Nays: (0). Motion carried.
A MOTION was made by Commissioner Caldwell, seconded by Commissioner Losik that
the Regular Meeting of the Board of Commissioners adjourn. Ayes: (5). Nays: (0). Motion
carried.
D. L. Harrison, City Clerk