Posted by: Patricia Salkin | November 4, 2010

Nebraska Supreme Court Finds No Standing to Challenge Annexation and No Violation of Open Meetings Law Based on Notice Provided and Tour of Ethanol Facility Followed by Dinner with Some Board Members

This case involved the development of an ethanol plant on a previously vacant plot of agricultural land, known as Redevelopment Area #3, located 1/8th of a mile from plaintiff Schauers’ home.  The City of Ord, Nebraska declared Redevelopment Area #3 blighted, and annexed the land to enable the use of tax increment financing (TIF) for Green Plains ORD to build a 40 million gallon per year ethanol plant.                

Plaintiffs filed an action seeking to void the annexation, asserting that the City exceeded its statutory authority by declaring non city land substandard and blighted; and violated the Open Meetings Act by failing to give proper notice and not having a designated method for doing so.  The district court granted defendants motion for summary judgment, and on appeal the Supreme Court of Nebraska held plaintiffs did not have standing to challenge the annexation, and did not raise any material issue of fact regarding a violation of the Open Meetings Act.                                                                                                                                           

Because plaintiffs failed to bring an action within 30 days of the city council’s decision to approve the redevelopment of the land, and the ethanol facility had not yet begun its operations, their appeal only concerned the validity of the annexation of the land and was not an action for nuisance.  As neighboring landowners who neither owned a property interest in the subject land nor would be subject to the new zoning regulations, plaintiffs did not have standing to challenge the annexation simply because of their location.  Plaintiffs argued their legal interest at stake was the annexation resulting in Redevelopment Area # 3 no longer being subject to zoning law prohibiting the construction of commercial fuel bulk plants within one-half mile of a neighboring dwelling unit, and rendering their lawsuit against the county moot.  However, the court held that both the annexation enabling the financing to facilitate the plant’s construction, and the mootness of another lawsuit were both too far removed to confer standing.  

Plaintiffs did have standing to bring the second cause of action, regardless of whether they could allege a particularized injury resulting from the annexation, pursuant to Open Meetings Act § 84-1414 which confers standing to any citizen challenging meetings in violation of the act.  Plaintiffs challenged the published notices, which stated that the land was “within the city” were misleading; that the designated method of notice was not formally set forth in the minutes; and people who would be truly affected by the project were not likely to see the publications.  These contentions were rejected because the notices contained a map and statement acknowledging the land was 4 ½ miles from the City boundaries, the city clerk was able to discern a customary and consistent method of notification through minutes of past meetings, and the placement of postings (Ord township library, county courthouse, city hall, and local newspaper) were reasonable.  

Plaintiffs main contention was that there was no public notice given for a tour of the ethanol facility and dinner held by the Valley County Economic Development Board. Three of the five city council members and the mayor had attended, where they were split into two groups: one group watched a video explaining how ethanol was produced while the other toured a facility similar to the one proposed to be built.  After the tour, the participants went to a restaurant to eat dinner, but testified they did not discuss or receive information associated with the redevelopment plan.  

The court here found there was no ‘meeting of a public body’ because there was never a group of more than two city council members together, and there was no evidence of an attempt to reach a consensus to form a public policy in secret.  The mayor’s presence did not matter, because although he had a statutory right to cast the deciding vote in the case of a tie in a governmental body, that was not sufficient to make him a member of the body.  There was no evidence to support the contention that the tour/dinner or the annexation of Redevelopment Area #3 was for anything other than the benefit of the Valley County residents. The court explained the transparency required under the Open Meeting Law pertained to gatherings in which the public could legitimately take part in or gain insight into the policy making process.  Since plaintiffs could not demonstrate the tour was a meeting under the Open Meetings Act, there could be no violation of the law, and the district court properly granted summary judgment in favor of the defendants.  

Schauer v. Grooms, 280 Neb. 426 (Supreme Court Nebraska 8/6/10) 

The decision can be accessed here.

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