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.
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.
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
Standing: Words and Phrases. Standing is the
legal or equitable right, title, or interest in the subject
matter of the controversy.
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.
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.
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.
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.
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
Standing: Jurisdiction: Proof. A party
invoking a tribunal's jurisdiction has the burden to
establish the elements of standing.
Appeal and Error. An issue not presented to
the trial court may not be raised on appeal.
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.
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.
from the District Court for Douglas County: J. Michael
Coffey, Judge. Affirmed in part, and in part vacated and
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.
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.
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.
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.
City carries out its zoning powers through the enactment and
enforcement of its zoning code, Omaha Municipal Code, chapter
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, §
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.
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)
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.
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 ...