Landrum v. City of Omaha Planning Bd.
297 Neb. 165
| Neb. | 2017Background
- Developers sought conditional use (warehousing/distribution limited), special use (convenience storage), and rezoning to add an MCC overlay for a 4.75-acre commercial parcel adjacent to residential neighborhoods in Omaha.
- Planning department recommended approval of the MCC overlay, the special use permit, and the conditional use permit subject to plan revisions and conditions; public hearings were held before the Planning Board (May and August 2015) and City Council (September and October 2015).
- Planning Board approved the conditional use permit and recommended approval of the special use permit and rezoning; City Council later approved the rezoning (MCC overlay) and the special use permit by ordinance and resolution.
- Nearby homeowners filed a petition in error challenging the Planning Board’s conditional use permit and the City Council’s special use permit and rezoning; they sought injunctions and vacation of approvals.
- District court affirmed the City entities; on appeal the Nebraska Supreme Court (1) held it lacked jurisdiction to review the City Council’s rezoning and special use approvals by way of petition in error (those were legislative acts), and (2) affirmed the Planning Board’s conditional use approval as within jurisdiction, supported by sufficient evidence, and consistent with due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition in error re: conditional use permit | Landrum: petition timely because conditional use approval wasn't final until council acted on concurrent rezoning | City: petition filed more than 30 days after Planning Board approval -> untimely | Held: Conditional use was not final until ordinance implementing rezoning took effect; petition filed within 30 days of that final order -> timely |
| Standing to challenge rezoning/overlay | Landrum: adjacent homeowners (within 300 feet) have standing and showed special injury (property-value evidence) | City: MCC overlay is more restrictive, so homeowners suffered no special injury | Held: Homeowners demonstrated standing (notice entitlement and expert testimony of adverse property-value impact) |
| Reviewability of rezoning and special use via petition in error | Landrum: City Council conducted hearings with evidence and testimony so acted judicially — petition in error appropriate | City: Rezoning is a legislative act; petition in error is not the proper remedy | Held: City Council acted legislatively on rezoning and special use; petition in error is improper — district court (and this Court) lack jurisdiction to review those approvals by petition in error; those claims dismissed (injunctive relief is proper remedy) |
| Conditional use permit: jurisdiction, sufficiency of evidence, and due process | Landrum: Planning Board lacked jurisdiction (procedural defects in applicant form) and decision lacked sufficient evidence; Board hearing was biased, denying due process | City: Planning Board acted within its jurisdiction, considered relevant §55-885 criteria, had supporting evidence and provided a fair hearing | Held: Court affirmed Planning Board: Homeowners failed to preserve some procedural claims for appeal; record shows Planning Dept. reports, testimony, and consideration of relevant criteria → decision supported by sufficient evidence; no due process violation shown |
Key Cases Cited
- State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919 (2009) (interpretation of municipal ordinance is question of law)
- Crown Products Co. v. City of Ralston, 253 Neb. 1 (1997) (petition in error review asks whether tribunal acted within jurisdiction and whether decision is supported by sufficient evidence)
- Smith v. City of Papillion, 270 Neb. 607 (2005) (adjacent landowners within statutory notice zone may show special injury for standing)
- In re Application of Frank, 183 Neb. 722 (1969) (appeal in error does not lie from purely legislative acts; remedy is collateral attack/injunction)
- Giger v. City of Omaha, 232 Neb. 676 (1989) (zoning ordinance and rezoning by city council are legislative functions)
- Copple v. City of Lincoln, 210 Neb. 504 (1981) (city council rezoning constitutes legislative act)
- McNally v. City of Omaha, 273 Neb. 558 (2007) (distinguishing quasi-judicial administrative hearings where board received evidence and exercised judicial functions)
- In re Application of Olmer, 275 Neb. 852 (2008) (county board acted quasi-judicially where record contained offered and received evidence)