Kearney, Nebraska

January 8, 2008

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 January 8, 2008 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: Jim Lynaugh, Luke Olson, Lance Lang, David Clark, Mitch Humphrey, Tom Urbanek, Joleen Linder, Paul Brungardt, Ron Hendrickson, Suzan Wilson, Richard Wilson, Donna Wilson, Gary Henderson, Dan Javins, Carter Siebke, Susan King, Davin King, Randy King, Jennifer Bellman, Scott Swede, Julie McConnell, Krista Fritson, Dan Engels, Rhonda Engels, Ken George, Danny Starostka, Vivian VanAmberg, Jim VanAmberg, Gail Loewenstein, John Krebs, Same Ferrise, NTV News, Sara Giboney from Kearney Hub, Steve Altmaier from KGFW Radio, and approximately 100 residents regarding the I Believe In Me Ranch.

 

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

 

The Mayor and Council held a moment of silent prayer.

 

PLEDGE OF ALLEGIANCE

 

Three Boy Scouts from Troop 158 led the Council members and audience in the Pledge of Allegiance.

 

ANNOUNCEMENT

 

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

 

ORAL COMMUNICATIONS

 

There was no Oral Communications.

 

II.    UNFINISHED  BUSINESS

 

There was no Unfinished Business.

 

III.    PUBLIC  HEARINGS

 

FINAL PLAT – ELKEN SUBDIVISION; 1550 FEET SOUTH OF THE INTERSECTION OF HIGHWAY 10/40 ON THE WEST SIDE OF HIGHWAY 10   (WITHDRAWN)

 

Mayor Clouse stated the public hearing on the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Kenneth and Elaine Richter (Owner) for 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) was withdrawn from the agenda by the applicant.  Therefore, no action was necessary.

 

FINAL PLAT – NEW WEST ADDITION; SOUTHEAST CORNER OF 30TH AVENUE AND 35TH STREET

 

Mayor Clouse stated the public hearing on the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Ryan Page for New West Properties, LLC (Owner) for the Final Plat for “New West Addition”, an addition to the City of Kearney, Buffalo County, Nebraska for property described as part of Lot 2, (to be vacated) Marianne Hunt Addition, an addition to the City of Kearney, Buffalo County, Nebraska (southeast corner of 30th Avenue and 35th Street) will remain on the table until January 22, 2008 at the request of the applicant.  Therefore, no action was taken.

 

DEVELOPMENT PLANS FOR MEDICAL OFFICE FACILITY AT SOUTHEAST CORNER OF 30TH AVENUE AND 35TH STREET

 

Mayor Clouse stated the public hearing on the Application submitted by Ryan Page for NWBC, LLC (Applicant and Owner) for Planned District Development Plan Approval for the construction of a medical office facility on property zoned “District C-O/PD, Office District/Planned Development Overlay District” and described as part of Lot 2, (to be vacated) Marianne Hunt Addition to the City of Kearney, Buffalo County, Nebraska (southeast corner of 30th Avenue and 35th Street) will remain on the table until January 22, 2008 at the request of the applicant.  Therefore, no action was taken.

 

AMEND TABLE 14-1 OF CHAPTER 14 “ZONING DISTRICT REGULATIONS” OF CITY CODE

 

Mayor Clouse stated the public hearing on the Application submitted by Paul Brungardt from Brungardt Engineering to amend Table 14-1 “Use Matrix” of Chapter 14 “Zoning District Regulations” of the Code of the City of Kearney to discuss amending the Civic Use Type to allow both “Group Care Facility” and “Secondary Education” as permitted uses in District AG, Agricultural District was withdrawn from the agenda by the applicant.  Therefore, no action was necessary.

 

RUBY TUESDAY MANAGER APPLICATION

 

Mayor Clouse stated he would like to consider the manager application for Ruby Tuesday at this time.

 

Moved by Kearney seconded by Lammers to bring forward the Application for Manager for David Clark submitted by RT OMAHA FRANCHISE, LLC, dba “Ruby Tuesday” located at 108 1st Avenue Place in connection with their Class I-70404 liquor license. Roll call resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried.

 

Mayor Clouse opened for discussion the Application for Manager for David Clark submitted by RT OMAHA FRANCHISE, LLC, dba “Ruby Tuesday” located at 108 1st Avenue Place in connection with their Class I-70404 liquor license. Mr. Clark was recently promoted to general manager of the restaurant.  As part of his duties, he will over see the operations of the restaurant, including the sale of alcoholic beverages.  The Police Department performed a background check and there were no pending civil or criminal matters found on Mr. Clark.  Ruby Tuesday was issued a license in 2005 and has not had any violations.

 

David Clark presented this matter to the Council. He stated that their employees are required to take training during their orientation and must pass the test. 

 

Moved by Lammers seconded by Lear to approve the Application for Manager for David Clark submitted by RT OMAHA FRANCHISE, LLC, dba “Ruby Tuesday” located at 108 1st Avenue Place in connection with their Class I-70404 liquor license. Roll call resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

CONDITIONAL USE PERMIT FOR I BELIEVE IN ME RANCH; NORTHEAST CORNER OF 92ND STREET AND ANTELOPE AVENUE

 

Mayor Clouse opened the public hearing on the Application submitted by Paul Brungardt from Brungardt Engineering (Applicant) and Antelope Park Estates, Richard D. Wilson, Trustee, and Donna M. Wilson, Trustee for the I Believe in Me Ranch (Owner) for a Conditional Use Permit to locate a combination of both a primary and secondary educational facility on property zoned “District AG, Agricultural District” and described as a tract of land being part of the Southwest Quarter of the Northwest Quarter of Section 8, Township 9 North, Range 15 West of the 6th P.M., containing 22.113 acres, more or less, of which 1.39 acres, more or less, are presently being used for road purposes on the south and west sides, all in Buffalo County, Nebraska (northeast corner of 92nd Street and Antelope Avenue). Planning Commission recommended approval subject to compliance with the conditions set forth by the applicant.

 

City Planner Lance Lang stated the applicant is requesting a Conditional Use Permit (CUP) to allow the I Believe in Me Ranch (the Ranch) to construct new facilities at a new location within the City of Kearney Two-Mile Extraterritorial Jurisdiction. The proposed site is zoned District AG, Agricultural District. The subject property was under the jurisdiction of Buffalo County until recently when annexation of new property into the City limit resulted in extension of the corresponding two-mile line that now encompasses the site. The Ranch is a multi-use facility. The facilities and employees offer different types of therapeutic, counseling, rehabilitation and educational services to different age groups of children, some of which live on-site and some of which participate in day use programs only.

 

At the Planning Commission hearing representatives from the Ranch presented the proposed drawings that have been submitted in support of the CUP application and reviewed the conditions that they have willingly offered as part of the process. They also explained the licensing, personnel, and day-to-day operations of the facility. Some property owners from the neighborhood voiced their opposition to the proposal. Their concerns can be summarized as follows: their opinion that the proposed facility is not a school, their opinion that the City should not issue a CUP for this project based on City zoning codes; concerns about safety of their families and property; and potential negative effects on their quality of life.  Other people spoke in favor of the Ranch including one of the past students, a mother with a student currently enrolled, and employees of the Ranch.  Two letters were read into the record in support of the project.

 

Staff offers the following comments for consideration by the City Council:

 

a)       The Ranch has operated within the City jurisdiction under a Conditional Use Permit for the past 12 years at a location south of 56th Street and east of Avenue N.  The current CUP that allows the existing facilities to operate at the existing location requires a two-year renewal period.  The permit has been renewed every two years without incident.   

 

b)       A CUP is not transferable; otherwise the Ranch would probably attempt to transfer the existing permit to the new location. 

 

c)       The application for the new CUP is for primary and secondary education services as defined in the City of Kearney Unified Land Development Ordinance.  Primary education facilities offer educational instruction to elementary school level while secondary facilities offer instruction at the junior high or high school level. The zoning code requires a CUP for secondary facilities in an agricultural zone while primary facilities are allowed by right. The Ranch provides services to both groups and has therefore applied for a CUP to cover both primary and secondary educational use types in one permit.  This approach also allows the City to regulate any other services provided by the Ranch such as counseling, rehabilitation or health care under the same permit.

 

d)       A CUP is the most restrictive form of land use regulation based on zoning because it requires a specific permit, with specific conditions attached to regulate a specific use, at a specific location, and for a specific owner. A CUP is the best zoning tool at the disposal of the City Council to regulate a multi-use facility such as this one.

 

e)       At the new site the Ranch representatives have voluntarily offered the following conditions to be attached to the new CUP: 

1)       The proposed facility will never provide services to a known Level III sex offender on this campus.

2)       The proposed facility will maintain a policy that does not permit any known Level III sex offenders on the campus.  This policy is similar to other public and private school policies which prohibit Level III sex offenders on their facilities.

3)       The proposed facility will maintain all required licensing, certifications, and/or accreditations necessary for the functioning of the facility.

4)       The proposed facility will allow for City staff to review all necessary information that the City of Kearney believes is required to guarantee that the proposed facility is in compliance with these conditions, provided such disclosure does not violate federal or state law.

5)       The proposed facility will be subject to a two-year limitation on the Conditional Use Permit after which time the facility will automatically request a new Conditional Use Permit. 

 

f)         Ranch representatives have supplied the City with the following information:

·         Certificate of Approval from the Nebraska Department of Education recognizing the Ranch as an Approved Interim-Program School.

·         Nebraska Department of Education letter of classification as an Approved Interim School.

·         Nebraska Department of Education Population Provider Number and Rate Approval for the Ranch.

·         A list of schools that have contracted with the Ranch.  (31 schools from across the state).

·         Letter of support from Dr. Carol Renner, Kearney Public Schools.

·         Letter of support from Anita Ross, Gibbon Public Schools.

·         Teacher Certificates for the Ranch teachers issued by Nebraska Department of Education.

·         A statement from the CEO of the Ranch that states the I Believe in Me Ranch follows Nebraska Department of Education Administrative Rules Title 92 of the Nebraska Administrative Code, Rule 51 for Special Education Programs, and Rule 18 for Interim Program Schools. The Ranch also complies with the Individuals with Disabilities and Education Act of 2004.

 

In terms of the proposed site development, the applicant has submitted a complete plan package with the following information in support of the CUP.

·         300-Foot Radius Map

·         Overall Site Plan

·         Setback Plan

·         Landscaping Plan

·         Building floor plans and elevations for all buildings, including basements.

 

Staff has reviewed the plans included in the CUP application and offers the following comments:

 

a)       The site area consists of approximately 22 acres. The use requires a minimum site area of 20 acres. The 22 acre site will allow for future roadway dedications on both arterial streets while maintaining the minimum 20 acre site size. 

 

b)       Four buildings are proposed on the Site Plan, two residence halls, an administration building and an education building. The buildings are setback well beyond the fifty foot requirement from the public streets.

 

c)       The site is beyond the service limits for municipal water and sanitary sewer. These services will be provided on-site by well and septic systems designed to State of Nebraska Department of Environmental Quality design and construction standards.

 

d)       Two access points to public streets are proposed.  The main entrance to the site will be from Antelope Avenue. A secondary gated access point is provided for emergency access on 92nd Street. 

 

e)       A complete Landscape Plan is included featuring screening along the north and south sides of the facility and extensive plantings along Antelope Avenue.  56 trees and 153 shrubs are proposed. All proposed plants meet City of Kearney minimum size standards. The landscape will be watered with an underground irrigation system.

 

f)         The building elevations depict an attractive mix of siding and stone with hip roofs and asphalt shingles lending a “residential look” to the buildings. Basement space is included in all buildings.

 

If the project is approved, many of the design and construction elements are beyond the scope of this CUP application and will be addressed during building permit review and construction of the project. The well and septic systems, fire suppression and floodplain issues will be addressed at that time.  Several state agencies will also be reviewing plans including the State Fire Marshal’s Office, Department of Health and Human Services, and the Department of Environmental Quality. 

 

City Attorney Michael Tye stated the applicant is licensed as an interim program school, which means that they provide educational services to the residents while they are there so they can transition back to another school and not fall behind in terms of their educational program. There is one primary law case in Nebraska on the idea of interpreting a school as it relates to zoning law.  The Courts have generally taken a fairly expansive view of that issue.  Referring to the Montessori case out of Omaha, the courts have said unless there are some limiting factors as to the definition of school that the courts will interpret that concept fairly broadly.  One of the issues is “what is the primary use and is that use appropriate in the area?”  These are the types of things that would be considered in evaluating a Conditional Use Permit application.

 

Discussion was held on why the City has that role in this two mile jurisdiction. City Manager stated that State law does allow cities of the first class to within two miles establish criteria and conditions related to zoning and land use. That is typically done to protect local governments as annexations occur and areas are developed outside the City boundaries that have impact on City utilities and infrastructure systems.  Those areas in the future may look to become annexed. Without any zoning review in the beginning, they may not fit the criteria for which they would be allowed to be in the City, which can result in conflicts. This right is given to City government to be able to do that. This is not a mandatory requirement, but the City of Kearney has exercised that right for a very long time to extend its review into that two mile radius.

 

Paul Brungardt from Brungardt Engineering made the following presentation to the Council. He provided a brief history of this project. On June 21, 2007, they presented to the Buffalo County Planning and Zoning Commission.  Prior to that meeting, they had many conversations with the County. It was suggested by the County that perhaps under their zoning regulations, the Ranch probably fit under a non-profit treatment facility. That required a Special Use Permit through the County. The morning of that meeting, they contacted the County and were told there were no concerns and no opposition. The Commission voted to table the agenda.  There was never a decision made on that special use application. 

 

On July 11, 2007, legal counsel for both the Ranch and the County Attorney’s office met and discussed their special use application. It was acknowledged by both parties at that meeting that the facility probably fit more under a public/private school zoning classification and not under a non-profit treatment facility. So on July 12, 2007, they withdrew their application for the special use permit. On September 13, 2007, they submitted plans to the County Zoning Administrator for a rezoning permit on the basis that they are a school and had a permitted use.  A zoning permit with the County is the same as a building permit for the City. On October 17, 2007, the County Zoning Administrator denied this permit application stating that the facility did not fit under the school category for the Buffalo County zoning regulations. Immediately, the Ranch appealed this decision and they were going to hear arguments in front of the Board of Adjustments in late November. It was during this time, that the City of Kearney annexed in some of the Eastbrooke Additions, the Bel-Air Third Addition and the two mile jurisdictional line moved farther out. In fact, it encompassed a little over 24 acres of this current site.

 

At that time, they made the decision that it was no longer a County issue and they withdrew the application to go before the County Board. On October 25, 2007, they met with the DRT and the City staff to discuss the Ranch. During that conversation, it was brought to his attention that there are some anomalies in the Civic Use Matrix Map. He then went before the Planning Commission in November to discuss secondary education and group care facilities need to be better defined in the City’s zoning amendments.  In November, the Planning Commission heard their arguments.  They turned it into more of an issue about the Ranch and voted against amending the zoning. He has since withdrawn that application that was put before them. Before the Council tonight is the application for a Conditional Use Permit for the Ranch. 

 

Currently, the I Believe in Me Ranch is sitting on 23 acres outside the City limits and has been working for almost 12 years under a Conditional Use Permit.  It is not serviced by any City sewer or water systems.  In that 12 year time period, there have not been any complaints against that Conditional Use Permit application.  The location is in the northeast corner of Antelope and 92nd Street.  They are proposing a little over 22 acres of a site plan.  The reason for that is right now the property line extends out to the center of Antelope into the center of 92nd Street.  In the future, they have guaranteed about 2 acres of land that can be proposed right-of-way for these roadways.  On this site, they have the Buffalo County zoning office building.  Within this 300 foot radius map, there are four residences that are in direct relationship to that.  To the north, there are various types of farmsteads and also various types of residential developments.  To the northwest, there is the Antelope Ridge Estates (22 acres).  To the north, they have the East Ridge Estates (25 acres) and the Antelope Park Estates (26 acres).  Directly to the west is the Windy Meadows development which has about 18 more lots.  There are 91 lots that are zoned RR-1, RR-2 and RR-3.

 

They are proposing an administration and an educational building each will be about 6,000 square feet and will be a single story, ranch style facilities. There would be two residential halls that will be located toward the back of the site. Each residential hall will have ten beds to house eight children and the two extra beds will be for a transitional phase. In meeting with the City, they do have one an emergency access lane which will have an emergency access gate. This is not going to be one of the main entrances.  There will be only one main entrance. There is parking provided and a drive lane to drop off for the educational center and a drive lane for pick up and circulate back out.  They have hike/bike trails throughout the campus. There is also a drive around lane and various landscaping features for a shield. The educational center is basically made up of four classrooms, waiting room, hallway, restroom facilities, gym, cafeteria area and some office space in the back.

 

Suzan Wilson made the following presentation.  She is the co-founder and CEO of the I Believe in Me Ranch.  The Ranch was founded in 1995 and they took the first child in 1996.  They believe that all children deserve the chance to be successful.  The Ranch values and the reason they chose to be where they were is that they believed it is very important that they have a country home type setting. They do not want to be an institutionalized or hospital setting.  They believe that horses, dogs and cats do truly foster nurturing and teach kids responsibility. It is very important to have highly qualified staff.  They do have a low staff-child ratio which is very important and the reason why they are able to be successful with students that may not be able to be successful in public schools that don’t have that privilege of having a lower ratio.

 

The I Believe in Me Ranch provides educational services to 99 percent of the students that are with them. They also provide therapeutic services just as public schools provide mental health services for their kids who are dealing with issues.  The types of children and adults they serve in their therapeutic horseback riding program are children from 2 years old up to people that have suffered stokes some as old as 70’s.  They do service adults with disabilities also. All of their children have a verified disability with the American Disabilities Act. The primary disability is ADHD, which most people know as Attention Deficit Hyperactive Disorder.  Ninety percent of the students that they service have that as a diagnosis. They do have a lot of children that have learning disabilities. One of the reasons they have some teenagers is they might be 14 years old, but read at a second grade level. If a public school is not able to serve them, they need to have somewhere they can go to get that education. They do have people and children with physical disabilities in their therapeutic riding program. Their residential kids are between the ages of 6-12 but sometimes they turn 13 while in the program. They are licensed for children 6-18, but they focus on kids that are 8-12.  The average age gets lower because they are serving more 6 and 7 years olds than they ever have since they started.  The kids are a lot younger these days.

 

The process for choosing a child is done by their great clinical team. They would never take an older child into their residential programs because it would not fit in with the children they are already serving. Their residential services are for boys only. Their educational services day program is for both boys and girls. They focus on 6-18 year olds.  As a matter of fact, they do have a 5½ year old on their waiting list so they can serve younger kids. The therapeutic riding program serves all ages and all disabilities.

 

Highly qualified staff is very important to them.  Their staff is highly trained before they get to work with a child and have a lot of ongoing training and supervision by others.  They do have 24 hour awake staff, which means the children are always attended and never unsupervised. They do 15-minute bed checks which are not required by the State, but something they made the commitment to do when they first started. Seventy-five percent of their staff is required to have a college degree or an equivalent of that amount of time.  At this time, they have approximately 45-50 full time and part time employees. That number varies depending on the time of year if they are full time or part time.  Each of their staff receives over 30 hours of training before they are able to work with a child.  As mentioned before, they get a lot of intensive training.  They do have a lot of ongoing training. They are required to have 15 hours every year, but they get much more than that.

 

Their annual payroll is $1.4 million that comes into the Kearney area. Their average hourly wage is $14.44. They operate in Buffalo County, but receive referrals from all over the State. Their goal from the beginning was to serve central Nebraska.  Unfortunately, kids from as far away as Sidney and Scottsbluff must be considered in central Nebraska because otherwise they have to travel as far as Lincoln and Omaha.   It is very important to them to focus on central Nebraska.  There are only four other facilities in the State of Nebraska that serve the younger kids like they do.  The closest facility would be in York or they would have to go on to Lincoln or Omaha.  They have contracted with over 31 different schools and those are schools that pay them to provide education for that student. They are required to provide their residential students with a school and by contract with the schools, they provide schooling for day students.

 

They are required by the Nebraska Department of Education to follow Title 92 which is the Nebraska Administrative Code that entails Rule 51 and Rule 18. They do receive Title 1 funds through the State Department of Education that come through Kearney and Pleasanton Schools. Their students do receive credits towards graduation.  One of the requirements is they must work with the students home schools so that they can receive credits and graduate from their own school. They are required to have an educational administrator due to Chapter 18 and her name is Anita Ross. Public schools are required to provide a free and appropriate education to children with an individual education plan. A lot of schools, especially smaller schools, including Kearney Public Schools and Grand Island Public Schools which they do contract with end up in a situation where they cannot provide free and appropriate education in their school.  Since they are required to do so, they are sent to them.

 

They are a Level 3 school because the only reason that Kearney Public Schools, Gibbon, etc. can pay them is because of that classification.  Rule 15 (can be viewed on the State internet site page 6 of 75) states that “a Level 3 special education contractual service shall mean those special educational and related services provided in an educational setting, not operated by residence school districts whose rates are approved by the State Department of Education.” It is not used much any more because in 2004, the State Department of Education went with the interim school and so now the majority of schools are both and they do not use the term Level 3.  They have to follow Title 92 Nebraska Administrative Code, 0.15 and 004 about children with disabilities attending non-public schools and the responsibility of special education programs even though they are a Level 3 and follow Chapter 18. Based on Title 92, 002.18 “a school means an individual attendance area or center that provides either elementary or secondary education.”

 

A statement was made that they had 81 police reports in eight years, which is less than one per month.  A call that is called in is really hard to understand. It could be like anyone’s child who gets mad and runs down the block.  A call could be them reporting child abuse for example. If a child comes to them and reports that mom’s boyfriend hit him, they are required to report that.  It could be about a child that has gotten angry and has walked away from the program.  That is why they are thankful that they have the high staff ratio so they always have staff with them. Of the 81 calls, five of them were assisted by the Police Department.  The reason that the police would respond is because the Sheriff cannot get there in a timely manner.  I believe the reason our safety record is so good is because of their staff-child ratio, they go above and beyond what the State requires of them. 

 

They do have a very strict on call staff situation. If they have eight boys in a classroom with a teacher and three staff, not only are those 4 staff available for the eight boys in that classroom, but they have an on call system where at all times 24 hours a day, they have an on call staff. On call staff is one of our management people who have been around for a long time who is familiar with the system, the boys and the staff.  If a child for example, would decide that they are mad and they wanted to walk out to the alfalfa field or the driveway, our policy is that the staff follows them. They either have a walkie-talkie or cell phone with them and the on call staff is called immediately.  The on call staff calls their emergency on call staff, who would have the ability to go to the next step therapeutically, getting a therapist there or doing whatever else needs to be done.  So at any one time, a child that is angry and decides to walk away from the class could have a staff with them, an on call person with them or the on call person might just go to cover the staff that is following that child.  They could have a therapist with them or an emergency on call staff with them.  At that point and time, it is all figured out what needs to happen next with that child.

 

She read the following paragraph that was written by Tim Norwood: “To whom it may concern:  I am writing this letter at the request of Suzan Wilson.  The corporation that I am involved in has owned property next to the I Believe in Me Ranch for years.  We never had any problems with the Ranch. They have conducted themselves as good neighbors and nothing they do at the Ranch has caused us to believe that there are any negative affects on the real estate values of the real estate development that we have done in this area.” 

 

They have been told that they have not given the potential neighbors a chance to find out what they are all about. Over the years, she has done a lot of presentations to every group in town: the Rotary, the Lyons, Kiwanis, etc. and have done “Business After Hours”. They always have an open door.  They really enjoy having people come out because the boys enjoy it and it is a big deal to them. She made personal phone calls of the ones she could get numbers for, talked to a couple and left messages for the rest.  She told them that they had set up a time and would love to have them come to the Ranch, which was on that Wednesday evening, December 19, 2007. She did explain to the ones she left messages for that she would be glad to set it up at any time and left her phone number.

 

She stated that a level 3 sex offender is the highest risk to re-offend.  They are the ones that can be viewed on the internet by anybody.  By going on the internet you could find out that there are approximately 24 of them living in the County. They have a policy to have a group that meets at Region III or the Police Department that serves 15 and 16 year olds that are considered teenagers who have had sexually offending behavior. Their clinical team decides to provide that service because they were asked to by the State because it was necessary in the area. These are Kearney kids who go to public school in Kearney.  They come to Region III for 1 or 1½ hours a week for a group. She guaranteed that their policy would never be to have a group of level 3 sex offenders on their property and it will never happen. Their clinical team would never allow it.  As far as would they ever allow a level 3 sex offender on their property, they would be at the same risk as any public school. They have a set policy that they are not allowed. If we know that a person is a level 3 sex offender, for example, a child who goes to Kearney Public and is sent us, they would arrange for that parent to have their therapy offsite because in knowing that parent is a level 3 sex offender, they would not be allowed on their property.

 

Council member Lammers asked of the 45-50 employees of the Ranch, if only three are teachers, what do the other employees do?  Ms. Wilson stated she could not give exact numbers of each. The majority of their direct care staff, who work in the day shift work in the education program.  That is why they have such a high number of staff that does work within the school program.  Their school goes 252 days a year.  From 8:00 a.m. until 3:30 p.m. they require a lot of staff because of the shifts that they work for a lot of days. The other staff works the overnight awake and the evening shifts. Their administrative team that includes the management team has about ten people. The reason they designed it this way is so that they have a good grasp of what was going on with each of their children and what their needs were.  Each program has its own program manager, their own therapist and their own teacher.  They work with the management team and the clinical team to make sure they are providing the services they need to provide.

 

Council member Lear asked why they were changing locations and if the nature of their operations would change at all from their current location to the new location.  Ms. Wilson stated they could not stay where they are now.  The only change would be the fact that they are trying to move their two residential buildings onto the same campus.  Everything else will be the same.  There is reasoning for that. Prices are going up and they are trying to be as competitive with wages as they can, if everybody is at the same place, it is a lot easier to make sure that they have extra staff available.  Now it costs them a lot of money, for example, they are required to have two staff for eight children at the residential level.  They try to never have less than three staff for eight children.  When the buildings are next to each other, it could help them save money.  That is the only way it could change to help them to provide even better service for their children because they would all be at the same place.

 

Council member Lear asked who they chose this location when they knew there would be a high level of significant resistance.  Ms. Wilson stated the main reason is that she found out a few years ago that she was going to lose the lease on the property they are presently on.  Due to the Ranch does not have a whole lot of extra money, she and her father started looking for land.  They never concerned themselves with there might be a problem because they had not had any issues.  When they found this land and they knew it was going to be on pavement, they thought it was ideal.  They knew on one side, they would love to build a house and on the other side, this would be a perfect property.  Being just off the pavement would be nice for parents and schools that are coming in and out.  They knew they needed a location close to Kearney. 

 

Aaron Bishop, representative of a concerned group of Buffalo County citizens, made the following presentation.  The claim of the petitioner is that the proposed facility is a combination of both primary and secondary educational facilities.  The facility would be located on ground which has been zoned by the City of Kearney as agricultural use.  Under Chapter 14 of the Kearney City Code, zoning district regulations primary educational facilities are permitted by right or by right subject to supplemental regulations in an agricultural district.  Under the same ordinance secondary educational facilities are only permitted by the issuance of a Conditional Use Permit in these same districts.  It is the status of the I Believe in Me Ranch as either a primary or secondary educational facility that the citizens he has been asked to represent take issue with.  There have been allegations from both sides as to the inconsistencies and misunderstandings about the true nature of the work being done and the purpose for the request being made.

 

He reiterated that the citizens he represents does not oppose the work that is being done by the I Believe in Me Ranch, nor are they opposed to the mission or goals of the Ranch.  In fact, there are members of this community that have special needs children, who have children who have gone through treatment for a variety of reasons and people who have dedicated their lives to promoting and insuring the well being of the children of the State of Nebraska. 

 

What these citizens are requesting is that this Council abide by the Comprehensive Developmental Plan established by the City of Kearney and the zoning regulations adopted to enforce and promote this plan. With the understanding that under Nebraska Revised Statute Section 19-901 the primary purpose of both the Comprehensive Developmental Plan and the zoning regulations is to promote the health, safety, morals and general welfare of this community.  In examining this request, he first wanted to review the laws and regulations in order to show the Council why for several reasons the I Believe in Me Ranch does not qualify as a primary or secondary educational facility under the Kearney City Code and the laws of the State of Nebraska.  Secondly, a reminder of how by their own admissions, the I Believe in Me Ranch after 12 years of operation has only in the past two months espoused the proposition that they operate as a primary and secondary educational facility. Finally, he made some brief observations about the related concerns of the members of this community as it relates to the facilities such as the I Believe in Me Ranch being placed in a community for which it is not zoned.

 

He took exception to the comments of the City Attorney with regard to the Montessori case issued by the Nebraska Supreme Court. He examined the limiting factors discussed in that case. He believes that the Kearney City Code does provide for limiting factors for both primary and secondary educational facilities and that it requires that these facilities be private, public or parochial schools. Under the Kearney City Code, Chapter 13, Use Types, Sections 105s states “a primary educational facility is defined as a public, private or parochial school offering instruction at the elementary school level and the branches of learning and study required to be taught in schools within the State of Nebraska.” Chapter 13, Section 105w defines a secondary educational facility as “a private, public or parochial school offering instruction at the junior high or high school level and the branches of learning and study required to be taught in the schools of the State of Nebraska.”

 

In reviewing the documents provided by the I Believe in Me Ranch and through conversation with the Nebraska Department of Education, it is apparent that the I Believe in Me Ranch is approved as an interim program school in the State of Nebraska. However, this does not qualify the institution as a public, private or parochial school offering instruction at the elementary, junior high or high school and the branches of learning and study required to be taught in the schools in the State of Nebraska. Under Title 92 of the Nebraska Administrative Rules and Regulations, Chapter 10 – Regulation and Procedures for the Accreditation of Schools, Section 001.03 “All public school districts in Nebraska that provide elementary and/or secondary instruction to children of compulsory attendance age are required to be accredited under the provisions of this chapter.  Accredited school systems are also considered to be approved for legal operation for purposes of State law”. 

 

Under Title 92 of the of the Nebraska Administrative Rules and Regulations, Chapter 14, Regulations and Procedures for the Legal Operation of Approved Non-Public Schools, Sections 001.02 provides in part, all private and parochial schools in Nebraska to provide elementary and/or secondary instruction to children of compulsory attendance age are required to be accredited under the provisions of this chapter.  Accredited school systems are also considered to be approved for legal operation for purposes of State laws. Interim program schools, such as those that operate at the I Believe in Me Ranch on the other hand, are governed by Title 92, Chapter 18 Interim Program Schools and County Detention Homes, Institutions and Juvenile Emergency Shelters. Section 001.04 provides that interim program schools located in or operated by County detention homes, institutions and juvenile emergency shelters will be classified as approved if they meet all the requirements of this chapter. All schools located in or operated by County detention homes, institutions and juvenile emergency shelters that provide elementary or secondary instruction to children up to the age of 21 are required to be approved under the provisions of this chapter. 

 

County detention homes are defined as detention homes in connection with the juvenile courts of this state, established and maintained by the County courts of the counties of Nebraska pursuant to 43-2110 R.R.S. to provide regular or special education services with a special education rate approved by the department. Institutions are defined as any public or private facility not owned or operated by a public school district, but provides residential programs and regular education services with special education rate approved by the department. Juvenile emergency shelters are defined as a facility that provides temporary 24 hour physical care and supervision in a crisis situations and at times when an appropriate foster care resource is not available to persons 18 years of age and younger for which a municipal corporation as contracted pursuant to 13-317 R.R.S. and which shelter also provides regular or special education services with a special education rate approved by the department.

 

It is unclear to him under what definition the I Believe in Me Ranch operates. With the information he has about the facility, he believes it is likely that they are classified as an institution, a juvenile emergency shelter or both.  In any case, the purpose of this section is to lay out regulations for a facility that offers elementary and secondary instruction to children as part of their larger services to the community. Thus, facilities are first identified as a County detention home under Nebraska Revised Statute Section 43-2110, an institution or a juvenile emergency shelter under Nebraska Revised Statute Section 13-317 before they are then allowed to seek approval as an interim program school so they can offer elementary and/or secondary instruction and thereby likely qualify for additional State monies and support. 

 

He again returned to Chapters 10 and 14 of the Title 92.  Under Chapter 10, Section 0004 and Chapter 14, Section 005 private, public or parochial schools are required to offer instruction in reading, language arts, mathematics, social studies and science as part of their elementary education. These subject areas are also required of interim program schools; however, this is where the requirements for interim program schools curriculum stop. In fact, this is all that is required of interim program schools at every educational level. Public, private and parochial schools require health, physical education, visual arts and music to be taught at the elementary level in addition to basic requirements.  For public schools at the middle school level, career education is required and there are provisions for the beginning of interscholastic athletic contests.  Additionally, the secondary education level, public schools are required to offer foreign language, career and technical education, agricultural education, cooperative education/diversified occupations, family and consumer science, health occupations, marking education, trade and industrial education, personal health and physical fitness, visual and performing arts and music and visual arts as additions to their curriculum. 

 

All these categories of classes require a certain number of credit hours be obtained before a student is awarded a diploma from the school which is something that interim program schools cannot even offer. Private and parochial schools at the secondary education level are required to add vocational education and/or practical arts, personal health and physical fitness, visual and performing arts and computer education to their curriculum. These schools may also award diplomas to students who achieve the requisite number of credit hours and these diplomas are required to be recognized by the universities of Nebraska, state colleges and all community colleges in the State as long as the public or parochial school is accredited under Chapter 14. 

 

More important are the teaching certificates that are required of these schools.  Public school teachers under Chapter 10, Section 007 are required to be certified for elementary education up through grades 7 and 8 when they are required to acquire six credit hours per year toward middle grade endorsements.  For grade 9, a teacher must have a middle school or secondary endorsement and for grades 10-12, they must have specialized preparation in a subject area or a field and knowledge of the developmental level of students under Section 007.03. Secondary teachers assigned to integrated courses of curriculum in grades 7-9 are considered appropriately endorsed if they hold an endorsement for any of the subjects or fields included in the course under Section 007.0285.  Under Chapter 18, Section 004.02C3 (again) for interim program schools a copy of the certificate or permit of each school staff member who is required to have a certificate is on file in the interim program schools administration office.  Based upon the information provided by the I Believe in Me Ranch to the City Council, apparently the only certificates required for teachers at the interim program school run by the Ranch are for teachers certified in special education and two teachers certified for grades K-6.  There is no information provided to this Council which would indicate that any staff members at the I Believe in Me Ranch are certified to even teach at the secondary level which again calls into question their status as a secondary education facility.

 

The Council had before them a letter from Anita Ross who was identified as the Educational Administrator for the I Believe in Me Ranch and also as the special education director at the Gibbon Public Schools. This is another difference between interim program schools and a public, private or parochial school under Nebraska law.  Public, private and parochial schools are required to have on staff a person certified as a Nebraska school administrator or supervisor.  Interim programs schools are allowed under Chapter 18, Section 004.02C1 to share head administrator with other schools or with the public school district or the ESU.  Further under Chapter 10, Section 006 each public school is required to have a library or media area which is available to students during the entire school day. 

 

Each school is required to have at least one set of encyclopedias available in either print or electronic format with copyright dates in the past five years. Each elementary school requires a minimum of 25 new library media resources in print format, exclusive of textbooks and encyclopedias, of different titles per teacher per year (up to 150 titles during one year). The minimum number of new titles in print format is 75 if library media resources are available through electronic format.  Each middle school and high school requires a minimum of 150 titles each year in print or full text electronic format.  Each middle school level school subscribes to at least ten periodicals either in print or full text electronic format and each secondary school subscribe to at least 25 periodicals in print or full text format. Much of the same requirements are made for all private and parochial under Chapter 18, Section 004. Alternatively, under Chapter 18, Section 004.02D1 the only requirement for interim schools is that staff and students have access to a library medial resource at least once every other week.

 

In the plans that were presented for the proposed educational facility there is no library facility contained at the ranch site.  The list of differences goes on, but rather than go at nauseam. The Council needs to recognize there are far lofty goals and far more stringent requirements set for public, private and parochial schools, especially when it comes to secondary education than there are for interim program schools. 

 

What does this have to do with the request before the Council by the I Believe in Me Ranch? In Beckman vs. the City of Grand Island which is sited at 182 NE 840, the court stated zoning laws should be given a fair and reasonable construction in light of the manifest intention of the legislative body, the object sought to be obtained, the natural import of the words in common and acceptable usage, the setting in which they are employed and the general structure of the law as a whole.  Further, the court went on to add that the name by which an institution is designated or called is not a controlling importance in determining whether or not it is permissible use under a zoning ordinance. The question is to be determined by the activities or character of the business or services carried on and not by the name. 

 

If the drafters of the Code had wanted to include interim program schools and the education they are required to provide by Nebraska law, all they had to do was to say so.  As the Code is written, schools both primary and secondary are defined public, private or parochial which by Nebraska law subjects them to accreditation procedures and requirements of Chapters 10 and 14 of Title 92 of the Nebraska Administrative Rules and Regulations and the educational standards contained therein.

 

The Conditional Use Permit application which the Ranch has been operating under since the application was filed in December of 1995, identifies four phases for the property development of the I Believe in Me Ranch.  First, as a therapeutic group home, second and third as a community based group home and finally as a therapeutic riding center. No place during the first Conditional Use Permit issued by the Council for the I Believe in Me Ranch was it recognized as any sort of a school.  It was on this operational basis that the Ranch was first approved for a CUP. 

 

Also under the articles of incorporation for the I Believe in Me Ranch, the purposes for which the corporation was organized were 1) to provide a safe and fair environment where boys experiencing difficulty with school and home can live while learning to choose appropriate and responsible behaviors; 2) to provide physically, mentally and emotionally disabled children, adolescents and adults therapeutic riding services; and 3) to provide a safe and fair environment where disabled adults and/or girls can live while learning to live with their disabilities.

 

Under the Nebraska mental health, substance abuse, gambling service directory issued by the Nebraska Department of Health and Human Services, the I Believe in Me Ranch is described as having services including mental health services including day treatment for boy and girls, ages 8-18, residential treatment center for boys ages 6-14, treatment group home for boys ages 8-12, outpatient physiological testing, sexual offender group therapy for boys ages 12-16.  Under the State of Nebraska roster of mental health centers issued by the Nebraska Department of Health and Human Services, the I Believe in Me Ranch is listed as mental health facility. 

 

In a pamphlet created to promote the proposal of a new site for the Ranch in anticipation of the application being filled out, the I Believe in Me Ranch listed its program goals as to provide a therapeutic milieu which promotes an atmosphere for learning and growth which allows children to rebuild personal, family and social relationships. It also provides community based services and clinical interventions which will encourage each child to develop and build their community support system.  To provide services and clinical interventions which do not discriminate against color, race, sex, religion, national origin or disability.  To provide each child with the psycho-social and behavioral skills they will need to be successful when they complete their program or transition to a lower level of care.  To increase the self esteem of each child and improve the interpersonal and intrapersonal goals of each child.  To enable each child to attain emotional, physical and mental improvement and stability.  To support each child in the rebuilding and strengthening of family relationships.  To allow each child the chance to learn. To nurture by caring for animals. To facilitate formal and informal learning experiences that will teach coping skills, decision making skills, problem solving skills, stress management skills, social skills and anger control. To develop a sense of respect for all others and connectedness with their community.

 

Finally in the June 4, 2007 application for a special use permit to the Buffalo County, the I Believe in Me Ranch listed its services as residential treatment service provided to boys ages 6-13 years of age in a homelike setting year around, day program services are provided to boys and girls Monday thru Friday between the ages of 6-18. These services include education and treatment. The I Believe in Me Ranch also provides outpatient therapy to all ages in the community and therapeutic riding services are provided to both children and adults between the ages of 2-72 years of age.  It should also be noted that the special use permit was requested on the grounds of the Ranch’s status as a private charitable organization and a child care center, not as a primary or secondary school. 

 

All the goals that were listed by the I Believe in Me Ranch are commendable and lofty goals, but he reminded the Council the admonishment of the Supreme Court when they said “the name by which an institution is designated or called is not of controlling importance in determining whether or not is a permissible use under a zoning ordinance. The question is to be determined by the activities or character of the business or services carried on and not by the name.”  For the I Believe in Me Ranch, to suddenly declare itself to be a primary and secondary school does not make it so.   The I Believe in Me Ranch is approved as an interim program school. They, themselves, can only bring forth three teaching certificates, none of which certify the teacher to instruct a junior high or high school student.  For the past 12 years, the Ranch has be been operating under a Conditional Use Permit which identifies it as a group home or a therapeutic riding center.  It was not until the proposed move that an application was filed identifying the facility as a private, charitable organization and a child care facility.  When that didn’t work, they filed an application as a group care facility and a secondary education facility.  When an amendment which would allow a group care facility in an agricultural district was struck down by the County Board, the I Believe in Me Ranch filed the current application as a primary and secondary educational facility. 

 

The I Believe in Me Ranch claims that this Conditional Use Permit is the best zoning tool at the disposal of the City Council to regulate a multi-use facility, such as this one.  The multi-uses they refer to are therapeutic, counseling, rehabilitation and finally educational services. At the very least, the group he represents believes that the Ranch must be recognized as including a group care facility, which is not even allowed by a Conditional Use Permit in an agricultural district. It is defined by the Kearney City Code, Chapter 13, and Section 105k as a facility licensed or approved by the State of Nebraska or other appropriate agency which provides for the care and short and long term continuous multi day occupancy of more than three unrelated persons who require and receive therapy or counseling on site as part of an ongoing and therapeutic ongoing program for any of the purposes listed below. Such facilities shall exclude those uses defined as group homes, group care facilities, include facilities which provide for: 1) the adaptation of living with or rehabilitation from the handicaps of physical disability, 2) adaptation to living with or rehabilitating from the handicaps of emotional or mental disorder or of mental retardation in such facility has an overnight occupancy of more than 8 persons, and 3) rehabilitation from the effects of drugs or alcohol abuse and finally supervision while under a program alternative to imprisonment,  including but not limited to pre-release, work release or probationary programs.

 

There is likely not a perfect fit definition to fit the I Believe in Me Ranch.  There are also corporate offices to consider in the housing of animals for the therapeutic riding center.  The focus should not, however, leave the fact that this facility is not a primary or secondary school and therefore cannot receive a Conditional Use Permit to build in an agricultural district as the I Believe in Me Ranch is requesting.  Even if it is recognized as an educational facility, a group care facility or a mental health facility of this nature, it should not be thrust on an agricultural district under the auspices of a primary and secondary school.

 

He read the following letter that was sent from a former employee of the Ranch and was written as a letter to the editor, but failed to make print before this meeting.  The letter stated, “I feel compelled to write this letter as I have watched the I Believe in Me Ranch attempt to move to a new location by giving false information to the public and maneuvering the system of government that scribes such matters.  The I Believe in Me Ranch is not a ranch were young people a country lifestyle, but rather a mental health facility where young adults with serious mental issues are sent by government institutions, doctors, families and schools.  The age ranges are around 6-18 years of age and covers children with behavioral problems, sexual predators and arsonists.  Some of these students have threatened and attempted to burn homes and schools, while most have physically threatened and done harm to themselves and others.  Many come from homes where they were abused and as such pose a serious threat to abuse others.  I have seen students in physical restraints or locked in a safe room to prevent injury to staff and other students. Staff has been injured in interactions with students and residents as these young people can become extremely violent when confronted.  Why does Ms. Wilson fail to mention the injuries to staff resulting in workers compensation claims and doctor visits for bruises, bites, strains and a broken jaw?  The Ranch differs from the YRTC and Richard Young Hospital in that they do not lock students inside the school or the group home and these students can and do run whenever they feel the compulsion.  At night it is impossible to tract them and they will be free to roam until the police can find them.  The reason that Ranch is a small number of call to the police is because staff is directed to call Ranch administration instead and they will not call the police until every other avenue is exhausted, including waiting to see if they come back on their own.  The safety of the public is less of a concern than their own image which leaves the runaways ample time to do whatever their mood dictates.  My point is made when I remember student that ran from the facility and started a crane that was parked at a roadside construction site.  Why does Ms. Wilson fail to mention these types of occurrences when she has discussing the move?  She also fails to mention the students with health issues.  Several students in the past were prone to seizures and other problems which would make one wonder why you would move a facility further from the hospital setting.  Furthermore they are not telling the truth when they talk about the reasons for the move.” …. The letter concluded.  “The Ranch is not a school, it is a mental health facility and its move should be dictated as such.  If this reaches print, you will hear that I am a disgruntled former employee that was terminated from his job and as such should be disregarded.  I stand by the truth of every detail in this letter and it is from personal experience at the Ranch and can be supported by others if necessary.  The truth needs to be made public.” The letter is signed by Aaron Jesh and he included a current address and a cell phone number if that is needed.

 

There have been numerous questions what a level 3 sex offender is.  He did not know the answer to that question either. He went to the State Patrol website and found the sex offender risk assessment instrument which the State uses to asses what level the sex offender will be found to be at.  There are four pages of criteria and each criterion is assigned a different point value.  At the close the points are totaled.  Level 1 is a low risk of 80 or below in the point scale.  Level 2 is a moderate risk with 85-125 points.  Level 3 is a higher risk as Ms. Wilson has stated with a 130 points or above.  The number of convictions counts for sex or sex related offenses. If a person has two convictions, it is only 40 points.  If the victim’s gender is female, it is 15 points.  If the victim’s gender is male, it is 20 points.  If there are both, it is 30 points.  If the age of the victim is 11 and under, it is 15 points, 12-17 is 15 points and 18 and over is 5 points. 

 

Council member Buschkoetter stated that it is possible to have both a detention facility and a school, and in Kearney it is the Youth Rehabilitation Training Center. All schools, public, private and parochial, are required to follow IEPs.

 

Ms. Wilson stated that their plans are to become an approved school. In the Nebraska State Department of Education, when a teacher is certified as a Case 6 elementary education teacher, they are actually qualified to teach K-8.  You could talk to anybody within the public school district, they have teachers that are teaching that their certificate might say K-6.  We have no plans to be a non-public, private or whatever term you want to use secondary school.  The only reason why we added the secondary is because we have kids that come to our Level 3 school that end up in high school age because they read at a 2nd or 3rd grade level. Those kids get their graduation credit through their home schools and that is dictated by their individual education plan.  A non-public school, whether it is just elementary or secondary, has certain qualifications and requirements.  Yes, their teachers would be required to follow that over a certain amount of time to be in qualification for that. In public schools, we have teachers that are teaching outside of what their certificate actually says.  Because the school board has said, if you do this within this period of time, our accreditation of Chapter 10 will allow us to do that.  Just as before we would try to  become a Chapter 14 school, which we are willing to put that as a condition on our Conditional Use Permit that we will proceed with the application as an approved Chapter 14 school and do all that is required of us to do.

 

Attorney Ken George made the following presentation in response to Mr. Bishop’s presentation. Section 13-105 of the City Code under Civic Use Types talks about use types not users.  It is talking about the type of use the property is going to be for.  The civic use types include the performance of utility, educational, recreational, cultural, medical, protective, and governmental and other uses which are strongly vested in the social importance. The inability of these kids to go to normal school is of public importance.  If they can’t go to the Ranch, where are they go? The Ranch takes kids that are not fitting in the normal classroom, adapting them so they can go back and be in the normal classroom.

 

Approximately 64 percent of the Ranch budget, not their income, is spent on educational services. When you look at the definitions of the primary school and secondary school, it doesn’t talk about the age or the grade level of the student.  It talks about the level of education that they are at. We have these kids that are at the Ranch and they have a curriculum that the Ranch has to abide by determined by Nebraska Department of Education.  That curriculum, if this child completes it successfully gives them credit when they go back into their regular classroom for purposes of graduation.  They are just the same as any other school except they take kids that most other schools can’t handle, won’t handle and don’t have the ability to handle.

 

There are two programs. They have a residential program and that is why you see the two residential buildings. They want to combine the two instead of having them in two different sites which they presently have.  They have the day program which buses kids in every day and they go home every night.  That program is actually becoming a little larger than the residential program. They did mention to you that the investment in this project is around $3 million or more. That is a fairly substantial investment.

 

City Attorney clarified that he is not indicating to you that this institution is or is not a school.  What I am indicating to you is what the case law in the State of Nebraska does in terms of interpreting zoning ordinances when that school is not otherwise limited in your zoning ordinance. They have read that very broadly by the Montessori Case.  What I understand as terms of these two gentlemen’s arguments and I don’t want to take the risk of paraphrasing necessarily, but one is indicating to you that they are a school and providing you with evidence and information as to why they fit that definition and the other side is indicating on no they are not a school and here is why.  It is to the Council to evaluate that information and to determine what you think about how it fits in with our Code and also to evaluate this as a Conditional Use Permit which is a matter of evaluating whether or not this use is appropriate to this site.

 

Council member Lammers stated a couple of his issues are them being a group residence and a group care facility that deals with behavioral areas.  To him, that is their primary function. Obviously, if you have three employees that are teachers and the other forty-seven are not, you are dealing with behavioral issues and that is your primary function involved in that.

 

Gary Henderson, 9375 Cherry Avenue, voiced his opposition to the application.  His main concern is the response time of law enforcement to that location.

 

Susan King, 3315 East 92nd Street, voiced her opposition to the application. He concern was safety for her family.

 

Jennifer Bellman, 1507 7th Avenue, voiced her support. The State of Nebraska sees the I Believe in Me Ranch as a school. The Board of Education sees the I Believe in Me Ranch as a school.  Her son was sent there by Kearney Public Schools because they did not have the ability to give him what he needed. He was sent there for an education. He received that education. He attended that school two years and integrated back into Kearney Public School systems. While he was there, they followed an IEP which every school is required to follow. They followed every plan that the school system set forth before them.  He was very successful in that and is now 20 years old.

 

Scott Swede, 4425 East 100th Street, stated he never received a call from Ms. Wilson. He is not questioning her facility and what she does, he likes what she does. He was also concerned about the response time for fire and public safety. He questioned if a fire station would be built in this vicinity. City Manager responded that they are served by the rural fire district and that would not change.

 

Carter Siebke, 2715 7th Avenue, voiced his support. All the children that are served by the I Believe in Me Ranch have a verified disability, whether physical, mental or learning. These children have protected rights given to them by the United States Government through the Americans with Disabilities Act. These children deserve the same rights, protections and opportunities as any children in our community.

 

Julie McConnell stated she has a son who attends the Ranch. She questioned if any of these people were afraid to live across from the high school where there have been 42 incidents reported. 

 

Christa Fritson, 9 Table Place, is the supervising practitioner clinical psychologist for the Ranch. There has been documentation and some evidence that a significant portion of what the Ranch does, over 50 percent of the budget of the services it provides, a significant portion of every single day for these students is about education.  It also provides the other types of services. The mental health and/or the social services offered through the Ranch are also outlined by the Department of Education as provided through our public schools.  A part of that is also that our Kearney Public Schools contract with private mental health agencies here in town to come into the public schools to provide those services as well.

 

Dan Javins, 5207 Avenue C Place, questioned what infrastructure was going to be available when more development occurs in that area. He believed they need a design where they are going to develop all this and how they are going to develop and how its going to affect the quality of life as far as nitrates in the water, sanitation, sewer, etc.

 

Paul Brungardt stated the current facility is on its own well system and septic system.  We are recommending the same approach. They will have to get their permits and applications filled out by the Department of Environmental Quality for both services. As far as future growth, this is probably going to have less impact than if they were going to take 20 acres and divide into three acre lots.

 

Council member Buschkoetter stated he believes that they provide educational facilities. In 12 years, he has not received any phone calls in opposition to what happened out there.  He drove around YRTC and Richard Young.  There are some nice houses in those areas.  They are dealing with a lot more hard core situations than what the I Believe in Me Ranch does. He does not really see it as harming those residential neighborhoods.

 

Moved by Clouse seconded by Lammers to close the hearing and deny the Application submitted by Paul Brungardt from Brungardt Engineering (Applicant) and Antelope Park Estates, Richard D. Wilson, Trustee, and Donna M. Wilson, Trustee for the I Believe in Me Ranch (Owner) for a Conditional Use Permit to locate a combination of both a primary and secondary educational facility on property zoned “District AG, Agricultural District” and described as a tract of land being part of the Southwest Quarter of the Northwest Quarter of Section 8, Township 9 North, Range 15 West of the 6th P.M., containing 22.113 acres, more or less, of which 1.39 acres, more or less, are presently being used for road purposes on the south and west sides, all in Buffalo County, Nebraska (northeast corner of 92nd Street and Antelope Avenue). Roll call resulted as follows: Aye: Clouse, Lear, Lammers. Nay: Kearney, Buschkoetter. Motion carried.

 

THE COUNCIL TOOK A 5-MINUTE BREAK WHILE MEMBERS OF THE AUDIENCE LEFT THE COUNCIL CHAMBERS.

 

REZONING BETWEEN 14TH STREET AND 15TH STREET AND AVENUE I AND AVENUE K

 

Public Hearings 6 and 7 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 Starostka Group Unlimited (Owner) to rezone from “District R-2/PD, Urban Residential Mixed-Density/Planned Development Overlay District” to “District R-1, Urban Residential Single-Family District (Low Density) District” property described as Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated east 7.0 feet of Avenue I abutting said lot on the west, the vacated north 7.0 feet of 14th Street abutting said lot and said portion of Avenue I (above mentioned) on the south, the vacated south 7.0 feet of 15th Street abutting said lot and said portion of Avenue I (above mentioned) on the north, and the vacated west 7.0 feet of Avenue K abutting said lot and said portions of 14th Street and 15th Street (above mentioned) on the east, EXCEPT, however, the following described tract: the north 80.0 feet of the east half of Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated west 7.0 feet of Avenue K abutting said north 80.0 feet of Lot 1616 on the east and the vacated south 7.0 feet of 15th Street abutting said east half of Lot 1616 and said portion of Avenue K (above mentioned) on the north (between 14th Street and 15th Street and Avenue I and Avenue K).  Planning Commission recommended approval.

 

The applicant is requesting approval to rezone and plat a tract of land that is approximately 1.83 acres to create a seven-lot subdivision for development of single-family homes. This property is currently platted as Lot 1616 of the Original Town of Kearney Junction (OTKJ) which is the entire block that is between 14th Street and 15th Street and between Avenue I and Avenue K including within the block, at the northeast corner, a separate 80 foot by 140 foot lot with an existing house.  For many years this property was occupied by Kinkaid Nursery.  The building permit for the house was issued based on the legal description for the entire lot.  Now the applicant desires to develop the remainder of the property, not including the existing house lot, by creating seven additional lots.

 

Lot 1616, OTKJ is proposed for vacation, except for the 80’ x 140’ lot reserved for the existing house that will be consequently described as part of Lot 1616, OTKJ. The remainder of the land can then be replatted as Hammer Park Estates Second. Mr. Humphrey stated at the Planning Commission hearing that the existing house was developed by the same developer that is proposing the new subdivision and there are no objections from the residents of the existing house.

 

This property was zoned R-1 for many years but was rezoned to R-2/PD in 2004 with the intention of developing duplexes. The property has since changed ownership and the current owner is requesting rezoning from R-2/PD, Urban Residential Mixed Density/Planned Development District back to R-1, Urban Residential Single-Family District (Low Density). The Future Land Use Map of the City of Kearney Comprehensive Development Plan shows this area to be “Low Density Residential” and R-1 is a conforming zoning district for this land use type.

 

The applicant proposes a seven-lot subdivision to be known as Hammer Park Estates Second.  The existing lot with the existing house is not part of this subdivision since it remains as part of Lot 1616, OTKJ.  The surrounding streets including Avenue I and K and 14th and 15th Street have previously had seven feet of right-of-way vacated as it abuts this property and the vacated street right-of-way is included in this subdivision. A Subdivision Agreement is not required. A Public Works Plan has been submitted. Municipal water and sanitary sewer are available to the site. The sanitary sewer will require shared services connected to new manholes built over the existing sewer main. Paving of 14th Street east from Avenue I to Avenue K and Avenue I from 14th Street to 15th Street will be constructed in 2008 as part of the City Community Development Block Grant (CDBG) award.

 

Mitch Humphrey fro Buffalo Surveying was present to answer any questions from the Council.

 

There was no one present in opposition to this hearing.

 

Moved by Lear seconded by Buschkoetter to close the hearing and approve the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Starostka Group Unlimited (Owner) to rezone from “District R-2/PD, Urban Residential Mixed-Density/Planned Development Overlay District” to “District R-1, Urban Residential Single-Family District (Low Density) District” property described as Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated east 7.0 feet of Avenue I abutting said lot on the west, the vacated north 7.0 feet of 14th Street abutting said lot and said portion of Avenue I (above mentioned) on the south, the vacated south 7.0 feet of 15th Street abutting said lot and said portion of Avenue I (above mentioned) on the north, and the vacated west 7.0 feet of Avenue K abutting said lot and said portions of 14th Street and 15th Street (above mentioned) on the east, EXCEPT, however, the following described tract: the north 80.0 feet of the east half of Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated west 7.0 feet of Avenue K abutting said north 80.0 feet of Lot 1616 on the east and the vacated south 7.0 feet of 15th Street abutting said east half of Lot 1616 and said portion of Avenue K (above mentioned) on the north (between 14th Street and 15th Street and Avenue I and Avenue K). Roll call resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried.

 

FINAL PLAT FOR HAMMER PARK ESTATES SECOND

 

Public Hearings 6 and 7 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 Starostka Group Unlimited and Heritage Bank, Trustee and Beneficiary under Deed of Trust (Owner) for the Final Plat for “Hammer Park Estates Second”, an addition to the City of Kearney, Buffalo County, Nebraska for property described as Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated east 7.0 feet of Avenue I abutting said lot on the west, the vacated north 7.0 feet of 14th Street abutting said lot and said portion of Avenue I (above mentioned) on the south, the vacated south 7.0 feet of 15th Street abutting said lot and said portion of Avenue I (above mentioned) on the north, and the vacated west 7.0 feet of Avenue K abutting said lot and said portions of 14th Street and 15th Street (above mentioned) on the east, EXCEPT, however, the following described tract: the north 80.0 feet of the east half of Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated west 7.0 feet of Avenue K abutting said north 80.0 feet of Lot 1616 on the east and the vacated south 7.0 feet of 15th Street abutting said east half of Lot 1616 and said portion of Avenue K (above mentioned) on the north (between 14th Street and 15th Street and Avenue I and Avenue K) and to consider approval of Resolution No. 2008-1.

 

There was no one present in opposition to this hearing.

 

Moved by Buschkoetter seconded by Clouse to close the hearing and approve the Application submitted by Mitch Humphrey from Buffalo Surveying (Applicant) for Starostka Group Unlimited and Heritage Bank, Trustee and Beneficiary under Deed of Trust (Owner) for the Final Plat for “Hammer Park Estates Second”, an addition to the City of Kearney, Buffalo County, Nebraska for property described as Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated east 7.0 feet of Avenue I abutting said lot on the west, the vacated north 7.0 feet of 14th Street abutting said lot and said portion of Avenue I (above mentioned) on the south, the vacated south 7.0 feet of 15th Street abutting said lot and said portion of Avenue I (above mentioned) on the north, and the vacated west 7.0 feet of Avenue K abutting said lot and said portions of 14th Street and 15th Street (above mentioned) on the east, EXCEPT, however, the following described tract: the north 80.0 feet of the east half of Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated west 7.0 feet of Avenue K abutting said north 80.0 feet of Lot 1616 on the east and the vacated south 7.0 feet of 15th Street abutting said east half of Lot 1616 and said portion of Avenue K (above mentioned) on the north (between 14th Street and 15th Street and Avenue I and Avenue K) and approve Resolution No. 2008-1. Roll call resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

RESOLUTION NO. 2008-1

 

            BE IT RESOLVED BY THE PRESIDENT AND COUNCIL OF THE CITY OF KEARNEY, NEBRASKA, that the plat of “HAMMER PARK ESTATES SECOND” an addition to the City of Kearney, Buffalo County, Nebraska for a tract of land being described as Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated east 7.0 feet of Avenue I abutting said lot on the west, the vacated north 7.0 feet of 14th Street abutting said lot and said portion of Avenue I (above mentioned) on the south, the vacated south 7.0 feet of 15th Street abutting said lot and said portion of Avenue I (above mentioned) on the north, and the vacated west 7.0 feet of Avenue K abutting said lot and said portions of 14th Street and 15th Street (above mentioned) on the east, EXCEPT, however, the following described tract: the north 80.0 feet of the east half of Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated west 7.0 feet of Avenue K abutting said north 80.0 feet of Lot 1616 on the east and the vacated south 7.0 feet of 15th Street abutting said east half of Lot 1616 and said portion of Avenue K (above mentioned) on the north, all in the City of Kearney, Buffalo County, Nebraska, duly made out, acknowledged and certified, and the same hereby is approved in accordance with the provisions and requirements of Section 19-916 of the Nebraska Revised Statutes, be accepted and ordered filed and recorded in the Office of the Register of Deeds of Buffalo County, Nebraska; said addition is hereby included within the corporate limits of said City and shall be and become a part of said City for all purposes whatsoever, and the inhabits of such addition shall be entitled to all the rights and privileges and shall be subject to all laws, ordinances, rules and regulations of said City.

BE IT FURTHER RESOLVED that the President of the Council be and is hereby authorized and directed to execute the final plat on behalf of the City of Kearney, Nebraska.

            PASSED AND APPROVED THIS 8TH DAY OF JANUARY, 2008.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

LIQUOR LICENSE APPLICATION FOR PUMP & PANTRY #40; 1616 2ND AVENUE

 

Public Hearings 8 and 9 were discussed together but voted on separately.

 

Mayor Clouse opened the public hearing on the Application for a Class B-79434 liquor license submitted by BOSSELMAN, INC., dba “Pump & Pantry #40” located at 1616 2nd Avenue, approve the Manager Application for Joleen Linder, and to consider approval of Resolution No. 2008-2.

 

Bob’s Total Station located at 1616 2nd Avenue has been purchased by Bosselman, dba Pump & Pantry #40.  Also, Bosselman, dba Pump & Pantry #41 has purchased 56th Street Place located at 1212 East 56th Street which also includes that portion of the building housing Godfather’s Pizza.  Both locations have applied for a Class B (Beer – Off Sale Only) liquor license. The Applications for Manager identifies Joleen Linder of Holdrege.  According to the Police Department, Ms. Linder has experience in operating a previous Pump & Pantry in Holdrege and currently Pump & Pantry #39 in North Platte with no real record of legal problems.

 

Tom Urbanek and Joleen Linder were present to answer any questions from the Council. Ms. Linder stated she has not had any violations while managing other locations.

 

There was no one present in opposition to this hearing.

 

Moved by Clouse seconded by Kearney to close the hearing and approve the Application for a Class B-79434 liquor license submitted by BOSSELMAN, INC., dba “Pump & Pantry #40” located at 1616 2nd Avenue, approve the Manager Application for Joleen Linder, and approve Resolution No. 2008-2. Roll call resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

RESOLUTION NO. 2008-2

 

            WHEREAS, BOSSELMAN, INC., dba “Pump & Pantry #40” has filed with the Nebraska Liquor Control Commission and the City Clerk of the City of Kearney, Nebraska, an application for a Class B-79434 (Beer – Off Sale Only) Liquor License to do business at 1616 2nd Avenue, Kearney, Nebraska, and has paid all fees and done all things required by law as provided in the Nebraska Liquor Control Act; and

            WHEREAS, BOSSELMAN, INC., dba “Pump & Pantry #40” also filed with the Nebraska Liquor Control Commission and the City Clerk of the City of Kearney, Nebraska, an application for Corporate Manager of Joleen Linder; and

            WHEREAS, a hearing was held relating to said application on January 8, 2008.

            NOW, THEREFORE, BE IT RESOLVED that the President and City Council of the City of Kearney, Nebraska approve or recommend approval to the Nebraska Liquor Control Commission of the issuance of a Class B-79434 (Beer – Off Sale Only) Liquor License to BOSSELMAN, INC., dba “Pump & Pantry #40” located at 1616 2nd Avenue, Kearney, Nebraska, and to approve the application for Corporate Manager of Joleen Linder.

            BE IT FURTHER RESOLVED that the City Clerk is hereby instructed to record the Council action favoring the issuance of said license in the Minute Record of the proceedings of the Council.

            PASSED AND APPROVED THIS 8TH DAY OF JANUARY, 2008.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

LIQUOR LICENSE APPLICATION FOR PUMP & PANTRY #41, 1212 EAST 56TH STREET

 

Public Hearings 8 and 9 were discussed together but voted on separately.

 

Mayor Clouse opened the public hearing on the Application for a Class B-79474 liquor license submitted by BOSSELMAN, INC., dba “Pump & Pantry #41” located at 1212 East 56th Street, approve the Manager Application for Joleen Linder, and to consider approval of Resolution No. 2008-3.

 

There was no one present in opposition to this hearing.

 

Moved by Kearney seconded by Lammers to close the hearing and approve the Application for a Class B-79474 liquor license submitted by BOSSELMAN, INC., dba “Pump & Pantry #41” located at 1212 East 56th Street, approve the Manager Application for Joleen Linder, and approve Resolution No. 2008-3. Roll call resulted as follows: Aye: Clouse, Lear, Lammers, Kearney, Buschkoetter. Nay: None. Motion carried.

 

RESOLUTION NO. 2008-3

 

            WHEREAS, BOSSELMAN, INC., dba “Pump & Pantry #41” has filed with the Nebraska Liquor Control Commission and the City Clerk of the City of Kearney, Nebraska, an application for a Class B-79474 (Beer – Off Sale Only) Liquor License to do business at 1212 East 56th Street, Kearney, Nebraska, and has paid all fees and done all things required by law as provided in the Nebraska Liquor Control Act; and

            WHEREAS, BOSSELMAN, INC., dba “Pump & Pantry #41” also filed with the Nebraska Liquor Control Commission and the City Clerk of the City of Kearney, Nebraska, an application for Corporate Manager of Joleen Linder; and

            WHEREAS, a hearing was held relating to said application on January 8, 2008.

            NOW, THEREFORE, BE IT RESOLVED that the President and City Council of the City of Kearney, Nebraska approve or recommend approval to the Nebraska Liquor Control Commission of the issuance of a Class B-79474 (Beer – Off Sale Only) Liquor License to BOSSELMAN, INC., dba “Pump & Pantry #41” located at 1212 East 56th Street, Kearney, Nebraska, and to approve the application for Corporate Manager of Joleen Linder.

            BE IT FURTHER RESOLVED that the City Clerk is hereby instructed to record the Council action favoring the issuance of said license in the Minute Record of the proceedings of the Council.

            PASSED AND APPROVED THIS 8TH DAY OF JANUARY, 2008.

 

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

IV.    CONSENT  AGENDA

 

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

 

1.         Approve Minutes of Regular Meeting held December 26, 2007.

 

2.         Approve the following Claims: Advanced Battery Systems $107.13 smcs; Aflac $2,555.24 ps; Alamar Uniforms $461.16 smcs; All Star Windshield $35.00 smcs; Alltel $3,329.54 smcs; Anderson Brothers $137.54 smcs; Andersen Brent $17.12 smcs; Ask Supply $247.72 smcs; B&B Auto Glass $264.16 smcs; BBC Audiobooks $108.67 smcs; Baker & Taylor $4,016.51 smcs; Bamford $875.00 smcs; Beisheim,S $533.49 smcs; B&M Cleaning $265.00 smcs; Bennett,T $780.00 smcs; Blessing $315,889.52 co; Bluecross Blueshield $66,002.27 smcs; Book Farm $3,002.59 smcs; Brodart $41.35 smcs; Buffalo Co Sheriff $114,076.00 smcs; Buffalo Co Treasurer $2,931.12 smcs; Capital Bank & Trust $192.30 ps; Cash-Wa $59.05 smcs; Central Contracting $31,526.10 co; Central Fire & Safety $63.75 smcs; Central States Wire $4,373.76 smcs; CHAD $10.00 ps; Charter $54.99 smcs; Chesterman $46.00 smcs; Chief Construction $552.00 co; City of Ky $177,832.00 ps; College Savings Plan of NE $75.00 ps; Comcate $4,830.00 smcs; Concrete Workers $7,200.00 co; Conseco Life Insurance $24.00 ps; Copycat Printing $106.04 smcs; Creative Product Sourcing $20.00 smcs; Culligan $120.50 smcs; Dan Roeder Concrete $63,427.75 co; Dept of the Treasury $36.18 ps; Designs Unlimited $1,650.00 co; DPC $4,459.30 smcs; Dutton-Lainson $858.80 smcs; ESU $195.00 smcs; Eakes $207.27 smcs; Elements $250.00 smcs; Eirich,T $50.00 smcs; Eriksen Construction $55,341.00 co; EMC Ins $177,489.60 ps; Eustis Body Shop $130.00 smcs; Farmers Union Coop $72.00 smcs; Ferguson,R $22.00 smcs; Gale $995.69 smcs; GE Money Bank $692.60 smcs; Global Knowledge Training $3,475.75 smcs; Golden Rule Creations $489.28 smcs; Great Plains Safety $375.00 smcs; Hausmann Construction $62,573.27 co; Hayden,S $10.00 smcs; HD Supply $9,613.29 smcs; Hydrite Chemical $12,872.24 smcs; ICMA RC $2,723.84 ps; IRS $99,505.39 ps; Iteris $2,100.79 co; Jack Lederman $610.71 smcs; Jacobsen, Orr, Nelson $193.80 smcs; Johnson,S $50.00 smcs; Ky Area United Way $534.00 ps; Ky Concrete $9,449.52 smcs,co; King,R $120.00 smcs; Konica Minolta $100.57 smcs; KRVN $605.40 smcs; League of NE Municipalities $275.00 smcs; Maines Electric $227.50 smcs; Marker,D $290.00 smcs; Marshall Cavendish $104.31 smcs; Metlife $5,674.25 ps; Midland Contracting $13,770.00 co; Midwest Labs $333.00 smcs; Miller & Associates $62,491.21 co; Miller Signs $160.00 smcs; MO Police Chiefs Charitable $300.00 smcs; Moore Wallace $502.99 smcs; NE Child Support $2,390.88 ps; NE Dept of Health & Human $94.00 smcs; NE Dept of Revenue $30,835.16 ps; Ne Supreme Court $38.20 smcs; NE State of Library $38.20 smcs; Neopost $8,000.00 smcs; NeRPA $150.00 smcs; Northwestern Energy $8,987.50 smcs; Novus $35.00 smcs; Office Depot $141.31 smcs; Officenet $309.00 co; Overhead Doors $60.00 smcs; Picture Window Books $184.36 smcs; Paramount Linen $62.15 smcs; Payflex Systems $463.25 ps; PCAN $50.00 smcs; Platte Valley Comm $4,841.21 smcs; Presto-X $58.00 smcs; Random House $170.00 smcs; Recorded Books $2,079.92 smcs; Respond First Aid $700.95 smcs; Sapp Brothers $24,024.62 smcs; See Clear Cleaning $1,800.00 smcs; Shilog $98.90 smcs; Sign Center $50.00 smcs; Solid Waste Agency $42,286.16 smcs; Snap-On Tools $166.70 smcs; Starostka Group $1,128,671.21 co; State of Ne DAS $19.17 smcs; Stoker,K $50.09 smcs; Strategic Materials $345.36 smcs; Sun Life Financial $23,689.74 ps; Sydow,J $40.00 smcs; Telephone System of NE $22.46 smcs; Tool Doctor $55.55 smcs; Twin Diamon $180.42 smcs; UPS $199.35 smcs; Video Service of America $158.02 smcs; Von Maur Victim Fund $45.00 smcs; William,M $49.87 smcs; Winston Publishing $1,200.00 smcs; Yanney Heritage $28,272.50 co; Zimmerman Printers $169.50 smcs; Payroll Ending 1-5-2008 -- $291,906.71.  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.

 

V.    CONSENT  AGENDA  ORDINANCES

 

None.

 

VI.    REGULAR  AGENDA

 

ORDINANCE NO. 7402 – VACATE PORTION OF LOT 2, MARIANNE HUNT ADDITION (PERTAINS TO PUBLIC HEARING 2)

 

Ordinance No. 7402 proposing to vacate part of Lot 2, Marianne Hunt Addition, an addition to the City of Kearney, Buffalo County, Nebraska (southeast corner of 30th Avenue and 35th Street) will remain on the table until January 22, 2008 at the request of the applicant.  Therefore, no action was necessary.

 

ORDINANCE NO. 7410 – CONDITIONAL USE PERMIT TO I BELIEVE IN ME RANCH; NORTHEAST CORNER OF 92ND STREET AND ANTELOPE AVENUE (PERTAINS TO PUBLIC HEARING 5)

 

Moved by Clouse seconded by Lammers to deny Ordinance No. 7410, being Subsection 2 of Agenda Item VI proposing to grant a Conditional Use Permit to Richard D. Wilson, Trustee, and Donna M. Wilson, Trustee for the I Believe in Me Ranch to locate a combination of both a primary and secondary educational facility on property zoned “District AG, Agricultural District” and described as a tract of land being part of the Southwest Quarter of the Northwest Quarter of Section 8, Township 9 North, Range 15 West of the 6th P.M., containing 22.113 acres, more or less, of which 1.39 acres, more or less, are presently being used for road purposes on the south and west sides, all in Buffalo County, Nebraska (northeast corner of 92nd Street and Antelope Avenue).  Roll call resulted as follows: Aye: Clouse, Lear, Lammers. Nay: Buschkoetter, Kearney. Motion to deny Ordinance No. 7410 carried.

 

ORDINANCE NO. 7411 – VACATE PART OF LOT 1616, ORIGINAL TOWN OF KEARNEY JUNCTION (PERTAINS TO PUBLIC HEARING 6)

 

Council Member Lear introduced Ordinance No. 7411, being Subsection 3 of Agenda Item VI to vacate Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska except the north 80 feet of the East Half of said Lot 1616, and moved that the statutory rules requiring ordinances to be read by title on three different days be suspended and said ordinances be considered for passage on the same day upon reading by number only, and then placed on final passage and that the City Clerk be permitted to call out the number of the ordinance on its first reading and then upon its final passage.  Council Member Buschkoetter seconded the motion to suspend the rules. President of the Council asked for discussion or if anyone in the audience was interested in the ordinance. No one responded. Clerk called the roll which resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion to suspend the rules having been concurred in by three-fourths of the City Council, said motion was declared passed and adopted. City Clerk read Ordinance No. 7411 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Buschkoetter seconded by Clouse that Ordinance No. 7411 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. 7411 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. 7412 – REZONE BETWEEN 14TH STREET AND 15TH STREET AND AVENUE I AND AVENUE K (PERTAINS TO PUBLIC HEARING 6)

 

Council Member Lear introduced Ordinance No. 7412, being Subsection 4 of Agenda Item VI to rezone from “District R-2/PD, Urban Residential Mixed-Density/ Planned Development Overlay District” to “District R-1, Urban Residential Single-Family District (Low Density) District” property described as Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated east 7.0 feet of Avenue I abutting said lot on the west, the vacated north 7.0 feet of 14th Street abutting said lot and said portion of Avenue I (above mentioned) on the south, the vacated south 7.0 feet of 15th Street abutting said lot and said portion of Avenue I (above mentioned) on the north, and the vacated west 7.0 feet of Avenue K abutting said lot and said portions of 14th Street and 15th Street (above mentioned) on the east, EXCEPT, however, the following described tract: the north 80.0 feet of the east half of Lot 1616, Original Town of Kearney Junction now the City of Kearney, Buffalo County, Nebraska, together with the vacated west 7.0 feet of Avenue K abutting said north 80.0 feet of Lot 1616 on the east and the vacated south 7.0 feet of 15th Street abutting said east half of Lot 1616 and said portion of Avenue K (above mentioned) on the north (between 14th Street and 15th Street and Avenue I and Avenue K), and moved that the statutory rules requiring ordinances to be read by title on three different days be suspended and said ordinances be considered for passage on the same day upon reading by number only, and then placed on final passage and that the City Clerk be permitted to call out the number of the ordinance on its first reading and then upon its final passage.  Council Member Buschkoetter seconded the motion to suspend the rules. President of the Council asked for discussion or if anyone in the audience was interested in the ordinance. No one responded. Clerk called the roll which resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion to suspend the rules having been concurred in by three-fourths of the City Council, said motion was declared passed and adopted. City Clerk read Ordinance No. 7412 by number. Roll call of those in favor of the passage of said ordinance on the first reading resulted as follows: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried. Ordinance was read by number.

 

Moved by Buschkoetter seconded by Clouse that Ordinance No. 7412 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. 7412 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. 7413 – SELL PROPERTY FOR BALDWIN FILTERS EXPANSION

 

Regular Agenda Items 6, 7 and 8 were discussed together but voted on separately.

 

City Manager Michael Morgan stated Baldwin Filters intends to expand its Kearney plant and, in order to do so, it needs to acquire real estate which is presently a part of the Kearney Regional Airport property and owned by the City of Kearney. The property is presently agricultural and has been subject to a farm lease in prior years. The City has requested that the property be appraised so that the fair market value can be established for a sale. The appraisal provided to the City values the property needed for the Baldwin Filters expansion at $102,000.  The parcel in question consists of 20.39 acres.

 

The Economic Development Council of Buffalo County has agreed to fund the purchase of this property and the Council is required to pass an ordinance authorizing the sale of the property in question. The proceeds received on the sale of this property must be used for Airport purposes pursuant to FAA regulations.

 

Council Member Clouse introduced Ordinance No. 7413, being Subsection 6 of Agenda Item VI to sell a tract of land located in the North Half of Section 33, Township 9 North, Range 15 East of the 6t P.M., Buffalo County, Nebraska being more particularly described as follows: referring to the North Quarter corner of said Section 33; thence N89°49’55”E (assumed bearing) on the north line of said Section 33 a distance of 71.36 feet to a point on the west right-of-way line of existing Airport Road, said point being the point of beginning; thence continuing N89°49’55”E on said north line of Section 33 a distance of 535.17 feet; thence S16°32’01”E a distance if 755.33 feet; thence S15°56”00”W a distance of 383.80 feet to a point on the north right-of-way line of Highway 30; thence on said north right-of-way line of Highway 30 for the next two courses: (1) S75°18’33”W a distance of 846.0 feet and (2) S73°30’33”W a distance of 518.83 feet to a point on said west right-of-way line of existing Airport Road; thence N07°25’33”E on said west right-of-way line of existing Airport Road a distance of 1333.86 feet to the point of beginning, containing 20.39 acres, more or less, Buffalo County, Nebraska, 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, 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. 7413 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 Kearney seconded by Lammers that Ordinance No. 7413 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. 7413 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.

 

INTERLOCAL AGREEMENT – BALDWIN FILTERS EXPANSION

 

Regular Agenda Items 6, 7 and 8 were discussed together but voted on separately.

 

Mayor Clouse opened for discussion the Interlocal Agreement between the City of Kearney and the County of Buffalo, Nebraska for the proposed expansion at Baldwin Filters and to consider approval of Resolution No. 2008-4.

 

The City Attorney prepared an Interlocal Agreement between the City of Kearney and Buffalo County with reference to a proposed Baldwin Filters expansion project. An Interlocal Agreement is necessary between the County and the City so that there is an agreement setting forth the specifics of the County’s agreement to reimburse the City for all construction costs with reference to the relocation of Airport Road and any road improvements along Highway 30.  The current estimated cost for the road portion of the project is $1,275,000.  The City, at the request of Buffalo County, has agreed to oversee the road improvements with the County to reimburse the City for the cost by paying the annual debt service for a period of twenty years.

 

Moved by Lammers seconded by Lear to approve the Interlocal Agreement between the City of Kearney and the County of Buffalo, Nebraska for the proposed expansion at Baldwin Filters and approve Resolution No. 2008-4.

 

City Manager stated that the County approved the Interlocal Agreement with the completion date being September 15, 2008 instead of June 15, 2008.  Therefore, the motion needs to be amended.

 

Moved by Kearney seconded by Lammers to amend the motion to amend the completion date to September 15, 2008.  Roll call resulted as follows on the amendment: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

Moved by Lear seconded by Buschkoetter to approve the Interlocal Agreement between the City of Kearney and the County of Buffalo, Nebraska for the proposed expansion at Baldwin Filters and approve Resolution No. 2008-4.  Roll call resulted as follows on the amendment: Aye: Clouse, Buschkoetter, Lear, Lammers, Kearney. Nay: None. Motion carried.

 

RESOLUTION NO. 2008-4

 

            WHEREAS, the City of Kearney and the County of Buffalo desire to enter an Interlocal Agreement setting forth the responsibilities for the reimbursement for all construction costs with reference to the relocation of Airport Road and any road improvements along Highway 30.

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that the Mayor be and is hereby authorized and directed to execute the Interlocal Agreement between the City of Kearney and the County of Buffalo, Nebraska. A copy of the Agreement marked Exhibit “A” is attached hereto and made a part hereof by reference.

            PASSED AND APPROVED THIS 8TH DAY OF JANUARY, 2008.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

INFRASTRUCTURE AGREEMENT – BALDWIN FILTERS EXPANSION

 

Regular Agenda Items 6, 7 and 8 were discussed together but voted on separately.

 

Mayor Clouse opened for discussion the Infrastructure Agreement between the City of Kearney and Baldwin Filters, County of Buffalo, and the Buffalo County Economic Development Council for the proposed expansion at Baldwin Filters and to consider approval of Resolution No. 2008-5.

 

Baldwin Filters is proposing to expand its Kearney plant by adding a warehouse addition of approximately 378,500 square feet.  This proposed addition to their plant would be built to the east of the existing plant necessitating the moving of Airport Road as well as the City water main that is situated adjacent to that roadway.  Baldwin Filters will also need to acquire approximately 20.36 acres of property from the Kearney Regional Airport as a part of this expansion. 

 

In an effort to determine all of the parties’ rights and responsibilities with reference to this proposed expansion project, the City of Kearney is proposing an Infrastructure Agreement between Baldwin Filters, Inc., the City of Kearney, Buffalo County, and the Buffalo County Development Council. 

 

Included in the Infrastructure Agreement is a commitment by Baldwin Filters to build at least a $14 million building and install equipment in the expanded facility of $6 million.  Baldwin Filters has also agreed that within five years of the completion of the building that they will add at least fifty full time employees. 

 

Buffalo County will pay for the current Airport Road to be relocated with an estimated cost of $675,000 and also pay for road improvements necessary along Highway 30 with an estimated cost of approximately $475,000 plus engineering costs for a total estimated cost of $1,275,000.  The City of Kearney will issue Highway Allocation Pledge Bonds to finance the road improvements and Buffalo County agrees to reimburse the City of Kearney from future property tax proceeds associated with the proposed improvements 

 

The City of Kearney will pay for the relocation of the water main at an estimated cost of $475,000.  The Buffalo County Economic Development Council will pay $102,000 for the purchase of the land from the Kearney Regional Airport.  The $102,000 is based upon an appraisal of that property which has been provided to the City.  The FAA requires that the $102,000 be used for aviation related projects within the Airport property. 

 

Both the roadway and the water main improvements are under design and bids will be let in early March with an anticipated completion date of June 15, 2008.  The City of Kearney, at the request of Buffalo County, has agreed to oversee the roadway improvements. 

 

The Infrastructure Agreement stipulates that if Baldwin Filters does not start the project within 18 months after the completion of the Infrastructure improvements, they will pay all interest costs on any debt issued.  Baldwin Filters has further agreed that if the project has not been started within five years of the completion of the Infrastructure Agreement, they will reimburse both Buffalo County and the City of Kearney for the total costs and any interest accrued on the infrastructure improvements.  Baldwin Filters has further agreed that they will not seek tax increment financing with reference the expansion project and they are agreeing to not protest annexation should the City at some point be in a position to annex their property. 

 

Moved by Buschkoetter seconded by Clouse to approve the Infrastructure Agreement between the City of Kearney and Baldwin Filters, County of Buffalo, and the Buffalo County Economic Development Council for the proposed expansion at Baldwin Filters and approve Resolution No. 2008-5. Roll call resulted as follows: Aye: Clouse, Lammers, Kearney, Buschkoetter, Lear. Nay: None. Motion carried.

 

RESOLUTION NO. 2008-5

 

            WHEREAS, Baldwin Filters is proposing to expand its Kearney plant by adding a warehouse addition of approximately 378,500 square feet; and

            WHEREAS, the proposed addition would be built to the east of the existing plant necessitating the moving of Airport Road as well as the City water main that is situated adjacent to that roadway; and

            WHEREAS, Baldwin Filters will also need to acquire approximately 20.36 acres of property from the Kearney Regional Airport as a part of this expansion; and

            WHEREAS, the City of Kearney, the County of Buffalo, Baldwin Filters, and the Buffalo County Economic Development Council desire to enter an Infrastructure Agreement setting forth the rights and responsibilities of all parties with reference to the proposed expansion project by Baldwin Filters.

            NOW, THEREFORE, BE IT RESOLVED by the President and Council of the City of Kearney, Nebraska, that the Mayor be and is hereby authorized and directed to execute the Infrastructure Agreement between the City of Kearney, the County of Buffalo, Baldwin Filters, and the Buffalo County Economic Development Council.  A copy of the Agreement marked Exhibit “A” is attached hereto and made a part hereof by reference.

            PASSED AND APPROVED THIS 8TH DAY OF JANUARY, 2008.

 

ATTEST:                                                                       STANLEY A. CLOUSE

MICHAELLE E. TREMBLY                                             PRESIDENT OF THE COUNCIL

CITY CLERK                                                                 AND EX-OFFICIO MAYOR

 

OPEN ACCOUNT CLAIMS: PLATTE VALLEY STATE BANK - $44,203.58, NPPD - $1,999.15

 

Moved by Kearney seconded by Lammers that Open Account Claims in the amount of $44,203.58 payable to Platte Valley State Bank, and in the amount of $1,999.15 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.

 

VII.    REPORTS

 

None.

 

VIII.    ADJOURN

 

Moved by Clouse seconded by Kearney that Council adjourn at 10:10 p.m. Roll call resulted as follows: Aye: Clouse, Kearney, Buschkoetter, Lear, Lammers. Nay: None. Motion carried.

 

 

                                                                                    STANLEY A. CLOUSE

                                                                                    PRESIDENT OF THE COUNCIL

                                                                                    AND EX-OFFICIO MAYOR

ATTEST:

MICHAELLE E. TREMBLY

CITY CLERK