Landrum v. City of Omaha Planning Bd.
297 Neb. 165
| Neb. | 2017Background
- Developers applied to convert a 4.75-acre CC-zoned parcel in Omaha to include an MCC overlay and to obtain (1) a conditional use permit for limited warehousing, (2) a special use permit for convenience storage, and (3) rezoning to MCC overlay. Ray Anderson, Inc. owned the property; Daryl Leise was the applicant.
- Planning Department recommended approval (subject to conditions); Planning Board held hearings (May and August 2015), received neighbor opposition (petitions, letters), and approved the conditional use permit and recommended approval of the special use permit and rezoning.
- City Council held hearings (September and October 2015), then approved the MCC overlay rezoning and the special use permit (5–2 votes), incorporating additional developer concessions.
- Neighboring homeowners (Appellants) filed a petition in error challenging the conditional use permit, the special use permit, and the rezoning, and sought injunctive relief; the district court affirmed the City and Planning Board and dismissed the petition in error.
- Nebraska Supreme Court: affirmed dismissal as to the conditional use permit (Planning Board), but vacated/dismissed the district court’s review of the City Council’s rezoning and special use permit for lack of jurisdiction because those were legislative acts not properly reviewable by a petition in error.
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 a final order while tied to rezoning | City: petition untimely because filed >30 days after Planning Board approval | Held: Timely — conditional use permit became final only when City Council’s rezoning ordinance took effect; petition filed within 30 days of that date |
| Standing to challenge rezoning/overlay | Landrum: adjacent homeowners within 300 feet have special injury and standing; expert testimony showed property-value harm | City: MCC overlay is more restrictive, so homeowners lack special injury | Held: Homeowners demonstrated special injury (300-foot notice entitlement + expert testimony) and thus standing |
| Proper remedy to challenge rezoning and special use permit | Landrum: simultaneous hearings and evidence made City Council’s action quasi-judicial, so petition in error appropriate | City: rezoning is a legislative act; petition in error cannot be used — remedy is collateral attack/injunction | Held: City Council acted legislatively on rezoning and special use permit; petition in error was improper — appellate courts lack jurisdiction to review those via petition in error; portion of appeal dismissed and district court order vacated as to those items |
| Sufficiency of evidence & due process for conditional use permit | Landrum: Planning Board lacked sufficient evidence and denied due process (limited time to present, alleged bias) | City/Planning Board: planning reports, hearings, and conditions satisfied criteria in municipal code; procedural opportunities were provided | Held: Planning Board acted within jurisdiction, record contained sufficient relevant evidence, and homeowners received due process; decision affirmed for conditional use permit |
Key Cases Cited
- State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919 (interpretation of municipal ordinance is question of law)
- Crown Products Co. v. City of Ralston, 253 Neb. 1 (review under petition in error: jurisdiction and sufficiency of evidence)
- Smith v. City of Papillion, 270 Neb. 607 (adjacent owners within statutory notice distance may show special injury/standing)
- In re Application of Frank, 183 Neb. 722 (appeal by petition in error not available from purely legislative acts)
- Giger v. City of Omaha, 232 Neb. 676 (rezoning ordinance is legislative)
- McNally v. City of Omaha, 273 Neb. 558 (quasi-judicial functions where hearing adversarial and evidence received)
- In re Application of Olmer, 275 Neb. 852 (county board acted quasi-judicially where record showed exhibits and testimony)
- Nebraska State Bar Found. v. Lancaster Cty. Bd. of Equal., 237 Neb. 1 (appellate court lacks power to adjudicate merits a trial court lacks jurisdiction to decide)
- Geringer v. City of Omaha, 237 Neb. 928 (reviewing court confined to administrative record; do not reweigh evidence)
- Ashby v. Civil Serv. Comm., 241 Neb. 988 (procedural due process in administrative proceedings requires notice, hearing, opportunity to present evidence)