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, and the Motion
for Oral Argument and Evidentiary Hearing,  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.
following factual summary is based on Leslie Salvage's
pleadings, brief, and evidentiary submissions.
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.
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.
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”). 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.
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
November 30, 2016, the Orchard Property was transferred to
Leslie Salvage by warranty deed. Leslie Aff., ECF No. 14-1,
Page ID 143.
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.
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.
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
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.
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
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.
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, ...