Brewer's truck parking lot to cease operation
Staff reporter
It was a hearing where testimony included claims of improprieties by city officials and clandestine documents were revealed.
Marion Board of Zoning Appeals held a hearing July 15, as a result of a zoning appeal regarding a commercial truck parking lot at 316 Grant, Marion.
After nearly 90 minutes of testimony and a 20-minute executive session, the four-member board, minus one member, decided that the truck parking lot on Grant Street should not be allowed under the current zoning regulations and any use other than residential should cease immediately.
Clandestine documents and decisions by city officials were revealed.
The property in question previously was owned by K.C. Development and had been used as an oil field drilling repair business for decades. New zoning regulations were adopted in the past 10 years by the city that designated that area as low density residential with the oil field business being grandfather-in.
According to the city ordinance, any non-conforming use that is grandfathered-in can remain in operation until such time the type of business changes or the same type of business ceases for a period of six months.
In 2006, the property was sold to Darryl and Linda Brewer. After that sale, the appeal claimed that the oil field business ceased, making it non-compliant to the city's zoning regulation.
Marion City Council received requests from a handful of local truck drivers who were looking for a place to park their rigs. Brewer said they could park on his property and the controversy began.
Some residents in Jex Addition were opposed to the increased truck traffic caused by the parking lot business. The city then imposed a truck route that took the truck drivers on Burbridge Street, just west of South Third Street, and across an unmarked Union Pacific Railroad crossing.
Enter Union Pacific Railroad officials who closed the crossing, removed the struts, and erected barricades.
A few phone calls later, made by city officials, the railroad re-opened the dangerous crossing but truck drivers were reluctant to take that route because of the train danger.
Residents took matters into their own hands, partially blocking Grant Street with vehicles which prohibited semi traffic from using the public street.
On May 31, a handful of residents on Grant Street, signed a zoning appeal, asking the board of zoning appeals to require Brewer to stop his truck parking business.
The hearing
The hearing began with Roger Schwab of Marion, speaking on behalf of those who filed the zoning appeal against the Brewers.
Lloyd and Linda Meier of 202 Grant, Cowan and Crystal Chumbley, 201 Grant, and Brandi Williams, 220 Grant, signed a zoning appeal that stated the current use of the property violates the city's zoning regulations.
If the railroad crossing should again close, Schwab said residents were concerned about additional development, noise, and child safety.
When asked, city zoning administrator Marty Fredrickson said notices of the hearing were only sent to those names on the appeal.
Schwab continued that older city zoning maps indicated that the property at 316 Grant was residential. When new zoning regulations were adopted nearly 10 years ago, that area continued to be residential.
He then referred to a letter from Marion City Attorney Dan Baldwin that the property was zoned residential. BZA chairman Marion "Nick" Nickelson asked to see the letter. Schwab said there also were memorandums to Marion Planning Commission and Schwab's attorney that stated the property was zoned residential and was non-confoming.
Schwab then referred to a city zoning regulation that stated individuals cannot expand or enlarge a non-conforming parcel.
He continued that the second issue was letting this type of business operate. Schwab said that Baldwin had argued that when Rex Savage, owner of K.C. Development, had owned the property there were large trucks on the property and there are some trucks on the property now, so nothing is different.
"This piece of property has never been light industrial," Schwab said, and the oil field repair business that was grandfathered-in was discontinued and a truck parking lot was created.
The property was sold to the Brewers on Feb. 21, 2006. There wasn't a business on the property until 2007, Schwab said. Information obtained from Marion County Appraiser's office verified that there was no business on that location in 2006 but one in 2007, Schwab said.
"These folks want a quiet neighborhood and are entitled to that. How this occurred makes no difference. We just want you (the board) to take a look at this and follow the law," Schwab said.
Peter Rombold, an attorney from Junction City, spoke on behalf of Darryl Brewer.
"Mr. Brewer is a sole proprietor, trying to carry on a business in the City of Marion," Rombold said. "He bought the property with assurances from the city that he could use it for truck parking."
Rombold continued that he disagreed with Schwab's facts.
"This is a non-conforming use that has been condoned by the city and continues to this day," he said. "My client has a written agreement from the City of Marion to develop that property. If deprived of that use, my client will have no choice but to seek the value of the property."
Brewer has been harassed by residents, Rombold continued. "A man or a woman has a right to do business."
He said he agreed that the railroad crossing was dangerous and if Brewer is denied access to his property from Grant Street, Brewer will suffer from right of denial.
"Such denial will result in seeking compensation," Rombold said.
Rex Savage then spoke about the history of the property.
To Savage's recollection, the property had been used as a commercial trucking firm, machine shop, and indoor shooting range. The property was sold to Kansas Drilling and operated as a business that included a commercial trucking company.
When Kansas Drilling went out of business, K.C. Development purchased the property in the early 1990s, Savage said.
He said the oil field business was considered grandfathered-in and was continuously used by K.C. Development until it was sold.
When the city adopted new zoning regulations which included a new zoning map, Savage said he noticed two errors on the map — one being the zoning of the transfer station that K.C. Development owned at that time, and the other was the property in question on Grant Street.
Savage said he attended a city zoning hearing and asked that both properties be changed.
"I followed up and made darn sure that the issue was corrected regarding the transfer station but did not check the other property," Savage said. "I understood that it was zoned commercial when Darryl wanted to buy it but it was not."
Savage said he then approached city administrator David Mayfield, Baldwin, and each commission member individually and told them of his situation.
"The city provided a written agreement that would allow the use to continue," Savage said, even though it was not adopted or approved in open session during a regular commission meeting.
Brewer then bought the property and went about his business until now, almost two years after the fact, Savage said. He continued that he had continued to use the property for K.C. Development until he built adequate storage at Florence.
"The use of the property has always been for commercial parking. A truck has been setting on the property the whole time," Savage said.
Brewer said when he first purchased the property from Savage, he was going to open a boat and recreational vehicle storage facility.
Before Brewer could obtain a loan from a local bank to purchase the property, Brewer said his property had to be zoned for commercial use.
So, Brewer contacted the city and Fredrickson brought a conditional use permit to him for Brewer's signature at Marion County Transfer Station where he was employed at the time. Brewer said both he and Fredrickson signed the agreement.
That agreement was shown to the bank official.
Later in the meeting, BZA board member Darvin Markley asked Fredrickson if he agreed with Brewer's recollection of the event. Fredrickson said he did. Markley asked if Angela Lange was at the transfer station with him and Brewer. Fredrickson said "no."
BZA board member Ralph Kreutziger said he noticed that the city document was not dated. Brewer said he thought the document was signed in 2006. Romboldt responded that even though the agreement had irregularities, it still was valid.
Plans changed when Brewer started driving a semi and he started parking his truck on his property on Grant Street.
"Some guys asked if they could park their trucks there, too. I didn't see much difference between a truck parking lot and an RV and boat storage facility," Brewer said.
Ronboldt said he wrote a letter to Mayfield and suggested the city had violated the agreement and was cheating Brewer out of his property. Ronboldt said the city responded with a letter from Mayfield that they didn't think they were cheating Brewer out of his property.
Schwab asked Fredrickson if he had the authority to sign a conditional use permit. Fredrickson responded that he did not unless someone instructed him to do so. Fredrickson said he was instructed by Baldwin to sign the document.
Schwab said Marion Mayor Martin Tice had instructed Baldwin to write the agreement.
Ronboldt asked Fredrickson if he had the authority to approve a non-conforming use. Fredrickson said not without direction from the city attorney or the board of zoning appeals.
Linda Meier said she couldn't comprehend the business side of this issue with the cost of maintaining the street with truck traffic and the amount of revenue being generated.
"I'm not sure as a taxpayer if this is justified," she said.
"The people we're renting slots to are Marion residents," Linda Brewer said. "They pay taxes, buy groceries here, and live here. If they can't park trucks in their hometown, what are they going to do?" she asked.
Currently Brewer has seven truck drivers who park their trucks in the lot. He used to have 11.
The board of zoning appeals is the final word on the subject, requiring Brewer to cease business operations. If Brewer and Savage want to contest the ruling, the next step would be to file suit in Marion County District Court to try to overturn it.
