Posted by: Patricia Salkin | August 12, 2017

NE Supreme Court Holds District Court had Jurisdiction over Conditional Use Permit Appeal Where Petitioners Filed Within Thirty Days of Final Order

Homeowners sought to challenge a conditional use permit issued by the Omaha Planning Board and a special use permit and rezoning granted by the Omaha City Council. The permit at issue was for a proposed convenience storage and warehouse facility to be constructed on property owned by Daryl Leise, Redbird Group, LLC, and Ray Anderson, Inc. The City of Omaha, the Planning Board, and the City Council argued that the Homeowners’ petition in error was untimely and that the district court lacked subject matter jurisdiction.

On appeal, the City, the Planning Board, and the City Council argued that the district court lacked subject matter 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. Here, the record indicated 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 petition in error on October 21, within 30 days of the final order. As such, the district court had subject matter jurisdiction.

The City, the Planning Board, and the City Council next argued that the City Council’s decision on the application for rezoning was a legislative function and was not the proper subject of an error proceeding. In response, Homeowners contended that by conducting simultaneous hearings on the special use permit and the rezoning, the City Council acted judicially. The court determined that that the City Council acted as a legislative body in granting the rezoning request and in granting the special use permit. Accordingly, the court held that a request for a permanent injunction, not a petition in error, was the proper means to seek review of both determinations. Thus, since 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. As to the Homeowners’ assertion 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, the court found that because this issue was not before the district court, the Homeowners could not raise it on appeal.

Accordingly, the court dismissed for lack of jurisdiction the portion of the Homeowners’ appeal addressing the rezoning and special use permit, vacated the district court’s order for lack of jurisdiction, and affirmed the district court’s order regarding the conditional use permit.

Landrum v City of Omaha Planning Board, 297 Neb. 165 (NE 7/14/2017)

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