Kearney, Nebraska

March 27, 2007

7:00 p.m.

 

A meeting of the City Council of Kearney, Nebraska, was convened in open and public session at 7:00 p.m. on March 27, 2007 in the Council Chambers at City Hall.  Present were: Stanley A. Clouse, President of the Council; Michaelle Trembly, City Clerk; Council Members Randy Buschkoetter, Don Kearney, Bruce Lear, and Bob Lammers. Absent: None.  Michael Morgan, City Manager; Michael Tye, City Attorney; Amber Brown, Assistant to City Manager; Wendell Wessels, Director of Finance and Administration; Kirk Stocker, Director of Utilities; and Rod Wiederspan, Director of Public Works were also present. Some of the citizens present in the audience included: Dan Lindstrom, Chris Riha, Bob Hirsekorn, Laurie Reissland, Jan Parker, Doug Kristensen, Mike Nevrivy, Brad Norton, Amber Watson, Ken Tracy, Roger Jasnoch, Paul Wice from KGFW Radio, and Mike Konz from Kearney Hub.

 

Notice of the meeting was given in advance thereof by publication in the Kearney Hub, the designated method for giving notice, a copy of the proof of publication being attached to these minutes.  Advance notice of the meeting was also given to the City Council and a copy of their acknowledgment or receipt of such notice is attached to these minutes.  Availability of the Agenda was communicated in the advance notice and in the notice to the Mayor and City Council.  All proceedings hereafter shown were taken while the meeting was open to the attendance of the public.

 

I.    ROUTINE  BUSINESS

 

INVOCATION

 

A representative from the Kearney Ministerial Association provided the Invocation.

 

PLEDGE OF ALLEGIANCE

 

There were one Girl Scout from Troop 813, nine Boy Scouts from Troop 36, and three Boy Scouts from Troop 158 led the Council members and audience in the Pledge of Allegiance.

 

ANNOUNCEMENT

 

Mayor Clouse announced that in accordance with Section 84-1412 of the Nebraska Revised Statutes, a current copy of the Open Meetings Act is available for review and is posted towards the back of the Council Chambers.

 

ORAL COMMUNICATIONS

 

There was no Oral Communications.

 

II.    UNFINISHED  BUSINESS

 

There was no Unfinished Business.

 

III.    PUBLIC  HEARINGS

 

CONDITIONAL USE PERMIT – VIAERO WIRELESS; 1920 WEST 24TH STREET

 

Moved by Kearney seconded by Lammers to remove from the table the public hearing on the Application submitted by NE COLORADO, INC., dba “Viaero Wireless” (Applicant) and ZAN, LLC (Owner) for a Conditional Use Permit to construct and locate a retail store, 195-foot self-supporting telecommunications tower, backup generator, and a 9’x15’x8.5’ building to house supporting electronic hardware on property zoned “District C-2, Community Commercial District” and described as a tract of land being part of Lots 7 and 8 and part of the vacated street abutting Lot 8 on the west, all in Lincoln Way Villa Plots, an addition to the City of Kearney, Buffalo County, Nebraska (1920 West 24th Street).  Roll call resulted as follows: Aye: Clouse, Lear, Lammers, Kearney, Buschkoetter.  Nay: None.  Motion carried.

 

Mayor Clouse stated that Staff recommended denial based on the findings that the height of the proposed tower could be lower if an alternative relay site is developed thus decreasing the impact of the proposed tower on the community.  The Planning Commission vote was split with five in favor and three opposed.

 

The applicant is requesting a Conditional Use Permit (CUP) to construct a 195-foot self‑supporting telecommunications tower, a backup generator, an equipment building and a retail store at 1920 West 24th Street, the former site of Little People’s World Daycare.  The applicant has submitted a sixty-page report in support of this CUP application for your review. 

 

The main goals of the applicant appear to be:

·         Improve service coverage to their client base by adding an additional tower to their system in Kearney.

·         Provide better signal strength to the UNK campus and its environs.

·         Locate a retail store at the same location as the tower.  The site would have multiple uses at one location instead of having them at separate locations.

·         Build the tower tall enough and sturdy enough to serve as a relay tower to use line‑of‑sight microwave signals to communicate between this tower and other towers in their system serving this region.

·         Provide telecommunications service to the community during times of crisis when other types of communication systems may be compromised.

 

A similar proposal was before the Planning Commission and City Council about one year ago to locate a 100-foot tall self-supporting tower in conjunction with a retail store for RCOM, Inc. at 3719 2nd Avenue.  That property is zoned C-2, as is the property in the current proposal.  City Administration did not support the CUP application.  After much discussion and several delays the Council approved a tower at that location, but limited its height to 35 feet.  In the current proposal, administration once again believes that the height of the tower can be lowered to minimize the impact on the community.

 

A summary of some of the key aspects of this proposal include the following:

 

Note:    Dimensions and area calculations listed below are primarily based on scaled distances off the site plan.

 

a)       The retail store will be approximately 4,050 square feet in area.

b)       The equipment building is 9’ x 15’ x 8.5’

c)       The tower is a lattice style self-supporting tower 195 feet in height with a triangular base located approximately 15 feet behind the retail building.  Each leg of the base measures approximately 23 feet across.

d)       The tower base is located approximately 147 feet from the south right-of-way line of Highway 30/West 24th Street or approximately 170 feet from the south curb of the traveled lane of said highway.

e)       The tower will serve as a relay for microwave signals to other tower locations in the Kearney network for Viaero Wireless and will also provide signal penetration into the UNK campus thereby improving coverage of this area.  Signal coverage maps are included in the report as Exhibits J and I.

f)         Based on line-of-sight microwave technology, the proposed tower will receive its signal feed from an existing tower just east of Elm Creek, Nebraska.  Exhibit K depicts the line-of-sight projection in relation to the ground plane between the two towers.  If either tower is lower the ground will interfere with transmission.

g)       Microwave dishes and antennas will be mounted on the tower.  Staff is uncertain as to the size of the dishes, the quantity of them or their location up and down the tower.  Staff has requested this information from Viaero representatives.  Elevations of the retail building do not show the entire height of the tower, so this information cannot be readily ascertained from the information provided.

h)       City code requires that any new telecommunications tower provide collocation ability, meaning adequate space and structural integrity for antenna and equipment for two additional users on the tower.  The proposed Viaero tower has co-location capacity for three additional users if they do not disrupt the services of Viaero and enough space on the ground for two additional equipment buildings, if needed by co-locators.

i)         City code requires that all tower applicants perform analysis of co-location potential for any existing telecommunications towers to use the existing towers instead of constructing new towers. The required search ring in the code is ¼ mile from the proposed tower site. In this case, there are no existing towers located within these parameters. Viaero has extended the search ring to a one-mile radius and has identified five existing towers, none of which, in the opinion of their engineers, meet their needs for collocation ability.  The analysis of these tower sites is included in the report as Exhibits L, M, N, O, P and Q.

j)         The proposed tower site is zoned C-2, Community Commercial District.  Surrounding zoning is M-1, Light Industrial District and Agricultural.  The University of Nebraska Foundation owns the surrounding property.  Existing land use to the west and south is row crop agriculture and to the east is a former motel that is now owned by the University as residential rental units. UNK has master planned the vacant land in anticipation of campus growth and expansion, but it is undeveloped at this time

 

City Administration has several concerns with the proposed tower application.  Each concern is discussed separately as follows:

 

According to City Code a retail store is an allowable use, by right, in C-2 zoning. The telecommunications tower and associated equipment is not allowed in any zoning district as a “by right” use.  Towers are conditional uses subject to the terms and conditions placed upon them on a case-by-case basis by the Kearney Planning Commission and City Council.  This process is set forth in the telecommunications chapter of the City Code and is the process that the applicant has applied for with this site and this project proposal.  A retail store and tower combination might conceivably be an acceptable use at this location depending on the specific details of the proposal and the conditions that would be placed on the project as a result of the conditional use process.  Until the Planning Commission and City Council have been presented all the pertinent information, it is impossible to know the outcome of the CUP process or what conditions they may believe are necessary to regulate the operation of a tower and a retail store at this location.   

 

In this case, the application is for a larger tower than City Administration believes is necessary at this location.  By their own admission, the Viaero representatives have agreed that service could be provided in a different manner, but that it would be more expensive to do it that way.  In seeking alternative approaches, as Administration understands the situation, a tower site could be secured with adequate elevation between Kearney and Elm Creek to be used as the relay base to shoot the signal to the retail location and other receiving towers serving Kearney.  The “remote” tower could be located outside of the city extra-territorial jurisdiction, therefore not subject to City zoning regulations and ultimately resulting in a lower receiving tower at the proposed retail store location. From the Applicant’s standpoint, this proposal is both less convenient and more costly than the current proposal. City Administration believes that the cost‑benefit tradeoff between the two alternatives is worthy of serious consideration by the Commission and Council. Cost is a consideration in every project.  City Administration does not get involved with budgeting and cost issues for private development projects, Administration reacts to the impact of a development proposal on the community from many angles, both positive and negative.  If the lowest cost option were always the preferred choice, the community would suffer. In this case, Administration believes that a lower, safer, less obtrusive tower is in the better interest of the public. 

 

Shown below is a chart first depicting information regarding the Applicant’s tower and then the existing towers in the City of Kearney jurisdiction based on City records. (Towers listed in ranked order from shortest to highest)

 

 Date                Ht.        Type     Zone     Location                                    Notes                           

 

Proposed	195	SS	C-2	1920 W. 24th St.	Proposed Viaero Tower
01/10/06 *	35	SS	C-2	3719 2nd Ave	100-foot ht. requested
08/24/04 *	40	M	C-1	3720 Avenue A	Light pole w/ antenna
06/10/03 *	50	SS	M-1	2215 Avenue I	Replace ex. 35 foot
2002 *	77	M	AG	6204 2nd Ave
06/13/00 *	100	M	M-1	1808 2nd Ave.
05/11/04 *	100	M	R-1	Memorial Field	Athletic light pole
07/08/97	120	SS	M-1	810 Avenue A	Charter Cable
09/12/95	120	SS	M-1	600 block Central Ave	Kinder Morgan
07/13/04 *	126	M	AG	Buffalo Co. Fairgrounds
02/08/00 *	126	M	AG	Buffalo Co. Fairgrounds
07/08/97	180	SS	M-1	1925 Ave A
09/10/03 *	180	M	M-1	1919 15th Ave	City shop
09/11/01 *	250	SS	AG	855 Ave. M	Remote
06/12/01 *	300	G	AG	3406 Lakeview Drive	Replace old tower
08/13/96	600	G	AG	W of 30th Fire Sta. 2	Remote –Buff Co.

M = Monopole   SS = Self-support Lattice                        G = Guyed

*  CUP granted under provisions of current telecommunications ordinance effective 12/08/98

 

In reviewing this chart, the following information is important to consider:

·         Three towers that exceed the height of the proposed tower have been approved.  The tallest was approved before the current telecommunications ordinance was adopted and it is used by Buffalo County Sheriff’s Office for communications and emergency response across the county.  The second tallest tower at 300 feet in height was originally constructed before the current telecommunications ordinance was adopted, but was replaced at its existing height in 2001 due to the age of the tower and structural concerns.  The 250-foot tower is located in a remote agricultural area southeast of town.

·         Two of the towers have been disguised as light poles in an attempt to make them less noticeable (zones R-1 and C-1)

·         The towers that have been approved in commercial zoning districts have been limited to 40 feet in height.

 

To date, the maximum height of any tower located in a commercial zone is 40 feet.  All of the taller towers are located in Industrial or Agricultural zoning districts.  Even though the adjacent land is zoned M-1 and Agricultural, the land that is proposed for the location of this project is zoned C-2.  The Planning Commission and City Council must consider whether the current precedent of lower towers in commercial zones should be relaxed if this application is approved as presented.

 

Although the impact of aesthetics may be debated amongst reasonable people of differing opinions, aesthetics are an important consideration when sighting towers.   Otherwise, why would there be any concern over the height, location and appearance of any tower notwithstanding FAA or FCC regulations?  Why are some towers “disguised” to blend into their surroundings, to be less noticeable?  There are examples of towers disguised as trees, light poles, flagpoles, and others across the country.  In Kearney, there is a tower that supports athletic lighting at Memorial Field and a tower that appears to be a tall flagpole at Foster Field on the UNK campus.   It is City Administration’s position that a 195-foot tall tower; on the main east-west state highway, at the west gateway to town, across from the UNK campus is excessive – especially not knowing the size, quantity and vertical location of the proposed microwave dish antennas that will be mounted on the tower.      

 

The CUP process requires engineered drawings stamped by a licensed structural engineer to insure that the tower design meets industry standards for wind loads, snow loads, etc.  The Viaero team has indicated that their company standard increases the structural design ten percent above the industry standard.  Realizing that towers are generally designed to collapse instead of “tipping over” full length it appears unlikely that the tower would fall into the highway if it collapsed, even though the height of the tower at 195 feet and the distance from the highway to the tower at 170 feet means that the top 25 feet of the tower would extend across the highway in a worst case scenario.  Less than two months ago there was considerable damage to structural towers in the area due to severe winter storms with heavy ice accumulations.  The damage to these towers was unexpected since it would seem reasonable to believe that they had been designed to meet local structural engineering standards.  Therefore, any tower may be a case of “never say never” and safety is certainly a concern.  Even if the proposed tower does not pose a threat to Highway 30, it could affect other surrounding property owned by the University of Nebraska Foundation.  There is a former motel just east of the proposed tower location that is being used as residential rentals and there are master plans for future development and expansion of the UNK campus to the south and west of the tower.  Although the majority of the land is currently vacant, the presence of the tower might affect how this property is developed and consequently a smaller tower will produce less impact to these properties.

 

The code requires minimum setbacks for towers from property lines and streets based on the setbacks requirements for the zoning district in which the tower is located.  In this case, C-2 zoning requires a 25-foot front yard, no side yard, and a 15-foot rear yard.  The proposed tower location complies with these setbacks, however the applicant does state in the report that the location of the tower could be adjusted if needed.

 

The applicant has provided graphic exhibits in the report to depict service coverage and signal strength before and after the proposed tower is constructed as exhibits J and I respectively. Neither Administration nor the Planning Commission nor City Council is educated in radio frequency technology, but it appears prudent to ask the applicant to answer the following questions regarding coverage.

a)       A comparison of the before and after maps reveals that a “hole” in service coverage in the UNK area is filled in with the addition of the proposed tower.  This is one of the primary goals of the applicant.  The question that comes to mind is why isn’t the coverage area significantly better in the UNK area after the addition of the proposed tower?  It is the understanding of City Administration that the existing towers in the Viaero system in Kearney are of various construction types and heights not necessarily meeting their optimum performance standards.  Why then is the coverage ring for the new tower designed to all the best standards roughly similar in size to the existing coverage rings on lower towers?   

b)        If the existing towers in Kearney are not currently microwave capable due to inadequate structural capacity, physical design, and/or not necessarily the optimum height to provide optimum coverage, then what happens to these sites in the future?  If the proposed 195-foot tower provides no better coverage than the shorter existing structures, will replacement or additional 200-foot plus towers be required in other locations in the community to provide reliable service?  Administration understands that Viaero must set internal performance goals to insure reliable and adequate service to its customers.  However, those goals may not be compatible with the city’s goal of minimizing the number of towers and their impact across the community.   For instance, if Viaero’s service standard is set such that twenty new towers are ultimately required in Kearney, that would conflict with the City’s goal of minimizing the impact. This is why it is important for the Planning Commission and Council to be convinced that the proposed tower as presented is the best possible plan to meet the needs of Viaero Wireless and the City of Kearney both now and into the future.  Otherwise, from the city’s standpoint the proposal must be modified.

 

Co-location requirements are presented in the telecommunications ordinance from two perspectives.  First, applicants must demonstrate that it is not possible for them to use an existing structure to add and operate their equipment, thus avoiding the construction of another new tower. Second, if approval is granted to construct a new tower structure, it must be designed to allow co-location of other users. As previously stated, the Applicant has conducted an analysis of five existing towers within a one-mile radius of the proposed tower site.  None of these options were deemed suitable by the Viaero research team.  The proposed Viaero tower has been designed to accommodate co-locators. 

 

Another strategy to consider in order to limit the total number of towers in the community would be to replace an existing tower with a taller tower that would meet the needs of the existing users and also serve as the relay hub for Viaero Wireless.  The tower located at the City Public Works Annex on 15th Avenue for example is at 180 feet in height.  This approach would allow the receiving tower at the retail location and/or UNK campus to be smaller.  The smaller towers can be constructed as monopoles, which are less visually obtrusive, and can more readily be “disguised” as light poles or flagpoles, to minimize visual impact and safety concerns.

 

Another consideration for the Planning Commission and City Council is whether a third party review would be beneficial.  The telecommunications chapter of the code states:

 

The City Council or Planning Commission may require {an expert review by a third party}, to be paid for by the applicant for the telecommunications services or facilities.  The selection of the third party expert shall be by mutual agreement between the Applicant and the City, such agreement not to be unreasonably withheld by either party.  The expert review is intended to be a site-specific review of technical aspects of the telecommunications services or facilities and other matters as described herein with respect to potential interference issues, and not a subjective review of the site selection.  Such a review should address the accuracy and completeness of the technical data, whether the analysis techniques and methodologies are legitimate, the validity of the conclusions and any specific technical issues outlined by the City Council, Planning Commission, City staff, or interested parties.

 

A powerpoint presentation was made before the Planning Commission.  Lengthy discussion ensued as reflected in the official minutes of the February 16, 2007 Planning Commission minutes.  Following is a summary of the key discussion points:

a)       The Viaero representatives presented the history of the company and their projected coverage needs at the end of 2007 which will consist of seven sites, three of which were inherited from their predecessor, one which is under consideration today, and three future sites to be determined in the areas of the mall, the hospital and the FirsTier Event Center.

b)       Viaero has roaming partners in Cingular, AT&T, and T-Mobile.  This gives Viaero extended regional coverage without having to build more towers and also eliminates the need for new towers that the roaming partners may request since they can use Viaero facilities

c)       Four criteria have to be met for site selection:

1)       Network coverage.  The proposed facilities need to be located close to where the coverage is desired and there has to be enough height for distance, building penetration, and to relate to the other towers in the system.

2)       Network reliability.  The towers are engineered to withstand a major tornado hit with ½ inch of radial ice on them and backup generators are provided to insure a power source during emergencies.

3)       Network connectivity. Viaero uses microwave technology which requires unobstructed line-of-sight between facilities.  The microwave backbone extends from Ft. Morgan, Colorado to Grand Island, Nebraska.  The representatives from Viaero believe that microwave technology has some distinct advantages, such as providing adequate service when telephone lines are down.  The microwave technology also handles peak surges with the availability of extra band width while other technologies have a fixed capacity.  These features are important during times of crisis when reliable communication service is needed.

4)       Site availability.  Once the technical parameters are analyzed and a suitable search area for a tower location is identified, the Viaero people need to find a site with an owner that is willing to sell or lease the property for a tower site.  In this case they have a willing seller.

 

d)       Viaero representatives discussed the city criteria for collocation and the ¼ mile search ring to investigate the suitability of existing towers within that search area to accommodate co-locators.  Viaero expanded the search ring to one mile and identified five towers, none of which were deemed suitable for their needs.  Planning Commission asked if the tower absolutely has to be 195 feet in height?  They explained there are two reasons why the tower has to be 195 feet tall.  First and foremost is the line-of-sight requirement for the proposed tower to be able to tie into the existing microwave backbone.  The second reason is to allow enough height to accommodate co-locators on the new tower.  City code requires space and structural integrity for two additional users.  Viaero proposes three additional users if the tower can be built to the 195-foot height.

e)       Viaero representatives presented the plan for the multi-use aspects of the proposed site, including a Technical Response Center, a retail office and a switching center in addition to the tower and its support equipment.   Number of employees was discussed and the possibility of Viaero becoming a sponsor at the event center.

f)         The quantity, size and location of satellite dishes and antennas on the tower were discussed.  There is an eight-foot diameter dish proposed at 195 feet and a six-foot diameter dish at 150 feet.  Taking into account the potential for three co-locators there could be eight satellite dishes and 16 antennas on the tower.

g)       Existing towers around the Kearney community and in Grand Island were discussed and compared to this proposal.  There are five existing Viaero towers in Grand Island with a sixth proposed tower to be constructed in the near future that will complete their network.  The towers in Grand Island range from a 60-foot monopole to a 300-foot lattice tower at the industrial park.

h)       The Planning Commission inquired as to building a remote tower to act as a relay for the microwave thus lowering the required height of the tower at the proposed site.  Viaero representatives stated that it would be possible but it would mean adding an additional tower that isn’t needed as there is no coverage demand there, and the cost would be about $250,000, if a suitable site could be located.

i)         Site Plan options A and B were reviewed.  Two options were presented due to a jog in the right-of-way on Highway 30.  The inconsistent right-of-way line has implications for the required landscape strip and parking lot layout.

j)         Discussion was held regarding the structural engineering of the tower and what would happen in various situations such as tornados and high winds.  Would the tower fall across the highway?  Would the satellite dishes blow off?  Viaero representatives assured the Commission that the towers were built to be structurally stable even in the event of a tornado and that the equipment is secured to the tower with several bracing points.

k)       Monopole versus self-supporting lattice style construction was discussed.  The proposed tower is a lattice tower for structural integrity, to eliminate any slight twisting that would affect the microwave signal.

l)         A representative from the University of Nebraska at Kearney read a statement in opposition to the proposed tower.  Viaero representatives indicated that prior discussion with UNK had been positive and that the former vice-chancellor had even offered a site on the university intramural field for a 180-foot tower.  This site does not provide the in-building penetration on campus that the Viaero engineers are looking for.

m)     City Planner reminded the Commission that Code does provide for a third party review if they believed that would be helpful, but the Commission believed it was their responsibility to provide a recommendation to City Council.

 

In summary, the applicant has done a commendable job of assembling information and presenting this proposal.  A retail store and tower combination might conceivably be an acceptable use at this location, but City Administration believes that there are modifications to the proposal that will reduce the impact of the tower while still meeting the needs of Viaero Wireless and the citizens of Kearney.  The question for the City Council is “what conditions or modifications are necessary for this Conditional Use Permit to be issued to allow this project to move forward?”

 

City Attorney Michael Tye stated the reason for the Conditional Use Permit is because the tower that is being proposed is not allowed pursuant to City Code in any zone.  The City Code requires an applicant to show why the location they have chosen is appropriate.  Part of that process is to provide the location of other towers in the community and also whether this tower could be co-located in other locations.  The intent of the Code is to try to co-locate on a smaller number of towers, if possible. The Council has been provided with the information received from Viaero. They have also been given information from the Planning Commission evaluating this from various aspects.  Planning Commission looked at it in terms of location to see if it is appropriate, considered safety issues, the impact on other uses in the area and whether it is technologically feasible to do it in this location.  The applicant in this situation has put together a very detailed application and provided information on what they hope to achieve by doing so. This is basically the process required in order to make a determination. 

 

Attorney Dan Lindstrom representing Viaero Wireless stated the City Code is very detailed and requires quite a showing from an applicant that wishes to build the type of telecommunication facility that is being proposed. He introduced Bob Hirsekorn, Director of Site Acquisitions for Viaero Wireless from Fort Morgan, Colorado.

 

Mr. Hirsekorn explained in more detail some of the points on the application.  Viaero was incorporated in February 1991, with a license as Cellular One of northeast Colorado out of Fort Morgan.  At the time, they put up one tower in Fort Morgan and since then they have expanded. In October 2003, Viaero acquired the licenses to provide services in Nebraska. In 2004, they acquired the rights from Nebraska Wireless to encompass all of Nebraska, outside of Lincoln and Omaha.  By the end of 2007, they plan to expand coverage northwest of Nebraska, along the southern border of Nebraska and the Sandhills.  They have national roaming partners, so they are a complete service.  They are comprised of Cingular, AT&T, and T-Mobile which combined actually gives them almost a larger network then either one of them.  There are times when Cingular roams on T-Mobile, T-Mobile roams on Cingular, and they roam on both.  Therefore by definition, he believed that Viaero might be larger. 

 

Mr. Hirsekorn stated there are several factors they use to determine a site of a tower.  One is to consider the coverage that site will put out.  They want to make sure their network reliability is strong, there is network connectivity and that the site is available.  Considerations for coverage are determined by proximity to a metropolitan area or city.  They are aware that presently there are times when a cell phone does not work in the basement of your house or in the middle of concrete and brick areas.  The closer the cell site, the better the existing coverage. The height of the tower is another factor. This comes into play more in the rural areas because the height will allow getting over hills and down in valleys.  In a flatter area, the height is not so important for coverage, but it is important for microwave backbone. The relationship to other cell sites in the network is also important. When there are multiple network sites in an area that overlap, it is important not to have them too close to each other. That overlapping defeats the purpose of that site and negates the benefit. 

 

There are three factors to consider on network reliability.  The first is the tower structure.  Their towers are designed to withstand a 95 mph wind, 24 hours a day, 7 days a week.  This would include 130-140 mph gusts of wind.  They are built to withstand a Level 2 or Level 3 tornado.  They believe that in those types of emergencies that is when people need their cell phones to work.  All of their sites have generators associated with them.  If the power goes down, the generators kick in and give power to the sites.

 

He explained how the microwave backbone operates.  The antennas on the tower “talk” to the cell phones.  In order to get that signal, it has to be taken back to the switch to get out into the “real world”.  This can be accomplished by fiber, copper (normal T-1’s) or microwave.  Viaero believes by having a microwave backup, gives them a stronger network for reliability.   They are in control of the microwave, not at the whim of a local telephone carrier that does not necessarily react promptly when called about a problem. 

 

Mr. Hirsekorn stated his team goes out after getting information from their engineers to find a site and a property owner who is willing to sell them the land on which to put up the tower.  When Viaero acquired the license from Nebraska Wireless, they already had three sites in Kearney.  As they continue to grow, they want to become a carrier that is involved in Kearney.  The property they have chosen for their first additional site is right across from the UNK campus. They have a plan to have a total of seven sites in Kearney, so three more would be planned for the future.  

 

Mr. Hirsekorn stated another requirement of zoning is a co-location requirement.  In the most stringent part of the City Code, it requires a quarter mile radius search requirement for residential areas.  They chose to use a one mile search area after investigating the other towers.  He provided information from his engineer, showing that the quarter mile is not sufficient and that is why those towers do not work. 

 

The height of 195 feet for this tower is due to the microwave on the tower which must have a line of sight to their existing system.  They have a tower in Elm Creek and 190 feet barely clears the topography between there and this proposed site.  If there are trees in between those which are 20 to 30 feet high, they might need to be cut down, but this is not likely to be done.  The co-location requirement requires two additional carriers on the tower and they have designed this tower to accommodate three additional carriers.  In looking at the other towers in Kearney, they found some were eliminated because they were full.  Overloading the existing towers could create a problem of them coming down. 

 

Viaero wants to come into Kearney as an additional carrier competitor.  In addition, they are putting in a technical response center, a retail office, a switching center and have had some talks with the Event Center.  The technical response center would have up to 20 full time employees stationed in Kearney.  The retail office would have 3 full time employees and 6 part time employees (mostly students). The switching center with an additional switch would employ up to 3 full time employees. The technical response center would be involved in the retail center.  The reason he stated that up to 20 employees would be needed is because as they increase the number of towers, they will need more people to go into the Sandhills and other locations.  Initially, there is not the need for the full 20, but will be built to accommodate that many people. 

 

Their intention is to be involved in the community and have discussed with the Event Center to be a sponsor and possibly put an additional cell site there.   As an example of wanting to be involved, Viaero recently became the lead sponsor for the Comstock Music series.  It will now be called the Viaero Wireless Comstock music series.  In Fort Morgan, they have events with the hospital, golf tournaments and a number of different chambers.

 

In answer to Council member Lammer’s question, according to Viaero’s engineers their future towers would have to be 100 feet or maybe less depending on the site. They definitely would not have another tall, loaded tower anywhere else. 

 

Council member Lear suggested that a shorter tower be placed in a less visible location and a taller tower placed outside the City limits to provide the line of site connectivity needed instead of the 195 foot tower.  Mr. Hirsekorn responded this was not feasible because one is County and one is City, which are two different jurisdictions and there are no guarantees that they would get approval outside the City.  They only want towers where they provide coverage. The additional cost of two towers would be prohibitive.  In order to construct a tower that is just a relay, it would be almost a $250,000.00 investment. 

 

Attorney Dan Lindstrom stated that if the intention of the Code is to avoid the proliferation of towers and keep them close to the customers to deal with the building penetration issues then a second tower would be a negative.  This is an economic opportunity for Kearney and would provide some competition for the existing cellular carriers.  They will provide new jobs, competition and a reliable network that operates in a different way that other networks do in an emergency.  They will be filling a gap of coverage which is important to Viaero.  This location does differ from situations they have looked at in the past. Technically, at the footprint of this location, it is zoned C-2.  Although it probably will not remain this way forever, it is surrounded by an agricultural and industrial zoning. 

 

Laurie Reissland from Coldwell Banker stated that when a representative from Viaero contacted her to help them acquire sites, she thought it would be like any other client.  She has had the opportunity to listen to them and hear some of the positive things they offer; such as, wireless communications that will benefit our hospital, schools, etc.  They would have the system in place using the towers and personnel to provide service in an emergency and be a true asset to our community.

 

Council member Lear asked what Ms. Reissland thought about the aesthetics of multiple towers, multiple locations, and heights of 195 feet instead of 80 feet since she is in the real estate business.  Ms. Reissland responded that locating these towers between houses of any price range would not be acceptable.  In working with Viaero, they did not consider a residential area, or where children might be playing in the area.  She believed this property was chosen after careful consideration and a lot of study because this site did not have those issues that would be a deterrent.  She was aware that UNK had the biggest complaint about this location.  She believed that with the nice building Viaero plans to put up in front of the tower that it will blend in with the surroundings. 

 

Council member Lammers stated in driving around town, he really had to search out the existing towers.   Most people’s line of vision is not that high and might not notice them unless they know where they are located. He also noticed there are towers located in some of the nicest areas of Kearney. 

 

Chancellor Doug Kristensen from UNK stated that he found it difficult to object to a new technology, especially one that offers new services.  He likes and uses his cell phone, his wireless lap top and GPS that is in his car because they are helpful.  He changes his cell phone every six months and there are always upgrades for his Blackberry which is new and better. The proposed tower is going to be in that location for a lot longer because it is not going to move or change.  There will not be people at this meeting from the neighborhood to object, because UNK is the neighborhood.  They own the land on all four sides of this particular proposed site. 

 

He presented each Council member UNK’s Master Facility Development Plan which has taken two years to devise.  They have gathered input from the campus and presented it to their Board of Regents and approved in January 2007. The plan envisions the next ten years of what they plan to do on campus. The plan that has been in the works for sometime has been for residential renewal.  For UNK to be a competitive campus they must go back and renew the appearance and the infrastructure of the living arrangement for the campus. They need to replace University Heights which is the married student housing. They need to increase their “laddered living” arrangements. They have traditional housing which has an individual room for roommates which is good for freshman. Ultimately, the next level of independence is an apartment type living like they have at University Heights. The plan is to move that facility closer to campus for the convenience to campus.  It also allows UNK to put them on to the campus network, their technology base and to maintain the facilities.  They have considered several possible locations for this housing. UNK presently owns Cranewood Motel, which circles the property proposed for the tower under the Conditional Use Permit.  They plan to build the new housing there or directly to the west in the cornfield.  There are other uses planned for the cornfield, but the residence properties are most likely to be placed there because it is the most convenient and makes the most sense. 

 

As they begin to develop this property, they need attractive surroundings.  They are in a competitive environment for attracting students. The major feature of their plan is to focus on appearance and attractiveness to the campus. They want to be a good neighbor and believe attractive infrastructure will help them do so.  At the present time, they object to the Conditional Use Permit of the abutting property to be used for this very tall tower, which is inconsistent to their plans.  Chancellor Kristensen also expressed a concern that there is a safety issue involved. This tower will be 4-5 times taller than any tower Kearney has put in a commercially zoned area.  It will hamper their ability to make those units marketable, visible and will have a negative connotation as they try to recruit students.

 

 He was in the building at NTV when the ice crashed off that tower and went through their roof, ceiling and hitting the desk.  Although that does not happen every year, it is a concern; not that the tower will fall over, but ice can fall.  These units will be in the “looming shadow” of this tower because their property is extremely close to where the tower is going to be.  This might cause them to build somewhere else that would be inconsistent with their current plan.  This plan has been one they have been putting together for two years.   They think it will be an aesthetic negative because the tower is going to be invisible.  It does not fit in their vision of what they think should be an aesthetically pleasing Highway 30 that we all want to beautify with landscaping. 

 

There concern is also for the future, there will be other co-locations in that area.  The reason the City does not zone for towers is because they are different.  They are unique, but have negative safety and aesthetic impacts for UNK.  A tower of this height has not been approved since the Telecommunications Act was passed in 1998. He thought there has to be other less intrusive areas to put a feasible tower and a business operation in Kearney. Another carrier came to UNK with the exact same request and they found another location for them. They were able to work with them and place it on the flagpole at Cope Stadium which most people do not know about.  Viaero is a fine company and they have been honorable and forthright in his dealings with them.   

 

Mayor Clouse asked if Chancellor Kristensen would have a similar type concern with a shorter tower which would be more conventional on campus.  He replied that shorter towers would be a whole lot easier to live with because they start to blend in with power poles, etc.  The scope and backbone size of this one is difficult for them to deal with. 

 

Council member Kearney asked since the University purchased the land around this parcel, he wondered why that land was not acquired.  Chancellor Kristensen stated the University’s budget is tight.  They acquired Cranewood Motel because they needed somewhere to put students while they were building resident halls on campus.  That stretched their budget to the maximum.  They do not have the luxury to go out and buy buffer property just to keep people out.  The cornfield has been on their inventory for a number of years.  The property in the bean field to the west was a gift from the State Legislature to the campus. Budgets being what they are, it is not one of those properties that they could afford to take “just in case.”

 

Council member Lear asked if there has been any consideration in offering a more non-centralized piece of their property.  Their footprint within the University's entire footprint is fairly small.  He asked if there have been any discussions about offering Viaero an alternate location in exchange for acquiring that property. Chancellor Kristensen answered there has been some discussion in that regard, but they basically have the need to put a retail store right there close to the tower.  That was the reason they have not been able to find another suitable area. 

 

Council member Lear asked if this was located right on the west edge of UNK property, would the objection still be the same.  Chancellor Kristensen stated if he was referring to the west edge of the cornfield, the objection would be the same because they are going to build an athletic field, track and tennis courts in that area.  As the University generates the next phase of that plan to move into that area, because it will be convenient for parking where the students can walk across the street.  The further south Viaero would go with the tower, the better for UNK and getting away from Highway 30.  

 

Council member Lammers stated that UNK had the opportunity over a long period of time to purchase this property long before this purchase agreement was struck with Viaero.  It seemed to him that if the University had great concern over what that property around them would be used for, there was a long enough period of time in which to arrange some negotiation to purchase the property.  Chancellor Kristensen stated if budget restraints would allow that, he would have done it. 

 

Council member Lammers stated that over the years there have been a number of plans for that property.  He recalled that 25 years ago, there was a plan to move Foster Field, but nothing ever transpired on that property.  He did not know if commercial opportunity should be held up that could take place when it has all been a plan to this point.  Chancellor Kristensen stated lots of things have transpired from plans over the years. They had a better opportunity to develop Foster Field four years ago in another area.  The next phase was to build new residence halls which are happening today.  The next phase is to replace University Heights because they are in critical need due to violation of the fire code because of no sprinkler system.  The most logical place to move it is to this property.  It is not wise management to slap things up so that they have something there.  They need to be judicious and make sure they are doing the things correctly. 

 

City Manager Michael Morgan stated this buffering property is zoned commercial and it is extremely difficult for any property owner to predict a Conditional Use Permit might go next door because it is not allowed by zoning.  To expect the University to buffer from something like a Conditional Use Permit was impossible for them to foresee.  It would be different if their argument was that they did not want anything of commercial zoning.  They knew that it is zoned commercial.  It does make it a little more difficult for property owners to justify the purchase of property when they had no idea that it could be used for something other than what it is zoned or something that would require a CUP.  If you would ask most citizens if they want to be protected from anything that requires a CUP, most people would say absolutely.  How could they predict that?  The Conditional Use Permit allows things to go anywhere in the community with approval, where zoning does not.    

 

Mayor Clouse stated the purpose for the Conditional Use Permit is to provide protection for the surrounding property owners.  This property is zoned properly.  The only protection that an adjacent property owner has is either a change in zoning which must come before the Council or a Conditional Use Permit. 

 

Chancellor Kristensen stated there is a lot commercial activity that occurs around the University that the Council never sees.  There is a strip mall that has been built south of the campus that is zoned commercial.  Those kinds of things come and go all the time.  It is not the commercial nature of this occurring; the issue is the tower.  If they were putting just a store front without a tower, he would have had no reason to come before the Council.

 

Council member Lammers stated that he was having a hard time seeing on a 103 acre tract (the tower and storefront will sit on less than an acre) where the dorms are built back off the road that are well away from the tower that it would create a safety concern.  There is a lot of room on 103 acres and those rooftops will be a long way from the tower itself.  He did not see the problem of working around that.  Chancellor Kristensen responded that it is just not as good because the ideal portion for their plan is to have them identifiable close to the road and closer for the students to walk across to the College of Business and Technology.   Because Viaero wants an exception, the University would have to alter their plan which he believes makes a negative impact on attracting students.  Students have many choices of where to live.  The tower will be close to their parking lot and there is an issue of vehicles being in close proximity, as well as people living there. 

 

Jan Parker, 3635 Cottonmill Avenue, stated he and his wife have been the owners of this piece of property for 20 years.  He and his wife placed many calls to Randy Haack at UNK from September 1, 2005 to December 10, 2005 wanting to talk about the possible ways UNK could purchase this property. Mr. Haack had indicated to him that UNK wanted the property, but he had to talk to some other people. On December 10, 2005, Mr. Haack’s secretary called him and stated UNK was not interested because they did not have the money. At that point his attorney, Jerry Grossart, contacted some people he knew at NU Foundation to see if they would be willing to finance it for the University. They also replied that they were not interested.  Mr. Parker believed he went out of his way to offer it to the University first.    

 

Attorney Dan Lindstrom stated that we all have budgetary restraints and we make plans and we change plans all the time.  He understands all the good work that has been done by the University to create a plan which is painful and takes a lot of time.  It does not mean, however, that plan is set in stone.  It is not the same type of property that has been talked about in commercial zones and other applications for towers. The reason that we have a Conditional Use Permit process in our Code is because these applications have to be taken on their own merit, one at a time. This does not set a precedent for the future, or bound by any precedents that may have been set in the past. This is an application that stands firmly on its own. It is unfortunate that the University was unable to or chose not to purchase the property.  He was unaware until he looked at the chart that the City Planner prepared of the number of towers that are in this community. They simply disappear from view, just like the telephone poles, power poles and other infrastructures we have that provide services, like the water towers. All of those things are necessary to make the things we need work. The Kearney City Code provides a preference for towers to be placed in public property.  This footprint is not public property because it is owned by a private individual, but it is surrounded by a lot of public property.

 

Moved by Lammers seconded by Lear to close the hearing and approve the Application submitted by NE COLORADO, INC., dba “Viaero Wireless” (Applicant) and ZAN, LLC (Owner) for a Conditional Use Permit to construct and locate a retail store, 195-foot self-supporting telecommunications tower, backup generator, and a 9’x15’x8.5’ building to house supporting electronic hardware on property zoned “District C-2, Community Commercial District” and described as a tract of land being part of Lots 7 and 8 and part of the vacated street abutting Lot 8 on the west, all in Lincoln Way Villa Plots, an addition to the City of Kearney, Buffalo County, Nebraska (1920 West 24th Street).

 

Council member Buschkoetter stated that this is a difficult issue.  He worked at NTV for ten years and from time to time there were issues of ice from the tower.  They parked at the opposite end of the parking lot when those conditions existed.  Safety concerns are not a major issue.  Aesthetics is the issue to be concerned about.  He is proud of the campus and wants it to look beautiful and UNK is a very important component within the community.  He was not taking the impact that this tower will have on the UNK campus lightly.  He was not convinced that the harm done to the campus would out-weigh a $250,000.00 additional tower that might be necessary for Viaero Wireless if they want to serve this community.  He is fairly comfortable in looking at this on a case by case basis.  This project has been presented in such a way that it substantiates the need for the 195 foot tower.

 

Council member Lear stated that one of the things perceived from this discussion is that towers are going to continue to be a growing element in the community and are necessary.  One of the things he did not like is that they are going to look at each tower application on a one by one basis.  He suggested that perhaps with the help of a consulting firm, the City look at some preferred designated zones that companies coming to Kearney could utilize.  He also went around to all the tower locations in town and visually could not tell the difference in the heights.  He wants to be supportive of the University of Nebraska in Kearney and their mission and goals of educating students and bringing them to Kearney. He did believe that Viaero presented a reasonable plan and did not think the impact on the surrounding area is substantially negative.  The benefits to Kearney are substantially positive.

 

Mayor Clouse stated that the plans that Viaero presented are solid and they are an excellent company. The Conditional Use Permit process is there to evaluate the location and that Viaero does not have the inherit right to locate there because it works for them.  He based his decision very heavily on what the neighbors have had to say in this issue. In this case, the neighbors (UNK) have spoken out quite strongly in opposition to this.  Viaero has an alternative, although an expensive alternative, but an alternative nonetheless. 

 

Roll call resulted as follows: Aye: Lammers, Kearney, Buschkoetter, Lear.  Nay: Clouse. Motion carried.

 

IV.    CONSENT  AGENDA

 

Moved by Lear seconded by Buschkoetter that Subsections 1 through 14 of Consent Agenda Item IV be approved. Roll call resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

1.         Approve Minutes of Regular Meeting held March 13, 2007.

 

2.         Approve the following Claims: 3CMA $350.00 smcs; AT&T $139.34 smcs; Ace Hardware $117.32 smcs; ACG Downtown Newsletter $206.50 smcs; Advance Auto Parts $50.48 smcs; Ahrens,C $11.15 smcs; Alamar Uniforms $950.17 smcs; Albright,D $29.49 ps; Alexander Hamilton $159.24 smcs; Al-Jon Mfg $104.74 smcs; All Seasons Uniforms $219.79 smcs; Allied Electronics $184.84 smcs; Alltel $2,386.54 smcs; Amazon Credit Plan $611.01 smcs; Amer Electric $148.31 smcs; Amer Fence $1,938.75 smcs; Amsan $840.67 smcs; Antelope Newspaper $399.00 smcs; Appliance Service Center $419.95 smcs; Arby's $17.62 smcs; ASCAP $285.17 ps; Ashworth $60.61 smcs; Ask Supply $381.84 smcs; Aurora Co-op $133.20 smcs; B&B Auto Glass $149.00 smcs; Bacon,A $25.71 smcs; Baker & Taylor $4,086.71 smcs; Barney Abstract $180.00 co; BBC Audiobooks $57.00 smcs; Beacon Athletics $7,070.00 smcs; Bluecross Blueshield $67,702.52 smcs; Bob's Super Store $139.80 smcs; Bookmark $154.97 smcs; Bosselman Energy $5,681.00 smcs; Bowman,M $36.75 smcs; Boyd's Full Service $47.80 smcs; Broadfoot's $40.00 smcs; Buffalo Co Attorney $18,750.00 smcs; Buffalo Co Court $18,204.00 smcs,co; Buggy Bath Car Wash; $8.50 smcs; Builders Warehouse $1,732.49 smcs; Cabela's $184.59 smcs; Capstone Press $5,097.00 smcs; Cash-Wa Distributing $332.31 smcs; CDW Govt $1,639.58 smcs,co; Centaur Enterprises $11.13 smcs; Central Electronics $15.95 smcs; Central Fire & Safety $30.75 smcs; Central Hydraulic Systems $3,608.01 smcs; Central NE Bobcat $111.35 smcs; Chappells Restaurant $50.00 smcs; Charlesworth & Associates $787.50 smcs; Charter $54.99 smcs; Chemguard $757.06 smcs; Circuit City $345.03 smcs; City Glass $535.38 smcs; City of Ky $79,260.78 smcs,ps; Clkbankcom $39.95 smcs; CMI $95.31 smcs; College Savings Plan of NE $75.00 ps; Commontimecom $956.25 smcs; Computer Hardware $142.00 smcs; Construction Rental $1,018.37 co; Copycat Printing $884.34 smcs; Corp Exp Doc & Print $216.85 smcs; Crossroads Ford $977.06 smcs; Culligan $221.00 smcs; Cummins Central Power $490.90 smcs; DARE America $256.71 smcs; Dawson PPPD $10,584.95 smcs; Dell $8,572.82 smcs,co; Dent Popper $1,180.00 smcs; Dept of Aeronautics $995.00 ds; Diamond Sales $27.80 smcs; Divotech Golf $1,112.58 smcs; Dugan Business Forms $452.09 smcs; Dultmeier $33.20 smcs; Dutton Lainson $115.71 smcs; Eakes $6,897.25 smcs; Earl May $16.99 smcs; ECI Gotomypccom $144.57 smcs; Ecolab $30.00 smcs; Ed M Feld Equipment $86.00 smcs; EDM Equipment $362.09 smcs; Electrotechnics $100.00 smcs; Elliott Equipment $174.69 smcs; Envirotech $13,471.42 smcs; Eustis Body Shop $2,467.46 smcs; Eynetich,P $2.00 smcs; Fact on File Publications $206.56 smcs; Facts on File News $116.90 smcs; Fairbanks Int'l $683.57 smcs; Farmers Union $53.12 smcs; Fast Mart $173.67 smcs; Fastenal $315.17 smcs; Firestore $457.00 smcs; Flink Co $271.28 smcs; Footjoy $1,816.40 smcs; Fore Reservations $1,100.00 smcs; Frontier $8,140.34 smcs; G.Neil $59.99 smcs; Galls $1,263.66 smcs; Garrett Tires $983.68 smcs; Giesler,B $19.72 smcs; Gilliming,R $25.00 smcs; Gordon's Small Engine $266.14 smcs; Grainger $647.60 smcs; Grand Central IGA $20.50 smcs; Great American Outdoor $227.80 smcs; Green-Save $372.78 smcs; Guidepost $16.94 smcs; H&H Distributing $789.69 smcs; Hach $404.01 smcs; Harshbarger,K $8.55 ps; HDSWW $4,251.46 smcs; Hendrickson,M $78,455.50 co; HHS Regulation & Licensure $80.00 smcs; Hobby-Lobby $42.99 smcs; Holiday Inn-Omaha $195.70 smcs; Holmes Plumbing $1,171.62 smcs; Hometown Leasing $552.54 smcs; Hornady $2,133.50 smcs; Hotsy Equipment $379.96 smcs; HSUS Animal Care $150.00 smcs; IBM $212.87 smcs; ICMA RC $2,783.54 ps; Independent Travel Broker $250.00 smcs; Information Publications $82.00 smcs; InteliCom Computer $1,162.00 smcs; IRS $92,828.28 ps; Interstate All Battery $281.22 smcs; Int'l Assoc of Fire Chiefs $170.00 smcs; Int'l Code Council $177.00 smcs; IPEX $1,000.00 co; Jack Lederman $693.08 smcs; Jack's Small Engines $35.70 smcs; Jack's Uniforms $335.59 smcs; Jelinek,R $457.50 smcs; Johnstone Supply $279.71 smcs; K&K Parts $290.01 smcs; Ky Chamber Comm $35.00 smcs; Ky Clinic $2,329.00 ps; Ky Hub $2,691.78 smcs; Ky Humane Society $2,400.00 smcs; Ky Implement $2,363.78 smcs; Ky Literacy Council $125.00 smcs; Ky Warehouse $943.30 smcs; Ky Winlectric $7,360.00 co; Ky Winnelson $750.05 smcs; Ky Yamaha $543.04 smcs; Kelly Electric $86.66 smcs; Kelly Supply $962.00 smcs; Kenesaw Printing $95.90 smcs; Killion Motors $571.97 smcs; Konica Minolta $100.12 smcs; L S and Sons $523.14 smcs; Laser Technology $2,995.00 smcs; Laughlin,K $180.00 ps; Lawson Products $485.27 smcs; Lerner Publishing $1,065.00 smcs; Liberty Cleaners $71.36 smcs; Linweld $765.62 smcs; Lips Printing Service $357.70 smcs; Little Caesars $35.00 smcs; Loves Country $28.08 smcs; Machines and Media $118.00 smcs; Magic Cleaning $660.00 smcs; Mail Express $50.78 smcs; Marlatt Machine Shop $1,346.85 smcs; Marriott Cornhusker Hotel $255.88 smcs; Matthew Bender $285.46 smcs; May,J $127.50 smcs; McDonald's $21.40 smcs; McKee,E $13.77 smcs; McMaster-Carr $612.52 smcs; Menards $1,400.44 smcs; Mid States Supply $121.77 smcs; Mid-Kan Blueline $45.98 smcs; Midland Molding $18.00 smcs; Midway Chrysler $88.56 smcs; Midwest Laboratories $101.65 smcs; Midwest Turf $789.60 smcs; Miller & Associates $72,189.49 ps,co; Miller Signs $1,462.50 smcs; Mirror Image $50.00 smcs; Missouri Western State $1,575.00 smcs; Momar $626.22 smcs; Moonlight Embroidery $814.00 smcs; Mr. Automotive $3,441.90 smcs; MSC Industrial Supply $443.03 smcs; MSI Systems Integrators $3,600.00 co; Municipal Supply $31,716.60 smcs; Murphy Tractor $3,260.04 smcs; NALEFI $20.00 smcs; Napa All Makes $1,972.06 smcs; Nat'l Crime Prevention $316.78 smcs; NCS Equipment $293.80 smcs; NE Ass'n of Airport $200.00 smcs; NE Business Banking $89,720.75 ds; NE Child Support $2,388.43 ps; NE Dept of Revenue $26,514.73 smcs; NE Soc of Fire Service $107.87 ps; NE St Volunteer Fire $1,350.00 smcs; NE Truck Center $630.90 smcs; NE Library Ass'n $50.00 ps; NE Nat'l Bank $115,718.00 smcs; NEland Distributors $760.60 smcs; NELTAP $60.00 smcs; Neopost $8,000.00 smcs; NeRPA Aquatics $60.00 smcs; Network Solutions $34.99 smcs; Nielsen,T $5.94 smcs; Norco-Boise $164.10 smcs; Norm's Plumbing $125.63 smcs; Northwestern Energy $28,828.85 smcs; Nova Fitness Equipment $11,916.90 co; NSC Northern Safety $36.60 smcs; Office Max $1,205.78 smcs,co; Officenet $658.97 smcs; O'Keefe Elevator $180.00 smcs; Olive Software $3,000.00 smcs; Omaha Fixture $7.60 smcs; O'Reilly Auto $2,015.17 smcs; Orscheln $495.39 smcs,co; Outdoor Recreation $6,526.00 smcs; Overhead Door $136.38 smcs; Paramount $196.64 smcs; Paraprofessional Section $11.00 smcs; Pasadena Networks $516.00 co; Pat's Plumbing $350.00 co; Patterson,B $96.16 smcs; Paypal $5.50 smcs; PBD Ala-Graph Editions $47.50 smcs; Pep Co $102.20 smcs; Pepsi Cola $419.70 smcs; Perkins $95.28 smcs; Ping $100.07 smcs; Pioneer $2,315.50 smcs; Platte Valley Comm $953.47 smcs; Plaza Hotel $224.70 smcs; Prestige Flag $441.85 smcs; Presto-X $149.00 smcs; Quill $329.22 smcs; R&R Products $413.04 smcs; Radio Shack $160.53 smcs; Random House $124.00 smcs; RCL Products $163.81 smcs; Recognition Unlimited $17.85 smcs; Recorded Books $297.05 smcs; Redy Battery $29.22 smcs; Rolfes,J $40.00 smcs; Rollins,J $18.64 smcs; Roper's Radiator $20.00 smcs; Roth,K $59.38 ps; S A Foster Lumber $36.55 smcs; Sahling Kenworth $248.76 smcs; Salter,J $55.00 smcs; Sapp Brothers $19,402.50 smcs; Sashas Bead and Toggles $49.90 ps; Schaben Industries $199.20 smcs; Schloss Engineered Equip $479.92 smcs; See Clear Cleaning $2,800.00 smcs; Shell Oil $30.00 smcs; Sherwin Williams $86.51 smcs; Siemens Energy and Auto $658.06 smcs; Sign Center $100.00 smcs; Sirchie $150.51 smcs; Sjafrajda,J $8.53 smcs; Skillpath Seminars $285.33 smcs; Snap-On Tools $43.25 smcs; Softchoice $401.25 co; Solid Waste Agency $66.96 co; Stigge,D $145.00 smcs; String Beans $32.25 smcs; Suburban Fire Protection $1,925.81 smcs; Subway $20.50 smcs; Superior Outdoor Power $596.30 co; Superior Signals $1,020.10 smcs; Target $163.53 ps; Technical Maintenance $34,650.00 co; Tee's Plus $382.13 smcs; Teledyne $926.00 smcs; Telephone Systems of NE $22.21 smcs; Telewire $66.89 smcs; Tessco $384.34 co; Thompson Publishing $299.00 smcs; Thompson,J $36.75 smcs; Thompson,K $10.00 smcs; Thomson Gale $193.82 smcs; Tirechain $92.79 smcs; Titelist $74.50 smcs; Tractor-Supply $583.22 smcs; Tri City Outdoor Power $2,095.44 smcs,co; Tri-Cities Group $287.00 smcs; US Postmaster $468.00 smcs; Unique Management $277.45 smcs; UNL Center Applied Rural $30.00 smcs; UNL IANR Comm and Info $61.53 smcs; Upbeat $1,010.59 co; UPS Store $38.87 smcs; USA Blue Book $176.99 smcs; USPS $63.07 smcs; Valley Forklift Sales $29.75 smcs; Van Diest Supply $5,041.83 smcs; Wal-Mart $2,692.64 smcs,co; Walters,R $70.00 smcs; Watchguard Video $10,040.00 co; West Co $1,114.85 smcs; Wilke Donovans $329.81 smcs; Wilkins Hinrichs Stober $7,600.00 co; Williams,M $166.15 smcs; Williamson-Dickie $82.36 ps; World Cycling $39.20 smcs; WPCI $478.00 ps; Young's $18.19 smcs; Zimmerman Printers $30.00 smcs; Payroll Ending 03-17-2007 -- $283,162.67.  The foregoing schedule of claims is published in accordance with Section 19-1102 of the Revised Statutes of Nebraska, and is published at an expense of $_________ to the City of Kearney.

 

3.         Receive recommendations of Planning Commission and set April 10, 2007 at 7:00 p.m. as date and time for hearing on those applications where applicable.

 

4.         Approve the request submitted by the UNK Loper Programming and Activities Council to conduct the 5th Annual Fun 5K Race/Walk on April 21, 2007 beginning at 9:00 a.m. The route will begin at UNK Thomas Hall on campus, west on the sidewalk parallel with 25th Street, north on the sidewalk of Lots 14a parallel with 15th Avenue, east in the right lane of eastbound traffic on University Drive, south on the sidewalk parallel with 9th Avenue, west on the sidewalk parallel with 25th Street, north and east in the right lane of the eastbound traffic on University Drive (near softball fields), south into the northwest entrance to the UNK Football field.

 

5.         Approve the application for a Special Designated License submitted by LEROY SMITH & BARBARA YENDRA, dba "George Spencer Vineyard & Tasting Room" in connection with their Class ID-62962 liquor license to dispense wine inside a tent which will be enclosed by metal panels with green plastic outside fenced area located in the parking lot located north of the Museum of Nebraska Art, 2401 Central Avenue, on May 5, 2007 from 10:00 a.m. until 10:00 p.m. for the Nebraska Wine & Jazz Festival subject to the City receiving the required Certificate of Insurance.

 

6.         Approve the application for a Special Designated License submitted by JOYCE SEARS, dba “Cedar Hills Vineyard & Gardens” in connection with its Class C-73472 liquor license to dispense wine inside a tent which will be enclosed by metal panels with green plastic outside fenced area located in the parking lot located north of the Museum of Nebraska Art, 2401 Central Avenue, on May 4, 2007 from 3:00 p.m. until 10:00 p.m. for the Nebraska Wine & Jazz Festival subject to the City receiving the required Certificate of Insurance.

 

7.         Approve the request submitted by the Kearney Police Department/Buffalo County Sheriff’s Office to temporarily block off Avenue B from North Railroad Street to 21st Street for the auto auction to be held on April 14, 2007 from 8:00 a.m. until 5:00 p.m.

 

8.         Accept the Warranty Deed granted to the City of Kearney by Arrowhead Village Condominium in connection with the 2007 Part II Improvements – 39th Street from 2nd Avenue to Pony Express Road consisting of Paving Improvement District No. 2006-908 for 39th Street from Pony Express Road west to the east lot line of Lot 1, Block 1, Windsor Estates Fifth Addition and approve Resolution No. 2007-44.

 

RESOLUTION NO. 2007-44

 

            WHEREAS, City Council authorized the City Manager and City Attorney to acquire the following tracts of property: a tract of land being part of Lot 3, St. James Subdivision, a subdivision to the City of Kearney, Buffalo County, Nebraska and more particularly described as follows: beginning at the southeast corner of Lot 3, said point being on the north line of 39th Street, a street in the City of Kearney; thence northerly on the east line of said Lot 3 a distance of 17.0 feet; thence westerly and parallel with the north line of said 39th Street a distance of 36.6 feet; thence deflecting Left 90°00’ a distance of 5.0 feet; thence deflecting right 90°00’ a distance of 121.4 feet to a point on the west line of Lot 3; thence southerly on the west line of said Lot 3 a distance of 12.0 feet to the southwest corner of Lot 3, said point being on the north line of 39th Street; thence easterly on the north line of said 39th Street a distance of 158.0 feet to the point of beginning, containing 2,071 sq. ft. (0.05 acres) more or less; AND a tract of land being part of Lot 2, St. James Subdivision, a subdivision to the City of Kearney, Buffalo County, Nebraska and more particularly described as follows: beginning at the southeast corner of Lot 2, said point being on the north line of 39th Street, a street in the City of Kearney; thence northerly on the east line of said Lot 2 a distance of 12.0 feet; thence westerly and parallel with the north line of said 39th Street a distance of 105.1 feet; thence deflecting right 90°00’ a distance of 5.0 feet; thence deflecting Left 90°00’ a distance of 53.4 feet to a point on the west line of Lot 2, thence southerly on the west line of said Lot 2 a distance of 17.0 feet to the southwest corner of Lot 2, said point being on the north line of 39th Street; thence easterly on the north line of said 39th Street a distance of 158.5 feet to the point of beginning, containing 2,183 sq. ft. (0.05 acres) more or less; AND a tract of land being part of Lot 1, St. James Subdivision, a subdivision to the City of Kearney, Buffalo County, Nebraska and more particularly described as follows:  beginning at the southeast Corner of Lot 1, said point being on the north line of 39th Street, a street in the City of Kearney; thence northerly on the east line of said Lot 1 a distance of 10.0 feet; thence deflecting left 88°00’ a distance of 61.2 feet to a point 12.0 feet north of the north line of said 39th Street; thence deflecting left 01°57; and parallel with north line of said 39th Street a distance of 113.9 feet to a point on the west line of Lot 1; thence southerly on the west line of said Lot 1 a distance of 12.0 feet to the southwest corner of Lot 1, said point being on the north line of 39th Street; thence easterly on the north line of said 39th Street a distance of 175.0 feet to the point of beginning, containing 2,076 sq. ft. (0.05 acres) more or less, all in Buffalo County, Nebraska.

            WHEREAS, Arrowhead Village Condominium has granted to the City of Kearney a Warranty Deed for the following tracts of property: a tract of land being part of Lot 3, St. James Subdivision, a subdivision to the City of Kearney, Buffalo County, Nebraska and more particularly described as follows: beginning at the southeast corner of Lot 3, said point being on the north line of 39th Street, a street in the City of Kearney; thence northerly on the east line of said Lot 3 a distance of 17.0 feet; thence westerly and parallel with the north line of said 39th Street a distance of 36.6 feet; thence deflecting Left 90°00’ a distance of 5.0 feet; thence deflecting right 90°00’ a distance of 121.4 feet to a point on the west line of Lot 3; thence southerly on the west line of said Lot 3 a distance of 12.0 feet to the southwest corner of Lot 3, said point being on the north line of 39th Street; thence easterly on the north line of said 39th Street a distance of 158.0 feet to the point of beginning, containing 2,071 sq. ft. (0.05 acres) more or less; AND a tract of land being part of Lot 2, St. James Subdivision, a subdivision to the City of Kearney, Buffalo County, Nebraska and more particularly described as follows: beginning at the southeast corner of Lot 2, said point being on the north line of 39th Street, a street in the City of Kearney; thence northerly on the east line of said Lot 2 a distance of 12.0 feet; thence westerly and parallel with the north line of said 39th Street a distance of 105.1 feet; thence deflecting right 90°00’ a distance of 5.0 feet; thence deflecting Left 90°00’ a distance of 53.4 feet to a point on the west line of Lot 2, thence southerly on the west line of said Lot 2 a distance of 17.0 feet to the southwest corner of Lot 2, said point being on the north line of 39th Street; thence easterly on the north line of said 39th Street a distance of 158.5 feet to the point of beginning, containing 2,183 sq. ft. (0.05 acres) more or less; AND a tract of land being part of Lot 1, St. James Subdivision, a subdivision to the City of Kearney, Buffalo County, Nebraska and more particularly described as follows:  beginning at the southeast Corner of Lot 1, said point being on the north line of 39th Street, a street in the City of Kearney; thence northerly on the east line of said Lot 1 a distance of 10.0 feet; thence deflecting left 88°00’ a distance of 61.2 feet to a point 12.0 feet north of the north line of said 39th Street; thence deflecting left 01°57; and parallel with north line of said 39th Street a distance of 113.9 feet to a point on the west line of Lot 1; thence southerly on the west line of said Lot 1 a distance of 12.0 feet to the southwest corner of Lot 1, said point being on the north line of 39th Street; thence easterly on the north line of said 39th Street a distance of 175.0 feet to the point of beginning, containing 2,076 sq. ft. (0.05 acres) more or less, all in Buffalo County, Nebraska.

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that the Warranty Deed be and is hereby accepted.

            PASSED AND APPROVED THIS 27TH DAY OF MARCH, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

9.         Accept the Warranty Deed granted to the City of Kearney by St. James Church in Kearney in connection with the 2007 Part II Improvements – 39th Street from 2nd Avenue to Pony Express Road consisting of Paving Improvement District No. 2006-908 for 39th Street from Pony Express Road west to the east lot line of Lot 1, Block 1, Windsor Estates Fifth Addition and approve Resolution No. 2007-45.

 

RESOLUTION NO. 2007-45

 

            WHEREAS, City Council authorized the City Manager and City Attorney to acquire a tract of property described as follows: a tract of land being part of Lot 58, Northwest Quarter of School Section Addition, an addition to the City of Kearney, Buffalo County, Nebraska and more particularly described as follows: beginning at a point 33.0 feet south of the northwest corner of Lot 58, said point being on the south line of 39th Street, a street in the City of Kearney; thence southerly on the west line of said Lot 58 a distance of 10.9 feet; thence deflecting left 125°53’ a distance of 18.5 feet to a point on the south line of 39th Street; thence westerly on the south line of said 39th Street a distance of 15.0 feet to the point of beginning, containing 82 square feet (0.002 acres) more or less, all location in Buffalo County, Nebraska.

            WHEREAS, St. James Church of Kearney has granted to the City of Kearney a Warranty Deed for a tract of property described as follows: a tract of land being part of Lot 58, Northwest Quarter of School Section Addition, an addition to the City of Kearney, Buffalo County, Nebraska and more particularly described as follows: beginning at a point 33.0 feet south of the northwest corner of Lot 58, said point being on the south line of 39th Street, a street in the City of Kearney; thence southerly on the west line of said Lot 58 a distance of 10.9 feet; thence deflecting left 125°53’ a distance of 18.5 feet to a point on the south line of 39th Street; thence westerly on the south line of said 39th Street a distance of 15.0 feet to the point of beginning, containing 82 square feet (0.002 acres) more or less, all location in Buffalo County, Nebraska.

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that the Warranty Deed be and is hereby accepted.

            PASSED AND APPROVED THIS 27TH DAY OF MARCH, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

10.        Approve Change Order No. 1 showing an increase in the amount of $10,884.84 and Application and Certificate for Payment No. 2 in the amount of $25,420.36 submitted by Blessing, LLC and approved by Miller & Associates for the 2006 Part V Improvements – Bid B consisting of Paving Improvement District No. 2006-911 for 60th Street from 4th Avenue to the west line of Block 3, Spruce Hollow Estates and approve Resolution No. 2007-46.

 

RESOLUTION NO. 2007-46

 

WHEREAS, Blessing, LLC of Kearney, Nebraska has performed services in connection with the 2006 Part V Improvements – Bid B consisting of Paving Improvement District No. 2006-911 for 60th Street from 4th Avenue to the west line of Block 3, Spruce Hollow Estates, and the City's engineer, Miller & Associates, have filed with the City Clerk Change Order No. 1 showing an increase in the amount of $10,884.84 as shown on Exhibit “A” attached hereto and made a part hereof by reference; and

WHEREAS, the Engineer and Contractor have filed with the City Clerk Application and Certificate for Payment No. 2 in the amount of $25,420.36 as shown on Exhibit “B” attached hereto and made a part hereof by reference and as follows:

 

Original Contract Sum	$290,138.00
Change Order No. 1 (3-27-2007)	+  10,884.84
Contract Sum To Date	301,022.84
Gross Amount Due	126,466.84
Retainage	12,646.68
Amount Due to Date	113,820.16
Less Previous Certificates for Payment	88,399.80
Current Payment Due	$  25,420.36

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, and hereby find and determine that Change Order No. 1, as shown on Exhibit “A”, and Application and Certificate for Payment No. 2, as shown on Exhibit “B”, be and are hereby accepted and approved.

            PASSED AND APPROVED THIS 27TH DAY OF MARCH, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

11.        Approve Change Order No. 2 showing an increase in the amount of $7,233.00 submitted by Kayton Electric and approved by Kirkham Michael Consulting Engineers in connection with the Kearney Lighting Project – Runway 13/31, Taxiway 'B', 'C', 'D', 'E', and 'F' (AIP Project: 3-31-0045-17) and approve Resolution No. 2007-47.

 

RESOLUTION NO. 2007-47

 

WHEREAS, Kayton Electric Inc. has performed services in connection with the Kearney Lighting Project - Runway 13/31, Taxiway 'B', 'C', 'D', 'E', and 'F' (AIP Project: 3-31-0045-17) at the Kearney Regional Airport, and have filed Change Order No. 2 showing an increase to the contract sum in the amount of $7,233.00, as shown on Exhibit “A”, attached hereto and made a part hereof by reference:

 

Original Contract Sum	$436,557.30
Change Order No. 1 (1-9-2007) Increase working days to 65 from 50 Spring start date of April 2, 2007 for airfield construction	0.00
Change Order No. 2 (3-27-2007)	+    7,233.00
Contract Sum To Date	$443,790.30

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, and hereby find and determine that Change Order No. 2 as shown on Exhibit “A” be and is hereby accepted and approved.

            PASSED AND APPROVED THIS 27TH DAY OF MARCH, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

12.        Approve Application and Certificate for Payment No. 6 in the amount of $101,731.52 submitted by Sargent Irrigation, Inc. and approved by Miller & Associates for the Northwest Well Field Development – Phase I (Municipal Water Wells) and approve Resolution No. 2007-48.

 

RESOLUTION NO. 2007-48

 

            WHEREAS, Sargent Drilling Co. of Broken Bow, Nebraska has performed services in connection with the Northwest Well Field Development; Phase I – Municipal Water Wells, and the City's engineer, Miller & Associates, have filed with the City Clerk Change Application and Certificate for Payment No. 6 in the amount of $101,731.52 as shown on Exhibit “A” attached hereto and made a part hereof by reference and as follows:

 

Original Contract Sum	$2,364,294.50
Contract Sum to Date	2,364,294.50
Gross Amount Due	936,014.46
Retainage	93,601.45
Amount Due to Date	842,413.01
Less Previous Certificates for Payment	740,681.49
Current Payment Due	$   101,731.52

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, and hereby find and determine that Application and Certificate for Payment No. 6, as shown on Exhibit “A”, be and is hereby accepted and approved.

            PASSED AND APPROVED THIS 27TH DAY OF MARCH, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

13.        Approve the application for a Special Designated License submitted by NIGHT LIFE CONCEPTS, INC., dba “Cunningham’s Journal” in connection with their Class CK-59311 liquor license to dispense beer, wine and distilled spirits in the Chuckwagon Room at the Great Platte River Road Archway Monument, 3060 East 1st Avenue, on May 2, 2007 from 5:00 p.m. until 10:00 p.m. for the Nebraska Economic Developers Dinner.

 

14.        Approve the Agreement for Services between the City of Kearney, the County of Buffalo and the Economic Development Council of Buffalo County and approve Resolution No. 2007-41.

 

RESOLUTION NO. 2007-41

 

            WHEREAS, the City of Kearney, Nebraska and the Economic Development Council of Buffalo County desire to enter into an agreement for the purpose of promoting economic development in the City of Kearney, Nebraska and its immediate business, industrial and manufacturing environments.

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that the President be and is hereby authorized and directed to execute the Agreement for Services on behalf of the City of Kearney. A copy of said Agreement is attached hereto and made a part hereof by reference.

            PASSED AND APPROVED THIS 27TH DAY OF MARCH, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

V.    CONSENT  AGENDA  ORDINANCES

 

None.

 

VI.    REGULAR  AGENDA

 

ORDINANCE NO. 7330 – CONDITIONAL USE PERMIT – VIAERO WIRELESS (PERTAINS TO PUBLIC HEARING 1)

 

Moved by Buschkoetter seconded by Clouse to remove from the table Ordinance No. 7330 granting a Conditional Use Permit to NE COLORADO, INC., dba “Viaero Wireless” (Applicant) and ZAN, LLC (Owner) to locate a retail store, 195-foot self-supporting telecommunications tower, backup generator, and a 9’x15’x8.5’ building to house supporting electronic hardware on property zoned “District C-2, Community Commercial District” and described as a tract of land being part of Lots 7 and 8 and part of the vacated street abutting Lot 8 on the west, all in Lincoln Way Villa Plots, an addition to the City of Kearney, Buffalo County, Nebraska (1920 West 24th Street).  Roll call resulted as follows: Aye: Clouse, Lear, Lammers, Kearney, Buschkoetter.  Nay: None.  Motion carried.

 

Council Member Kearney introduced Ordinance No. 7330, being Subsection 1 of Agenda Item VI to grant a Conditional Use Permit to NE COLORADO, INC., dba “Viaero Wireless” (Applicant) and ZAN, LLC (Owner) to locate a retail store, 195-foot self-supporting telecommunications tower, backup generator, and a 9’x15’x8.5’ building to house supporting electronic hardware on property zoned “District C-2, Community Commercial District” and described as a tract of land being part of Lots 7 and 8 and part of the vacated street abutting Lot 8 on the west, all in Lincoln Way Villa Plots, an addition to the City of Kearney, Buffalo County, Nebraska (1920 West 24th Street), and moved that the statutory rules requiring ordinances to be read by title on three different days be suspended and said ordinances be considered for passage on the same day upon reading by number only, and then placed on final passage and that the City Clerk be permitted to call out the number of the ordinance on its first reading and then upon its final passage.  Council Member Lammers seconded the motion to suspend the rules. President of the Council asked for discussion or if anyone in the audience was interested in the ordinance. No one responded. Clerk called the roll which resulted as follows: Aye: Buschkoetter, Lear, Lammers, Kearney. Nay: Clouse. Motion to suspend the rules having been concurred in by three-fourths of the City Council, said motion was declared passed and adopted. City Clerk read Ordinance No. 7330 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Buschkoetter, Lear, Lammers, Kearney. Nay: Clouse. Motion carried. Ordinance was read by number.

 

Moved by Lammers seconded by Lear that Ordinance No. 7330 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Lear, Lammers, Kearney, Buschkoetter. Nay: Clouse. Motion carried.

 

By reason of the roll call voted on the first reading and final passage of the ordinance, Ordinance No. 7330 is declared to be lawfully passed and adopted upon publication in pamphlet form and made available to the public at the Office of the City Clerk, the Kearney Police Department and the Kearney Public Library.

 

ORDINANCE NO. 7324 – FRANCHISE AGREEMENT TO CABLE NEBRASKA

 

Mayor Clouse stated the applicant has withdrawn from consideration Ordinance No. 7324 granting a non-exclusive franchise to Cable Nebraska, LLC to install, operate, maintain or otherwise locate telecommunication facilities in the public way within the City on certain poles that are maintained as part of Kearney’s electrical system with Nebraska Public Power District. Therefore, no action was necessary.

 

ORDINANCE NO. 7333 – AMEND SECTION 8-404 AND ADD NEW SECTION 9-1235 OF KEARNEY CITY CODE

 

City Clerk stated that back in February, City staff including City Attorney Mike Tye, Chief of Police Dan Lynch, Director of Public Works Rod Wiederspan, Code Enforcement Officer Pete Sage and myself met to discuss handicapped parking on public and private properties.

 

The Code Enforcement Officer was directed to visit all the commercial sites within the City limits to determine whether or not those businesses met the ADA requirements for handicapped parking.  At the last meeting, the Council was provided spreadsheets showing the businesses and whether or not they are in compliance.  The spreadsheet showed that the majority of the businesses did not comply with the proper signage for handicapped parking.

City staff met and discussed an implementation plan for compliance on the proper signage for handicapped parking.  The following is the implementation plan:

 

• Amend the City Code to require all businesses to erect and maintain the appropriate signage.

·         Notify the public through news releases and notification.

·         Allow the businesses 60 days to come into compliance.

·         After the 60-day grace period, the Police Department will begin enforcement.

 

Council member Kearney relayed his frustration in getting a contractor lined up to install the handicapped parking stall in front of Kearney State Bank.  The contractor was notified immediately after the last Council meeting and he showed up two weeks later stating he could install it in the next 30 days. 

 

Council member Lear stated that after the last meeting, he went to his maintenance staff at Platte Valley State Bank and they were shocked that they were not technically in compliance at all their locations.  So he concluded that people might not be aware they are not in compliance.  It was suggested to extend this period to 120 days since it might take longer than the 60 days to make changes to existing handicapped parking spaces. 

 

Council member Buschkoetter stated that after the 60 days, City staff could contact the owners to determine if the proper phone calls had been made and the process is underway, to allow them some extra time.  City Manager Michael Morgan stated that would be very difficult with the large numbers involved.  The key is regardless of the date the Council decides on, that should be the date because they should be in compliance anyway.  He suggested at 60 days another notice could be sent, but it was a tremendous amount of work to do the original inspections of the 300 parking spaces.  They will work with the Chamber and others to inform the public.  Mayor Clouse commented that 120 is too far out and believed it would diminish the intensity of getting this done. 

 

City Manager Michael Morgan stated that businesses gets a building permit and the work gets inspected, but the parking lot in subsequent years gets re-striped or the signs get knocked down or taken down and then they are no longer in compliance.  One thing the City wants is before people start making changes, they make sure they are doing it right.  He has asked Max Richardson and staff to be prepared to go to the sites and advise people how it should be done correctly.  There are all kinds of alternatives that might be more appropriate.  Giving more time might be acceptable because they do not want people to get in a hurry and have to redo it later.  The timeline is not part of the ordinance provisions, because it is currently the law.  The timeline before we enforce it can be determined by the Council. It has taken a long time to get to this point, but we are moving in the right direction and there is a lot of expense involved for some to get compliant.  He encouraged citizens to call City staff with questions. 

 

City Clerk stated that the handicapped sign does not need to be at the stall, but could be placed on the building as long as it is visible. She and Max Richardson have created a brochure with information about handicapped parking which will be available at the City offices and on our website.  City Manager stated there is a lot of misunderstanding about width, access and inclines.  City staff can use their discretion. The first thing the City should do with new building permits is not issue the occupancy permit without handicapped parking being established.  The second thing the City will do, especially on large projects, is to follow up in a year to make certain that after approval, conditions have not been changed (signs, dumpsters, etc.)  It was discussed and decided to allow City staff to make a recommendation on a reasonable due date for compliance to be met and inform Council. 

 

Amber Watson stated as a handicapped person she has a mini van with a side ramp which requires a wider space.  Although she loves older people, if they park in a regular handicapped space and park too close to the line then she cannot get onto her ramp.  She has to patiently wait for them to return and move their vehicle.  Since this is Nebraska and we get snow and ice on the parking lots, many times the paint on the parking spaces are covered.  During those times, she does not go out. Although people know that handicapped stalls are closest to the doors, when the weather is bad and they cannot see the signs they are lazy and use these stalls.  She is very excited that the signs will be made visible.  The timeline of getting this during the summer is not as important as getting it done before winter. 

 

Council Member Lear introduced Ordinance No. 7333, being Subsection 3 of Agenda Item VI to amend Section 8-404 “Applicability to Semipublic, Privately Owned Premises” of Article 4 “Administration and Enforcement” of Chapter 8 “Police” to provide regulation and enforcement with regard to offenses committed upon public and privately owned parking lots, parking areas in shopping centers and similar semi-pubic or privately owned places within the limits of the City; to add a new section entitled Section 9-1235 “Handicapped Parking Stalls” to Article 12 “Streets and Sidewalks” of Chapter 9 “Public Works” to require property owners to erect and maintain within any parking lots whether privately owned or otherwise the number of handicapped parking stalls as required by the Uniform Traffic Code, and moved that the statutory rules requiring ordinances to be read by title on three different days be suspended and said ordinances be considered for passage on the same day upon reading by number only, and then placed on final passage and that the City Clerk be permitted to call out the number of the ordinance on its first reading and then upon its final passage.  Council Member Buschkoetter seconded the motion to suspend the rules. President of the Council asked for discussion or if anyone in the audience was interested in the ordinance. No one responded. Clerk called the roll which resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion to suspend the rules having been concurred in by three-fourths of the City Council, said motion was declared passed and adopted. City Clerk read Ordinance No. 7333 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Buschkoetter seconded by Clouse that Ordinance No. 7333 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Lear, Lammers, Kearney, Buschkoetter. Nay: None. Motion carried.

 

By reason of the roll call voted on the first reading and final passage of the ordinance, Ordinance No. 7333 is declared to be lawfully passed and adopted upon publication in pamphlet form and made available to the public at the Office of the City Clerk, the Kearney Police Department and the Kearney Public Library.

 

ORDINANCE NO. 7334 – AMEND SECTIONS 4-301, 4-301.1, ADD SECTION 4-301-2, AMEND SECTIONS 4-303, 4-305, 4-307 AND 4-401 OF KEARNEY CITY CODE

 

Fire Administrator Ken Tracy stated that currently, the City of Kearney Fire Prevention Code is using the Uniform Fire Code, 1997 Edition, the National Fire Protection Association "101 Life Safety Code, 1994 Edition, and the National Fire Codes Subscription Service Electronic Edition.  The International Fire Code, 2006 Edition will replace the Uniform Fire Code, 1997 Edition, the  National Fire Protection Association "101 Life Safety Code, 1994 Edition, and the National Fire Codes Subscription Service Electronic Edition currently being used.

 

Council Member Clouse introduced Ordinance No. 7334, being Subsection 4 of Agenda Item VI to amend the Kearney City Code as follows: to amend Section 4-301 “Fire Prevention Code; Adoption” to adopt the International Fire Code, 2006 Edition; to amend Section 4-301.1 “Purpose” to clarify the language; to add a new section entitled “International Fire Code; Amendments” to Article 3 “Fire Prevention Code” of Chapter 4 “Fire Regulations” to adopt amendments to the International Fire Code, 2006 Edition; to amend Section 4-303 “Fire Prevention Code; Open Burning” to delete the language pertaining to bonfires; to delete in its entirety Section 4-305 “Fire Prevention Code; Lumber Yards Restricted”; to delete in its entirety Section 4-307 “Fire Prevention Code; Key Box”; to amend Section 4-401 “Removal of Fire Damaged, Combustible Buildings; Required” of Article 4 “Removal of Fire Damaged Combustible Buildings” of Chapter 4 “Fire Regulations” to clarify the language and to define the penalty, and moved that the statutory rules requiring ordinances to be read by title on three different days be suspended and said ordinances be considered for passage on the same day upon reading by number only, and then placed on final passage and that the City Clerk be permitted to call out the number of the ordinance on its first reading and then upon its final passage.  Council Member Kearney seconded the motion to suspend the rules. President of the Council asked for discussion or if anyone in the audience was interested in the ordinance. No one responded. Clerk called the roll which resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion to suspend the rules having been concurred in by three-fourths of the City Council, said motion was declared passed and adopted. City Clerk read Ordinance No. 7334 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Kearney seconded by Lammers that Ordinance No. 7334 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Lear, Lammers, Kearney, Buschkoetter. Nay: None. Motion carried.

 

By reason of the roll call voted on the first reading and final passage of the ordinance, Ordinance No. 7334 is declared to be lawfully passed and adopted upon publication in pamphlet form and made available to the public at the Office of the City Clerk, the Kearney Police Department and the Kearney Public Library.

 

KENO LOTTERY AT JERSEY’S SPORTS BAR & GRILL, 5012 3RD AVENUE

 

Mayor Clouse opened for discussion the request submitted by Kearney Gaming, LLC to operate the keno-type lottery on behalf of the City of Kearney at Jersey’s Sports Bar & Grill located at 5012 3rd Avenue and to consider approval of Resolution No. 2007-49.

 

On August 14, 2001, the City Council approved a Lottery Operator Agreement with Kearney Gaming, LLC, with an effective date of October 1, 2001.  Kearney Gaming, LLC currently operates keno-type lottery games at the Big Apple Fun Center, the Chicken Coop Sports Bar & Grill, and the Dome Lounge on behalf of the City of Kearney.  Kearney Gaming, LLC has requested to operate an additional keno-type lottery at Jersey’s Sports Bar & Grill located at 5012 3rd Avenue.  Section 4.A. of the Agreement requires the Operator to receive approval from the City Council prior to operating from any location within the City of Kearney.

 

Michael Nevrivy, Kearney Gaming LLC, presented this matter to the Council. They have a signed contract and the State must approve the application.  The contracts are identical for all participants. Currently, they operate keno at Big Apple (south), Dome Lounge (east), Chicken Coop (downtown) and in February ceased operation at Bicos (west).  Jersey’s is a north location which is a great addition to the current locations and will be a great addition.  

 

Finance Director Wendell Wessells stated the keno funds are up and are doing real well compared to 4-5 years ago.  They did have a big winner of $25,000.00. 

 

Moved by Lammers seconded by Lear to approve the request submitted by Kearney Gaming, LLC to operate the keno-type lottery on behalf of the City of Kearney at Jersey’s Sports Bar & Grill located at 5012 3rd Avenue and approve Resolution No. 2007-49. Roll call resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

RESOLUTION NO. 2007-49

 

            WHEREAS, the City of Kearney entered into a Lottery Operator Agreement on August 14, 2001 with Kearney Gaming, LLC to operate a keno-type lottery on behalf of the City; and

            WHEREAS, Section 4.A. LOTTERY FACILITIES of the Lottery Operator Agreement requires Kearney Gaming, LLC to receive approval of the City Council prior to operating a keno-type lottery from any location within the City of Kearney: and

            WHEREAS, Kearney gaming, LLC has requested that 5012 3rd Avenue, Kearney Nebraska (Jersey’s Sports Bar & Grill) be approved as a location to operate a keno-type lottery on behalf of the City of Kearney.

NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that 5012 3rd Avenue, Kearney Nebraska (Jersey’s Sports Bar & Grill) is hereby approved as a location for Kearney Gaming, LLC to operate a keno-type lottery on behalf of the City of Kearney.

BE IT FURTHER RESOLVED that all resolutions and parts of resolutions in conflict herewith are hereby repealed

PASSED AND APPROVED THIS 27TH DAY OF MARCH, 2007.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

OPEN ACCOUNT CLAIMS: PLATTE VALLEY STATE BANK - $40,950.11, NPPD - $49,867.76

 

Moved by Buschkoetter seconded by Kearney that Open Account Claims in the amount of $40,950.11 payable to Platte Valley State Bank, and in the amount of $49,867.76 payable to Nebraska Public Power District be allowed. Roll call resulted as follows: Aye: Buschkoetter, Lammers, Kearney. Nay: None. Clouse and Lear abstained. Motion carried.

 

VII.    REPORTS

 

None.

 

VIII.    ADJOURN

 

Moved by Kearney seconded by Lammers that Council adjourn at 8:49 p.m. Roll call resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

ATTEST:                                                                       STANLEY A. CLOUSE

                                                                                    PRESIDENT OF THE COUNCIL

                                                                                    AND EX-OFFICIO MAYOR

MICHAELLE E. TREMBLY

CITY CLERK