County's zoning appeals board throws out building permit complaint

By Charlene Sims

MOUND CITY – On Tuesday, Sept. 16, the Linn County Board of Zoning Appeals denied an appeal requested by Jan Longenecker and other petitioners. Longenecker was appealing the issuance of building permits to Mike Page for homes built at the Sunshine Meadow subdivision located at 1700 Gireau Road southeast of Parker.

Longenecker, a critic of the subdivision, missed the deadline for appealing the minor plat decision that was able to be approved without going through the planning commission. Hoping to overturn that decision, he came to many county commission meetings to complain about the subdivision.

He told commissioners that even though he had requested that he be notified when building permits were issued by the former Planning and Zoning Director Kent Harris. And even after Harris’ departure Jesse Walton, interim Public Works Director at that time, had not told him when the permits were approved.

Unable to stop the subdivision decision, Longenecker appealed the building permits issued to Page for the houses. At a commission meeting on June 30, County Counselor Jacklyn Paletta explained to Longenecker that his reading of the zoning regulation for appealing the building permits was inaccurate. The regulation said that the person who was denied a building permit was able to appeal, not people who did not approve of the building permit.

Paletta explained that his appeal was not being denied, It was not a proper appeal according to the Linn County Zoning Regulations. She said he did not have standing to file an appeal.

Longenecker continued for months about the complaint he had against the building permits at the subdivision until he was allowed to file an appeal to the Linn County Board of Zoning Appeals.

The appeal hearing was set up and postponed due to a lack of a quorum of the board of zoning appeals.

When the appeal hearing was finally held on Sept. 16, Planning and Zoning Director Ben Souza, explained that, according to the zoning regulations, only the applicant for a building permit can file an appeal if it is denied. No other party is able to file an appeal about a building permit.

Souza said that all provisions of the regulations had been compliant with the regulations. So, the issuing of the permits was done to the standard of the Linn County subdivision regulations.

Souza said he recommended denying the appeal.

People speaking for the appeals application were Nathan Howard, Kaitlyn Howard, Jan Longenecker and Melissa Bertz. Page’s attorney, Leo Oppenheimer spoke for the Sunshine Meadows subdivision.

Nathan Howard, Louisburg, told the planning commission members that he owned the property directly south of the subdivision. He said their view of the project was straight forward. Howard said that building permits require a 10 acre minimum in the agricultural district. Building permits are issued for these homes on parcels smaller than 10 acres in an agricultural district.

“If the 10 acre rule is ignored, it undermines the entire zoning scheme,” said Howard.

Leo Oppenheimer, attorney for Mike Page, spoke next. He said that Page followed the regulations in applying for a minor plat. Oppenheimer also spoke about the comprehensive plan and explained that it is there to promote the development and betterment of Linn County.

He told the board of zoning appeals that these are quality-built homes for families of Linn County. He said that he understood that there was a snafu about getting information about these permits from Linn County officials, but that did not make the building permits illegal.

Rural Parker resident and person named on the appeal, Jan Longenecker spoke. He said he had no problem with growth but did not want it randomly throughout the county. He said the whole purpose of planning and zoning is to plan so that the county does not have random impeded growth that impacts your life and my life.

Longenecker said that a residential development across the fence if you are a cattle owner is a problem. His said that dogs from the development could chase the first calf heifers or kids crawling over to see the new baby calf. What happens when they are injured?

Rural Parker resident, Kaitlyn Howard rents the house directly south of the property and spoke to the quality of agricultural. She said it was a really nice area and was not meant for subdivisions.

Melisa Bertz who rents pasture on the west side of the subdivision area, questioned whether the land was suitable for building or even installing septic tanks. She also expressed concern about the added traffic to the roads in the area.

Nathan Howard followed up saying that it was clear that the regulations were not followed.

Oppenheimer summarized that what he thinks is really happening with this is that the people against the subdivision and building permits did not get the information they asked for quickly and they started to feel like something was being hidden from them, like something was happening behind the scenes, like a conspiracy over a five lot subdivision of quality homes.

Oppenheimer said he could see how some people would feel that way, but when looked into every box was checked, every “I” was dotted and every “T” was crossed.

He said he wanted everyone to see that the project was done so that the Pages could get on with their project. This has completely disrupted their lives. He said that Page has dedicated his life to this community.

“Now, to catch this kind of flack from a trumped up conspiracy theory breaks my heart. I mean, it’s ridiculous,” said Oppenheimer.

As they concluded public comment and went into the deliberation process, appeals board chair David Fisher said, “As I understand it, and I asked Jacklyn to explain it to us before we start deliberating, this is a building permit issue. The appeal is stating the appeal of three different building permits and what our responsibilities are there.”

Paletta provided legal information to the appeals board, repeating that the regulations allow a person who is denied a building permit to appeal to the planning and zoning board. She said that would be the proper party to appeal the denial of a building permit. In that section, there is no opportunity for a building permit is granted to be appealed by anyone.

Paleltta continued, “There is another regulation in your codes that is codified in the Kansas statutes that says that any person that is aggrieved by a decision of a planning and zoning board may file an appeal. So it’s my understanding that these folks are claiming that they are an aggrieved person. An aggrieved person is defined in Kansas law.”

She read from the definition, “An aggrieved person has standing or the right to make a legal claim or seek enforcement of a right or duty. The question of standing is one of law over which the court’s scope of review is limited. The burden of establishing standing is on the party asserting it. To have standing, a plaintiff must have a sufficient state in the outcome of an otherwise justiciable controversy in order to obtain a resolution of that controversy.

“A plaintiff must show that he has suffered a cognizable injury and that there is casual connection between the injury and the challenged conduct. A person’s interest in the court’s decision or in this body’s decision is that he or she personally suffers some actual threatened injury as a result of the challenged conduct. This injury must be particularized. It must affect the plaintiff in a personal and individual way.”

“In so far as the applicants for the appeal in this case, this body must determine whether or not they have standing or they are an aggrieved party or a proper party to bring this complaint, this appeal. And then once you determine whether they are an aggrieved party, they you would determine whether the building permit times three were properly granted or not.

“If you determine that they are not an aggrieved party for purpose of review by an court, I would ask that you go ahead and say that if the court were to find otherwise, If the court were to find that they were an aggrieved party, then go ahead and decide whether or not you feel like the building permits were properly issued under your rules and regulations. So that’s pretty much the process you have to follow.”

Paletta told them they had two things to decide. Whether any of the applicants have a standing as an aggrieved party or a proper party to bring this appeal. The second part is whether the building permits were properly issued in conformity with your regulations.

She told the appeals board that if they felt that any of the people were an aggrieved party then they would go to the second part of the inquiry of whether or not the building permit was properly issued or not. And if the building permit was properly issued then the appeal is denied. If the building permit was not properly issued, then the appeal would be granted. If they are not an aggrieved party the appeal would be denied.

Planning commission member Hal Eggers made a motion that the permit stand as is, The planning commission voted unanimously that the permits are valid.