Landrum v. City of Omaha Planning Bd.
297 Neb. 165
| Neb. | 2017Background
- Developers sought to build a multi-building convenience storage and limited warehousing facility on a 4.75-acre lot in Omaha; project required three approvals under Omaha Mun. Code ch. 55: a Planning Board conditional use permit, a City Council special use permit, and rezoning to add an MCC overlay.
- Planning department reviewed the proposal, issued reports recommending approval of the MCC overlay, the special use permit (convenience storage), and the conditional use permit (warehousing and distribution limited), subject to conditions and plan revisions.
- The Planning Board held hearings (May and August 2015), received neighbor objections (petitions and testimony), and approved the conditional use permit and recommended approval of the special use permit and rezoning to the City Council.
- The City Council held hearings (September and October 2015), received further opposition (including petitions), and approved the MCC rezoning and the special use permit by ordinance and resolution (5–2 votes) with conditions.
- Nearby homeowners filed a petition in error in district court challenging the three approvals and sought injunctive relief; the district court dismissed the petition, affirming the local actions. The Supreme Court reviewed the appeal and cross-appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition in error for conditional use permit | Landrum: Petition was timely filed within 30 days of final action | City: Petition filed >30 days after Planning Board decision, so untimely | Planning Board approval was not final until City Council enacted rezoning; petition filed within 30 days of that final ordinance — timely. |
| Standing to challenge rezoning | Landrum: Homeowners live adjacent/within 300 feet and alleged special injury (e.g., expert testimony on property value loss) | City: Overlay (MCC) is more restrictive than base zoning; no special injury shown | Homeowners shown sufficient basis for standing (300-foot notice entitlement plus expert evidence). |
| Reviewability by petition in error of City Council rezoning and special use permit | Landrum: Council conducted hearings and received evidence, so acted judicially; petition in error appropriate | City: Rezoning is legislative; petition in error not a proper remedy — must bring collateral attack/injunction | City Council acted legislatively on rezoning and special use permit; petition in error was improper — those claims dismissed for lack of jurisdiction. |
| Validity of Planning Board conditional use permit (jurisdiction, evidence, due process) | Landrum: Board lacked jurisdiction (application errors) and lacked sufficient evidence; due process violated (limited time, board bias) | City: Board acted within authority, considered relevant §55-885 criteria, provided notice and hearing, and relied on planning department reports and evidence | Court affirmed: Homeowners forfeited some procedural objections by not raising them below; Planning Board acted within jurisdiction, decision supported by sufficient evidence, and due process was afforded. |
Key Cases Cited
- State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919, 766 N.W.2d 134 (2009) (municipal ordinance interpretation is a question of law reviewed independently)
- Crown Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997) (petition in error review: whether inferior tribunal acted within jurisdiction and if decision is supported by sufficient evidence)
- Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005) (adjacent landowner notice/300-foot entitlement supports standing/special injury)
- In re Application of Frank, 183 Neb. 722, 164 N.W.2d 215 (1969) (rezoning is a legislative act and not reviewable by petition in error)
- Giger v. City of Omaha, 232 Neb. 676, 442 N.W.2d 182 (1989) (city council rezoning acts in legislative capacity)
- McNally v. City of Omaha, 273 Neb. 558, 731 N.W.2d 573 (2007) (distinguishes adjudicative/quasi-judicial proceedings where evidence is formally received)
- In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008) (county board denial of conditional use permit treated as quasi-judicial when record contains exhibits and testimony)