Bonge v. County of Madison

• Decision Date: 06 February 1998
• Docket Number: No. S-96-313,S-96-313
• Citation: 573 N.W.2d 448,253 Neb. 903
• Parties: Glen BONGE and Evelyn Bonge, husband and wife, Appellants, v. COUNTY OF MADISON, State of Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 448

573 N.W.2d 448

253 Neb. 903

Glen BONGE and Evelyn Bonge, husband and wife, Appellants, v. COUNTY OF MADISON, State of Nebraska, Appellee.

No. S-96-313.

Supreme Court of Nebraska.

Feb. 6, 1998.

Syllabus by the Court

1. Constitutional Law: Property. Whether an unconstitutional regulatory takings case is ripe for adjudication is a question of law.

2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

3. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision.

4. Property: Zoning: Final Orders. Before a taking claim is ripe for review, there must be a final and authoritative determination of the type and intensity of development legally permitted on the subject property.

5. Property: Zoning: Final Orders. Generally, to attain a final decision in regulatory takings cases, there must be at least (1) a rejection of a development plan and (2) a denial of a variance where the statute or bylaw at issue provides for such exceptions.

6. Property: Final Orders: Proof. An exception to the requirement of obtaining a final decision in regulatory takings cases occurs where a plaintiff is able to show that administrative remedies would be futile.

7. Judgments: Directed Verdict. A judgment on a directed verdict is a judgment on the merits.

Charles W. Balsiger, P.C., Norfolk, for appellants.

Joseph M. Smith, Madison County Attorney, for appellee.

CAPORALE, WRIGHT, CONNOLLY, STEPHAN, and McCORMACK, JJ.

WRIGHT, Justice.

Glen Bonge and Evelyn Bonge, husband and wife, brought this inverse condemnation action against the County of Madison (County) for damages allegedly sustained when the County enacted certain flood plain management regulations applicable to land owned by the Bonges. During the course of a jury trial, the district court sustained the County's motion for a directed verdict and dismissed the action. The Bonges appealed to the Nebraska Court of Appeals, which affirmed the judgment of the district court. See Bonge v. County of Madison, 5 Neb.App. 760, 567 N.W.2d 578 (1997). We granted the Bonges' petition for further review.

SCOPE OF REVIEW

Whether an unconstitutional regulatory takings case is ripe for adjudication is a question of law. Ventures Northwest Ltd. v. State, 81 Wash.App. 353, 914 P.2d 1180 (1996).

Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. State v. Hall, 252 Neb. 885, 566 N.W.2d 121 (1997). See State v. Wieczorek, 252 Neb. 705, 565 N.W.2d 481 (1997).

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision. Perryman v. Nebraska Dept. of Corr. Servs., 253 Neb. 66, 568 N.W.2d 241 (1997). See, also, Reutzel v. Reutzel, 252 Neb. 354, 562 N.W.2d 351 (1997).

FACTS

In 1968 or 1969, the Bonges entered into a lease-purchase agreement for certain property in Madison County referred to as "Sandy Beach." The Bonges made improvements to what was originally an abandoned gravel pit, and in 1970, they began using Sandy Beach as a mobile home park. The property was ultimately purchased in 1980.

In 1975, the County adopted comprehensive zoning and subdivision regulations. Richard Wozniak, the zoning administrator and planner for the County, testified that Sandy Beach was initially zoned "R-M" (mobile residential district) and that it had not been rezoned. The 1975 zoning and subdivision regulations included flood plain regulations. However, spaces provided to delineate those areas to which the flood plain regulations applied were left blank.

In 1984, the Bonges were cited for 47 violations by a fire inspector, and the Madison County District Court enjoined them from continuing to operate the mobile home park without a license. Glen Bonge testified that after the injunction was issued, he made additional improvements to the property with the intention of redeveloping it as a residential recreation area. Among other improvements, the Bonges installed a new sanitary sewer and a new water system and improved the roads. Glen Bonge further testified that the bottom of the wastewater lagoon was raised to a level that would be above the 100-year flood plain. This was done in order to meet new standards that were being set by the then Department of Health. However, Glen Bonge admitted that he had not checked the department's rules and regulations and did not notify the department for approval before making these improvements.

As of the date of his testimony in February 1996, Glen Bonge had not applied to the department for the license required to lift the 1984 injunction. However, despite the fact that a number of items on the property had been in disuse, Glen Bonge believed he would be able to immediately bring those items up to the department's specifications. Glen Bonge testified that at some point after 1985, he applied to have the property rezoned from "R-M" to "R-R" (residential recreation district), and, based upon his understanding of the flood plain management regulations at that time, he requested a special use permit to add accessory buildings for a campground. Glen Bonge testified that the application was denied; however, there is no evidence in the record as to the reason for the denial. Glen Bonge stated that he resubmitted the application in 1992, but thereafter, he voluntarily withdrew it.

In 1987, in response to Federal Emergency Management Agency requirements and in order to retain its flood insurance program, the County passed resolution No. 87-22, which adopted a federal "Flood Hazard Boundary Map" prepared by the U.S. Department of Housing and Urban Development as its official map. On November 17, 1992, the County passed resolution No. 92-39, which incorporated the boundary map into the floodway fringe area of the zoning district. The Bonges' land lies within the flood plain, and it is resolution No. 92-39 which the Bonges assert constitutes a taking by the County.

The flood plain management regulations do not include a mobile home park as one of the specified "Permitted Uses." Ransom Roman, a real estate appraiser, testified that "the highest and best use" of Sandy Beach, if the property was subject to the restrictions of the flood plain management regulations, was as pasture ground. Roman estimated the value of the land as pasture ground to be $14,000. In contrast, Roman testified that if the Bonges were allowed to use the land for some form of a mobile home park, regardless of whether it was zoned R-M or R-R, the value would be $193,000.

At the close of the Bonges' evidence, the district court sustained the County's motion for directed verdict on the grounds that the Bonges had failed to prove causation and damages, and dismissed the action. The Bonges appealed to the Court of Appeals, which concluded that because the Bonges have neither sought nor received a final decision on the application of the flood plain management regulations and have failed to show that such an application would be futile, the Bonges' claim is not ripe. The Court of Appeals therefore affirmed the judgment of the district court.

ASSIGNMENTS OF ERROR

The Bonges assert that the Court of Appeals erred in (1) finding that they had failed to exhaust their administrative remedies, (2) finding that their claim is not ripe, and (3)

affirming the district court order sustaining the County's motion for directed verdict.

ANALYSIS

The Court of Appeals correctly concluded that because the Bonges have neither sought nor received a final decision on the application of the flood plain management regulations to their property, their taking claim is not ripe. Before a taking claim is ripe for review, there must be a final and authoritative determination of the type and intensity of development legally permitted on the subject property. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986). In MacDonald, Sommer & Frates, the Court explained that "[u]ntil a property owner has 'obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property,' 'it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed.' " 477 U.S. at 349, 106 S.Ct. at 2566, quoting Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). Generally, to attain a final decision in regulatory takings cases, there must be at least (1) a rejection of a development plan and (2) a denial of a variance where the statute or bylaw at issue provides for such exceptions. See, Thompson v. City of Red Wing, 455 N.W.2d 512 (Minn.App.1990); Town of Sunnyvale v. Mayhew, 905 S.W.2d 234 (Tex.App.1994).

An exception to the requirement of obtaining a final decision in regulatory takings cases occurs where a plaintiff is able to show that administrative remedies would be futile. See Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680, 515 N.W.2d 401 (1994). In Whitehead Oil Co., the city argued that we should not reach the oil company's claim because the city had taken no final action against the oil company under the...