Landrum v. City of Omaha Planning Bd.
297 Neb. 165
Neb.2017Background
- Developers (Leise et al.) sought to build a convenience storage and limited warehousing facility on a 4.75-acre lot in Omaha, requiring three approvals under Omaha Municipal Code: a conditional use permit (Planning Board), a special use permit (City Council), and rezoning to an MCC overlay (City Council).
- Planning Department recommended approval of the conditional use permit, special use permit, and MCC overlay rezoning subject to conditions; neighbors submitted petitions and verbal objections focused on compatibility, property values, safety, lighting, and notice.
- The Planning Board held hearings, laid over the matter for revisions, and ultimately voted to approve the conditional use permit and recommended the special use permit and rezoning to the City Council.
- The City Council conducted hearings, laid the matter over, then approved the MCC rezoning (ordinance) and the special use permit by a 5–2 vote, subject to conditions.
- Homeowners filed a petition in error (and later amended petition) challenging the Planning Board’s conditional use permit and the City Council’s special use permit and rezoning; the district court affirmed the municipal actions and dismissed the petition in error; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition in error as to conditional use permit | Landrum: Petition was timely because the conditional use permit was not final until ordinance effect date; filed within 30 days after council ordinance. | City: Petition was untimely because Planning Board approval occurred >30 days before filing. | Held: Timely — conditional use permit was not final until City Council’s rezoning ordinance took effect; petition filed within 30 days. |
| Standing to challenge rezoning/overlay | Landrum: As adjacent/property-within-300-ft owners and with broker testimony on diminished values, they suffered special injury. | City: No special injury; MCC overlay is stricter and benefits neighbors, so no standing. | Held: Landrum has standing — notice entitlement and expert testimony supported special injury. |
| Reviewability of City Council rezoning and special use permit via petition in error | Landrum: Council conducted hearings and received arguments, so action was quasi-judicial and reviewable by petition in error. | City: Rezoning is a legislative act; petition in error is improper remedy — must seek injunction. | Held: Council acted legislatively on rezoning and special use permit; petition in error was improper for those claims — appellate court lacks jurisdiction; those portions dismissed. |
| Validity of Planning Board conditional use permit (jurisdiction, sufficiency of evidence, due process) | Landrum: Insufficient competent evidence on compatibility, economic and safety harms; alleged procedural defects (notice, inability to question applicant) and bias. | City: Planning Dept. reports, public hearings, revised plans, and conditions show sufficient evidence; procedures afforded due process. | Held: Affirmed — Planning Board acted within jurisdiction, had sufficient evidence under §55-885, and Homeowners received due process. |
Key Cases Cited
- State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919 (municipal ordinance interpretation reviewed de novo)
- Crown Products Co. v. City of Ralston, 253 Neb. 1 (review of petition in error asks whether inferior tribunal acted within jurisdiction and whether decision is supported by evidence)
- Smith v. City of Papillion, 270 Neb. 607 (adjacent landowner standing to object to rezoning; notice within 300 feet indicates special injury)
- In re Application of Frank, 183 Neb. 722 (legislative acts are not reviewable by petition in error; remedy is collateral attack/injunction)
- Giger v. City of Omaha, 232 Neb. 676 (rezoning ordinance is legislative)
- McNally v. City of Omaha, 273 Neb. 558 (quasi-judicial proceedings — hearings with evidence create judicial function)
- In re Application of Olmer, 275 Neb. 852 (county board acted quasi-judicially when record included received exhibits and stipulated supplemental record)