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Dowd Grain Co., Inc. v. County of Sarpy

Supreme Court of Nebraska

August 14, 2015

DOWD GRAIN COMPANY, INC., A NEBRASKA CORPORATION, APPELLANT,
v.
COUNTY OF SARPY, A CORPORATE BODY POLITIC, APPELLEE

Page 600

[Copyrighted Material Omitted]

Page 601

[Copyrighted Material Omitted]

Page 602

Appeal from the District Court for Sarpy County: DAVID K. ARTERBURN, Judge.

Terry J. Grennan, of Cassem, Tierney, Adams, Gotch & Douglas, and Duane J. Dowd for appellant.

L. Kenneth Polikov, Sarpy County Attorney, and Michael A. Smith for appellee.

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

OPINION

Page 603

[291 Neb. 622] Cassel, J.

I. INTRODUCTION

The County of Sarpy revised an overlay zoning ordinance to exempt properties platted before the effective date of the original ordinance. An owner of nonexempt property sought a judgment declaring the exemption unconstitutional as special legislation. The owner now appeals from a judgment for the county. Because the exemption did not create a closed class and its application was not arbitrary or unreasonable, we affirm the judgment.

II. BACKGROUND

1. March 9, 2004, Ordinance

On March 9, 2004, the Sarpy County Board of Commissioners supplemented the Sarpy County zoning ordinances by adopting an overlay district zoning ordinance (overlay ordinance). In effect, the overlay ordinance imposed additional regulations on land along a specified road corridor. These regulations included design guidelines.

The original overlay ordinance applied only to future developments. It stated that " [t]he design guidelines are applicable for new development proposals within the area of application including plats, zoning changes or site plan review."

The Nebraska Court of Appeals considered a challenge to the applicability of the original overlay ordinance.[1] The court held that building permits constituted " 'new development proposals'" [2] under the plain language of the ordinance. The court further reasoned that an administrative replat and a site development plan filed after March 9, 2004, were new development proposals to which the design guidelines applied.

[291 Neb. 623] 2. 2007 Revision

In May 2007, the Sarpy County Board of Commissioners adopted a resolution amending the overlay ordinance. The revised ordinance contained a subsection designated " 33.3 Project Application and Exceptions" (exemption), which stated that the ...


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