Giger v. City of Omaha

• Citation: 442 N.W.2d 182,232 Neb. 676
• Decision Date: 30 June 1989
• Docket Number: No. 87-521,87-521
• Parties: Donald GIGER et al., Appellants, v. CITY OF OMAHA, a Municipal Corporation, et al., Appellees. D. James WITHERSPOON et al., Appellants, v. CITY OF OMAHA, a Municipal Corporation, et al., Appellees.
• Court: Supreme Court of Nebraska

Page 182

442 N.W.2d 182

232 Neb. 676

Donald GIGER et al., Appellants, v. CITY OF OMAHA, a Municipal Corporation, et al., Appellees.

D. James WITHERSPOON et al., Appellants, v. CITY OF OMAHA, a Municipal Corporation, et al., Appellees.

No. 87-521.

Supreme Court of Nebraska.

June 30, 1989.

Syllabus by the Court

1. Ordinances: Zoning: Injunction: Equity. An action to declare a city zoning ordinance void, and to enjoin enforcement under color of that ordinance, is one in equity.

2. Equity: Appeal and Error. A case in equity is reviewed de novo on the record, subject to the rule that where credible evidence is in conflict on material issues of fact, we consider and may give weight to the fact the trial court observed the witnesses and accepted one version of the facts over another.

3. Zoning. Zoning is a legislative function.

4. Zoning. Zoning regulations are enacted pursuant to the police power of the state.

5. Legislature: Municipal Corporations: Zoning. The Nebraska Legislature has granted the City of Omaha the power to zone property lying within its jurisdiction.

6. Municipal Corporations: Ordinances: Zoning: Public Health and Welfare. This jurisdiction has long recognized that zoning ordinances enacted by a city, as a lawful exercise of police power, must be consistent with public health, safety, morals, and the general welfare.

7. Municipal Corporations: Ordinances: Public Health and Welfare. This court gives great deference to a city's determination of which laws should be enacted for the welfare of the people.

8. Ordinances: Zoning: Presumptions: Proof. The validity of a zoning ordinance will be presumed in the absence of clear and satisfactory evidence to the contrary.

9. Municipal Corporations: Ordinances: Zoning. A city is permitted to condition rezoning ordinances on the adoption of an agreement between the developer and the city, or any other means assuring the developer builds the project as represented.

10. Zoning. Conditional or contract rezoning is a legislative function and therefore must be within the proper exercise of the police power.

11. Municipal Corporations: Ordinances: Zoning: Proof. To successfully challenge the validity of conditional rezoning, the appellants must prove that the conditions imposed by the city in adopting the rezoning ordinance were unreasonable, discriminatory, or arbitrary, and that the regulation bears no relationship to the purpose or purposes sought to be accomplished by the ordinance.

12. Municipal Corporations. A municipal corporation possesses, and can exercise, the following powers, and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; and third, those essential to the declared objects and purposes of the corporation--not simply convenient, but indispensable.

13. Zoning. Zoning is a local concern.

14. Municipal Corporations: Zoning. In chapter 14 of the Nebraska Revised Statutes, there is an implied grant of power to the city to enact all necessary zoning regulations, including conditional rezoning, as long as those regulations are within the proper exercise of the police power.

15. Municipal Corporations: Ordinances: Zoning: Proof. To successfully challenge the validity of a zoning ordinance, the appellants must prove that the actions of a city in adopting that regulation were unreasonable, discriminatory, or arbitrary, and that the regulation bears no relationship to the purpose or purposes sought to be accomplished by the ordinance.

16. Zoning. The uniformity requirement in Neb.Rev.Stat. § 14-402 (Reissue 1987) does not prohibit reasonable classifications within a district.

17. Municipal Corporations: Ordinances: Zoning: Proof. To successfully challenge the rezoning ordinance on the grounds it violates the uniformity requirement of Neb.Rev.Stat. § 14-402 (Reissue 1987), the appellants must prove that the actions of the city in adopting the rezoning ordinance were unreasonable, discriminatory, or arbitrary, and that the regulation bears no relationship to the purpose or purposes sought to be accomplished by the ordinance.

18. Municipal Corporations: Ordinances: Zoning. The city, in adopting a rezoning ordinance, is not required to accomplish all the objectives of Neb.Rev.Stat. § 14-403 (Reissue 1987).

19. Zoning. The mere fact that rezoning will depreciate the value of surrounding property does not establish that the rezoning is illegal.

20. Zoning. Where the validity of the legislative classification for zoning purposes is fairly debatable, the legislative judgment must be allowed to control.

21. Municipal Corporations: Ordinances: Zoning: Appeal and Error. 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 court to interfere. In passing upon the validity of zoning ordinances, an appellate court should give great weight to the determination of local authorities and local courts especially familiar with local conditions.

22. Ordinances: Zoning: Appeal and Error. To determine whether a rezoning ordinance complies with a comprehensive plan pursuant to Neb.Rev.Stat. § 14-403 (Reissue 1987), this court will review the land uses surrounding the rezoned property.

23. Zoning: Words and Phrases. Spot zoning is generally defined as the singling out of a small parcel of land for a use or uses classified differently from the surrounding area, primarily for the benefit of the owner of the property so zoned, to the detriment of the area and the other owners therein.

24. Zoning. The validity of spot zoning depends upon more than the size of the spot, and spot zoning as such is not necessarily invalid, but its validity depends upon the facts and circumstances appearing in each particular case.

25. Administrative Law: Waters. Neb.Rev.Stat. § 31-1017 (Reissue 1988) requires the Nebraska Natural Resources Commission to adopt, at a minimum, flood plain regulations promulgated by the Federal Emergency Management Agency.

26. Municipal Corporations: Administrative Law: Waters. The City of Omaha is mandated by state statute to implement local flood regulations which meet the minimum criteria established by the Nebraska Natural Resources Commission.

27. Justiciable Issues: Appeal and Error. It is not the function of this court to render advisory opinions.

28. Injunction: Equity. An action for injunction sounds in equity.

29. Injunction: Proof. A party seeking injunction must establish by a preponderance of the evidence every controverted fact necessary to entitle the claimant to relief.

30. Waters: Words and Phrases. The flood plain of a stream is considered a part of the channel of such stream, and no one may obstruct the flow of floodwaters in the natural drainage to the detriment of another.

John C. Mitchell, of Mitchell & Demerath, and J. Patrick Green, Omaha, for appellants Giger et al.

Richard E. Croker, of Croker, Huck & McReynolds, P.C., and Larry W. Myers, Omaha, for appellants Witherspoon et al.

Charles K. Bunger, Asst. Omaha City Atty., and Frank F. Pospishil and Harvey B. Cooper, of Abrahams, Kaslow & Cassman, Omaha, for appellees.

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

WHITE, Justice.

This appeal involves two lawsuits relating to a development known as One Pacific Place. The development is being constructed on an 84-acre tract of land formerly owned by Carl Renstrom located in southwest Omaha. The land, hereafter the Renstrom property, is approximately triangular in shape, bordered on the north by Pacific Street, on the east by the Happy Hollow and Sunset Hills residential developments, on the southwest by the Big Papillion Creek, and on the west by 105th Street.

In March 1983, appellee Midlands Development Company (Midlands) entered into a real estate purchase agreement with the Renstrom estate for the purchase of the property. Midlands then applied to the city to have the Renstrom property rezoned to permit the construction of a mixed-use development consisting of retail, office, and residential buildings. As part of the application process, Midlands submitted several development plans. A final plan was developed which indicated the following uses for 48 acres of the tract: 112,000 square feet of retail space, 390,000 square feet of office space, 558,000 square feet of parking space, 300 residential units, a private lake, and a planned unit development (PUD). The plan also called for the construction of a public park on the remaining 36 acres to be deeded by Midlands to the city. In a "new procedure," Midlands and the city entered into four agreements incorporating the plan. The four agreements, collectively known as the development agreement, were submitted to the city for approval. In February 1985, the city passed an ordinance approving the development agreement, incorporating it as part of the ordinance, and passed five separate ordinances rezoning the Renstrom property. Building permits were then issued, including a permit allowing Midlands to fill in the flood plain of the Big Papillion Creek located on the land and to make modifications to the creek channel.

Construction on the site began approximately in September of 1985. Thereafter, two lawsuits were filed in the district court for Douglas County: Giger et al. v. City of Omaha et al., filed by neighboring property owners, and Witherspoon et al. v. City of Omaha et al., filed by downstream riparian property owners living along the Big Papillion Creek. The two petitions requested an order declaring the city's rezoning ordinance and accompanying building permits void, and an injunction to enjoin Midlands from developing the property in any manner...