Zoning appeal filed regarding truck parking area
Independent counsel hired by zoning board
Staff reporter
It's ba-a-a-ack!
The truck parking issue has reared its ugly head once again.
This time it was in the form of a zoning appeal and possible conflict of interest.
Marion "Nick" Nickelson, chairman of Marion Board of Zoning Appeals, reported to Marion City Council Monday that an appeal was presented April 8 to the BZA. A preliminary meeting was held May 13 and determined there was not sufficient information to properly handle the appeal.
It was not divulged who filed the appeal.
Another meeting is set for 7 p.m. May 27. At that meeting, a public hearing will be scheduled which requires a minimum of 20 days notice in the newspaper.
The BZA, Nickelson said, wanted the city council to provide independent legal counsel for the group through the process.
Nickelson explained that BZA is the "final word" on zoning issues and if the results are contested through district court, he wants to be certain the board followed the letter of the law.
"If the city attorney is representing the city council, we want (separate) counsel to represent the board of zoning appeals," Nickelson said. "The zoning appeals board feels it is a conflict of interest to represent both parties."
Mayor Mary Olson said city attorney Dan Baldwin represents the city council and the board of zoning appeals.
Baldwin responded that the only person he has spoken with, on and off the record, from that particular group is Roger Schwab. However, it was noted later in the meeting that Schwab is not a member of the zoning board. Schwab is a member of the city's planning commission.
"A lot of this probably could be settled between the city and the zoning board if there were others involved," Baldwin said. "If they want to hire their own attorney, frankly, it would be easier to have one person in contact with the board."
Olson then asked Baldwin if he would be willing to attend BZA meetings. Baldwin said he would be willing to do whatever the council asked but the BZA may not agree with "where I'm coming from," Baldwin said.
"I've always felt that a reasonable conversation was in order but it has not happened that way," Baldwin said.
Nickelson said the main concern of the BZA was to not violate regulations and treat everyone fairly.
Baldwin explained that the BZA would hear the appeal as it is written, and then be in the position to rule. The board would review the statutes, zoning codes, and relative case law.
"This (city) council already knows my opinion and advice I've given," Baldwin said, "and Mr. Schwab is in disagreement of this."
"We held a meeting and heard opinions but did not hear facts," Nickelson said. "The board wants to render a decision based on facts."
Baldwin advised the council to not have an "open-ended" contract with a hired attorney. He said he remembered the county's battle regarding a landfill and the attorney's fees as a result.
Councilman Steven Smith asked the duties of the city attorney.
"I think what Nick is trying to say is there would be a hearing. They then would have a ruling out of this after listening to the appeal. If Roger doesn't agree with the ruling, his only recourse is district court. Frankly, that doesn't bother me if that's where we're headed," Baldwin said.
Olson asked the council for a 15-minute executive session for attorney-client privilege with Baldwin and city administrator David Mayfield.
When the meeting reconvened, Baldwin said the city should entertain a motion to have the BZA seek its own counsel, and the city would authorize eight hours of time for up to $150 per hour. If an attorney thinks it will take more than eight hours, the BZA needs to request additional money. The motion was made and passed by the council.
Smith suggested the BZA contact the city attorney in the future. Nickelson responded that the board agreed except the board believes this was a conflict of interest.
Members of the BZA are Nickelson, Leland Heidebrecht, Ralph Kreutziger, Darvin Markley, and Andy Crofoot.
The council then approved Marion Planning Commission bylaws as presented.
