Regular Meeting
March 3, 2009
The Mayor and Council
of the City of Fairbury met in regular session in the Council Chambers
located at 612 D Street, Fairbury, Nebraska, on the 3rd day of
March, 2009, at 7:30 p.m. Mayor Homer L. Ward called the meeting to order.
Notice of meeting was
given in advance thereof by publication in the Fairbury Journal News,
Fairbury, Nebraska, the designated method of giving notice, as shown by
affidavit of publication. The Open Meetings Act was posted in the meeting
room as required by law.
Roll call found the
following Council Members present: Doug Brown, Ed Friesen, Ron Byrd, Don
Trimm, Beryl Lueders, Shirley Bender, Brad Kuzelka, and Kelly Davis.
Mayor Ward called for
the submittal of forms to request future agenda items. No forms were
submitted during the meeting.
Mayor Ward read the
Consent Agenda:
1.
Approval of the minutes of the
regular meeting of February 17, 2009.
2.
Approval of claims.
3.
Approval of the appointment of
Ryan Mick Gill to the Board of Adjustment as an alternate, term to expire
May 2009.
4.
Approval of the resignation of
Marvin Yost from the Economic Development Committee.
Bender abstained from
the claim which is hers personally for mileage and meals for the League of
Municipality meeting she attended. Davis abstained from the
claim which is his personally for mileage and meals for the League of
Municipality meeting he attended. Bender stated the claim to Southeast
Community College out of the Police Fund in the amount of $15.00 needs to be
pulled per Police Chief Brooks Bryan. Trimm moved to remove the claim
to SE Community College out of the Police Fund in the amount of $15.00.
Motion seconded by Byrd. On roll call, Brown, Friesen, Byrd, Trimm, Lueders,
Bender, Kuzelka, and Davis voted “yes.” Motion carried. Brown moved to
approve the Consent Agenda with removing the claim to SE Community College.
Motion seconded by Byrd. On roll call, Brown, Friesen, Byrd, Trimm,
Lueders, Bender, Kuzelka, and Davis voted “yes.” Bender and Davis abstained
to the extent of their claims for expenses related to the League of
Municipalities meeting. Motion carried.
Mayor Ward opened the
show cause hearing concerning the nuisance property owned by Gerald E.
Bundy, located at 319 A Street, Fairbury, Nebraska. City Attorney David
Bargen stated this was declared a public nuisance by the Board of Health of
the City of Fairbury pursuant to Fairbury Municipal Code section 92.21.
Each file, Bargen has marked exhibits, for the purpose of this hearing; the
owners will have a chance to address the Council. Bargen presented Exhibit
1 ~ letter sent by Fire Chief Eric Voss to Mr. Bundy, June 10, 2008, which
was sent by certified mail to 4711 Faulkner Ct in Lincoln, Nebraska. Voss
determined the building is unsafe and a public nuisance pursuant to sections
91.07 and 150.50 of the Fairbury Municipal Code. Section 150.50B also
declares an unsafe building as a nuisance under the city code; therefore
abatement procedures follow the nuisance abatement procedures. Exhibit 2 ~
several pictures taken by Fire Chief Eric Voss that indicates the condition
of the property, that being partially damaged due to fire. Exhibit 3 ~
minutes of the Board of Health meeting held on January 6, 2009. The Board
of Health declared this property a nuisance at this meeting. Police Chief
Brooks Bryan of the Board of Health stated the Board of Health has been
pursuing several properties that have been badly damaged in several ways.
After discussion of the most pressing cases and based on a written
description of what has happened at the properties they have dealt with ~
the properties at 319 A Street and 314 West 3rd Street it was
moved, seconded and carried to be declared a public nuisance. Each member
of the Board of Health has seen the properties firsthand and the photos
taken by Fire Chief Eric Voss and they agree with his recommendation as to
the extent of the damage to the structure. Bargen questioned Bryan if the
Board of Health relied on Section 92.20B of the code section which defines a
nuisance under the city code, in making the nuisance declarations. Bryan
stated they did. Bargen stated Section 92.20B defines a nuisance as any
filthy, littered, or trash-covered vacant lots, houses, buildings or
premises; also any unsightly building or other structure, or any old,
abandoned, or partially destroyed building or structure which are either a
fire hazard, a menace to the public health or safety, or are so unsightly as
to depreciate the value of property in the vicinity thereof; and all other
things specifically designated as nuisances elsewhere in this code; which
Bargen stated Section 150.50 does declare an unsafe building as a public
nuisance. Exhibit 4 ~ the notice that was sent to Mr. Bundy, January 12,
2009, which was sent by certified mail to 4711 Faulkner Ct in Lincoln,
Nebraska, notified him that the Board of Health declared his property at 319
A Street a public nuisance and must be abated at once. This notice was
given pursuant to Section 92.21 of the Fairbury Municipal Code of the
abatement procedure. Exhibit 5 ~ minutes of the February 3, 2009 City
Council Meeting where they received information from the Board of Health of
the noncompliance for abatement and therefore pursuant to the city code set
the public hearing concerning the nuisance property owned by Gerald E.
Bundy, located at 319 A Street, Fairbury, Nebraska for March 3, 2009 at 7:30
p.m. a show cause hearing requesting the owner, Mr. Bundy, to come to the
Council and show cause why such condition should not be deemed a public
nuisance as found by the Board of Health under the code provision. Exhibit
6 ~ Notice to Show Cause of setting that hearing for this evening was
delivered to Mr. Gerald E. Bundy at 828 G Street on February 4, 2009,
requesting him to appear before the Council. This notice has to be sent at
least 5 days prior to the hearing, which was in this case. Mr. Bundy
questioned that a letter was sent to him at 4711 Faulkner Ct. in Lincoln,
Nebraska. Bargen stated this was the original letter that was sent in June
2008 which stated the fire damaged the building to the extent of 50% or more
of its value; it shall not be repaired or rebuilt but shall be taken down
and removed within 60 days from the date of fire and the removal of the
structure should be completed by August 1, 2008. Bundy stated that Voss had
told him that he would send him another letter after the structure had been
checked for asbestos and would give him another sixty days. Bargen
questioned Bundy if he felt this shouldn’t be declared a nuisance under the
city code. Bundy stated that he agreed the building is a nuisance and that
it needs to come down – the location is not worth putting any money into
fixing it up. Bundy does not understand what determines the 50% of its
value. Bargen explained it is 50% of the value of the property, the
existing value. Council person Beryl Lueders asked Mr. Bundy if he knows he
is responsible for this; he replied “I suppose I would be, I don’t know”.
Bundy stated he has been having a lot of problems lately. Bundy stated that
he did receive a letter from the City containing the asbestos report.
Bargen questioned Bundy if he did receive a letter about the asbestos and
that he could proceed to tear the building down. Bundy said he did. Bundy
stated he would like to have a couple months to get this taken care of.
Bargen stated that under the code he has ten days, from the passage of the
resolution, which will be acted on tonight, to abate the nuisance. Bundy
stated he has a bid to have it taken down; he would like to take some of the
sheeting out of the house that is usable. He stated he wouldn’t be able to
have it taken care of in ten days. Council person Don Trimm asked Bundy if
the property belonged to him; Bundy said “yes”. Trimm wanted to know if
Bundy felt the property could be repaired and if he planned on doing that;
Bundy replied “no”. Trimm asked Bundy if he realized it was his
responsibility to get it taken care of since it has been declared a
nuisance. Bundy replied “yes”. Trimm stated that the City would give him a
certain amount of time to get that done. No one else spoke in regards to
this matter. Mayor Ward declared the hearing closed.
Mayor Ward opened the
show cause concerning the nuisance property owned by Paula Henry and/or
Scott Fentress located at 314 West 3rd Street, Fairbury,
Nebraska. City Attorney David
Bargen stated this was declared a public nuisance by the Board of Health and
a Show Cause Hearing was set for March 3, 2009 at 7:30 p.m., notice of which
was published at least five days prior to the hearing. Bargen stated the
owner of record at the courthouse was Paula Henry; and the City had
information that the ownership had changed hands, so notice was sent to both
Henry and Fentress. Bargen presented Exhibit 1 ~ letter sent by Fire Chief
Eric Voss to Paula Henry, September 10, 2008, which was sent by certified
mail to 314 West 3rd Street; Fairbury, Nebraska. Voss determined
the building is unsafe and a public nuisance pursuant to sections 91.07 and
150.50 of the Fairbury Municipal Code. Section 150.50B also declares an
unsafe building as a nuisance under the city code; therefore abatement
procedures follow the nuisance abatement procedures. Voss gave the
following reasons: 1)By the reason that the fire damaged the building to the
extent of 50% or more of its value. 2)By the reason that the building is
deteriorating condition, is a haven for rodents and other animals, and its
existing condition may cause or aid in the spread of disease or injury. 3)By
reason of lack of proper repair, the structure is unstable and liable to
cause injury or damage by the collapse or fall and is a special danger to
children who can easily enter the structure. Exhibit 2 ~ several pictures
taken by Fire Chief Eric Voss that indicates the condition of the property,
that being partially damaged due to fire. Exhibit 3 ~ minutes of the Board
of Health meeting held on January 6, 2009. The Board of Health declared
this property a nuisance at this meeting. Police Chief Brooks Bryan of the
Board of Health stated each member of the Board of Health has seen the
properties firsthand and the photos taken by Fire Chief Eric Voss and they
agree with his recommendation as to the extent of the damage to the
structure. Bargen questioned Bryan if the Board of Health relied on Section
92.20B of the code section which defines a nuisance under the city code, in
declaring the property a nuisance. Bryan stated they did. Bargen stated
Section 92.20B defines a nuisance as any filthy, littered, or trash-covered
vacant lots, houses, buildings or premises; also any unsightly building or
other structure, or any old, abandoned, or partially destroyed building or
structure which are either a fire hazard, a menace to the public health or
safety, or are so unsightly as to depreciate the value of property in the
vicinity thereof; and all other things specifically designated as nuisances
elsewhere in this code; which Bargen stated Section 150.50 does declare an
unsafe building as a public nuisance. Exhibit 4 ~ the notice that was
published for Paula Henry and Scott Fentress, January 14, 2009, notified
them that the Board of Health declared the property at 314 West 3rd
Street a public nuisance and must be abated at once. This notice was given
pursuant to Section 92.21 of the Fairbury Municipal Code of the abatement
procedure. Exhibit 5 ~ minutes of the February 3, 2009 City Council
Meeting where they received information from the Board of Health of the
noncompliance for abatement and therefore pursuant to the city code set the
public hearing concerning the nuisance property owned by Paula Henry and/or
Scott Fentress, located at 314 West 3rd Street, Fairbury,
Nebraska for March 3, 2009 at 7:30 p.m. a show cause hearing requesting the
owner, Paula Henry and/or Scott Fentress, to come to the Council and show
cause why such condition should not be deemed a public nuisance as found by
the Board of Health under the code provision. Exhibit 6 ~ Notice to Show
Cause of setting that hearing for this evening was published for Paula Henry
and Scott Fentress on February 11 and 18, 2009, requesting them to appear
before the Council. This notice has to be published for two consecutive
weeks, the last publication to be at least one week prior to the date set
for the hearing, which was in this case. Scott Fentress was present at the show cause hearing and addressed the
Council. Fentress stated he had bought the property from Dawn Henry, Paula
Henry’s daughter, in September 2007; but he had not received a deed until
yesterday. He registered the deed at the courthouse today. He was notified
by the City with a notice in the newspaper as the City didn’t have an
address for Fentress. Fentress stated a friend had told him about the
notice in the newspaper about two weeks ago. Fentress stated he has taken
some of the siding off and has contacted someone with a dozer to help with
the demolition of the structure, but he will not be able to get it down in
ten days. Fentress would like to have sixty days to tear the structure
down. He works out of town; so isn’t in town much. Bargen questioned
Fentress if he had owned this structure since September 2007. Fentress
stated that he had. No one else
spoke in regards to this matter. Mayor Ward declared the hearing closed.
Discussion was held
regarding the Interlocal Agreement between the City of Fairbury, Sheriff’s
Office, and Jefferson County for Law Enforcement. Bargen stated this is to
be used only for excess overtime hours ~ fail safe. Bargen stated it has
been reviewed by the county attorney, but has not been brought to the county
commissioners yet. Linda Bauer, county attorney, didn’t think their would
be any major changes. Bargen drafted the document ~ stated insurance
coverage, union contracts, several things were taken into consideration when
drafting the document. Bender moved to approve the Interlocal Agreement, if
no changes are made by the county, and to authorize the Mayor to sign the
Interlocal Agreement. Motion seconded by Brown. On roll call, Brown,
Friesen, Byrd, Trimm, Lueders, Bender, Kuzelka, and Davis voted “yes.”
Motion carried.
Discussion was held
regarding the request from Union Pacific Railroad to vacate the connecting
unnamed street between Nelson Street and Arcade Street. Bargen stated this
is a project the UP has approached the city about. A piece of private
property had started being used as a street; the City has been maintaining
this property, so the City has acquired this property by adverse
possession. A quiet title action would have to be brought in court to show
the City owns the property. The UP has offered to pay the attorney fees,
court costs, and the fees for the quiet title. The UP wants the City to
vacate the street and have the property go back to the previous adjoining
landowners which would ultimately be the UP. They would be willing to pick
up all costs. Council person Ed Friesen didn’t think this would restrict
anyone. Friesen did state that Russ Furrow has his salvage business close
to this but didn’t think this would hinder him. Mayor Ward stated it would
be nice to get this area cleaned up. Council person Kelly Davis asked
citizen Dan Stanton, who is a property owner in the area, if this would
bother him. Stanton stated he would have no issues with this; but maybe
property owner Kenny Epp would. Assistant Street Superintendent, Laura
Bedlan, wanted to know if any utilities are in this area. Stanton mentioned
a gas main is present in this area and possibly a water main. Lueders
wanted to know if landowners have to be notified. Bargen will double check
this. Bender stated we are working towards making this happen; moved to
support the Union Pacific’s efforts to build on this property and to send
the matter of vacating the street to the Planning Commission. Motion
seconded by Lueders. On roll call, Brown, Friesen, Byrd, Trimm, Lueders,
Bender, Kuzelka, and Davis voted “yes.” Motion carried.
Discussion was held
regarding the 2009 Annual Loan Agreement with the National Museum of the
United States Air Force for the aerospace vehicle on display at the
airport. Bargen stated he has examined the documents. Bargen stated the
Air Force can come and take parts from the aircraft if needed; it has to be
water tight; have to remove radioactive parts; it they would have to come
pick it up, they could charge the City crating, shipping, insuring, etc.
costs, which by some estimates may be approximately $30,000.00; suppose to
have an id sign by the aircraft. The City is required to carry insurance;
which the City does in the amount of $10,000.00. Bargen stated he could get
in contact with Patricia Ochs, the Static Display Program Administrator with
the Department of the Air Force and do more research to see what would
happen if we didn’t sign the agreement since we have some concerns. Lueders
moved to table this agenda item until Bargen can get more information from
Wright Patterson Air Force Base. Motion seconded by Bender. On roll call,
Brown, Friesen, Byrd, Trimm, Lueders, Bender, Kuzelka, and Davis voted
“yes.” Motion carried.
Byrd moved to approve
the CDBG Contract Amendment regarding the fire truck purchase. Motion
seconded by Kuzelka. City Administrator Joseph Parker stated the
administrative fees were not as high as originally anticipated; so we will
be getting $5,738.00 back from this project that had been allocated for
this. On roll call, Brown, Friesen, Byrd, Trimm, Lueders, Bender, Kuzelka,
and Davis voted “yes.” Motion carried.
Davis moved to
authorize the Mayor to sign the letter for the budget reallocation for the
fire truck purchase. Motion seconded by Trimm. On roll call, Brown,
Friesen, Byrd, Trimm, Lueders, Bender, Kuzelka, and Davis voted “yes.”
Motion carried.
Trimm moved to
authorize the Mayor to sign the Notice of Award forms for R.L. Tiemann
Construction Inc for the Paving and Drainage Improvement District 2008-1 and
Improvement Project 2008-2. Motion seconded by Davis. The lowest
responsible bid for this project was $163,471.62. On roll call, Brown,
Friesen, Byrd, Trimm, Lueders, Bender, Kuzelka, and Davis voted “yes.”
Motion carried.
Byrd moved to authorize
the Mayor to sign the Notice of Award forms for M.E. Collins Contracting
Company for the Storm Sewer Improvements - 2008. Motion seconded by
Kuzelka. The lowest responsible bid for this project was $255,110.40. On
roll call, Brown, Friesen, Byrd, Trimm, Lueders, Bender, Kuzelka, and Davis
voted “yes.” Motion carried.
Mayor
Ward introduced Ordinance No. 2981 amending Ordinance 2762 to provide for a
different meeting day for the Citizen Advisory Review Committee of the
Economic Development Program. Bargen read by title Ordinance 2981: AN
ORDINANCE TO AMEND ORDINANCE NO. 2762 SECTION 8, AND THE 2006 CITY OF
FAIRBURY MUNICIPAL CODE SECTION 32.031 – COMMITTEE MEETINGS, TO PROVIDE FOR
A DIFFERENT MEETING DAY FOR THE CITIZEN ADVISORY REVIEW COMMITTEE OF THE
ECONOMIC DEVELOPMENT PROGRAM OF THE CITY OF FAIRBURY, NEBRASKA ESTABLISHED
PURSUANT TO THE LOCAL OPTION MUNICIPAL ECONOMIC DEVELOPMENT ACT; AND TO
REPEAL CONFLICTING PORTIONS OF ORDINANCES AND CODE SECTIONS. Trimm moved to
introduce Ordinance 2981and suspend the statutory three readings rule.
Motion seconded by Brown. On roll call, Brown, Friesen, Byrd, Trimm,
Lueders, Bender, Kuzelka, and Davis voted “yes.” Motion carried. The
committee has changed the meetings to Wednesday instead of Tuesday ~ so the
ordinance had to be changed. Bender moved to give final passage of
Ordinance 2981. Motion seconded by Brown. On roll call, Brown, Friesen,
Byrd, Trimm, Lueders, Bender, Kuzelka, and Davis voted “yes.” Motion
carried.
Bender moved to adopt
Resolution No. 716 ordering and directing Gerald E. Bundy to remedy said
public nuisance on the property located at 319 A Street; legally described
as
Lot 2 of Re-Survey of
Lots 13, 14 & 15 of Nutting’s Subdivision of the City of Fairbury, in the
County of Jefferson, and State of Nebraska. Motion seconded by Brown. On
roll call, Brown, Friesen, Byrd, Trimm, Lueders, Bender, Kuzelka, and Davis
voted “yes.” Motion carried.
Davis moved to adopt
Resolution No. 717 ordering and directing Paula Henry and/or Scott Fentress
to remedy said public nuisance on the property located at 314 West 3rd
Street; legally described as Lot 4 Smith’s Subdivision to Fairbury,
Jefferson County, Nebraska. Motion seconded by Friesen. Bargen stated
there is no provision to change the amount of days in the resolution.
Lueders amended the resolution to remove Paula Henry from the resolution and
it just being Scott Fentress as owner of the property in question. Trimm
moved to approve Resolution No. 717 as amended with just the name of Scott
Fentress. Motion seconded by Byrd. On roll call, Brown, Friesen, Byrd,
Trimm, Lueders, Bender, Kuzelka, and Davis voted “yes.” Motion carried.
Within the City
Administrator’s report Joseph Parker stated the League Conference was very
good. Parker stated that the League President said this was the best
attended conference the League had ever hosted. Davis also thanked the
City for giving him the opportunity to attend. Mayor Ward and Bender also
stated the meeting was very good.
Bender moved to adjourn
the meeting. Motion seconded by Lueders. On roll call, Brown, Friesen,
Byrd, Trimm, Lueders, Bender, Kuzelka, and Davis voted “yes.” Motion
carried. Meeting adjourned at 8:35p.m.
Homer L. Ward, Mayor
Attest: Sharyl Preston, City Clerk
