Railroad crossing reopens, truck parking resumes
Is truck parking lot in a residentially-zoned area or not?
Staff reporter
That announcement was made at the Marion City Council meeting Monday.
With the change of plans by the railroad, the truck route will be reopened and access again will be granted to Darryl Brewer's customers at his truck parking lot.
Union Pacific Railroad had closed the crossing because trains were moving at a faster speed and visibility at the crossing was dangerous. Large, slow-moving vehicles always have been at risk at that crossing but with the increased speed of the trains and increased number of semis using that crossing to park at the truck parking lot on Grant Street, the railroad company had told the city the crossing was unsafe and it was closed.
In other business:
— Other thorny subjects for the council to consider were rescinding an accessory building ordinance that was approved by the council and zoning issues pertaining to the truck parking lot on Grant Street.
Planning commission chairman Roger Schwab asked the council to consider rescinding the ordinance and taking it through the proper channels.
"According to our own (city's) regulations, the ordinance has to be passed by the planning commission after a public hearing," Schwab said.
He said the property owned by Brewer previously was used by an oil drilling company. Maps show it as residential. Schwab referred to a memorandum from Baldwin in 2007 that referred to zoning status of Brewer's property.
In the memorandum, Baldwin stated the property had been used as light industrial property for many years and had gone on, uninterrupted, for more than 40 years.
However, it was noted that the oil drilling business was no longer in operation. Instead, the property was now being used as a truck parking lot.
The memorandum continued that the law that applied to this issue is the current zoning ordinance. Because Brewer's use does not conform to the residential zoning classification, his use is classified as non-conforming, the memo read.
The memo then explained the zoning code regarding non-conforming uses which included that no zoning regulations should apply to existing use of any buildings or land after the effective date of the regulations in 1999.
No such non-conforming use or substantial improvement of that use shall be expanded, changed, enlarged, or altered in a way that increases its non-conformity.
Whenever a non-conforming use has been changed to a conforming use, such use shall not thereafter be changed to a non-conforming use.
A lawful non-conforming use of a building, structure, or land that has been voluntarily discontinued for a period of six consecutive months shall not thereafter be resumed.
Baldwin said through the memorandum that his research had indicated that the use of the property for at least the last 10 years had been open storage of industrial equipment, materials, and vehicles. The use had not been expanded, changed, enlarged, or altered in any way which increases its nonconformity, nor has it been discontinued for any period of time.
In conclusion, Baldwin wrote, the zoning code specifically states that the city cannot enforce a zoning restriction against a non-conforming use that existed prior to the adoption of the code and has not been significantly enlarged or altered, or abandoned for six months.
The council took the information under advisement.
— A public hearing was held regarding the condition of a property at 321 S. First, Marion.
The city council had given owners Keith and Sherry Hess of Marion a 60-day reprieve with that extension now ending.
City building inspector Marty Fredrickson reported that no measurable progress had been made in the past 60 days. As of Monday's meeting, a hole had been repaired in the skirting of the trailer house and a couple of pieces of plywood were laid in the dining area. He didn't know if there was any heating or sewer. Water and gas had been disconnected. The owners had not made any contact with the city.
Councilman Jerry Kline said he made the suggestion to give the owners a chance but now he wanted to see something happen.
The other council members agreed and determined that the property had to be inhabitable or cleaned up within 30 days.
If no action is taken by the owners, the city will remove the mobile home and bill the owners.
— Randy Hulett of 315 Garfield, Marion, complained about the condition of a property in his neighborhood. He said he was working with the police department regarding junk vehicles, trash being dumped along the creek bed, and rodents on his neighbor's property.
City attorney Dan Baldwin said documentation was needed and would move forward with the issue.
— During the public forum, Tony Schafers asked the city council if it was certain of the location of the former railroad bed and proposed city trail. Baldwin responded that survey work had been done when part of that property was sold to Merle Flaming.
Schafers and Gene Warnica own property on Water Street where the city wants to develop a walking and biking trail.
Schafers said that according to his map, the rail bed is at his property line. Baldwin said the city had contacted him regarding his trash and junk that was located on his property.
Police chief Josh Whitwell commented that the city had measured the property before serving a letter to Schafers.
"Are you sure the city owns the (former) railroad bed?" Schafers asked.
Baldwin responded that he had a court order.
Warnica commented that their deed stated the property boundaries minus the railroad right-of-way.
"When we started working on the city trail, we did our homework," Baldwin said.
The former railbed, within Marion city limits, was determined to be city property through a court case that involved Cooperative Grain & Supply, Baldwin said.
Schafers said there was litigation going on right now that would reverse the ownership of railbeds from Rails to Trails groups (Central Kansas Conservancy) and give it to adjacent property owners. Baldwin said those litigations did not involve the property within the city limits.
Efforts will continue between the city and Schafers to pinpoint the location of the former railbed and Schafers and Warnica's property.
