Alderman v. County of Antelope , 11 Neb. Ct. App. 412 ( 2002 )

Inbody, Judge.

I. INTRODUCTION

John Alderman, Bobby Johnston, Randall Pedersen, and Hanging “L” Ranch, Inc., a Nebraska corporation (collectively the appellants), appeal the orders of the Antelope County District Court dismissing their petition requesting declaratory, injunctive, and other relief and denying their motion for new trial. The appellants had requested that the district court declare void the successive decisions of the Antelope County Board of Supervisors (Board) to issue conditional use permits to allow Todd teVelde and Chad teVelde, doing business as Summerhill Dairy, to expand the size of their dairy, which is located at the headwaters of the East Verdigre Creek, from 150 cows to 700 cows. The appellants further contend that the amount of attorney fees awarded by the district court to them was insufficient. For the reasons set forth herein, we affirm in part, in part reverse, and remand with directions.

II. STATEMENT OF FACTS

On June 11, 1999, Chad teVelde and Todd teVelde filed an application with the Board for a conditional use permit. The te Veldes sought to expand the size of their dairy operation from 150 cows to 700 cows and included with their application a proposal to build a 1.3-acre wastewater lagoon. The te Veldes’ Summerhill Dairy facility is located on the “SE 1/4 of Section 1-27-7, in Antelope County,” Nebraska, in the watershed of the East Verdigre Creek, a cold-water Class A stream. East Verdigre Creek is the only cold-water stream of its kind in the Nebraska Game and Parks Commission system, in that it is ideal for raising trout. East Verdigre Creek serves as a water supply to the Grove trout rearing station and Grove Lake, which are located within the Grove Lake wildlife management area. Forty percent of the trout stocked in Nebraska’s waterways are raised at this trout rearing station located on the creek.

On August 10, 1999, the Board granted a request by the te Veldes for a loan in the amount of $158,000 to be used for the purpose of constructing two bams and an earthen lagoon waste facility on the above-described property. On August 24, a public meeting was held at which the Antelope County Planning Commission (Planning Commission) considered the teVeldes’ application for a conditional use permit. Although it was brought to the Planning Commission’s attention that public notice of the meeting was defective and the meeting was officially continued until September 7, the Planning Commission allowed persons present to give opinions, both pro and con, regarding the proposed Summerhill Dairy expansion.

Between the conclusion of the Planning Commission’s August 24, 1999, meeting and the scheduled September 7 meeting, Mark Smith, chairperson of the Planning Commission, and Todd te Velde discussed arranging a tour of a facility similar to that of the proposed dairy expansion or finding another way to acquire knowledge on the waste handling facility issue. Todd te Velde and Smith agreed to have Rick Koelsch, a livestock environmental engineer with the University of Nebraska, come to the Summerhill Dairy to “address the concerns that the board had from all the opposition that we heard.” This meeting was held on August 31 at the Summerhill Dairy and was attended by seven of the nine members of the Planning Commission and five of the seven members of the Board. No notice of this meeting was published, and the public was not otherwise notified of this meeting.

On September 7, 1999, the Planning Commission resumed its meeting which had been continued from August 24. After the close of public comment, the Planning Commission voted six to two to recommend that the Board grant the teVeldes’ application. The Board held its public hearing on September 14. Following public comment, the Board approved the teVeldes’ conditional use application.

On September 28,1999, the appellants filed their original petition against Antelope County, the Board, the Planning Commission, and the teVeldes. The appellants sought equitable relief from the district court based upon proceedings of the Board and Planning Commission which they contended deprived them of due process of law, violated the Nebraska public meetings law, and violated Antelope County zoning regulations.

On October 1, 1999, the appellants filed a motion for preliminary injunction, seeking to prevent the teVeldes from taking any action pursuant to the initial conditional use permit. Following an evidentiary hearing on the motion, the district court filed an order on November 17, finding that the August 31 meeting at the Summerhill Dairy violated the public meetings law and that it was thus “clear that the conditional use permit should be declared void.” The district court temporarily enjoined Antelope County, the Board, the Planning Commission, and the teVeldes (hereinafter collectively the appellees) from recognizing the September 1999 conditional use permit as valid and temporarily enjoined the teVeldes “from taking any action to expand their existing dairy from 150 cows to 700 cows, until further order of this Court.”

On November 18, 1999, 2 days after the district court issued the temporary injunction, the teVeldes filed a second application for a conditional use permit with the Board. On November 23, the teVeldes filed a motion requesting permission from the district court to file a new application for a conditional use permit with the Board. On January 6, 2000, the court granted the teVeldes leave to reapply to the Board.

On January 24, 2000, the Planning Commission held a public meeting to consider the teVeldes’ second conditional use application. After the appellants’ representative at the public meeting pointed out fatal deficiencies in the second application, the hearing was adjourned, no evidence was received, and no action was taken by the Planning Commission. Subsequently, on February 3, the teVeldes caused their limited liability company, Royal View Ranch L.L.C., to file a third application with the Board for a conditional use permit.

On February 15 and 16, 2000, the Planning Commission held a public hearing to consider the third te Velde conditional use application. Following public comment, the Planning Commission voted seven to two to recommend approval of this application to the Board. On March 7, following a public hearing, the Board granted the te Veldes’ third application, authorizing them to expand their dairy from 150 to 700 cows.

On June 1, 2000, the appellants received leave from the district court to file an amended petition to raise claims based on post-temporary injunction events. The amended petition restated the claims set forth in the original petition and sought additional equitable relief from the district court based upon proceedings of the Board and Planning Commission in February and March 2000 which they contend deprived them of due process of law, violated the Nebraska public meetings law, violated Antelope County zoning regulations, and were contrary to the public interest.

Trial in this matter was held on October 30 and 31, November 10, and December 8, 2000. At trial, Planning Commission member Phyllis Perdew testified as follows during her cross-examination:

Q. Ma’am, if I understand your testimony correctly, is it your testimony that you didn’t need to review all the information that was submitted at the February 15, 2000 meeting because it was — a lot of it was the same information that had been before the Planning Commission back on September 7th of 1999?

A. That’s right, sir.

Q. And if I understand your testimony in this case correctly, ma’am, you originally were opposed to the teVeldes’ application back in August of 1999; is that correct?

A. Yes.

Q. . . . And I believe you testified at the temporary injunction hearing before this court in October of 1999 that you changed your mind once the Nebraska Game and Parks Commission apparently indicated, at that point back in the fall of ’99, that they were not going to object, right?

A. That was part of it, yes.

Q. What was the other part?

A. Well, all the information that we gathered and all the testimony that people gave us.

Q. Some of the information you gathered was at the August 31, 1999 meeting at the [Summerhill Dairy]?

A. Yes, sir.

Additionally, although Planning Commission member Terry Erb testified that he “didn’t figure [that he] was supposed to use any information [he] got from [the illegal] meeting,” he also admitted that he was “not sure” whether he considered information obtained at the illegal meeting and that he may have considered the information “[t]o some extent.” Further, Board chairperson Jan Curtis testified that the Board members rely upon the findings and recommendations of the Planning Commission in deciding whether to grant a conditional use permit. Board member Steven Rix testified that in making his decision to vote for the te Veldes’ application, he “relied pretty heavily” on the findings and recommendations of the Planning Commission as they are reported to the Board.

On December 18, 2000, the district court, in considering the meetings held by the Board and Planning Commission in September 1999, stated:

The first four claims for relief center about action taken by the alleged illegal joint meeting of the County Board and Planning Commission on August 31, 1999. Such a meeting did in fact take place without the required compliance with the Nebraska Public Meetings Law. This Court entered a temporary injunction enjoining [the te Veldes] from proceeding further without prior permission of this Court. The [teVeldes] thereafter sought and received permission from this Court to proceed with a new application for a special use permit. This action by this Court makes the [appellees’] first four claims for relief moot.

With regard to the meetings held by the Board and Planning Commission in February and March 2000, the district court found that these meetings satisfied the public meetings law and that “[t]he public was given proper notice and was allowed to comment. The members of each body carefully and thoughtfully reviewed the evidence received at the respective public hearings and made their decisions solely on that evidence.” The court further found that these meetings did not violate due process and that the issuance of the second permit to the te Veldes was not contrary to the public interest. Thus, the court ordered the amended petition dismissed with prejudice and vacated the temporary injunction previously issued by the court.

On December 28, 2000, the appellants filed a motion for new trial and a motion for an award of attorney fees and expenses. On February 12, 2001, the district court denied the motion for new trial and granted, in part, the appellants’ motion for attorney fees. Specifically, the court granted the appellants attorney fees and expenses of $6,216.87, which the court calculated as follows: three attorneys, 20 hours each at $130, $80, and $95 (as per the requested rates set forth in the corresponding affidavits), plus mileage of 377 miles at 31 cents per mile (the then existing state rate). The court specifically stated that the hours allotted to each attorney include support staff and office expenses. The appellants have timely appealed to this court.

III. ASSIGNMENTS OF ERROR

Summarized and restated, the appellants’ assigned errors on appeal are as follows: (1) With regard to the September 1999 grant of the te Veldes’ application for a conditional use permit, the district court erred in dismissing as moot the appellants’ public meetings law claim, civil rights claim, zoning regulations claim, and claim that issuance of the permit was contrary to the public interest; (2) with regard to the March 2000 grant of the te Veldes’ application for a conditional use permit, the district court erred in dismissing as moot the appellants’ public meetings law claim, civil rights claim, zoning regulations claim, and claim that issuance of the permit was contrary to the public interest; and (3) the trial court erred in failing to award $32,669 in attorney fees and expenses incurred by the appellants.

IV. STANDARD OF REVIEW

Actions for relief under the public meetings laws are both tried by the trial court and reviewed by appellate courts as equitable cases, given that the relief sought is in the nature of a declaration that action taken in violation of the laws is void or voidable. Hansmeyer v. Nebraska Pub. Power Dist., 6 Neb. App. 889, 578 N.W.2d 476 (1998). See, Otey v. State, 240 Neb. 813, 485 N.W.2d 153 (1992); Meyer v. Board of Regents, 1 Neb. App. 893, 510 N.W.2d 450 (1993).

On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court. Burlington Northern Santa Fe Ry. Co. v. Chaulk, 262 Neb. 235, 631 N.W.2d 131 (2001); White v. Board of Regents, 260 Neb. 26, 614 N.W.2d 330 (2000).

In reviewing a decision of the district court regarding a zoning appeal, the standard of review is whether the district court abused its discretion or made an error of law. Where competent evidence supports the district court’s factual findings, an appellate court will not substitute its factual findings for those of the district court. Eastroads v. Omaha Zoning Bd. of Appeals, 261 Neb. 969, 628 N.W.2d 677 (2001); Fitzke v. City of Hastings, 255 Neb. 46, 582 N.W.2d 301 (1998).

V. ANALYSIS

1. Alleged Errors Relating to teVeldes’ Initial Application Approved on September 14, 1999

The appellants’ first assignment of error is that the trial court erred in dismissing as moot their claims relating to the initial conditional use permit granted by the Board on September 14, 1999. The appellants alleged violations of public meetings law, due process, and Antelope County zoning regulations and also claimed that the Board’s grant of the teVeldes’ request for a conditional use permit was contrary to the public interest. They sought the following relief: an order declaring the action of the Board in granting the initial te Velde application to be void and of no legal effect, a permanent injunction preventing the appellees from taking any action to implement the initial te Velde conditional use permit, an award of reasonable attorney fees and costs, and such additional relief as the district court deemed just and proper.

A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of litigation. Green v. Lore, 263 Neb. 496, 640 N.W.2d 673 (2002); Putnam v. Fortenberry, 256 Neb. 266, 589 N.W.2d 838 (1999). A moot case is one which seeks to determine a question which does not rest upon existing facts or rights, in which the issues presented are no longer alive. State ex rel. Lamm v. Nebraska Bd. of Pardons, 260 Neb. 1000, 620 N.W.2d 763 (2001).

The district court’s November 17, 1999, order granted the appellants’ requested relief in that the court declared void the Board’s September 14 grant of the te Velde’s request for a conditional use permit and issued a temporary injunction prohibiting the appellees from recognizing the September 1999 conditional use permit as valid and the te Veldes from taking any action to expand their existing dairy until further court order.

Furthermore, because the te Veldes, and their limited liability company, Royal View Ranch L.L.C., have filed subsequent permit applications with the permission of the court, their initial application is no longer viable; thus, the appellants’ claims relating to the te Veldes’ first application do not rest upon existing facts. This renders these claims moot, with the exception of the appellants’ claim regarding the inadequacy of attorney fees granted by the district court pursuant to the Nebraska public meetings law, which claim we address later in this opinion. See Neb. Rev. Stat. § 84-1414(3) (Reissue 1999) (plaintiff who has successfully brought lawsuit claiming violation of Nebraska public meetings law may be awarded reasonable attorney fees and court costs). Thus, the court properly considered the appellants’ claim for attorney fees pursuant to the public meetings law and properly dismissed the appellants’ remaining claims relating to the September 1999 grant of a conditional use permit as moot.

2. Alleged Errors Relating to teVeldes’ Application Granted in March 2000

The appellants’ second assignment of error is that the trial court erred in dismissing their claims relating to the March 2000 grant of the second conditional use permit. The appellants alleged violations of public meetings law, due process, and zoning regulations and that the court erred in failing to find that the Board’s grant of the te Veldes’ request for a conditional use permit was contrary to the public interest.

(a) Public Meetings Law

We first address whether the district court erred in dismissing the appellants’ public meetings law claim relating to the March 2000 grant of a conditional use permit to the te Veldes.

The declaration of intent of the Nebraska public meetings law provides, in part:

It is hereby declared to be the policy of this state that the formation of public policy is public business and may not be conducted in secret.

Every meeting of a public body shall be open to the public in order that citizens may exercise their democratic privilege of attending and speaking at meetings of public bodies

Neb. Rev. Stat. § 84-1408 (Reissue 1999). The public meetings laws are to be broadly interpreted and liberally construed to obtain the objective of openness in favor of the public. Grein v. Board of Education, 216 Neb. 158, 343 N.W.2d 718 (1984); Hansmeyer v. Nebraska Pub. Power Dist., 6 Neb. App. 889, 578 N.W.2d 476 (1998).

The district court denied the appellants’ public meetings law claim regarding the March 2000 approval of the te Veldes’ application for a conditional use permit, finding, “The public was given proper notice and was allowed to comment. The members of each body carefully and thoughtfully reviewed the evidence received at the respective public hearings and made their decisions solely on that evidence.”

We have conducted a de novo review of the evidence, as we are required to do, and the evidence establishes that two Planning Commission members testified at trial that they considered evidence presented at the August 31,1999, illegal meeting in deciding to vote to recommend granting the te Veldes’ application for a conditional use permit. Planning Commission member Perdew testified that in deciding to vote affirmatively for the te Veldes’ application at the Planning Commission hearing held on February 15 and 16, 2000, she considered “all the information that we gathered and all the testimony that people gave us,” which included information gathered at the August 31, 1999, meeting at the Summerhill Dairy. Further, although Planning Commission member Erb testified that he “didn’t figure [that he] was supposed to use any information [he] got from [the illegal] meeting,” he also admitted that he was “not sure” whether he considered information obtained at the illegal meeting and that he may have considered the information “[t]o some extent.”

Compounding this error is testimony by Board chairperson Curtis, who testified that the Board members rely upon the findings and recommendations of the Planning Commission in deciding whether to grant a conditional use permit. Furthermore, Board member Rix testified that in making his decision to vote for the te Veldes’ application, he “relied pretty heavily” on the findings and recommendations of the Planning Commission as they are reported to the Board.

It is unthinkable that after a court has voided a board’s action after determining that a meeting was held in violation of the public meetings law, the law would still allow members of that board to consider information obtained at that illegal meeting. To do so would completely contradict the stated intent of the public meetings law, which is to ensure that the formation of public policy is public business, not conducted in secret, and to allow citizens to exercise their democratic privilege of attending and speaking at meetings of public bodies. We simply do not know the content and extent of the information that was presented at the illegal meeting. Furthermore, official reports of closed meetings, “ ‘even if issued, will seldom furnish a complete summary of the discussion leading to a particular course of action. . . .’” Grein v. Board of Education, 216 Neb. 158, 164, 343 N.W.2d 718, 722 (1984).

To allow board members to consider information obtained at a meeting that has been judicially determined to be in violation of the public meetings law would allow those board members to consider information that has not been brought before the public and thus would deprive citizens of both hearing said information and speaking either for or against it. Thus, we hold that once a meeting has been declared void pursuant to Nebraska’s public meetings law, board members are prohibited from considering any information obtained at the illegal meeting. Consequently, having determined that information obtained at the illegal meeting in the case at hand was considered by two Planning Commission members, we have no choice but to declare void the actions taken by the Planning Commission at the February 15 and 16, 2000, meeting and by the Board at the subsequent March 7 meeting.

Furthermore, because the invalidity of the Planning Commission’s and Board’s actions taken on the teVeldes’ third application cannot be cured, this matter is remanded to the district court with instructions to enter an order permanently enjoining the teVeldes from proceeding upon the grant of their third application for a conditional use permit.

(b) Remaining Claims

The appellants also claim that the district court erred in dismissing their due process claim relating to the Board’s March 2000 grant of a conditional use permit to the teVeldes and in failing to find that that grant violated Antelope County zoning regulations and was contrary to the public interest.

Because we have determined that the March 2000 grant of the teVeldes’ request for a conditional use permit was void, a determination of this assigned error is not necessary, as the appellants have already received their requested relief. An appellate court is not obligated to engage in an analysis which is not necessary to adjudicate the case and controversy before it. Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994).

Furthermore, to the extent that the appellants’ claims requested monetary damages, the evidence at trial was insufficient to prove monetary damages sustained by the appellants. Damages, like any other element of a plaintiff’s cause of action, must be pled and proved, and the burden is on the plaintiff to offer evidence sufficient to prove the plaintiff’s alleged damages. Gagne v. Severa, 259 Neb. 884, 612 N.W.2d 500 (2000). See World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 1 (1996).

3. Attorney Fees

Finally, the appellants claim that the trial court erred in awarding $6,216.87 instead of $32,669 in attorney fees and expenses incurred by the appellants.

As a general rule, attorney fees and expenses may be recovered in a civil action only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees. Salkin v. Jacobsen, 263 Neb. 521, 641 N.W.2d 356 (2002); In re Guardianship & Conservatorship of Donley, 262 Neb. 282, 631 N.W.2d 839 (2001); Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001). In the instant case, the relevant statutory provision is § 84-1414(3), which declares that citizens of this state may commence actions in district court for the purpose of requiring compliance with or preventing violations of the public meetings laws or for the purpose of declaring an action of a public body void. Section 84-1414(3) also provides that “[t]he court may order payment of reasonable attorney’s fees and court costs to a successful plaintiff in a suit brought under this section.”

Further, it is well established that discretionary decisions of the trial courts on attorney fees will be upheld on appeal absent a showing of abuse of discretion. In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (1993); Hansmeyer v. Nebraska Pub. Power Dist., 6 Neb. App. 889, 578 N.W.2d 476 (1998).

In determining an award of attorney fees, appropriate considerations include the nature of the case, the results obtained, the amount involved in the controversy, the services performed, the length of time required for preparation, the skill devoted to preparation and presentation of the case, and the novelty and difficulty of the questions raised, as well as customary charges of the bar for similar services. Hansmeyer v. Nebraska Pub. Power Dist., supra.

In the instant case, it is apparent from the record that the amount of attorney fees requested by the appellants included amounts spent to advance the public meetings law violation claims, but also amounts spent to advance the appellants’ other claims. Considering the difficulty of the questions raised by the appellants’ public meetings law claim and the length of time and skill required for preparation of this claim, we cannot say that the district court abused its discretion in its award of attorney fees. Therefore, this assigned error is without merit.

VI. CONCLUSION

The portion of the district court’s order finding that the appellants’ causes of action relating to the September 1999 grant of the te Veldes’ first application were moot is affirmed. Likewise, the district court’s award of attorney fees is affirmed. However, the actions taken by the Planning Commission at the February 15 and 16, 2000, meeting and by the Board at the March 7 meeting are declared void, and this cause is remanded to the district court with instructions to enter an order permanently enjoining the te Veldes from proceeding upon the grant of their third application.

Affirmed in part, and in part reversed AND REMANDED WITH DIRECTIONS.