An Otoe County judge threw out a criminal citation Monday and the Nebraska City Planning Commission tabled Wednesday the city's undertakings to force changes at Gary Graham's salvage operation near the 11th Street viaduct.
Police issued a ticket May 16 alleging a zoning violation, but a county judge found Graham not guilty. Two days later, the planning commission agreed that he is not yet in violation of the conditional use permit they granted in August.
Mayor Jack Hobbie asked the planning commission to revoke the zoning permit, however, saying Graham has not complied with a January letter where the city demanded that he move his operations indoors.
Graham said Thursday his frequent dealings with police and other city officials are taking time away from his work and he has come to believe the city has some arcane reason for wanting him off of the land.
“What they are doing is breaking me, breaking me financially,” he said. “I need to be working to make my my business run, but I've spent the last six to eight months with lawyer's fees.”
In November of 2009, Graham's salvage business was in its infancy in an area near the old Malzer property at 502 Ninth Corso.
The area was zoned residential and neighbors offered vocal opposition to a proposal to rezone six city blocks to industrial.
At that time, Zoning Administrator Dan Giittinger suggested that Graham move to an area zoned industrial.
Graham said they discussed the property near the viaduct and he was assured that its zoning would meet his objectives.
After Graham relocated, however, the city realized this land was also zoned residential.
Graham went through the process for a zone change to Industrial 2, which requires him to get a conditional use permit from the Planning Commission. City planners granted the permit on Aug. 1, with the stipulation that Graham erect a fence to screen his operations.
Graham started to erect a wooden fence, but the city delayed issuance of a fence permit.
The land is situated between the railroad tracks, South Table Creek, the former Morton-House Kitchens complex and the current Farmer's Co-op. It is divided by the 11th Street viaduct, which looms overhead.
Alan Viox, building inspector, said it did not make sense to issue a fence permit until a survey showed the exact border of Graham's land in comparison to the railroad tracks.
Graham's attorney, Richard Hoch, said while his client was trying to comply with the city's requirements, the city suddenly demanded that he move his vehicles from beneath the viaduct.
A bridge over South Table Creek is under the viaduct and Graham must cross it to haul salvaged metal to market.
He has trailers and trucks parked on the market side of the old bridge and Hoch said it is not realistic for Graham to find a solution for the vehicles in the five days given him.
Page 2 of 3 - City Administrator Joe Johnson said the state gave the right-of-way to the city when it vacated old Highway 75.
He said the city must maintain the right-of-way or jeopardize federal and state funding for road projects.Hoch said the right-of-way probably pertains to the right for traffic to flow on the viaduct, but may have been vacated as to the land below the bridge.
He said it also appears impossible for Graham to screen the land below the viaduct so it can not be seen by people driving or walking across the bridge, so Graham is advised to seek a variance from the city's Board of Adjustments.“I told Mr. Johnson that we would go to the board of adjustments. I didn't know it was urgent. We're trying to do it one thing at a time,” Hoch said.
Mayor Hobbie said Graham is running out of time. He said the salvage operation will become more visible as the leaves drop this fall and vehicles will not be tolerated on the right-of-way.
He said the city is not attempting to run Graham out of business, but is trying to enforce its codes.
He referred to a ScrapMart representative's negotiations to purchase 10 acres near the Solid Waste Transfer Station for a salvage operation.
“As I recall we drug him through the mud. We wanted to make sure it was all on concrete. We made it a point to tell him it had to all be in his building. That he could not store scrap metal outdoors, even if it's fenced. He couldn't keep it in the open,” the mayor said.
Giittinger said he originally thought Graham's land was zoned I-1, which is also the zoning category placed on the ScrapMart property. Under I-1, all operations have to be indoors.Graham's property was zoned I-2, however. Giittinger said I-2 is more lenient about outdoor operations, but requires a conditional use permit.
Giittinger said it is his fault that Graham was initially told the land was zoned industrial.“Wrongs don't make a right,” Hobbie told city planners. “Maybe we were wrong in suggesting that he go there. In hindsight, certainly we were.”He said, however, that the same rules should be applied to both Graham and ScrapMart.
“We're not even playing fair rules between the two operations,” he said. “We require ScrapMart to comply with all these regulations, but allow this to go on indefinitely without them.”
Hoch said Graham is not doing anything wrong.
“Gary bought the ground at the city's recommendation. He put his time and his treasure into it. He went through the rezoning process and then the conditional use process. No one mentioned to us that the city was claiming it was the city right- of-way,” he said.
Page 3 of 3 - Hoch said the planning commission approved the conditional use when the right-of-way was included on the property's legal description, but the description was removed by the time the city council council approved the zoning change.
“The city removed the right-of-way description from the ordinance, but did not tell anyone,” Hoch said.“The city can do what it wants to kick Gary off, but there will be a fight about that,” Hoch said.
“This is a strange kind of thing. What is happening is an attempt to put us out of business, by not getting a conditional use permit,” he said.
He described the property as a swamp when Graham bought it.
He said Graham cleared trees, brought in up to 30 loads of rip-rap to stabilize the creek bed and 30 loads of gravel to prepare the property. City planners tabled the matter.
Chairman Keith Morrisson said it appears that a survey needs to be completed to identify where the fence will be built.
Graham also needs to go to the board of adjustments to see if he can obtain a variance so that he will not have to shield his property from those crossing the viaduct.