City of Elkhorn v. City of Omaha
| Decision Date | 12 January 2007 |
| Docket Number | No. S-05-1006.,S-05-1006. |
| Citation | 725 N.W.2d 792,272 Neb. 867 |
| Parties | CITY OF ELKHORN, Nebraska, a municipal corporation, et al., appellants and cross-appellees, v. CITY OF OMAHA, Nebraska, a municipal corporation, et al., appellees and cross-appellants. |
| Court | Nebraska Supreme Court |
Jeff C. Miller and Duncan A. Young, of Young & White, Omaha, for appellants.
William M. Lamson, Jr., Lawrence F. Harr, and Craig F. Martin, Omaha, of Lamson, Dugan & Murray, L.L.P., and
Paul D. Kratz, Omaha City Attorney, and Alan M. Thelen for appellees.
The City of Omaha, Nebraska, and the City of Elkhorn, Nebraska, raced to pass ordinances to annex territories that would expand their respective boundaries. Omaha's ordinances sought to annex land that would make it contiguous and adjacent to Elkhorn, thus allowing Omaha to annex Elkhorn. Elkhorn's annexation ordinance, on the other hand, sought to annex surrounding sanitary improvement districts (SIDs) to raise Elkhorn's population to over 10,000, which would immunize it from unilateral annexation by Omaha. See Neb.Rev.Stat. § 14-117 (Cum.Supp. 2006).
Despite Elkhorn's attempt to annex the SIDs without Omaha's knowledge, Omaha learned of Elkhorn's efforts, and the race was on. The pivotal issue is whether Omaha, in adopting its annexation ordinance, "jumped the gun" by violating the Open Meetings Act (the Act), Neb.Rev.Stat. §§ 84-1407 to 84-1414 (Reissue 1999 & Cum.Supp.2004), thus voiding its ordinance. We conclude that (1) the district court correctly decided that Omaha did not violate the Act and (2) because Omaha, a metropolitan class city, had less statutory hurdles to overcome than Elkhorn, Omaha adopted its annexation ordinance first. We affirm.
In April 2000, the U.S. Census Bureau estimated Elkhorn's population at 7,623. Beginning in the late 1990's, the Omaha Planning Department began studying the possible annexation of Elkhorn. Within a year or two after his June 2001 election, the Omaha mayor directed the planning department to plan for the annexation of Elkhorn. Omaha and Elkhorn then began having formal discussions about annexation. The cities did not resolve their differences.
In October or November 2004, the Elkhorn mayor and Don Eikmeier, Elkhorn's city administrator, began looking at much broader annexations than the parcels recommended in Elkhorn's 2003 comprehensive plan. In addition to 8 parcels that were in the 2003 plan, their new plan called for annexing 13 additional SIDs that were not in that plan.
Some time before January 17, 2005, Eikmeier stated to the Omaha World-Herald newspaper that Elkhorn had no current annexation plans. Despite his work on an annexation plan for 2005, Eikmeier also stated that he was not aware of an annexation plan that Elkhorn would adopt before 2007. The Eikmeier interview was apparently triggered by the Omaha mayor's earlier statement in an interview that Omaha's annexation of Elkhorn was inevitable. Eikmeier admitted that Elkhorn proceeded with its aggressive annexation plan to prevent Omaha from annexing Elkhorn. See § 14-117 ().
Moving forward, on Monday, February 14, 2005, Elkhorn posted a special meeting notice at three locations: the city hall, the post office, and a bank. The notice provided that the council and mayor would meet in the public library on February 21 and that an agenda was available for inspection at the city clerk's office. The only item listed on the agenda was the street plan. On February 15, the Douglas County Post-Gazette newspaper published a notice of the special meeting that also provided that the street plan was on the agenda.
On Friday, February 18, 2005, at 1:50 p.m., Elkhorn added the annexation resolution to its special meeting agenda. The city clerk made a note of the addition in a notebook that was available to the public upon request, but an agenda was not printed until 4:55 p.m., after the city offices had closed. Eikmeier continued to work on the plan through Saturday, and on Sunday morning, he made copies for council members and faxed copies of the amended agenda to the Omaha World-Herald and Douglas County Post-Gazette newspapers. Elkhorn posted the amended agenda to its Web site on Saturday.
Elkhorn held its special meeting on February 21, 2005, President's Day, as planned. Less than 10 residents and a reporter from the Douglas County Post-Gazette attended. Eikmeier admitted that the holiday meeting was partially motivated by a desire to "beat Omaha to the punch" because of state laws favoring Omaha's annexation powers. Elkhorn was at a disadvantage because a city of the first class must adopt a specified annexation resolution and plan for extending services before annexing land. See Neb. Rev.Stat. § 16-117(3) (Reissue 1997). On the other hand, Omaha can extend its limits "at any time" by ordinance. § 14-117. At the February 21 meeting, Elkhorn adopted resolution No.2005-08, its annexation resolution, and a plan to extend services to the designated areas. Elkhorn admitted that it did not hold a public meeting that day on its annexation actions.
On the same day, Omaha's planning director learned about Elkhorn's annexation plans. The director stated that Elkhorn's plan surprised him because Eikmeier had publicly stated that Elkhorn did not have immediate annexation plans.
On Tuesday, February 22, 2005, Omaha prepared legal documents and ordinances to annex Elkhorn and began an extensive annexation report, detailing the necessity of the annexation and the cost of providing services to the annexed area. At 9:51 a.m., the Omaha mayor called a special meeting to be held at 10 o'clock that night. The meeting concerned Omaha's annexation plan for Elkhorn and specific SIDs and other properties to be annexed. The city clerk issued a call for the meeting and contacted all council members to verify where he could serve notice; none of the members objected to the meeting, and all of them signed the call within 1 hour. An agenda of the special meeting was faxed to 19 area media outlets between 10:16 and 10:54 a.m. Notice was also posted on bulletin boards in the city's offices and on its Web site. The Omaha World-Herald published an article about the meeting in its afternoon edition of the February 22 paper. All council members attended and made no objections to the meeting.
Before the special meeting on February 22, 2005, the Omaha Planning Department drafted two alternative ordinances for annexing Elkhorn and other areas: one included the Elk Valley subdivision, and the other did not. At the February 22 meeting, Omaha read the two ordinances for the first time.
Meanwhile, on February 22, 2005, Elkhorn published notice of a special meeting for March 1. On February 25, Omaha published notice of a public hearing and administrative meeting of the Omaha Planning Board for Wednesday, March 2. It also published notice of its precouncil briefing and regular city council meeting for March 1.
On Tuesday, March 1, 2005, Omaha held a public meeting at which it read the annexation ordinance for the second time. Omaha city department heads briefed every member of the Omaha City Council on the annexation issues in three nonpublic meetings conducted at 8:30, 9:30, and 11:30 a.m. No more than three council members attended a briefing. The department heads' briefings occurred before and after the public precouncil meeting at 10:30 a.m. None of the council members asked questions about the annexation at the public precouncil meeting. Also, on March 1, Elkhorn published its annexation resolution and notice of a public meeting to be held on March 11 for consideration of its plans.
On March 2, 2005, the Omaha Planning Board conducted a public hearing and approved the ordinances. At the Omaha City Council's regularly scheduled meeting on March 8, the ordinances were read for the third time. The council voted to adopt annexation ordinance No. 36947, which did not include the Elk Valley subdivision.
Falling behind, Elkhorn, on March 8, 2005, published notices of special meetings for March 14 and 15. On March 11, Elkhorn conducted a public hearing, at which the planning commission recommended approval of the annexation plans and the ordinances were read for the first time. At the March 14 meeting, Elkhorn's ordinances were read for the second time. On March 15, 7 days after Omaha had adopted its ordinance, Elkhorn's annexation ordinances were read for the final time and the city council voted to adopt them.
On March 9, 2005, Elkhorn filed a complaint, seeking a temporary injunction and a declaration that Omaha's ordinance was invalid. On March 17, Omaha filed an answer, with affirmative defenses and a counterclaim for a temporary restraining order and temporary and permanent injunctions against Elkhorn's ordinances. In addition, Omaha sought a declaration that its ordinance was valid and that Elkhorn's ordinances were invalid.
On March 21, 2005, the district court, with the agreement of the parties, issued a temporary injunction enjoining the enforcement of both cities' ordinances.
In August 2005, Elkhorn filed its operative complaint. In sum, Elkhorn alleged that (1) Omaha had violated the Act; (2) Elkhorn had taken the first valid step toward annexation, thereby preempting Omaha's annexation proceedings; (3) Omaha could not annex Elkhorn because the corporate limits of the cities did not adjoin; (4) the Nebraska Constitution prohibited the annexation without a vote; and (5)...
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