Variance denied, rezoning approved at meeting
Staff reporter
Marion County Board of Zoning Appeals denied an application Thursday for a variance from 40 acres to 36.
If the application was approved as presented, it would have set a precedence.
Derold and Cindy Becker of Harper wanted to purchase a 36-acre tract on part of a southeast quarter of 32-21-2 and build a home on the site.
Becker said the property had been for sale for four years. It had hills and slopes, and was not suitable for farming.
The owner, Terry Graber, previously owned 76 acres. He sold 40 acres which split the acreage, leaving 36 acres. The county's zoning regulations requires homes be built on 40 acres when land is zoned for agriculture.
David Brazil, county zoning director, said a previous application in 2001 was denied.
Eileen Sieger, board chairman, said the board had approved a similar variance in the past when the short acreage was due to a highway right-of-way.
Becker said a rural water district could supply water. An inspection of the service line indicated it was adequate to provide service to a residence at that location.
The board reviewed criteria required to approve a variance.
One criteria is that the variance could not be created by the owner, which this was.
Brazil said the zoning board had never approved a variance application for a residence in an agricultural area.
"The rule is 40 acres," Brazil said, "and when you go to 36.6 acres, you've created something new."
Brazil suggested the prospective buyer acquire an additional 3.4 acres that could be attached to the property and make the 40 acres.
Sieger asked what had changed from 2001 to make it compliant for a variance now.
She reminded the applicants and board members that decisions were not based on the people — they're based on meeting the necessary criteria.
Ervin Ediger, board member, said to deny it because it lacks a couple of acres bothered him, but he also recognized consistency was important.
Sieger said it's not fair to approve this one and deny others.
"If we approve 36 acres now, will we approve 30 the next time?" Sieger asked.
The application was denied based on not meeting criteria for a zoning variance.
Planning commission
Following more than an hour of discussion and reopening of a public hearing, an application for a rezone from agriculture to rural residential was approved by the planning commission.
Lyle Leppke, Hillsboro real estate agent, spoke for applicant Raymond Brandt.
Brandt was wanting to sell a 26- to 28-acre tract at 966 240th, Hillsboro, part of a southeast quarter of 4-19-2. Of those acres, the application requested 10 acres be rezoned rural residential.
Leppke said an older residence was located on the tract with rural water and a compliant lagoon system.
Criteria had been met, Leppke said, as required for rezoning.
Lloyd Klassen of Klassen Dairy, owner of property adjacent to the area that was being considered for rezoning, said he was concerned about the application.
"We all know things don't smell good near a dairy farm," Klassen said.
He said he was not opposed to the sale or rezoning of the land but was concerned about the new owner complaining about the farming operation.
Klassen said he has operated the farm for 10 years. He has a Kansas Department of Health and Environment permit to have 810 head of cattle and a waste lagoon.
"I talked with the prospective owner," Klassen said. "Without it being zoned residential, he can't get a loan."
Klassen said he valued his relationship with Brandt and did not want to alienate him.
"Why did this need to be rezoned? For a better loan," Klassen said.
He added to change land to residential was a blow to agriculture.
Klassen said if he should expand his lagoon, the wastewater could be pumped within 40 to 80 feet of the residence seeking the rezoning.
Brazil said with the new zoning regulations waiting to be approved, the land could stay agriculture with a clause on the deed addressing odor and other issues related to dairy farming.
He suggested a restrictive covenant be attached to the deed which would follow the property. The covenant may prevent future litigation.
Klassen said since Marion County is predominantly agriculture, he asked the commission to not mix agriculture with residential.
He added he didn't understand why people would stake out homes near feedlots.
Leppke said he understood what Klassen said but said the application met criteria dictated by the current regulations.
Leppke said he wanted the commission to consider the application as presented and was not in favor of a restrictive covenant.
The board reviewed a document that informed rural residential owners of possible conditions that may occur when housing is located near agriculture operations.
Brazil said the covenants would protect the ag producer and would be effective for two or three owners in the future.
Commission member Bob Maxwell said he didn't understand how the covenants were related to the application.
More discussion followed regarding changing some of the wording on the covenants and the affect the covenants might have.
The hearing reopened for one statement from Brandt and one from Klassen.
Brandt stated the property between the 26 acres in the application and Klassen's property would not be sold, negating concerns about dairy operations hindering the sale of the residential property.
Klassen said he was not in favor of the covenants and would not expand lagoon operations.
Following the statements, the commission approved the application without restrictive covenants 6-1.
The county commission will review the recommendation and make a determination in the coming weeks.
The planning commission and board of zoning appeals will meet at 7:30 p.m. Nov. 18, one week early because of Thanksgiving Day.
