Landrum v. City of Omaha Planning Bd.
297 Neb. 165
| Neb. | 2017Background
- Developers sought to build a convenience storage and limited warehousing facility on a 4.75-acre CC-zoned lot and applied for three approvals: a Planning Board conditional use permit, a City Council special use permit, and rezoning to add an MCC overlay district.
- Planning department recommended approval (subject to conditions); neighbors filed petitions and opposed at Planning Board and City Council hearings citing compatibility, safety, lighting, and property-value concerns.
- Planning Board approved the conditional use permit, special use permit, and recommended rezoning on August 5, 2015; City Council later approved the rezoning (MCC overlay) and the special use permit on October 20, 2015.
- Homeowners filed a petition in error (October 21, 2015) challenging the Planning Board conditional use permit, the City Council special use permit, and the rezoning; district court affirmed and dismissed the petition in error.
- Nebraska Supreme Court: affirmed the district court as to the conditional use permit; vacated/dismissed appeals concerning rezoning and the special use permit for lack of jurisdiction because those were legislative acts not reviewable by petition in error.
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 while tied to rezoning | City: petition untimely because it was filed >30 days after Planning Board approval | Held: Timely — municipal code made conditional permit effective only when rezoning ordinance took effect (Oct 20); petition filed Oct 21 was within 30 days |
| Standing to challenge rezoning | Landrum: adjacent/homeowners within 300 ft have standing and presented evidence of special injury (expert on property values) | City: overlay (MCC) is more restrictive and benefits homeowners, so no special injury | Held: Homeowners showed sufficient evidence of special injury (notice entitlement + expert testimony) to establish standing |
| Reviewability of rezoning and special use permit by petition in error | Landrum: City Council conducted hearings and took evidence at same time — acted quasi-judicially, so petition in error proper | City: Rezoning is a legislative act; petition in error cannot be used — must seek injunction/collateral attack | Held: City Council acted legislatively on rezoning and special use permit; petition in error was improper remedy. Appeal re: these items dismissed for lack of jurisdiction |
| Conditional use permit — sufficiency of evidence and due process | Landrum: insufficient evidence of compatibility; Board ignored § 55-885 criteria; Board biased and curtailed opponents | City/Planning Board: planning reports analyzed relevant § 55-885 criteria, recommended approval; hearing provided notice and opportunity to be heard | Held: Planning Board acted within jurisdiction, considered relevant criteria, had sufficient evidence to approve conditional use permit, and afforded due process; district court affirmed |
Key Cases Cited
- State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919 (2009) (municipal ordinance interpretation is a question of law)
- Crown Products Co. v. City of Ralston, 253 Neb. 1 (1997) (petition in error review tests jurisdiction and sufficiency of evidence)
- Smith v. City of Papillion, 270 Neb. 607 (2005) (adjacent landowners within statutory notice distance may show special injury for standing)
- In re Application of Frank, 183 Neb. 722 (1969) (petition in error does not lie from purely legislative acts; remedy is collateral attack)
- Giger v. City of Omaha, 232 Neb. 676 (1989) (zoning ordinance and rezoning by city council are legislative acts)
- McNally v. City of Omaha, 273 Neb. 558 (2007) (distinguishing adjudicative/quasi-judicial hearings where evidence is actually offered and received)