Posted by: Patricia Salkin | October 7, 2015

NE Supreme Court Finds Amended Ordinance Which Created Exemptions from Enforcement of Design Ordinance for Certain Class of Property Owners (Who Had Already Submitted a Plat) Did Not Create Permanently Closed Class

The County of Sarpy revised an overlay zoning ordinance to exempt properties platted before the effective date of the original ordinance. In effect, the overlay ordinance imposed additional regulations on land along a specified road corridor. An owner of nonexempt property sought a judgment declaring the exemption unconstitutional as special legislation. The District Court, Sarpy County, entered judgment for county, and the owner appealed.

In considering whether the exemption in the revised ordinance is special legislation, the court first considered whether it created a closed class. The court reasoned that because the real property was alienable, the composition of any class consisting of owners of property in a certain area is subject to constant change. Because the future transfer of property within the exemption’s geographic area was probable, the class was not closed.

The court next addressed the issue of whether the class benefited by the exemption was arbitrarily selected. Here, the evidence established substantial differences between those exempted and those who were not. Only those property owners who filed a plat prior to enactment of the overlay ordinance were exempt. Because the submission of a plat application entails significant expense and planning, to subject those property owners to the design requirements contained in the overlay ordinance after they had already submitted a plat based on the absence of those design requirements would be harsh and unfair. Thus, limiting the exemption to those property owners who had completed the process of actually submitting a plat was a reasonable distinction. Because the exemption was not unconstitutional special legislation, the court affirmed the district court’s judgment.

Dowd Grain Company, Inc. v County of Sarpy, 2015 291 Neb. 620 (NE 8/14/2015)


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