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Kearney, Nebraska

March 23, 2004

7:30 p.m.

 

Prior to the regular Council meeting, the Council met as the Board of Directors for the Kearney Municipal Airport Corporation in open and public session at 7:30 p.m. on March 23, 2004 in the Council Chambers at City Hall.  This meeting adjourned at 7:45 p.m.  A meeting of the City Council of Kearney, Nebraska, was then convened in open and public session at 7:46 p.m. in the Council Chambers at City Hall.  Present were:  Bruce L. Blankenship, President of the Council; Michaelle Trembly, City Clerk; Council Members Randy Buschkoetter, Stan Clouse, Galen Hadley.  Absent: Don Kearney.  G. Allen Johnson, City Manager; Michael Kelley, City Attorney; John Prescott, 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: Larry Vogel, Kent Cordes, Dan Lindstrom, Travis Mason, Leonard Skov, Mark Bowman, Terry Hibberd, Brian Thome, Kyle Harshbarger, Terry Eirich, Matt Manary, Dan Lynch, Byron Hanson, Jim Tacha, Mike Martinosky, Lichelle Martinosky, Chris Vasquez, Rand Petersen, Rich Spellman, Jerry Thompson, Ken Tracy, Brian Summers, Sandy Walker, Mike Guenther, Jim Brooker, Scott Hayden, Tim Lowe, Steve Lewis, Carlos Segura, Jack Garrison, Davin Jones-UNK Representative, Mike Konz from Kearney Hub, and Mike Cahill from KKPR Radio.

 

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 Matt Robinson from the Presbyterian Church provided the Invocation.

 

PLEDGE OF ALLEGIANCE

 

The Kearney Volunteer Fire Department Color Guard presented the flags. Boy Scouts Dan Hanson and Matt Hanson led the Council members and audience in the Pledge of Allegiance.

 

RECOGNITION – BRIAN SUMMERS

 

Mayor Blankenship and Council members recognized Brian Summers for saving a boy’s life. He was presented an award by the Kearney Police Department.

 

RECOGNITION – KVFD MEMBERS JIM BROOKER, MIKE MARTINOSKY, MIKE GUENTHER AND SANDY WALKER

 

KVFD Service Awards were presented to Jim Brooker – 15 years, Mike Martinosky – 15 years, Mike Guenther – 5 years, Sandy Walker – 5 years.

 

RECOGNITION – SCOTT HAYDEN AND MARK BOWMAN

 

City employee Mark Bowman was honored for 25 years of service with the Utilities/Water Production Division. He was presented a $100 savings bond.  City employee Scott Hayden was also honored for 15 years of service with the Park & Recreation Department.  He was presented a watch.

 

ORAL COMMUNICATIONS

 

There was no Oral Communications.

 

II.    UNFINISHED  BUSINESS

 

There was no Unfinished Business.

 

III.    PUBLIC  HEARINGS

 

None.

 

IV.    CONSENT  AGENDA

 

Moved by Hadley seconded by Buschkoetter that Subsections 1 through 12 of Consent Agenda Item IV be approved.  Roll call resulted as follows:  Aye: Blankenship, Hadley, Clouse, Buschkoetter.  Nay: None.  Kearney absent. Motion carried.

 

1.         Approve Minutes of Regular Meeting held March 9, 2004.

 

2.         Approve the following Claims: 3CMA $350.00 Dues; A-1 Refrigeration $4,426.84 Rep; Adams Co Sheriff $1,000.00 Dues; Alamar Uniforms $2,907.00 Su; Amer Fence $660.00 Rep; Amer Planning $315.00 Dues; AMS $54.66 Rep; Antelope Newspaper $126.50 Serv; APWA $125.00 Tr; AT&T $141.86 Serv; Automated Systems $806.75 Serv; Baird, Holm $400.00 Serv; Baker & Taylor $1,469.71 Bks; Bamford $752.18 Rep; BBC Audiobooks $256.38 Bks; BD Construction $7,443.25 Serv; Beckson $77.06 Su; Berens-Tate Consulting $8,500.00 Serv; Blue Cross Blue Shield $39,042.45 Claims; Books on Tape $447.20 Bks; Bowman, M $40.25 Tr; Broadfoot Sand $2,726.65 Su; Buffalo Co Attorney $11,250.00 Serv; Buffalo Co Court $164.98 Ded; Builder's Warehouse $61.64 Su; Bundy, L $20.14 Ref; Capstone Press $1,644.60 Bks; Cash-Wa $166.27 Su; Child's World $1,152.70 Bks; City Glass $99.68 Rep; City of Ky $91,780.09 Various; College Savings Plan of NE $115.00 Ded; Construction Rental $95.00 Serv; Control Masters $828.00 Rep; Cordova, T $10.70 Tr; Culligan $67.67 Rep; Cummins Great Plains $429.64 Equip; Darley, W $275.59 Equip; Dawson Co PPD $11,672.82 Serv; Dineen, F $53.14 Ref; Direct Digital $4,616.56 Bks; Diverse Media $34.19 Bks; DT Development $1,354.41 Ref; Dugan Business Forms $1,016.41 Su; Dutton-Lainson $562.99 Various; Dynix $1,011.50 Serv; Eakes $121.24 Su; Ecolab $26.00 Su; EDM Equipment $639.29 Various; EFI-Wright Sales $1,331.03 Rep; Ely Churchich & Assoc $11,363.00 Serv; Envirotech Services $11,376.70 Su; ESRI $3,128.50 Various; Fastenal $14.54 Rep; FBINAA $55.00 Capital Outlay; Fedex $148.48 Pstg; Freburg, N $184.62 Ded; Fred Pryor Seminars $195.00 Tr; Fremont Nat'l Bank $33,729.26 Ded; Frontier $7,730.93 Serv; Galls $386.41 Various; Garrelts, P $8.05 Ref; Garrett Tires $4,862.06 Various; Gary's I-80 $880.00 Serv; Great Plains One-Call $114.79 Serv; Great Plains Safety & Health $2,175.00 Serv; Guideposts $16.94 Bks; H&G Cleaners $264.67 Serv; ICMA RC $2,879.94 Ded; IRS $75,799.13 Ded; Jack Lederman Co $60.36 Various; James W Bell Co $182.20 Su; Johnson Corrosion Eng $1,976.64 Serv; Ky Clinic $434.00 Serv; Ky Concrete $1,677.77 Serv; Ky Hub $2,986.34 Serv; Ky Winlectric $97.92 Su; Ky Winnelson $7,143.90 Inv; Kirkham Michael $1,003.51 Serv; Lamp, Rynearson & Assoc $860.30 Serv; Laser Art Design $23.54 Serv; Laughlin, K $360.00 Ded; Lawchek $250.00 Bks; Lea, A $8.78 Ref; Lerner Publication $150.82 Bks; Lewis, J $51.55 Ref; Lexis Nexis $89.00 Bks; Linda's Upholstery $91.85 Su; Linweld $70.74 Various; Lisa's $10.00 Serv; Lynch, D $106.95 Tr; Magic Cleaning $600.00 Serv; Marlatt Machine Shop $15,436.98 Various; Martinosky, M $50.00 Ref; McLaughlin, P $10.70 Tr; MGS Tech $19.28 Serv; Microfilm Imaging $2,380.00 Serv; Mid America Pump $6,254.00 Rep; Midlands Contracting $7,432.00 Rep; Midwest Turf $82.08 Rep; Miller & Associates $35,276.59 Serv; Miller Signs $1,916.00 Various; Mitchell 1 $530.60 Bks; Moore Construction $737.54 Ref; Motorola $20,106.14 Serv; MSI Systems $2,500.00 Serv; Municipal Supplies $475.91 Su; Murray, S $35.71 Ref; Nat'l Paper Supplies $150.00 Su; NWWA $20,690.58 Various; NCS Equipment $154.48 Rep; NE Child Support $978.49 Ded; NE Supreme Court $104.85 Bks; NE Assoc of Airport Officials $500.00 Rep; Ne-IAI $15.00 Tr; Nelson Furniture $2,322.79 Serv; NERPA $30.00 Tr; Northstar Audio Books $6.50 Bks; Northwestern $13,733.95 Serv; NSVFA $1,455.00 Tr; Office Depot $1,584.04 Su; Ostendorf, J $31.52 Ref; Overhead Door $1,275.51 Various; Paramount Linen $54.12 Su; Paul Otto Curb Grinding $54.00 Serv; Pierson, Fitchett $81.00 Serv; Platte Valley Communications $5,998.13 Serv; Presto X $121.00 Serv; Quality Books $2,330.39 Bks; Recorded Books $134.80 Bks; Regional Books $180.54 Bks; Research Tech $89.95 Su; Riverside Animal Hospital $1,000.85 Serv; Roper's Radiator $39.50 Su; Saathoff, J $800.97 Various; Sahling Kenworth $266.28 Rep; Sandhills Press $47.00 Bks; Sesna, D $10.70 Tr; S-F Analytical Lab $490.00 Serv; Shamrock $52.98 Su; Simmerman Electric $390.00 Rep; Slack, E $53.14 Ref; Snap on Tools $926.35 Tools; Solid Waste Equipment $4,044.00 Containers; Special Operations Tech $139.00 Equip; Splitter, M $423.23 Tr; Sprint $199.08 Serv; St of NE Dept of Aeronautics $1,470.00 Various; Super Shine $7.00 Rep; Sutphen $114.30 Rep; T&B Cleaning $1,500.00 Serv; Theis, G $32.23 Pc; Thompson, J $40.25 Tr; Underground Construction $7,820.00 Serv; Union Oil $228.00 Inv; UNK-Human Resources $242.49 Serv; Urbanek, G $10.70 Tr; US Postmaster $345.00 Pstg; VHPS $152.96 Bks; Village Cleaners $289.36 Various; Washington State Support $102.01 Ded; Wilke Donovan's $56.39 Rep; Willenberg, B $10.23 Ref; Willis Shoes $140.13 Rep; WPCI $214.00 Serv; Zimmerman Printers $245.95 Serv; Payroll Ending 03-06-2004 -- $234,157.72.  The foregoing schedule of claims is published in accordance with Section 19-1102 of the Revised Statutes of Nebraska, and is published at an expense of $_________ to the City of Kearney.

 

3.         Receive recommendations of Planning Commission and set April 13, 2004 at 7:30 P.M. as date and time for hearing on those applications where applicable.

 

4.         Ratify the action taken by the Kearney Municipal Airport Corporation on approving the T-Hangar A-2 Lease Agreement with Timothy Rhoads, dba “Falcon Helicopters, Inc.” and approve Resolution No. 2004-46.

 

RESOLUTION NO. 2004-46

 

BE IT RESOLVED by the President and City Council of the City of Kearney, Nebraska, that the President be and is hereby authorized and directed to execute the T-Hangar Lease Agreement, on behalf of the City of Kearney, Nebraska, with Timothy Rhoads, dba “Falcon Helicopters, Inc.”, a copy of the Agreement, marked Exhibit “1”, is attached hereto and made a part hereof by reference.

            PASSED AND APPROVED THIS 23RD DAY OF MARCH, 2004.

 

ATTEST:                                                                       PRESIDENT OF THE COUNCIL

                                                                                    AND EX-OFFICIO MAYOR

CITY CLERK

 

5.         Approve the application for a Special Designated License submitted by STEVE & JONI PAULSEN, dba “Party Pros Catering” in connection with their Class D/K Catering Liquor License to dispense beer, wine and distilled spirits at the Buffalo County Fairgrounds, 3807 Avenue N in the Exposition Building on April 16 and 17, 2004 from 12:00 p.m. (noon) until 1:00 a.m. and in the Exhibit Building on April 16 and 17, 2004 from 9:00 p.m. until 1:00 a.m. in connection with the Rodeo and Dance.

 

6.         Approve Change Order No. 6 for a decrease in the amount of $1,325,737.00 submitted and approved by CH2M Hill in connection with the Wastewater Treatment Plant Renovation Project and approve Resolution No. 2004-47.

 

RESOLUTION NO. 2004-47

 

WHEREAS, Centric/Jones Company of Denver, Colorado has performed services in connection with the Kearney Wastewater Treatment Plant Improvements, Schedule “A”, and the City's engineer, CH2M Hill, have filed with the City Clerk Change Order No. 6 showing a decrease in the amount of $1,325,737.00 as shown on Exhibit “A” attached hereto and made a part hereof by reference as follows:

 

Original Contract Sum

$12,950,000.00

     Change Order No. 6

-  1,325,737.00

 

 

Contract Sum To Date

$11,624,263.00

 

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

            PASSED AND APPROVED THIS 23RD DAY OF MARCH, 2004.

 

ATTEST:                                                                       PRESIDENT OF THE COUNCIL

                                                                                    AND EX-OFFICIO MAYOR

CITY CLERK

 

7.         Approve the application for a Special Designated License submitted by JUAN LAZO, dba “El Tropico” in connection with their Class B/M37623 Liquor License to dispense beer and distilled spirits in the Exhibit Building located at the Buffalo County Fairgrounds, 3807 Avenue N on May 1, 2004 from 12:00 p.m. (noon) until 1:00 a.m. in connection with the Cinco de Mayo Celebration subject to the City receiving the required Certificate of Insurance.

 

8.         Designate Wells Fargo Bank Nebraska, N.A. of Kearney; Platte Valley State Bank & Trust Company of Kearney; Kearney State Bank & Trust Company of Kearney; US Bank of Kearney; Nebraska National Bank of Kearney; Commercial Federal Bank of Kearney; TierOne Bank of Kearney; and Five Points Bank of Kearney as the City’s depositories for funds of the City of Kearney and approve Resolution No. 2004-48.

 

RESOLUTION NO. 2004-48

 

            WHEREAS, the Mayor and City Council have determined that it is appropriate and proper to designate various banks as depositories for funds of the City of Kearney.

            NOW, THEREFORE, BE IT RESOLVED by the President and City Council of the City of Kearney, Nebraska, that Wells Fargo Bank Nebraska, N.A. of Kearney, Platte Valley State Bank & Trust Company of Kearney, Kearney State Bank & Trust Company of Kearney, US Bank of Kearney, Nebraska National Bank of Kearney, Commercial Federal Bank of Kearney, TierOne Bank of Kearney, and Five Points Bank of Kearney be and are hereby designated as city depository banks.  However, such designation as a city depository shall not be exclusive and shall not be determined in any way to constitute a franchise to the exclusion of other designated depositories.

 BE IT FURTHER RESOLVED by the President and City Council of the City of Kearney, Nebraska that checks, drafts or other withdrawal orders issued against the funds of the City on deposit with said depositories be signed by any one of the following who now hold offices or positions with the City:

            G. Allen Johnson, City Manager

            Wendell R. Wessels, Director of Finance and Administration

            Nancy Roth, Accounting Technician

BE IT FURTHER RESOLVED that all resolutions and parts of resolutions in conflict herewith are hereby repealed and that Resolution No. 2002-110 is hereby specifically rescinded and repealed.

PASSED AND APPROVED THIS 23RD DAY OF MARCH, 2004.

 

ATTEST:                                                                       PRESIDENT OF THE COUNCIL

                                                                                    AND EX-OFFICIO MAYOR

CITY CLERK

 

9.         Approve the request submitted by Cathleen McCue-Headlee to extend Conditional Use Permit No. 95-02 granting a dog grooming service at 211 East 30th Street for a period of one year.

 

10.        Approve Change Order No. 1 for a decrease in the amount of $10,355.60, Application and Certificate for Payment No. 3-Final in the amount of $8,493.63, and the Certificate of Substantial Completion submitted by Dan Roeder Concrete and approved by Miller & Associates in connection with the 2003 Part III Improvements consisting of Paving Improvement District No. 2003-874 for 52nd Street from Avenue E to 175 feet west of Avenue B Place, Paving Improvement District No. 2003-875 for Avenue C Place from 52nd Street to its terminus in a cul-de-sac, Paving Improvement District No. 2003-876 for Avenue B Place from 52nd Street to its terminus in a cul-de-sac and approve Resolution No. 2004-49.

 

RESOLUTION NO. 2004-49

 

WHEREAS, Dan Roeder Concrete, Inc. has performed services in connection with the 2003 Part III Improvements consisting of Paving Improvement District No. 2003-874 for 52nd Street from Avenue E to 175 feet west of Avenue B Place, Paving Improvement District No. 2003-875 for Avenue C Place from 52nd Street to its terminus in a cul-de-sac, Paving Improvement District No. 2003-876 for Avenue B Place from 52nd Street to its terminus in a cul-de-sac, and the City's engineer, Miller & Associates, have filed with the City Clerk Change Order No. 1 showing a decrease in the amount of $10,355.60 as shown on Exhibit “A” attached hereto and made a part hereof by reference; and

WHEREAS, Dan Roeder Concrete, Inc. and Miller & Associates have filed with the City Clerk Application and Certificate for Payment No. 3-Final in the amount of $8,493.63 as shown on Exhibit “B” attached hereto and made a part hereof by reference and as follows:

 

Original Contract Sum

$225,828.20

     Change Order No. 1 (3-23-2004)

-  10,355.60

 

 

Contract Sum To Date

215,472.60

Gross Amount Due

215,472.60

Retainage

.00

Amount Due to Date

215,472.60

Less Previous Certificates for Payment

  206,978.97

 

 

Current Payment Due

$    8,493.63

 

            WHEREAS, the Engineer and Contractor have now certified to the City Clerk that work is completed as of August 21, 2003, as shown by Exhibit “C” attached hereto and made a part hereof by reference.

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, and hereby find and determine that Change Order No. 1, as shown on Exhibit “A”, Application and Certificate for Payment No. 3-Final, as shown on Exhibit “B”, and the Certificate of Substantial Completion, as shown on Exhibit “C” be and are hereby accepted and approved.

            PASSED AND APPROVED THIS 23RD DAY OF MARCH, 2004.

 

ATTEST:                                                                       PRESIDENT OF THE COUNCIL

                                                                                    AND EX-OFFICIO MAYOR

CITY CLERK

 

11.        Approve the request submitted by the Kearney Volunteer Fire Department, in conjunction with Kidz Explore, to block off the west end of Platte Road in front of the Tri-City Arena, 609 Platte Road, on April 24, 2004 from 9:00 a.m. until 6:00 p.m. and on April 25, 2004 from 12:00 p.m. until 5:00 p.m.

 

12.        Ratify the action taken by the Kearney Municipal Airport Corporation on approving the execution of a Letter of Support for Essential Air Service to the Department of Transportation and approve Resolution No. 2004-50.

 

RESOLUTION NO. 2004-50

 

            WHEREAS, the Kearney Municipal Airport has been working diligently to improve the air service options available to central Nebraskans and to increase the number of enplanements from the local airport; and

            WHEREAS, the Department of Transportation is presently accepting recommendations to award a two-year contract for Essential Air Service; and

            WHEREAS, such contract could provide up to $1 million in improvement funds contingent on the number of enplanements; and

            WERHEAS, on March 23, 2004, the Kearney City Council approved a resolution submitting a recommendation to the Department of Transportation to provide eastbound air service from Kearney, Nebraska to Kansas City, Missouri with one stop in Grand Island, Nebraska, and to provide westbound air service from Grand Island, Nebraska to Denver, Colorado with one stop in Kearney, Nebraska; and

            WHEREAS, this proposal would serve more passengers in central Nebraska, and would be the best use of federal Essential Air Service subsidies; and

            WHEREAS, the City of Kearney, Nebraska supports these cooperative efforts to increase affordable, convenient options for air travel for central Nebraska; and

            WHEREAS, increased traffic to serve central Nebraska would be a valuable asset to the community and surrounding area.

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that the President and City Council of Kearney, Nebraska do hereby pledge their full support, endorsement, and cooperation with the City of Grand Island, Nebraska in submitting a recommendation to the Department of Transportation seeking Essential Air Service improvement funding to provide eastbound air service from Kearney, Nebraska to Kansas City, Missouri with one stop in Grand Island, Nebraska, and to provide westbound air service from Grand Island, Nebraska to Denver, Colorado with one stop in Kearney, Nebraska.

            BE IT FURTHER RESOLVED that a Letter of Support executed by the Airport Manager and the Kearney City Council, acting as the Kearney Municipal Airport Corporation, be submitted to the Department of Transportation expressing support for such project.

            PASSED AND APPROVED THIS 23RD DAY OF MARCH, 2004.

 

ATTEST:                                                                       PRESIDENT OF THE COUNCIL

                                                                                    AND EX-OFFICIO MAYOR

CITY CLERK

 

V.    CONSENT  AGENDA  ORDINANCES

 

None.

 

VI.    REGULAR  AGENDA

 

SECOND AMENDMENT TO LIGHTHOUSE POINT SUBDIVISION AGREEMENT

 

Moved by Buschkoetter seconded by Blankenship to remove from the table for discussion the “Second Amendment to Lighthouse Point Subdivision Agreement” between the City of Kearney and DT Development, Inc. and to consider Resolution No. 2004-45. Roll call resulted as follows:  Aye: Blankenship, Buschkoetter, Hadley, Clouse.  Nay: None.  Kearney absent. Motion carried.

 

During the development of the Lighthouse Point Addition to the City of Kearney, the developer and the City negotiated a “Lighthouse Point Subdivision Agreement”, which was amended at the developer’s request on May 28, 2002 by authority of Resolution 2002-138. The Council previously received a letter from Jeff Orr, Attorney for DT Development, requesting to amend Paragraph 13 of the Amended Agreement (originally Paragraph 16) to read as follows: “To develop Lot 1, Block 1 of Lighthouse Point preliminary plat as approved on May 21, 1993, referred to as Lot 1, Block 7 in the Lighthouse Point final plat, as a planned zone to include condominiums and townhouses. The ultimate developer of this lot shall landscape, light, and otherwise improve the area and create a Homeowners Association as an ongoing entity to maintain and further improve this lot.”

 

The original agreement only allowed duplex condominiums to be built on this lot. With this amendment the developer would be allowed to build up to 4 unit condominiums or townhouses.

 

According to the last sentence of Mr. Orr’s request letter, “a representative of the developer will in fact contact the Lighthouse Point Homeowners Association and advise them of the proposed changes…”

 

Attorney Dan Lindstrom, representing DT Development, presented this matter to the Council. He stated the Lighthouse Subdivision Agreement has been amended previously and DT Development is requesting a second amendment to this agreement.  This amendment would change the language relating to a partial in the Lighthouse Point Subdivision that had original been considered for condominium development and is zoned R-2 which would permit condominium development.   The language in the original agreement recited the old Zoning Ordinance.  The R-2 ordinance has now been amended to permit 4-plex rather than duplex townhouse and condominium development.  He asked to have that language inserted to permit 4-plex condominium development on this property.  In addition there was some language concerning a fence or a fencing requirement, which they are requesting to have stricken.  This comes from a discussion that DT Development had with City planning staff.  Mr. Lindstrom’s understanding was that the planning staff was in support of that amendment.  These amendments would allow them to comply with the zoning ordinances that presently exist.

 

Council Member Clouse commented that the agreement states “planned zone to include duplex condominiums”.  He asked for clarification since Mr. Lindstrom referred to the UDO.

 

Mr. Lindstrom stated that in the original agreement of 1993, there was no UDO at that time and the zoning ordinance has since been amended.  This is also a plan zoned which was in effect in 1993.  This affects, to some degree, how the Planning Commission, City staff and perhaps the Council will review development plans for that property.  The language that was in the agreement mirrored the language and the requirements of an R-2 zone as it existed in 1993.   Since that time the R-2 zoning has changed.  If the agreement had stated that it be consistent with an R-2 zoning than they would be looking at basically the same effect as this amendment that is suggested.

 

Council Member Buschkoetter stated that the language in the 1993 agreement mentioned “duplexes” by name.  He believed that in 1993 that it was understood clearly as duplexes only.  There was a written agreement with signatures which talked about duplexes not 4-plexes and the issue at hand is amending that agreement.  He asked Mr. Lindstrom to address that change as it affects the people in that neighborhood, who purchased their property based on that idea which now is being considered for change.

 

Mr. Lindstrom responded he was not a party to the negotiations in 1993, but his understanding is that they were looking at this property to be properly zoned R-2.  He believed that City planning staff prefers to see a transition from single family residential housing to multi-family especially as it approaches an arterial such as 39th Street, which abuts this piece of property.  These lots are on the very southwestern boundary of Lighthouse Point as it intersects with 39th Street and Country Club Lane.  He believed that the intention at the time was to have an R-2 type of zoning.  He clarified that DT Development is not intending to develop this parcel; there is a potential buyer who is working with City staff.  Mr. Lindstrom’s understanding is the potential buyer’s discussions with City staff would be much more suitable with a 4-plex type of development than a duplex type of development.  He also understood that City staff favors the 4-plex developments because it fits better with the kinds of restrictions that are required.  However, these are issues for that developer to take to the Planning Commission and to be addressed at another time. 

 

Mr. Lindstrom stated that they do not want it to any longer say duplex; they want it to say 4-plexes permitted under the current R-2 zoning.  The agreement has been amended once and this would be a second amendment.  He believes this fits in with what is being done in the City with similar developments and fits with Kearney’s present zoning code.  He is unaware of the arguments of those who might be in opposition to this. He was uncertain about the facts these owners might present that would indicate that they relied at all on the agreement, read it, or understood it.

 

Council Member Hadley asked about what is allowed under the current R-2 zoning. Director of Public Works Rod Wiederspan responded that the current R-2 zoning allows a 4-unit townhouse, which is basically taking two duplexes and putting them together making four units with a front and back entrance for each.  The previous zoning code was strictly duplex units.  The new UDO allows up to a 4-unit townhouse, not a 4-plex, top to bottom box type of apartment, but a townhouse that has a front and a back door.  The definition of a townhouse and condominium is basically the same and can be used interchangeably.  In the original agreement, the duplex design was required to have a front and rear entrance (not a box stacked type situation). 

 

In answer to Council Member Hadley’s question, Mr. Lindstrom responded that Mr. Orr, on behalf of DT Development, sent a letter to Mr. Kelley saying that he would notify the representatives of the homeowners association regarding the proposed changes.  There are two attorneys that represent the homeowners association. It is his understanding that both have been contacted but he has not visited with either of them, but representatives of DT Development have.  The association’s attorneys have passed along the information to the homeowners.  There has been no direct feedback to DT, and their attorneys have not indicated that they have received any negative feedback.  He did not know what information that they have received about what this development would look like.  Mr. Lindstrom stated that he visited with the proposed developer, and that his initial design plan has just recently been prepared.  Mr. Lindstrom stated whether the homeowners have looked at the design plan or not – that is not the issue before the Council.  The design plan is an issue for the Planning Commission to review at the appropriate time.  

 

Mayor Blankenship suggested this matter should be considered by the Planning Commission issue since this change could possibly impact traffic, off-street parking, entrances and exits. Mr. Lindstrom responded the approval of the development plan itself is within the Planning Commission’s province.  The Council can review the development plan and City planning staff spends a lot of time reviewing it before and after it goes to Planning Commission.  Mr. Lindstrom stated in his opinion, this issue is outside the Planning Commission’s province because it has no ability to sign an agreement on behalf of the City.  The Council approves those agreements and amendments to those agreements. 

 

Council Member Clouse stated that there is another issue about the fencing along 39th Street.  He asked what was the reason for removing the fencing and some other things along 39th Street as stated in the original agreement? Mr. Lindstrom responded that at a meeting with City staff, who were aware of the general nature of the layout design of the new developer, that it was apparent there was nothing in the original agreement describing the type of fence, except that it is a privacy fence.  With the agreement of City staff, the request was made to pull the fence from that language.  City staff was uncertain about the function of the fence, if it would provide benefit to the people of the multi-family development or to the single-family owners. 

 

Council Member Buschkoetter asked if it was unusual for development of a subdivision to have this type of an agreement.  Director of Public Works stated that there are subdivision agreements, but usually they deal with infrastructure, payment method (districts or infrastructure agreement).  A subdivision agreement usually does not deal with a duplex, condominium or fence issue.  Typically, those are more of a restrictive covenant that is handled within a subdivision.  On this agreement, there are a number of items that the developer wanted to see in the subdivision agreement and the fence was one of them.

 

Mr. Lindstrom stated that a covenant is an agreement that is entered into which defines the land.  It runs with the land and each covenant is different.  He stated there are no covenants to his understanding that apply directly to this piece of property.  He also stated that there are covenants within Lighthouse Point Subdivision that apply to the R-1 properties.  Those covenants would not be appropriate for this type of multi-family type development because they speak to development issues of single-family homes.  This is a development agreement between the City and the developer and at that time there were some things that were anticipated and as we all know in the development business things change.  One of the things that changed is the request from the City to revise this agreement.  Most times those details are handled with planned zoned or zoning constraints that are already a part of the zoning code.

 

Council Member Buschkoetter stated that to play devil’s advocate, this agreement was not handled in this way in this circumstance.  He quoted Mr. Lindstrom when he said “covenants run with the land” and asked as the agreement stands now, does it not run with the land?  Mr. Lindstrom responded that it does not because this agreement is between the City of Kearney and the developer that sets out certain perimeters that will define that relationship. If the land were sold, the agreement would not go with the land because it is an agreement between the City and DT Development, not an agreement that would be binding on other property owners at a later time.  The R-2 zoning of the property would remain. 

 

Council Member Hadley posed the question about what right the City has to change this agreement when the property owners in that area are the ones that must live with the changes in the agreement and might have based their purchase on stipulations of the agreement. Mr. Lindstrom answered that it is no different than the City by passing the UDO, which changed the R-2 zone from what it was in 1993 to what it is today.  This amendment essentially does the same thing.  The decision to adopt the UDO affected essentially every homeowner in this community.  He believed that it is important for the City to be able to do this and everyone agreed to that when the new zoning ordinance was adopted.  He stated that it is also important to remember when a person owns a piece of land and wants to control what happens on the land next to it, he needs to rely on the City to follow the zoning codes.  However, that person really does not have any business getting involved in what that owner does unless he has some contractual or regulatory rights to do that.  

 

Mr. Lindstrom stated he could not speak for the developer or what his project might look like.  His impression is that those who have called the City today from the homeowners association and expressed what a terrible thing this is have in their mind some idea that this is going to be an ugly looking development.  He visited with the developer and does not believe that is going to be the case at all.  He urged those people to take those issues before the Planning Commission and deal with them there.  They need to look at the development, as it is proposed and the quality of the development. He did not believe that 4-plexes would be a disadvantage to the City or the homeowners.  After visiting with the proposed Developer, City staff has indicated that the number of curb cuts that would be required, ease of getting services to each unit (garbage truck and fire trucks), in terms of aesthetics, it actually works better than several duplexes.

 

Council Member Clouse stated he looks at this as a “housekeeping” item.  He asked by cleaning things up before they have all the discussion, what is the impact on the developer if they wait and do this “housekeeping” after the developer comes to the Planning Commission? Mr. Lindstrom that the problem is that the developer, who intends to buy this property from DT Development, has in his purchase agreement a provision that says this must happen before he will buy the property.  If this developer does not buy the property, then it is unknown what the next buyer might want to put there.  This developer wants to move forward with this development fairly rapidly and delay will put some hardship on him. 

 

Stephen Lewis, 4303 28th Avenue, is vice-president of the Lighthouse Point Homeowners Association and spoke on their behalf.  Mr. Lewis stated that he hoped to answer some of the questions about why they have higher expectations for their subdivision. He quoted from DT Developments paragraph 2 of the subdivision covenants: “It is the belief of the developer that Lighthouse Point Addition is an exclusive development designed for those who appreciate and expect those extras provided in this development and therefore the following restrictive covenants have been set forth to further and provide for those investing and building in the subdivision and for the preservation of the natural beauty and terrain of the area. It is the unanimous position of the board of directors of Lighthouse Point Homeowner Association that those City resolutions and the covenants that were created by the City and the developer and signed by all members of the Association not be changed by allowing any alterations that could have an adverse affect.” 

 

Mr. Lewis stated that the current owners made decisions based on promises in those covenants and those resolutions passed by the City Council.  He stated that it is the position of the Lighthouse Point Homeowners Association that the proposal to alter the original agreement and allow construction of triplex and quadplex units (a triplex was in the plan they obtained as of January 27, 2004) is not acceptable.   Although they do not have a copy of the most recent plan, they believe that contrary to all the parties involved there are some safety issues that were present in that plan.

  • Limited ingress and egress from the west boundary of the development with no outlet onto 26th Avenue, which negates the purpose of 26th Avenue.
  • Funneling traffic might lead to an earlier need for a stop light at Country Club Lane and 39th Avenue.
  • Lack of sidewalks and curbs except from garage edge to the front door.
  • There are no curbs.
  • There are no setbacks and Lighthouse Point covenants require 35-foot setbacks.
  • Inadequate parking for residents because no parking on the street is allowed.
  • No open or common space or facilities for the residents.
  • There is no open area for children to play (it is expected there would be children in these complexes).

 

Lighthouse Point Subdivision Board unanimously voted on the fence in the covenants. According to the covenants that were in effect in 1993, neither the developer nor anyone else may grant an exception to those covenants.  Mr. Lewis stated that every current homeowner that they could reach signed their petition stating that they made their purchase decision based on the proceeding agreements.  They also agreed that they believed that the duplex issue was over and above the R-2 zoning issue. There are some duplexes in their subdivision and they would like to have more of them. There are some $1,000,000 homes that do not have 7,300 square feet as Mr. Lindstrom indicated each unit of the 4-plex would have. 

 

Mr. Lindstrom indicated that this is not the first time the bylaws of Lighthouse Point Subdivision have been amended.  Mr. Lewis stated that Mr. Orr is aware of the fact that the Lighthouse Point Homeowners Association has retained counsel out of Lincoln, Nebraska regarding that first amendment which was passed on a consent agenda.  The privacy fence issue was addressed in a letter received in October from a real estate agent representing Mr. Segura.  After receipt of this letter, the Lighthouse Point Board met regarding removing the privacy fence requirement. Their response was that they would not remove the fence requirement; however, they might reconsider that decision if they were allowed to have a chance to look at the elevations and what the building would actually look like.  Their thought was that they would rather see nice buildings than a privacy fence; however a privacy fence is preferable depending on what the buildings look like.  That is the last correspondence they have had with them. 

 

The Board has also been trying since last May (when this board was formed) to meet with Mr. Orr and members of DT Development.  After numerous calls, no response was received from them.  Mr. Lewis stated that they do not want to go to trial or sue anybody, which would cost a lot of money even if they won.  They want compliance of the agreements that were made.  He indicated their willingness to meet with the developer or builder at any time. On behalf of the residents of Lighthouse Point, he requested that the Council not accept this second amendment.

 

Mayor Blankenship stated that he is not justifying anything that any of the attorneys have done, but when there is pending litigation then it is not ethical for Mr. Orr or anyone from that firm to visit with residents of Lighthouse Point, but would need to visit with their attorney.  Mr. Lewis responded that in May the litigation was not pending, in fact they didn’t even have an attorney other than to look over the covenants. 

 

Mayor Blankenship stated that he has lived in Kearney for 35 years and this is not the way we do business in Kearney.  He believes that the Council needs to find a way to set the two groups down together and work through these issues.  This is going to be an ongoing process and there are a lot of acres out there that need to be developed.  He further stated that he does not want to have to address these kinds of issues time after time.  He sees a couple of options: 1) table this issue and if it is important to both parties then they will get together and visit about it, or 2) take it to the Planning Commission where it will be considered and ultimately come back to the Council.

 

Council Member Clouse said that he would agree with the Mayor’s sentiments.  He also had a question for the Director of Public Works.  If the sale is approved and is contingent on amending this covenant, when the developer as owner of the property takes this to the Planning Commission and they run into stumbling blocks, could they still be denied the ability to develop that property?  Mr. Clouse believes there needs to be some dialog taking place to make sure there is a neighborhood that fits well and does not have this adversarial relationship.  He would prefer this to be done upfront and brought back to the Council as a “housekeeping item”. Director of Public Works Rod Wiederspan responded they could not be denied if they build within the UDO. If the developer meets the criteria for the R-2 zone under the present UDO, he would have the right to proceed.  The use is granted by the zoning, if amended to follow the UDO. In a planned district, the City staff can suggest changes in the plan and then try to work together with the developer and Planning Commission to work with the issues to meet the concerns of the neighborhood.  If the developer is unwilling to make those changes, then he has a legal right to go through the process to see that he is meeting the intent of the code. 

 

This typically does not happen because the City can work things out before it get to that point.  Legally, they cannot tell the developer that he cannot build, that is a whole other issue.  This developer was on the Planning Commission for the past two months and decided to continue it because an agreement had not been worked out at the Council level.  The Planning Commission believed that it was not in the best interest to act on it in violation of what the Lighthouse Point Subdivision agreement states.  Mr. Wiederspan stated he thinks that the developer should go to the Lighthouse Point Homeowners Association and sit down as a group, work it out, and then come back together to the Council to change the agreement to allow it to go forward.

 

Mr. Lewis stated that this developer is in no way involved with the first amendment that was made.  The developer can sit down and talk to the Homeowners board and they would welcome that.  In their letter to the developer, dated November 3, 2003, they indicated they might be willing to consider 4-plexes if they could be allowed to have some approval over what the buildings look like.  They would rather see pretty houses than an ugly fence.  In the City’s resolution, they believe that it would bind the developer and the builder because the resolution would take precedence over the Planning Commission’s recommendation.  They possibly would be willing to reconsider their stand on the duplex issue if the developer would bring his plan to them.  The only option the Homeowners Association believed they had was to look at one item that Mr. Segura has built (12 units behind Wal-Mart) which appear to be very much like the proposal they received in January.  His opinion is if that were what they are going to look like, he would rather have the privacy fence.  If the developer has something different planned, then they want to see it.

 

Mr. Lindstrom stated in answer to a question from Council Member Clouse, he does not believe that the Planning Commission has the jurisdiction to decide this issue.  As Mr. Wiederspan indicated, they are getting “the cart before the horse” if you have a developer who does not own the property, who has not and might never close on the property because he does not have the agreement that is contingent on closing on the property. If the developer goes to the work that needs to be done between now and the Planning Commission, which is scheduled for April 16th, and is turned down there; he has done this all for nothing.  He did not think that it would be appropriate at all to take this to the Planning Commission. 

 

If the homeowners have an issue about the esthetic nature of the development, they should have that conversation.  Mr. Lewis has indicated that they are willing to do that.  Mr. Lindstrom had a conversation with the developer and the information that he had was passed along to the Association.  He indicated that the City staff knows who the players of this Association are.  People are not “stonewalling” these people and would not do that unless there was a good reason to not talk to them in mass.  He believed there is a phenomenon that happens when talking to people in a group that prevents rational discussion sometimes.  In light of the fact that there is threatened litigation, it is important that they speak through the authorized representative.  As he indicated, they are prohibited from talking to the Association. The new developer could talk with these people; but he has indicated that he has received no feedback. 

 

Mr. Lindstrom stated that he resents the fact that his client has been placed to blame for a situation that is not the case at all.  He urged the Council to move forward with the amendment and pass the resolution.  If esthetics needs to be discussed, then that should happen after the developer presents his plan to the Homeowners Association, Planning Commission, and City staff.  Mr. Lindstrom stated he had not seen any elevations and did not think that City staff had either.  He believed that it is a Planning Commission issue.

 

Mr. Lindstrom said he knows the intent of the person that drafted the original agreement and he knows the intent of the developer, who is his client.  In 1993, the intention was that this be developed as an R-2 property.  It has always been intended to be a multi-family, condominium, R-2 type development.  The code has changed and the underlying criteria that the City uses to evaluate it have somewhat changed.  He believed that this is consistent with what is being done in other areas in Kearney.

 

Council Member Buschkoetter stated that he disagreed with Mr. Lindstrom’s statement.  There was no way to envision in 1993 that the UDO would be passed and it would move away from what is written in “black and white” and that is the word “duplex.”  There is no reason for the developer to think that in the future, they would be able to put in a 4-plex.  Meanwhile, Lighthouse Point Homeowners Association is reading in “black and white” that duplexes are the only thing to be built according to the agreement.  In this case, there is a restrictive subdivision ordinance that is more restrictive than most subdivision ordinances.  He stated if he were a homeowner there, he would think that agreement offered him some protection from exactly what is being proposed.  His issue is dealing with what was perception, not necessarily the letter of the law, and whether or not the City’s responsibility is to protect what was perceived by the owners of that subdivision. 

 

Mr. Lindstrom responded what he understood from what Mr. Lewis said that the homeowners were talking about their bylaws and covenants, which is not this issue. He could not address what each of those homeowners was thinking when they purchased property.  He also could not address if they understood this was an agreement between the developer and the City and not between the City and them nor them and the developer.  

 

Council Member Hadley asked Mr. Lindstrom to summarize, leaving the homeowners out of it, why the Council should change this agreement, and why is it in the best interest of the City to change this agreement?

 

Mr. Lindstrom responded that he did not think that the Homeowners Association threatening the City with litigation is an appropriate way for them to influence what happens on another piece of property.  In visiting with City staff which understands precisely what the development issues are on this piece of property, he found they were of a mind that this is a better fit than what would exist otherwise. If this property were laid out in this fashion, it would actually fit the esthetics, the development, and the provision of City services to this property better than if it were laid out as duplexes. By laying this out as duplexes, they might find that it is not economically feasible as the homeowners or the City would like to see it done.  Mr. Lindstrom pointed out that the homeowners are not paying for this development so he concluded they could not decide the standards.  The developer must make these economic decisions.

 

Mayor Blankenship stated this is a rather simple matter and to some extent, he agreed with Mr. Lindstrom.  He believed the crux of the matter is that people in this subdivision thought only duplexes could be built, and are concerned this proposal could double the number of units and people in their area. If this were a completely new subdivision, such as 56th Street, the UDO would apply.  In this situation, there are neighbors that bought this land thinking they would have duplexes in their area.  There is a process in place where the Planning Commission makes recommendations to the Council relative to development.

 

Mr. Lindstrom stated that duplexes could possibly increase the number of people because they would be configured differently.  He believed that is an issue for staff and Planning Commission to approve depending on what plan is submitted.  He did not see how this situation could be reconciled with 56th Street.  Mr. Lindstrom stated that he represented the petition from the neighbors that did not want 56th Street rezoned.  He said he made the same arguments that others were making regarding this issue and the Council rezoned it.  He did not believe there was a lot of difference between them.  Mayor Blankenship stated he could reconcile it because it was all a part of the plan that came to the Council in 1993 and is the same piece of property and the same owners.  Council Member Buschkoetter commented that Kearney has gone beyond simple zoning and created a more restrictive subdivision agreement.  He believed that this is easy to reconcile because this is a different case. This is an existing subdivision agreement that is more restrictive than probably 80 percent of all other agreements out there. 

 

Mr. Lindstrom stated he appreciates the difficulty that this presents and he did not mean to be unduly argumentative about it.  He knows that the Council must listen to both sides and do so with great patience and dignity.  He believed that there is a difference and so on that point, he disagrees. Mayor Blankenship stated that he wanted to see a resolution to this, although it might not happen immediately.  What he wanted to see happen is for Mr. Lindstrom, DT Development, and the potential buyer to visit with the Homeowners Association and their attorney.  He asked Mr. Lindstrom if that could ethically be done?  Mr. Lindstrom answered that there are some difficult issues involved, the threat of litigation, the accessibility of Lincoln counsel to participate, and the reluctance of the Homeowners Association to involve their attorneys in the discussions, which was communicated to him. 

 

Council Member Clouse stated that as he sees it there are four options, approve, deny, table, or get Planning Commission’s input.  Mr. Lindstrom stated he does not think Planning Commission is viable, tabling runs risk that this will not move forward at all. The developer advised Mr. Lindstrom that this needs to go before the Planning Commission on April 16th and since this has been tabled twice, if it is tabled again it goes off the table and has to be filed again.  If the developer decides that he simply cannot do this anymore and walks away, Mr. Lindstrom believed that tabling or a no vote would accomplish that.  He believed that to deny it could end the discussion.  If this does not move forward, there is a possibility this property might not sell and have to be remarketed to another developer, who might not build as nice a development as proposed. 

 

Carlos Segura, 1518 Lakeview Drive, stated that he knows this is not a matter between him and the City or DT Development, or the neighborhood, but believed that he had the right to express himself.  He stated that as he watched, he heard his name being used with wrong information. Regarding the statement that it has been impossible for the Homeowners Association to talk to him; he did talk with their attorney twice after the two meetings that he had with the City staff.  The City staff advised him to talk to their attorney because it would be difficult to meet with all the people of the Association.  As in any business, time is money.  The Association meets once a month and he did not have their schedule.  He believed the best way to do it was to talk to Dan Bahensky, which he did twice. 

 

Mr. Segura and his realtor met with Mr. Bahensky and showed him the plan and asked for feedback. Mr. Bahensky contacted the Homeowners Association and received a letter from them.  In the Homeowners Association’s letter, they requested blueprints of his development and stated if they liked the houses, then they would approve it. He did not understand why they could approve or disapprove his plan. The second time he met with City staff about requirements and City codes, he changed the project to comply with such things as curb cuts.  He understood that the Lighthouse Point Association was in charge of the boulevards, which are in the middle of County Club Lane, but indicated they did not want to do them.  He stated that he offered to the attorney of the Homeowners Association that if they approved it, he would pay to cut the boulevard and repave.  He changed the project to include that without asking more for the boulevard.  He stated that he has a hard time understanding why they are saying they have had a hard time meeting with him.  Another thing that was stated is that they have nothing to compare this project with, only the 12 units.  It is a matter of City record that he has built those 12 units in the Pines I Condominiums.  He also has built 22 other units that are completed and occupied by people that are happy with them. 

 

One of the important things Mr. Segura liked about this property was that the developer agreement with the City provided that this piece of property did not have any covenants. He understood the reason is because that piece of land will have its own homeowners association.  He does not understand why he has to go to another homeowners association for approval (nothing against them and he did not want to say anything wrong).  He did not believe that he needed to go to each member of the association because he is not the developer yet.  He is the potential buyer.  He understands that the developer agreement says that it was just duplexes per the city code at that time.  Mr. Lindstrom is asking the Council to fit together the developer agreement with the City Code as it is now.  He is not asking for an exemption, the R-2 zone today allows the developer to build townhouses.  His proposal is to build townhouses. 

 

Mayor Blankenship stated the issue for him is the intent to go from duplexes to 4-plexes, and that is a significant difference to him.  He believes that the neighborhood should have some input in that issue because that has an impact on them.  He restated again that he wants to see all parties involved work this out.  He is inclined to ask the Planning staff for their input although it might not be within their jurisdiction, but it is in their area of expertise to address an issue such as this. 

 

Mr. Segura stated that the developer agreement does not specify how many duplexes he could build.  According to the code he could build 80+ units without any restriction because of the R-2 zoning.  The code also specifies 2,500 square feet of land per unit.  There is 250,000 square feet of land there, which would permit 100 units.  He said his proposal is to build 35 units.  His reasoning is that if he goes to the Planning Commission with a plan for 80 units (1,000 square feet per unit), then they could not say anything about that plan.  The thing that was difficult for him to understand at this point is that anyone would think that he would purchase this nice piece of land in the best neighborhood in town and build something ugly.  He does not want to be involved in an argument, but did want to set the record straight. 

 

Council Member Buschkoetter agreed with the Mayor.  He stated that he has no doubt that Mr. Segura will build a nice building.  He has seen Mr. Segura’s work and likes it very much and believes that he is a good businessman.  Mr. Buschkoetter stated that he thinks that this situation goes beyond the regular subdivision agreements and they need to protect that neighborhood in that area and empower them to have some input.  He agreed that if the Council sends this to the Planning Commission there is still the possibility to get this done.  He did not know if it would be done fast enough, but believed that it could still get done.  He believed that sending it to Planning Commission, it could breathe life into this plan.  It might not be everything that people at Lighthouse Point want to hear, and hopes there is a way to reach some middle ground. 

 

City Attorney Mike Kelley stated as he understands it, this issue is not approval of the design review which is already before the Planning Commission.  What the Mayor is recommending is to send it back to Planning Commission for their advise and review concerning the duplex or 4-plex issue, and what impact they believe that would have on the whole neighborhood.

 

Mayor Blankenship stated that he relies on the Planning Commission for their expertise in assessing traffic impact and the impact of duplexes versus 4-plexes.  Council Member Hadley stated that he agreed with the Mayor.  Council Member Buschkoetter agreed that it would be nice to have advice from the Planning Commission, but it also opens the door for conversation between the two parties in an ethical manner. 

 

Council Member Clouse stated that he does not believe this is Mr. Segura’s issue but Mr. Lindstrom’s issue.  Earlier the response from Mr. Lindstrom was to approve or deny and there was nothing up for negotiation.  He understands where the other members of the Council are coming from, but Mr. Lindstrom is the one petitioning the Council to change the agreement. 

 

Mr. Lewis stated that their last communication did not include Mr. Segura’s name or address.  The information they received was sent from his realtor, who sent it to Dan Bahensky.  The letter Mr. Segura received was from Mr. Bahensky saying that he could not represent him because he already represented the Lighthouse Point Association.  Mr. Bahensky simply attached the letter from the Association as their answer, which might have been inappropriate in its wording to be sent to Mr. Segura. The Association had asked the attorney to put the proper wording in it before sending it to Mr. Segura as their answer.  Basically, they did not want extra curb cuts because of the median and did not want to change the looks of the entrance to this very nice area.  They did not want to exempt the privacy fence, but would consider that if they were allowed to see the plans.  The Association communicates with each other by email and they have been known to meet on, as little as, one-day notice.  They are not averse to meeting with the client and they did not mean to threaten litigation.  He only brought that first amendment litigation up to make a point that they did not want to use the first amendment to set a precedent for the second amendment. 

 

Jack Garrison, 2819 West 44th Street, resident of Lighthouse Point, stated that he agrees that they need some logical discussion.  There is an issue that has not been raised by Dan Lindstrom or the Association spokesman that he believed is misleading, if not inaccurate.  That issue is that Mr. Lindstrom’s client (DT Development) is part of the Homeowners Association and (without being unethical) has the right to discuss with them as a member of the Homeowners Association Board.  

 

Moved by Blankenship seconded by Hadley to have the Planning Commission consider the affects the amendment will have on the development in this area.  Roll call resulted as follows:  Aye: Blankenship, Buschkoetter, Hadley.  Nay: Clouse.  Kearney absent. Motion carried.

 

ORDINANCE NO. 7048 – CREATE PAVING DISTRICT NO. 2004-885

 

Bruce Grupe presented this matter to the Council. He stated that this is a complicated district and so he wanted to keep the Council informed about what is involved.  One of the complexities of the project is keeping access to the homes in the area of the bridge construction.  They have elected to divide this project into four different bid package.  First is the bridge structure over the canal and he thanked NPPD for working with the City in a timely manner, which was critical to this project.  The second phase is to construct the work on 30th Avenue from Highway 30 to what is projected to be 31st Street (south edge of the vacant field across the street from the golf course). 

 

There were more than 40 residents that attended the meeting at the golf course to explain how the City is going to handle traffic to keep access to the homes.  They have decided to build it in halves with a combination of gap paving and some temporary access roads.  Third is to continue from where they left off on 31st Street north to 39th Street and some improvement to that intersection.  They are just beginning the fourth phase, which is from the 30th Avenue overpass north up to Highway 30.  They anticipate using similar methods to get people in and out. 

 

Council Member Clouse introduced Ordinance No. 7048, being Subsection 2 of Agenda Item VI to create Paving Improvement District No. 2004-885 for 30th Avenue from LaCrosse Drive to 39th Street, and moved that the statutory rules requiring ordinances to be read by title on three different days be suspended and said ordinances be considered for passage on the same day upon reading by number only, and then placed on final passage and that the City Clerk be permitted to call out the number of the ordinance on its first reading and then upon its final passage.  Council Member Hadley 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: Blankenship, Hadley, Clouse, Buschkoetter.  Nay: None.  Kearney absent. 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. 7048 by number.  Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows:  Aye: Blankenship, Hadley, Clouse, Buschkoetter.  Nay: None.  Kearney absent. Motion carried.  Ordinance was read by number.

 

Moved by Hadley seconded by Buschkoetter that Ordinance No. 7048 be passed, approved and published as required by law.  Roll call resulted as follows:  Aye: Blankenship, Clouse, Buschkoetter, Hadley.  Nay: None.  Kearney absent. Motion carried.

 

By reason of the roll call voted on the first reading and final passage of the ordinance, Ordinance No. 7048 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.

 

PLANS & SPECIFICATIONS FOR 2004 PART I IMPROVEMENTS – PHASE II (30TH AVENUE FROM HIGHWAY 30 NORTH TO 31ST STREET)

 

Mayor Blankenship opened for discussion the Plans and Specifications for the 2004 Part I Improvements – Phase II consisting of Paving Improvement District No. 2004-885 for 30th Avenue from Highway 30 north to 31st Street and set the bid opening date for April 14, 2004 at 2:00 p.m.

 

As part of the 2004 Long Range Goals, Budget process, and the current One and Six Year Street Improvement Plan, the City Council approved the upgrade of 30th Avenue to a four-lane roadway. The City is ready to advertise and receive bids for the construction of the aforementioned project.  Attached is a letter from Miller & Associates requesting approval of the plans and specifications and to set the bid opening date for April 14, 2004 at 2:00 p.m. The Engineer’s Opinion of Probable Construction Cost ranges between $800,000 and $1,200,000.  The work involved is scheduled to be substantially complete and open to traffic before July 31, 2004.

 

Kent Cordes from Miller & Associates was present to answer any questions.

 

Moved by Buschkoetter seconded by Blankenship to approve the Plans and Specifications for the 2004 Part I Improvements – Phase II consisting of Paving Improvement District No. 2004-885 for 30th Avenue from Highway 30 north to 31st Street and set the bid opening date for April 14, 2004 at 2:00 p.m.  Roll call resulted as follows:  Aye: Blankenship, Buschkoetter, Hadley, Clouse.  Nay: None.  Kearney absent. Motion carried.

 

PLANS & SPECIFICATIONS FOR 2004 PART III IMPROVEMENTS

 

Mayor Blankenship opened for discussion the Plans and Specifications for the 2004 Part III Improvements consisting of Paving Improvement District No. 2004-880 for LaPlatte Road from Meadow Lane to approximately 160 feet south of Redwood Lane, Water District No. 2004-529 for LaPlatte Road from Meadow Lane to Plaza Boulevard, and Sewer District No. 2004-471 or LaPlatte Road from Meadow Lane to approximately 160 feet south of Redwood Lane and set the bid opening date for April 15, 2004 at 2:00 p.m.

 

As part of the 2004 Long Range Goals, Budget process, and the current One and Six Year Street Plan the City Council approved the installation of the above referenced public infrastructure. The City is ready to advertise and receive bids for the construction of the aforementioned project.  Attached is a letter from Miller & Associates requesting approval of the plans and specifications and to set the bid opening date for April 15, 2004 at 2:00 p.m. The Engineer’s Opinion of Probable Construction Cost ranges between $200,000 and $300,000.  The work involved in Part A (water and sewer) is scheduled to be substantially complete before June 1, 2004 and final completion is scheduled for June 30, 2004.  The work involved in Part B (paving) is scheduled to be substantially complete before July 1, 2004.

 

Travis Mason from Miller & Associates was present to answer any questions.

 

Moved by Blankenship seconded by Clouse to approve the Plans and Specifications for the 2004 Part III Improvements consisting of Paving Improvement District No. 2004-880 for LaPlatte Road from Meadow Lane to approximately 160 feet south of Redwood Lane, Water District No. 2004-529 for LaPlatte Road from Meadow Lane to Plaza Boulevard, and Sewer District No. 2004-471 or LaPlatte Road from Meadow Lane to approximately 160 feet south of Redwood Lane and set the bid opening date for April 15, 2004 at 2:00 p.m.  Roll call resulted as follows:  Aye: Blankenship, Buschkoetter, Hadley, Clouse.  Nay: None.  Kearney absent. Motion carried.

 

OPEN ACCOUNT CLAIMS --      NPPD -- $47,454.65

 

Moved by Buschkoetter seconded by Blankenship that Open Account Claims in the amount of $47,454.65 payable to NPPD be allowed.  Roll call resulted as follows:  Aye: Blankenship, Hadley, Buschkoetter.  Nay: None.  Clouse abstained.  Kearney absent. Motion carried.

 

VII.    REPORTS

 

None.

 

VIII.    ADJOURN

 

Moved by Hadley seconded by Buschkoetter that Council adjourn at 9:51 p.m.  Roll call resulted as follows:  Aye: Blankenship, Clouse, Buschkoetter, Hadley.  Nay: None.  Kearney absent. Motion carried.

 

                                                                                    BRUCE L. BLANKENSHIP

                                                                                    PRESIDENT OF THE COUNCIL

                                                                                    AND EX-OFFICIO MAYOR

ATTEST:

MICHAELLE E. TREMBLY

CITY CLERK