By PHYLLIS ZORN

Staff writer

Marion’s city council and planning commission continue on a collision course this week with both groups asserting their rights to decide the future of the city’s industrial park and a planned second dollar store.

One of the state’s leading experts in zoning law warns that if the council goes through with last week’s threat to take the matter away from the planning commission, a court could overturn whatever actions are taken.

Last week’s council meeting was followed by an emergency meeting of the commission.

Three members of the public — including one city council member — attended last Wednesday’s meeting after the council overrode the panel’s desire to conduct a fully fledged hearing on changes that would allow a Family Dollar store in a section of the industrial park zoned for industrial use.

Council member Zach Collett, who had criticized the planning group during a Feb. 7 council meeting for “not wanting to work with the council,” came to hear what was said. But he left before public comment time as the meeting was wrapping up.

Commission chairman Terry Jones sent another member to find Collett before closing the meeting so Collett could speak to commission members, but Collett already had left.

The start of the meeting was delayed while Margo Yates, the city planning and zoning administrator as well as the commission’s secretary, got a recorder and started it. Mayor David Mayfield wanted a recording of the meeting, she said.

Later, city administrator Roger Holter said he was delaying a planned joint meeting of a delegation of council and commission members with the city attorney pending Holter’s review of the recording.

At last Wednesday’s meeting, Jones objected to council members’ attempt to overrule the commission’s earlier recommendation to rezone for commercial use only a strip of the industrial park along US-56 and to gather more information before acting on a request, delivered that same day, for a conditional use permit to locate the dollar store outside that area.

“My issues with what transpired were several,” Jones said.

He said he didn’t appreciate hearing “the chairman, the chairman, the chairman” instead of “the commission” during the council meeting when the commission’s wishes were relayed to council members by Yates.

“I am only one member of the commission,” he said.

Jones said Yates’ position as a city employee interfered with representing the commission to the city council.

Under state law, the commission may select its own secretary. That job does not automatically go to the person in one of Yates’ other jobs, zoning administrator. That position is answerable to the city administrator and council.

“It’s my opinion that Margo cannot do her job as effectively as possible,” Jones said.

Jones said he saw a need to go forward with an application for a conditional use permit as required under a resolution granting the city authority to sell the property. Dismissing the application and moving to rezone larger sections of the industrial park might accomplish the same goal as far as the store is concerned, but Jones wants to proceed on the two requests separately.

Yates said that she had wondered whether she would have time to prepare for planning and zoning hearing on a conditional use permit before being told by Holter to drop it.

Jones told Yates she was directed by the zoning group, not the city administrator.

“Not from what I’m told,” Yates answered.

Commission member Darvin Markley said city council members had overstepped zoning laws.

“One of the problems is we now have a conditional use permit application on the table and a rezoning on the table,” Jones said. “How do you resolve that?”

Jones expressed frustration.

“There have been many times in the last couple of days I’ve just wanted to say ‘screw it,’” he said.

Commission member Carol Laue said the commission should draft a letter to city council members.

“I don’t want the people of Marion to think that we will roll over,” she said.

Commission members discussed hiring a lawyer to provide consultation but could not agree on spending city money to do that.

They did vote to have three commission members and Yates meet with city attorney Brian Bina to discuss planning and zoning issues. Bina had said in a memo to council members that the preferred way to handle the matter would be to allow the planning commissioners to schedule hearings along a timetable identical to what the commission adopted.

Secondary points within his memo were cited by council members as justification for taking the matter away from the commission.

Wichita lawyer Pat Hughes, whose practice includes planning and zoning matters, said state law set out procedures requiring that the planning commission, not the city council, hold required public hearings on such matters. The commission makes a recommendation to the governing body, and the governing body makes the final decision.

“What needs to be done is for a public hearing by the planning commission to proceed,” Hughes said. “The city needs to consider their planning commission’s recommendation and make its decision.”

Failure to do things in accordance with legal requirements could lead to problems for the property buyer, he said.

“A failure to wait for the planning commission’s recommendation could create the environment for successful litigation to nullify what the city does,” he said.

At issue is whether the commission failed to act quickly enough — not on the conditional use permit required as part of the city’s resolution to sell the property but rather on a city attempt to end-run that permit and rezone the area.

In December, the council expressed its desire to rezone a larger section of the industrial park. At the next commission meeting, no vote was taken but the commission indicated a willingness to conduct a hearing on a modified version of what Jones termed an overly simplistic “crappy map” presented by Holter and Mayfield.

The council last week interpreted that as no response from the commission.

Under those circumstances, the council might take the last official statement of the commission and vote to approve, disapprove, or alter it. But the commission contends there have been no official actions or objections, just impatience from the council.

The zoning commission will next meet Feb. 22 — the same day the city council plans a public hearing on rezoning the N. Roosevelt St. property.

The commission will follow that meeting with a special meeting 16 days later.

“We will have a special meeting on March 10 at 7 p.m. for two public hearings, one for the retail store conditional use permit application and the other for the zoning district change in the Industrial Park at the north end,” Yates said.