Neighbors file suit over kennel's alleged expansion

McCOOK, Neb. -- Neighbors of a dog kennel located on the southern edge of McCook filed a lawsuit recently claiming damages by the business and asking for compensation and an end to the operation.

The civil complaint was filed May 19, 2015, in Red Willow County District Court by Joe and Ranae Williams of 71370 County Road 385 in McCook. The Williams' complaint identifies Rebecca Eiler as a third owner of the dog kennel business, in addition to Daniel and Lizann Miller who were previously identified during a similar legal dispute with the City of McCook.

The complaint states all three defendants reside across the street from the Millers, at 71363 County Road 385, and erected a dog kennel building on their property in May of 2007. It goes on to claim the number of dogs on the property has substantially increased since the original building was constructed and currently is home to more than one hundred dogs. The dogs produce an unreasonable amount of barking and odor which has resulted in physical discomfort and an inability for the Williams to have quiet use and enjoyment of their own property, according to the complaint.

The civil suit alleges the defendants failed to comply with the special exception use permit they were granted to build a 10 foot by 20 foot dog building on their property in 2007. It states they have since erected numerous dog kennel structures on their property without applying for a change to their special exception, to increase the size and scope of the operation.

The complaint also indicates the City of McCook has "taken no effective action to adequately represent and protect public rights" and failed to redress the kennel's violations of the special exception use permit. It claims violations include erecting numerous unenclosed dog pens after originally testifying all of the dog pens would be enclosed, in order to buffer sound and smell, and improperly disposing of waste by spreading dog feces on an adjacent field.

The Williams are asking the court to deem the dog kennel business a nuisance; determine the defendants violated the special exception; enjoin them from continuing the operation; award damages to the plaintiffs and compensation for legal costs; in addition to any other relief deemed just and equitable by the court, according to court documents.

The McCook City Council originally denied the Miller's 2007 request for a special exception to operate the dog kennel on the property. Red Willow County District Court Judge David Urbom ruled in favor of the Millers appeal a year later and ordered the exception be granted.

During a City Council meeting in April, City Manager Nate Schneider said the Millers expanded their business in 2013 and were housing dogs outside as well as in the enclosed structure they originally described in their special exception application. He said the expansion prompted renewed complaints from neighbors and a letter from the city advising the Millers they needed to file for another special exception. Schneider said the Millers ignored the city's request, which sent the Millers and the city back to Red Willow County District Court in January where Judge Urbom ruled the city failed to provide the Millers with adequate notification.

The city has since coordinated two public hearings to discuss implementing a limitation on the Millers' special exception and twice scheduled City Council items pertaining to the dispute, which in the end resulted in no action.

During the first scheduled item City Council went against a McCook Planning Commission recommendation to approve the limitation on the Miller's special exception and voted down the action item. The item was brought back again as a discussion item earlier this month and after a couple of City Council members voiced their intent to ask the limitation be brought back as an action item, city staff advised against the move and successfully lobbied for more time to review the case.

The matter with the Miller kennel is an extremely complicated case, involving zoning issues, nuisance issues, and property rights issues, according to City Attorney Nate Mustion during a visit with the Gazette last week.

"The city has decided not to act yet after the last decision was handed down by Judge Urbom, because they didn't want to act without having all of the necessary information at their disposal to make an informed decision that is in the best interests of the city, and a decision that would not embroil the city in years of litigation," said Mustion.

Mustion indicated the Williams' case against the Millers and Eiler was unrelated to the city's dispute and wouldn't change the city's stance on any of the related zoning issues. He said the city was looking into the Miller's kennel and its conformity with city zoning and ordinance compliance.

"The city reached out to the Williams' attorney to try to get them to sit down with the city and the Millers for an informal mediation session, but the Williams' attorney declined the invitation. However, just last week, Nate [Schneider] and I, on behalf of the city, had a meeting with Dan Miller about the issues. Discussions are ongoing," said Mustion.

During a City Council meeting in April, Dan Miller said the city was also investigating his disposal of animal waste, indicating he pumped his own septic tank and spread the waste on an adjacent field. He said he had been asked to stop the process until the city received word from the USDA on whether the practice was acceptable.

McCook Utilities Director Jesse Dutcher provided an update last week and said Miller has since begun hauling waste from the property to the city's Waste Water Treatment Plant for disposal. The practice is a standard service provided by the waste water plant at a fee of 10 cents per gallon, set by municipal code and typically utilized by local septic haulers.