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Leslie Salvage, Inc. v. City of Omaha

United States District Court, D. Nebraska

March 8, 2019

LESLIE SALVAGE, INC., Plaintiff,
v.
CITY OF OMAHA, a Political Subdivision of the State of Nebraska; and CITY OF OMAHA CITY COUNCIL, Defendants.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Motion for Issuance of Preliminary Mandatory Injunction, ECF No. 11, and the Motion for Oral Argument and Evidentiary Hearing, [1] ECF No. 21, filed by Plaintiff Leslie Salvage, Inc. (“Leslie Salvage”). Leslie Salvage asks the Court to issue a preliminary injunction compelling Defendants, the City of Omaha (“the City”) and City of Omaha City Council (“the City Council”), to issue a fence permit and certificate of occupancy to Leslie Salvage. For the reasons stated below, the Motions will be denied.

         BACKGROUND

         The following factual summary is based on Leslie Salvage's pleadings, brief, and evidentiary submissions.

         Leslie Salvage operated a salvage and recycling facility in downtown Omaha since 1989. Leslie Aff., ECF No. 14-1, Page ID 142-43. In early 2016, after being pressured by the City to move, 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 Property”). Id.

         On August 8, 2016, Leslie Salvage applied to relocate its special use permit. Id. The application to the City of Omaha Planning Department (“Planning Department”) included an initial site plan drafted by Jason Theillen of E&A Consulting Group, Inc. Id. at 143-44. The initial site plan showed access onto the Orchard Property that encroached on an adjacent property known as 6202 Q Street (“the Q Street Property”). Id. Theillen drafted the plan with the mistaken belief that an access agreement existed between the previous owners of the Orchard Property and the owners of the Q Street Property. Id. at 144, 146.

         On August 31, 2016, after reviewing the application and initial site plan, the Planning Department issued a Recommendation Report recommending approval of a special use permit subject to several additional conditions. Id. at 144; Recommendation Report, ECF No. 14-1, Page ID 161-62. The conditions included a revised site plan illustrating perimeter fencing acceptable to the Planning Department, and a handicap accessible parking space. Recommendation Report, ECF No. 14-1, Page ID 161-62. Leslie Salvage was also required to obtain a waiver of Omaha Municipal Code § 55-766(b) from the Zoning Board of Appeals (“the Zoning Board”).[2] Id. After the September 7, 2016, public hearing, the City of Omaha Planning Board (“Planning Board”) recommended approval of the special use permit subject to the additional conditions contained in the Recommendation Report. Leslie Aff., ECF No. 14-1, Page ID 144-45.

         On October 17, 2016, a Zoning Board public meeting was held at Leslie Salvage's request for a waiver of Omaha Municipal Code § 55-766(b). Id. at 146. At the meeting, Matt Dowd, representing Duane Dowd (“Dowd”), one of the owners of the Q Street Property, raised concerns about the shared access off Orchard Avenue shown in the initial site plan. Id. at 146. Kyle Haase of E&A Consulting, representing Leslie Salvage, informed the Zoning Board that Leslie Salvage originally believed there was a shared access agreement between the Q Street Property and the Orchard Property, but there was no such agreement. Zoning Board Agenda, ECF No. 14-1, Page ID 180. 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 Property. Id. The Zoning Board approved the waiver and encouraged the parties to work together on a solution before the issue reached the City Council. Id.

         On November 30, 2016, the Orchard Property was transferred to Leslie Salvage by warranty deed. Leslie Aff., ECF No. 14-1, Page ID 143.

         On January 10, 2017, in a letter to the City Council, the Planning Department recommended approval of a resolution authorizing a special use permit for the Orchard Property. Id. at 147. Public hearing before the City Council was set for January 24, 2017. Id. Before the hearing, Thiellen reached out to 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 draft a revised site plan addressing Leslie's concerns after the hearing. Id. at 149.

         At the hearing, Thiellen stated “As an update to precouncil this morning, we have worked out any issues that we had previously with the south property owner in terms of access to the property.” First City Council Meeting Tr., ECF No. 23, Page ID 304. City Council member Garry Gernandt stated “thanks also goes to the applicant and the neighbors that abut this particular area, for sitting down and working through what they believe was some consequence to them. And it sounds like everybody now has seen the light to at least a 60-watt bulb - -.“ Id. at 306. Thielen responded “that's right” and Gernandt continued “- -and can agree that the - - this could go forward.” Id. Thielen did not present any additional information regarding the alleged agreement to the City Council. Id. at 303-10. The City Council approved the special use permit. Id. at 310.

         After approval of the special use permit, Leslie Salvage began to construct a perimeter fence on the Orchard Property. Leslie Aff., ECF No. 14-1, Page ID 150. The City directed Leslie Salvage to cease construction because no fence permit was issued. Id. The permit was denied because the fence did not comply with the initial site plan. Id. The City also refused to issue Leslie Salvage a certificate of occupancy. Id.

         In February 2018, Leslie Salvage had to cease operations at its downtown Omaha 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.; Meng-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. Id. at 150-51. All other necessary conditions and criteria for the special use permit were previously met or Leslie Salvage was ready and willing to meet them. Id.

         At the May 22, 2018, City Council hearing 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 shared access agreement between the parties. Id. at 151. Dowd expressed concerns about the revised site plan stating if “they put the fence I think in the middle of Orchard Street. I'm not sure I've got that. It might be just too close to Orchard Street.” Second City Council Meeting Tr., ECF No. 14-2, Page ID 221. The vote on the resolution was delayed until the June 19, 2018, meeting to allow Dowd and Leslie time to come to an agreement. Id. at 224. At the June 19, 2018, pre-council meeting the City Council was informed that the parties had not reached an agreement. Id. at 226. At the June 19, 2018, meeting no further public hearing was held and the City Council voted not to adopt the amendment to the special use permit. Id. at 227. The amendment was denied again on reconsideration. Leslie Aff., ECF 14-1, Page ID 151-52.

         On July 19, 2018, Leslie Salvage filed its Complaint in the District Court of Douglas County, Nebraska. Defendants removed the action to this Court and an Amended Complaint was filed. In the Amended Complaint, ECF No. 8, Leslie Salvage appeals the decision of the City Council denying the new special use permit and seeks a permanent injunction. Leslie Salvage also alleges a violation of substantive due process and equal protection rights under 42 U.S.C. § 1983.

         Leslie Salvage filed a Motion for Issuance of Preliminary Mandatory Injunction, ECF No. 11, asking the Court to issue a temporary restraining order and a preliminary injunction compelling the City Council and City of Omaha to issue a fence permit certificate of occupancy pursuant to the revised site plan. Leslie Salvage also requested waiver of the bond requirement. This Court denied Leslie Salvage's request for temporary restraining order. M&O, ...


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