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Kearney, Nebraska

November 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 November 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 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: Tom Martin, Linda Martin, Jim Weber, Don McKenzie, Bobbi McKenzie, Jerry Fox, Janet Fox, Matt Meister, Tom McCarty, Mark Curry, Clint Jones, David Cantrell, Dan Lindstrom, Gerry O’Rourke, Paul Brungardt, Kae Sawyer, Larry Sawyer, Marc Albrecht, Mitch Humphrey, several other property owners from the Pioneer Park Neighborhood area, 14 students from UNK, Steve Altmaier from KGFW Radio, Sara Giboney 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

 

Reverend Doug Shada from the Cornerstone Berean Church provided the Invocation.

 

PLEDGE OF ALLEGIANCE

 

Four 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

 

VIAERO WIRELESS CONDITIONAL USE PERMIT

 

Mayor Clouse stated the applicant requested the public hearing on the Application submitted by NE Colorado, Inc., dba Viaero Wireless (Applicant) and Firstier Capital Corporation, dba Kearney Event Center, Inc. (Owner) for a Conditional Use Permit to construct a 150-foot tall self supporting telecommunications pole, a backup generator, a 1,000 gallon propane tank and space for two 9 foot by 15 foot by 8.5 foot tall concrete buildings (one current and one future) to house electronic equipment on property zoned “District C-2/PD, Community Commercial District/Planned Development Overlay District” and described as Lot 2, Broadfoot Third Addition to the City of Kearney, Buffalo County, Nebraska (609 Platte Road) remain on the table until December 11, 2007.  Therefore, no action was taken.

 

REZONING; PIONEER PARK NEIGHBORHOOD AREA

 

Moved by Kearney seconded by Lammers to remove from the table Public Hearing No. 2 on the Applications submitted by F.M. and Marilyn Parker, Randall and Mary Fike, Edmund and Margaret Sizer, Dustin Westerbeck, Michelle Graddy, James and Rita Weber, Matthew and Kimberly Meister, Everett and Roxanne Aistrope, Darin and Lisa Messeure, Vern Plambeck, Bernice Oran, Gerald and Jann Davidson, Todd and Jennie Halbert, John and Darlene Smith, Randall and Mardi Pallas, Vernon and Eleanore Ward, Debbra Conroy, Karen Park, Robert and Darlene Mitchell, Joshua Liljehorn, Dudley and Barbara Friskopp, Larry and Kae Sawyer, Walter and Jennifer Martin, George and Roxanne Bascom, Duane and Sherry Ruh, James Gallant Power of Attorney for Jean Gallant, JoAnne Sawyer, Beverly Frickel, Kent and DeAnn Psota, J. Thomas and Mary York, Richard and Juanita Cloyed, Ronald and Terri Ridgway, Michael and Carney Marchand, Steven and Janet Anderson, Mary Beth Keenan, Donald and Roberta McKenzie, Larry and Ruth Solomon, Jerry and Cynthia Foote, Thomas Bright, Tracy and Jacqueline Burns, Ronald Landstrom, Seth Blank, Wanda Davis, Arlette Neal, Mary Mendenhall, Thomas and Linda Martin, 24th Street Development, Brent and McKenna Bieber, Jerry and Janet Fox, Elmer and Margaret Holzichter, Rosalie Elder (Applicants and Owners) to rezone from “District R-3, Urban Residential Multi-Family District (Medium Density) District” to “District R-1, Urban Residential Single Family District” property described as follows: the south half of Lot 2, all of Lot 3,  part of Lots 4 and 5, all in Block 1, West Addition; part of Lots 1, 2, 3, 4, 5, and all of Lot 6, all in Block 2, West Addition; Lots 1, 2, 9, 11, 12, the east 55 feet of Lots 7 and 8, all in Block 3, West Addition; Lots 1, 2, 3, 4, 12, part of Lots 8 and 9, all in Block 4, West Addition; the south 42 feet of Lot 3, all of Lots 4, 10, 11, 12, the north 10 feet of Lot 5, the west 80 feet of Lots 7, 8, 9, all in Block 5, West Addition; Lots 3, 4, 5, 6, the east 60 feet of Lots 7, 8, 9, all in Block 6, West Addition; the west 45 feet of Lot 1, 2, 3, all of Lots 4, 5, 6, 7, 8, 9, 10, all in Block 7, West Addition; the east 35 feet of the west 90 feet of Lot 11, the east 35 feet of the west 90 feet of Lot 12, the east 50 feet of Lots 11 and 12, all in Block 10, West Addition; Lots 1 and 2, Hecht’s Subdivision; all of Lots 1, 2, 3, the west half of Lot 4, the west half of the south half of Lot 5, the west 80 feet of Lot 6, the west 80 feet of the north half of Lot 5, all in Block 1, Ashland Addition; part of Lots 1, 2, 3, together with the vacated east half of the alley abutting said lots on the west, the east 93 1/3 feet of Lot 3, the east 93 1/3 feet of the south 30 feet of Lot 2, the west 70 feet of Lot 6, the west 70 feet of the north 20 feet of Lot 5, the east half of Lot 6, the east half of the north 10 feet of Lot 5, all in Block 2, Ashland Addition; the west half of Lots 1 and 2, the west half of Lot 12, the west half of the north 39 feet of Lot 11, the east half of the south 34 feet of Lot 5, the east half of Lot 6, all in Block 8, Ashland Addition; the south 86 feet of Lots 13 and 14, the west half of the south 86 feet of Lot 15, the north 44 feet of Lots 13 and 14, the north 44 feet of the west half of Lot 15, all of Lots 18, 19, 20, 21, 22, 23, 24, all in Block 60, Perkins & Harford’s Addition; Lot 20 and the west half of Lot 21 of Block 61, Perkins & Harford’s Addition; the east 50 feet of Lot, all of Lots 9, 10, 11, 12, 13, 14 of Block 63, Perkins & Harford’s Addition, all in the City of Kearney, Buffalo County, Nebraska (322, 323, 324, 417, 517, 521, 603 West 21st Street; 322, 512, 515, 612, 626 West 22nd Street; 403, 411, 417, 514, 524, 621, 703, 711 West 23rd Street; 501, 511, 523, 609, 624, 714, 720, 801, 805, 819 West 24th Street; 2112 3rd Avenue; 2100, 2108, 2112, 2114, 2208, 2216, 2220 4th Avenue; 2102, 2110, 2211, 2218, 2221, 2222, 2300, 2305, 2308 5th Avenue; 2109, 2209, 2220, 2303, 2304, 2309, 2310, 2411 6th Avenue). Roll call resulted as follows: Aye: Clouse, Lear, Lammers, Kearney, Buschkoetter. Nay: None. Motion carried.

 

Mayor Clouse stated the Planning Commission recommended approval on a split vote, five in favor and two opposed.

 

The Pioneer Park Neighborhood Association members have been working to maintain the single-family character of their neighborhood through voluntary rezoning. They split the neighborhood roughly into two halves, north and south and approached individual R-3 property owners in the north half to see if they would be interested in rezoning their property to R-1. Each property owner that decided to rezone has filed a separate rezoning application for the property they own, so there are 55 separate rezoning applications. Some property owners did not wish to change their zoning and wanted to keep the R-3 zoning. The resulting pattern will be a patchwork arrangement of R-1 and R-3 zoning if the rezoning requests are approved. However, most of the properties proposed for rezoning are adjacent to or directly across the street from other properties that also are requesting down-zoning to R-1. The Association plans to approach the property owners in the south half of the neighborhood if the north zoning is successful. City staff had previously discussed the issue of “spot” zoning with the City Attorney and both staff and the attorney believe that spot zoning is not an issue for the following reasons:

·         This rezoning action was not initiated by the City.

·         The property owners have a choice in whether or not they wish to rezone their property.

·         The ones that wish to rezone are doing so voluntarily under no coercion or pressure to rezone against their will.

·         Each property owner has submitted an individual application to rezone his/her property.

·         The requested zoning change will bring the zoning of the property into direct compliance with the established use of the property.

·         The rezoning request is for less dense, less intensive zoning than what currently exists, in other words, down-zoning.

·         There is no reason why R-1 and R-3 zoning categories cannot touch one another or be intermingled.

 

The Property Rights Coalition (PRC) members do not agree with the City’s position on spot zoning. Members of the PRC spoke against the rezoning request at both meetings, including their legal counsel at the September meeting, stating that their opinion is that it is indeed spot zoning and that, as such, it is illegal.  Other arguments from the PRC included a fear that the Neighborhood Association will use the current rezoning, if successful, as a “springboard” to attempt future rezonings of the entire neighborhood to R-1, regardless of the individual owner’s desires. Members of the Association spoke last month stating that they would be in opposition of a proposal to “blanket” zone the neighborhood to R-1 as that would affect the property rights of many owners. City staff also reiterated twice during the hearing last month that the City officials would not support a blanket rezoning of the neighborhood to R-1. This type of rezoning had been suggested by members of the Association in past years, but the City would not, and will not support it, since it would negatively impact owners of R-3 property that did not wish to rezone to a lower density.

 

The PRC also objected to the rezoning because R-1 use (single-family homes) is an allowable use in R-3 zoning, so, in their opinion there is no need to rezone the properties from the current R-3 designation. Although this is a true statement, the proposed rezoning request to R-1 provides the closest match between the type of zoning and the type of use that exist on the properties. Deed restrictions were suggested by the PRC as an alternative way to maintain the single-family character of the neighborhood. The City does not get involved with deed restrictions, much in the same way as restrictive covenants. An attorney must prepare the legal documents for each deed restriction and the restriction must be filed against the property. The neighbors would be responsible for upholding and enforcing any deed restrictions that are violated. Deed restrictions can also be changed or removed by the party that created them without a formal hearing process such as required by state law for rezoning. In this way, the neighbors are aware of the proposed changes in zoning and have the right to be heard.  

 

The argument was also made at the October meeting that in order for “due process” to be met, each of the 55 rezoning applications should be required to be heard as a separate public hearing. Both City staff and the City Attorney stated that the combined hearing of the 55 applications is acceptable as the owners signed the applications voluntarily and they are all individually enjoying the rights to due process as one of the 55 applicants that are all asking for a decision on the same request.

 

City Attorney Michael Tye stated the issue that was raised at the Planning Commission meeting referenced “spot zoning” on the Pioneer application. The concept of “spot zoning” is not illegal in Nebraska and is reviewed on a case by case basis.  Essentially, it involves a situation where an individual wants to rezone a parcel of property. They typically want to go from a restrictive zoning category to a less restrictive category to change the nature of that property that is not consistent with the surrounding properties. 

 

In this situation, there are 55 separate applicants who are themselves requesting that their own property be rezoned. They have requested to go from R-3 to R-1 which is actually a more restrictive classification. The R-1 use is presently allowed in the neighborhood of an R-3 zoning which is a residential use. They would not be going from a use that is not presently permissible where they are located. It is his understanding that these properties are currently being used as residential properties so the use would not change. The issue is a policy question for the Council to determine if they believe this is an appropriate change to be allowed in this neighborhood to let those property owners do what they wish with their property. 

 

City Attorney further stated that technically this request does not fit the classic “spot zoning” type of scenario.  He referred to this request as “reverse spot zoning” because it is going from a less restrictive to more restrictive classification.  He had a difficult time finding any cases where the request for more restrictive classification came from property owners on their property that had been reviewed by a court of law or found it to be impermissible. To his knowledge, he was not aware of any negative implications to adjacent property owners as a result of granting this rezoning request. Although he could not speak for the adjacent property owners, legally there would be none. There are areas within this neighborhood where residential uses are adjacent to R-3 properties at the present time. 

 

Council member Lammers stated it is important to note that the request is just for the property of the 55 owners. They are not asking that the whole Pioneer Park neighborhood be rezoned.  City Attorney commented that if this rezoning is allowed, the City has no intention to rezone a larger area in the neighborhood. This is a petition from the property owners and not from the City.

 

City Planner Lance Lang stated there is some history to this and is the result of a lot of hard work from the dedicated Pioneer Park Neighborhood Association. The Pioneer Park Neighborhood Association came to the City approximately six years ago and requested that the City rezone the entire area to a blanket zone of R-1. Staff told them at that time, the City recognized the property rights of the R-3 properties in that neighborhood so they could not do that.  City staff did suggest to them at that time, they could contact their neighbors and try to find people who would be interested in rezoning their own property from R-3 to R-1. This is the group who has now brought this request back to the City for approval. His understanding is the Association took 21st Street and canvassed the neighborhood to the north. Depending on the outcome of this request, he understood their intention was to canvass the neighborhood south of 21st in the future and ask the same question.

 

City Planner stated the important thing in this case is this is a voluntary situation.  This is not something that was initiated by the City.  The City staff did advise them as to how to go about it, but it was done on an individual basis.  Each property owner has filed a petition for their own property.  People who did not want to petition were not coerced or forced to be part of this rezoning request.  The impression he received from the property owners is that they are proud of the fact that many people invested time and money in their neighborhood to reclaim some of the converted houses back to single family use.  Those property owners would have a higher level of comfort knowing that they have true R-1 zoning.  The owners who have R-3 are not being made to change zoning and enjoy all the vested property rights that zoning offers. 

 

Matt Meister, representative from the Pioneer Park Neighborhood, 2308 5th Avenue, stated that the one question that has not been answered to everybody’s satisfaction is the reason they have requested to do this when they can already have a single family in an R-3 zone.  One key issue he has been asked about is whether his property would be more valuable if he could have the option to sell it to someone who would want to split it into units. If that were the case, the question could be reversed and ask why do property owners in an R-1 zone not request to be changed to a R-3 so their property could be converted. The fact is that after they have worked so hard to restore their homes to single family dwellings and make existing single family homes better, they wanted to create some restrictions for each of their individual properties to protect them from being converted back to up-zoning. 

 

Mr. Meister stated that this all came about because of the evolution of the City.  At one time, their part of the City was very close to the University.  It was originally built primarily as single family housing.  As the University had a need for more and more housing and did not have enough facilities on campus, single family homes were renting out basement apartments or splitting a single home into several units.  When the City’s zoning codes were developed in 1961, the Pioneer Park area was zoned R-3 for that reason.  Meanwhile, the University has provided more housing on campus.  There have been more large developments of housing units (i.e. Grandview Estates, etc.). There has also been a change in our habits as people.  When their neighborhood provided housing for the University students, many students at that time did not have cars.  There was not a population density issue like there is today.  In fact, when their neighborhood was built, there were families that did not have a car. There are many older homes where garages had to be built right up to lot lines because there was nowhere else to go with them. Today most every University student who brings a car to campus has to park them on residential streets.  As the City grows, he suggested that other areas of the City will come in and also request a change in zoning.  Since the use in1961 has changed over the past 40 plus years, their request is to create a zoning that reflects the actual use of the properties.

 

There was no one present in opposition to this hearing.

 

Moved by Lammers seconded by Lear to close the hearing and approve the Applications submitted by F.M. and Marilyn Parker, Randall and Mary Fike, Edmund and Margaret Sizer, Dustin Westerbeck, Michelle Graddy, James and Rita Weber, Matthew and Kimberly Meister, Everett and Roxanne Aistrope, Darin and Lisa Messeure, Vern Plambeck, Bernice Oran, Gerald and Jann Davidson, Todd and Jennie Halbert, John and Darlene Smith, Randall and Mardi Pallas, Vernon and Eleanore Ward, Debbra Conroy, Karen Park, Robert and Darlene Mitchell, Joshua Liljehorn, Dudley and Barbara Friskopp, Larry and Kae Sawyer, Walter and Jennifer Martin, George and Roxanne Bascom, Duane and Sherry Ruh, James Gallant Power of Attorney for Jean Gallant, JoAnne Sawyer, Beverly Frickel, Kent and DeAnn Psota, J. Thomas and Mary York, Richard and Juanita Cloyed, Ronald and Terri Ridgway, Michael and Carney Marchand, Steven and Janet Anderson, Mary Beth Keenan, Donald and Roberta McKenzie, Larry and Ruth Solomon, Jerry and Cynthia Foote, Thomas Bright, Tracy and Jacqueline Burns, Ronald Landstrom, Seth Blank, Wanda Davis, Arlette Neal, Mary Mendenhall, Thomas and Linda Martin, 24th Street Development, Brent and McKenna Bieber, Jerry and Janet Fox, Elmer and Margaret Holzichter, Rosalie Elder (Applicants and Owners) to rezone from “District R-3, Urban Residential Multi-Family District (Medium Density) District” to “District R-1, Urban Residential Single Family District” property described as follows: the south half of Lot 2, all of Lot 3,  part of Lots 4 and 5, all in Block 1, West Addition; part of Lots 1, 2, 3, 4, 5, and all of Lot 6, all in Block 2, West Addition; Lots 1, 2, 9, 11, 12, the east 55 feet of Lots 7 and 8, all in Block 3, West Addition; Lots 1, 2, 3, 4, 12, part of Lots 8 and 9, all in Block 4, West Addition; the south 42 feet of Lot 3, all of Lots 4, 10, 11, 12, the north 10 feet of Lot 5, the west 80 feet of Lots 7, 8, 9, all in Block 5, West Addition; Lots 3, 4, 5, 6, the east 60 feet of Lots 7, 8, 9, all in Block 6, West Addition; the west 45 feet of Lot 1, 2, 3, all of Lots 4, 5, 6, 7, 8, 9, 10, all in Block 7, West Addition; the east 35 feet of the west 90 feet of Lot 11, the east 35 feet of the west 90 feet of Lot 12, the east 50 feet of Lots 11 and 12, all in Block 10, West Addition; Lots 1 and 2, Hecht’s Subdivision; all of Lots 1, 2, 3, the west half of Lot 4, the west half of the south half of Lot 5, the west 80 feet of Lot 6, the west 80 feet of the north half of Lot 5, all in Block 1, Ashland Addition; part of Lots 1, 2, 3, together with the vacated east half of the alley abutting said lots on the west, the east 93 1/3 feet of Lot 3, the east 93 1/3 feet of the south 30 feet of Lot 2, the west 70 feet of Lot 6, the west 70 feet of the north 20 feet of Lot 5, the east half of Lot 6, the east half of the north 10 feet of Lot 5, all in Block 2, Ashland Addition; the west half of Lots 1 and 2, the west half of Lot 12, the west half of the north 39 feet of Lot 11, the east half of the south 34 feet of Lot 5, the east half of Lot 6, all in Block 8, Ashland Addition; the south 86 feet of Lots 13 and 14, the west half of the south 86 feet of Lot 15, the north 44 feet of Lots 13 and 14, the north 44 feet of the west half of Lot 15, all of Lots 18, 19, 20, 21, 22, 23, 24, all in Block 60, Perkins & Harford’s Addition; Lot 20 and the west half of Lot 21 of Block 61, Perkins & Harford’s Addition; the east 50 feet of Lot, all of Lots 9, 10, 11, 12, 13, 14 of Block 63, Perkins & Harford’s Addition, all in the City of Kearney, Buffalo County, Nebraska (322, 323, 324, 417, 517, 521, 603 West 21st Street; 322, 512, 515, 612, 626 West 22nd Street; 403, 411, 417, 514, 524, 621, 703, 711 West 23rd Street; 501, 511, 523, 609, 624, 714, 720, 801, 805, 819 West 24th Street; 2112 3rd Avenue; 2100, 2108, 2112, 2114, 2208, 2216, 2220 4th Avenue; 2102, 2110, 2211, 2218, 2221, 2222, 2300, 2305, 2308 5th Avenue; 2109, 2209, 2220, 2303, 2304, 2309, 2310, 2411 6th Avenue). Roll call resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried.

 

AMEND LAND USE MAP – 1550 FEET SOUTH OF THE INTERSECTION OF HIGHWAY 10/40 ON THE WEST SIDE OF HIGHWAY 10

 

Moved by Lear seconded by Buschkoetter to remove from the table Public Hearings 3, 4 and 5 pertaining to the development of Elken Subdivision located 1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10. Roll call resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

Public Hearings 3, 4 and 5 were discussed together but voted on separately.

 

Mayor Clouse opened the public hearing on the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Kenneth and Elaine Richter (Owner) for an amendment to the Land Use Map of the City of Kearney Comprehensive Development Plan from “Agriculture/Open” to “Mixed Use 2” for property described as being part of the Southeast Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 16 West of 6th P.M., containing 5.90 acres, more or less, Buffalo County, Nebraska (1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10) and to consider approval of Resolution No. 2007-242.

 

Planning Commission recommended approval. It seems that most of the major issues, such as lack of City services, can be handled in an alternatives matter. However, the larger question hinges on whether this type of leap frog development is setting the right precedent for development outside the corporate boundary without City services. If this project is approved, it will set the standard for the area and it will be difficult to control future rezoning requests of a similar nature.

 

The applicant is requesting approval to zone and plat a one lot commercial subdivision to be known as Elken Subdivision in the two-mile extraterritorial jurisdiction approximately 1,500 feet south of the intersection of highway 10/44 on the west side of the highway. The property is currently vacant pasture or farm ground.

 

The future Land Use Map of the City of Kearney Comprehensive Development Plan shows this area as “Agricultural/Open” and the existing zoning is Agricultural. The applicant would like to construct a commercial building on a 5.90 acres site at this location. The building will be used as a western feed and farm variety store selling western style clothing, animal feed, tack room equipment, etc. In order to allow commercial use at this location, the Land Use Map must be amended to “Mixed Use 2” and the property must be rezoned from Agricultural to Community Commercial District. Since the overall size of the parcel exceeds four acres, planned zoning is required by Code. The official zoning will be C-2/PD if approved by the Planning Commission and City Council. This property cannot be served by municipal services at this time, and it is likely many years into the future before services will be available to the site. Staff expressed some concern with allow “leapfrog” development along the major north-south corridor of the community. There are several issues that were discussed:

      a)   Infrastructure. As previously mentioned, no City services are available to this site, perhaps for many years. Therefore, if approved, the site must be served with an individual well and sanitary septic system.

            The Nebraska Department of Environmental Quality will review the design of the septic system to insure that it meets State standards for commercial waste systems.

            The proposed use will be a relatively low volume septic demand limited to a couple of bathrooms. However, once the zoning is approved, the City cannot prohibit a high volume septic user if that use is allowable in C-2 zoning. If the farm and ranch store were to disappear for any reason, the City would not be able to prohibit a high volume septic use at this location.

            The applicant is willing to sign a subdivision agreement that waives future protest rights for improvement districts, requires connection to side improvements, and requires annexation at such time the property can be annexed into the corporate limits of the City.

            Water supply is a concern for fire protection. The Kearney Volunteer Fiore Department will only be able to serve this site with rural pumper trucks which require a nearby open water source. By limiting the size of the building to less than 12,000 square feet; the International Building Code does not require fire suppression sprinklers to be installed for the proposed use. If another commercial use wants to locate at this site in the future, fire suppression sprinklers may well be a requirement.

 

      b)   Access. This property fronts on Nebraska State Highway 10 and access is controlled through this stretch of highway by Nebraska Department of Roads. A letter from the NDOR District Engineer is attached that acknowledges access to this site at the prescribed location – the same point that the applicant is requesting a public road. This public road to be known as 74th Street must be constructed to adequately serve the larger surrounding area to the west and north as development expands in the area. The 66-foot right-of-way is flared out to 83 feet as it approaches the highway provided for turn lanes. A north-south frontage or rearage road will eventually be constructed to access other properties with frontage on the State Highway as NDOR has limited access points in this area to the one that was previously discussed.

 

      c)   Precedent. Although staff has concerns concerning leap frog development, the City Council has allowed it in limited instances in the past. The best example is probably the motorcycle shop on Highway 40 just west of 17th Avenue. This property is zone C-3/PD with no City services.

 

      d)   Future development. Since this property fronts on 2nd Avenue it is highly likely that it will be zoned for commercial development someday in the future. The question is whether it would be better to wait for that day when services are available, or proceed now with the Land Use Map amendment and rezoning.

 

The Preliminary Plat and Final Plat both consist of one lot that will contain all the improvements associated with the farm and ranch store including the main building and any other outbuildings. The total lot area is 5.90 acres. 74th Street is designed as a 66-foot right-of-way collector flared out to 83 feet as it approaches the highway to provide for turn lanes. Since the paving will be constructed prior to installation of water and sewer lines, easements are required for future installation of these services. A 15-foot wide easement is provided along the south side of 74th Street and along the west side of Highway 10 for this purpose. A Public Works Plan is required to demonstrate drainage and detention and paving of the public street. A Subdivision Agreement is required that waives future protest rights for improvement districts, requires connection to said improvements, and requires annexation at such time the property can be annexed into the corporate limits of the City.

 

Planned zoning is required since this property exceed the 4-acre threshold. Development plans will be submitted at a future date if the rezoning and platting is approved.

 

Mitch Humphrey from Buffalo Surveying presented this matter to the Council on behalf of the current owners, Kenneth and Elaine Richter.  This property is unique in that it is distended from the existing City limits line.  That is the reason they are asking to rezone this property from Agriculture/Open to Community Commercial District.  What they hoped to do is finish the zoning and platting process at this meeting.  The new owner will come before the Planning Commission and City Council in the near future and present the required development plans to be approved according to the “due process rules”. 

 

This property is about a quarter of a mile south of the intersection of Glenwood Corners and north 2nd Avenue.  Glenwood Corners will be part of the beltway that will circumvent around our community that will eventually circle around to the east and the south and connect into the Interstate highway system.  Working toward that happening, it would be reasonable to believe that eventually commercial development is going to occur on 2nd Avenue.  They are asking for commercial zoning now, although the City cannot annex or serve it at the present time. 

 

The question remains does commercial drive the infrastructure or does the infrastructure drive the commercial development.  The new owner plans a western feed and farm supply store that will be located on this site.  It is a great location because it will be more accessible and a lot handier for many of its clients then its present site up north.  This consists of a 5.9 acre subdivision plat which will dedicate 9/10 of an acre of roadway which is a bit excessive. The fact is that the Richters want to develop the ground to the west of them in the future. Since the City is going to grow, they have conceded to formally dedicate a rather ample bit of roadway with turn lane space.  They recognize that utilities are not available to this site at this time. The site will be served with an individual well and septic system and will be in compliance with State of Nebraska Environmental Quality codes since this is a commercial site. They understand that when City utilities become available, they will be required to connect to those facilities which will be beneficial to all parties.

 

Dan Lindstrom, attorney for the proposed purchasers of the land, stated that a development plan will be brought to the Planning Commission at a later date if the zoning is approved.  The Classens’, owners of the “Cow Poke” store is presently located in downtown Kearney. They wish to move their store out to the proposed location and couple that with a concept store that Purina is working on that will have animal feed and pet supplies, etc.  This is a good fit for the type of cliental they hope to attract and a great location because many of them travel through this area.

 

Mr. Lindstrom also addressed the Subdivision Agreement which is between the City of Kearney and the Richters and not his clients.  However, this agreement is also binding to the Classens as they purchase the property and it runs with the land so they have some interest in what is included in the agreement.  He stated that Paragraph 1, Section (A) talks about creation of 74th Street being concrete the entire distance of the property.  Staff wants them to build 540 feet of concrete in the area where 74th Street intersects with Highway 10.  The problem is that this would cost a couple hundred thousand dollars of concrete that presently goes nowhere and probably would not go anywhere for some period of time until the Richters decide to sell off and develop the other surrounding property.  Mr. Lindstrom suggested that they could use that as a trigger for requiring the length of it to be paved at the time when another subdivision comes in or another party wants to build on that property and obtains a building permit.  His clients are requesting a deferral and would expect to pave approximately 100 feet at this time. They would like a clarification of that issue before they move on to the next step. 

 

Council Member Kearney asked if Mr. Lindstrom’s request was different from what was discussed at Planning Commission.  Mr. Lindstrom stated that Planning Commission did not have a draft Subdivision Agreement at the time of the Planning meeting so this discussion did not take place at that time.  He said that to his recollection, this issue was not addressed.  Planning Commission addressed the rezoning, but did not have the Subdivision Agreement until afterwards.

 

City Planner Lance Lang quoted from the City Code: “when the building permit is issued, all improvements go in for the length of the property”.  If the property happens to be surrounded by three streets, then all three streets need to go in.  The Council can make an exception or waiver to that requirement.  The Code also states that water and sanitary sewer would also need to be put in, but in this case that infrastructure is not available.  In a typical situation, the property would be annexed and the City would be able to create districts.  Part of the problem in this case is the City cannot create paving districts outside of the City limits so this would need to be paid up front by the developer.  From the City staff standpoint, the cleanest way to do that is to build the entire street at one time and be done with it. 

 

City Manager Michael Morgan asked if the issue regarding the fire code with a turn around or cul-de-sac on a dead end street was addressed in the agreement.  City Planner stated that he did not recall that it had been discussed.  Ttypically, a temporary turn around is put in at the end of the road that meets the fire and emergency vehicles needs.  Mayor Clouse stated that since that was not included in the agreement, there still needed to be some modifications to the agreement.

 

Director of Public Works Rod Wiederspan stated that typically when they bring in a subdivision of this nature, they have the streets platted where they are going to be in place, which in this case would be concrete the length of the property.  In this case, there are no development plans that came with it so the City’s intention would be that it would be paved the entire length of that property and Planning Commission would have thought the same.  When the plans come in, if the Council deems it warranted to only pave the accesses off the front half of that property, including their drive access, then they can do so.  It has been done in the past on some other projects.  Staff’s only concern is the remaining road be required to be paved in the future where it is outside the City limits because they do not have the mechanism of creating paving districts.   

 

Council member Lammers suggested that an agreement could be made that they would have to pave the front half of their property at this time.  Since this is a road that virtually goes nowhere and serves no one except the retail site, the agreement would state if someone developed adjacent to this property, the requirement would be to complete the other half of that paving. 

 

Council member Kearney stated that agreement would need to be recorded with the Register of Deeds office. The issue is even if the City has an agreement with the current owner, what is the assurance that it would pass to the new buyer. The Subdivision Agreement is needed to ensure that happens. 

 

Mr. Lindstrom stated that a subdivision agreement by its own terms says that “it is binding upon all the successors, heirs and purchasers” which includes anyone who purchase from the Richters.  The Richters and the City of Kearney are parties to this agreement. The agreement also states that when this Subdivision Agreement is completed it would be filed with the Register of Deeds office.  They are asking the City to modify or at lease clarify where his client might be when they come back so they do not have to put in a couple hundred thousand dollars of pavement.   When the Richters subdivide the rest of this property, they have the obligation to make sure that the paving takes place. He believed that an agreement could be worked out between the Classens, the Richters and any future buyer to each pay a fair share of that paving cost when the next stage of development takes place. They are not currently creating a water or sewer districts, but will not protest it in the future.  Mr. Lindstrom stated that a poured concrete surface is not necessary at the present time in their opinion. They would not be opposed to putting a temporary surface of crushed concrete or rock on the surface and providing a fire turn around for that purpose in that area. 

 

City Planner stated since they have not seen a site layout with the development plans coming forth, there could possibly be a way for fire vehicles to maneuver on the lot without needing any temporary turn around.  The business will require space for semi trucks to drop off equipment and make deliveries so there should be ample space. 

 

City Manager stated they can handle the fire issue.  The Council could require them to put in some reasonable amount of paving to access the property.  Once that decision is made, then the new buyers can get involved and reach agreement.  First, the Council must make a policy decision that is acceptable to them.  They can then direct the staff and the applicant to come up with some solution.  Director of Public Works added that the requirement in a C-2 zoning is that anything used for parking or for maneuvering is to be hard surfaced. If they would hard surface the road back to access any maneuvering and parking areas then nobody would be driving on crushed concrete or gravel for that distance.  Without seeing any development plans, he was not sure what that distance requirement is. 

 

City Attorney stated that since the City cannot create a paving district that in the Subdivision Agreement which does run with the property and is recorded with the Register of Deeds, it will be on record and any buyer would know if they purchase this property that they have certain obligations pursuant to that agreement.  Essentially, what that does is bind them in the future to do what the agreement states.  

 

Tom McCarty, 100 Clearview Drive, from the Clearview Addition Homeowners Association and Utilities voiced their concerns.  Mr. McCarty stated he lives right across the street from this project.  As a representative of the Homeowners Association, stated since this area is the north entrance to Kearney, they want to make sure that this will be an attractive project.  What they want to avoid is having a lot of clutter in front of the facility with lots of equipment parked there.  They do not have any objection to the rezoning and change of the land use map, but only on the subdivision agreement and development plan. He expressed his surprise that the Council would approve this project without having a site plan available.  He believed that the Richters should be required to lay out a complete development site plan for most of their ground if their intention is to sell and develop this as commercial real estate. This is a large 5 acre lot being approved without knowing how they want to develop the rest of it.  

 

Mark Curry, 250 Frontview Drive, also from the Clearview Addition Homeowners Association and Utilities voiced concerns. If the area is going to be developed, they want to see it developed in the right way without cutting corners.  Another concern of the Clearview Addition Association is that they have a community well that sits right at the end of their cul-de-sac.  At the present time, the well has a 500 foot radius restriction, but it is on the table to make it 1,000 feet which would reach across the highway to approximately the front 250 feet into the Richters property. There is a moratorium for them to do anything in their 1,000 foot radius.  He was not certain what the radius requirement for a commercial well is, but could also cause some problems.  As long as the project is done correctly, he does not have a problem with it.  Council member Kearney stated that the well issue is regulated by the DEQ and not something regulated by the City.  Mr. Curry stated they have some issues with their well they are dealing with at the present time. 

 

Moved by Buschkoetter seconded by Clouse to close the hearing and approve the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Kenneth and Elaine Richter (Owner) for an amendment to the Land Use Map of the City of Kearney Comprehensive Development Plan from “Agriculture/Open” to “Mixed Use 2” for property described as being part of the Southeast Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 16 West of 6th P.M., containing 5.90 acres, more or less, Buffalo County, Nebraska (1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10) and approve Resolution No. 2007-242. Roll call resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

RESOLUTION NO. 2007-242

 

            WHEREAS, an application for a revision of the Land Use Map of the Comprehensive Plan has been filed in conjunction with and as a requisite part of its application for a change in the zoning for a tract of land being part of the Southeast Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 16 West of the 6th P.M., Buffalo County, Nebraska, more particularly described as follows:  Referring to the southeast corner of Section 14 and assuming the south line of the Southeast Quarter of Section 14 as bearing S89°36’23”W and all bearings contained herein are relative thereto: thence S89°36’23”W and on the south line of the Southeast Quarter of said Section 14 a distance of 106.24 feet to the southwest corner of a tract of land deeded to the State of Nebraska Department of Roads as described at Instrument 2003-761, recorded January 21, 2003, in the Office of the Buffalo County Register of Deeds, said point also being on the west right-of-way line of Nebraska State Highway No. 10/2nd Avenue; thence leaving the south line of said Southeast Quarter N00°28’34”E and on the west line of said tract of land deeded to the State of Nebraska Department of Roads and on the west right-of-way line of said Nebraska State Highway No.10/2nd Avenue a distance of 490.56 feet; thence N15°27’06”W and continuing on the west line of said tract of land deeded to the State if Nebraska Department of Roads and on the west right-of-way line of Nebraska State Highway No.10/2nd Avenue a distance of 164.11 feet; thence N01°07’13”E and continuing on the west line of said tract of land deeded to the State of Nebraska Department of Roads and on the west right-of-way line of Nebraska State Highway No.10/2nd Avenue a distance of 50.43 feet to the actual place of beginning; thence continuing N01°07’13”E and on the west line of said tract of land deeded to the State of Nebraska Department of Roads and the west right-of-way line of Nebraska State Highway No. 10/2nd Avenue a distance of 449.02 feet; thence N21°25’06”E and continuing on the west line of said tract of land deeded to the State of Nebraska Department of Roads and on the west right-of-way line of Nebraska State Highway No. 10/2nd Avenue a distance of 45.04 feet; thence leaving the west line of said tract of land deeded to the State of Nebraska Department of Roads and the west right-of-way line of Nebraska State Highway No. 10/2nd Avenue, N89°41’34”W a distance of 541.50 feet; thence S00°18’26”W a distance of 491.00 feet; thence S89°41’34”E a distance of 518.90 feet to the place of beginning, containing 5.90 acres, more or less, all in Buffalo County, Nebraska (1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10) from “Agriculture/Open” to “Mixed Use 2”, and

            WHEREAS, the said application for change in the Comprehensive Land Use Plan has been approved by the City Planning Commission, after a public hearing properly published and held, and

            WHEREAS, the City Council has held a public hearing upon the said revision and voted in favor of a motion to approve the change in the Land Use Plan as requested by the applicant.

            NOW, THEREFORE, BE IT RESOLVED by the President and City Council of the City of Kearney, Nebraska, that the Comprehensive Land Use Plan be and is hereby amended to change from “Agriculture/Open” to “Mixed Use 2” the use classification for the area described as a tract of land being part of the Southeast Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 16 West of the 6th P.M., Buffalo County, Nebraska, more particularly described as follows:  Referring to the southeast corner of Section 14 and assuming the south line of the Southeast Quarter of Section 14 as bearing S89°36’23”W and all bearings contained herein are relative thereto: thence S89°36’23”W and on the south line of the Southeast Quarter of said Section 14 a distance of 106.24 feet to the southwest corner of a tract of land deeded to the State of Nebraska Department of Roads as described at Instrument 2003-761, recorded January 21, 2003, in the Office of the Buffalo County Register of Deeds, said point also being on the west right-of-way line of Nebraska State Highway No. 10/2nd Avenue; thence leaving the south line of said Southeast Quarter N00°28’34”E and on the west line of said tract of land deeded to the State of Nebraska Department of Roads and on the west right-of-way line of said Nebraska State Highway No.10/2nd Avenue a distance of 490.56 feet; thence N15°27’06”W and continuing on the west line of said tract of land deeded to the State if Nebraska Department of Roads and on the west right-of-way line of Nebraska State Highway No.10/2nd Avenue a distance of 164.11 feet; thence N01°07’13”E and continuing on the west line of said tract of land deeded to the State of Nebraska Department of Roads and on the west right-of-way line of Nebraska State Highway No.10/2nd Avenue a distance of 50.43 feet to the actual place of beginning; thence continuing N01°07’13”E and on the west line of said tract of land deeded to the State of Nebraska Department of Roads and the west right-of-way line of Nebraska State Highway No. 10/2nd Avenue a distance of 449.02 feet; thence N21°25’06”E and continuing on the west line of said tract of land deeded to the State of Nebraska Department of Roads and on the west right-of-way line of Nebraska State Highway No. 10/2nd Avenue a distance of 45.04 feet; thence leaving the west line of said tract of land deeded to the State of Nebraska Department of Roads and the west right-of-way line of Nebraska State Highway No. 10/2nd Avenue, N89°41’34”W a distance of 541.50 feet; thence S00°18’26”W a distance of 491.00 feet; thence S89°41’34”E a distance of 518.90 feet to the place of beginning, containing 5.90 acres, more or less, all in Buffalo County, Nebraska (1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10).

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

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

REZONING – 1550 FEET SOUTH OF THE INTERSECTION OF HIGHWAY 10/40 ON THE WEST SIDE OF HIGHWAY 10

 

Moved by Lear seconded by Buschkoetter to remove from the table Public Hearings 3, 4 and 5 pertaining to the development of Elken Subdivision located 1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10. Roll call resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

Mayor Clouse opened the public hearing on the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Kenneth and Elaine Richter (Owner) to rezone from “District AG, Agricultural District” to “District C-2/PD, Community Commercial District/Planned Development Overlay District” for property described as being part of the Southeast Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 16 West of 6th P.M., containing 5.90 acres, more or less, Buffalo County, Nebraska (1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10).

 

This was discussed with Public Hearing 3 on the amendment to the Land Use Map.

 

Moved by Clouse seconded by Kearney to close the hearing and approve the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Kenneth and Elaine Richter (Owner) to rezone from “District AG, Agricultural District” to “District C-2/PD, Community Commercial District/Planned Development Overlay District” for property described as being part of the Southeast Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 16 West of 6th P.M., containing 5.90 acres, more or less, Buffalo County, Nebraska (1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10). Roll call resulted as follows: Aye: Clouse, Lear, Lammers, Kearney, Buschkoetter. Nay: None. Motion carried.

 

FINAL PLAT – ELKEN SUBDIVISION

 

Moved by Lear seconded by Buschkoetter to remove from the table Public Hearings 3, 4 and 5 pertaining to the development of Elken Subdivision located 1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10. Roll call resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

Mayor Clouse opened the public hearing on the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Kenneth and Elaine Richter (Owner) for approval of the Final Plat and Subdivision Agreement for “Elken Subdivision”, a subdivision of Buffalo County, Nebraska for property described as being part of the Southeast Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 16 West of 6th P.M., containing 5.90 acres, more or less, Buffalo County, Nebraska (1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10) and to consider approval of Resolution No. 2007-243.

 

This was discussed with Public Hearing 3 on the amendment to the Land Use Map.

 

Moved by Kearney seconded by Lammers to table the public hearing on the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Kenneth and Elaine Richter (Owner) for approval of the Final Plat and Subdivision Agreement for “Elken Subdivision”, a subdivision of Buffalo County, Nebraska for property described as being part of the Southeast Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 16 West of 6th P.M., containing 5.90 acres, more or less, Buffalo County, Nebraska (1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10). Roll call resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried.

 

IV.    CONSENT  AGENDA

 

Moved by Lear seconded by Buschkoetter to remove from the table Subsections 4 and 5 of Consent Agenda Item IV. Roll call resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear. Nay: None. Lammers abstaining. Motion carried.

 

Moved by Buschkoetter seconded by Clouse that Subsections 4 and 5 of Consent Agenda Item IV be approved. Roll call resulted as follows: Aye: Clouse, Buschkoetter, Lear, Kearney. Nay: None. Lammers abstaining. Motion carried.

 

4.         TABLED NOVEMBER 13, 2007.  Approve the following Agricultural Leases at the Kearney Regional Airport from January 1, 2008 until December 31, 2008: B & B Bendfeldt Farms, L.L.C. and Brenda Bendfeldt (229 irrigated acres); David R. Fleming (383 non-irrigated acres); David R. Fleming (272 irrigated acres); Donald D. Hendrickson (347 irrigated acres and 11 non-irrigated acres); Gary Henderson (34 irrigated acres); Lee Potter (62 irrigated acres); Thomas L. Larsen and Theodore A. Larsen (127 under pivot irritation acres and 9 non-irrigated acres) and approve Resolution No. 2007-233.

 

RESOLUTION NO. 2007-233

 

BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that the President be and is hereby authorized and directed on behalf of the City of Kearney, Nebraska to execute the following Agriculture Lease Agreements on property located at the Kearney Regional Airport from January 1, 2008 until December 31, 2008:

·         B & B Bendfeldt Farms, L.L.C. and Brenda Bendfeldt (229 irrigated acres) – annual cash rent is $37,663.62;

·         David R. Fleming (383 non-irrigated acres) – annual cash rent is $26,810.00;

·         David R. Fleming (272 irrigated acres) – annual cash rent is $44,233.88;

·         Donald D. Hendrickson (347 irrigated acres and 11 non-irrigated acres) – annual cash rent is $57,952.24;

·         Gary Henderson (34 irrigated acres) – annual cash rent is $5,389.00;

·         Lee Potter (62 irrigated acres) – annual cash rent is $10,106.00;

·         Thomas L. Larsen and Theodore A. Larsen (127 under pivot irritation acres and 9 non-irrigated acres) – annual cash rent is $21,182.02.

 

A copy of the Agreements, marked Exhibits “1”, “2”, “3”, “4”, “5”, “6”, “7”, are attached hereto and made a part hereof by reference.

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

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

5.         TABLED NOVEMBER 13, 2007.  Approve the Grassland Lease with Ron Hendrickson (75 acres dry land hay) at the Kearney Regional Airport from January 1, 2008 until December 31, 2008 and approve Resolution No. 2007-234.

 

RESOLUTION NO. 2007-234

 

BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that the President be and is hereby authorized and directed on behalf of the City of Kearney, Nebraska to execute the Grassland Lease with Ron Hendrickson (75 acres of dry land hay) at the Kearney Regional Airport from January 1, 2008 until December 31, 2008 for annual cash rent of $3,750.00. A copy of the Agreement, marked Exhibit “1” is attached hereto and made a part hereof by reference.

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

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

Moved by Clouse seconded by Kearney that Subsections 1, 2, 3 and 6 through 12 of Consent Agenda Item IV be approved. Roll call resulted as follows: Aye: Clouse, Lear, Lammers, Kearney, Buschkoetter. Nay: None. Motion carried.

 

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

 

2.         Approve the following Claims: AT&T $172.31 smcs; Alamar $2,674.36 smcs; Alltel $2,464.53 smcs; Amazon $832.40 smcs; Amer Bureau Collections $222.02 smcs; Ask Supply $555.19 smcs; Aurora Coop $188.40 smcs; Baker & Taylor Books $2,809.95 smcs; BBC Audiobooks $57.00 smcs; Blevins,D $158.40 smcs; Bluecross Blueshield $101,429.17 smcs; Bosselman $5,280.60 smcs; Broadfoot's $2,364.50 smcs; Buffalo Co Court $138.63 ps; Buffalo Co Sheriff $105.00 smcs; Buffalo Surveying $530.12 co; Bugay,T $6.41 smcs; Capital Bank & Trust $192.30 ps; Cash-Wa $767.75 smcs; Certified Power $65.34 smcs; Charter $369.93 smcs; Chesterman $23.00 smcs; City of Ky $8,380.50 smcs,ps,co; City of Lincoln $950.00 smcs; College Savings Plan of NE $75.00 ps; Cope,V $125.00 smcs; Copycat Printing $88.54 smcs; Culligan $985.50 smcs; D&D Industries $92.50 co; Dawson Co PPD $116,498.84 smcs,co; Demco $428.43 smcs; Dept of Aeronautics $995.00 ds; Depository Trust $54,461.25 ds; Dept of the Treasury $15.11 ps; DPC Industries $4,384.25 smcs; Eakes $7,928.29 smcs,co; Elliott Equipment $1,175.69 smcs; Farmers Union $267.90 smcs; Fedex $109.96 smcs; Frontier $8,051.93 smcs; Gale $2,047.14 smcs; Gaylord Brothers $358.88 smcs; Great Plains One Call $372.29 smcs; Guideposts $16.94 smcs; Harshbarger,K $275.76 smcs; Hatten Electric $3,673.84 smcs; Hausmann Construction $83,595.32 co; HD Supply $4,419.85 smcs; Heggemeyer,J $25.03 smcs; Highsmith $80.48 smcs; Hillius,S $29.46 smcs; Hoehner Turf $125.00 smcs; Horst,R $147.67 smcs; Hydrite Chemical $1,531.15 smcs; ICMA RC $2,648.57 ps; Info USA Marketing $2,500.00 smcs; IRS $95,641.12 ps; J&A Traffic Products $6,896.25 smcs; Jack Lederman $10,823.36 smcs,co; Johnson,J $26.23 smcs; Ky Clinic $978.00 smcs,ps; Ky Crete & Block $461.75 smcs; Ky Hearing Aid $43.36 smcs; Ky Hub $2,893.84 smcs; Ky Towing $300.00 smcs; Ky Young Life $3,274.86 smcs; Kirkham Michael $595.08 smcs; Kirkwood,M $480.07 smcs; Konica Minolta $2,150.00 co; Laracuente,J $9.68 smcs; Laughlin,K $360.00 ps; Lewis,N $162.47 smcs; Lighting Specialists $6,778.80 co; Magic Cleaning $660.00 smcs; Maines Electric $564.37 smcs; Manary,M $516.70 smcs; Marchand,M $216.60 smcs; Marlatt Machine Shop $901.33 smcs; McCarty,D $493.76 smcs; Microfilm Imaging $27.30 smcs; Mid-American Courtworks $16,132.50 co; Midland Molding $9.00 smcs; Midwest Lab $13.90 smcs; Miller & Associates $22,335.48 co; NE Child Support $2,262.35 ps; NE Dept of Revenue $39,921.17 smcs; NE Salt & Grain $9,304.87 smcs; Norm's Plumbing $85.95 smcs; Northwestern Energy $2,813.79 smcs; NRPA $50.00 smcs; Office Depot $804.94 smcs; Officenet $309.50 smcs; Ostrander,T $6.41 smcs; Overhead Door $5,262.00 smcs; Paramount Linen $23.78 smcs; Platte Valley Comm $949.00 smcs; Presto-X $149.00 smcs; Quill $56.04 smcs; Random House $398.40 smcs; Recorded Books $153.30 smcs; Recovery Systems $865.52 smcs; Republic Beverage $211.74 smcs; Rheome Tree $525.00 smcs; Roper's Radiator $78.50 smcs; Sapp Brothers $26,996.57 smcs; See Clear Cleaning $1,400.00 smcs; S-F Analytical Lab $1,182.00 smcs; Showcases $399.60 smcs; Softchoice $2,444.87 smcs; Solid Waste Agency $21.75 smcs; Sport Court of NE $44,120.00 co; Sterling Distributing $129.54 smcs; Sunrise Middle School $100.00 smcs; Telephone Systems of NE $22.46 smcs; Tielke Enterprise $90.27 smcs; Tokay Software $640.00 smcs; Tri-Cities Group $15,787.00 co; Unique Management $331.15 smcs; United Rentals $1,176.21 smcs; United Way $400.00 smcs; Upstart $24.00 smcs; Urbanek,G $315.76 smcs; Video Store Shopper $833.35 smcs; Wagners Irrigation $341.17 smcs; West Payment Center $1,104.81 smcs; West Villa Animal Hospital $374.40 co; Payroll Ending - -2007 -- $______________.  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 December 11, 2007 at 7:00 p.m. as date and time for hearing on those applications where applicable.

 

6.         Approve the bid received from McNeilus Truck & Mfg. in the amount of $188,251.00 for the purchase of a front load refuse compactor truck used in the Sanitation Division of the Utilities Department.

 

7.         Approve the bid received from McNeilus Truck & Mfg. in the amount of $210,750.00 for the purchase of a side load refuse compactor truck used in the Sanitation Division of the Utilities Department.

 

8.         Approve Change Order No. 4 showing an increase in the amount of $22,983.33, Application and Certificate for Payment No. 8 in the amount of $374,791.75 submitted by Blessing, LLC and approved by Miller & Associates for 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. 2007-244.

 

RESOLUTION NO. 2007-244

 

WHEREAS, Blessing LLC of Kearney, Nebraska has performed services in connection with the 2007 Part II Improvements – 39th Street from 2nd Avenue to Pony Express Road (Paving Improvement District No. 2006-908), and the City's engineer, Miller & Associates, have filed with the City Clerk Change Order No. 4 showing an increase in the amount of $22,983.33 as shown on Exhibit “A” attached hereto and made a part hereof by reference; and

            WHEREAS, Blessing LLC and the City's engineer, Miller & Associates, have filed with the City Clerk Application and Certificate for Payment No. 8 in the amount of $374,791.75 as shown on Exhibit “B” attached hereto and made a part hereof by reference and as follows:

 

Original Contract Sum

$1,977,660.96

            Change Order No. 1 (6-26-2007)

            Change Order No. 2 (7-24-2007)

            Change Order No. 3 (10-23-2007)

            Change Order No. 4 (11-27-2007)

+     61,459.75

+       4,853.68

+       6,451.99

+     22,983.33

Contract Sum to Date

$2,073,409.71

Gross Amount Due

1,545,739.39

Retainage

154,573.94

Amount Due to Date

1,391,165.45

Less Previous Certificates for Payment

  1,016,373.70

Current Payment Due

 

$   374,791.75

            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. 4 as shown on Exhibit “A”, and Application and Certificate for Payment No. 8, as shown on Exhibit “B”, be and are hereby accepted and approved.

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

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

9.         Approve Application and Certificate for Payment No. 14 in the amount of $115,677.06 submitted by Sargent Drilling Co. and approved by Miller & Associates for the Northwest Well Field Improvements – Phase I (Municipal Water Wells) and approve Resolution No. 2007-245.

 

RESOLUTION NO. 2007-245

 

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 Application and Certificate for Payment No. 14 in the amount of $115,677.06 as shown on Exhibit “A” attached hereto and made a part hereof by reference and as follows:

 

Original Contract Sum

$2,364,294.50

            Change Order No. 1 (4-10-2007)

            Change Order No. 2 (9-25-2007) additional working days to the contract time

+   142,586.66

Contract Sum to Date

2,506,881.66

Gross Amount Due

2,461,784.17

Retainage

123,089.21

Amount Due to Date

2,338,694.96

Less Previous Certificates for Payment

  2,223,017.90

Current Payment Due

 

$   115,677.06

            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. 14, as shown on Exhibit “A”, be and is hereby accepted and approved.

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

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

10.        Approve the proposal received from Hill Construction for the purchase and removal of the Cottonmill House and authorize the City Manager to execute the Agreement and approve Resolution No. 2007-246.

 

RESOLUTION NO. 2007-246

 

            BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that the City Manager be and is hereby authorized and directed to execute the Agreement between the City of Kearney and Hill Construction for the purchase and removal of the house and attached garage located at 2797 Cottonmill Avenue.  A copy of the Agreement, marked as Exhibit “A” is attached hereto and made a part hereof by reference.

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

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

11.        Approve the application to extend Conditional Use Permit No. 2001-03 granted to Beadle, LLC to locate a resource extraction and stock piling operation located ¾ mile north of 56th Street on the west side of Avenue N for a period of one year.

 

12.        Approve the application for a Special Designated License submitted by BOULEE, LLC, dba “Bico’s Sports Bar & Grill” in connection with their Class I-70918 liquor license to dispense beer, wine and distilled spirits in the Extension Building at the Buffalo County Fairgrounds located at 1300 East 34th Street on December 28, 2007 from 4:00 p.m. until 1:00 a.m. for a wedding reception.

 

V.    CONSENT  AGENDA  ORDINANCES

 

ORDINANCE NO. 7392 – SALARY ORDINANCE

 

At the last Council meeting there were only three Council members present.  It was not possible to suspend the rules allowing the ordinances to be passed on the same day upon reading the ordinances.  Therefore, Ordinance No. 7392 was placed on first reading.

 

Council Member Kearney introduced Ordinance No. 7392, being Subsection 1 of Agenda Item V to repeal Ordinance No. 7373 and classify the officers and employees of the City; fix the ranges of compensation of such officers and employees; establish the hours and work period for overtime eligibility; provide for payments of clothing and/or uniform allowances; provide for payment of vehicle allowance; and provide for payment of cell phone allowance, 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 second 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: Clouse, Kearney, Buschkoetter, Lear, Lammers. 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. 7392 by number. Roll call of those in favor of the passage of said ordinance on the second reading resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Lammers seconded by Lear that Ordinance No. 7392 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

By reason of the roll call voted on the second reading and final passage of the ordinance, Ordinance No. 7392 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. 7395 – REZONING NORTH OF THE INTERSECTION OF AVENUE K AND 56TH STREET WEST OF THE INTERSECTION OF AVENUE L AND EASTBROOKE DRIVE

 

At the last Council meeting there were only three Council members present.  It was not possible to suspend the rules allowing the ordinances to be passed on the same day upon reading the ordinances.  Therefore, Ordinance No. 7395 was placed on first reading.

 

Council Member Kearney introduced Ordinance No. 7395, being Subsection 2 of Agenda Item V to rezone from “District AG, Agricultural District” to “District R-1, Urban Residential Single-Family District (Low Density)” property described as a tract of land being part of the Southeast Quarter of Section 24, Township 9 North, Range 16 West of the 6th P.M., containing 47.82 acres, more or less, Buffalo County, Nebraska and to “District C‑O, Office District” property described as a tract of land being part of the Southeast Quarter of Section 24, Township 9 North, Range 16 West of the 6th P.M., containing 6.17 acres, more or less, Buffalo County, Nebraska (north of the intersection of Avenue K and 56th Street west of the intersection of Avenue L and Eastbrooke Drive), 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 second 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: Clouse, Kearney, Buschkoetter, Lear, Lammers. 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. 7395 by number. Roll call of those in favor of the passage of said ordinance on the second reading resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Lammers seconded by Lear that Ordinance No. 7395 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

By reason of the roll call voted on the second reading and final passage of the ordinance, Ordinance No. 7395 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. 7396 – REZONE NORTH OF 15TH STREET LYING BETWEEN CENTRAL AVENUE AND AVENUE A

 

At the last Council meeting there were only three Council members present.  It was not possible to suspend the rules allowing the ordinances to be passed on the same day upon reading the ordinances.  Therefore, Ordinance No. 7396 was placed on first reading.

 

Council Member Kearney introduced Ordinance No. 7396, being Subsection 3 of Agenda Item V to rezone from “District M-1, Limited Industrial District” to “District CBD/PD, Kearney Center Mixed Use District/Planned Development Overlay District” for property described as Lot 1448, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska and from “District R-2, Urban Residential Mixed-Density District” to “District CBD/PD, Kearney Center Mixed Use District/Planned Development Overlay District” for property described as Lots 1449, 1450, 1451, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska (north of 15th Street lying between Central Avenue and Avenue A), 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 second 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: Clouse, Kearney, Buschkoetter, Lear, Lammers. 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. 7396 by number. Roll call of those in favor of the passage of said ordinance on the second reading resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Lammers seconded by Lear that Ordinance No. 7396 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

By reason of the roll call voted on the second reading and final passage of the ordinance, Ordinance No. 7396 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. 7397 – VACATE ALLEY SOUTH OF 14TH STREET, NORTH OF 13TH STREET, WEST OF 1ST AVENUE AND EAST OF 2ND AVENUE

 

At the last Council meeting there were only three Council members present.  It was not possible to suspend the rules allowing the ordinances to be passed on the same day upon reading the ordinances.  Therefore, Ordinance No. 7397 was placed on first reading.

 

Council Member Kearney introduced Ordinance No. 7397, being Subsection 4 of Agenda Item V to vacate the 20-foot wide alley located west of Lots 1732 through 1737, inclusive, and east of Lots 1738 through 1743, inclusive, all in Original Town of Kearney Junction, now the City of Kearney, Buffalo County, Nebraska (south of 14th Street, North of 13th Street, west of 1st Avenue and east of 2nd Avenue), 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 second 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: Clouse, Kearney, Buschkoetter, Lear, Lammers. 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. 7397 by number. Roll call of those in favor of the passage of said ordinance on the second reading resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Lammers seconded by Lear that Ordinance No. 7397 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

By reason of the roll call voted on the second reading and final passage of the ordinance, Ordinance No. 7397 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. 7398 – DELETE ARTICLE 26 PERTAINING TO BINGO

 

In the last Session of the Nebraska Legislature, LB 638 was introduced at the request of the Department of Revenue. Due to a legislative change that has been fully implemented, this bill deletes obsolete charitable gaming statutes regarding licensing and adjusts language to reflect the current law. LB 638 outright repealed Section 9-236 of the Nebraska Revised Statutes that contained the local bingo permit requirement. This will eliminate the multi-governmental levels of regulation.

 

There is currently one section remaining that has not been repealed. Section 3-2604 requires a copy of all information filed with the Department of Revenue shall also be filed with the City Clerk if the bingo is conducted within the limits of the City.  According to the Department of Revenue, they are currently working on having this section repealed as well.

 

Council Member Kearney introduced Ordinance No. 7398, being Subsection 5 of Agenda Item V to repeal in its entirety the following: Section 3-1820 “Schedule; Bingo” of Article 18 “Occupation, Business and Other Taxes”; Section 3-2601 “Licensed Organization; Defined”; Section 3-2602 “Compliance with Ordinances of City”; Section 3-2605 “Use of Tax Proceeds”; Section 2606 “Permit; Required”; Section 3-2607 “Permit; When Not to be Issued”; Section 3-2608 “Permit; Application”; Section 3-2609 “Permit; Fee”; Section 3-2610 “Permit; Expiration”; Section 3-2611 “Permit; Display”; and Section 3-2612 “Permit; Suspension or Revocation” all in Article 26 “Bingo” of Chapter 3 “Business Regulations” of the Code of the City of Kearney; to amend Section 3-2604 “Filing of Copies of Certain Information” of Article 26 “Bingo” of Chapter 3 “Business Regulations” of the Code of the City of Kearney to clarify the filing of information, 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: Clouse, Kearney, Buschkoetter, Lear, Lammers. 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. 7398 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Lammers seconded by Lear that Ordinance No. 7398 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

By reason of the roll call voted on the first reading and final passage of the ordinance, Ordinance No. 7398 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. 7399 – FRANCHISE AGREEMENT TO SOURCEGAS

 

The City has two natural gas providers and they are required to obtain a franchise from the City of Kearney in order to operate within City limits. We have a current Franchise Agreement with NorthWestern Natural Gas and have been in the process of finalizing a Franchise Agreement with SourceGas, formally known as Kinder Morgan.

 

This ordinance granting a Franchise Agreement is a result of those discussions.  SourceGas has accepted the terms of this franchise which require the company to provide for payment of occupational tax and also to comply with City Code as it regulates the distribution of natural gas.  This Franchise Agreement will allow SourceGas to provide services within the City and be in compliance with City Code.

 

Council Member Kearney introduced Ordinance No. 7399, being Subsection 6 of Agenda Item V to grant to SourceGas Distribution, LLC the non-exclusive right and privilege to construct, maintain and operate a system for the transmission, transportation, distribution and sale of natural gas in the City of Kearney, 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: Clouse, Kearney, Buschkoetter, Lear, Lammers. 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. 7399 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Lammers seconded by Lear that Ordinance No. 7399 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

By reason of the roll call voted on the first reading and final passage of the ordinance, Ordinance No. 7399 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.

 

VI.    REGULAR  AGENDA

 

ORDINANCE NO. 7394 – VIAERO WIRELESS CONDITIONAL USE PERMIT (PERTAINS TO PUBLIC HEARING 1)

 

Mayor Clouse stated the applicant requested Ordinance No. 7394 proposing to grant a Conditional Use Permit to NE Colorado Cellular, Inc., dba Viaero Wireless (Applicant) and Firstier Capital Corporation, dba Kearney Event Center, Inc. (Owner) to construct a 150-foot tall self supporting telecommunications pole, a backup generator, a 1,000 gallon propane tank and space for two 9 foot by 15 foot by 8.5 foot tall concrete buildings (one current and one future) to house electronic equipment on property zoned “District C-2/PD, Community Commercial District/Planned Development Overlay District” and described as Lot 2, Broadfoot Third Addition to the City of Kearney, Buffalo County, Nebraska (609 Platte Road) to remain on the table until December 11, 2007.  Therefore, no action was taken.

 

ORDINANCE NO. 7393 – REZONING PROPERTY IN PIONEER PARK NEIGHBORHOOD AREA (PERTAINS TO PUBLIC HEARING 2)

 

Council Member Lear introduced Ordinance No. 7393, being Subsection 2 of Agenda Item VI to rezone from “District R-3, Urban Residential Multi-Family District (Medium Density) District” to “District R-1, Urban Residential Single Family District” property described as follows: the south half of Lot 2, all of Lot 3,  part of Lots 4 and 5, all in Block 1, West Addition; part of Lots 1, 2, 3, 4, 5, and all of Lot 6, all in Block 2, West Addition; Lots 1, 2, 9, 11, 12, the east 55 feet of Lots 7 and 8, all in Block 3, West Addition; Lots 1, 2, 3, 4, 12, part of Lots 8 and 9, all in Block 4, West Addition; the south 42 feet of Lot 3, all of Lots 4, 10, 11, 12, the north 10 feet of Lot 5, the west 80 feet of Lots 7, 8, 9, all in Block 5, West Addition; Lots 3, 4, 5, 6, the east 60 feet of Lots 7, 8, 9, all in Block 6, West Addition; the west 45 feet of Lot 1, 2, 3, all of Lots 4, 5, 6, 7, 8, 9, 10, all in Block 7, West Addition; the east 35 feet of the west 90 feet of Lot 11, the east 35 feet of the west 90 feet of Lot 12, the east 50 feet of Lots 11 and 12, all in Block 10, West Addition; Lots 1 and 2, Hecht’s Subdivision; all of Lots 1, 2, 3, the west half of Lot 4, the west half of the south half of Lot 5, the west 80 feet of Lot 6, the west 80 feet of the north half of Lot 5, all in Block 1, Ashland Addition; part of Lots 1, 2, 3, together with the vacated east half of the alley abutting said lots on the west, the east 93 1/3 feet of Lot 3, the east 93 1/3 feet of the south 30 feet of Lot 2, the west 70 feet of Lot 6, the west 70 feet of the north 20 feet of Lot 5, the east half of Lot 6, the east half of the north 10 feet of Lot 5, all in Block 2, Ashland Addition; the west half of Lots 1 and 2, the west half of Lot 12, the west half of the north 39 feet of Lot 11, the east half of the south 34 feet of Lot 5, the east half of Lot 6, all in Block 8, Ashland Addition; the south 86 feet of Lots 13 and 14, the west half of the south 86 feet of Lot 15, the north 44 feet of Lots 13 and 14, the north 44 feet of the west half of Lot 15, all of Lots 18, 19, 20, 21, 22, 23, 24, all in Block 60, Perkins & Harford’s Addition; Lot 20 and the west half of Lot 21 of Block 61, Perkins & Harford’s Addition; the east 50 feet of Lot, all of Lots 9, 10, 11, 12, 13, 14 of Block 63, Perkins & Harford’s Addition, all in the City of Kearney, Buffalo County, Nebraska (322, 323, 324, 417, 517, 521, 603 West 21st Street; 322, 512, 515, 612, 626 West 22nd Street; 403, 411, 417, 514, 524, 621, 703, 711 West 23rd Street; 501, 511, 523, 609, 624, 714, 720, 801, 805, 819 West 24th Street; 2112 3rd Avenue; 2100, 2108, 2112, 2114, 2208, 2216, 2220 4th Avenue; 2102, 2110, 2211, 2218, 2221, 2222, 2300, 2305, 2308 5th Avenue; 2109, 2209, 2220, 2303, 2304, 2309, 2310, 2411 6th Avenue), 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, Lammers, Kearney, Buschkoetter, Lear. 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. 7393 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Buschkoetter seconded by Clouse that Ordinance No. 7393 be passed, approved and published as required by law. Roll call resulted as follows:  Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

By reason of the roll call voted on the first reading and final passage of the ordinance, Ordinance No. 7393 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. 7400 – REZONE 1550 FEET SOUTH OF THE INTERSECTION OF HIGHWAY 10/40 ON THE WEST SIDE OF HIGHWAY 10 (PERTAINS TO PUBLIC HEARING 4)

 

Council Member Clouse introduced Ordinance No. 7400, being Subsection 3 of Agenda Item VI to rezone from “District AG, Agricultural District” to “District C-2/PD, Community Commercial District/Planned Development Overlay District” for property described as being part of the Southeast Quarter of the Southeast Quarter of Section 14, Township 9 North, Range 16 West of 6th P.M., containing 5.90 acres, more or less, Buffalo County, Nebraska (1550 feet south of the intersection of Highway 10/40 on the west side of Highway 10), 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. 7400 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. 7400 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. 7400 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.

 

OPEN ACCOUNT CLAIMS: HORIZON MIDDLE SCHOOL - $100.00, PLATTE VALLEY STATE BANK - $42,855.15, NPPD - $57,391.53, SCHOOL DISTRICT #7 - $7,889.40

 

Moved by Lammers seconded by Buschkoetter that Open Account Claims in the amount of $42,855.15 payable to Platte Valley State Bank, and in the amount of $57,391.53 payable to Nebraska Public Power District be allowed. Roll call resulted as follows: Aye: Lammers, Kearney, Buschkoetter. Nay: None. Clouse and Lear abstained. Motion carried.

 

Moved by Lear seconded by Clouse that Open Account Claims in the amount of $100.00 payable to Horizon Middle School and in the amount of $7,889.40 payable to School District #7 be allowed. Roll call resulted as follows: Aye: Clouse, Kearney, Lear. Nay: None. Buschkoetter and Lammers abstained. Motion carried.

 

VII.    REPORTS

 

None.

 

VIII.    ADJOURN

 

Moved by Buschkoetter seconded by Kearney that Council adjourn at 8:12 p.m. Roll call resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

                                                                                    STANLEY A. CLOUSE

                                                                                    PRESIDENT OF THE COUNCIL

                                                                                    AND EX-OFFICIO MAYOR

ATTEST:

MICHAELLE E. TREMBLY

CITY CLERK