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L.L.C. v. Metropolitan Utilities District

Court of Appeals of Nebraska

May 5, 2015

6224 FONTENELLE BOULEVARD, L.L.C., APPELLANT,
v.
METROPOLITAN UTILITIES DISTRICT, APPELLEE

Page 824

Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge.

Jason M. Bruno and Robert S. Sherrets, of Sherrets, Bruno & Vogt, L.L.C., for appellant.

Ronald E. Bucher and Mark Mendenhall for appellee.

INBODY, Chief Judge, and IRWIN and BISHOP, Judges.

OPINION

Page 825

[22 Neb.App. 873] Inbody, Chief Judge.

INTRODUCTION

6224 Fontenelle Boulevard, L.L.C. (6224 Fontenelle), appeals the order of the Douglas County District Court granting [22 Neb.App. 874] summary judgment in favor of Metropolitan Utilities District (MUD), denying 6224 Fontenelle's motion for summary judgment, and dismissing 6224 Fontenelle's inverse condemnation action. For the reasons that follow, albeit for reasons different from those of the district court, we affirm the order dismissing 6224 Fontenelle's motion for summary judgment and granting MUD's motion for summary judgment.

STATEMENT OF FACTS

On March 7, 2012, MUD installed a gas regulator station in the public right-of-way near 6224 Fontenelle's property located at 6224 Fontenelle Boulevard, Omaha, Douglas County, Nebraska. A gas regulator station is a utility facility that controls the pressure and flow of natural gas to the natural gas distribution system, consisting of aboveground pipes, valves, regulators, and other equipment which allows for the continuous monitoring of gas pressure.

On March 1, 2013, 6224 Fontenelle brought an inverse condemnation proceeding in Douglas County Court to have damages ascertained and determined and to request an appointment of appraisers. The petition alleged that MUD engaged in a taking which caused damage to 6224 Fontenelle's property through the installation of a " dangerous, obnoxious, and unsightly" gas regulator station. The petition further alleged that MUD had taken the property for public use without condemnation proceedings and that the gasline regulator station is not functional and serves no purpose.

In accordance with procedures set forth in the eminent domain statutes, Neb. Rev. Stat. § § 76-701 through 76-726 (Reissue 2009), the county court appointed three disinterested freeholders to serve as appraisers, which appraisers inspected the property and held a meeting to hear arguments from any interested party. The appraisers submitted a report concluding that no damages were incurred at the

Page 826

property located at 6224 Fontenelle Boulevard.

6224 Fontenelle appealed that determination to the district court. In the petition on appeal, 6224 Fontenelle alleged several causes of action, including inaccurate valuation, [22 Neb.App. 875] excessive taking, improper purpose, and failure to negotiate in good faith.

MUD filed a motion to strike and for summary judgment which alleged that there was no genuine issue of material fact and that MUD was entitled to judgment as a matter of law. In response, 6224 Fontenelle filed a partial motion for summary judgment as to its allegations of inaccurate valuation and failure to negotiate in good faith. 6224 Fontenelle alleged that it suffered $68,000 in damages and requested that the court enter judgment in its favor.

Hearings were held on the pending motions, and evidence was received by the court. A member of 6224 Fontenelle submitted an affidavit indicating that in his opinion as a licensed real estate broker, in accordance with a 2012 appraisal, the fair market property value was $70,500 prior to the erection of the gas regulator station. He opined that after the erection of the gas regulator station, the fair market value of the home was $2,500. He also included a March 9, 2012, appraisal valuing the property using the sales comparison approach at $40,300. The appraisal further provides:

In addition to the above adjustments, a further adjustment was made for the presence of the gas line regulator station that is located in the right-of-way right east and in front of the subject property. The view to the street is obstructed and considered unsitely [sic]. Along with this, is the perception of a safety hazard and the warnings of open flames and such in the vicinity of the station. With the stated regulations, the unsitely [sic] view and the perceived safety concerns, even though the regulator station in [sic] not on the subject property, it still has an affect [sic] on the market value of the home. Because of this, an adjustment of 25% of the market value of the property before the station construction (first appraisal) was made for external obsolescence under the feature " view" .
Justification of the adjustment for the gas line regulator station was derived from information concerning other external detractors of value, including overhead [22 Neb.App. 876] high power transmission lines, natural gas transmission lines, etc. Articles concerning examples of the affect [sic] on market values are attached in this appraisal. However, the appraiser was unable to find local sales data that supports the reduction of market value by the existence of the station. The adjustment made herein is derived from articles, along with years of experience in the real estate sales and appraisal industry.

( Emphasis omitted.)

A senior design engineer for MUD submitted an affidavit indicating that she was involved in the final approval for the design of the gas regulator station involved in this case. She indicated that originally, the gas regulator station was to be constructed farther east, closer to Fontenelle Boulevard, but that the site was moved because of a reported concern related to potential damage to existing mature trees. She indicated that MUD and the city of Omaha had previous disputes regarding tree damage and that MUD now makes efforts to avoid any tree damage if possible. She indicated that the gas regulator station was constructed within the ...


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