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Councilman catches changes in city code

Tuesday, May 17, 2011

McCOOK, Nebraska -- Despite earlier assurances to the contrary, "updates" to the McCook code of ordinances book included changes that would raise fine amounts and even modify the intent of certain ordinances. Two discrepancies were pointed out Monday evening during the McCook City Council's semi-monthly meeting, by Councilman Aaron Kircher.

Kircher noticed that the parking fine amount were raised from $10 to $25 and that wording regarding permit fees was changed, from "shall" to "may" be charged.

City Manager Kurt Fritsch initially explained the parking fine increase by saying it was "changed to what we are charging today," with Chief of Police Isaac Brown correcting that the $25 was not what was being charged, but was an amount the police department had recommended they increase to.

Fritsch maintained that the intent of the ordinances was not being changed, but Kircher argued that there is a big difference between stating a fee "shall" be charged and "may" be charged. Fritsch then said he didn't disagree with Kircher's assessment of the fine amount changes.

Following Kircher's account of how the ordinance changes were initially presented to council members, City Attorney Nate Schneider said he couldn't recall what was said when the ordinance changes were first presented, but explained the revisions gave them the authority to make any changes they felt necessary.

During the April meeting when the changes were presented as an update to bring the ordinance book up to state and federal requirements, Fritsch said "there is nothing in here that was added by city staff," and explained it was a much cleaner and easier-to-get-through version. The revisions were said to include relocating, combining and renumbering of each of the chapters in the ordinance book and would precede the posting of the ordinances on the cities website.

Kircher motioned to strike the appendix, that included the increased fine amounts and modified wording, and Mayor Dennis Berry seconded his motion.

Kircher said he was sure he didn't catch all of the changes, pointing out that a section regarding the introduction of resolutions and motions had been removed entirely. Schneider reiterated that approval of the ordinance changes gave them the authority to make changes and said that some of the changes were necessary to meet state statutes. Kircher asked if removal of the resolution introduction section was one that had to be done to meet state statutes, to which Schneider replied that he didn't recall. "I don't know why we would have deleted that one, it has been so long since we did it," said Schneider.

"It is an important part [of the ordinance book] because it addresses how to resolve resolutions," said Kircher.

Schneider and Kircher agreed to return to the original wording for that section and remove it later, if they found it was duplicated in another section of the book.

The changes to the ordinance book and amendments were then approved, following their third and final reading.

Kircher asked when the ordinance would be posted to the city's website, to which City Clerk Lea Ann Doak replied, "not right away."

Dr. Richard Tubbs, McCook Community College Vice President, announced during a public hearing that the Daughters of the American Revolution building at Kelley Park had been successfully relocated. "This is the final step in the process to build the McCook Community College Events Center, that will serve not only the needs of the college, but those of the community," said Tubbs. He added that the council's final approval of the purchase agreement would allow them to begin construction immediately.

Mid-Plains Community College President, Dr. Michael Chipps, thanked the community for its support and said the project was a long time coming. "It was initially approved by college board members 27 years ago," said Chipps.

Council member unanimously granted final approval for the creation of a subdivision, the final plat, as well as the purchase agreement between the city and Mid-Plains Community College, which sells a portion of Kelley Park to be used for the events center.

The purchase agreement called for a sale price of $1. Tubbs and Chipps presented council members with a framed dollar bill and reiterated their appreciation for the support the project had received.

Fritsch announced that Senator Ben Nelson's office had made an inquiry into the cost of the now $2 million wildlife fence at McCook Ben Nelson Regional Airport. According to Fritsch, the inquiry resulted in the FAA's willingness to take a second look at the required parameters of the fence. "The need for the fence has not been eliminated," Fritsch told the Gazette Tuesday morning, "I am hopeful that we can arrive at a cost somewhere between the original estimate and the high end that had been proposed."

During Monday's meeting Fritsch recommended that council proceed with approval of the application for federal assistance for the fence, "even though the number is high."

Mayor Dennis Berry said the project, "looks to be less expensive than we thought," with Fritsch replying that we are "keeping our fingers crossed."

Prior to approval of the application, Councilman Kircher asked that the application for federal assistance be amended to include, under a list of benefits for the project, maintaining the Part 139 requirement for commercial aviation. The application previously stated only increased operational safety as an anticipated benefit.

Fritsch told the Gazette last week that opting out of the wildlife fence project was not an option. "By not building the fence, which option we do not have (this is an FAA mandate and safety issue) it jeopardizes our Part 139 requirement allowing us to provide commercial service. They will remove that provision and we will be out of business. That is the answer plain and simple," said Fritsch.

The sale of a portion of a city owned lot at 301 E. Second, to August Jones, was approved and authorized for suspension of the three reading rule. Councilman Kircher asked for reasoning for suspension of the three reading rule and after Fritsch said the only reason was it was the buyers desire, Kircher said it wasn't warranted without real reason. Councilman Kircher was the lone dissenting vote in the matter though and the sale was approved on a 4-1 vote.

Kircher also attempted to have a $100 earnest deposit added to the purchase agreement, to protect the city from the expense of title fees if the buyer backed out. Fritsch said it was too late for such a change and said they would be "requesting money after the fact."

"This is the first I have seen the purchase agreement," replied Kircher as he argued that the decision on approving the purchase agreement was already made prior to council approval, if they were unable to make revisions to the document.

City Attorney Nate Schneider said he didn't disagree with Kircher but that we were "probably out of time on this one."

Kircher said in the future it needed to be standard practice to ask for earnest money to cover inspection and cancellation fees of properties sold, with Fritsch replying that he wouldn't argue with him, "if we were discussing something over $4 thousand."

Kircher closed the discussion by saying, "even if it is just a little bit, why just give it away?"

The $50,000 claim in damages from the elderly man attacked by two vicious dogs, while walking near the fairgrounds in 2010, was approved to be forwarded to the cities insurance carrier. No discussion took place regarding the claim, that comes from attorneys representing Dale Adams and is directed at the city of McCook and Chief of Police, Isaac Brown.

The McCook Police Department responded to a call from Adam's cell phone in May, while he was being attacked by a Rottweiler and a pitbull. Adams was treated at Community Hospital for wounds suffered during the attack. Brown told the Gazette following the attack that, "he was walking down the sidewalk and did nothing to provoke the animals, which were running loose. His wounds were serious but not life-threatening."

Both dogs were taken into custody following the incident and it was discovered one of them had already been ordered destroyed by Red Willow County Court, following a previous incident.

Other items on the consent and regular agenda;

* May 15-21, 2011, was proclaimed as Emergency Medical Services Week.

* The mayor was approved to sign the Nebraska Department of Health and Human Services contract for congregate meals, home delivered meals and transportation services, as well as the contract with American Medical Response for transportation of DHHS clients.

* The Telecommunications Site Lease Agreement, between the city and Alltel Communications of Nebraska, dba Verizon Wireless, for the placement of additional equipment on the west water tower was approved.

* MO Dough, LLC, was approved for a special liquor license for a reception at Memorial Auditorium on August 27.

* The17 Ranch Winery, LTD, was approved for a special liquor license for a McCook Art Guild fundraiser on June 4.

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