Wednesday, May 07, 2014
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City says “No” to new special use ordinance for mortuaries

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[May 07, 2014]  LINCOLN - Monday evening, two city aldermen effectively shot down an ordinance request for special use for mortuaries in an R-2 residential zone. 

The request for a special use permitting the outdoor display and sale of tombstones at a mortuary came at the recommendation of the Lincoln Planning Commission.  Building and safety officer, John Lebegue, reported to the council that the plan commission struggled with the decision.  While it was approved by the commission, it was not by unanimous vote.

When it came to a vote by the council on Monday, aldermen voted 4 – 2 in favor; the proposed ordinance did not pass.  According to law, a change in ordinance has to be approved by the majority of all elected aldermen, not the majority present for the vote. 

Melody Anderson and Jeff Hoinacki were absent for the evening, leaving only six aldermen for the vote.  By law, five of them had to vote yes in order for the ordinance to pass, and that did not happen.

This request for special use was brought first to the plan commission by Don Peasley, owner of Peasley Funeral Homes and Peasley Memorials.

Peasley has operated both businesses for several years in Lincoln.  For quite some time the tombstones were sold out of a different location from the funeral home.  However recent events for Peasley brought him to the decision to set up the tombstones on the front lawn of the funeral home.

After the fact, it was discovered that as an owner of a funeral home in a residential district, city code did not allow Peasley to place the stones on display.  He had to go to the plan commission and request they recommend a change in the city code.  Once the plan commission did agree to recommend the change, it was up to the city council to allow it.

Lebegue first brought this topic to the council at the Tuesday, April 29 meeting.  He said the plan commission had expressed that if allowed the monuments should be shielded from street view, and they were not keen on having them in display in a front yard.

Monday evening, Lebegue said Peasley would plant shrubberies around the display to shield it as requested, and there is possibly another location on the property where the monuments could be moved out of street view.

During discussion it was brought up that a funeral home in general is a business that offers services as well as retail products in the form of caskets and other burial products.  The city has long allowed for mortuaries in R-2 residential districts, but this is the first time they have had to deal with tombstones.

Jonie Tibbs asked about the fact the monuments are still on display, even after discovery they were not allowed.  Lebegue said that many of the monuments had been placed in a garage, but not all would fit, so some were still there. 

Tibbs commented, “Mr. Peasley’s business has been here for years and years, I have nothing against this gentleman; he is a great person who serves our community.  What I have (a problem with) is the open display of these monuments without the proper coverage.  This is what I have a problem with, and the neighbors around there have a problem with.”  She went on to say, “If I want to sit in my front yard, I don’t want to be gazing at them (tombstones).”

Lebegue said that was the same feeling of the plan commission and they had specified that the display should be surrounded with evergreen bushes at least 6 feet tall, so the stones would be obscured.

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Tom O’Donohue said this was an established business selling retail items already.  He said he understood someone not wanting to look at tombstones all day.  He said his issue was that they be moved so they are not in the front yard.

Michelle Bauer said she felt Peasley is conducting business not currently permitted in that zone.  But that the code needed to be established.  She added that she felt once the code was properly established, Peasley would do everything possible to comply.  She said, “Today what we need to consider is, are we moving forward to make sure he and his business gets the classification as it needs.”

Scott Cooper said his issue was that Peasley is already doing something that is not allowed.  He said, “I always envision, if you want to do something you get the ordinance changed first prior to setting up the business.  I don’t want to hinder anything, but it’s like ‘let’s set up and start selling, then go to city council and get it (the ordinance) changed.”

Mayor Keith Snyder commented, “In the existing ordinance, mortuaries are a special use in R-2 districts.  But our ordinance is silent in regard to display of burial monuments.  The interpretation could be that the sale of burial monuments is an ancillary business practice of mortuaries.  This (change) clarifies that is the case.  I don’t view it as a blatant disregard for city ordinance, because right now I would say the city ordinance isn’t clear.”

O’Donohue asked for clarification of what the city was being asked to approve.

City attorney Blinn Bates said the council would be voting to say in general that the sale of burial monuments at a mortuary in an R-2 residential district may be allowed.  He said this was not approving allowing Peasley to do this immediately.  In order to continue his monument sales after the ordinance is passed, Peasley would have to return to the commission, request the special use permit, and again come back before the city council for final approval.

Peasley was at the council meeting Monday night, and was asked if he would like to comment.  He said only that he was willing to do whatever he needed to in order to continue doing business.

When the item came to a vote, Bauer and O’Donohue readily offered their yes votes.  Cooper and Kathy Horn, both paused for a very long time before adding their consent.  Tibbs and Marty Neitzel both voted no. 

Without a majority of elected officials approving the request, it failed.

The Monday night vote will have no effect on Peasley’s ability to offer mortuary services at the current location.  The only change is going to be that the monuments can no longer be sold at the funeral home.


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