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 add an MCC overlay district.
- Planning Department reviewed the plans, issued reports recommending approval (subject to conditions), and the Planning Board held hearings on May 6 and August 5, 2015, ultimately recommending approval of the conditional use permit, special use permit, and MCC overlay rezoning.
- City Council held hearings on September 29 and October 20, 2015; it approved the MCC rezoning ordinance and the special use permit by 5–2 votes, subject to conditions.
- Nearby homeowners (Appellants) filed a petition in error challenging (1) the Planning Board’s conditional use permit approval, (2) the City Council’s special use permit approval, and (3) the MCC rezoning ordinance; district court affirmed and dismissed the petition; appeal followed.
- Cross‑appeal by city entities raised timeliness and standing; the Supreme Court had to decide (a) whether petition in error was timely, (b) whether plaintiffs had standing to challenge rezoning, and (c) whether a petition in error was the proper remedy for the City Council’s actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition in error as to conditional use permit | Landrum: petition timely because Planning Board approval was not final while rezoning pending | City: petition untimely because filed >30 days after Planning Board decision | Held for Landrum — conditional use permit became final on date rezoning ordinance took effect, and petition was filed within 30 days of that final order |
| Standing to challenge rezoning and special use permit | Landrum: adjacent owners (within 300 ft) have standing; presented evidence of potential property‑value harm | City: challengers failed to show special injury; MCC overlay is more restrictive and protective | Held for Landrum — challengers presented notice entitlements and expert testimony supporting special injury, so standing existed |
| Proper remedy to challenge City Council rezoning and special use permit | Landrum: simultaneous hearings and evidence made Council action quasi‑judicial, so petition in error proper | City: rezoning is legislative; petition in error improper; must seek injunction | Held for City — Council acted legislatively on rezoning and special use permit; petition in error was not the correct remedy; those portions dismissed for lack of jurisdiction |
| Validity of Planning Board conditional use permit (jurisdiction, sufficiency of evidence, due process) | Landrum: record lacked sufficient competent evidence; procedural unfairness and bias; applicant’s form errors (ownership/agent, failure to check conditional use box) undermined jurisdiction | City: Planning Board considered relevant criteria, planning reports supported approval, and Homeowners had notice and opportunity to be heard | Held for City — Planning Board acted within jurisdiction, had sufficient evidence under applicable criteria, and afforded due process; district court’s affirmation of conditional use permit is affirmed |
Key Cases Cited
- State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919 (discusses municipal ordinance interpretation as question of law)
- Crown Products Co. v. City of Ralston, 253 Neb. 1 (standard for appellate review of petition in error from administrative determinations)
- Smith v. City of Papillion, 270 Neb. 607 (standing for adjacent landowners; notice within 300 feet supports special injury)
- In re Application of Frank, 183 Neb. 722 (appeal in error does not lie from purely legislative acts)
- Giger v. City of Omaha, 232 Neb. 676 (zoning ordinance is legislative act)
- Copple v. City of Lincoln, 210 Neb. 504 (city council rezoning is legislative)
- McNally v. City of Omaha, 273 Neb. 558 (distinguishes quasi‑judicial administrative hearings where evidence is received)
- In re Application of Olmer, 275 Neb. 852 (county board acted quasi‑judicially when record included exhibits and testimony)
- Nebraska State Bar Found. v. Lancaster Cty. Bd. of Equal., 237 Neb. 1 (jurisdictional limits affect appellate review)
- Abdullah v. Nebraska Dept. of Corr. Servs., 245 Neb. 545 (procedures and timing for petition in error)
- Glup v. City of Omaha, 222 Neb. 355 (procedures and timing for petition in error)