Landrum v. City of Omaha Planning Bd.
297 Neb. 165
| Neb. | 2017Background
- Developers sought conditional use permit (warehousing/distribution), a special use permit (convenience storage), and rezoning to add an MCC overlay to a CC‑zoned 4.75‑acre parcel in Omaha; Planning Department recommended approval subject to conditions.
- Planning Board held hearings (May and Aug 2015); neighbors submitted petitions and testimony opposing the project; Planning Board approved the conditional use permit and forwarded the special use permit and rezoning to City Council.
- City Council held hearings (Sept and Oct 2015), heard further neighborhood opposition and developer revisions, and voted to approve the MCC rezoning and the special use permit (each 5–2), with conditions.
- Homeowners filed a petition in error challenging the Planning Board’s conditional use permit and the City Council’s special use permit and rezoning; district court affirmed and dismissed the petition.
- On appeal, the Nebraska Supreme Court affirmed as to the conditional use permit but held it lacked jurisdiction to review the City Council’s rezoning and special use permit via petition in error and dismissed/vacated that portion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition in error for conditional use permit | Landrum: Planning Board approval not final because conditional permit tied to rezoning; petition filed within 30 days after City Council ordinance | City: Petition filed >30 days after Planning Board decision, so untimely | Held: Approval became final when City Council adopted rezoning ordinance Oct 20, 2015; petition filed Oct 21 was timely (Planning Board approval was not final earlier because it was tied to rezoning) |
| Standing to challenge rezoning/overlay | Landrum: Residents within 300 feet entitled to notice and asserted property‑value impacts; thus special injury exists | City: MCC overlay is more restrictive and benefits neighbors; no special injury shown | Held: Homeowners showed sufficient indicia of special injury (notice entitlement and expert testimony re: property values) to establish standing |
| Proper remedy for rezoning and special use permit | Landrum: City Council conducted hearings and received evidence; exercise was quasi‑judicial so petition in error appropriate | City: Rezoning is a legislative act; petition in error not available; must seek injunctive relief | Held: City Council acted legislatively on rezoning and special use permit; petition in error was improper remedy — district court (and Supreme Court) lack jurisdiction to review them via petition in error; those claims dismissed/vacated |
| Validity of Planning Board conditional use approval (jurisdiction, evidence, due process) | Landrum: Planning Board lacked jurisdiction (application defects), insufficient evidence re: compatibility/economic/safety impacts, and board biased/denied fair hearing | City: Application and hearing provided adequate notice and procedure; planning reports and testimony supplied sufficient evidence; board afforded due process | Held: Court affirmed Planning Board acted within jurisdiction, had sufficient evidence under §55‑885, and provided due process; conditional use permit approval affirmed |
Key Cases Cited
- State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919 (on municipal ordinance interpretation as question of law)
- Crown Products Co. v. City of Ralston, 253 Neb. 1 (review on petition in error: jurisdiction and sufficiency of evidence standard)
- Smith v. City of Papillion, 270 Neb. 607 (standing of adjacent landowners; notice within 300 feet supports special injury)
- In re Application of Frank, 183 Neb. 722 (legislative acts not reviewable by petition in error; remedy is collateral attack/injunction)
- Giger v. City of Omaha, 232 Neb. 676 (rezoning constitutes legislative function)
- McNally v. City of Omaha, 273 Neb. 558 (distinguishing quasi‑judicial proceedings where evidentiary record/adversarial hearing exist)
- In re Application of Olmer, 275 Neb. 852 (county board acted quasi‑judicially where record included exhibits and testimony)
- Nebraska State Bar Foundation v. Lancaster County Board of Equalization, 237 Neb. 1 (when trial court lacks jurisdiction appellate court likewise lacks power)