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Strode v. City of Ashland

Supreme Court of Nebraska

October 28, 2016

Randy Strode and Helen Strode, appellants,
City of Ashland, Nebraska, and Saunders County, Nebraska, appellees.

          1. Judgments: Res Judicata: Collateral Estoppel: Appeal and Error. The applicability of claim and issue preclusion is a question of law. On a question of law, an appellate court reaches a conclusion independent of the court below.

         2. Limitations of Actions: Appeal and Error. The point at which a statute of limitations begins to run must be determined from the facts of each case, and the decision of the district court on the issue of the statute of limitations normally will not be set aside by an appellate court unless clearly wrong.

         3. Summary Judgment. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

         4. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

         5. Limitations of Actions: Pleadings: Proof. Where a complaint does not disclose on its face that it is barred by the statute of limitations, a defendant must plead the statute as an affirmative defense and, in that event, the defendant has the burden to prove that defense.

         6. Limitations of Actions: Damages. An action accrues and the statutory time within which the action must be filed begins to run when the injured party has the right to institute and maintain a lawsuit, although the party may not know the nature and extent of the damages.

         [295 Neb. 45] 7. Limitations of Actions. An aggrieved party has the right to institute and maintain a lawsuit upon the violation of a legal right.

         8. Limitations of Actions: Eminent Domain. In the context of a physical taking, the statutory period starts running only when a party exercises dominion over or obtains an interest in the property.

         9. Limitations of Actions: Municipal Corporations: Eminent Domain. In the context of a regulatory taking, a cause of action for inverse condemnation begins to accrue when the injured party has the right to institute and maintain a lawsuit due to a city's infringement, or an attempt at infringement, of a landowner's legal rights in the property.

         10. Constitutional Law: Eminent Domain: Limitations of Actions. Actions commenced under Neb. Const, art. I, § 21, are subject to a 10-year statute of limitations.

         11. Constitutional Law: Eminent Domain: Damages. Neb. Const, art. I, § 21, provides that the property of no person shall be taken or damaged for public use without just compensation therefor.

         12. Constitutional Law: Eminent Domain. Federal constitutional case law and Nebraska constitutional case law regarding regulatory takings are coterminous.

         13. Eminent Domain. The U.S. Supreme Court has identified two types of regulatory actions that constitute categorical or per se takings: (1) where the government requires an owner to suffer a permanent physical invasion of his property, however minor, and (2) where regulations completely deprive an owner of all economically beneficial use of his property.

         14. ___ . Regulatory takings challenges are analyzed using essentially ad hoc, factual inquiries governed by factors which include the economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment-backed expectations, and the character of the governmental action.

         15. ___ . Land use regulations do not effect a taking merely because the regulation caused a diminution in property value.

         16.___ . A taking may more readily be found when the interference with property can be characterized as a physical invasion by government, in contrast to when the interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.

         17. Actions: Eminent Domain: Proximate Cause: Proof. For an inverse condemnation claim to be actionable, the injured party has the burden of proving that the other party's action or inaction was the proximate cause of the damages.

         18. Negligence: Proximate Cause: Words and Phrases. The proximate cause of an injury is that which, in a natural and continuous sequence, [295 Neb. 46] without any efficient intervening cause, produces the injury, and without which the injury would not have occurred.

         Appeal from the District Court for Saunders County: Mary C. Gilbride, Judge. Affirmed.

          Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellants.

          Mark A. Fahleson and Sheila A. Bentzen, of Rembolt Ludtke, L.L.P., for appellee City of Ashland.

          Duke Drouillard and Steven J. Twohig, Deputy Saunders County Attorneys, for appellee Saunders County.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Heavican, C.J.


         Randy Strode and Helen Strode seek review of the district court's decision dismissing Randy's zoning regulation inverse condemnation claim, granting a motion for summary judgment on Helen's zoning regulation inverse condemnation claim, and granting a motion for summary judgment on the Strodes' takings claim based on the load limit posted on a bridge located near their property. We affirm.

         First, we hold that Randy is barred from bringing his inverse condemnation claim, because the statute of limitations on his claim for compensation began to accrue at the time the City of Ashland (the City) notified Randy that the use of the property was in violation of the ordinance. Next, we turn to Helen's claim. We similarly dispose of that claim based on the statute of limitations, because, as a joint owner, she has the same rights in the property as Randy. Finally, we hold that summary judgment was appropriate on the Strodes' bridge takings claim, because the load limit on the bridge does not amount to [295 Neb. 47] a regulatory taking of the property and there are no issues of material fact.


         Randy and Helen are residents of Saunders County, Nebraska. They are married.

         1. Zoning Violation

         Randy owns real property on Block 16, Lots 1, 2, and 3, and Randy and Helen jointly own real property on Block 16, Lots 7 through 12, and Block 21, Lots 10 and 11, of Stambaugh's Addition, in Ashland, Saunders County, Nebraska. On April 29, 1999, Randy purchased Lots 1, 2, and 3 of Block 16 from Greenwood Farmers Cooperative. On November 2, 2000, Randy and Helen purchased Lots 10, 11, and 12 of Block 16 from Donald D. Strode and Lucille D. Strode. On December 20, 2001, Randy and Helen purchased Lots 7, 8, and 9 of Block 16 from Donald and Lucille. On April 18, 2002, Randy and Helen purchased Lots 10 and 11 of Block 21 from David L. Hancock. The property was zoned Public (PUB) by ordinance No. 808, passed and approved on March 5, 1998, prior to the Strodes' purchase of the property. The ordinance provides in pertinent part:

. . . .
Section 2.02 Definitions.
. . . .
Non-conforming Use is an existing use of a structure or land which does not comply in some respect with the use regulations applicable to new uses in the zoning district in which it is located.
. . . .
Variance A variance is a relaxation of the terms of the Zoning Ordinance where such variance will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of the actions of the applicant, a literal enforcement of the [295 Neb. 48] Ordinance would result in unnecessary and undue hardship. As used in this Ordinance, a variance is authorized only for height, area, and size of structure or size of yards and open spaces; establishment or expansion of a use otherwise prohibited shall not be allowed by variance, nor shall a variance be granted because of the presence of non-conformities in the zoning district or uses in an adjoining district.
. . . .
. . . .
Section 4.20 Nonconforming Uses.
1. Nonconforming Uses of Land: Where at the effective date of adoption or amendment of this ordinance, lawful use of land exists that is made no longer permissible under the terms of this ordinance as enacted or amended, such use may be continued so long as it remains otherwise lawful, subject to the following provisions:
a. No such conforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment [of] this ordinance;
b. No such nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel occupied by such use at the effective date of adoption or amendment of this ordinance.
c. If any such nonconforming use of land ceases for any reason for a period of more than twelve (12) months, any subsequent use of such land shall conform to the regulations specified by this ordinance for the district in which such land is located.
. . . .
. . . .
Section 5.15 PUB Public and Semi-Public Districts
1. Intent. The Public and Semi-Public District designates those areas reserved for public use and recreation.
[295 Neb. 49] 2. Permitted Uses
a. Recreational uses including the following: parks, ball fields, swimming pools, soccer fields, trails, and associated uses.
b. Other public uses including: cemeteries and ...

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