United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motion for Issuance of
Preliminary Mandatory Injunction, ECF No. 11, filed by
Plaintiff Leslie Salvage, Inc. (“Leslie
Salvage”). Leslie Salvage asks the Court to issue a
temporary restraining order and, upon notice, a preliminary
mandatory injunction to Defendants, the City of Omaha
(“the City”) and City of Omaha City Council
(“the City Council”) for issuance of a fence
permit and Certificate of Occupancy. For the reasons stated
below, the portion of the Motion requesting a temporary
restraining order will be denied, and Defendants will be
given an opportunity to respond to Leslie Salvage's
following factual summary is based on the Plaintiff's
pleadings, Motion, Brief, and evidentiary submissions:
Salvage operated a salvage and recycling facility under the
trade name Ak-Sar-Ben Recycling in downtown Omaha since 1989
pursuant to a Special Use Permit. Leslie Aff., ECF No. 14-1,
Page ID 142-43. In early 2016, after being pressured by the
City to move the facility, the owner and president of Leslie
Salvage, David Leslie (“Leslie”), found a
property he believed was suitable for his salvage and
recycling facility. Id. at 143. The property was
located at 6202 Orchard Avenue (“the Orchard
August 8, 2016, Leslie Salvage submitted to the City of Omaha
Planning Department (“Planning Department”) an
application to relocate the Special Use Permit. Id.
at 143. An initial site plan for the Orchard Property drafted
by Jason Theillen (“Theillen”) of E&A
Consulting, and included in the application, showed an access
route from Orchard Avenue onto the Orchard Property that
encroached on adjacent property known as 6202 Q Street
(“the Q Street Property”). Id. at 144.
The plan was drafted with the mistaken belief that there was
an access agreement between the previous owners of the
Orchard Property and the owners of the Q Street
August 31, 2016, after reviewing the application, the
Planning Department issued a Recommendation Report
recommending approval of the new Special Use Permit subject
to several additional conditions. Id. The conditions
included a revised site plan illustrating perimeter fencing
acceptable to the Planning Department and addition of a
handicap accessible parking space. Leslie Salvage was also
required to obtain from the Zoning Board of Appeals a waiver
of Section 55-766(b) of the Municipal Code which required 300
feet of separation between scrap and salvage services and
agricultural, residential, and zoning districts.
Recommendation Report, ECF No. 14-1, Page ID 161-62. After
the September 7, 2016, public hearing, the City of Omaha
Planning Board (“Planning Board”) recommended
approval of the amendment to the Special Use Permit subject
to the additional conditions contained in the Planning
Department's Recommendation Report. Leslie Aff., ECF No.
14-1, Page ID 145.
October 13, 2016, the Zoning Board of Appeals (“the
Zoning Board”) granted the waiver of Section
55-766(b)(3) after a public hearing. Id. At the
hearing Matt Dowd, representing Duane Dowd, raised concerns
about the shared access off Orchard Avenue drafted by
Thiellen in the original site plan. Id. at 146. Kyle
Haase of E&A Consulting, representing Leslie Salvage,
informed the Zoning Board that it was originally believed
there was a shared access agreement between the Q Street
Property and the Orchard Avenue Property, but there was no
such agreement. Id. Haase represented that Leslie
Salvage was willing to work with Q Street Property owners to
create an easement or find another way to access the Orchard
November 30, 2016, the Orchard Property was transferred to
Leslie Salvage by warranty deed. Pl.'s Mot., ECF No. 11,
Page ID 94.
January 10, 2017, in a letter to the City Council, the
Planning Department recommended approval of a resolution
authorizing a new Special Use Permit for the Orchard
Property. Id. at 147. The resolution was set for
public hearing before the City Council on January 24, 2017.
Id. Before the hearing, Thiellen reached out to
Duane Dowd to discuss an access easement and sent him an
email outlining the proposed terms. Id. Leslie did
not authorize Theillen to make the proposal and when Thiellen
showed Leslie the proposal just before the hearing, Leslie
informed Thiellen it was not feasible. Leslie Aff., ECF No.
14-1, Page ID 148-49. Thiellen told Leslie he would give him
a revised draft site plan addressing his concerns after the
hearing. Id. at 149.
hearing Thiellen represented to the City Council that issues
had been resolved with regards to access to the Orchard
Property. Id. He did not represent that an agreement
had been reached, present any terms of a proposed agreement,
or address the location of the perimeter fence under any
access agreement. Id. Except for the revised site
plan, all other conditions for the new Special Use Permit had
been met and the City Council unanimously approved the
Special Use Permit for the Orchard Property. Pl.'s Br.,
ECF. No. 13, Page ID 112.
approval of the new Special Use Permit, Leslie Salvage began
to construct a perimeter fence on the Orchard Property. The
City directed Leslie Salvage to cease construction because no
fence permit was issued. Id. The permit had been
denied because the application did not comply with the
initial site plans and the City refused to issue Leslie
Salvage a Certificate of Occupancy. Id.
February 2018, Leslie Salvage had to cease operations at the
North 12th Street facility, because it sold the property.
Id. In March 2018, John Meng-Frecker designed a
revised site plan for Leslie Salvage which incorporated a
perimeter fence and access to the Orchard Property that did
not encroach on the Q Street Property. Id., Frecker
Plan, ECF No. 14-1, Page ID 199. The revised site plan was
submitted to the Planning Department for review and approval.
Leslie Aff., ECF No. 14-1, Page ID 150. In a May 8, 2018,
letter to the City Council the Planning Department
recommended the City Council adopt an amendment to the
Special Use Permit to include the revised site plan.
May 22, 2018, City Council hearing Duane Dowd appeared and
argued that the amendment to the Special Use Permit should
not be granted because the revised site plan did not
incorporate the alleged easement agreement between the
parties. Id. at 151. The vote on the resolution was
delayed until the June 19, 2018, meeting, at which time the
Special Use ...