Board of County Com'rs of Sarpy County v. McNally

• Decision Date: 27 February 1959
• Docket Number: No. 34508,34508
• Citation: 168 Neb. 23,95 N.W.2d 153
• Parties: BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SARPY, Nebraska, Appellee, v. Clara Marie McNALLY, Appellant.
• Court: Nebraska Supreme Court

Page 153

95 N.W.2d 153

168 Neb. 23

BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SARPY, Nebraska, Appellee, v. Clara Marie McNALLY, Appellant.

No. 34508.

Supreme Court of Nebraska.

Feb. 27, 1959.

Syllabus by the Court

1. The statutory provision, referred to in the opinion, that a zoning resolution adopted by a county board shall be published in book or pamphlet form or in a newspaper published and of general circulation in the county is mandatory.

2. The statutory provision mentioned above requires that the entire zoning resolution, including any map, plat, or zoning plan attached to, made a part of, or referred to in the resolution, must be published.

3. A failure to comply with the statutory provision mentioned above prevents a zoning resolution from becoming valid, effective, or enforceable.

4. It cannot be presumed that a county zoning resolution was published in the manner provided by law when the proof establishes it was not.

5. Invalid legislation confers no rights and imposes no duties or obligations. Legally it is as though it had never been composed or adopted.

Richard G. Stehno, Eugene L. Wohlner, Omaha, for appellant.

Dixon G. Adams, Bellevue, for appellee.

Heard before SIMMONS, C. J., and CARTER, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

The subject of this appeal is the legality of a judgment granting a permanent injunction prohibiting appellant from using Lots 4 and 5, Old Orchard Place, an addition in Sarpy County, owned by her, for the purpose of operating her business of automobile wrecking and storage. A primary issue presented by the appeal is the validity of zoning measures or regulations adopted by appellee on behalf of and for Sarpy County, referred to as resolutions.

The resolution bearing date of May 3, 1941, applied to territory in Sarpy County outside of incorporated municipalities including the real estate of appellant above described. The resolution restricted the use of real property within the territory and made the use thereof subject to the conditions specified in it. It divided the territory into eight districts from the highest restriction class to the lowest restriction class. The text of the resolution did not describe the area or the boundaries of any district but it did contain this language: 'The boundaries of such districts are hereby established as shown on the Zoning Plan which accompanies and is hereby made a part of this regulation.' Appellee by resolution bearing date of June 15, 1942, amended the original resolution in many respects.

A resolution adopted by appellee bearing date of March 28, 1955, recited that the Sarpy County zoning regulations and the zoning plan adopted and partially amended are hereby wholly amended. It affected the same territory as the original resolution dated May 3, 1941. The resolution restricted the use of real property within the territory and made the use thereof subject to the conditions specified in it. It divided the territory into 12 districts from the highest restriction class to the lowest restriction class. The text of the resolution did not describe the area or the boundaries of any district but it did contain this language: 'The boundaries of such districts are hereby established as shown on the Zoning Plan which accompanies and is hereby made a part of this regulation.' Appellee by resolution bearing date of April 16, 1956, amended the resolution bearing date of March 28, 1955, in many respects. There is no proof that there has ever been any map or, in the language of the resolution, zoning plan, attached to any of the resolutions mentioned and described above. The written text of the resolution bearing date of May 3, 1941, and the written text of the resolution bearing date of June 15, 1942, were published by being printed in book or pamphlet form. The text of either of them was not otherwise published. The zoning plan, hereafter called the map, delineating the boundaries of the districts was not included in and made a part of the book or pamphlet containing the printed text of the resolution. The proof is that the map first referred to in the record was not adopted until June 15, 1942, more than a year after the original resolution was passed by appellee. The record is conclusive that the map referred to in the original resolution as being a part thereof was never published in any manner as required by the applicable statute.

There is in the record what purports to be two pages of an issue of a newspaper the heading of which is: 'Bellevue Press, Bellevue, Nebraska, Friday, April 15, 1955,' on which is printed the resolution bearing date of March 28, 1955. There is no proof of publication exhibited. There is no proof that what is exhibited by the two pages of printed matter was an intended or authorized publication of the text of the resolution. There was not included as a part of it any map describing any zoning district. It is much more important that it was stipulated at the trial that the resolution of March 28, 1955, and the one containing the amendments thereto of April 16, 1955, were published by printing the written text of each of them in pamphlet form and that they were not otherwise published. There was no map included in or made part of the pamphlet in which the text of the resolutions last referred to was published. There was no publication of a map describing the boundaries of the districts specified in the resolutions or either of them as provided and required by law.

It is made indisputable by the record that without a map it could not be ascertained from any of the resolutions what regulations and restrictions were prescribed and what uses were permitted for any given parcel of land in the zoning area. The conclusion is inescapable that the resolutions or any of them were not published as required by law.

There is no issue in this case concerning the authority of appellee to adopt and make effective zoning regulations in Sarpy County by compliance with applicable statutory provisions. The challenge made by appellant is that the attempt of appellee in this regard was procedurally deficient and ineffective. A statutory requirement is that any zoning resolution adopted by the county board '* * * shall be published in book or pamphlet form or in a legal newspaper published in and of general circulation in the county one time * * *.' Sections 23-114 and 23-171, R.R.S.1943. The precise problem concerning the publication of the resolutions presented by this case has not previously engaged the consideration and decision of this court but it and other closely related situations have been discussed and determined in other jurisdictions.

In Berrata v. Sales, 82 Cal.App. 324, 255 P. 538, 539, the court said: 'The city of Petaluma in purporting to adopt a zoning ordinance, which did not describe the respective districts except by reference to a certain zoning map on file with the city clerk, but which map was not published in connection with the publication of said purported ordinance, did not comply with the requirement * * * of the charter of said city that no ordinance shall be passed by the council 'until its publication at least once in full in the official newspaper'; and said purported ordinance was void.' It is said in the opinion in that case: 'The trial court found that the procedure mapped out in the act of the Legislature was not followed, in that no notice was ever given by the city council, as required by the act of the Legislature referred to. * * * It needs no citation of authority to support the statement that notice of the proposed passage of a zoning ordinance limiting the use of property which, otherwise, naturally attaches to the property in question is a substantial matter and is one of which property owners are entitled to notice. The property owner, as has been so frequently said in other cases, is entitled to have his day in court. * * * It will be seen from the quotations which we have set forth of the proposed zones that no streets are mentioned, and, so far as the published ordinance is concerned, it cannot be ascertained therefrom where the commercial district or business district or zone created by the ordinance exist in the city of Petaluma.'

Village of Durand v. Love, 254 Mich. 538, 236 N.W. 855, 856, considered an ordinance fixing the fire limits of a village which recited that the portion thereof described and shown on a certain map and blueprint, Exhibit A, on file in the office of the village clerk, the same being a part of the ordinance, '* * * be and the same is hereby designated and declared to be the fire limits of the Village of Durand.' The court concluded: 'An ordinance sometimes may refer to a public record already established by lawful authority and become effective without publication of such record as part of the ordinance. But Exhibit A was drafted solely for the purpose of the ordinance and to define the fire limits, had no prior official approval, and had no purpose, use, force, or official sanction except as it was given by and as part of the ordinance. An ordinance cannot at the same time establish a paper as a public record and also incorporate it by reference as a previously established public record. Without publication of the map, the ordinance was not published in full, did not comply with the statute, and is void.'

W. H. Barber Co. v. City of Minneapolis, 227 Minn. 77, 34 N.W.2d 710, 711, considered an ordinance which provided: "The City of Minneapolis is hereby divided into the five (5) districts aforesaid and the boundaries of such districts are shown upon the map attached hereto and made a part of this ordinance, being designated as the Use District Map * * *." The court concluded: 'The publication of the ordinance and the map was required by virtue of * * * the Minneapolis city charter, which provides that before any ordinance shall be in force it shall be published in the official paper of the city. This...