Landrum v. City of Omaha Planning Bd.
297 Neb. 165
| Neb. | 2017Background
- Developers sought to build a convenience storage and limited warehousing project on a 4.75-acre lot in Omaha, requiring 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 (Major Commercial Corridor) overlay.
- Planning staff recommended approval subject to conditions; neighbors submitted petitions and spoke at Planning Board and City Council hearings expressing concerns about compatibility, property values, safety, and notice.
- The Planning Board approved the conditional use permit, special use permit, and recommended rezoning on August 5, 2015. The City Council held hearings and on October 20, 2015 approved the MCC overlay rezoning and the special use permit (5–2 votes) with conditions.
- Homeowners filed a petition in error on October 21, 2015 challenging all three actions and sought injunctive relief; the district court affirmed the municipal decisions and dismissed the petition. The City and municipal bodies cross-appealed asserting untimeliness and lack of jurisdiction/standing for parts of the petition in error.
- The Nebraska Supreme Court (1) held it lacked jurisdiction to review the City Council’s rezoning and special use determinations by petition in error (those are legislative acts or otherwise subject to injunction), vacated that portion of the district court’s order, and dismissed that portion of the appeal; and (2) affirmed the district court as to the Planning Board’s conditional use permit (sufficient evidence, within jurisdiction, and due process afforded).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition in error challenging conditional use permit | Landrum: petition timely because Planning Board approval was not final when issued (associated with rezoning) | City: petition was filed >30 days after Planning Board action and untimely | Held: Timely — conditional use permit became final when City Council enacted rezoning (Oct. 20); petition filed Oct. 21 was within 30 days |
| Standing to challenge rezoning/overlay | Landrum: adjacent homeowners (within 300 ft) have standing and presented evidence of special injury (expert on property values) | City: overlay is more restrictive, so homeowners lack special injury from rezoning | Held: Homeowners showed sufficient indicia of special injury (notice entitlement and expert evidence) for standing |
| Reviewability of City Council rezoning and special use via petition in error | Landrum: concurrent hearings and record transformed Council action into quasi‑judicial; petition in error proper | City: rezoning is legislative; petition in error improper — remedy is injunction | Held: City Council acted legislatively on rezoning and special use; petition in error is improper for those matters; appellate court lacked jurisdiction — those claims dismissed and district court order vacated regarding them |
| Sufficiency of evidence, jurisdiction, and due process regarding Planning Board conditional use permit | Landrum: insufficient evidence of compatibility, economic and safety impacts; procedural unfairness and bias at Planning Board | City: planning reports and hearings provided adequate factual basis and opportunity to be heard | Held: Affirmed — Planning Board acted within jurisdiction, relied on sufficient relevant evidence (planning reports, testimony), and afforded due process (opportunity to be heard; no actual bias shown) |
Key Cases Cited
- Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005) (adjacent property owners within statutory notice distance can demonstrate special injury for standing)
- McNally v. City of Omaha, 273 Neb. 558, 731 N.W.2d 573 (2007) (tribunal conducts judicial functions when it holds adversarial hearing and receives evidence)
- In re Application of Frank, 183 Neb. 722, 164 N.W.2d 215 (1969) (appeal in error does not lie from a purely legislative act; remedy is collateral attack/injunction)
- Giger v. City of Omaha, 232 Neb. 676, 442 N.W.2d 182 (1989) (rezoning ordinance is legislative in nature)
- Crown Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997) (on petition in error review, court assesses whether tribunal acted within jurisdiction and whether decision is supported by sufficient relevant evidence)
- In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008) (factors showing quasi‑judicial nature include receipt of evidence and creation of a record)