Latenser v. Omaha Zoning Board of Appeals, A-16-126

Background

Intercessors of the Lamb (religious group) obtained a 2004 Omaha City Council special use permit for religious assembly on a 75-acre campus; plan included residences and a chapel. Neighbors (including Latenser’s parents) previously challenged the permit; appeals were denied and affirmed.
Intercessors later bought adjacent property (former plastics plant) and obtained 2008 approvals/amendments to use it as a retreat center with housing for periodic religious visitors.
Beginning in 2008 Daniel Latenser (neighbor and pro se appellant) repeatedly complained to the City that the campus contained unlawful "group residential" housing (more than three unrelated persons per dwelling) and sought Zoning Board review of administrative determinations.
After multiple hearings (2009 initial denial; remand; three hearings in 2013), the Omaha Zoning Board found Intercessors in compliance and that the planning department had properly interpreted zoning (residences were accessory dwellings incidental to religious assembly). Zoning Board denied Latenser’s appeal.
Douglas County District Court affirmed the Zoning Board; this appeal followed. Primary contested points: Zoning Board jurisdiction, relitigation of use classification, whether the special use permit lapsed, and due process/ex parte and procedural allegations.

Issues

Issue	Plaintiff's Argument (Latenser)	Defendant's Argument (City / Intercessors)	Held
Zoning Board jurisdiction to hear appeal	Latenser appealed planning dept. decisions and the special use permit enforcement; Zoning Board should review and order enforcement	City: revocation of special use permits is City Council prerogative; Zoning Board reviews administrative determinations only	Zoning Board had jurisdiction to review planning director’s determination; but court limited review to the specific administrative decision appealed (July 2008 letter).
Classification of residential use (group residential vs. accessory dwellings incidental to religious assembly)	Residences on campus are impermissible group residential uses (more than three unrelated persons) requiring separate permits	City and Intercessors: religious assembly is a civic use permitting accessory dwellings incidental to assembly; prior litigation already resolved this	Held precluded by claim preclusion: issue was litigated and decided in prior suit; Latenser in privity with prior plaintiffs, so relitigation barred.
Whether the 2004 special use permit lapsed for failure to obtain building permits and diligently commence construction	Latenser argued permit became void after two years under the 2004 code and thus lapsed in 2006	City/Intercessors: dispute over remedy and proper forum to resolve lapse	Zoning Board lacked authority to issue a declaratory judgment on permit lapse; that is a judicial function, so Zoning Board could not rule on lapsed-permit claim.
Due process / ex parte communications and district court reliance on City brief	Latenser claimed planning dept. withheld documents, ex parte contacts occurred, and district court copied City brief into its order without review	City: proceedings included multiple hearings, documents were in the record, and pre-meeting attendance/comments did not show prejudicial ex parte influence	No due process violation shown; notices and multiple hearings provided; alleged ex parte contacts were not shown to be substantive; no abuse of discretion by district court.

Key Cases Cited

Lamar Co. of Nebraska v. Omaha Zoning Bd. of Appeals, 271 Neb. 473, 713 N.W.2d 406 (standard for district court review of zoning board decisions)
Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 (claim-preclusion principles)
Field Club Home Owners League v. Zoning Bd. of Appeals of Omaha, 283 Neb. 847, 814 N.W.2d 102 (administrative bodies are quasi-judicial)
Jaksha v. State, 241 Neb. 106, 486 N.W.2d 858 (limits on judicial powers of administrative agencies)
Murray v. Neth, 279 Neb. 947, 783 N.W.2d 424 (restrictions on ex parte communications in contested cases)
Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (appellate consideration of matters outside the record)
Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (privity definition for claim preclusion)
In re Guardianship of Forster, 22 Neb. App. 478, 856 N.W.2d 134 (requirement that evidence be part of the record to be considered on appeal)