Darling Ingredients v. City of Bellevue ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/18/2021 01:09 AM CDT
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Nebraska Supreme Court Advance Sheets
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338Darling Ingredients Inc., formerly known as
Darling International Inc., and Darling
National LLC, appellees, v. City of
Bellevue, a Nebraska municipal
corporation, appellant.
Frank R. Krejci, Trustee of the Frank R. Krejci
Revocable Trust, appellee, v. City of
Bellevue, a Nebraska municipal
corporation, appellant.
___ N.W.2d ___
Filed May 28, 2021. Nos. S-20-405, S-20-406.
1. Annexation: Ordinances: Equity. An action to determine the validity
of an annexation ordinance and enjoin its enforcement sounds in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclusion inde-
pendent of the trial court’s determination.
3. Annexation: Statutes. The issue of whether the character of the land to
be annexed meets the legal standard prescribed in the statute is a ques-
tion of law. Although the characterization of the land depends on the
particular facts of each case, the question of whether the facts fulfill a
particular legal standard presents a question of law.
4. Municipal Corporations: Annexation: Statutes. The power delegated
to municipal corporations to annex territory must be exercised in strict
accord with the statute conferring it.
5. Annexation: Taxation. It is improper for an annexation to be solely
motivated by an increase in tax revenue.
6. Annexation: Ordinances: Proof. The burden is on one who attacks an
annexation ordinance, valid on its face and enacted under lawful author-
ity, to prove facts to establish its invalidity.
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 3387. Annexation: Words and Phrases. The use of land for agricultural pur-
poses does not necessarily mean it is rural in character. It is the nature
of its location as well as its use which determines whether it is rural or
urban in character.
8. Municipal Corporations: Annexation. To determine whether lands
are urban or suburban, or rural, the test is whether a city has arbitrarily
and irrationally used the power granted therein to include lands entirely
disconnected, agricultural in character, and bearing no rational relation
to the legitimate purposes of annexation.
9. Annexation: Words and Phrases. The terms “contiguous” and “adja-
cent” mean adjoining, touching, and sharing a common border.
10. Municipal Corporations: Annexation. A municipality may annex sev-
eral tracts as long as one tract is substantially adjacent to the municipal-
ity and the other tracts are substantially adjacent to each other.
Appeals from the District Court for Sarpy County: Nathan
B. Cox, Judge. Reversed and remanded for further proceedings.
A. Bree Robbins, Bellevue City Attorney, for appellant.
Michael S. Degan, of Kutak Rock, L.L.P., for appellee
Darling Ingredients Inc.
James E. Lang, of Lang Law, L.L.C., for appellee Frank
R. Krejci.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Papik, J.
After the City of Bellevue (the City) adopted an ordinance
to annex their land, landowners brought actions in the district
court and obtained orders finding that the City lacked the
authority to annex the land and enjoining it from doing so.
The district court found the City lacked authority because the
land in question was rural and agricultural rather than urban or
suburban and because it was not contiguous and adjacent to the
City’s existing boundaries. The district court did not address
the landowners’ argument that the annexation was not lawful
because it was motivated by an improper purpose.
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338In these consolidated appeals of the district court’s orders,
we find that the district court erred by finding the annexation
invalid for the reasons it identified. We therefore reverse, and
remand for further proceedings so that the district court may
consider the landowners’ improper purpose challenge.
BACKGROUND
Procedural Background.
In 2019, the City adopted ordinances that provided for the
annexation of various areas. One of the ordinances annexed
a portion of land referred to as “Area #9.” Area #9 consisted
of properties owned by Darling Ingredients Inc. and Darling
National LLC (collectively Darling), and Frank R. Krejci,
trustee of the Frank R. Krejci Revocable Trust (Krejci).
Darling and Krejci filed separate complaints in the district
court for Sarpy County, naming the City as a defendant. They
asserted that the City had exceeded the authority and powers
granted to a city of the first class by Neb. Rev. Stat. § 16-130(Cum. Supp. 2020). They claimed that the City lacked author-
ity under § 16-130, because the land in question was not
adjacent to or contiguous with the existing City limits and
was agricultural and rural in character rather than urban or
suburban. Darling and Krejci also claimed that the ordinance
was invalid because it was enacted for an improper purpose.
Both Darling and Krejci asked the district court to declare the
ordinance invalid and to permanently enjoin the City from tak-
ing actions to enforce it. The two actions were consolidated for
discovery and trial.
Evidence at Trial.
The parties did not call any witnesses at trial. Instead, they
offered a number of affidavits and other documentary evidence
as exhibits. The district court received all of these exhibits
as evidence, most without objection. A summary of the evi-
dence received by the district court is provided in the para­
graphs below.
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338In 2019, the City considered an annexation package made up
of several sanitary and improvement districts and unincorpo-
rated parcels of land in its extraterritorial jurisdiction, includ-
ing Area #9.
The City’s planning director prepared a memorandum for city
officials about Area #9 and several other unincorporated areas.
The memorandum concluded with two different recommenda-
tions. The City’s planning department recommended approval
of the annexation based on the positive financial impact on
the City and its natural growth and development. The City’s
planning commission, however, recommended approving the
annexation proposal with the exception of some parcels desig-
nated with “greenbelt” tax valuation status, including portions
of Area #9. See Neb. Rev. Stat. § 77-1344 (Reissue 2018).
Rather than excluding all greenbelt lots, the City’s planning
commission recommended annexing greenbelt lots that did not
appear to be used for agricultural purposes.
Following public hearings, the city council voted unani-
mously to adopt the ordinance that annexed Area #9. Around
the same time and while this matter was pending in district
court, the City annexed several other unincorporated areas
and sanitary and improvement districts. The City planned to
provide services to all annexed areas and assess future infra-
structure needs.
The following map was attached to the ordinance that
annexed Area #9. Area #9 is shaded in blue and located below
the center line. Areas have been labeled by this court for clarity.
The northwestern portion of Area #9 is a 55-acre strip
owned by Krejci; it comprises the majority of the western bor-
der of Area #9. The Krejci property has been used exclusively
for raising crops since before 2011. It contains no structures
or buildings; does not have City water, sewer, or gas service;
and has no residents. Although the entire Krejci property has
greenbelt tax valuation status, record cards from the Sarpy
County assessor listed the location of the property as “[s]ub­­
urban.” In an affidavit, the Sarpy County assessor stated that
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338Existing Existing
City of City of
Bellevue Bellevue
Existing
City of
Bellevue
Area #9
his office had determined that Krejci’s property was suburban
in both location and character.
Frank R. Krejci stated in an affidavit received by the district
court that in his opinion as a purchaser, owner, and developer
of property in the area over the preceding 50 years, the Krejci
property and the adjoining property to the east were rural in
nature, agricultural in character, and not urban or suburban,
and there were no urban or suburban uses for it. The district
court also received a real estate listing of the Krejci property
created in 2014 and last updated in June 2019. The listing
divided the Krejci property into several “small industrial lots.”
The proximity to Highway 75—with visibility to 27,000 cars
per day—and Offutt Air Force Base (Offutt AFB) were touted,
and the City’s “Master Plan for Industrial Use” was refer-
enced. The listing included aerial pictures of the surrounding
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338area that depicted Area #9, Offutt AFB, and nearby devel-
oped areas.
Darling owns the remaining portion of Area #9. The Darling
property totals approximately 265 acres and includes farmland
(Darling farmland), an industrial plant (Darling plant), and
a fingerlike strip on the easternmost portion of Area #9. As
with the Krejci property, record cards from the Sarpy County
assessor listed the location of the property as “[s]uburban,”
and the Sarpy County assessor stated that his office had deter-
mined that the property was suburban in both location and
character.
Darling’s easternmost property is approximately 20 acres
and includes no structures. According to Darling’s general
plant manager, this portion was not suitable for development
because it was partially wooded, was prone to flooding, and
was accessible only by driving on the levy next to Papillion
Creek. It did not have greenbelt tax valuation status and was
zoned industrial.
The Darling farmland covers 220 acres. The Darling man-
ager stated in an affidavit that Darling purchased the Darling
farmland in 2011, that it was used exclusively for agriculture at
that time, and that Darling has used it exclusively for agricul-
ture by leasing it to a tenant farmer who raises crops there. The
Darling manager stated that Darling has no plans to use the
Darling farmland for any other purpose. The Darling farmland
has never been platted and has no improvements other than
those related to agricultural purposes. Since 1995, the Darling
farmland has been designated as greenbelt land for tax val­
uation purposes. Records of the Sarpy County assessor reflect
that the Darling farmland was both zoned as and being used
for agricultural purposes. No City services were supplied to the
Darling farmland.
The Darling plant sits on approximately 45 acres and is
located within the generally triangular middle portion of
Area #9 depicted in the map above. The area has been used
as some form of industrial plant since the 1940’s. The Darling
plant is an industrial facility that converts animal byproducts
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338into sustainable food, feed, and fuel ingredients. It does not
have greenbelt tax valuation status and is zoned as industrial
by the Sarpy County assessor.
The Darling farmland and the Darling plant are served by
the “City of Omaha for water and sewer, Encore and Black
Hills Energy for gas,” and Sarpy County for roads and emer-
gency services. Emergency services are provided by the City’s
fire department through Sarpy County.
Fort Crook Road borders Area #9 on the west side. Highway
75 is just outside the western edge of Area #9. Papillion
Creek borders Area #9 on the east. The area on the other side
of Papillion Creek, outlined in black on the map above, was
annexed by the City in 2009. The parties agree that at some
point that area included a baseball complex. The district court
described the baseball complex as “failed,” and our record
includes a 2017 newspaper article stating that the complex cost
$6.5 million to build, but after the complex did not live up to
revenue expectations, the City agreed to end its relationship
with the entity that had managed it. The article also stated
that the City’s mayor said that the land was in an area the City
had eyed for future growth. As shown on the map above, the
area including the baseball complex does not border the rest of
the land within the City’s boundaries.
Offutt AFB is to the north of both the area of the City,
including the baseball complex, and Area #9. According to evi-
dence in the record, Offutt AFB is the home of U.S. Strategic
Command and a wing of the U.S. Air Force. It includes a
nonpublic airport and about 10,000 military and other fed-
eral employees.
Immediately to the south of Area #9 is the Normandy Hills
residential subdivision. Several other residential subdivisions
are located on the other side of Highway 75 to the west and
northwest of Area #9. These subdivisions are within 1 mile of
Area #9. Five of these subdivisions were annexed, at least in
part, by the same annexation package that annexed Area #9, and
one of those annexed parcels includes an elementary school.
Evidence was also introduced at trial that in addition to the
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338Normandy Hills subdivision and Offutt AFB, there was one
commercial establishment and six industrial establishments
within a 1-mile radius of Area 9, including the Darling plant.
The district court received the affidavits of several City
officials. The director of the City’s planning department stated
that annexation of Area #9 occurred after an annual review
and that he “used a high degree of intelligent planning and
­coordination in reviewing the proposed areas to be annexed
[and] thoroughly reviewed all surrounding areas of the City . . .
and its future growth and development.” Similarly, the City’s
land use planner stated that Area #9 was annexed, along with
­others, “to continue the growth and development for the City
. . . . The annexations help with fulfilling the continuous growth
and cohesiveness of the community, fill gaps within the com-
munity, and help[] the [C]ity continue to grow together.” She
also said that “growth and development of the City . . . contin-
ues to expand near the subject properties.” The City’s land use
planner referenced the City’s comprehensive plan.
The district court received the comprehensive plan, which
was initially created by the City in the early 2000’s and
updated as late as 2017. It projected that the City’s population
would increase from under 45,000 in 2000 to over 60,000 by
2030. According to the comprehensive plan, the projected pop-
ulation growth would require the City to double the amount
of land it occupied. The comprehensive plan encouraged the
City to monitor “future-growth” areas and be prepared to
annex land before it was developed. Referring to the general
area in which Area #9 was located, the comprehensive plan
stated, “[I]f commercial development occurs in this area and is
adjacent to the corporate boundary, the area should be annexed
immediately.”
The comprehensive plan classified the section of Highway
75 just to the west of Area #9 as a “rural principal arterial,”
in that it provided traffic movement for substantial statewide
or interstate travel. It noted that increased development to
the south of the Bellevue metropolitan area had overloaded
existing transportation facilities and increased congestion. A
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338reconfigured interchange at the northwest corner of Area #9
and a new interchange approximately 1 mile south of Area #9
had been approved as “2030 Street Improvements” by the
regional planning agency’s “2035 Long Range Transportation
Plan,” and the same plan approved converting the area of
Highway 75 to the west of Area #9 from four to six lanes.
The comprehensive plan recommended the “Future Roadway
Functional Classification” for the area just west of Area #9 as
an “Urban Princip[al] Arterial Roadway.”
The comprehensive plan identified the area near the Highway
75 intersection approximately 1 mile south of Area #9 as one
“expected to see significant population growth during the plan-
ning period” and to become the City’s “new southern gateway.”
It suggested planning a major regional activity center for the
area, to include “a regional shopping mall, a number of major
employers, and other amenities that support a large area such
as dining, entertainment, and public and quasi-public uses.”
The comprehensive plan contemplated that the activity center
would serve residents of Sarpy County and the larger Omaha
metropolitan area.
The comprehensive plan considered Area #9 to be develop-
able. It recommended future land use of Area #9 as light indus-
try, heavy industry, and flex space. The term “flex space” was
described as supporting a variety of commercial, retail, and
industrial uses, as well as helping the market to determine the
use of the space. The comprehensive plan based its flex space
recommendation on Area #9’s proximity to a proposed indus-
trial park and Offutt AFB.
The City admitted in answers to interrogatories received by
the district court that it was not aware of any retail establish-
ments within 1 mile of the Darling plant or any proposed or
planned development within Area #9.
District Court’s Orders.
The district court entered separate but identical orders in
the Darling action and the Krejci action, finding in favor of
Darling and Krejci.
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338The district court determined that in annexing Area #9,
the City had exceeded its statutory authority under § 16-130
because the Darling and Krejci properties were neither urban
nor suburban in character and included a substantial portion
of agricultural lands which were rural in character. It reasoned
that the properties were not located in close proximity to city
amenities, they were located in the middle of an isolated and
undeveloped part of the county, the predominant use of the
properties and the surrounding lands was agricultural, not a
single residence existed in Area #9, and the annexation memo-
randum was silent as to any development plans for the annexed
area. The district court noted that the facts in this case were
similar to those present in Wagner v. City of Omaha, 156 Neb.
163, 55 N.W.2d 490 (1952), where this court held that a city
had exceeded its authority by annexing agricultural land that
was rural in character.
Alternatively, the district court found that the ordinance did
not comply with the requirement in § 16-130 that annexed
lands be contiguous or adjacent to the city limits. It observed
that the City’s “boundaries” were not adjacent to the Darling
and Krejci properties. Instead, the district court reasoned, the
City was attempting to rely on the baseball complex area, an
“isolated island of municipal control” completely detached
from the body of the City. The district court characterized this
as a separate distinct mass that was not a part of the City, such
that it could be used for an adjacency connection.
The district court declared the ordinance invalid and void
and permanently enjoined the City from taking any action to
enforce it. The district court did not address whether the ordi-
nance was enacted for an improper purpose.
The City timely appealed both actions. We docketed its
appeals as cases Nos. S-20-405 and S-20-406 and consolidated
them for oral argument and disposition.
ASSIGNMENTS OF ERROR
The City’s assignments of error in cases Nos. S-20-405 and
S-20-406 are essentially identical. It assigns, consolidated,
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338that the district court erred by finding (1) that the Darling and
Krejci properties were rural in character and thus could not be
annexed and (2) that the Darling and Krejci properties were
neither contiguous nor adjacent to the City.
STANDARD OF REVIEW
[1,2] An action to determine the validity of an annexation
ordinance and enjoin its enforcement sounds in equity. SID No.
196 of Douglas Cty. v. City of Valley, 290 Neb. l, 858 N.W.2d
553 (2015). On appeal from an equity action, an appellate
court decides factual questions de novo on the record and, as to
questions of both fact and law, is obligated to reach a conclu-
sion independent of the trial court’s determination. Id.[3] The issue of whether the character of the land to be
annexed meets the legal standard prescribed in the statute is a
question of law. Id. Although the characterization of the land
depends on the particular facts of each case, the question of
whether the facts fulfill a particular legal standard presents a
question of law. Id.ANALYSIS
Legal Framework.
[4,5] We begin by reviewing the legal principles that govern
this challenge to the City’s proposed annexation. The City’s
power to annex territory is not absolute. It must be exercised in
strict accord with the statute conferring it. See Cornhusker Pub.
Power Dist. v. City of Schuyler, 269 Neb. 972, 699 N.W.2d 352(2005). In this case, the City’s annexation power is controlled
by § 16-130, which provides in relevant part:
(2) . . . [T]he mayor and city council of a city of the
first class [located in whole or in part within the bound­
aries of a county having a population in excess of 100,000
inhabitants but less than 250,000 inhabitants] may by
ordinance at any time include within the corporate limits
of such city any contiguous or adjacent lands, lots, tracts,
streets, or highways as are urban or suburban in charac-
ter and in such direction as may be deemed proper. Such
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Cite as 309 Neb. 338grant of power shall not be construed as conferring power
upon the mayor and city council to extend the limits of
such a city over any agricultural lands which are rural
in character.
(3) The invalidity of the annexation of any tract of
land in one ordinance shall not affect the validity of the
remaining tracts of land which are annexed by the ordi-
nance and which otherwise conform to state law.
In addition to the statutory limitations expressed in § 16-130
and other similar statutes, we have also held that it is improper
for an annexation to be solely motivated by an increase in tax
revenue. SID No. 196 of Douglas Cty. v. City of Valley, supra,
citing Witham v. City of Lincoln, 125 Neb. 366, 250 N.W.
247 (1933).
[6] The burden is on one who attacks an annexation ordi-
nance, valid on its face and enacted under lawful authority, to
prove facts to establish its invalidity. County of Sarpy v. City
of Papillion, 277 Neb. 829, 765 N.W.2d 456 (2009). See, also,
Williams v. County of Buffalo, 181 Neb. 233, 147 N.W.2d 776(1967) (passage of ordinance presumes finding that conditions
and limitations in delegating statute exist). The City claims
Darling and Krejci failed to meet this burden in these cases.
We address its arguments below.
Character of Area #9.
The City first contends the district court erred in finding
that, in annexing Area #9, the City exceeded the power con-
ferred to it by § 16-130(2) to annex lands that are “urban or
suburban in character” but not “agricultural lands which are
rural in character.” We have defined the term “rural” as “of or
pertaining to the country as distinguished from a city or town,”
and we have defined the term “urban” as “of or belonging to
a city or town.” See Wagner v. City of Omaha, 156 Neb. 163,
168, 55 N.W.2d 490, 494 (1952). In asserting that Area #9
is urban or suburban in character, despite being largely used
for agriculture, the City points to commercial and industrial
establishments and housing developments nearby, as well as
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Cite as 309 Neb. 338other annexations in the vicinity and future land use designa-
tions for Area #9. The City also relies on the opinions of the
Sarpy County assessor and its land use planner that Area #9 is
urban or suburban in character.
Like the district court, Darling and Krejci primarily analo-
gize this case to Wagner v. City of Omaha, supra. In Wagner,
we held that 90 to 103 acres of unplatted agricultural lands
were rural in character. The entire area annexed was composed
of 490 acres that, in addition to the unplatted agricultural
lands, included 588 dwellings and 2,116 residents, a limited
retail area, and several small industries. Id. Under the law
applicable in Wagner, we declared the entire annexation ordi-
nance invalid. Darling and Krejci argue that Wagner is disposi-
tive here, given the size and agricultural use of Area #9 and
the relative lack of residents, structures, improvements, city
services, and development in the immediate area. The annexed
area in Wagner does share some similarities with Area #9, but
as we quite recently observed, our jurisprudence on this topic
has developed in the decades since our decision in Wagner. See
County of Sarpy v. City of Gretna, ante p. 320, ___ N.W.2d
___ (2021).
In County of Sarpy v. City of Gretna, supra, we reviewed
the factors our cases have considered in deciding whether an
area is rural or urban or suburban in character. We explained
that in addition to current uses, we have considered other fac-
tors, including the location of the area, its character, its prox-
imity to growth areas, the degree of development of the land
involved, and contemplated future development. Id., citing SID
No. 196 of Douglas Cty. v. City of Valley, 290 Neb. 1, 858
N.W.2d 553 (2013); Swedlund v. City of Hastings, 243 Neb.
607, 501 N.W.2d 302 (1993); Voss v. City of Grand Island, 186
Neb. 232, 182 N.W.2d 427 (1970); Sullivan v. City of Omaha,
183 Neb. 511, 162 N.W.2d 227 (1968); Bierschenk v. City of
Omaha, 178 Neb. 715, 135 N.W.2d 12 (1965); and Wagner v.
City of Omaha, supra. We thus proceed to consider the evi-
dence in our record as to those factors.
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Cite as 309 Neb. 338We look first to Area #9’s location. The district court char-
acterized Area #9 as “isolated” and “well removed from the
[C]ity.” It likened Area #9 to the rural lands in Wagner v. City
of Omaha, supra, and distinguished it from the annexed area
in Swedlund v. City of Hastings, supra, and Bierschenk v. City
of Omaha, supra. We recognize differences between Area #9
and the cases distinguished by the district court, but they and
other cases are nonetheless instructive because they consider
features of an area’s location that influence its character.
Those features include the disputed area’s proximity to hous-
ing developments, parks, schools, industry, local thoroughfares,
and other common features of urban or suburban life. See,
Swedlund v. City of Hastings, supra; Bierschenk v. City of
Omaha, supra. See, also, Shields v. City of Kearney, 179 Neb.
49, 136 N.W.2d 174 (1965).
After considering the evidence in the record regarding what
is present in the surrounding areas, we conclude that Area #9 is
not isolated and is instead near features that suggest an urban
or suburban character. Highway 75, a major arterial roadway,
runs just outside the western edge of Area #9. On the other
side of Highway 75, less than 1 mile from Area #9, are several
residential subdivisions and an elementary school. Another
residential subdivision, Normandy Hills, is immediately south
of Area #9. While not part of the City, we find that Offutt AFB,
located less than 1 mile north of Area #9, is also informative as
to Area #9’s character. The nearby presence of a military base
that employs approximately 10,000 people suggests an area
that is urban or suburban rather than rural in character. Also
within a 1-mile radius of Area #9 at the time of trial were a
commercial storage establishment and six industrial establish-
ments, including the Darling plant. Finally, the baseball com-
plex to the east of Area #9, even if attempts to operate it had
been unsuccessful as of the time of trial, is also more indicative
of an area that is urban or suburban in character than one that
is rural in character.
As for current uses, Area #9 is not entirely used for agri-
culture. A part of Area #9—the Darling plant—has been used
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Cite as 309 Neb. 338for industrial purposes since the 1940’s. The easternmost por-
tion of Area #9 is zoned industrial, and there was no evidence
that it had ever been put to any particular use.
[7] Much of Area #9 was zoned and being used for agricul-
tural purposes at the time of trial and had been used in that
fashion for years before. But in applying the same statutory
requirements to cities of various classes, we have long held
that the use of land for agricultural purposes does not neces-
sarily mean it is rural in character. See, e.g., Swedlund v. City
of Hastings, supra; Omaha Country Club v. City of Omaha,
214 Neb. 3, 332 N.W.2d 206 (1983); Voss v. City of Grand
Island, 186 Neb. 232, 182 N.W.2d 427 (1970). We have said
that “[i]t is the nature of its location as well as its use which
determines whether it is rural or urban in character.” Sullivan
v. City of Omaha, 183 Neb. 511, 514, 162 N.W.2d 227,
229-30 (1968). We have also emphasized that land need not
already be zoned and developed into a nonagricultural use
before it can be annexed. See SID No. 196 of Douglas Cty. v.
City of Valley, 290 Neb. 1, 858 N.W.2d 553 (2015). Instead,
lands may be currently utilized in an agricultural fashion and
yet, due to other factors, be urban or suburban in character
and thus subject to annexation. See Voss v. City of Grand
Island, supra.One factor we have found that can render land urban or
suburban in character despite being currently put to an agri-
cultural use is contemplated future development. In SID No.
196 of Douglas Cty. v. City of Valley, supra, we considered
evidence of contemplated future residential development as
a justification for the City’s classifying the subject property
as urban or suburban and upheld the annexation. Similarly,
in County of Sarpy v. City of Gretna, ante p. 320, 332, ___
N.W.2d ___, ___ (2021), we were not convinced that the city’s
annexation was invalid, even where its plans for development
of the annexed land “will take time.” That is to say, future
development plans for the annexed land need not be imminent
as Darling suggested at oral argument.
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Cite as 309 Neb. 338Here, the evidence reflects contemplated future development
to transition Area #9 from agricultural use to nonagricultural
use. According to the comprehensive plan, the City anticipates
the whole of Area #9 will be used for industrial and other non-
agricultural purposes in the future, based on its proximity to a
proposed industrial park and Offutt AFB.
The City was not the only party that envisioned develop-
ment in Area #9’s future. As noted above, the Krejci property
was listed for sale. The listing’s division of the property into
several “small industrial lots,” its references to nearby major
thoroughfares and the thousands of cars that drive by the
property each day, its depiction of the property in reference
to nearby developed areas, and its statement that the property
was included in the City’s “Master Plan for Industrial Use” all
suggest that Krejci, a longtime owner and developer of real
property in the area, viewed the farmland as ripe for indus-
trial development. Krejci counters that the real estate listing,
if anything, demonstrates the rural and agricultural character
of the property, because the property has not actually been
sold. We are not persuaded. There are many factors that may
prevent a property from selling, and we have no evidence that
explains in any meaningful detail why Krejci’s attempts to
market his property as a site for industrial development have
not proved successful.
We have also considered evidence of development in the
vicinity of the contested area to determine its character. See
County of Sarpy v. City of Gretna, supra, citing Bierschenk v.
City of Omaha, 178 Neb. 715, 135 N.W.2d 12 (1965). In this
case, the City was not aware of any proposed or planned devel-
opment of Area #9 itself. However, affidavits by City officials
cited continuous and future growth and development in the
area as a reason for annexing Area #9. The City’s comprehen-
sive plan projected population growth between 2000 and 2030
requiring the City to double its footprint and encouraged the
City to annex land before it was developed. In particular, it rec-
ommended immediate annexation if commercial development
occurred in the region of Area #9. The comprehensive plan
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Cite as 309 Neb. 338anticipated significant population growth in the area around the
intersection southwest of Area #9 and expected it to become
the City’s “new southern gateway.” The comprehensive plan
classified the section of Highway 75 bordering Area #9 as a
principal arterial and recommended planning a major regional
activity center for the area southwest of Area #9. Changes to
Highway 75 and intersections near Area #9 had been approved
to address existing congestion caused by development in the
area and anticipated population growth. Maps in evidence
show that in 2019, several neighborhoods just to the west and
northwest of Area #9 were annexed as part of the same devel-
opment plan that annexed Area #9. The City had also initiated
procedures to annex the Normandy Hills development immedi-
ately south of Area #9.
[8] In evaluating all of this evidence, we also bear in mind
that the standard we have articulated for determining whether
an annexation is invalid based on the character of the land
sought to be annexed is deferential to the municipality. Not
only is the proposed annexation presumed to be valid with
the challenger bearing the burden to demonstrate invalidity,
our test asks whether the city has used the power of annexa-
tion “arbitrarily and irrationally . . . to include lands entirely
disconnected, agricultural in character, and bearing no rational
relation to the legitimate purposes of annexation.” County of
Sarpy v. City of Gretna, ante p. 320, 329, ___ N.W.2d ___, ___
(2021), quoting SID No. 196 of Douglas Cty. v. City of Valley,
290 Neb. 1, 858 N.W.2d 553 (2015) (internal quotation marks
omitted). See, also, Voss v. City of Grand Island, 186 Neb. 232,
182 N.W.2d 427 (1970).
Given the evidence we have discussed regarding Area #9’s
location, its present use, and its contemplated future uses
and existing plans for development, we cannot conclude that
the City acted arbitrarily or irrationally in annexing Area #9
or that Area #9 bears no rational relation to the legitimate
purposes of annexation. Accordingly, we find that the district
court erred in finding the ordinance that annexed Area #9 to be
invalid based on the character of Area #9.
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338We reach this conclusion even though some of the land
within Area #9 had greenbelt tax valuation status and the
City’s planning commission recommended against annexing
such land. In County of Sarpy v. City of Gretna, supra, we
found the greenbelt tax assessment status of the annexed ter-
ritory not to be evidence of rural character. We reasoned that
greenbelt status involved a legislative determination regarding
taxation and market value and found nothing to support it as a
restriction on the city’s annexation authority.
Contiguous or Adjacent Requirement.
[9,10] Having concluded that the district court erred in deter-
mining that the character of Area #9 precluded the City from
annexing it, we must continue on to consider the City’s asser-
tion that the district court incorrectly determined that Area #9
was not “contiguous or adjacent” to the City as required by
§ 16-130. We have used the terms “contiguous” and “adjacent”
synonymously to mean adjoining, touching, and sharing a
common border. See County of Sarpy v. City of Papillion, 277
Neb. 829, 765 N.W.2d 456 (2009). A municipality may annex
several tracts as long as one tract is substantially adjacent to
the municipality and the other tracts are substantially adjacent
to each other. Id.There is no dispute that the Darling property shares a com-
mon border with the area of the City that includes the baseball
complex and that the Krejci property is substantially adjacent
to the Darling property. There is also no argument that the
annexation of Area #9 amounted to what we have described
as “strip” or “corridor” annexation, in which a municipality
impermissibly attempts to establish adjacency by seeking to
annex a relatively narrow piece of land bordering its corpo-
rate limits to reach a larger tract of land some distance away.
See, e.g., County of Sarpy v. City of Gretna, 273 Neb. 92, 727
N.W.2d 690 (2007); Cornhusker Pub. Power Dist. v. City of
Schuyler, 269 Neb. 972, 699 N.W.2d 352 (2005); Johnson v.
City of Hastings, 241 Neb. 291, 488 N.W.2d 20 (1992). This,
the City contends, should be the beginning and the end of
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Cite as 309 Neb. 338any argument as to whether Area #9 is contiguous and adjacent
to the City.
The district court, however, was persuaded by Darling’s
and Krejci’s argument that the annexation was invalid because
the area that includes the baseball complex did not share a
border with the rest of the City. The district court dubbed
this an “island” annexation and determined it was contrary
to the adjacency requirement of § 16-130. The district court
found support for its conclusion in County of Sarpy v. City of
Papillion, supra. In that case, we observed that our prior cases
had explained the reason for the adjacency requirement “is the
idea that a city, both by name and use, is one entity, a collec-
tive body of people gathered together in one mass, not sepa-
rated into distinct masses, and having a community of interest
because they are residents of the same place.” Id. at 837, 765
N.W.2d at 464.
We find that Area #9 is adjacent and contiguous to the City
for purposes of § 16-130. Darling’s and Krejci’s true adjacency
objection is to the 2009 annexation of the area that includes
the baseball complex. That area does indeed appear to be iso-
lated from the rest of the City, and its annexation may well
have created “distinct masses” within the City. See County of
Sarpy v. City of Papillion, supra. But the annexation of the
area including the baseball complex was not before the district
court in this case, and it is not before us now. Not only was
that annexation not challenged in this case, but under Neb.
Rev. Stat. § 18-1718 (Reissue 2012), any action or proceeding
brought to contest an annexation by a city must be brought
within 1 year from the effective date of the annexation or be
forever barred. Even if the annexation of the area including
the baseball complex was improper, the time for challenging it
has long since expired.
Because the area including the baseball complex was
annexed into the City and was not subject to challenge in this
case, it can be used to establish adjacency. And there is no
dispute that Area #9 is adjacent and contiguous to the area of
the City that includes the baseball complex. Consequently, the
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338district court erred in finding that Area #9 was not contiguous
or adjacent to the City under § 16-130.
Purpose of Annexation.
In addition to the arguments discussed above, Darling and
Krejci alleged in the district court that the annexation was
invalid because it was solely motivated by an increase in tax
revenue. They now argue that we should affirm the district
court’s decisions on this basis.
The district court, however, found it dispositive that the
ordinance was invalid under the character and adjacency
requirements of § 16-130, and it did not address the improper
purpose challenges. We will not consider this issue that has
not been addressed by the district court. See, e.g., Speece v.
Allied Professionals Ins. Co., 289 Neb. 75, 853 N.W.2d 169(2014). However, because Darling and Krejci challenged the
annexation ordinance on this basis, we remand the causes to
the district court for further proceedings to consider Darling’s
and Krejci’s improper purpose challenges. See id.CONCLUSION
For the reasons explained above, we reverse the decisions
of the district court finding that Area #9 did not satisfy the
requirements of § 16-130 and remand the causes for further
proceedings.
Reversed and remanded for
further proceedings.
Miller-Lerman, J., not participating.
Cassel, J., concurring.
In County of Sarpy v. City of Gretna, 1 a majority of this
court untethered certain municipalities 2 from the traditional
understanding of the statutory prohibition against annexation
1
County of Sarpy v. City of Gretna, ante p. 320, ___ N.W.2d ___ (2021).
2
See Neb. Rev. Stat. § 17-407(2) (Cum. Supp. 2020) (applicable to cities of
second class and villages located wholly or partially within county having
population greater than 100,000 but less than 250,000).
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DARLING INGREDIENTS v. CITY OF BELLEVUE
Cite as 309 Neb. 338of “agricultural lands which are rural in character.” 3 Although
I dissented from that decision, I recognize that it is now bind-
ing precedent. 4
The statutory language applicable here governing certain
other cities 5 is in all relevant respects identical to the statute
in City of Gretna. 6 Unsurprisingly, the court’s language here
follows that precedent. At least, in the instant case, the tracts
at issue were essentially surrounded by properties which might
reasonably be characterized as urban or suburban in character.
But this court’s path rewards municipal overreach in a race
to extend boundaries to capture future growth in Sarpy County.
This court should not be “shocked” 7 at the wave of preemptive
annexations likely to follow.
3
See Neb. Rev. Stat. § 16-117 (Cum. Supp. 2020). Accord, County of Sarpy
v. City of Papillion, 277 Neb. 829, 765 N.W.2d 456 (2009); Wagner v. City
of Omaha, 156 Neb. 163, 55 N.W.2d 490 (1952).
4
See, e.g., State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932
N.W.2d 692 (2019).
5
See Neb. Rev. Stat. § 16-130(2) (Cum. Supp. 2020) (applicable to cities
of first class located wholly or partially within county having population
greater than 100,000 but less than 250,000).
6
See, City of Gretna, supra note 1; § 17-407(2).
7
See Casablanca (Warner Bros. 1942).