Landrum v. City of Omaha Planning Bd.

• Decision Date: 14 July 2017
• Docket Number: No. S-16-383.,S-16-383.
• Citation: 899 N.W.2d 598,297 Neb. 165
• Parties: Matthew LANDRUM et al., appellants and cross-appellees, v. CITY OF OMAHA PLANNING BOARD et al., appellees and cross-appellants, and Daryl Leise et al., appellees.
• Court: Nebraska Supreme Court

297 Neb. 165

899 N.W.2d 598

Matthew LANDRUM et al., appellants and cross-appellees,

v.CITY OF OMAHA PLANNING BOARD et al., appellees and cross-appellants, and Daryl Leise et al., appellees.

No. S-16-383.

Supreme Court of Nebraska.

Filed July 14, 2017.

Rex J. Moats, Elkhorn, and Margaret A. McDevitt, Omaha, of Moats Law Firm, P.C., L.L.O., for appellants.

Russell S. Daub, Omaha, for appellees Daryl Leise et al.

Alan M. Thelen, Deputy Omaha City Attorney, for appellees City of Omaha Planning Board et al.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Kelch, J.

I. INTRODUCTION

Matthew Landrum, Shandra Landrum, Rex Moats, Diane Moats, Edward Malesa, and Valerie Malesa (Homeowners) appeal the order of the district court for Douglas County that dismissed their amended petition in error. The Homeowners sought to challenge a conditional use permit issued by the Omaha Planning Board (Planning Board) and a special use permit and rezoning granted by the Omaha City Council (City Council). The City of Omaha (City), the Planning Board, and the City Council cross-appeal, arguing that the Homeowners' petition in error was untimely and that the district court lacked subject matter jurisdiction. We dismiss for lack of jurisdiction that portion of the Homeowners' appeal concerning rezoning and a special use permit, and we vacate the corresponding portion of the district court's order. However, because the Planning Board acted within its jurisdiction, based its findings on sufficient evidence, and afforded the Homeowners due process, we affirm the district court's order in regard to the conditional use permit.

II. BACKGROUND

1. PROCEDURAL BACKGROUND

This appeal arises from permits and rezoning granted to Daryl Leise; Redbird Group, LLC; and Ray Anderson, Inc. (collectively the Developers), for a proposed convenience storage and warehouse facility to be constructed on real estate in the Omaha area (subject property). Ray Anderson, Inc., is the current owner of the subject property.

The City carries out its zoning powers through the enactment and enforcement of its zoning code, Omaha Municipal Code, chapter 55.

The Omaha Municipal Code designates various base zoning districts, including a "community commercial" (CC) district, which is the designation of the subject property. Omaha Mun. Code, ch. 55, art. VIII, § 55-362 (1980). Further, the code provides for a special "overlay district" that can be "overlaid" upon a property in addition to its base zoning district. Omaha Mun. Code, ch. 55, art. XI, § 55-682 (2007). One type of overlay district is the "major commercial corridor" (MCC) district, for which Leise applied in this case. See id. The zoning regulations enumerate various use types. For the subject property, Leise sought the use types "[w]arehousing and distribution (limited)," see Omaha Mun. Code, ch. 55, art. III, § 55-49(h) (1980) (emphasis omitted), and "[c]onvenience storage," see Omaha Mun. Code, ch. 55, art. III, § 55-45(m) (2007) (emphasis omitted). The "[w]arehousing and distribution (limited)" use type is allowed subject to approval of a conditional use permit. Omaha Mun. Code, ch. 55, art. VIII, § 55-364(e) (2008). Similarly, a special use permit is required for convenience storage in the CC district. Omaha Mun. Code, ch. 55, art. VIII, § 55-365(c) (2008).

As noted above, Leise sought to place the subject property into the MCC overlay district while maintaining the base CC zoning district. Buildings built within the MCC overlay district are subject to certain urban design rules. See Omaha Mun. Code, ch. 55, art. XI, §§ 55-682 through 55-687 (2007), and Omaha Mun. Code, ch. 55, art. XXII, §§ 55-927 through 55-936 (2007). These urban design rules provide for enhanced regulation of screening, parking, site and building access, landscaping, and general building design guidelines. Id.

In sum, to proceed with the proposed project, the Omaha Municipal Code required three zoning approvals from the City: a conditional use permit, which could be issued by the Planning Board; a special use permit, which could be granted by the City Council after a recommendation by the Planning Board; and a rezoning, which could be granted by the City Council after a recommendation by the Planning Board, to place the subject property within the MCC overlay district. See Omaha Mun. Code, ch. 55, art. XX, § 55-883(h) and (k) (2008), § 55-884(g)(3) (2008), and § 55-886(f) and (g) (1980).

2. MUNICIPAL PROCEEDINGS

The subject property is a 4.75-acre vacant lot at the north-east corner of 204th Street (Highway 31) and Farnam Street, located near a residential area. Leise's statement of proposed use and plans for the subject property anticipated constructing a three-story storage building, resembling an office building, with internal storage spaces. Leise also proposed constructing five single-story storage buildings with garage-type stalls. The storage facilities would contain 700 storage spaces for rental to customers, with estimated visits of two or three cars per hour.

Leise submitted a proposed concept design to the City's planning department. The concept design, dated February 17, 2015, provided preliminary specifications to demonstrate compliance with site development, landscaping, and buffer requirements for a CC property.

After reviewing the proposed concept design, the planning department issued a responsive letter, dated February 27, 2015. The planning department summarized the proposed project's classification and permit requirements under the Omaha Municipal Code.

The planning department scheduled the matter for a May 6, 2015, hearing before the Planning Board. On March 20, the planning department issued the following notice via a letter to residents near the proposed project site: "NOTICE OF REQUEST FOR: Approval of a Special Use Permit to allow Convenience storage and a Conditional Use Permit to allow Warehousing and distribution (limited) in a CC-Community Commercial District, with approval of an MCC-Major Commercial Corridor Overlay District." The notice further invited any interested persons to hear and comment on the proposal, which was on file at the planning department, and provided details about the approval procedure and hearing.

On April 6, 2015, Leise submitted a planning department zoning application form. The application form allowed the applicant to check boxes to select a special use permit, a conditional use permit, and "Other." Leise's application selected a special use permit and "Other," specifying "Adopt MCC Overlay District," but a conditional use permit was not selected. The application form provided basic factual information, including the address and legal description of the subject property, its owner, the applicant, a contact person, and information on proposed building, parking, and landscaping. Leise incorrectly identified the property owner as "Ray Anderson c/o Anderson Food Shops," rather than "Ray Anderson, Inc." Leise listed himself as the applicant and contact person. There were illegible signatures on the lines designated for "Owner's Signature" and "Applicant Signature." Under the applicant's signature, the form states, "(If not the property owner, the applicant certificates [sic] with this signature to be the authorized agent of the property owner.)"

On April 29, 2015, the planning department issued a recommendation report that analyzed the proposed project in light of applicable portions of the Omaha Municipal Code. The report noted that the adjacent land use was primarily residential. It stated that before the City annexed the subject property and converted it to a CC district, it was originally zoned "C-3 Highway Commercial" by the City of Elkhorn, a designation which allowed warehousing and distribution as a permitted use. The report noted that conditionally, Leise's permit request was in substantial conformance with "the zoning ordinance" and the City's master plan. The report further evaluated the proposed uses pursuant to specific portions of Omaha Mun. Code, ch. 55, art. XX, § 55-885 (2008), which sets forth criteria for the review and evaluation of applications for conditional use permits and special use permits. It deduced that the proposed uses would comply with those criteria and that the economic impact on surrounding properties would be acceptable. The report recommended (1) approval of "the MCC-Major Commercial Overlay District," (2) approval of the special use permit to allow convenience storage in "a CC-MCC District" subject to plan revisions for compliance with zoning regulations, and (3) approval of the conditional use permit to allow "Warehousing and distribution (limited) in a CC-MCC District," subject to plan revisions for compliance with zoning regulations.

On May 5, 2015, residents near the subject property submitted to the Planning Board a "Petition" with 52 signatures, expressing opposition to the proposed project. Residents also submitted letters and email messages detailing the reasons for their opposition, which included safety risks, lack of sufficient buffer space from adjacent homes, increased risk of crime, excessive light from the development, lack of continuity with the adjacent homes, and adverse effects on property values.

The Planning Board held a public hearing on Leise's requests on May 6, 2015. Leise appeared and described the proposal. Several neighborhood opponents also spoke, including one of the Homeowners. Opponents generally expressed that they were not yet familiar with the plan. They opined that the structure would not "fit" with the nearby residential neighborhoods and may contribute to crime and obstruct views. A real estate broker with 14 years' experience and others stated that the structure would be detrimental to the neighboring residents' property values. Other concerns included lighting, safety, and compliance with the City's master plan. Some opponents stated that they had not been personally informed about the project and that they ...