Written by Patty Decker Tuesday, 11 September 2012 16:09
The Marion City Board of Zoning Appeals at its meeting Thursday reversed an earlier decision by Doug Kjellin, city administrator, who issued a building permit for a 92-foot high communications tower at the new county jail.
In its decision, the BZA cited four primary reasons why the decision was changed.
Diana Holub, BZA member, in her motion stated the following:
• The structure Marion County proposes to place on the subject’s property is a communications tower for the purposes of the zoning regulations;
• The conditional-use permit issued to Marion County did not authorize a communications tower under section 19-2.01 of the zoning regulations. Communication towers are a separate type of conditional use for public buildings erected on land used by the county government.
Nothing has been presented to the BZA at this hearing that would support a conclusion that the conditional use permit approved by the planning commission included approval for a communications tower.
Even if it had included such a tower, the tower would be subject to the requirements for communication towers contained in section 19-2.01 38.
• The zoning regulations do not provide for accessory structures that don’t meet the definition of a building under the zoning regulations. The proposed tower would not satisfy the definition of a building and therefore would not be permitted even if it is subordinate to the principal use of the property.
• Consequently the proposed structure would not be permitted under the zoning regulations unless:
a. The county obtains a conditional use permit for communication towers and satisfies the requirements of the aforementioned section;
b. The city of Marion amends the zoning regulations to recognize a type of tower the county proposes and, to allow it either in the zoning district in which the property is located, or as part of all conditional use permits for public buildings; or
c. The city of Marion amends the zoning regulations to create a process by which a tower of the type proposed can be approved for a specific parcel. An example would be creating a new category for permissable use permits.
Pat Hughes of Adam Jones Law Firm in Wichita represented the BZA. Prior to the vote, Diana Holub asked Hughes for an opinion on the issue.
“Before we decide that this proposed tower is not permitted under zoning regulations, what avenues are available for getting it legally built?” she said.
Hughes said that if the BZA’s decision were to be the current zoning regulations which do not permit the tower, then there would be three possibilities for the county to pursue.
“The first would be for the county to get a conditional use permit for a communications tower that is allowed as a separate type of conditional use permit,” he said. “It would, of course, then need to comply with those requirements.”
The second option, Hughes said, would be if the city of Marion were to amend the zoning regulations so that it recognized that this sort of tower was something separate from the communication towers that are regulated as conditional uses right now.
“That it was permitted in this area or for this type of use or in some other way to recognize under the zoning code through an amendment to the zoning code by the city that this was an appropriate and allowed land use under the code,” he said.
The third possibility would be similar, which would be that the city could amend its zoning code to permit this type of tower as a conditional use that had different standards and different requirements.
“For example, it could create a new type of conditional use permit for a two-way radio transmission tower that would have a height restriction that would be unique to that sort of tower and might not require monopole designs or whatever rules they wanted.”
The city, he said, could amend the zoning code in either to specifically permit this as a matter of right or as a conditional use or the county could pursue a conditional use for a communications tower and then comply with those restrictions on communication towers.
Margo Yates, vice-chairwoman of the BZA, said their role Thursday was not to decide if a communications tower is a good idea, whether it’s in an appropriate location or whether it would be good policy to let it go forward.
“Our role is simply to decide whether or not the city administrator’s decision was correct,” she said.
In addition to Hughes, Darvin Markley, who filed a notice of appeal Aug. 7. In his appeal, Markley said Kjellin did not have the authority under the zoning regulations to issue a permit to the county.
Markley, who signed the appeal as a resident, is also the chair of the city’s zoning appeal board, but did not sit on the board or vote on the matter.
David P. Troup served as Markley’s attorney and presented arguments as to why Kjellin’s decision should not stand. Troup said that not only did Kjellin lack the authority to amend a conditional use permit, but his attempt to do so violated the zoning regulations.
“Under the above-cited provisions,” he said, “it is unlikely that the planning commission or city council could have approved the tower, had they been given the opportunity to do so.
“Presumably (David) Yearout knew that, which explains his advice to Mr. Kjellin to avoid the prescribed procedure. It is no excuse that the applicant here is a governmental entity.”
More than 30 people attended the BZA meeting and several spoke either in favor or not about the issue. Following the meeting, Kjellin said the matter is now out of his hands.