Angling for a legal way to keep a Wal-Mart Express from locating in Hillsboro, a delegation of nine citizens led by five local business owners left the Aug. 19 city council meeting mostly with disappointment and frustration.
The business owners were Eric Driggers from Greenhaw Pharmacy, Jon Hefley from The Lumberyard, Dale Franz from Dale’s Supermarket, Paul Barnes from Heartland Foods and Tom Koslowsky from Hillsboro Hardware.
Mayor Delores Dalke invited comments from the group after the council voted 4-0 to grant a contractual request from land agent Ben Hawkins, representing the Fortune 500 company believed to be Wal-Mart, to vacate six utility easements platted within the targeted property in Hillsboro Heights.
The council’s action fulfilled the final “governmental approval” stipulated in the sales contract. As a result, Hawkins now has until Sept. 8—20 days after the buyer has been notified of the council’s action—to pay for the land and close the deal.
Before the 20-day closing deadline was clarified by Clint Seibel, the city’s economic development director, members of the delegation floated several scenarios that they hoped could block the purchase.
One scenario cited a platted street called West Orchard Drive, which would run along the south boundary of the targeted property. What if the new business wanted to acquire that land for expansion, or ask the city to put in the street for semi-truck access?
City Administrator Larry Paine replied that Hawkins had explicitly stated that his buyer was not interested in the street property.
“West Orchard Drive is a non-issue,” Paine said. “Until they ask for it, it’s off the table.”
A second scenario suggested the proposed business would violate the city’s zoning code.
Eric Driggers said his reading of the city’s “C-S” zone indicates that a business can pursue one category of activities that are allowed on the property, but the new business would be providing multiple activities.
Paine disagreed with that interpretation of the code, but added that it would be possible to file a case with the city’s Board of Zoning Appeals if a code violation actually existed.
“I think there are no zoning issues, the way I interpret it,” he said.
Paine added that an appeal from anyone in the delegation would be unlikely to be heard by the Board of Zoning Appeals because no one in the delegation had the legal right or authority to file it because they do not own land within 200 feet of the targeted property.
“Usually, it is an adjacent property owner who would have standing to make that sort of claim to the Board of Zoning Appeals,” Paine said. “And that (appeal) would be based on an action taken by the Planning Commission, the city council or planning officials.”
He said a key issue for the Board of Zoning Appeals would be whether similar uses are already allowed in the same subdivision.
When a member of the delegation pointed out that no other pharmacies exist in the subdivision, Paine said a pharmacy had been initially proposed and approved when the grocery store in the subdivision was first proposed. The developer decided later not to include one.
A third scenario was whether a local buyers group could submit a competing offer to buy the property in question.
Paine said the city’s approach is to accept a purchase option on property, “and the person who has that option is given the opportunity to perform upon that if somebody else comes behind with another offer.
“I don’t know, legally, if we could accept an offer to trump that.”
Up to the buyer
Paine said Hawkins still has the option to withdraw from the purchase agreement, but the city is obligated contractually to sell him the property if he wants it.
“I don’t think there’s any issue the council can address at this point relating to the execution of this contract,” Paine said. “We have complied with the stipulations that were asked of us. We’re now at the point of expecting that the buyer will complete the things he said he will do by his contract.”
If the buyer would decide to withdraw from the contract at this point, he would lose his earnest money, Seibel said.
In other business, the council:
• approved the hiring of Leon Atwell from the Kansas Department of Commerce to conduct a local housing study. The expense to the city will not exceed $2,000.
The results of the study will be filed with the state as a key resource when the city applies for grants relating to future housing projects.
“I think it’s a good idea to bring in an outside guy,” Dalke said. “Without (the study), we don’t have a chance (to receive state housing grants).”
• approved Fire Chief Ben Steketee’s request to close North Washington Street from Grand Avenue to the south driveway of city hall to stage a public open house from noon to 6 p.m. Aug. 30 that would feature the newly acquired rural pumper truck.
The fire department plans to serve hot dogs with chips and soda or water for a donation. A 60-inch high-definition television will be awarded through a prize drawing.
• approved the mayor’s reappointment of Eric Driggers to the Community Planning and Development Commission.
• approved Councilor Shelby Dirks as the city’s alternate delegate to the Kansas Power Pool conference in late September.