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Landrum v. City of Omaha Planning Board

Supreme Court of Nebraska

July 14, 2017

Matthew Landrum et al., appellants and cross-appellees.
City of Omaha Planning Board et al., appellees and cross-appellants, and Daryl Leise et al., appellees.

         1. Ordinances: Appeal and Error. Interpretation of a municipal ordinance is a question of law on which an appellate court reaches an independent conclusion irrespective of the determination made by the court below.

         2. Administrative Law: Appeal and Error. In reviewing a decision based on a petition in error, an appellate court determines whether the inferior tribunal acted within its jurisdiction and whether the inferior tribunal's decision is supported by sufficient relevant evidence.

         3. Standing: Words and Phrases. Standing is the legal or equitable right, title, or interest in the subject matter of the controversy.

         4. Jurisdiction: Standing. The requirement of standing is fundamental to a court's exercise of jurisdiction, and either a litigant or a court before which a case is pending can raise the question of standing at any time during the proceeding.

         5. Standing: Zoning. It is generally held that an adjacent landowner has standing to object to the rezoning of property if such landowner shows some special injury separate from a general injury to the public.

         6. Municipal Corporations: Actions: Appeal and Error. An appeal or error proceeding does not lie from a purely legislative act by a public body to which legislative power has been delegated, and the only remedy in such cases is by collateral attack, that is, by injunction or other suitable action.

         7. Municipal Corporations: Ordinances: Zoning. A zoning ordinance constitutes the exercise of a governmental and legislative function, and a city council adopting a rezoning ordinance which amends a general zoning ordinance acts in a legislative capacity.

         [297 Neb. 166] 8. Jurisdiction: Appeal and Error. When a trial court lacks the power, that is, jurisdiction, to adjudicate the merits of a claim, the Supreme Court also lacks power to adjudicate the merits of the claim.

         9. Standing: Jurisdiction: Proof. A party invoking a tribunal's jurisdiction has the burden to establish the elements of standing.

         10. Appeal and Error. An issue not presented to the trial court may not be raised on appeal.

         11. Administrative Law: Evidence: Appeal and Error. The reviewing court is restricted to the record before the administrative agency and does not reweigh evidence or make independent findings of fact, and the evidence is sufficient to support an administrative agency's decision if the agency could reasonably find the facts as it did based on the testimony and exhibits contained in the record.

         12. Administrative Law: Due Process: Jurisdiction: Notice: Evidence: Appeal and Error. A court reviewing an order of an administrative agency must determine whether there has been due process of law; and this includes an inquiry into the jurisdiction of the agency, whether there was reasonable notice and an opportunity for fair hearing, and whether the finding was supported by evidence.

         Appeal from the District Court for Douglas County: J. Michael Coffey, Judge. Affirmed in part, and in part vacated and dismissed.

          Rex J. Moats and Margaret A. McDevitt, of Moats Law Firm, P.C., L.L.O., for appellants.

          Russell S. Daub for appellees Daryl Leise et al.

          Alan M. Thelen, Deputy Omaha City Attorney, for appellees City of Omaha Planning Board et al.

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

          Kelch, J.


         Matthew Landrum, Shandra Landrum, Rex Moats, Diane Moats, Edward Malesa, and Valerie Malesa (Homeowners) appeal the order of the district court for Douglas County that dismissed their amended petition in error. The Homeowners [297 Neb. 167] sought to challenge a conditional use permit issued by the Omaha Planning Board (Planning Board) and a special use permit and rezoning granted by the Omaha City Council (City Council). The City of Omaha (City), the Planning Board, and the City Council cross-appeal, arguing that the Homeowners' petition in error was untimely and that the district court lacked subject matter jurisdiction. We dismiss for lack of jurisdiction that portion of the Homeowners' appeal concerning rezoning and a special use permit, and we vacate the corresponding portion of the district court's order. However, because the Planning Board acted within its jurisdiction, based its findings on sufficient evidence, and afforded the Homeowners due process, we affirm the district court's order in regard to the conditional use permit.


         1. Procedural Background

         This appeal arises from permits and rezoning granted to Daryl Leise; Redbird Group, LLC; and Ray Anderson, Inc. (collectively the Developers), for a proposed convenience storage and warehouse facility to be constructed on real estate in the Omaha area (subject property). Ray Anderson, Inc., is the current owner of the subject property.

         The City carries out its zoning powers through the enactment and enforcement of its zoning code, Omaha Municipal Code, chapter 55.

         The Omaha Municipal Code designates various base zoning districts, including a "community commercial" (CC) district, which is the designation of the subject property. Omaha Mun. Code, ch. 55, art. VIII, § 55-362 (1980). Further, the code provides for a special "overlay district" that can be "overlaid" upon a property in addition to its base zoning district. Omaha Mun. Code, ch. 55, art. XI, § 55-682 (2007). One type of overlay district is the "major commercial corridor" (MCC) district, for which Leise applied in this case. See id. The zoning regulations enumerate various use types. For the [297 Neb. 168] subject property, Leise sought the use types "[warehousing and distribution (limited), " see Omaha Mun. Code, ch. 55, art. Ill. § 55-49(h) (1980) (emphasis omitted), and "[convenience storage, " see Omaha Mun. Code, ch. 55, art. Ill. § 55-45(m) (2007) (emphasis omitted). The "[warehousing and distribution (limited)" use type is allowed subject to approval of a conditional use permit. Omaha Mun. Code, ch. 55, art. VIII, § 55-364(e) (2008). Similarly, a special use permit is required for convenience storage in the CC district. Omaha Mun. Code, ch. 55, art. VIII, § 55-365(c) (2008).

         As noted above, Leise sought to place the subject property into the MCC overlay district while maintaining the base CC zoning district. Buildings built within the MCC overlay district are subject to certain urban design rules. See Omaha Mun. Code, ch. 55, art. XI, §§ 55-682 through 55-687 (2007), and Omaha Mun. Code, ch. 55, art. XXII, §§ 55-927 through 55-936 (2007). These urban design rules provide for enhanced regulation of screening, parking, site and building access, landscaping, and general building design guidelines. Id.

         In sum, to proceed with the proposed project, the Omaha Municipal Code required three zoning approvals from the City: a conditional use permit, which could be issued by the Planning Board; a special use permit, which could be granted by the City Council after a recommendation by the Planning Board; and a rezoning, which could be granted by the City Council after a recommendation by the Planning Board, to place the subject property within the MCC overlay district. See Omaha Mun. Code, ch. 55, art. XX, § 55-883(h) and (k) (2008), § 55-884(g)(3) (2008), and § 55-886(f) and (g) (1980).

         2. Municipal Proceedings

         The subject property is a 4.75-acre vacant lot at the northeast corner of 204th Street (Highway 31) and Farnam Street, located near a residential area. Leise's statement of proposed use and plans for the subject property anticipated constructing [297 Neb. 169] a three-story storage building, resembling an office building, with internal storage spaces. Leise also proposed constructing five single-story storage buildings with garage-type stalls. The storage facilities would contain 700 storage spaces for rental to customers, with estimated visits of two or three cars per hour.

         Leise submitted a proposed concept design to the City's planning department. The concept design, dated February 17, 2015, provided preliminary specifications to demonstrate compliance with site ...

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