Nebraska Supreme Court Dismisses Appeal of Omaha City Council Decision and Affirms Omaha Planning Board Decision
In its recent decision in Matthew Landrum et al. v. City of Omaha Planning Board et al., 297 Neb. 165 (2017), the Nebraska Supreme Court held that an action in error is not the proper means to seek review of a special use permit or rezoning ordinances. Because such permits and ordinances constitute legislative acts of the City Council, the proper means of review is through an injunctive proceeding.
The Court addressed an appeal brought by a group of homeowners who opposed the construction of a storage facility adjacent to their properties. The homeowners claimed the district court erred in finding that the Omaha City Council had jurisdiction and sufficient evidence to approve a special use permit for “convenience storage” on land in the Omaha area. Additionally, the homeowners argued the district court erred in finding the City Council acted within its jurisdiction and had sufficient evidence to approve the rezoning of the property through the establishment of an overlay district that changed the base zoning district from “community commercial” to “major commercial corridor.”
In dismissing the appeals, the Court held that an action in error is not the proper means to seek review of a special use permit or rezoning ordinances. Rather, such permits and ordinances constitute legislative acts of the City Council, and the proper means of review is through an injunctive proceeding. The Court affirmed the district court’s order regarding the Omaha Planning Board’s (the “Planning Board”) issuance of a conditional use permit for “warehousing and distribution (limited)” use of the property.
In affirming the district court’s order regarding the conditional use permit, the Supreme Court held that the Planning Board properly issued the conditional use permit despite the homeowners’ claims that (1) the developers lacked standing with respect to the permit application due to misidentifying the owner of the property, (2) the Planning Board did not have sufficient evidence to approve the conditional use permit because the Planning Board did not consider each factor identified by Omaha Municipal Code section 55-885, the ordinance governing review of applications for conditional use permits, and (3) that the Planning Board did not afford the homeowners due process of law.
The Supreme Court noted that, while the developers did misidentify the property owner on the conditional use permit application, the homeowners could not raise the issue on appeal because they did not raise the issue in the lower court. The Court also found that, while the Planning Board did not consider each of the factors described in section 55-885, it gave due consideration to the factors that it deemed to be relevant to this case, which is permissible under the ordinance. With respect to the issue of due process, the Court held that, while another board may have allowed the homeowners more time to be heard than the Planning Board allotted, there is no evidence in the record of an actual bias on the part of the Planning Board. Therefore, the Court determined the Planning Board provided due process to the homeowners.
Accordingly, the Supreme Court dismissed the portion of the homeowners’ appeal that addressed the rezoning and the special use permit for lack of jurisdiction. The Court vacated the order of the district court with respect to such rezoning and special use permit. The Court also affirmed the district court’s order with respect to the conditional use permit.
Patrick M. Kennedy, Summer Associate
