CATHER & SONS CONSTRUCTION, INC., APPELLANT, V. CITY OF LINCOLN, NEBRASKA, APPELLEE, THE GOODYEAR TIRE & RUBBER COMPANY, INTERVENER-APPELLEE.
No. 41263
Supreme Court of Nebraska
Filed April 5, 1978.
264 N. W. 2d 413
The majority omits in its discussion of de novo review a significant part of that standard. When credible evidence on material questions of fact is in conflict, we will consider that the trial court observed the witnesses and their manner of testifying and accepted one version of the facts rather than the other. See Shirk v. Schmunk, 192 Neb. 25, 218 N. W. 2d 433.
The majority concludes that it is better able to determine on a reading of the record, than was the trial judge who saw, heard, and observed the witnesses, who was truthful and who was not. I confess that the record does not speak as plainly to me as it does to the majority. I would have placed great reliance on the findings of the trial judge.
Charles D. Humble and William D. Austin, for appellee.
J. Taylor Greer of Woods, Aitken, Smith, Greer, Overcash & Spangler, for intervener-appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, MCCOWN, CLINTON, BRODKEY, and WHITE, JJ.
BRODKEY, J.
This action involves a dispute arising out of the vacation of portions of streets and an alley by the City of Lincoln, defendant and appellee herein, and the sale of the vacated property by the City to The Goodyear Tire & Rubber Company (“Goodyear“), intervenor and appellee herein. The plaintiff and appellant, Cather & Sons Construction, Inc. (“Cather“), objected to the vacation and sale at a public hearing before the city council of Lincoln. Over Cather‘s objections, the council, by unanimous vote, passed ordinances authorizing the vacation and sale of the property. Cather then filed a petition on appeal in the District Court for Lancaster County pursuant to
After presentation of evidence by the parties and an inspection of the land involved in the vacation and sale, the trial court concluded that Cather‘s claims were not meritorious for several reasons: First, because the court found that Cather did not have standing to maintain its first and third causes of action for the reason it was not an owner of property abutting the vacated land; second, the court found that Cather had not suffered damage different
Cather has now appealed to this court, contending that the findings of the trial court were erroneous, and that the trial court erred in failing to grant the relief prayed for in Cather‘s petition on appeal. We affirm the dismissal of Cather‘s petition on appeal.
The facts relevant to this appeal are as follows. Goodyear owns land on the west side of North 56th Street between Ballard and Morrill Avenues in Lincoln, Nebraska. In February 1974, Goodyear and other adjacent property owners petitioned the city council of Lincoln to vacate North 56th Street between those avenues, a small portion of the avenues immediately to the east of North 56th Street, and a portion of an alley. Goodyear desired to purchase the property, if vacated, for the purpose of building a new warehouse which could be served by existing railroad facilities. Various city departments made reports and recommendations concerning the proposed vacation and sale. The Lincoln Lancaster Planning Commission and the Director of the Department of Public Works recommended approval of the vacation, subject to conditions concerning the relocation of utilities and the construction of cul-de-
Cather‘s objections to the vacation, as set forth both at the public hearing held before the city council and in the District Court, were that it denied reasonable access to Cather‘s property, that it forced industrial traffic onto streets in residential neighborhoods, and that it denied Cather the most convenient route to its property. A description of Cather‘s property is required to clarify these claims.
Cather owns a triangular shaped plot of land, the south edge of which borders on Ballard Avenue. The land comes to a point approximately 50 feet east of the northeast corner of the intersection of North 56th Street and Ballard Avenue. There is a driveway, hereinafter referred to as the “southwest driveway,” which provides access to Cather‘s property from Ballard Avenue at this point. This is one of several driveways on the Cather property, which has been used for the operation of an asphalt batch plant. Large transport trucks which deliver liquid asphalt to a storage tank on the Cather property have used the southwest driveway as a means of ingress. Before the vacation, the trucks would usually proceed north on North 56th Street, turn right on to Ballard Avenue, and enter the Cather property at the southwest driveway. This means of ingress was particularly useful to Cather due to the location of the storage tank, as the trucks could enter the
It is undisputed that Cather‘s property does not “front,” nor is it adjacent to, the vacated portions of Ballard Avenue and North 56th Street. Only 50 feet of Ballard Avenue to the east of North 56th Street was vacated, precisely to the point where the south edge of the Cather property begins to border on Ballard Avenue. The southwest corner of the Cather property does touch, at a single point, the northeast corner of the vacated portion of Ballard Avenue. The vacation did not, therefore, block any driveway providing access to the Cather property. The result of the vacation was that Cather‘s southwest driveway is now at the west end of Ballard Avenue, what has become a “dead end,” whereas previously vehicles could approach the southwest driveway from either direction.
There was a dispute in the evidence regarding the effect of the vacation on Cather‘s use of its southwest driveway. Although no portion of Ballard Avenue in front of that driveway was vacated, the owners of Cather testified that the large asphalt transport trucks, now forced to approach the driveway from the east on Ballard Avenue, could not make the turn off Ballard Avenue due to inadequate turning space. They stated that after the vacation Cather was forced to have the trucks back onto its property from its northeast driveway. It was undisputed that no vehicles other than the large asphalt trucks had difficulty in using the southwest driveway after the vacation. During the construction season, approximately two such trucks delivered liquid asphalt to Cather each week.
Goodyear and the City adduced evidence that the large asphalt trucks could still use the southwest
No extensive evidence was presented regarding the effect of the vacation with respect to diversion of industrial traffic onto streets in residential areas. The city traffic engineer stated that there were both benefits and detriments caused by the vacation with respect to traffic flow, and that residential areas were affected regardless of whether North 56th Street remained open or was vacated. Although the owners of Cather correctly stated that industrial traffic could no longer approach the Cather property via North 56th Street, they did not present evidence that feasible, alternative routes were unavailable. The city traffic engineer stated that there were three alternative routes for traffic to reach the Cather property after the vacation. Insofar as residential areas are concerned, no residents, who might have been affected by any diversion of industrial traffic, testified at trial, nor did they appear at the public hearing on the ordinances.
In support of its claim that the purchase price paid by Goodyear for the vacated land was inadequate, Cather presented the testimony of a real estate appraiser. He testified that the land was worth 50 cents per square foot, or $23,577, and that the paving on the vacated land was worth approximately $16,000. Therefore he valued the land at approximately $39,000. The property manager of Lincoln, a licensed appraiser, assessed the vacated land as being worth 60 cents per square foot, or approximately $29,000. In determining the sale price, however, he deducted 40 cents per square foot to compensate for the cost of removing the paving, and relocation of water and sewer lines. By this method of calculation, he reached the sale price of $9,434.80. Goodyear, in fact, expended more than $30,000 in relocating and replacing water and sewer lines. Although Cather offered to purchase the vacated land for $30,000 after the ordinances were passed, the record does not reflect that the Cather offer included a promise with respect to the relocation or replacement of existing utilities, or that the Cather purchase would bring to the local economy the benefit of any industrial expansion similar to that offered by Goodyear.
We first note that Cather filed its petition on appeal in the District Court pursuant to
It is apparent that under these statutory and charter provisions, the city council has the discretionary power to vacate streets and alleys. The exercise of this discretionary power “is not ordinarily subject to judicial review, unless there has been abuse of discretion, fraud, or glaring informality or illegality in proceedings, or absence of jurisdiction.” Hanson v. City of Omaha, supra. See, also, 11 McQuillin, Municipal Corporations, § 30.187, p. 116 (3d Ed., 1977). In the present case, there was no evidence of fraud, informality or illegality in proceedings, or absence of jurisdiction. Therefore, the issue subject to judicial review is whether the city council so abused its discretion that the vacation ordinance can be held to be unreasonable and arbitrary. Insofar as the vacation ordinance is concerned, Cather‘s evidence regarding abuse of discretion was essentially that the vacation deprived Cather of its right to reasonable access to the street system. To overturn a city ordinance on the ground that it invades a private right, the evidence of such facts must be clear and satisfactory. A party seeking an injunction must establish by competent evidence every fact necessary to entitle him to relief, and injunction will not lie unless the right is clear, the damage is irreparable, and the remedy at law is inadequate to prevent a failure of justice. Hanson v. City of Omaha, supra.
The parties are in dispute as to whether Cather is a party entitled to maintain an action to enjoin the vacation. The general rule is that: “A property owner whose property does not abut upon a portion of a street which it is proposed to vacate or which is
Although the question of what constitutes abutting property with respect to the vacation of streets is interesting, we need not reach that issue in this case. Even assuming, without deciding, that Cather is either an abutting property owner or has suffered special damage different in kind from that of the general public, it is clear that Cather has not shown by clear and satisfactory evidence that it is entitled to injunctive relief. The question of whether Cather has suffered special damage is concededly a close one, but Cather‘s evidence was not such that it can be said that its right was clear, its damage irreparable, and particularly that the remedy at law is inadequate to prevent a failure of justice. See, Hanson v. City of Omaha, supra; 11 McQuillin, Municipal Corporations, § 30.200, p. 142 (3d Ed., 1977). Counsel for Cather appeared to concede this point at oral argument in this case, as he stated that as a practical matter, since Goodyear has already
The second issue in this case is whether the sale ordinance should be declared void because the consideration paid by Goodyear to the City for the vacated land was inadequate. As indicated above,
In this case it cannot be said that there was any evidence of fraud or illegality on the part of the city council in selling the land to Goodyear for $9,434.80, and, therefore, the only issue is whether the city council abused its discretion in selling the land for that price.
Cather argues that the consideration was shown to be inadequate for two reasons. First, its expert witness testified that the land was worth approximately $39,000 ($23,000 for the land itself and $16,000 for the paving thereon). Secondly, Cather offered to purchase the land for $30,000, although it did not make this offer until the ordinance authorizing the sale to Goodyear had already been passed.
The issue is not merely whether the consideration accepted by the City was less than it might have procured, but whether the consideration was so inadequate that the sale constituted an abuse of discretion on the part of the city council because it was not in the public interest. The fair market value of the land is not to be judged simply on the estimated value of the land per square foot, but also on other considerations, such as the irregular shape of the land, the purposes for which the land could be used, and the costs inherent in making the land suitable for use by the buyer. It is undisputed that before the vacated land in this case could be put to uses other than a street, removal and relocation of utilities had to take place. As a condition of the sale, Goodyear was required to, and did, not only remove and relocate utilities at the cost of more than $30,000, but also improve them. It was appropriate for the City to consider the cost of removing and relocating utilities in determining the value of the land, and the final sale price was reached by taking such considerations into account.
Although Cather offered to purchase the land for
Although experts could undoubtedly argue whether the City could have obtained a higher price from Goodyear or from another buyer who would fulfill various conditions and meet various requirements favorable to the City, the record in this case does not indicate that the sale price to Goodyear was so inadequate that the sale constituted an abuse of discretion. Therefore Cather‘s contentions on this issue are without merit.
As noted at the outset of our discussion, we do not reach the issue of whether Cather is entitled to compensation due to the vacation because Cather has appealed only from the enactment of the ordinances, and not from any order or decision of the city council concerning its alleged right to compensation. Cather‘s claim for compensation was based on
We hold only that the city council did not exceed its authority or abuse its discretion in passing the ordinances, and that Cather is not entitled to injunctive relief. All other issues were not properly before the District Court, and are not disposed of in this proceeding.
AFFIRMED.
BOSLAUGH, J., concurring.
While I concur in the result which the court reached in this case, there is a procedural question that I believe requires mention. It was not raised by the parties and is not discussed in the opinion of the court.
The appellant in this case attempted to appeal to the District Court from the adoption by the City of the ordinances vacating the streets and authorizing a sale of the land. The petition on appeal recited that the appeal was taken pursuant to the provisions of
It is generally held that the power to vacate streets is legislative in nature and may be delegated to municipal corporations by the state. The exercise of such power in a particular case is a legisla-
An ordinance vacating a street is, of course, subject to collateral attack, and that is what the present action amounted to. The parties subjected themselves to the jurisdiction of the court and are bound by its judgment.
CLINTON, J., joins in this concurrence.