Council approves assisted-living center, with changes

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BY DEENA WINTER / Lincoln Journal Star

It took several hours, but in the end the City Council went for the closest thing to a compromise, approving a site design for an assisted living center that neighbors liked better than the company’s preferred design.

Center opponents still weren’t happy with the center size or the traffic that will be coming to their neighborhood, and AgeMark Corp. won’t get to build what it prefers.

Neighbors have been concerned about the center AgeMark wants to build on the corner of 25th Street and Old Cheney Road. The one-story, 19,000-square-foot building would house up to 33 people with Alzheimer’s disease.

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Neighbors are worried about the noise, parking and traffic it will generate. They appealed the planning commission’s approval of a special permit allowing the facility.

In the end, the council approved a design that will situate the living center squarely on the property, rather than diagonally, as AgeMark had proposed. Neighbors felt the square design was better because it moved the building back farther from the street and looked more residential.

AgeMark officials felt the diagonal layout was more attractive, interesting and left more green space. The square design will have more concrete but fewer parking spots.

The council also specified that any trucks with three or more axles can only service the building on weekdays between 9 a.m. and 5 p.m. and must use the 25th and Old Cheney entrance.

But sparks flew before a compromise was reached, with AgeMark and neighbors trading allegations over potential litigation,  because the neighborhood’s protective covenants only allow single family homes.

AgeMark Marketing Director Marcia Houchin said during one of the many meetings held with neighbors, one neighbor complained about not wanting to see “walking deceased people” in their neighborhood.

But the city’s zoning ordinance only allows assisted living facilities to be built in residential districts  with a special permit. AgeMark’s attorney, Mark Hunzeker, had stern words for neighbors who thought they could rebuff the facility through neighborhood covenants, saying the Fair Housing Act trumps those covenants.

“The city has recently had a rather expensive lesson on that act,” he said, referring to a federal judge’s May ruling that the city violated the federal law by refusing a group home provider’s zoning request. The company was awarded more than $300,000 in damages.

AgeMark came up with the diagonal design but took it off the table after neighbors refused the company’s request to sign a waiver of the covenants to erase the possibility the company would be sued “no matter how slight or meritless,” Hunzeker said.

William Gewain, who lives in the neighborhood, said the neighbors felt they were being threatened and the waiver was “nothing more than bullying of the neighborhood.“

Renee Prader Bateman was one neighbor who didn’t think AgeMark was being neighborly by yanking the compromise “because we won’t sign our rights away.” She said she didn’t oppose the facility but thought it was too big.

The compromise would still allow AgeMark to build a large building, just at a different angle, neighbors argued.

But Hunzeker said AgeMark had been threatened with a lawsuit, or the enforcement of covenants, and wanted assurance that the redesigned site would pass muster with the whole neighborhood.

“We’re not the ones here that are threatening litigation,” he said. “We’re not afraid of it, we’ve said that before. We think there is potential liability under the Fair Housing Act by those who are threatening it against us.”

While neighbors worried about increased traffic, Hunzeker said the city has received no complaints about such issues at other assisted living centers.

After several hours of testimony and debate, the council took a 15-minute break and asked the two sides to try to come to an agreement in the hallway. After the break, the council voted unanimously to approve the center with the square design.

In other business, the City Council heard three proposals that it will vote on during its next meeting:

* Annexation of about 40 acres of land near 90th Street and Leighton Avenue and a zoning change to allow 133 townhomes for a development called Cedar Cove Townhomes.

* Change the zoning to commercial on about six acres on the northwest corner of 84th Street and Old Cheney Road. The City Council approved the zoning change in 2000, but former Mayor Don Wesely vetoed it. The council approved commercial zoning for 22,000 square feet of the site in 2005, but Realty Trust officials said the restrictions made it difficult to market the site and want the zoning changed for the whole site so banks, restaurants or offices could be built. The planning commission and planning department recommended against the zoning change out of concern about traffic in and out of the area.

* Legally define restaurants in the city’s zoning code and make other code changes that would make it easier for restaurants to get alcohol licenses. Restaurants would be defined as any business that derives at least 60 percent of its gross sales from food and nonalcoholic beverages.

Reach Deena Winter at 473-2642 or dwinter@journalstar.com.