Regulation hinders owners
Bonnie and Joe Hicks are having trouble selling their home, but it’s not because of the slow economy.
The Hickses are having trouble because of a 5-year-old zoning change that inadvertently made five houses in the historic business district along Fourth Street uninsurable and thus unable to be sold to families.
“We think this is a big problem and we even question the legality of it,” Bonnie said during Monday night’s city council meeting. “Everyday we are at risk of ending up with nothing or less for our investment.”
The 2003 planning commission and city council adopted zoning regulations that changed some property along Third Street from single-family residential to part of the downtown historic business district.
Kathy Bard, the assistant city administrator, said Tuesday the city’s original plan was to use those lots to expand downtown and to be used for stores, parks, parking and other development.
“When you make wholesale changes you’re going to end up with unintended consequences,” Bard said.
Currently the homes in question have a non-conforming status to the regulation, which allows single-family dwelling. If any of those homes would become more than 50 percent damaged, the home would lose its non-conforming status and would have to conform to the current zoning regulations. This would mean the home would need to be primarily used for commercial purposes, but would allow for living either in an upstairs or basement apartment.
Because a damaged home couldn’t be rebuilt to 100 percent as a residential home, Bard said insurance companies wouldn’t be able to cover the home. And in the Hicks’ case, an uninsurable home means banks will not lend money to potential buyers.
The Hickses told the council they became aware of the problem when two buyers were denied loans because the house was unable to be insured. Bonnie said the home, which belonged to her mother, recently went through major renovations after she bought the home in 2007.
Diane Bretthauer, former chairperson for the planning and zoning commission, also came to the meeting to speak on the Hicks’ behalf.
“I don’t think we realized what we did to those four home owners,” Bretthauer said about the 2003 rezoning. “It’s a disservice to the patrons of Tonganoxie and those four owners and they deserve to have their home insured.
“I wished I would have looked into it more when we did the rezoning, because I can tell you I would have voted no in a heartbeat.”
Mike Kelly, the city attorney, said the council’s only options would be to grant the homeowners a variance or to rezone the properties.
Because of the time needed for publication and for protest period needed for the change the Hickses would not be able to make the Nov. 3 closing date on their home.
Mike Yanez, the city administrator, said he was empathetic with the Hicks’ “nightmare situation,” but he didn’t want the council to act to hastily in the situation and make sure it is following the regulations already established to rezone properties to not put the city at risk and even though it would delay the sale of the home.
“There is a saying in city government that goes, “there is no good deed that goes unpunished,” so I think we are best to follow the black and white letter of the law because this is a complicated issue.”
Joe Hicks said he would try to delay the closing date to allow time for the planning and zoning commission and the council to come to an agreement.
The council voted to have a special meeting on Nov. 6, an hour before the planning and zoning board’s regular meeting to discuss the situation.
The new Tonganoxie Skate Park is only a couple weeks from its official opening, but Yanez stressed during the meeting that the park should not be used until it is complete.
Yanez told the council that all concrete work has been completed, but the other amenities to the park still needed to be added.
In other business the Tonganoxie City Council:
• Unanimously voted to pay $20,581.06 to Meadows Construction for pay request No. 2, for construction on the Tonganoxie Skate Park.
• Voted 3-1 to renew the contract with Yanez after several weeks of negotiation. Councilmember Paula Crook, who was the dissenting vote, disagreed with the length of the contract (three years) and with the terms of severance pay (six months of pay). Yanez’s contract would give him $80,000 for the first year of the contract with a 2.5 percent adjustment to be granted annually based upon annual performance evaluations as well as a cost of living adjustment given to other city employees. He would also be able to accrue three weeks of vacation time per year and be allowed a monthly car allowance of $325 for the first year of the contract with adjustments being made annually based upon economic conditions.
• Unanimously voted to approve Payment to Lowenthal, Singleton, Webb and Wilson in the amount of $7,500 for financial audit services.
• Unanimously renewed the mobile home park license to Country Hills Development.
• Met in executive session for a total of 24 minutes to discuss land acquisition. No action was taken.
• Unanimously voted to adopted a resolution to comply with the Federal Trade Commission’s “Red Flag Rule” for identity theft protection.
• Received a letter from Linda Scheer, Leavenworth County Clerk, with the final evaluation and tax numbers. The final evaluation came in at $35,981,464, which means a tax levy of 33.638 mills will be needed for the 2009 budget. This is smaller than the estimated 33.719 mills.
• Asked to get more detailed numbers for the cost of the remaining street projects for the year.
• Listened to Pat Sparks’ request to have the appraised value of trees on his property be included in the negotiations for easement along Fourth Street for the third phase of road improvements along that street.