Kelley v. John, 33971
| Decision Date | 24 March 1956 |
| Docket Number | No. 33971,33971 |
| Citation | 75 N.W.2d 713,162 Neb. 319 |
| Parties | Donald E. KELLEY, Georgia E. Kelley, Safeway Stores, Incorporated, et al., Appellants, v. Arthur JOHN, as Mayor of the City of McCook, Nebraska, et al., Appellees, J. Harold Donaldson, Jr., M. D., et al., Interveners-Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The referendum provisions of our statutes as they relate to municipal corporations apply to legislative acts, but not to administrative or executive matters.
2. If an ordinance of a city serves merely to put into execution a previously enacted law, it is clearly executive or administrative in character.
3. The test for determining that which is legislative from that which is administrative or executive is whether the ordinance was one making a law, or administering or executing a law already in existence.
4. An ordinance changing the classification of property from residential to business use after the adoption of a comprehensive zoning plan is an administrative or executive matter, and not subject to referendum laws applicable to municipalities.
Morrison, Lyons & Starrett, McCook, Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellants.
Stanley R. Scott, McCook, for appellees.
Russell & Colfer, J. D. Wood, Jr., McCook, for interveners-appellees.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an appeal by plaintiffs from an order and judgment of the district court for Red Willow County, sustaining defendants' demurrer to plaintiffs' petition and dismissing the action.
The plaintiffs, Donald E. Kelley and Georgia E. Kelley, are the owners of Lots 10 through 19, Block 3, Kelley's Hilltop Addition to the City of McCook, Nebraska. The plaintiff, F. E. Dillman, is the representative of the Berean Fundamental Church Council, Inc., a religious organization which owns Lot 9 in Block 3, the remainder of the property involved in this suit. The plaintiff, Safeway Stores, Incorporated, is the holder of an option agreement to purchase all of the described property, which option has been exercised conditional upon the rezoning of the property for business use. The plaintiffs, Solomon W. Stilgebouer and John Lenhart, are citizens, residents, voters, and taxpayers in the city of McCook.
The defendant, City of McCook, a municipal corporation, is a city of the first class operating under the city manager plan. The other defendants are the mayor, city clerk, city treasurer, and the members of the city council of the city of McCook.
On November 27, 1952, the city of McCook established by ordinance a comprehensive zoning plan regulating and restricting the construction and use of buildings within zoning districts, and creating a board of adjustment and fixing its powers and time and place of meeting. Under this ordinance, the validity of which is not questioned, the property here involved was zoned as residential property.
On May 31, 1955, certain owners of property adjoining Block 3 petitioned the city council to rezone the use of the property from residential to business use. Other parties joined in the proceedings. Notice was given of a public hearing on the matter, as required by the original zoning ordinance. After a hearing, the city council adopted Ordinance No. 795 rezoning Block 3 as 'Neighborhood Business District Zone 4-A.' Such classification permits the operation of retail stores within the prescribed zone. No appeal was taken to the board of adjustment or to the courts in the manner authorized by statute. Instead, petitions were filed, containing a sufficient number of signers, to obtain a referendum on Ordinance No. 795. The city council found the petitions sufficient and designated December 7, 1955, as a special election day for the referendum. This suit was then commenced, praying that the defendants be enjoined from calling or holding the referendum election. Due to the pendency of the present suit the election was not held on December 7, 1955. Such referendum election is now called for the general municipal election to be held on April 3, 1956.
The applicable portion of the controlling referendum statute provides as follows: 'The referendum may be ordered upon any ordinance or measure except ordinances making the annual tax levy, appropriating money to pay the salaries of officers and employees, or relating to local improvements and assessments therefor, * * *.' Section 19-640, R.R.S.1943. It is the rule in this state that the referendum provisions of our statutes apply to legislative acts, but not to administrative or executive matters. If an ordinance serves merely to put into execution a previously enacted law, it is clearly administrative or executive in character. The crucial test for determining that which is legislative from that which is administrative or executive is whether the action taken was one making a law, or executing or administering a law already in existence. State ex rel. Ballantyne v. Leeman, 149 Neb. 847, 32 N.W.2d 918; State ex rel. Nelson v. Butler, 145 Neb. 638, 17 N.W.2d 683; Read v. City of Scottsbluff, 139 Neb. 418, 297 N.W. 669. It seems clear to us that an ordinance adopting a comprehensive plan for zoning a city is a legislative matter. It is a determination that the mayor and council of a city, acting legislatively, have concluded that zoning is beneficial to the best interests of the city. Since it is legislative in character, it may be submitted to the qualified electors of the city in the form of a referendum to determine if the ordinance shall or shall not be approved. In the present case no such action was taken and the validity of the ordinance of November 27, 1952, is not questioned.
The ordinance of November 27, 1952, provides for the creation of a board of adjustment to whom appeals may be taken from ordinances purporting to make changes and amendments. Appeals to the district court may be taken from a decision of the board of adjustment as provided by section...
To continue reading
Request your trial
-
Ed Zaagman, Inc. v. City of Kentwood
...84, 245 A.2d 377 (1968); Minneapolis-Honeywell Regulator Co. v. Nadasdy, 247 Minn. 159, 76 N.W.2d 670 (1956); Kelley v. John, 162 Neb. 319, 323-325, 75 N.W.2d 713 (1956); Golden v. Overland Park, 224 Kan. 591, 584 P.2d 130 (1978). The Oklahoma Supreme Court adopted the quasi-judicial approa......
-
Gumprecht v. City of Coeur D'Alene
...Planning Act of 1975]." See also, City of Scottsdale v. Superior Court, 103 Ariz. 204, 439 P.2d 290 (Ariz.1968); Kelley v. John, 162 Neb. 319, 75 N.W.2d 713 (Neb.1956); Forman v. Eagle Thrifty Drugs & Markets, Inc., 89 Nev. 533, 516 P.2d 1234 (Nev.1973); Township of Sparta v. Spillane, 125 ......
-
City of Eastlake v. Forest City Enterprises, Inc
...P. 932, 935-936 (1927); Hilltop Realty, Inc. v. City of South Euclid, 110 Ohio App. 535, 164 N.E.2d 180 (1960). Compare Kelley v. John, 162 Neb. 319, 75 N.W.2d 713 (1956), with In re Frank, 183 Neb. 722, 723, 164 N.W.2d 215, 216 The Ohio Supreme Court further concluded that the amendment to......
-
Ball v. Jones
...general in terms, affected only a single situation. The council's action is subject to judicial review.' 158 A.2d 726. In Kelley v. John, 162 Neb. 319, 75 N.W.2d 713, the Supreme Court of Nebraska held that the governing body of the City of McCook in adopting a rezoning ordinance was acting......