Landrum v. City of Omaha Planning Bd. , 297 Neb. 165 ( 2017 )

Nebraska Supreme Court Online Library
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
LANDRUM v. CITY OF OMAHA PLANNING BD.
Cite as 297 Neb. 165
M atthew Landrum et al., appellants and cross-appellees,
v. City of Omaha Planning Board et al.,
appellees and cross-appellants, and
Daryl Leise et al., appellees.
___ N.W.2d ___
Filed July 14, 2017. No. S-16-383.
1. Ordinances: Appeal and Error. Interpretation of a municipal ordi-
nance is a question of law on which an appellate court reaches an
independent conclusion irrespective of the determination made by the
court below.
2. Administrative Law: Appeal and Error. In reviewing a decision based
on a petition in error, an appellate court determines whether the inferior
tribunal acted within its jurisdiction and whether the inferior tribunal’s
decision is supported by sufficient relevant evidence.
3. Standing: Words and Phrases. Standing is the legal or equitable right,
title, or interest in the subject matter of the controversy.
4. Jurisdiction: Standing. The requirement of standing is fundamental to
a court’s exercise of jurisdiction, and either a litigant or a court before
which a case is pending can raise the question of standing at any time
during the proceeding.
5. Standing: Zoning. It is generally held that an adjacent landowner has
standing to object to the rezoning of property if such landowner shows
some special injury separate from a general injury to the public.
6. Municipal Corporations: Actions: Appeal and Error. An appeal or
error proceeding does not lie from a purely legislative act by a public
body to which legislative power has been delegated, and the only rem-
edy in such cases is by collateral attack, that is, by injunction or other
suitable action.
7. Municipal Corporations: Ordinances: Zoning. A zoning ordinance
constitutes the exercise of a governmental and legislative function, and
a city council adopting a rezoning ordinance which amends a general
zoning ordinance acts in a legislative capacity.
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8. Jurisdiction: Appeal and Error. When a trial court lacks the power,
that is, jurisdiction, to adjudicate the merits of a claim, the Supreme
Court also lacks power to adjudicate the merits of the claim.
9. Standing: Jurisdiction: Proof. A party invoking a tribunal’s jurisdic-
tion has the burden to establish the elements of standing.
10. Appeal and Error. An issue not presented to the trial court may not be
raised on appeal.
11. Administrative Law: Evidence: Appeal and Error. The reviewing
court is restricted to the record before the administrative agency and
does not reweigh evidence or make independent findings of fact, and
the evidence is sufficient to support an administrative agency’s decision
if the agency could reasonably find the facts as it did based on the testi-
mony and exhibits contained in the record.
12. Administrative Law: Due Process: Jurisdiction: Notice: Evidence:
Appeal and Error. A court reviewing an order of an administrative
agency must determine whether there has been due process of law; and
this includes an inquiry into the jurisdiction of the agency, whether there
was reasonable notice and an opportunity for fair hearing, and whether
the finding was supported by evidence.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed in part, and in part vacated
and dismissed.
Rex J. Moats and Margaret A. McDevitt, of Moats Law
Firm, P.C., L.L.O., for appellants.
Russell S. Daub for appellees Daryl Leise et al.
Alan M. Thelen, Deputy Omaha City Attorney, for appellees
City of Omaha Planning Board et al.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
K elch, J.
I. INTRODUCTION
Matthew Landrum, Shandra Landrum, Rex Moats, Diane
Moats, Edward Malesa, and Valerie Malesa (Homeowners)
appeal the order of the district court for Douglas County that
dismissed their amended petition in error. The Homeowners
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LANDRUM v. CITY OF OMAHA PLANNING BD.
Cite as 297 Neb. 165
sought to challenge a conditional use permit issued by the
Omaha Planning Board (Planning Board) and a special use
permit and rezoning granted by the Omaha City Council (City
Council). The City of Omaha (City), the Planning Board, and
the City Council cross-appeal, arguing that the Homeowners’
petition in error was untimely and that the district court lacked
subject matter jurisdiction. We dismiss for lack of jurisdiction
that portion of the Homeowners’ appeal concerning rezoning
and a special use permit, and we vacate the corresponding
portion of the district court’s order. However, because the
Planning Board acted within its jurisdiction, based its find-
ings on sufficient evidence, and afforded the Homeowners due
process, we affirm the district court’s order in regard to the
conditional use permit.
II. BACKGROUND
1. Procedural Background
This appeal arises from permits and rezoning granted to
Daryl Leise; Redbird Group, LLC; and Ray Anderson, Inc.
(collectively the Developers), for a proposed convenience stor-
age and warehouse facility to be constructed on real estate in
the Omaha area (subject property). Ray Anderson, Inc., is the
current owner of the subject property.
The City carries out its zoning powers through the enact-
ment and enforcement of its zoning code, Omaha Municipal
Code, chapter 55.
The Omaha Municipal Code designates various base zoning
districts, including a “community commercial” (CC) district,
which is the designation of the subject property. Omaha Mun.
Code, ch. 55, art. VIII, § 55-362 (1980). Further, the code
provides for a special “overlay district” that can be “over-
laid” upon a property in addition to its base zoning district.
Omaha Mun. Code, ch. 55, art. XI, § 55-682 (2007). One
type of overlay district is the “major commercial corridor”
(MCC) district, for which Leise applied in this case. See id.
The zoning regulations enumerate various use types. For the
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LANDRUM v. CITY OF OMAHA PLANNING BD.
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subject property, Leise sought the use types “[w]arehousing
and distribution (limited),” see Omaha Mun. Code, ch. 55, art.
III, § 55-49(h) (1980) (emphasis omitted), and “[c]onvenience
storage,” see Omaha Mun. Code, ch. 55, art. III, § 55-45(m)
(2007) (emphasis omitted). The “[w]arehousing and distribu-
tion (limited)” use type is allowed subject to approval of a
conditional use permit. Omaha Mun. Code, ch. 55, art. VIII,
§ 55-364(e) (2008). Similarly, a special use permit is required
for convenience storage in the CC district. Omaha Mun. Code,
ch. 55, art. VIII, § 55-365(c) (2008).
As noted above, Leise sought to place the subject property
into the MCC overlay district while maintaining the base
CC zoning district. Buildings built within the MCC overlay
district are subject to certain urban design rules. See Omaha
Mun. Code, ch. 55, art. XI, §§ 55-682 through 55-687 (2007),
and Omaha Mun. Code, ch. 55, art. XXII, §§ 55-927 through
55-936 (2007). These urban design rules provide for enhanced
regulation of screening, parking, site and building access, land-
scaping, and general building design guidelines. Id.
In sum, to proceed with the proposed project, the Omaha
Municipal Code required three zoning approvals from the
City: a conditional use permit, which could be issued by
the Planning Board; a special use permit, which could be
granted by the City Council after a recommendation by the
Planning Board; and a rezoning, which could be granted by
the City Council after a recommendation by the Planning
Board, to place the subject property within the MCC overlay
district. See Omaha Mun. Code, ch. 55, art. XX, § 55-883(h)
and (k) (2008), § 55-884(g)(3) (2008), and § 55-886(f) and
(g) (1980).
2. Municipal Proceedings
The subject property is a 4.75-acre vacant lot at the north-
east corner of 204th Street (Highway 31) and Farnam Street,
located near a residential area. Leise’s statement of proposed
use and plans for the subject property anticipated constructing
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LANDRUM v. CITY OF OMAHA PLANNING BD.
Cite as 297 Neb. 165
a three-story storage building, resembling an office building,
with internal storage spaces. Leise also proposed construct-
ing five single-story storage buildings with garage-type stalls.
The storage facilities would contain 700 storage spaces for
rental to customers, with estimated visits of two or three cars
per hour.
Leise submitted a proposed concept design to the City’s
planning department. The concept design, dated February 17,
2015, provided preliminary specifications to demonstrate com-
pliance with site development, landscaping, and buffer require-
ments for a CC property.
After reviewing the proposed concept design, the plan-
ning department issued a responsive letter, dated February 27,
2015. The planning department summarized the proposed proj-
ect’s classification and permit requirements under the Omaha
Municipal Code.
The planning department scheduled the matter for a May
6, 2015, hearing before the Planning Board. On March 20,
the planning department issued the following notice via a
letter to residents near the proposed project site: “NOTICE
OF REQUEST FOR: Approval of a Special Use Permit to
allow Convenience storage and a Conditional Use Permit
to allow Warehousing and distribution (limited) in a
CC-Community Commercial District, with approval of an
MCC-Major Commercial Corridor Overlay District.” The
notice further invited any interested persons to hear and
comment on the proposal, which was on file at the planning
department, and provided details about the approval proce-
dure and hearing.
On April 6, 2015, Leise submitted a planning department
zoning application form. The application form allowed the
applicant to check boxes to select a special use permit, a con-
ditional use permit, and “Other.” Leise’s application selected
a special use permit and “Other,” specifying “Adopt MCC
Overlay District,” but a conditional use permit was not selected.
The application form provided basic factual information,
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LANDRUM v. CITY OF OMAHA PLANNING BD.
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including the address and legal description of the subject
property, its owner, the applicant, a contact person, and infor-
mation on proposed building, parking, and landscaping. Leise
incorrectly identified the property owner as “Ray Anderson
c/o Anderson Food Shops,” rather than “Ray Anderson, Inc.”
Leise listed himself as the applicant and contact person. There
were illegible signatures on the lines designated for “Owner’s
Signature” and “Applicant Signature.” Under the applicant’s
signature, the form states, “(If not the property owner, the
applicant certificates [sic] with this signature to be the autho-
rized agent of the property owner.)”
On April 29, 2015, the planning department issued a rec-
ommendation report that analyzed the proposed project in
light of applicable portions of the Omaha Municipal Code.
The report noted that the adjacent land use was primarily
residential. It stated that before the City annexed the subject
property and converted it to a CC district, it was originally
zoned “C-3 Highway Commercial” by the City of Elkhorn,
a designation which allowed warehousing and distribution as
a permitted use. The report noted that conditionally, Leise’s
permit request was in substantial conformance with “the zon-
ing ordinance” and the City’s master plan. The report further
evaluated the proposed uses pursuant to specific portions of
Omaha Mun. Code, ch. 55, art. XX, § 55-885 (2008), which
sets forth criteria for the review and evaluation of applications
for conditional use permits and special use permits. It deduced
that the proposed uses would comply with those criteria and
that the economic impact on surrounding properties would
be acceptable. The report recommended (1) approval of “the
MCC-Major Commercial Overlay District,” (2) approval of the
special use permit to allow convenience storage in “a CC-MCC
District” subject to plan revisions for compliance with zoning
regulations, and (3) approval of the conditional use permit to
allow “Warehousing and distribution (limited) in a CC-MCC
District,” subject to plan revisions for compliance with zon-
ing regulations.
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LANDRUM v. CITY OF OMAHA PLANNING BD.
Cite as 297 Neb. 165
On May 5, 2015, residents near the subject property sub-
mitted to the Planning Board a “Petition” with 52 signatures,
expressing opposition to the proposed project. Residents also
submitted letters and email messages detailing the reasons
for their opposition, which included safety risks, lack of suf-
ficient buffer space from adjacent homes, increased risk of
crime, excessive light from the development, lack of conti-
nuity with the adjacent homes, and adverse effects on prop-
erty values.
The Planning Board held a public hearing on Leise’s
requests on May 6, 2015. Leise appeared and described the
proposal. Several neighborhood opponents also spoke, includ-
ing one of the Homeowners. Opponents generally expressed
that they were not yet familiar with the plan. They opined that
the structure would not “fit” with the nearby residential neigh-
borhoods and may contribute to crime and obstruct views. A
real estate broker with 14 years’ experience and others stated
that the structure would be detrimental to the neighboring
residents’ property values. Other concerns included lighting,
safety, and compliance with the City’s master plan. Some
opponents stated that they had not been personally informed
about the project and that they felt they had been “ambushed.”
Another complained that some residents near the proposed
project site did not receive the notice of hearing from the
Planning Board. The Planning Board laid over the case to
allow Leise and the neighboring residents to meet and discuss
the issues.
Leise submitted revised plans, and the City’s planning
department issued a revised recommendation report on July
29, 2015. The revised recommendation report found that the
revised plans “addressed most of the conditions listed in the
previous recommendation report.” The report noted that the
Developers needed to provide a floor plan for the indoor stor-
age facility. Like the previous report, it provided a written
analysis of the project in light of § 55-885 and concluded that
other than a few conditions to address, “the proposed uses
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LANDRUM v. CITY OF OMAHA PLANNING BD.
Cite as 297 Neb. 165
will comply with all the applicable base district development
standards and [are] consistent with the criteria in Section
55-885.” The planning department added that “[t]he proposed
uses are consistent with and carry out the goals and objectives
of the City[’s] Master Plan.”
On August 5, 2015, the Planning Board conducted another
hearing. The planning department again issued a notice let-
ter regarding the proposed conditional use permit, special use
permit, and rezoning. At the hearing, the Developers’ attorney
addressed issues including tree buffers, the “upgraded design,”
topography, compliance with size regulations, views from the
exterior, security issues, and fencing and buffering. He also
noted the meetings and contacts between Leise and the resi-
dential neighbors.
At the August 5, 2015, hearing, neighbors again expressed
concerns about views from the exterior, lighting, the City’s
master plan, compatibility with the neighborhood, and safety.
One of the Homeowners implied that demographically, owners
of nearby starter homes valued at about $125,000 would be
more likely to use the storage facility than homeowners like
him with large homes valued at $400,000. Following these
remarks, a board member advised the Homeowner and others
present to be “very careful about generalizing about people.”
The Homeowner reiterated:
The point I’m trying to make here is that it is a dif-
ferent type of housing in this neighborhood that would
be next to that type of facility. It is not $125,000 homes,
it is not whatever they are for trailer homes. These are
houses that are valued between 300,000 and $400,000.
Later in the hearing, another board member referred to pre-
meeting discussions, stating, “[I]t was socioeconomic impact
discussion that really sort of floored me because it dealt with
the income levels of people who will be using this type of
storage facility.” He also alluded to the Homeowner’s com-
ments and said:
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LANDRUM v. CITY OF OMAHA PLANNING BD.
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[T]hat’s offensive to me, okay? It’s offenses [sic] to have
that type of discussion about the construction of a stor-
age facility.
I’m convinced that if we took the same structure that
[Leise] wants to build and put something else on the
inside of it, we wouldn’t get this argument because it
wouldn’t be a storage facility . . . .
Immediately following the hearing, the Planning Board
voted in favor of the conditional use permit, special use per-
mit, and MCC overlay rezoning. Thus, the conditional use
permit was approved, subject to conditions, and the special use
permit and rezoning were forwarded to the City Council for
final action.
On September 29, 2015, the City Council held a public
hearing on the special use permit and rezoning, designated
as separate agenda items. Prior to the hearing before the City
Council, nearby residents submitted to the City Council an
“Opposition Document” detailing their concerns about the pro-
posed project. Two hundred ninety-two neighboring residents,
including at least three of the Homeowners, signed “petitions”
that accompanied the opposition document. The opposition
document was later filed in the City clerk’s office. At the hear-
ing, the Developers’ attorney again spoke. In addition, some
neighbors voiced concerns similar to those discussed at previ-
ous hearings. The City Council voted to lay over the case for
3 weeks.
On October 20, 2015, the City Council held another hear-
ing. The Developers’ attorney stated that in response to the
neighbors’ concerns, the Developers had further revised the
plan, adding seven features which the Developers listed in
a letter to the City Council. The seven features pertained to
enhanced landscaping and finishes to improve the appear-
ance of the proposed development. At the hearing, the
Developers’ attorney reported that one of the homeowners’
associations that had formerly objected to the project had now
approved it.
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LANDRUM v. CITY OF OMAHA PLANNING BD.
Cite as 297 Neb. 165
The Homeowners’ representative stated at the hearing that
they had presented an “alternative design” to the Developers.
The Developers’ attorney responded that they had evaluated the
cost of the alternative design relative to the potential income
and concluded that it would be an “economic disaster.”
The City Council voted 5 to 2 to approve the MCC rezoning
and ultimately passed an ordinance to implement it. The City
Council also approved the special use permit by a vote of 5 to
2, subject to compliance with various regulations and condi-
tions, including the seven features listed in the Developers’
October 19, 2015, letter.
3. District Court Proceedings
On October 21, 2015, the Homeowners filed a petition
in error with the district court, seeking to challenge the
approvals of the conditional use permit, special use permit,
and rezoning.
On October 30, 2015, the Homeowners filed an application
for a temporary restraining order and temporary injunction in
district court. They sought to prevent the issuance of any per-
mits, the implementation of the MCC overlay district, and the
development of the subject property.
On November 2, 2015, the Homeowners filed an amended
petition in error. The Homeowners requested vacation or rever-
sal of (1) the Planning Board’s approval of the conditional
use permit, (2) the City Council’s passage of a resolution that
approved the special use permit, and (3) the City Council’s
passage of an ordinance implementing the MCC overlay dis-
trict. The Homeowners claimed that the decisions of the City
Council and the Planning Board were illegal, not supported by
the evidence, and thus arbitrary, unreasonable, clearly wrong,
and a violation of due process. Specifically regarding the spe-
cial use permit and the MCC overlay district, the Homeowners
alleged, among other things, that Leise had failed to provide
accurate information about the ownership of the subject prop-
erty or his authority to develop it.
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LANDRUM v. CITY OF OMAHA PLANNING BD.
Cite as 297 Neb. 165
On November 9, 2015, the Developers filed a motion to
dismiss the Homeowners’ amended petition in error. However,
on November 25, they withdrew the motion to dismiss and
filed a motion to affirm the special use permit, along with
the MCC overlay district. The Developers alleged that while
the Homeowners’ amended petition in error was pending, the
special use permit had been issued and the ordinance approv-
ing the MCC overlay district had been passed and signed by
the mayor. The Developers further averred that the City enti-
ties’ actions appeared to comply with the law and that the
Homeowners’ claims were not specific enough to meet their
burden of proving otherwise.
On December 1, 2015, the City Council, the Planning
Board, and the City filed an answer essentially denying the
allegations of the amended petition in error. They affirma-
tively alleged that the Homeowners lacked standing, that the
district court lacked subject matter jurisdiction over some
or all of the claims, that the Homeowners made an untimely
challenge of the conditional use permit, and that the City’s
rezoning of the subject property was not reviewable by an
error proceeding.
On February 17, 2016, the district court held a hearing on
the amended petition in error and received the administrative
record, including chapter 55 of the Omaha Municipal Code. On
that date, the district court also determined that it did not have
subject matter jurisdiction over the application for a temporary
restraining order and temporary injunction.
In an April 11, 2016, order, the district court affirmed the
determinations of the City Council and the Planning Board
and dismissed the amended petition in error with preju-
dice. The district court stated that after reviewing the evi-
dence, it found that the Planning Board and the City Council
acted within their jurisdiction and that their determinations
were supported by sufficient relevant evidence. This appeal
followed.
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LANDRUM v. CITY OF OMAHA PLANNING BD.
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III. ASSIGNMENTS OF ERROR
On direct appeal, the Homeowners assign that the district
court erred in (l) finding that the Planning Board acted within
its jurisdiction and had sufficient evidence to approve the
conditional use permit, (2) finding that the City Council had
jurisdiction and sufficient evidence to approve the special
use permit, (3) finding that the City Council acted within its
jurisdiction and had sufficient evidence to approve the MCC
rezoning, and (4) affirming the determinations of the Planning
Board and City Council, because the record showed that the
Planning Board and City Council did not act with due process
of law.
On cross-appeal, the City, the Planning Board, and the City
Council assign that the district court erred in (1) failing to rule
that the Homeowners’ petition in error was untimely as to the
conditional use permit, (2) failing to rule that the Homeowners
lacked standing as to the rezoning challenge and that the
district court thereby lacked subject matter jurisdiction, and
(3) failing to rule that the petition in error was an improper
remedy as to the rezoning, thereby precluding subject mat-
ter jurisdiction.
IV. STANDARD OF REVIEW
[1] Interpretation of a municipal ordinance is a question of
law, on which we reach an independent conclusion irrespec-
tive of the determination made by the court below. See State
ex rel. Parks v. Council of City of Omaha, 277 Neb. 919, 766
N.W.2d 134 (2009).
[2] In reviewing a decision based on a petition in error,
an appellate court determines whether the inferior tribunal
acted within its jurisdiction and whether the inferior tribunal’s
decision is supported by sufficient relevant evidence. Crown
Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d
294 (1997).
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V. ANALYSIS
1. Cross-A ppeal
We begin by addressing the cross-appeal of the City, the
Planning Board, and the City Council, because its resolution is
partially dipositive of the Homeowners’ direct appeal.
(a) Timeliness of Petition in Error
On cross-appeal, the City, the Planning Board, and the City
Council contend that the district court lacked subject mat-
ter jurisdiction because the Homeowners untimely filed their
petition in error more than 30 days after the Planning Board’s
decision to approve the conditional use permit.
Neb. Rev. Stat. §§ 25-1905 and 25-1931 (Reissue 2016)
govern proceedings in error and require that within 30 days
after the rendition of the final judgment or order sought to
be reversed, vacated, or modified, a petitioner in error must
file a petition and an appropriate transcript containing the
final judgment or order. See, Abdullah v. Nebraska Dept. of
Corr. Servs., 245 Neb. 545, 513 N.W.2d 877 (1994); Glup
v. City of Omaha, 222 Neb. 355, 383 N.W.2d 773 (1986).
Here, the Homeowners filed their petition in error with the
district court on October 21, 2015, unquestionably more than
30 days after the Planning Board approved the conditional
use permit on August 5. However, the Homeowners contend
that the Planning Board’s approval was not a final order.
We agree.
The Homeowners point to the Omaha Municipal Code,
which provides that “[a]pproval of a conditional use permit
by the planning board shall be effective five days after action,
unless associated with an application for rezoning or subdivi-
sion approval.” § 55-883(j). In this instance, the request for
the conditional use permit was associated with an application
for rezoning. Therefore, we apply § 55-883(c) of the Omaha
Municipal Code, which addresses concurrent applications.
Section 55-883(c) provides in part, “The official effective
date of a conditional use permit shall be the effective date
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of an ordinance approved by the city council implementing
rezoning of the site.” In this case, the conditional use permit
went into effect on October 20, 2015, when the City Council
passed the ordinance approving the amendment of the MCC
overlay district. On the same date, the conditional use permit
became a final order, and the Homeowners filed their peti-
tion in error on October 21, within 30 days of the final order.
See Neb. Rev. Stat. § 25-1902 (Reissue 2016) (defining final
order for purposes of review on petition in error). Therefore,
the district court had subject matter jurisdiction. See Neb.
Rev. Stat. § 25-1901 (Reissue 2016) (providing for district
court’s appellate jurisdiction over any “final order made by
any tribunal, board, or officer exercising judicial functions”)
and § 25-1931.
(b) Standing
Next, the City, the Planning Board, and the City Council
contend that the Homeowners failed to allege or prove any
special injury arising from the “imposition of the stricter
MCC overlay rules onto the subject property” and that there-
fore, they do not have standing. Brief for appellees on cross-
appeal at 39. The City, the Planning Board, and the City
Council point out that the MCC overlay district actually
is more restrictive to future development than the existing
commercial base district and provides the Homeowners with
added protection.
[3-5] Standing is the legal or equitable right, title, or inter-
est in the subject matter of the controversy. Smith v. City of
Papillion, 270 Neb. 607, 705 N.W.2d 584, 590 (2005). The
requirement of standing is fundamental to a court’s exercise
of jurisdiction, and either a litigant or a court before which a
case is pending can raise the question of standing at any time
during the proceeding. Id. It is generally held that an adjacent
landowner has standing to object to the rezoning of property
if such landowner shows some special injury separate from a
general injury to the public. See id.
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The Homeowners point out that since they live adjacent to
or within 300 feet of the proposed project, they have stand-
ing, like the property owners in Smith v. City of Papillion,
supra. There, we noted that Neb. Rev. Stat. § 19-905 (Reissue
1997) required notice to owners of property within 300 feet
of the proposed project in first-class cities such as Papillion
and that the property owners’ entitlement to such notice sup-
ported a finding of special injury. Here, the operative statute
in ­ metropolitan-class cities like Omaha is Neb. Rev. Stat.
§ 14-420 (Cum. Supp. 2016), which also requires notice to
owners of property within 300 feet of the proposed proj-
ect. See Neb. Rev. Stat. § 14-101 (Reissue 2012) (defining
­metropolitan-class cities). Thus, the Homeowners’ entitlement
to notice in this case tends to show the presence of a special
injury. Further, in Smith, we noted that the finding of spe-
cial injury was also supported by expert testimony that the
proposed project would diminish property values in the area.
We find similar evidence of a special injury in the instant
case, where a real estate broker with 14 years of experience
provided evidence to the Planning Board that the proposed
changes would cause an adverse impact on the neighboring
residents’ property values. Although contradictory evidence
was presented by way of the planning department report, the
Homeowners met their initial burden to show standing to chal-
lenge the proposed uses and rezoning.
(c) Jurisdiction
[6,7] Lastly, the City, the Planning Board, and the City
Council contend that the City Council’s decision on the appli-
cation for rezoning was a legislative function and, therefore,
not the proper subject of an error proceeding. Previously, we
have found that “an appeal or error proceeding does not lie
from a purely legislative act by a public body to which leg-
islative power has been delegated” and that “the only remedy
in such cases is by collateral attack, that is, by injunction or
other suitable action.” In re Application of Frank, 183 Neb.
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LANDRUM v. CITY OF OMAHA PLANNING BD.
Cite as 297 Neb. 165
722, 723, 164 N.W.2d 215, 216 (1969). We have held that a
zoning ordinance constitutes the exercise of a governmental
and legislative function and that a city council adopting a
rezoning ordinance which amends a general zoning ordinance
acts in a legislative capacity. Giger v. City of Omaha, 232
Neb. 676, 442 N.W.2d 182 (1989); Copple v. City of Lincoln,
210 Neb. 504, 315 N.W.2d 628 (1982); In re Application of
Frank, supra.
But as pointed out by the Homeowners, although the above-
cited cases preclude a petition in error following a legislative
act, none of them deals with a simultaneous rezoning and spe-
cial use permit. See, Giger v. City of Omaha, supra; Copple
v. City of Lincoln, supra; In re Application of Frank, supra.
Our case law does not address that situation. And the ques-
tion becomes whether the City Council acted legislatively or
judicially when faced with simultaneous requests for rezoning
and a special use permit.
The Homeowners contend that by conducting simultaneous
hearings on the special use permit and the rezoning, the City
Council acted judicially. They argue:
In deciding to include Leise’s convenience storage
and warehouse project within the MCC Overlay District,
the . . . City Council acted judicially and not legisla-
tively. The hearings on the amendment and the special
use permit were at the same time and date, had the same
participants and opponents and evidence, and utilized the
same hearing procedures.
Reply brief for appellants at 10.
To support their argument, the Homeowners cite McNally
v. City of Omaha, 273 Neb. 558, 731 N.W.2d 573 (2007), for
the proposition that when a tribunal is required to conduct a
hearing and receive evidence, it exercises a judicial function
in determining questions of fact. And under Neb. Rev. Stat.
§ 25-1903 (Reissue 2016), proceedings to obtain a reversal,
vacation, or modification of a final order made by any tri-
bunal, board, or officer exercising judicial functions shall be
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by a petition entitled “petition in error.” However, McNally
involved an administrative hearing before a building review
board and not a hearing before a city council. Further, we
noted in McNally that there was an adversarial hearing where
evidence had been presented by both sides and that the build-
ing review board exercised “‘judicial functions.’” 273 Neb. at
564, 731 N.W.2d at 580.
Where our case law has not explicitly stated whether a pro-
ceeding is quasi-judicial or legislative, the nature of the pro-
ceeding in question is a key factor in making that determina-
tion. For example, in In re Application of Olmer, 275 Neb. 852,
752 N.W.2d 124 (2008), we found that the county board acted
quasi-judicially in denying an application for a conditional use
permit; in so finding, we noted that the record included exhib-
its offered and received and a stipulated supplemental record
which included a deposition with attached exhibits.
Here, the record reflects that the special use permit and
rezoning applications proceeded at the same hearing pursuant
to separate agenda items. Further, the record does not show
that evidence was offered and received or that testimony was
offered. Rather, the Homeowners’ opposition document was
simply submitted to the City Council prior to the hearing and
later filed with the City clerk’s office. Several neighboring
residents, including some of the Homeowners, also presented
argument at the two City Council hearings. Although we rec-
ognize that various boards and councils do not function as
courts in the strict sense, parties cannot transform an other-
wise legislative proceeding into a quasi-judicial function or
establish a quasi-judicial record by simply presenting argu-
ments and handing documents to the presiding body. In light
of the nature of the proceedings at issue here, we conclude
that the City Council acted as a legislative body in granting
the rezoning request and in granting the special use per-
mit. Accordingly, a request for a permanent injunction, not
a petition in error, was the proper means to seek review of
both determinations.
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LANDRUM v. CITY OF OMAHA PLANNING BD.
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[8] Because the Homeowners filed a petition in error to
review both the rezoning and special use permit approvals by
the City Council, the district court did not have jurisdiction
to proceed on those issues, and as a result, neither does this
court. When a trial court lacks the power, that is, jurisdiction,
to adjudicate the merits of a claim, the Supreme Court also
lacks power to adjudicate the merits of the claim. Nebraska
State Bar Found. v. Lancaster Cty. Bd. of Equal., 237 Neb.
1, 465 N.W.2d 111 (1991). We therefore dismiss for lack of
jurisdiction that portion of the Homeowners’ appeal regarding
the City Council’s approval of the rezoning and the special use
permit. Consequently, we need not address the Homeowners’
assignments of error concerning the rezoning and the special
use permit. Johnson v. Nelson, 290 Neb. 703, 861 N.W.2d 705
(2015) (appellate court is not obligated to engage in analy-
sis that is not necessary to adjudicate case and controversy
before it).
2. Direct A ppeal
Our holding regarding the cross-appeal limits our consid-
eration of the Homeowners’ direct appeal to only the follow-
ing issues related to the conditional use permit: whether the
Planning Board acted within its jurisdiction, whether it had
sufficient evidence to approve the conditional use permit, and
whether it acted with due process of law.
(a) Jurisdiction
[9] The Homeowners claim that the district court erred in
finding that the Planning Board acted within its jurisdiction. In
reviewing a decision based upon a petition in error, an appel-
late court determines, among other things, whether the inferior
tribunal acted within its jurisdiction. See Crown Products
Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997).
A party invoking the tribunal’s jurisdiction has the burden to
establish the elements of standing. Field Club v. Zoning Bd. of
Appeals of Omaha, 283 Neb. 847, 814 N.W.2d 102 (2012). The
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Homeowners argue that Leise failed to show standing because
the application he submitted did not reflect that he was the
owner of the subject property or the agent of the owner and did
not specifically request a conditional use permit.
[10] Both sides agree that Leise failed to check the box
requesting a conditional use permit on the original applica-
tion. On the other hand, the City, the Planning Board, and the
City Council point out that the Homeowners allege Leise’s
seeking of a conditional use permit in their amended petition
in error and that the hearings were all advertised to reflect
that a conditional use permit was being considered. However,
the controlling issue here is that the Homeowners failed to
challenge, in their petition in error, Leise’s failure to check
the box requesting a conditional use permit on the original
application. An issue not presented to the trial court may
not be raised on appeal. V.C. v. Casady, 262 Neb. 714, 634
N.W.2d 798 (2001). Now, for the first time, the Homeowners
raise the issue of Leise’s failure to check the box requesting
a conditional use permit, and we cannot consider that portion
of their argument.
Similarly, the Homeowners now assert that Leise lacked
standing to obtain the conditional use permit because his
application did not demonstrate that he was the owner of
the subject property or the agent of the actual owner. They
argue that Leise failed to establish any agency relationship
when he incorrectly designated “Ray Anderson c/o Anderson
Food Shops” as the owner, rather than “Ray Anderson, Inc.”
However, the Homeowners did not raise this issue before the
district court in the context of the conditional use permit.
Instead, their amended petition in error alleged that because
Leise’s application failed to provide accurate information
about the ownership of the subject property or the authority
to develop it, the Planning Board and the City Council lacked
sufficient evidence to approve the special use permit and the
rezoning. As it pertains to the conditional use permit, then,
this issue was neither presented to nor passed upon by the
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district court, and the Homeowners cannot now raise it on
appeal. See id.
(b) Sufficiency of Evidence
[11] The Homeowners also argued to the district court and
now on appeal that the Planning Board had insufficient evi-
dence to approve the conditional use permit. In reviewing a
decision based on a petition in error, an appellate court deter-
mines whether the inferior tribunal acted within its jurisdic-
tion and whether the inferior tribunal’s decision is supported
by sufficient relevant evidence. Crown Products Co. v. City
of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997). Further, the
reviewing court is restricted to the record before the adminis-
trative agency and does not reweigh evidence or make inde-
pendent findings of fact, and the evidence is sufficient to sup-
port an administrative agency’s decision if the agency could
reasonably find the facts as it did based on the testimony and
exhibits contained in the record. Geringer v. City of Omaha,
237 Neb. 928, 468 N.W.2d 372 (1991).
In summary, the Homeowners argue that “[t]here was not
sufficient competent evidence for approval of the condi-
tional use permit for the industrial use of warehousing and
distribution (limited) given the unrebutted evidence regard-
ing lack of compatibility, adverse economic effects, and
safety concerns.” Brief for appellants at 30. Specifically,
the Homeowners maintain that the City, the Planning Board,
and the City Council failed to follow the criteria as set forth
in § 55-885. Section 55-885(a) does set forth the criteria
for review and evaluation for a conditional use permit. But
§ 55-885(b) further provides that “conditional use permits . . .
shall be reviewed in accordance with the relevant criteria,”
which means that the reviewing body need not consider each
listed standard. The record reflects that although the City, the
Planning Board, and the City Council did not consider each
factor within § 55-885, they gave due consideration to the
factors relevant in this case.
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LANDRUM v. CITY OF OMAHA PLANNING BD.
Cite as 297 Neb. 165
Additionally, the Homeowners argue that the affected resi-
dential areas are composed of single-family dwellings in
medium- to low-density neighborhoods and are not zoned to
include convenience storage or warehousing as conditional
or special uses. The Homeowners contend that the Planning
Board approved the conditional use permit for limited indus-
trial warehousing and distribution “without any consideration
of extensive public opposition to the project and the unrebutted
concerns regarding compatibility, adverse economic effects,
and safety concerns.” Brief for appellants at 29. Certainly,
opposition and concerns were raised.
On the other hand, the City’s planning department presented
a report to the Planning Board dated April 29, 2015, which
analyzed Leise’s application. That report acknowledged the
surrounding residential properties and that prior to the subject
property’s annexation by the City, warehousing and distribu-
tion were permitted uses for the subject property. It noted that
Leise’s permit request was in substantial conformance with
the zoning ordinance and the City’s master plan. Further, the
planning department’s report thoroughly analyzed the proposed
project in light of the relevant criteria of § 55-885 and con-
cluded that the economic impact on surrounding properties was
acceptable. In an updated report dated July 29, 2015, the plan-
ning department opined that Leise had essentially complied
with all requested changes to his proposal and recommended
approval of the conditional use permit, the special use permit,
and the rezoning, subject to certain conditions.
Although the Homeowners raised valid concerns, we can-
not find from the record that the Planning Board did not
evaluate the application using its own criteria as outlined in
§ 55-885 or that its decision was not supported by sufficient
relevant evidence.
(c) Due Process
Lastly, the Homeowners contend that they were not pro-
vided due process. They argue:
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The [Planning] Board did not provide the opportunity to
question . . . Leise or his counsel. Very little time was
provided to present opposition evidence and concerns to
the [Planning] Board. It was clear from the responses by
the majority of [Planning] Board members to concerned
citizens’ testimony at the May 6 . . . and August 5, 2015
public meetings that the [Planning] Board had already
decided in favor of . . . Leise’s plan.
Brief for appellants at 33. The Homeowners obviously believe
that the Planning Board did not sufficiently consider their
viewpoint.
However, the two portions of the record that the Homeowners
cite do not support their position. First, a Homeowner sug-
gested that the storage facility would be frequented by owners
of lower-end homes rather than owners of higher-end homes
such as his. In response, a board member cautioned him and
others present to be “very careful about generalizing about
people.” The Homeowners argue that this reflects that the
Planning Board was not an “impartial adjudicator . . . and in
effect became witnesses” for Leise. Brief for appellants at 32.
Certainly, the Homeowner who offered the suggestion had the
right to protect his property investment, which he believed
would be adversely affected by the proposed uses. However, a
Planning Board member’s redirecting the Homeowner’s com-
ments does not equate with partiality or becoming a witness.
Second, the Homeowners point to a portion of the record
wherein a Planning Board member expressed his concerns
about the Homeowners’ arguing against the project from a
socioeconomic standpoint. Again, we cannot find that those
concerns reflected either that the board member was not impar-
tial or that he had become a witness. Further, neither instance
shows that the Homeowners were not allowed to offer evi-
dence, were not allowed to offer their opinion, or attempted to
question Leise on the record.
[12] A court reviewing an order of an administrative agency
must determine whether there has been due process of law;
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and this includes an inquiry into the jurisdiction of the agency,
whether there was reasonable notice and an opportunity for
fair hearing, and whether the finding was supported by evi-
dence. Ashby v. Civil Serv. Comm., 241 Neb. 988, 492 N.W.2d
849 (1992). See, also, Crown Products Co. v. City of Ralston,
253 Neb. 1, 567 N.W.2d 294 (1997) (in proceedings before
administrative agency or tribunal, procedural due process
requires, among other things, opportunity to present evidence
and hearing before impartial board). As an appellate court
performing a review of the record for due process, we are
positioned not to judge the wisdom of the Planning Board’s
decision, but to ensure that an aggrieved party had the oppor-
tunity to be heard. The Homeowners had that opportunity.
Certainly, another board may have allowed more time than
allotted here, but the amount of time devoted is not as relevant
as the independence of the inquiry. In particular, for us to find
error, the record must reflect an actual bias rather than mere
disagreement. Based on our review of the record, we find that
the Homeowners were provided due process.
VI. CONCLUSION
For the aforementioned reasons, we dismiss for lack of
jurisdiction the portion of the Homeowners’ appeal address-
ing the rezoning and special use permit, and we further vacate
the district court’s order in that regard for lack of jurisdiction.
However, we affirm the district court’s order in regard to the
conditional use permit.
A ffirmed in part, and in part
vacated and dismissed.