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Tierney v. Four H Land Co. Ltd. P'ship

Supreme Court of Nebraska

July 18, 2014

JAMES TIERNEY AND JEFFREY TIERNEY, APPELLANTS,
v.
FOUR H LAND COMPANY LIMITED PARTNERSHIP ET AL., APPELLEES

Page 293

[Copyrighted Material Omitted]

Page 294

Appeal from the District Court for Lincoln County: WILLIAM T. WRIGHT, Judge.

James J. Paloucek, of Norman, Paloucek & Herman Law Offices, for appellants.

Jay C. Elliott, of Elliott Law Office, P.C., L.L.O., for appellees Four H Land Company Limited Partnership and Western Engineering Company, Inc.

David W. Pederson, of Pederson Law Office, and Lou Jungbauer, of Yaeger, Jungbauer & Barczak, for appellees Frank Aloi and Aloi Living Trust.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ. CASSEL, J., not participating.

OPINION

Page 295

[288 Neb. 587] Wright, J.

NATURE OF CASE

In 1998, James Tierney and Jeffrey Tierney entered into an agreement with Four H Land Company Limited Partnership (Four H) and Western Engineering Company, Inc. (Western), regarding operation of a sand and gravel pit on property owned by Four H. In this agreement, the Tierneys agreed to waive their right to contest the issuance of a conditional use permit (CUP) for operation of the sand and gravel pit. In return, Four H and Western accepted various conditions regarding operation of the sand and gravel pit, including reclamation of the property after expiration of the CUP.

In 2009, the Tierneys brought an action for specific performance. They alleged that Four H and Western had not fulfilled the conditions of the agreement. The district court concluded that specific performance was not an appropriate remedy and dismissed the Tierneys' action. We reverse, and remand with direction to order specific performance.

SCOPE OF REVIEW

" [A]n action for specific performance sounds in equity, and on appeal, we decide factual questions de novo on the record. We will resolve questions of fact and law independently [288 Neb. 588] of the trial court's conclusions." Mogensen v. Mogensen, 273 Neb. 208, 212, 729 N.W.2d 44, 50 (2007).

FACTS

Background

This case involves a parcel of real estate previously owned by Four H and currently owned by the Aloi Living Trust and its trustee. Henceforth, this real estate will be referred to as " the property." Under county zoning, the property was located within an " A-1 Agricultural District" and historically had been a hayfield. The Tierneys own lots 3 and 4 of the Hidden Lakes subdivision in Lincoln County, Nebraska, located immediately south of the property.

1997 CUP

In 1997, Four H applied for a CUP to operate a sand and gravel pit on the property. The application was approved by the Lincoln County Planning Commission and the Lincoln County Board of Adjustment. The Tierneys appealed approval of the 1997 CUP to the district court, and in July 1998, the 1997 CUP was set aside due to the board of adjustment's failure to follow the correct procedures for issuance of a CUP under zoning regulations.

1998 CUP and Accompanying Agreement

Four H applied a second time for a CUP, and again, the Tierneys objected to the application. To resolve their dispute regarding the sand and gravel pit operation, in August 1998, Four H, Western, the Tierneys, and the owners of lots 1 and 2 of the Hidden Lakes subdivision entered into an agreement. The agreement provided that the Tierneys and the other property owners would " waive their right to appeal . . . the issuance of the [CUP] for the sand and gravel pit operation." In return, Four H and Western accepted various conditions to the operation of the sand and gravel pit.

Four H's application for a CUP was thereafter approved. The 1998 CUP was to be effective for a period of 10 years, terminating on October 31, 2007. The agreement integrated [288 Neb. 589] the terms of the 1998 CUP, " except to the extent they [were] contrary to or less restrictive than the terms" of the agreement, in which case the agreement would control.

Page 296

The relevant terms of the agreement provided:

As the operation in one phase is completed and the operation moves to the next phase, [Four H] and [Western] shall reclaim the land in the phase of prior operations by filling to at least its approximate original topography, covered with a minimum of four (4) inches of top soil and seeded with appropriate native grasses to prevent erosion and to visually restore the site, except the area to be used for a lake. This shall be done within one (1) year of termination of operations on the phase. . . . In any event, reclamation and restoration of the property shall be completed by October 31, 2008. Restoration shall be the joint and several obligation of Four H . .., Western . .., and any other operator of the sand and gravel pit.

The relevant provision of the 1998 CUP provided:

At the close of each phase of the sand and gravel pit operation the area shall be leveled to its original topography within one year of termination of each phase. The areas not covered by water shall then be covered with four inches (minimum) of topsoil and seeded with appropriate native grasses to prevent erosion of the soil.

This condition was incorporated into the 1998 CUP from the original 1997 CUP. This was required by the agreement, which provided that the 1998 CUP " shall include, at a minimum, the terms and conditions contained in the [CUP] approved by the Lincoln County Planning Commission on September 9, 1997, on the initial application of [Four H]."

Action for Specific Performance

In April 2009, the Tierneys filed an action for specific performance against Four H (prior owner of the property), Western (operator of the sand and gravel pit), and the Aloi Living Trust and its trustee (current owners of the property). The Tierneys alleged that Four H and Western had " failed to meet the requirements of the [1998 CUP]" or " their [288 Neb. 590] ...


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