out of dollar stores
Among many misjudgments in dealing with a proposed new dollar store, the worst by Marion’s city council was its failure Monday to protect — or even discuss the need to protect — the city from potential damages it likely will owe.
Forget the city’s past promises, which may or may not be binding, about competitors’ stores. Forget whether the city needs more such stores. Forget drainage nightmares likely to be created. Forget whether neighboring residences expect and deserve a buffer and whether streets in the area weren’t designed for commercial traffic.
The city had no right to sell the land it voted to sell. Yet it promised there would be no problem or else it would pay any expenses the developer incurs.
That’s not just an opinion we’ve been expressing. It’s what a Kansas League of Municipalities attorney told council member Ruth Herbel on Monday. Yet her plea to get the council to face facts and discuss how to protect the city met on deaf ears from mayor David Mayfield and council member Chris Costello, who used a tie vote to both stick their heads in the sand and turn their backs on her the way they consistently have in recent months.
At its dedication in 2001, Marion’s industrial park set aside the land in question as reserved — not just for drainage and easements but also for landscaping and open space. It was designed to screen the entire development from an adjoining neighborhood and to serve as a bookend for Ann’s Park on the other side of Roosevelt St.
The same dedication, unmodified since its original filing in 2001, states that the area is not city property but rather “shall be owned and maintained by an owners association to be formed within Batt Industrial Park addition.”
No such group appears to have been formed, but that doesn’t mean ownership automatically reverted to the city.
Kansas law clearly states that land reserved in a subdivision dedication cannot be titled. While re-platting and re-subdivision might be able to change the status of the land, city code clearly states that land cannot be sold in anticipation of re-subdivision. Buyers and sellers must wait until re-subdivision is formally approved.
The only body that has any voice in re-subdivision is not the council but the city’s completely separate, quasi-judicial zoning board, the chairman of which declined a request by city administrator Roger Holter to rubber-stamp the project and avoid discussion by the full board. That’s yet another relevant fact, like Dollar General’s potential challenge of the sale, that Mayfield and Holter never shared with city council members before they were asked to reconsider the sale.
The longer the situation is allowed to fester and the more the potential buyer is persuaded to start preparing to take over the site, the more the potential buyer will be spending. And all those costs could end up becoming the city’s responsibility.
After wrongly being told they had 120 days to change their minds, city council members rushed to sign a contract that includes a provision that could make the city responsible for any money the buyer spends should the deal fall through.
Exactly who’s responsible for all of this is unclear. Mayfield couldn’t even remember Monday whether he had signed the contract. He was reminded he had. Costello kept insisting it wasn’t yet a contract because a signed version hasn’t yet been returned by the buyer. That’s true, but it’s kind of like saying you shouldn’t move out of the way of a falling object because it hasn’t hit you yet.
What the council should have done Monday is notify the buyer that issues need to be resolved, offer the buyer extra time to back out, and in exchange ask the buyer to eliminate city responsibility for any costs incurred because of these issues.
Not only would this protect city interests. It would protect the buyer, too. And it has the added benefit of being the right thing to do.
It may not be the motto of some in city government, but when all else fails, try honesty and openness.
Failing to do so not only leaves the city at risk. It also bullies the planning commission into figuring out a way to approve a plan it doesn’t want merely so the city won’t face financial liability. If that has been the actual intent all along, the city may have far more problems than just this to deal with.
— ERIC MEYER
Some editions of the paper incorrectly stated that Mayfield and Holter withheld Dollar General's protest before the sale was approved rather than before the council was asked to reconsider the sale. The newspaper apologizes for the error.