In a rare split decision, the Neosho City Council voted Tuesday to rezone residential property to commercial on the north end of town.

In a rare split decision, the Neosho City Council voted Tuesday to rezone residential property to commercial on the north end of town.

Scott Wade, owner of Certified Express, Inc. trucking company, had petitioned the city to rezone 400 Grant Ave. and 406 Grant Ave. from R-2, second dwelling house district to C-3, commercial business district for the purpose of a gravel parking lot for semi-tractor trailers.

Wade's request was granted Tuesday on a 3-2 vote, with Mayor Richard Davidson and Councilman Tom Workman dissenting. Davidson and Workman were in favor of issuing a special use permit instead, which would have to be renewed every three years.

The council decision went against a recommendation by the Neosho Planning and Zoning Commission that the rezoning request be denied, based on objections to spot zoning and also on concerns expressed by one neighborhood resident at an Aug. 22 planning and zoning meeting that refrigerated trailers would be parked in the lot and cause a noise disturbance.

Neosho code enforcement officer John Harrington had given the rezoning request a positive recommendation at the Aug. 22 planning and zoning meeting, noting that although the area is zoned residential it is already mixed with both heavy and light industrial and some light commercial. He argued the same on Tuesday before the council.

The two corner lots are next to each other and have vacant houses on them. Harrington said Tuesday that the empty houses were moved over during the flood plain buyout in the 1990s but were never connected to water, sewer or electricity. He said they have become dilapidated, and have been a target of vandalism.

There is an occupied home next door and others nearby. Directly across the street and behind the property in question are empty lots. Harrington said that as to the potential noise factor of the parking lot, the neighborhood is in between two railroads, and that Certified Express trucking company, with its other parking lots, is already across the street to the east.

Wade addressed the council Tuesday and added that he spoke with the neighbors adjoining the property and they were were OK with the parking lot. He said any trailers parked there probably wouldn't be running anyway, but if there are, they have stealth packages installed now to make them quieter.

“I believe they're probably quieter than the railroad tracks on both sides of that property,” Wade said.

He also said he planned to put up an eight-foot-high wooden fence between the parking lot and adjoining properties as a buffer zone. He said later that there is already a lot of truck traffic in that neighborhood and that the residents are used to it.

“We're just looking for a little additional parking,” Wade said. “We've been there 22 years. We've been good neighbors.”

City attorney Steve Hays said that it would be safer for the city to issue a special use permit, rather than rezone the property, so as to avoid any potential of future lawsuits that the city was being arbitrary and capricious, should it not do the same for everyone.

“That's a pretty big jump from R-2 to C-3, I don't believe the city would really want to get into the business of making that kind of jump and putting a C-3 right next to residential areas,” Hays also advised. 

Councilman David Ruth said he didn't feel it was that big of a leap, with a light industrial zone being just across the street at the trucking company.

“We're jumping across the street from an industrial zone to what would be a commercial zone, we're not putting heavy industry in the middle of a neighborhood,” Ruth said. “I don't see that big of a stretch on this.”

He also said a special use permit, which would have to be renewed every three years, would put Wade at the “mercy of future city councils.” Councilman Charles Collinsworth noted that while he leaned toward granting the rezoning request, and ultimately voted for it, a special use permit would ensure that the parking lot didn't cause problems with the neighbors. If it did, the permit wouldn't be renewed.

“If you're not a good neighbor, the complaints will come,” Collinsworth said. “It would offer some protection to the neighborhood. But, personally, I'm on board with [rezoning] it right now.”

Mayor Pro Tem Steve Hart said that nuisance ordinances, if enforced, should take care of any noise issues anyway.

But Davidson said that rezoning the property would open the city up for liability if the council wasn't consistent with its decisions.

“So next time, if someone wants to put a C-3 next to their house, they can say 'you did it once, Mr. City Councilman, why don't you do it here?'” Davidson said. “That's where being arbitrary and capricious comes in.”

“You're fueling a potential legal action by doing this,” Hays advised the council later, referring to the rezoning.

Hart asked how many times the city had been sued over something like that. Hays said none in the 11 years he had been the city attorney.

“I think we're splitting hairs,” Hart said. “We're maybe putting a local business in jeopardy with a special use permit, even if it’s six years down the road. I'm not as confident in a city council six years down the road as I am of the one today.”

Ruth noted that city's major business thoroughfare, Neosho Boulevard, butts up on both sides against residential property.

Davidson asked if the city's adopted land use plan shows the Grant Avenue property as continuing as residential or becoming commercial. If the answer is residential, he said, then the city would be “crossing a line” by rezoning it commercial. Ruth countered that the land use plan was not adopted by the current city council, but happened when Jan Blase was city manager. Ruth said the land use plan itself may need to be examined.

Davidson asked if there was any guarantee that once rezoned commercial the property could not, hypothetically, be sold off in a few years and a strip mall placed on it, with residential property on three sides.

“Could we stop that? The answer is no,” Davidson said.

Ruth said he wouldn't be opposed to something like a neighborhood grocery store or laundry mat eventually going in there, though he said he doubted that would happen.

Councilman Tom Workman said he was in favor of issuing a special use permit. He said he spoke with the neighbors of the property in question, and while most are OK with the parking lot, a couple of them aren't.

“I think we need to be very careful about spot zoning, but we also want to be careful not to stunt your growth either,” Workman said, addressing Wade.

Ruth said the neighbors would probably be happy to get rid of the empty, dilapidated houses.

“There are probably things going on in those houses right now that the neighbors don't approve of,” Ruth said.

“You've been a good neighbor in that area for 22 years,” Hart told Wade. “I don't want to stunt your growth over a couple of houses that should have been torn down years ago. There are a lot of other buildings over there that are falling down and that we're going to have to deal with one of these days. I just feel like any time we can solve a problem and also help a business out, that's what we should do.”

Read more coverage from Tuesday's Neosho City Council meeting in Friday's Daily News.