Eastroads, Inc. v. City of Omaha

• Decision Date: 12 April 1991
• Docket Number: No. 88-1026,88-1026
• Citation: 467 N.W.2d 888,237 Neb. 837
• Parties: EASTROADS, INC., a Nebraska Corporation, Appellant, v. CITY OF OMAHA and Varnum Armstrong Deeter, Inc., a Missouri Corporation, Appellees.
• Court: Nebraska Supreme Court

Page 888

467 N.W.2d 888

237 Neb. 837

EASTROADS, INC., a Nebraska Corporation, Appellant, v. CITY OF OMAHA and Varnum Armstrong Deeter, Inc., a Missouri Corporation, Appellees.

No. 88-1026.

Supreme Court of Nebraska.

April 12, 1991.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper when the pleadings, affidavits, depositions, admissions, and stipulations show that there is no genuine issue as to any material fact or the ultimate inferences that may be drawn from any material fact and that, as a matter of law, the moving party is entitled to judgment.

2. Summary Judgment: Proof. After the movant has shown facts entitling the movant to summary judgment as a matter of law, the opposing party has the burden of presenting evidence to show an issue of material fact which prevents a judgment as a matter of law.

3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the Supreme Court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

4. Zoning: Standing. Adjacent landowners do have standing to object to the rezoning of property; however, they do not have standing to object to an irregularity in the application itself without demonstrating any prejudice caused by the irregularity.

5. Summary Judgment: Proof. A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted.

6. Summary Judgment: Motions for Continuance: Appeal and Error. A continuance authorized by Neb.Rev.Stat. § 25-1335 (Reissue 1989) is within the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion.

7. Trial: Appeal and Error. A judicial abuse of discretion does not imply improper motive, bad faith, or intentional wrong by a judge, but requires the reasons or ruling of a trial judge to be clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result.

8. Zoning. The highest and best use of property is not a determinative factor in a rezoning challenge.

David R. Stickman and Mary E. Weber of Stern, Swanson & Stickman, P.C., Omaha, for appellant.

Charles K. Bunger, Asst. Omaha City Atty., and Frank F. Pospishil and Sandra L. Maass, of Abrahams, Kaslow & Cassman, Omaha, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

Plaintiff-appellant, Eastroads, Inc., filed a petition for declaratory judgment against the defendants-appellees, City of Omaha (City) and Varnum Armstrong Deeter, Inc. (Varnum), to declare a rezoning ordinance invalid, arbitrary, capricious, and illegal and to enjoin the defendants from recognizing the ordinance and from commencing any construction on the property in question. The defendants filed a motion for summary judgment, alleging that there was no genuine issue as to any material fact and that defendants were entitled to judgment as a matter of law. The defendants' motion was granted, and Eastroads' petition was dismissed.

Eastroads appeals and assigns as error (1) the failure of the trial court to find that the ordinance enacted was arbitrary and unreasonable and contrary to law, (2) the granting of defendants' motion for summary judgment, (3) the denial of the motion of Eastroads for a continuance, and (4) the finding that Eastroads did not have standing.

Summary judgment is proper when the pleadings, affidavits, depositions admissions, and stipulations show that there is no genuine issue as to any material fact or the ultimate inferences that may be drawn from any material fact and that, as a matter of law, the moving party is entitled to judgment. Neb.Rev.Stat. § 25-1332 (Reissue 1989); Joseph Heiting & Sons v. Jacks Bean Co., 236 Neb. 765, 463 N.W.2d 817 (1990); First Nat. Bank v. Chadron Energy Corp., 236 Neb. 199, 459 N.W.2d 736 (1990). After the movant has shown facts entitling the movant to summary judgment as a matter of law, the opposing party has the burden of presenting evidence to show an issue of material fact which prevents a judgment as a matter of law. Wilson v. F & H Constr. Co., 229 Neb. 815, 428 N.W.2d 914 (1988). In reviewing a summary judgment, we view the evidence in a light most favorable to the party against whom the judgment is granted and give such party the benefit of all reasonable inferences deducible from the evidence. Id.

On December 30, 1987, Varnum filed an application with the Omaha Planning Department to rezone certain property located on the northwest corner of Interstate 80 and 13th Street in the City from urban family residential to community commercial, and for a special use permit. The application showed the property owner to be "Thirteenth Street Associates c/o Varnum Armstrong Deeter, Inc. General Partner," and was signed by Ralph W. Varnum.

The City was advised by letter from Varnum that the applicant either owned or was under contract for the purchase of the affected property and that those agreements to purchase included the right to have the property rezoned. In addition, property owners were given notice of hearings before the Omaha Planning Board and the Omaha City Council as required by law, and they raised no objections.

On August 23, 1988, the rezoning was approved by the city council, and ordinance No. 31600 was adopted, effective September 7, 1988.

The petition of Eastroads for a declaratory judgment was filed on September 8, 1988. It alleges that the applicant was not the proper party to make application under the requirements of the Omaha Municipal Code, since it was neither the owner of the property nor the authorized agent of the owner at the time of the application; that Thirteenth Street Associates was a nonentity at the time of application and thus did not have the legal capacity to make application or enter into contracts; and that the proposed rezoning did not propose a use which is the highest and best use of the property.

Without filing an answer, defendants, on October 20, 1988, filed a motion for summary judgment, with supporting affidavits. Defendants noticed the motion for hearing for November 18, 1988. Eastroads filed a motion for continuance to permit discovery. The record discloses no ruling by the court on that motion for continuance, but obviously it was overruled or disregarded because hearing was had on November 18 on the motion for summary judgment. No objection to proceeding with this hearing was voiced by plaintiff.

By order dated December 7, 1988, the district court found that the motion for summary judgment should be sustained because there was no genuine issue of fact and the defendants were entitled to judgment as a matter of law. The court further found that the plaintiff had no standing to bring this particular action under the pleadings and evidence before the court and that the evidence showed the City had fully complied with the city ordinances with regard to rezoning of the subject property. Finally, the court entered judgment in favor of the defendants, dismissing the plaintiff's petition.

Plaintiff's first assignment of error concerns the claimed failure of Varnum to comply with the procedural requirements of the Omaha code and the Nebraska statutes because the applicant was not the owner or the agent of the owners of all of the property at the time the application was filed. Furthermore, Eastroads argues that the applicant Thirteenth Street Associates was not an entity at the time the application was made.

Contained in the record in support of defendants' motion for summary judgment are the applications filed with the City showing Thirteenth Street Associates as the owner of the property, various letters from Varnum to the City assuring the planning department that "we" own or have under contract all of the land included in "our Zoning Application," an affidavit by Ralph Varnum as to certain property included in the application, which property is owned by Varnum, and affidavits from the remaining owners of the property included within the application to the effect that they had entered into a sales contract to sell their property to Thirteenth Street Associates, "a partnership to be formed with Varnum Armstrong Deeter, Inc., acting as the general partner therefor." Also included within the record is a portion of the Omaha city code.

In resistance to the motion were the affidavits of R. Gregory Swanson and David R. Stickman, attorneys for the plaintiff, and of Mort Sullivan, president of Eastroads. Swanson's affidavit alleges that he spoke with one of the persons who signed an affidavit regarding the contract of sale, and claims that she told him she did not remember giving anyone authority to submit the application for rezoning. Stickman asserts that after receiving notice of the hearing on the motion for summary judgment, he had insufficient time to prepare his resistance to the motion. He also claims to have a certificate from the county clerk of Douglas County stating that no copy of Thirteenth Street Associates limited or general partnership is "on file in that office." He further relates that, as to certain of the properties involved, "he has been able to determine that there is no explanation in the official record as to whether the aforesaid vendees gave their consent to the rezoning application at issue here."

Finally, the affidavit of Sullivan recites that attached to the affidavit are copies of land contracts which show sales contracts with the various owners and "Thirteen Street Associates, a partnership to be formed with Varnum/Armstrong/Deeter, Inc., general partner, buyer."

The Omaha Municipal Code requires an application for...