The Marion Board of Zoning Appeals on Thursday revoked a July administrative decision giving the county the go-ahead to construct an emergency communications tower at the new jail. The board concluded that City Administrator Doug Kjellin exceeded his authority by unilaterally approving the alteration of the conditional use permit.
The board did not discuss the matter in open public session, restricting their deliberations to two executive sessions. As a quasi-judicial entity, the board is exempt from the Kansas Open Meetings Act, according to Kansas statute.
In between executive sessions, the board heard from David Troup, an attorney for Darvin Markley, who requested the hearing. Markley, the chairman of the board of zoning appeals, recused himself from the proceedings at the outset of the hearing.
“What this hearing is not about is whether the tower is a good idea or a bad idea,” Troup said. “The hearing is about whether we got to this point legally or outside the bounds of the law.”
Troup said zoning regulations described the required process to amend conditional use permits.
“It says before the location or establishment of, or before any changes in a conditional use permit, the application procedures, conceptual plan requirements, public hearing requirements, and actions as outlined in Section 25 of these regulations shall be followed,” Troup said.
“Shall is mandatory language. In order to amend the conditional use permit, you’ve got to go back through the same process that you did to get the CUP in the first place.”
Troup said Kjellin’s action precluded the opportunity for public comment.
“That’s the kind of thing that may affect the neighboring people who are required to get notice when a conditional use permit is sought,” Troup said. “They may want to know, and it’s the kind of thing that the planning commission might want to know, because it may affect their decision, and it might affect the city council’s decision.”
Kjellin’s action fell outside the scope of his authority, Troup argued.
“His position apparently is he can do anything he wants with a conditional use permit and take the position he’s just amending it and he’s authorized to amend it,” Troup said. “Was it his decision to make? I think the law is pretty clear it was not.”
Board vice-chairman Margo Yates, presiding over the meeting following Markley’s recusal, asked Kjellin for his comments.
Kjellin said public safety was his main concern in acting to amend the conditional use permit to expedite construction of tower.
“I don’t want our community to be without 911 communications, and I have no other way of making it happen without doing what I did,” Kjellin said.
“Most of you have hired me to look out for the public interest. I want people safe, I want them secure, I want them to know when they call 911 they can actually get someone to their house, and this is the only way I knew how to do it.”
Dwight Gooding, 431 Moore, asked for the specifications of the tower. County Commission Chariman Dan Holub responded.
“The tower is 92 feet tall.The antennas do not go above that. The tower is placed within six feet of the building. There is no danger to the other property, we’ve said that over and over again,” Holub said.
“Are there any options there?” Yates asked.
“We could go without a tower like we wanted to — that’s a $400,000-plus option right up front before we even start with the hardware. We can run wires over to the existing facility which may or may not be there. That again is approaching $100,000.”
Markley spoke following comments about the poor quality of radio transmissions in different areas of the county.
“This is not going to benefit anything,” Markley said. “All it’s going to do is hinder the area that’s supposed to be within a historical district. Not only that, a comprehensive plan is what these boards should be following for the development of this town.
“This should be taking place back in front of the planning commission, not here.”
“We did go before the planning board for a conditional use permit,” Holub said. “We got told they can’t help us, go somewhere else. That’s where this all started.”
After the board emerged from a 30-minute executive session, board member Diana Holub read a prepared four-point motion to reverse Kjellin’s decision. Leland Heidebrecht, Yates, and Diana Holub voted for the motion.
Wichita attorney Patrick Hughes of Adams Jones, who specializes in land use and zoning, consulted with the board during closed sessions. Prior to the vote on the motion, Hughes described three options for resolving the tower impasse.
The county could pursue a conditional use permit under the existing zoning regulations, Hughes said, and comply with the restrictions specified for communication towers.
Hughes said the city could also alter the current zoning regulations in one of two ways. They could create a new classification for this type of tower that would be separate from other communication towers. The city could also amend the regulations to keep the tower as a conditional use, but establish different standards and requirements to govern it.
“I’m personally frustrated with happenings that have been happening here,” Commissioner Randy Dallke said. “It’s part of a need we have to have to operate.”
“We were planning on shutting the building down for heating season,” Dallke said.
“They were flipping through the manual like it was the Magna Carta,” Holub said of the city zoning regulations.
“It’s very unfair,” Holub said of Kjellin’s role. “Both sides threw him under the bus. Doug was the only who tried to help.”
Holub said a monopole was still an unattractive option because of cost. The difference between the proposed tower and a monopole tower is $60,000.
“If tax payers don’t mind shilling out a bunch of bucks,” Holub said.
While waiting on a conclusion to the tower saga, Emergency Management Director Dan D’Albini suggested working with Ares representative Russell Groves to have a HAM radio system for the county. He said the advantage is the county would have direct access to the National Weather Service.
“We’re not ready to rule it out,” Commissioner Roger Fleming said.