Landrum v. City of Omaha Planning Bd.
297 Neb. 165
| Neb. | 2017Background
- Developers sought to build a multi-building convenience storage/limited warehousing project on a 4.75-acre parcel in Omaha, requiring three approvals under Omaha Municipal Code: (1) Planning Board conditional use permit, (2) City Council special use permit, and (3) City Council rezoning to an MCC overlay.
- Planning Department issued reports recommending approval (subject to conditions); neighborhood residents submitted petitions and spoke in opposition at Planning Board and City Council hearings.
- Planning Board approved the conditional use permit (May 6 and August 5, 2015 hearings) and forwarded the special use permit and MCC rezoning to City Council.
- City Council held hearings and approved the MCC overlay rezoning and the special use permit (October 20, 2015), implementing the rezoning by ordinance and approving the special use permit subject to conditions.
- Homeowners filed a petition in error (Oct. 21, 2015) and an amended petition in error challenging the conditional use permit, the special use permit, and the rezoning; the district court affirmed the municipal decisions and dismissed the petition. The Supreme Court affirmed in part, vacated and dismissed in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition in error as to conditional use permit | Landrum: petition was timely because Planning Board approval was not a final order until the City Council acted | City: petition was untimely because filed >30 days after Planning Board approval | Held: Timely — conditional use permit was not effective until City Council rezoning ordinance; petition filed within 30 days of that final order |
| Standing to challenge rezoning | Landrum: adjacent homeowners (within 300 ft) have standing and showed special injury (property-value impact) | City: MCC overlay is more restrictive and provides owners additional protection; no special injury shown | Held: Homeowners established sufficient evidence of special injury (notice entitlement and broker testimony) to show standing |
| Reviewability of City Council rezoning / special use by petition in error | Landrum: simultaneous hearings and evidence made City Council act judicially, so petition in error is proper | City: rezoning is a legislative act; petition in error is improper — remedy is injunction/collateral attack | Held: City Council acted legislatively on rezoning and special use; petition in error is not the proper remedy. Appellate court lacks jurisdiction to review those items; that portion of appeal dismissed and district court order vacated for lack of jurisdiction |
| Conditional use permit — jurisdiction, sufficiency of evidence, due process | Landrum: Planning Board lacked jurisdiction (defective application/ownership info) and had insufficient evidence; board biased and denied due process | City: Planning Board acted within jurisdiction, based decision on planning reports and evidence, and afforded fair hearing | Held: Planning Board acted within jurisdiction (issues about application/ownership not raised below so waived), its decision was supported by substantial relevant evidence, and procedural due process was satisfied; district court affirmed as to conditional use permit |
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)
- Crown Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997) (review on petition in error: whether tribunal acted within jurisdiction and whether decision is supported by sufficient relevant evidence)
- Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005) (adjacent landowners entitled to notice within 300 feet and may show special injury for standing)
- In re Application of Frank, 183 Neb. 722, 164 N.W.2d 215 (1969) (petition in error does not lie from a purely legislative act; remedy is collateral attack)
- Giger v. City of Omaha, 232 Neb. 676, 442 N.W.2d 182 (1989) (rezoning ordinance is a legislative function)
- McNally v. City of Omaha, 273 Neb. 558, 731 N.W.2d 573 (2007) (distinguishing quasi-judicial proceedings where evidence is taken and tribunal exercises judicial functions)