United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE
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.
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
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.
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”). 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.
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.
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.
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 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.
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.
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 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.
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.
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. 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.
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.
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.
Salvage argues 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 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.” Pl. Br. ECF No.
26, Page ID 340.
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.
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