Landrum v. City of Omaha Planning Bd.
297 Neb. 165
| Neb. | 2017Background
- Developers sought to build a convenience storage and limited warehousing project on a 4.75-acre lot in Omaha and applied for three approvals: (1) Planning Board conditional use permit, (2) City Council special use permit, and (3) City Council rezoning to add a Major Commercial Corridor (MCC) overlay.
- Planning Department recommended approval of the conditional use permit, special use permit, and MCC overlay subject to conditions; neighbors submitted petitions and objections raising compatibility, safety, lighting, and property-value concerns.
- The Planning Board held hearings, heard neighborhood opposition, and approved the conditional use permit; it forwarded the special use permit and rezoning to the City Council.
- The City Council held hearings, received public comment, and approved both the MCC rezoning ordinance and the special use permit by 5–2 votes (with conditions). The conditional use permit became effective the same day the rezoning ordinance took effect.
- Homeowners filed a petition in error challenging all three approvals; the district court affirmed and dismissed the petition. On appeal, the Nebraska Supreme Court limited review to the conditional use permit and dismissed the rezoning and special use permit challenges for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition in error re: conditional use permit | Landrum: petition timely because Planning Board approval was not final until City Council acted on rezoning | City: petition untimely because it was filed more than 30 days after Planning Board decision | Held: Timely — conditional use permit was not final while associated rezoning pending; became final when City Council ordinance took effect, and petition was filed within 30 days. |
| Standing to challenge rezoning | Landrum: living adjacent/within 300 feet and evidence (broker) of property-value impact shows special injury | City: no special injury; MCC overlay is more restrictive and benefits neighbors | Held: Homeowners showed sufficient special injury (proximity + expert testimony) to have standing. |
| Reviewability of rezoning & special use permit by petition in error | Landrum: City Council conducted hearings and received evidence concurrently, making its action quasi‑judicial and reviewable by petition in error | City: rezoning is a legislative act; petition in error is improper — remedy is injunction/collateral attack | Held: Rezoning (and special use permit as considered by Council) was legislative in nature here; petition in error was improper. Appeal as to rezoning/special use dismissed for lack of jurisdiction; injunction would be proper remedy. |
| Conditional use permit: sufficiency of evidence and due process | Landrum: Planning Board lacked competent evidence, failed to follow §55‑885 criteria, and acted with bias; neighbors’ concerns unrebutted | City/Planning Board: planning reports analyzed relevant criteria, recommended approval, and record shows opportunity to be heard | Held: Planning Board acted within jurisdiction, its decision was supported by sufficient relevant evidence, and due process was afforded. The district court’s affirmation of the conditional use permit is affirmed. |
Key Cases Cited
- State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919 (ordinance interpretation is a question of law)
- Crown Products Co. v. City of Ralston, 253 Neb. 1 (review on petition in error examines jurisdiction and sufficiency of evidence)
- Smith v. City of Papillion, 270 Neb. 607 (adjacent owners within 300 feet may show special injury supporting standing)
- In re Application of Frank, 183 Neb. 722 (petition in error does not lie from purely legislative act; remedy is collateral attack)
- Giger v. City of Omaha, 232 Neb. 676 (rezoning ordinance is legislative action)
- McNally v. City of Omaha, 273 Neb. 558 (quasi‑judicial function where adversarial hearing and evidence received)
- In re Application of Olmer, 275 Neb. 852 (county board acted quasi‑judicially in conditional use permit denial when record contained evidence received under hearing procedures)