Mayor Jack Hobbie’s motion to deny claims by salvage yard owner Gary Graham failed on a 2-3 vote Monday setting up the city council to consider the ramifications of allowing the salvage business to use a portion of the road right-of-way beneath the 11th Street viaduct.
In a July letter, Graham asked the city to sell him the right-of-way for $1, waive requirements for a fence, repair a bridge over South Table Creek and reimburse him $15,000 for attorney fees and lost income.
Graham had asked to be on the city council agenda, but he was already scheduled to appear before the Nebraska City Planning Commission in August.
The planning commission had given Graham a conditional use to operate the salvage yard on condition that he build a fence, but withdrew the permit in August because the fence had not been erected in a year.
Graham’s attorney Richard Hoch reminded city commissioners Monday how the Graham has arrived at odds with city zoning regulations.
He started a metal salvage operation in an area southwest of the historic Burlington depot, but on the south side of South Table Creek.
When there were complaints, Dan Giittinger, the city’s zoning administrator, urged Graham to find a new location and helped him look for suitable places. Graham purchased the land beneath the viaduct for $12,000 and hauled in dirt and rock to level it off.
The erection of a fence was delayed because the land between the railroad tracks and creek had not been surveyed and the city would not issue a fence permit without documentation on where the fence should be built.
A fence is also not allowed on a flood plain, so the buildable border with the creek had to be identified.
Mayor Jack Hobbie said Monday that the city offered to identify the flood plain and waived the requirements for a survey, but would not issue the fence permit until Graham had written agreements with his neighbors where the fence would go.
The Nebraska City Board of Adjustment gave Graham a variance so he did not have to screen his operation from someone driving or walking on top of the viaduct, but the city ordered Graham not to use the road right-of-way that runs next to the building on his property and includes a stone bridge over the creek.
“Without use of that property it's impossible for me to conduct my business and I will forfeit several thousand dollars I spent in stabilizing and clearing trees and brush and making the space suitable for my business,” he wrote in the July letter.
He said the city's requirements for a fence along the right-of-way will further restrict his movement.
“I told the planning commission I would have the fence built in August and am preparing to have that completed, but it almost impossible under the existing situation.”
Page 2 of 2 - “This whole situation has caused me enormous stress, loss of my business earning capacity, terrible publicity and how the requirement that I lose my business location all together,” he said.
After the planning commission denied a renewal of this conditional use permit, the city gave Graham 90 days to stop operations at the location.
The city responded on July 31, although some city commissioners say they never saw Graham’s letter, that Graham’s request to lease the right-of-way was denied Nov. 19 and his request for bridge repair and reimbursement are not deemed to be feasible or acceptable.
Hobbie and Street Commissioner Dean Handy voted to deny Graham’s request, while Public Works Commissioner Jim Stark, Finance Commissioner Mark Mercer and Parks Commissioner Jeff Crunk voted against.
After the mayor’s motion failed, Mercer moved to table the issue until City Attorney David Partsch has opportunity to consider the legal ramifications of letting Graham use the right-of-way. His motioned passed 4-1, with the mayor voting against.