County of Dakota v. Worldwide Truck Parts and Metals

• Court: Nebraska Supreme Court
• Writing for the Court: HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and GRANT; HASTINGS
• Citation: County of Dakota v. Worldwide Truck Parts and Metals, 511 N.W.2d 769, 245 Neb. 196 (Neb. 1994)
• Decision Date: 18 February 1994
• Docket Number: No. S-91-669,S-91-669
• Parties: COUNTY OF DAKOTA, Nebraska, Appellee, v. WORLDWIDE TRUCK PARTS AND METALS, a Corporation, et al., Appellants.

Page 769

511 N.W.2d 769

245 Neb. 196

COUNTY OF DAKOTA, Nebraska, Appellee, v. WORLDWIDE TRUCK PARTS AND METALS, a Corporation, et al., Appellants.

No. S-91-669.

Supreme Court of Nebraska.

Feb. 18, 1994.

Syllabus by the Court

1. Actions: Injunction: Equity. An action for an injunction sounds in equity.

2. Equity: Appeal and Error. In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. However, with regard to questions of law, the appellate court is obligated to reach a conclusion independent from the trial court's conclusion.

3. Ordinances. Generally, an ordinance cannot be amended, repealed, or suspended by a resolution.

4. Municipal Corporations: Ordinances: Zoning. A city is exercising control and county zoning regulations are superseded if the city adopts an ordinance with respect to territory within the extraterritorial jurisdiction, and it is not necessary that the city designate each particular piece of property within that jurisdiction.

Douglas E. Flom, of Corbett, Anderson, Corbett, Poulson, Flom & Vellinga, for appellants.

Brien P. O'Brien and, on brief, Kurt A. Hohenstein, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and GRANT, J., Retired.

HASTINGS, Chief Justice.

Following an action in equity brought by Dakota County, Worldwide Truck Parts and Metals, Jack P. Lemmon, and Marilyn J. Lemmon appealed an order of the district court enjoining them from using the premises as being in violation of the county zoning regulations. Worldwide and the Lemmons appeal, alleging a variety of errors, including the allegation that the county had no jurisdiction under the zoning laws existing over the premises in question. We have reviewed the entire record, the briefs, and the arguments of counsel, which we must do, but because we determine this appeal on the basis of jurisdiction, there is no need to discuss the other errors. We reverse the order and dismiss the cause.

An action for an injunction sounds in equity. Village of Brady v. Melcher, 243 Neb. 728, 502 N.W.2d 458 (1993); Bauer v. Lancaster Cty. Sch. Dist. 001, 243 Neb. 655, 501 N.W.2d 707 (1993).

In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. K N Energy, Inc. v. Cities of Broken Bow et al., 244 Neb. 113, 505 N.W.2d 102 (1993); Bauer v. Lancaster Cty. Sch. Dist. 001, supra. However, with regard to questions of law, an appellate court is obligated to reach a conclusion independent from the trial court's conclusion. Kopecky v. National Farms, Inc., 244 Neb. 846, 510 N.W.2d 41 (1994).

The Dakota County zoning resolutions at issue in this case became effective on March 13, 1978. The property in question was zoned R-10 (residential, with 10,000 square feet minimum lot size). For many years prior to the effective date of the resolutions, the property had been operated as a used parts and salvage business by Gilbert VandeMheen. On two or three occasions, a private contractor came to the property with a portable smelter for processing accumulated aluminum.

In 1979, the property was purchased from VandeMheen by Quad States, Inc., and operated by Worldwide, a division of Quad States. Prior to the purchase, Quad States' president, Jack Lemmon, investigated the operation at that location and determined that the business included selling new or used trucks, selling used parts, and processing metals of all types. Lemmon testified that he did not check to determine whether there were any ordinances which would affect the use of the property. From 1979 to 1985, Worldwide did not engage in any smelting of metals. In 1985, Worldwide purchased a movable aluminum smelter and began smelting aluminum. Approximately 1 year later, a second smelter was purchased. Lemmon estimated that at maximum capacity, the operation could process 10,800 pounds a day. In 1987, Nebraska's Department of Environmental Control advised Worldwide that a permit was necessary for the smelter and that it would have to be operated in a controlled structure. Worldwide had a metal pole building constructed to house the smelting operation. In April 1988, a large amount of polyurethane caught fire and burned on the property. The Dakota County Attorney brought criminal charges against Lemmon for unauthorized open burning and maintaining a nuisance. In March 1989, Lemmon pled no contest to the charges and entered into a nolo contendere plea agreement and order of abatement in which he agreed to take remedial steps to prevent future problems with stockpiled polyurethane. That agreement provided that "nothing contained herein shall prohibit the future smelting of aluminum ... or incinerating of polyurethane foam provided the operations are conducted within the constraints of state and federal law, and any local ordinance or regulation."

In May 1989, the state Department of Environmental Control filed charges concerning air pollution caused by the April 1988 fire and opacity violations occurring in September 1988 and January 1989. Worldwide entered into a consent decree and paid a $12,556 fine. In August 1989, the Dakota County Attorney filed this action, alleging that the use of the property was a nonconforming and nonpermitted use under Dakota County zoning ordinances and in violation of Neb.Rev.Stat. § 14-406 (Reissue 1991). Worldwide answered and asserted as affirmative defenses that the county did not have authority to regulate the property in question because it was within 2 miles of the city limits of South Sioux City and that the county was barred under the doctrine of laches because of inexcusable delay in asserting its rights. At the conclusion of the trial, the district court found that the county was not estopped from enforcement of its zoning resolutions, that the zoning authority of South Sioux City was not mandatory, and that the use of the property was "an impermissible expansion of the non-conforming use."

The district court found that Dakota County had jurisdiction over the Worldwide property, noting that

[t]he premises was zoned by the plaintiff in March, 1978 and has been so zoned since that time. While the City of South Sioux City may have had the statutory power to zone the premises, zoning was not mandatory and an agreement between the Plaintiff and the City as to that respective zoning is not prohibited. The Plaintiff has exercised a zoning jurisdiction over the premises, and the Defendant recognized that jurisdiction by applying for a building permit and later in seeking an application to change the zoning, the application going to the Plaintiff.

The authority for a city of the first class, such as South Sioux City, to exercise extraterritorial jurisdiction is found in Neb.Rev.Stat. § 16-901 (Reissue 1991), which states in pertinent part:

Any city of the first class may apply by ordinance any existing or future zoning regulations, property use regulations, building ordinances, electrical ordinances, plumbing ordinances, and ordinances authorized by section 16-240 to the unincorporated area two miles beyond and adjacent to its corporate boundaries with the same force and effect as if such outlying area were within the corporate limits of such city....

Although the zoning authority granted by § 16-901 is not mandatory, South Sioux City chose to exercise its authority under this statute, as evidenced by ordinance No. 528, passed and approved on September 19, 1967. That ordinance states:

That the zoning ordinances, property use regulations, building ordinances, electrical ordinances and plumbing ordinances as the same now exist or may hereafter be amended shall be and the same are hereby extended under the authority of the revised statutes of Nebraska, Section 16-901 and Section 16-902 as amended by LB 521, passed and approved by the 1967 Legislature of the State of Nebraska to an area two miles beyond and adjacent to the corporate boundaries of the City of South Sioux City, Nebraska with the same force and effect as if outlying area were within the corporate limits of said city....

The record contains a certification by the city clerk of South Sioux City that ordinance No. 528 was in full force and effect as of May 15, 1990. The record also contains ordinance No. 82-15, passed and approved on July 20, 1982, and ordinance No. 89-18, passed and approved on August 15, 1989, annexing parcels of real estate located outside of the corporate limits of South Sioux City. Exhibit 7, a map prepared by Schieuer Surveying, shows the locations of the properties annexed by those ordinances. Surveyor Douglas Mordhorst testified that as to the property annexed by ordinance No. 82-15, the legal description did not "call out" whether the property line was to be established from the centerline or the right-of-way line. As a result, he established two separate...