A sign indicates a dead end on Karol Kay Boulevard near Bader Avenue. The city plans to extend Karol Kay to East Hillcrest Drive but first need to acquire land from the Eastridge Homeowners Association.
The Karol Kay Boulevard extension project from Bader to Hillcrest brought questions and opposition at the Sept. 17 city council meeting.
The council ultimately voted 5-3 to move forward using eminent domain to acquire land needed for the street. Council members Ellen Beck, Sid Kamprath and Jessica Kolterman voted against.
The project has been in the city’s plans since 2001. It would extend the dead end of Karol Kay Boulevard, currently ending at Bader Avenue, all the way to East Hillcrest Drive.
Most of the council’s discussion focused on authorizing the city attorney to initiate eminent domain proceedings to acquire easements for the Karol Kay project.
Eminent domain allows the state or city to acquire land for public use with compensation to the previous owners.
City Attorney Kelly Hoffschneider said the state told him that in order for the city to maintain federal funding, a condemnation proceeding hearing needs to be set.
“That hearing can get scheduled in December, so I think it’s important for the council to know that that hearing does not have to get scheduled tomorrow, it doesn’t have to get scheduled next week,” Hoffschneider said. “As long as the Nebraska Department of Transportation has that hearing date in place, according to the person I spoke to, that will satisfy the federal funding requirements.”
Hoffschneider said that according to a packet provided to him of contact logs, the state had reached out to the Eastridge Homeowners Association in order to negotiate the right of way acquisition. The association is made up of residents who’s land would be impacted by the project.
The first contact was a letter sent by the state on Jan. 31, 2019. A February phone call with Delbert Sahn, the HOA secretary, followed the letter, Hoffschneider read from the communication log.
He said from then on most of the communication was with HOA Vice President Linda Gierke. There was a phone call May 7 with Gierke, and the final communication Hoffschneider noted on the log was on June 12.
The HOA notified NDOT it was to direct further inquiries to its legal council, Greg Damman.
Damman said after the June 12 contact he heard from the state in July asking who the farm tenant was on HOA’s the land.
“I had that contact and then maybe two or three weeks ago someone from the DOT contacted me,” Damman said. “I think the confusion might have been whether we were ready to go and just discuss money, how much the state would offer, how much the association would accept as opposed to does the association really know what’s involved here, where is the easement located, or the right of way.”
What is the state trying to acquire?
Kolterman asked the city administration, on behalf of the HOA, for a survey of the specific area the state is trying to acquire.
“Me and Jake (Vasa, city engineer) were on the phone with (NDOT) today, and they did confirm, and Linda (Gierke) said she saw them out there, is that NDOT went out and staked the property after the offer was made in January,” City Administrator Greg Butcher said. “Linda, I think, went out there and confronted them while they were doing it and they did put it in, but by some point by March those stakes had been removed.”
Gierke, after the meeting, said she saw the state workers out staking the land.
“This winter I noticed a truck on the side of the road and asked them ‘what are you doing?’ Gierke said. “They said they were marking the right of way. I said ‘the state doesn’t have the right of way.’ (The workers) said ‘that’s not what we were told.’”
Gierke said the state said the HOA took down the stakes, but she said they did not.
At the meeting Butcher said the state told him they did not remove the stakes either.
Butcher said the state is willing to re-stake the area but should also give a plat survey giving property pinpoints.
“That’s been done a long time ago. I think what they’re wanting is an actual drawing,” Hoffschneider said.
After more discussion, Hoffschneider found a drawing in his packet of information provided to him by the state.
“It’s hard because there is not a property pin associated with it. But there is what you’d think of as a plat map,” Butcher said. “The question is, is this sufficient enough?”
Hoffschneider said if the HOA did not have the drawing he was sure NDOT would be happy to provide it.
How much money has been spent?
Beck asked Butcher how much money would the city would be out if the project were halted.
“So approximately $90,000,” Butcher said, “because the $253,000 (spent in total by state and the city) minus our $169,000 that we’ve already contributed. There’s an additional $90,000 in federally funded, state-incurred costs that they’ve requested to be covered and if there’s any other costs since.”
Beck and Kolterman asked what the city would be left with if it decided to end the project and pay the $253,000.
“You’d have some plans that were developed and engineered. If you wanted to use those plans later I guess you could,” Butcher said.
“I’m still trying to figure out, from meeting with the homeowners and discussing all of these details, as to their intent, as to whether they’re OK with this plan,” Beck said. “If the negotiation is fair with them and they can negotiate a settlement or if they’re completely totally against this road.”
Hoffschneider said the project’s future is not up to the homeowners.
“The eminent domain proceeding is strictly for acquisition of the right of way. This is not whether or not the homeowners dislike or want (the road),” he said.
Mayor Josh Eickmeier said at one point the council had a chance to back out of the project in 2012 but the resolution failed.
Eickmeier explained that in any project like this it is implied that the city would be willing to utilize eminent domain.
“If the city is not willing to utilize eminent domain then there’s no reason. The state would be very reluctant to go into planning and spending money, and so would we,” he said, “because you get to the point where there’s a single homeowner or association, you’re basically giving anybody veto over that project.”
Eickmeier said the HOA can still negotiate up until the hearing date.
“They can still do that and we can be involved in that to some degree as well. It just means that we’re signaling to the state that we’re willing to move forward and we’re still committed to the project,” Eickmeier said.
Butcher said after the meeting the city has not been allowed to handle the negotiations.
“We’re not supposed to be involved in it or negotiate with them (HOA) or make side deals with them,” Butcher said.
Negotiations
Council member Chris Schmit asked why, if the first letter was received in January, did the HOA not start negotiations then.
“That’s when we got legal council,” HOA President Gerald Homp said.
Damman told Schmit it is hard to negotiate something when you are unsure of what it is the state is trying to acquire.
“That’s really where it got bogged down is that nobody ever went out to the property and pointed it out.” Damman said. “It’s easy to point to a survey and say ‘well, here’s your survey.’ Well how many of us could go out tonight with that survey and know?”
Schmit asked what Damman has done on behalf of the HOA to help negotiate.
“The response was, why didn’t somebody go out and walk the property with them? You’d think that the homeowners would at least have that courtesy, that someone would have done that with them. It has been requested,” Damman said.
Schmit said at this point he is frustrated with the state.
“If this stuff has been requested and the state’s operating on our behalf on this project, then why hasn’t this been done?” Schmit asked.
Eickmeier said the property was staked at one point.
“You could have literally walked out and figured out where the path is,” he said.
Homp said there is a lot of confusion with the HOA because the state does not give them information and the HOA tries to talk to the city about it.
“So the state’s not talking to us or they are talking to us only through letters and saying ‘this is what you’re going to do, sign here.’ It’s threatening, if you’d get the letter, Homp said. “You guys are still moving forward with what you need to do, but you’re kind of held in check because why aren’t the homeowners responding to the state? Well we are responding, and then the state comes to you and says what’s going on with the city?’”
Council member John Singleton asked if the agenda items could be held for the next city council meeting on Oct. 1.
“(Can we) request that the state come out and remark the boundary lines and then put all this back on the agenda again the way it is right now after they re-stake?” Singleton asked.
Eickmeier said there is some concern on not meeting deadlines if the issue is pushed to the next meeting.
“The problem is that I don’t want the delays here to be a part of a strategy,” Eickmeier said. “If you’re looking in good faith, we could probably put it off for two more weeks, but I don’t want to come back in two weeks and say ‘well now we need something else’ and now it’s two more weeks and all of a sudden we have some real issues with deadlines and it puts the entire project in jeopardy, to the point where we’re looking at a quarter of a million dollars being thrown away.”
Eickmeier later said the issue would not be able to be voted on in two weeks because many council members would be absent.
Smith said there should be no need to table the issue.
“They can still negotiate and get everything they need and have it all happen prior to a Dec. 3 hearing,” Smith said. “Which hopefully (if an agreement is reached) will never need to happen.”
“Is that sufficient?”
Kolterman said it was hard for her to vote on the issue because she didn’t feel like the HOA had the information and time to properly negotiate.
“Are you comfortable with going forward knowing that you’ll get a survey?” Beck asked Homp. “You’ll have someone walk the property with you. You can negotiate up until December. You’ll have this time period, you’ll have your request fulfilled. Is that sufficient?”
Homp said it was not up to him. He would need to ask the association as a whole.
“My confusion is that after our meeting a couple weeks ago I came away with the intent was to oppose this, period,” Beck said to Homp.
“The intent was to oppose it because we’ve never got the information from the state. If we get those details then we can have a conversation about what that means,” Homp said.
Singleton introduced the resolutions.
The city passed one to proceed with eminent domain. A hearing date will be set. If the HOA and the state do not reach an agreement by the hearing date, a board of appraisers will determine how much the land is worth. From there the HOA can either appeal or accept the appraisers’ offer for the right of way.
