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; approvals required a Planning Board conditional use permit, a City Council special use permit, and rezoning to an MCC overlay.
- Planning Department recommended approval (with conditions); neighbors submitted petitions and testified in opposition citing compatibility, safety, lighting, and property‑value concerns.
- Planning Board held hearings, laid the case over, reviewed revised plans, and voted to approve the conditional use permit and recommended approval of the special use permit and rezoning.
- City Council held two hearings, received opposition material, and ultimately approved the MCC rezoning and the special use permit (5–2), subject to conditions.
- Homeowners filed a petition in error challenging the Planning Board conditional use permit and the City Council special use permit and rezoning; district court affirmed and dismissed the petition.
- Nebraska Supreme Court: affirmed district court as to the conditional use permit; vacated/dismissed appellate review of City Council special use permit and rezoning for lack of jurisdiction (petition in error was improper remedy for those legislative acts).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition in error re: conditional use permit | Landrum: Petition timely because final effective date was later when rezoning ordinance took effect | City: Petition was filed more than 30 days after Planning Board action and thus untimely | Held: Timely — conditional use permit effective when City Council ordinance effectuated rezoning, so petition filed within 30 days |
| Standing to challenge rezoning | Landrum: As adjacent/within 300 feet, they suffered special injury and thus have standing | City: No special injury; MCC overlay is more restrictive and benefits neighbors | Held: Homeowners met initial showing of special injury (notice entitlement and expert testimony on property values) for standing |
| Proper remedy for City Council rezoning and special use permit | Landrum: City Council acted quasi‑judicially by hearing both matters together; petition in error appropriate | City: Rezoning is a legislative act; petition in error not available — must seek injunction/collateral attack | Held: City Council acted legislatively on rezoning and special use permit; petition in error improper — appellate review dismissed for lack of jurisdiction |
| Sufficiency of evidence and due process for Planning Board conditional use permit | Landrum: Insufficient evidence on compatibility, economic effect, safety; procedural unfairness and bias | City: Planning Dept. reports, hearings, and conditions support approval; adequate notice and hearing were provided | Held: Planning Board acted within jurisdiction, had sufficient relevant evidence per record, and afforded due process; approval affirmed |
Key Cases Cited
- State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919 (interpretation of municipal ordinance is question of law)
- Crown Products Co. v. City of Ralston, 253 Neb. 1 (review on petition in error asks whether tribunal acted within jurisdiction and whether decision is supported by sufficient evidence)
- Smith v. City of Papillion, 270 Neb. 607 (adjacent landowner notice entitlement supports special injury standing)
- In re Application of Frank, 183 Neb. 722 (rezoning is legislative; petition in error does not lie)
- Giger v. City of Omaha, 232 Neb. 676 (city council rezoning is legislative act)
- McNally v. City of Omaha, 273 Neb. 558 (distinguishes truly quasi‑judicial hearings where evidentiary records justify petition in error)
- In re Application of Olmer, 275 Neb. 852 (quasi‑judicial nature shown by exhibits, testimony and evidentiary record)
- Geringer v. City of Omaha, 237 Neb. 928 (reviewing court restricted to agency record; evidence sufficient if agency could reasonably find facts from record)