Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Leslie Salvage, Inc. v. City of Omaha

United States District Court, D. Nebraska

June 11, 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 for consideration of summary judgment pursuant to the Court's Memorandum and Order, ECF No. 24; Plaintiff Leslie Salvage, Inc.'s Opposition to Summary Judgment in Favor of Defendants and Motion for Leave to File Second Amended Complaint, ECF No. 26; and the Reply in Support of Summary Judgment in Favor of Defendants and Opposition to Plaintiff's Motion for Leave to File a Second Amended Complaint, ECF. No. 27, filed by Defendants City of Omaha and City of Omaha City Council. For the reasons stated below, the Court will grant summary judgment for Defendants on Leslie Salvage's claims under 42 U.S.C. § 1983; deny the Motion for Leave to File Second Amended Complaint; and remand Leslie Salvage's state-law claims to the District Court of Douglas County, Nebraska.

         BACKGROUND

         I. Factual Background

         Leslie Salvage operated a salvage and recycling facility in downtown Omaha. 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 Thiellen of E&A Consulting Group, Inc. Id. at 143-44. The initial site plan showed access to the Orchard Property encroaching on an adjacent property known as 6202 Q Street (“the Q Street Property”). Id. Thiellen drafted the plan with the mistaken belief that an access agreement existed between previous owners of the Orchard Property and 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 conditions. Id. at 144; Recommendation Report, ECF No. 14-1, Page ID 161-62. The conditions required Leslie Salvage to comply with a revised site plan, illustrated perimeter fencing acceptable to the Planning Department, and included a handicapped accessible parking space. Recommendation Report, ECF No. 14-1, Page ID 161-62. Leslie Salvage also was required to obtain a waiver of Omaha Municipal Code § 55-766(b) from the Zoning Board of Appeals (“the Zoning Board”).[1] Id. After a 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 in the Recommendation Report. Leslie Aff., ECF No. 14-1, Page ID 144-45.

         A Zoning Board public meeting was held on October 17, 2016, 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 on 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 other access to the Orchard Property. Id. The Zoning Board approved the waiver and encouraged the parties to work toward a solution before the issue reached the City Council. Id.

         After the Zoning Board meeting, two Omaha City Council members called Thiellen on separate occasions to discuss Leslie Salvage's special use permit. Thiellen Aff., ECF No. 20, Page ID 279. They encouraged him to work out a solution for access to the property, and warned that otherwise Leslie Salvage would not have the necessary City Council votes for the special use permit. 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 proposed terms. Id. Leslie did not authorize Thiellen to make the proposal and when Thiellen showed Leslie the proposal, just before the hearing, Leslie told 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. When Leslie went forward with the scheduled City Council hearing, he relied on Thiellen's representation that he could draft a site plan remedying the access issue. Leslie Aff., ECF No. 26-1, Page ID 349.

         At the hearing, Thiellen stated, “[a]s 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. Thiellen responded “that's right” and Gernandt continued “-and can agree that the - this could go forward.” Id. Thiellen 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. The City Council did not review the terms of any agreement and did not review any revised plans reflecting the terms of any alleged access agreement. Leslie Aff., ECF No. 14-1, Page ID 149. Ultimately, Thiellen was unable to draft a feasible alternative site plan. Id. at 149-50.

         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 ceased 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 also expressed concerns about the revised site plan stating as follows:

the problem with this is that Orchard Street, you need to come in straight on Orchard Street, and then you can go either way. If this happens, 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. Planning Department Director, Dave Fanslau, told the City Council that the City had no plans to extend Orchard Street any farther west; there was no right-of-way for Orchard Avenue west of 62nd Street; and Dowd could access his property from 62nd Street.[2] Id. at 216-17. 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 told 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.

         II. Procedural Background

         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 challenges the City Council's denial of the new special use permit, through a petition in error, and seeks a permanent injunction. Leslie Salvage also alleges a violation of its rights of substantive due process and equal protection under 42 U.S.C. § 1983.

         On March 8, 2019, this Court entered a Memorandum and Order, ECF No. 24, on Leslie Salvage's Motion for Issuance of Preliminary Mandatory Injunction. The Court noted that facts related to Leslie Salvage's federal claims appeared to be undisputed. The parties were ordered to present any objections to the facts stated in the Memorandum and Order as well as any additional evidence or arguments in support of or in opposition to a grant of summary judgment in favor of Defendants on the federal claims. Leslie Salvage filed an Opposition to Summary Judgment in Favor of Defendants and Motion for Leave to File Second Amended Complaint, ECF No. 26. Defendants filed a Reply in Support of Summary Judgment in Favor of Defendants and Opposition to Plaintiff's Motion for Leave to File a Second Amended Complaint, ECF. No. 27.

         Leslie Salvage argues[3] that a jury must determine: 1) whether Leslie Salvage and Duane J. Dowd entered into a binding agreement regarding a shared access easement off Orchard Avenue[4] and 2) whether “[a] revised site plan reflecting [sic] is a necessary condition in order for Leslie Salvage to receive a fencing permit and certificate of occupancy from the City of Omaha.”[5] Pl. Br. ECF No. 26, Page ID 340.

         STANDARD OF REVIEW

         “Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City ofRochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing “the absence of a genuine issue of material fact.” Johnson v. Wheeling Mach. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.