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 lot in Omaha, triggering three approvals under the Omaha Municipal Code: a Planning Board conditional use permit, a City Council special use permit, and City Council rezoning to add an MCC overlay.
- Planning Department recommended approval subject to conditions; neighbors submitted petitions and opposed based on compatibility, safety, lighting, and property-value concerns. Planning Board approved the conditional use permit and recommended the special use permit and rezoning to City Council.
- City Council held hearings, received public comment, and approved the MCC overlay rezoning and the special use permit by 5–2 votes (subject to conditions and design revisions).
- 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. City entities cross-appealed asserting untimeliness and lack of jurisdiction/standing.
- Nebraska Supreme Court: held that the petition in error was timely as to the conditional use permit (it became effective when the City Council enacted the rezoning ordinance), dismissed for lack of jurisdiction the challenges to the City Council’s rezoning and special use permit (legislative acts not reviewable by petition in error), and affirmed the district court as to the conditional use permit (Planning Board acted within jurisdiction, based decision on sufficient evidence, and afforded due process).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition in error re: conditional use permit | Planning Board approval was final Aug 5; petition filed Oct 21 was untimely | Conditional use approval was not final until ordinance rezoning became effective | Conditional use permit became final when City Council adopted rezoning (Oct 20); petition filed within 30 days — timely |
| Standing to challenge rezoning | Homeowners live adjacent/within 300 feet and presented evidence (broker) of property-value harm — special injury | MCC overlay is more restrictive and benefits neighbors; no special injury shown | Homeowners showed entitlement to notice and presented evidence of special injury; standing satisfied for challenges generally |
| Reviewability of City Council rezoning and special use permit by petition in error | Council conducted hearings on both; process resembled quasi-judicial adjudication, so petition in error appropriate | Rezoning is legislative; challenges to legislative acts must be by collateral attack (injunction), not petition in error | City Council acted legislatively on rezoning and special use permit; petition in error is improper remedy — those claims dismissed for lack of jurisdiction |
| Sufficiency of evidence and due process re: Planning Board conditional use permit | Approval lacked sufficient competent evidence on compatibility, economic effect, safety; Board was biased and limited opponents’ opportunity | Planning Dept. reports analyzed criteria and recommended approval; hearings gave neighbors opportunity to be heard | Planning Board acted within jurisdiction, relied on sufficient relevant evidence, and provided due process; conditional use permit affirmed |
Key Cases Cited
- State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919 (2009) (municipal ordinance interpretation is question of law for appellate review)
- Crown Products Co. v. City of Ralston, 253 Neb. 1 (1997) (review on petition in error: jurisdiction and sufficiency of evidence are the tests)
- Smith v. City of Papillion, 270 Neb. 607 (2005) (adjacent landowner status and notice within 300 feet supports special-injury standing)
- In re Application of Frank, 183 Neb. 722 (1969) (petition in error does not lie from a purely legislative act; remedy is collateral attack)
- Giger v. City of Omaha, 232 Neb. 676 (1989) (zoning ordinances are legislative acts)
- McNally v. City of Omaha, 273 Neb. 558 (2007) (when a tribunal conducts adversarial hearings and receives evidence, it may exercise judicial functions)
- In re Application of Olmer, 275 Neb. 852 (2008) (county board acted quasi-judicially in conditional use denial where record included received exhibits and testimony)
- Nebraska State Bar Found. v. Lancaster Cty. Bd. of Equal., 237 Neb. 1 (1991) (when trial court lacks jurisdiction, appellate court likewise lacks jurisdiction)