4.1 Ordinance 22-11113 Public Hearing Vacation of ROW Logan Ave W of Dry CreekCITY OF SALINA
REQUEST FOR CITY COMMISSION ACTION DATE TIME
05/23/2022 4:00 P.M.
AGENDA SECTION ORIGINATING DEPARTMENT: FISCAL APPROVAL:
NO: 4
Community and Development Services BY.
ITEM 1 Planning Division FINAL APPROVAL:
NO:
Page ] BY: Dean Andrew �A BY:
ITEM: Ordinance No. 22-11113
Public hearing and report on Petition #4417, filed by Tom Pestinger, on behalf of Pestinger Enterprises,
LLC requesting the vacation of the platted right-of-way for Logan Avenue west of the relocated channel
of Dry Creek abutting Lots 1 and 2, Block 6 and Park No. 1 and Park No. 2 and vacation of a north -
south alley abutting Lots 1 and 3, Block 6 and Park No. 2 all in the Chicago Addition to the City of
Salina, Saline County, Kansas.
BACKGROUND:
The Chicago Addition, which covers a large portion of northwest Salina, was platted as an addition to
the city in 1887. In the mid -1930s there were numerous property acquisitions and condemnations in
the northwest corner of the Chicago Addition relating to the construction of the US 81 Highway /
Broadway Boulevard bypass. This project also involved extensive straightening of the meandering
Dry Creek channel. This involved cutting off an oxbow of the Dry Creek channel that formed the west
boundary of the Chicago Addition and the city limits south of North Street. This oxbow area was
included in the property purchased by the Petitioner in 2017. ( A supplemental Background Report is
attached to this report which provides a chronology of the efforts to establish a private shooting range
on this property as well as consideration of acquisition of the site for the Salina Police Department
Training Facility).
K.S.A. 12-757 requires cities to publish annually a boundary resolution when they have excluded or
added property to the city during the course of that year. Staff has determined that the description in
the 1958 boundary resolution changed to follow the center of the relocated Dry Creek channel but
there is no record of the City Commission formally taking action to exclude the oxbow area from the
city. The approval of a boundary resolution cannot and does not change the boundary of the city. An
annexation or de -annexation ordinance must be approved to change the city limit boundary. There
are plat maps, including a plat map in the Register of Deeds office that still show the oxbow as being
inside the city.
Nature of Current Request
The Petitioner, Tom Pestinger, is preparing to sell an existing 16,000 sq. ft. pre-engineered metal
building and the surrounding 5 acre unplatted parcel. This building is a storage building which has a
restroom served by a private well and septic field. The well is not approved as a source of public
drinking supply and provides non -potable water only. Nor does the well provide any fire protection.
Title history work performed by a title company and City staff determined that a portion of platted
Logan Avenue and section of north -south alley way west of the relocated Dry Creek channel had never
been vacated and is still owned by the City of Salina. This is a cloud on Mr. Pestinger's title and an
obstacle to selling the property. Mr. Pestinger has filed this petition to eliminate the remaining right-of-
way.
AGENDA SECTION
NO:
ITEM
NO:
Page 2
CITY OF SALINA
REQUEST FOR CITY COMMISSION ACTION
ORIGINATING DEPARTMENT:
DATE TIME
05/23/2022 4:00 P.M.
FISCAL APPROVAL:
Community and Development Services
Planning Division
BY: Dean Andrew
IW
APPROVAL:
The purpose of the May 23, 2022 public hearing is to provide notice to potentially affected property
owners and public and franchise utility providers and provide an opportunity for them to be heard on
the matter. In this case, there are no other property owners who own property abutting the vacation
request area and all of the vacated right-of-way will revert to Pestinger Enterprises, LLC upon recording
of the vacation ordinance. There are no property owners who will be inconvenienced because neither
Logan Avenue or the north -south alley have ever been constructed or open to traffic.
Affected Utilities
Staff has determined that there are no underground and overhead franchise utility lines located in the
street or alley right-of-way. Therefore, there is no need to retain any public utility easements. No
objections to the vacation of this right-of-way were received by staff.
Required Findings
In addition to considering emergency vehicle access, traffic flow and safety and future development,
under K.S.A. 12-505, the City Commission must find that no private rights will be injured or endangered
by the proposed street vacation and that the general public will suffer no loss or inconvenience if this
segment of alley right-of-way is vacated.
Staff believes the following findings can be made in this case:
1. Due and legal notice of the Public Hearing has been given by publication as required by law.
The public will suffer no loss or inconvenience by the vacation of this street and alley right-of-
way because neither Logan Avenue or the north -south alley have ever been improved or used
for public vehicle access.
3. No private rights will be injured or endangered because vacation of this street and alley right-of-
way would only impact the Petitioner's property. The Petitioner owns all properrty abutting the
right-of-way to be vacated..
4. In justice to the Petitioner, vacation of alley right-of-way should be granted because the
continued presence of the street and alley right-of-way no longer serves a public purpose and
is inhibiting the Petitioner's ability to convey fee title to their property.
5. The public interest is promoted by the vacation of the street and alley right-of-way because it
would eliminate public ownership of a strip of land that is not being used or maintained by the
public.
AGENDA SECTION
NO:
ITEM
NO:
Page 3
CITY OF SALINA
REQUEST FOR CITY COMMISSION ACTION
ORIGINATING DEPARTMENT:
DATE TIME
05/23/2022 4:00 P.M.
FISCAL APPROVAL:
Community and Development Services
Planning Division
BY: Dean Andrew
BY:
FINAL
9W
There will be no fiscal impact on the City if Logan Avenue and the north -south alley right-of-way are
vacated. The City has not been maintaining this right-of-way.
COMMISSION ACTION:
Staff has identified the following alternatives for the Commission's consideration.
1. If the City Commission agrees that no private rights will be injured by the proposed right-of-way
vacations and that the public will suffer no loss or inconvenience if Logan Avenue and the north -
south alley are vacated, the Commission could approve Ordinance No. 22-11113 vacating
Logan Avenue and the north -south alley west of the relocated Dry Creek channel.
2. The City Commission could postpone consideration of Petition No. 4417 and further continue
the public hearing to a future meeting date if it believes additional information is needed from
staff or the petitioner.
3. The City Commission could deny Petition No. 4417 if the Commission finds it is not in the public
interest to vacate Logan Avenue and the north -south alley on the west side of the relocated Dry
Creek channel.
Because of a pending real estate transaction and the Memorial Day holiday, the applicant is requesting
that the ordinance vacating the subject right-of-way be approved on first and second reading on the
same day.
Section 1-5.1 of the City Code entited Consideration of Ordinances provides in sub -section (a)(3) that
"An ordinance may be considered for passage on second reading on the same day it is introduced and considered
on first reading when warranted by a compelling public purpose, as declared by a vote of the governing body. In
order to pass, a motion to declare that a compelling public purpose exists must receive the same number of votes
in favor of the motion as are necessary to pass the ordinance on second reading."
If the City Commission is supportive of this request the following procedure should be followed:
1. A motion should be made to approve ordinance No. 22-11113 on first reading (Vote).
2. A motion should be made to find that a compelling public interest exists to allow first and second
reading of the ordinance on the same day (Vote).
3. A motion should be made to approve Ordinance No. 22-11113 on second reading (Vote and
Roll Call).
No public purpose is served by retention of this public right-of-way and staff would recommend that the
Logan Avenue and alley right-of-way west of the cut-off channel be vacated and revert back to the
ownership of the Petitioner.
CITY OF SALINA
REQUEST FOR CITY COMMISSION ACTION
AGENDA SECTION
NO:
ITEM
NO:
Page 4
Enclosures: Petition
Exhibits
Ordinance No. 22-11113
cc: Tom Pestinger, Pestinger Enterprises
ORIGINATING DEPARTMENT
DATE TIME
05/23/2022 4:00 P.M.
FISCAL APPROVAL:
Community and Development Services
Planning Division
BY: Dean Andrew
BY:
BY:
Attachment
Background Report
Pestinger Property
BACKGROUND REPORT
In the spring of 2017, City staff was approached by Shelly Bigham and her husband Mick
who had a plan to construct a brand new 15,000 sq. ft. state of the art indoor gun range to
include a pro shop, snack bar and training center on a 5.04 acre unplatted tractjust outside
the city limits on Old Highway 40. The subject property was owned by Pestinger
Enterprises, LLC and the Bighams planned to lease the property.
The Bighams met with the City of Salina Development Review Team (DRT) on April 5,
2017 to discuss their development plans. Two items that were discussed were that indoor
shooting ranges were not presently an allowed use within the city of Salina and the need
for potable water and fire protection. The Bighams indicated that the wells on the property
were contaminated and they expressed a desire to connect to the City's water system. In
2013, the West Grand — West North Street water line loop was completed and there is a 12
inch public water line that runs along the north edge of the proposed gun range site so a
public water supply was potentially available to serve the site. Annexation and an Outside
the City Water Agreement were discussed as options at the DIRT meeting. As that time it
was anticipated that an onsite septic system would be installed. The closest available
sewer line is on North Street about 250 ft. east of Broadway Boulevard.
In the fall of 2017, the Director of Utilities received a written request from Shelly Bigham
requesting that the City of Salina provide water service to the proposed facility to be built
on the Pestinger property located on Old Highway 40 in Saline County. As justification for
their request, Ms. Bigham pointed to the fact that the wells on the property had been tested
and showed signs of contamination. The Bighams were also concerned that an indoor
shooting range would be an allowed use under Saline County's Zoning Regulations but not
under the City's Zoning Ordinance at that time.
These types of requests for City utilities that do not include annexation have generally been
addressed through Outside the City Water and Sanitary Sewer Agreements with Consents
to Future Annexation. The most recent of those was a 2015 agreement that allowed the
Webster Conference Center to connect to the City's sewer system due to health concerns
about a failing septic system. Staff's research shows that three other properties along the
west side of Old Highway 40 adjacent to the city limits have Outside the City Water
Agreements — Walco in 1985, Farmers and Ranchers in 1998 and Mid Kansas
Underground in 2009. The City's long time policy has been to require properties served by
City utilities to be annexed, except for industrial uses. The agreements approved in 1985,
1998 and 2009 fell within the industrial exception.
City staff brought Shelly Bigham's request to the City Commission on October 2, 2017
asking that the Commission provide staff with preliminary policy direction on responding to
her request. Staff reported that no cost recovery mechanism had been decided on or put in
place for the North Street water line extension project so staff was not able to calculate
what this property's share of the cost of that line would be. Staff also pointed out the need
for a survey and accurate legal description of the property in order to calculate the hook up
BACKGROUND REPORT
Page 2
fee that would be charged and to finalize a connection agreement and consent to
annexation agreement. Following discussion and questions, the City Commission voted 5-0
to direct staff to prepare and finalize an Outside the City Water Connection Agreement and
Consent to Future Annexation with Pestinger Enterprises and Michael and Shelly Bigham
dba Centerfire Range and Training Center.
Following the October 2 meeting, staff received a survey and legal description of the
property and determined that a connection fee was the preferred method for recovering the
costs associated with constructing the North Street water line extension.
The draft Outside the City Water Connection Agreement prepared by staff would have
allowed the future business on this property to connect to the City's North Street water line
but would not require that they connect to the line if they are not required to do so by the
State Fire Marshal or some other entity. A connection to the line would require the payment
of a "connection fee" to the City as determined by the Director of Utilities.
At its November 6, 2017 meeting the Salina City Commission approved a zoning text
amendment that added indoor shooting ranges to the list of conditional uses allowed in the
C-3 (Shopping Center) district, the C-5 (Service Commercial) district, the C-6 (Heavy
Commercial) district, the C-7 (Highway Commercial) district, the 1-2 (Light Industrial) district
and the 1-3 (Heavy Industrial) district. Prior to this action indoor shooting ranges were not a
listed use in the Salina Zoning Ordinance. However, at that same November 6th meeting,
Shelly Bigham informed the City Commission that the Centerfire Range was no longer
interested in connecting to the City's water system and planned to rely on well water
instead, essentially withdrawing Centerfire's request.
On December 11, 2017, the Saline County Planning and Zoning Director signed off on a
building permit for a metal building at 1097 West Old Highway 40 that was to house the
Centerfire shooting range. Tom Pestinger was the property and building owner and
Centerfire was to be the tenant. After construction began, the Bigham's determined they
had not sold enough shooting range memberships and they abandoned the project leaving
an unoccupied metal building and a septic system on the site.
In 2018, Tom Pestinger approached the City with an offer to sell the undeveloped portion
of this 5.04 acre parcel (essentially the north half) to serve as the location of a new Police
Department Training Facility and Shooting Range. This would be an alternate location for
the facility originally proposed to be located on Yost Drive. As noted, the City's policy has
been to not allow the extension of City utilities to serve residential, commercial and
institutional uses outside the city limits and to deny permission to connect to existing
utilities unless the connecting property is annexed into the city.
Therefore, Mr. Pestinger filed an application to annex this 5.04 acre tract into the city to
allow the property to connect to the City water system for domestic use and fire protection.
Upon annexation, this property would also receive City police and fire protection. Although
the property owner did not request a change in zoning classification from Industrial, this
application was referred to the Planning Commission to determine the most appropriate
BACKGROUND REPORT
Page 3
land use and zoning classification for the property if it were annexed and to make a
recommendation as to the advisability of annexing the property.
Availability of City Water and Sewer Service
There is a 12 inch public water line that runs along the north edge of this 5.04 acre tract
that is capable of providing domestic water and fire protection to both building sites. There
is no public sanitary sewer service west of Broadway Boulevard and the closest available
public sewer is 250 ft. west of Broadway on North Street. Mr. Pestinger proposed retaining
his septic system for the existing building and the City proposed a design for a private
sewer lift station and force main to connect the Police Department Training Facility to the
City's sewer system.
Availability of Other Utilities
The Pestinger property is currently served by both Westar Energy and Kansas Gas.
Because this property lies within Westar's certificated territory, there would be no franchise
or service territory issues associated with annexation of this property.
Because the subject property is not located within a rural water district, there were no
service territory issues associated with Mr. Pestinger's annexation request.
Street Access and Improvements
The proposed shooting range site had frontage on and would have had access to Old
Highway 40, a former US highway, which is a paved County road but a road that does not
meet current City street standards. Because there is dedicated public right-of-way for Old
Highway 40, the roadway would have also needed to be annexed and would have become
the responsibility of the city if this annexation request had been approved.
Conformance of Annexation Request with Comprehensive Plan
The subject property is shown as being located within the City's Urban Service Area on the
Urban Service Area map and as part of a future Employment (Industrial) area on the
Future Land Use Map (Figure 2.1) in the Comprehensive Plan. The property is currently
zoned IH (Heavy Industrial) in the county. Based upon the current Saline County zoning of
IH (Industrial Heavy), it is likely that if the property on Old Highway 40 were annexed it
would come into the city zoned 1-2.
Comprehensive Plan - Policies
Page 2-33 of the Comprehensive Plan contains the following recommendations regarding
utility extensions:
"in general, utility extensions should occur in an orderly, efficient manner where a
need exists or development is proposed or will be encouraged by the City to meet
an economic development goal or implement the vision of this plan. Thus,
BACKGROUND REPORT
Page 4
infrastructure should be provided just in time to support development, occur in a
contiguous manner adjacent to existing services and facilities and support these
developments that embrace the vision and goals of the community.
Infrastructure should not be used to support leapfrog development nor should it
facilitate scattered or disorganized development. Development that is proposed at
the outer edges of the growth areas should wait until development and
infrastructure has reached that area... As growth occurs within identified growth
areas, it should be served by infrastructure systems that are efficient and
adequately sized...
Additionally, infrastructure will be provided to contiguous uses that are within the
city of Salina or in the process of being annexed into the city. In no case shall
municipal infrastructure be extended to support development that is not within the
city limits at the time of development. Extension of infrastructure to serve
development outside the city, or not willing to become part of the city, is not an
effective use of resources for the future of the community."
Page 2-41 of the Comprehensive Plan contains additional recommendations regarding
annexation:
Figure 2-6: Urban Service Area Planning Map shows some of the initial areas
identified for annexation based on their proximity to the city limits and availability of
infrastructure. Future community growth through annexation should adhere to the
recommendations and policies for growth and infrastructure provision previously
discussed to provide growth patterns that are an efficient use of public resources.
These recommendations / policies include:
• Direct new growth to the edges of the existing city limits within identified growth
areas, avoid leapfrog development;
• Continue to grow outward within identified growth areas;
• Extend infrastructure to serve growth areas that are immediately contiguous to
the community, existing development and existing infrastructure; and
• Do not provide services or extend infrastructure to development outside the city
that has not been annexed or is (not) willing to consent to annex.
The City Commission ultimately decided not to pursue this site as a location for the Police
Training Facility. The facility was built at the south end of Yost Drive as originally planned.
As a result, Mr. Pestinger withdrew his applications to annex and plat the property and his
request to connect to the City's water distribution system (See attached letter). His site is
only served by a private well and septic system at this time.
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PESTINGER ENTERPRISES LLC
5113 EAST NORTH ST.
SAUNA, KS 67401
(785)825-1709
January 3, 2019
Dean Andrew
City of Salina
Zoning Administration
300 W Ash
Salina, KS 67401
RE: 1231 West North Street
Dear Dean,
I would appreciate if the city commission would delay consideration of the Pestinger
Enterprises addition plot until the purchase of the property is approved by the city
commission.
Respectfully Submitted,
, 4, 4--,j
Tom Pestinger
IDO NOT WRITE IN THIS SPACE
4417
PETITION NUMBER
TO: THE GOVERNING BODY
City of Salina, Kansas
We, the undersigned, being residents and property owners in the City of Salina, Kansas,
do hereby petition your honorable body for
ation of the platted right -way for Logan Avenue west of the relocated channel of Dry
ek abutting Lots 1 and 2, Block 6 and Park No. 1 and Park No. 2 and vacation of a
:h -south alley abutting Lots 1 and 3, Block 6 and Park No. 2 all in the Chicago Addition of
City of Salina, Saline County, Kansas
Respectfully Submitted By:
Tom Pestinger (Pestinger Enterprises, LLC)
Telephone Number: 785-826-0399 Email Address: tom@pestingerheating.com
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(Summary published in The Salina Journal on May _, 2022.)
(Published on the City of Salina's website from May _ to June _ 2022.)
ORDINANCE NUMBER 22-11113
AN ORDINANCE ORDERING VACATION OF THE PLATTED RIGHT-OF-WAY FOR
LOGAN AVENUE WEST OF THE RELOCATED CHANNEL OF DRY CREEK ABUTTING
LOTS 1 AND 2, BLOCK 6 AND PARK NO. 1 AND PARK NO. 2 AND VACATION OF A
THIRTY FOOT WIDE NORTH -SOUTH ALLEY ABUTTING LOTS 1 AND 3, BLOCK 6, AND
PARK NO. 2 ALL IN THE CHICAGO ADDITION TO THE CITY OF SALINA, SALINE
COUNTY, KANSAS.
BE IT ORDAINED by the Governing Body of the City of Salina, Kansas:
Section 1. Petition and Public Hearing. On May 23, 2022, the Salina City Commission
conducted a public hearing ("Public Hearing") on the petition filed by Tom Pestinger ("Petitioner")
requesting vacation of that portion of the platted right-of-way for Logan Avenue located west of the
relocated channel of Dry Creek and a thirty foot wide alley right-of-way abutting Lots 1 and 3 in Block
6 and Park No. 2 in the Chicago Addition to the City of Salina, Saline County, Kansas, legally described
as follows:
That portion of the platted right-of-way for Logan avenue and west of the relocated
channel of Dry Creek abutting Lots 1 and 2, Block 6 and Park No. 1 and Park No. 2 and
a north -south alley abutting Lots 1 and 3, Block 6, and Park No. 2 all in the Chicago
Addition to the City of Salina, Saline County, Kansas. (the "Right -of -Way")
Section 2. Findings and Conclusions. The Governing Body determines from the evidence
presented:
(A) Due and legal notice of the Public Hearing has been given by publication as required by
law.
(B) The public will suffer no loss or inconvenience by the vacation of this street and alley
right-of-way because neither Logan Avenue nor the north -south alley has ever been improved or
used for public vehicle access. There are no public or franchise utilities located within the right-
of-way to be vacated.
(C) No private rights will be injured or endangered because vacation of this street and alley
right-of-way would only impact the Petitioner's property. The Petitioner owns all the property
abutting the right-of-way to be vacated.
(D) In justice to the Petitioner, vacation of the street and alley right-of-way should be granted
because the continued presence of the street and alley right-of-way no longer serves a public
purpose and is inhibiting the Petitioner's ability to convey fee title to its property.
(E) The public interest is promoted by the vacation of the street and alley right-of-way because it
would eliminate public ownership of a strip of land that is not being used or maintained by the
public.
Section 3. Order of Vacation and Reservation of public Utility Easement. The Right -of -
Way is ordered vacated.
Section 4. Reversion. The vacated Right -of -Way and shall revert in accordance with K.S.A. 13-
443 to:
Lots 1 and 3, Block 6 and Park No. 2 for the vacated alley and Lots 1 and 2, Block 6 and
Park No. 1 and Park No. 2 for vacated Logan Avenue in the Chicago Addition, City of
Salina, Saline County, Kansas.
Section 5. Recording. For the purpose of recording this ordinance with the office of the Saline
County Register of Deeds, this vacation of the Right -of -Way relates to the tracts of real property
described as:
Lots 1, 2 and 3, Block 6 and Park No. 1 and Park No. 2, all in the Chicago Addition to
the City of Salina, Saline County, Kansas.
Section 6. Effective Upon Adoption and Publication by Summary. This ordinance shall be
in full force and effect from and after its adoption and publication once in the official city newspaper by
the following summary:
Ordinance No. 22-11113 Summary
On May 23, 2022 the City of Salina, Kansas, passed Ordinance No. 22-11113. The ordinance vacates
that portion of the platted right-of-way for Logan Avenue located west of the relocated channel of Dry
Creek and a thirty foot wide alley right-of-way abutting Lots 1 and 3 in Block 6 and Park No. 2 in the
Chicago Addition to the City of Salina, Kansas, which no longer serve a public purpose. A complete
copy of the ordinance is available at www.salina-ks.gov or in the office of the city clerk, 300 W. Ash
Street, free of charge. This summary is certified by the city attorney.
Introduced: May 23, 2022
Passed: May 23, 2022
Trent W. Davis, M.D., Mayor
[SEAL]
ATTEST:
JoVonna A. Rutherford, City Clerk
The publication summary set forth above is certified this day of May, 2022.
Greg A. Bengtson, City Attorney