The requested rezone would allow for a duplex to be built in the Eastbrooke area of Kearney, (Brian Neben, Central Nebraska Today)
KEARNEY — The members of an Eastbrooke homeowners association spoke in opposition to a rezone that would have allowed for a duplex to be built in their north Kearney neighborhood during a meeting of the Planning Commission on Friday, July 18.
Stuart Hoffman, representing Hoffman Builds, LLC, has submitted an application to rezone a property located at 5715 Ave. R from District R-1 urban residential single-family district (low density) to R-1D, residential district.
At the beginning of the hearing, board member Dave Malone recused himself from the proceedings, citing a personal connection with the applicant.
Hoffman stated that he was pursuing the rezone to build a duplex on the property. He noted that there are other multi-family homes in the area.
Hoffman said it was his intention, if approved, to rent the duplex and then possibly sell it in the future.
Answering questions from the commission, Hoffman said he hasn’t developed any homes in Kearney under his current LLC but has remodeled several and constructed homes in Eastbrooke with a former employer.
Hoffman acknowledged that he had received feedback from the neighbors that a duplex was opposed and that he was unable to locate the covenants for the neighborhood prior to purchase, citing an expedited process to acquire the property from the property seller.
Melissa Dougherty-O’Hara, Development Services with the City of Kearney, gave the city staff’s finding of facts and noted the rezone is compatible with the future land use designation and that the subject property has remained vacant since it was platted in 2006.
City staff made no recommendation and noted that the property owner desires the rezone, due to the length of the vacancy, but adjacent property owners may oppose the rezone, as it has been zoned to only allow for single family homes for nearly 20 years and there are adjacent single-family homes.
Michael Tye, City Attorney, appeared to discuss a few points for the commission to consider.
Tye noted that the convents of an HOA are not enforced by the City of Kearney and are separate private agreements between property owners. He said often they can be more restrictive than the zoning regulations the city has in place.
The covenants have been filed with the Buffalo County Register of Deeds for several years, Tye said.
It was stated that all property owners have the right to file an application for a rezone, but they are not entitled by right for it to be approved, that is for the planning commission and the city council to determine.
The HOA could independently litigate the issue if the zone was changed due to the covenants they have in place, Tye noted.
Brent Kruetzer, president of the Eastbrooke HOA, said the group has not had a formal discussion on the rezone, but had communicated about it on their neighborhood Facebook page and many expressed opposition to the rezone to allow for a duplex.
It was noted there were 265 members of the HOA and the subject property is the last undeveloped lot in Eastbrooke.
Kruetzer said, per the HOA’s bylaws, it would take a two-third vote to change their covenants, a vote that would be unlikely to pass to allow for a duplex in the neighborhood.
Kruetzer noted the HOA would prefer to avoid litigation on the matter and asked the planning commission to deny the rezone.
Thomas Cross, who lives in Eastbrooke, also appeared and said the situation is unfortunate because it appeared that Hoffman purchased the property without knowing about the covenants the HOA has in place.
Cross noted that the HOA had done their research when a majority of the people moved into the area in 2017. He said they have agreed to their covenants and wish to see the neighborhood remain the way it is – single family homes.
When asked if the setbacks for a duplex differed greatly from a single-family home, Dougherty-O’Hara noted there were a few minor differences but by and large they were the same.
Several other HOA members spoke and voiced their opposition to the rezone, citing that they did not wish to see a duplex built on the lot. Several expressed wishing to acquire the property themselves but noted the setbacks put several restrictions on what can be built.
Following the public comments during the hearing, the planning commission members, with Malone’s recusing, voted unanimously to recommend a denial of the rezone to the city council.
