City of Omaha v. Glissmann

• Decision Date: 06 December 1949
• Docket Number: No. 32640.,32640.
• Citation: 39 N.W.2d 828,151 Neb. 895
• Parties: CITY OF OMAHA v. GLISSMANN.
• Court: Nebraska Supreme Court

151 Neb. 895

39 N.W.2d 828

CITY OF OMAHA

v.GLISSMANN.

No. 32640.

Supreme Court of Nebraska.

Dec. 6, 1949.

Action by the City of Omaha against Henry C. Glissmann to enjoin the defendant from proceeding with the construction, maintenance or operation of a tourist camp, trailer camp or trailer park on lands leased by him, wherein the West Hills Improvement Club and the Ninetieth Street Realty Company intervened as parties plaintiff.

The District Court, Douglas County, Chase, J., entered a judgment for the plaintiff and the defendant appealed.

The Supreme Court, Wenke, J., affirmed the judgment on the ground that the zoning ordinance was a reasonable exercise of the city's police power.

Carter, Yeager and Boslaugh, JJ., dissented.

Syllabus by the Court.

1. Injunction will issue to prevent the erection of buildings in violation of a municipal ordinance, though they are not nuisances per se, if the persons seeking such injunction show that their erection will work special or irreparable injury to them and their property.

2. A zoning ordinance may not operate retroactively to deprive a property owner of his previously vested rights, that is, a zoning ordinance cannot deprive the owner of a use to which his property was put before the enactment of the ordinance.

3. The purchase or leasing of lands with the intent to use them for a use then permissible under a zoning ordinance does not prevent the city from changing its zoning ordinance applicable thereto as such property is always held subject to the city's lawful exercise of the police power.

4. A new ordinance operates retroactively to require a denial of an application or to nullify a permit already issued, provided that the holder of the latter has not already engaged in construction or incurred obligations directly in relation thereto, when such application or permit seeks or grants a use no longer permitted under the new ordinance.

5. If after a purchase or leasing thereof, a permit is obtained to use lands for a use then permissible under the zoning ordinances and either substantial construction is made thereon or substantial liabilities are incurred relating directly thereto, or both, before the permit is canceled or revoked then the right to such use has become established and vests as a permissive nonconforming use which cannot be affected by a subsequent change.

6. The city of Omaha under its home rule charter has the power, by ordinance, to zone the city in the interest of public health, safety, morals, and the general welfare. Any such act of the city must however not be unreasonable, discriminatory, and arbitrary and it must bear some relationship to the purpose or purposes sought to be accomplished by the ordinance.

7. To overturn a city ordinance on the ground that it is unreasonable and arbitrary or that it invades private rights, the evidence of such facts should be clear and satisfactory.

8. In determining the validity of a city ordinance regularly passed in the exercise of police power, the court will presume that the city council acted with full knowledge of the conditions relating to the subject of municipal legislation.

9. In the exercise of police power delegated by the state legislature to a city, the municipal legislature, within constitutional limits, is the sole judge as to what laws should be enacted for the welfare of the people, and as to when and how such police power should be exercised.

10. What is the public good as it relates to zoning ordinances affecting the use of property is, primarily, a matter lying within the discretion and determination of the municipal body to which the power and function of zoning is committed, and, unless an abuse of this discretion has been clearly shown, it is not the province of the courts to interfere.Winters & Winters, Omaha, for appellant.

Edward F. Fogarty, Edward Sklenicka, James M. Paxson, Omaha, Spier & Ellick, Omaha, for appellee.

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

WENKE, Justice.

This action was brought by the City of Omaha, a municipal corporation under home rule charter, to permanently enjoin Henry C. Glissmann from proceeding with the construction, maintenance, or operation of a tourist camp, trailer camp, or trailer park on lands leased by him from Gwyer H. Yates. The basis for the relief asked is that such use is contrary to and prohibited by the zoning ordinances of the city of Omaha which are applicable to the area which defendant had leased and on which he proposes to construct, maintain, and operate such tourist camp, trailer camp, or trailer park. A decree was entered by the trial court in favor of the city and two interveners. These interveners will be more fully referred to later in the opinion. From this decree, which enjoined him from using or permitting the use of the premises he had leased from Gwyer H. Yates for the construction, maintenance, or operation of a tourist camp, trailer camp, trailer park, or any similar enterprise and directing him to remove therefrom all structures, fixtures, or equipment thereon usable only for such purposes, his motion for new trial having been overruled, the defendant appealed.

After this action had been filed by the city there were two petitions of intervention filed. The first was by the West Hills Improvement Club and the second by the Ninetieth Street Realty Company. Both of these interveners are Nebraska corporations and by the petitions of intervention sought the same relief as had been asked for by the city in its petition. The West Hills Improvement Club is a nonprofit corporation organized to promote and encourage the beneficial growth of the city of Omaha and of all territory adjacent thereto, especially that area west of the city limits. The members of this corporation all reside on or own real estate in the immediate vicinity of Ninetieth Street and Dodge Road. Ninetieth Street Realty Company is a corporation owning substantial real estate located generally southwest of the corner of Ninetieth Street and Dodge Road. This real estate is zoned as ‘1st Residence District’ and intervener is engaged in improving, developing, and selling this real estate for residential purposes. Appellant contends that these parties had no right to intervene in this suit and that the trial court erred in holding that they were proper parties. While this question is immaterial, as the matter is properly before us on the city's petition, however, we think the ruling of the trial court was correct.

In Bangs v. Dworak, 75 Neb. 714, 106 N.W. 780, 781, 5 L.R.A.,N.S., 493, 13 Ann.Cas. 202, we said: ‘Injunction will issue to prevent the erection of buildings in violation of a municipal ordinance, though they are not nuisances per se, if the persons seeking such injunction show that their erection will work special or irreparable injury to them and their property.’ See Holzbauer v. Ritter, 184 Wis. 35, 198 N.W. 852, and Boehner v. Williams, 213 Iowa 578, 239 N.W. 545. The allegations of the petitions of intervention and the evidence offered in support thereof bring the interveners within the foregoing principle.

The record discloses that appellant, on October 14, 1939, leased a tract of land for use as a golf course and developed thereon the Indian Hills Golf Course. The land he leased was and is owned by Gwyer H. Yates and is described as ‘part of the Northeast Quarter of Section 22, Township 15, North, Range 12, East of the 6th P. M. in Douglas County, Nebraska, lying south of the south line of State Highway No. 30-S,’ with certain described tracts excepted therefrom. These exceptions are unimportant except for two tracts which were included in a later lease and which will hereinafter be more fully referred to. This lease, by its terms, expired on December 31, 1963, but had in it a provision wherebythe lessor, at any time after the sixth year, could cancel it and recapture possession of the premises provided he had a valid sale of the entire premises or intended to subdivide the premises or a substantial part thereof. To cancel the lease the lessor was required to give the lessee a three month's notice prior to the first of any January and to pay him the sum as in the lease set forth, the amount depending upon the year in which cancellation, if made, took place. These amounts decreased substantially each year.

The whole of the lands covered by this lease were devoted to the golf course and appellant expended a very substantial sum in developing its use for that purpose. Realizing the danger of this cancellation provision which permitted cancellation and recapture on payment of a much smaller amount than the appellant had invested in the development of the golf course, the appellant, as early as November 25, 1946, sought such a modification of this lease as would eliminate this provision. This ultimately resulted in a new lease being executed on November 8, 1947. The new lease superseded the old lease as of January 1, 1948. This new lease eliminated the cancellation provision, increased the fixed rentals, and included the two tracts already referred to. The one is tax lot No. 2, known as ‘the wooded hilltop,’ and contains about 4,81 acres. It lies in the golf course and some distance south of Dodge Road. The other is a tract of about 9.1 acres lying just south of Dodge Road and along the north side of the golf course, being just west of Eighty-seventh Street and running west to within 240 feet of Ninetieth Street.

Dodge Road, as it will herein be referred to, is State Highway No. 30-S which is Dodge Street to about Eighty-fourth Street, then northwest to interest with Cass Street at about Eighty-seventh Street, and then west on what would be Cass Street if it were extended.

The appellant testified that prior to executing the new lease on November 8, 1947, he had the intention of using these two tracts for a trailer camp or park; that in July and August 1947 he, with his wife and...