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August 23rd, 2019

5 20 19 county commissionSeward County Planning and Zoning Administrator Kurt Jones, right, answers questions from commissioners Monday regarding the appeal of a decision he recently made on property in rural parts of the county. L&T photo/Robert PierceROBERT PIERCE • Leader & Times


An appeal of a denial of an application for exemption of Seward County’s Subdivision Regulations was the subject of a brief discussion and eventually two votes by the county commission Monday.

A memo from Planning and Zoning Administrator Kurt Jones said the application was made by local developer Marty Bauer on April 27.

Monday, Jones outlined why he denied Bauer’s application, which was to split properties near Road Q and Road 2 in Seward County.

“Road Q has consistently been maintained by the county since the beginning of this project,” he said. “Road Q was built in order to give access to the development.”

The subdivision regulation Jones applied was in Article 1-105, part of which states “The division of land is located adjacent to a public road that has been accepted by the county and meets the minimum frontage requirements of the Seward County Zoning Regulations.”

In his memo, Jones said there is some question about the existence of Road 2.

“In order to establish the frontage requirement, Mr. Bauer would use what would be Road 2, but when you go down to the Register of Deeds, there’s no register, there’s no certificate the road was ever opened,” he said Monday. “It’s in question. Those are the two reasons I had to deny the development on the basis of our regulations.”

Jones said along with making a decision on the appeal, if the appeal was denied, the commission would likewise make a decision regarding a variance allowing the project to be exempt from subdivision regulations.

“What I would be asking the commissioners to do tonight is to either approve or deny or agree with or disagree with my denial, and moving forward, regardless of what you do with that, it would be my recommendation based on the obscure nature of the project of these roads, I would encourage the commissioners to allow the project to operate outside of the subdivision regulations,” he said. 

Jones said though it has been argued Road Q was created for the benefit of the development, Bauer contends the road was developed prior to the purchase and division of the land into parcels.

“The idea of our frontage and our requirements is there’s access to various parcels,” Jones said. “When you recently passed the zoning use, the building permit that allows agricultural use for zoning, the zoning use permit, it specified the importance of access. You can split a property under that regulation as long as you have access to it.”

Seward County Counsel Nathan Foreman said Jones’ denial was based on two things. 

“The first one is this Road Q,” he said. “It’s been maintained it was made for the purpose of accessing the property and is considered a new street, which is one of the requirements.”

Foreman said Jones was essentially saying Road Q is a new street and has been maintained as such throughout the process.

“The second thing we have going on is it has to be adjacent to an open road,” Foreman said. “What Mr. Bauer has done in his most recent application is he’s made his lots as you’ll see in your packet. They run adjacent either to alleged Road 2 or they run adjacent to Road Q.”

Foreman then outlined what the commission needed to do at that point.

“Procedurally, what we have is you need to rule on the appeal, whether you support Planning and Zoning’s determination,” he said. “The second thing you have is you have a recommendation by Planning and Zoning to allow a waiver under certain circumstances, contingencies.”

Foreman warned commissioners about setting a precedent regarding situations such as Bauer’s.

“I would generally caution the condition in making a variance or a waiver on just any situation,” he said. “What that does is it essentially makes the rules meaningless. However, in this situation, we have a fairly unique set of facts that have arisen here fairly recently as far as the existence or non-existence of this Road 2.”

Foreman said county commission minutes from the early 1900s show the process of opening Road Q was started. However, it is unknown if it was finished.

“At the end of that process, the county clerk was ordered to serve the township trustee notice that he should open or cause the same to be opened to public travel, and the township trustee was supposed to file certificate,” he said. “It doesn’t say where the certificate was to be filed. We can’t find that certificate right now. That doesn’t mean that certificate did not exist at some point or may exist in some dusty book somewhere in the records of the county.”

Both Jones and Foreman said it is clear the spirit of the regulations’ requirements is to ensure parcels are not land-locked, but have access.

“The law is ‘If a road has been opened to public travel, the only way that it is vacated is through a formal statutory procedure,’” Foreman said.

Commission Chairman Nathan McCaffrey agreed with the opinions of Jones and Foreman.

“My understanding is because of the new design of the lots by Mr. Bauer, the spirit of the law to provide access to all of those is met by either Road Q that we’ve already opened or through the easements granted on the access road that he’s created or would be required to create,” he said.

McCaffrey also agreed with Foreman’s decision to deny Bauer’s application, but he said he was in favor of the variance.

“I’ve reviewed the letter and the regulations,” he said. “I think Kurt, your denial is appropriate. I do want to also say while I don’t normally favor these variances or waivers, I know you, Mr. Foreman, have put a lot of work in on this project. Knowing that it meets the spirit of the regulations and you’ve worked with Mr. Bauer to provide access to these lots, I think, merits a lot of consideration by this commission.”

Following the discussion, commissioners voted 4-0, with commissioner C.J. Wettstein abstaining, to support Jones’ denial. 

The commission then voted unanimously to approve the variance with the following contingencies:

The requirement of a recorded access easement that benefits all proposed parcels to be split.

The easement to include the turnaround at the end of the access, reflecting the current driveway in place.

Support from Bauer for vacating alleged Road 2, should the county decide to do so.

All easements be signed by appropriate, proper parties and recorded.

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