Sanitary and Imp. Dist. No. 347 of Douglas County v. City of Omaha

• Decision Date: 02 February 1999
• Docket Number: No. A-97-831,A-97-831
• Citation: Sanitary and Imp. Dist. No. 347 of Douglas County v. City of Omaha, 589 N.W.2d 160, 8 Neb.App. 78 (Neb. App. 1999)
• Court: Nebraska Court of Appeals
• Parties: SANITARY AND IMPROVEMENT DISTRICT NO. 347 of Douglas County, Nebraska, and Christopher B. Dennis, appellees, v. CITY OF OMAHA and Simmonds Restaurant Management, Inc., appellants.

Page 160

589 N.W.2d 160

8 Neb.App. 78

SANITARY AND IMPROVEMENT DISTRICT NO. 347 of Douglas County, Nebraska, and Christopher B. Dennis, appellees, v.CITY OF OMAHA and Simmonds Restaurant Management, Inc., appellants.

No. A-97-831.

Court of Appeals of Nebraska.

Feb. 2, 1999.

Syllabus by the Court

1.Equity: Appeal and Error.In an appeal from an equitable action, the reviewing court reviews the action de novo on the record and reaches a conclusion independent of the factual findings of the lower court; however, where credible evidence is in conflict on a material issue of fact, the reviewing court considers and may give weight to the circumstance that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

2.Equity: Ordinances: Injunction: Appeal and Error.An action to enjoin enforcement of a city ordinance is one in equity, which is tried de novo on the record, and is subject to the rule that where credible evidence is in conflict on issues of material facts, an appellate court will consider the fact that the trial court observed the witnesses and accepted one version of the facts over another.

3.Zoning: Ordinances: Presumptions: Evidence.The validity of a zoning ordinance is presumed in the absence of clear and satisfactory evidence to the contrary.

4.Judgments: Appeal and Error.On questions of law, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court.

5.Actions: Parties: Standing.Before a party is entitled to invoke a court's jurisdiction, that party must have standing to sue, which involves having a real interest in the cause of action.

6.Actions: Parties: Standing.To have standing to sue, a party must have some legal or equitable right, title, or interest in the subject matter of the controversy, and the purpose of the standing inquiry is to determine whether the party has a legally protected interest or right in the controversy that would be benefited by the relief to be granted.

7.Actions: Municipal Corporations: Injunction: Proof.In situations where a party seeks to restrain an act of a municipal body, the party must show some special injury peculiar to himself aside from a general injury to the public, and it is not sufficient that the party bringing the suit has merely a general interest common to all members of the public.

8.Actions: Standing.Standing is not merely a pleading requirement, but an indispensable component of a party's case.

9.Sanitary and Improvement Districts: Property: Contracts.A sanitary and improvement district shall have the power and authority to take and hold real and personal property necessary for its use, to make contracts, to sue and be sued, and to exercise any and all other powers, as a corporation necessary to carry out the purposes of Neb.Rev.Stat. §§ 31-727 to 31-762(Reissue 1998).

10.Sanitary and Improvement Districts: Standing.The common-law principle of standing involves something far beyond the mere fact that a sanitary and improvement district is statutorily authorized to file a lawsuit.

11.Standing: Demurrer.A petition is subject to demurrer if it fails to show that the plaintiff has standing to sue.

12.Zoning: Ordinances: Standing.Ordinarily, one whose property is not located within a zoned area has no standing to attack the zoning ordinances or measures applicable to the zoned area.

13.Zoning: Real Estate: Valuation: Standing.Concerns based upon diminution of real estate values and congestion from increased traffic are typically inadequate to give a "neighbor" standing to challenge a zoning change.

14.Zoning: Standing: Proof.Individual or corporate property owners acquire standing by asserting a plausible claim of a definitive violation of a private right, a private property interest, or a private legal interest which they must establish by direct facts rather than speculative personal opinion that their injury is special and different from the concerns of the rest of the community.

15.Zoning: Appeal and Error.Only a person aggrieved may challenge a decision of a zoning board of appeals, which is held to mean a person who has suffered some infringement of his legal rights which is more than speculative.

16.Zoning: Improvements: Damages: Appeal and Error.The mere increase in traffic congestion adjacent to one's property as the result of improvements erected on nearby property and the attendant inconvenience resulting therefrom which are damages suffered alike by all property owners similarly situated, does not give to one individual such a substantial interest in the decision of a zoning commission permitting the improvement as to authorize an appeal therefrom.

17.Sanitary and Improvement Districts: Highways.Neb.Rev.Stat. § 31-740(Reissue 1998) imposes an affirmative duty on a sanitary and improvement district for the maintenance and improvement of the roads within its boundaries.

James B. Cavanagh, of Lieben, Dahlk, Whitted, Houghton, Slowiaczek & Jahn, P.C., Omaha, for appellantSimmonds Restaurant Management, Inc.

Bernard J. In Den Bosch and Charles K. Bunger, Omaha, for appellantCity of Omaha.

Ronald W. Hunter, Omaha, for appellees.

IRWIN, Chief Judge, and HANNON and SIEVERS, Judges.

SIEVERS, Judge.

The Omaha City Council adopted a zoning ordinance which rezoned a portion of Greenfields Plaza from a limited commercial district (LC) to a community commercial district (CC).After the zoning change, the property was purchased by Simmonds Restaurant Management, Inc., (Simmonds).The change would allow Simmonds to construct a Burger King restaurant with a drive-through window on the property, as it wished to do.That Burger King project was the focus of the rezoning proceedings before the city council.The land is fully described in the lower court pleadings and proceedings.Thus, for our purposes, it is sufficient to refer to it simply as parts of Lots G and H in Greenfields Plaza.The land is located immediately to the southwest of the intersection of 156th Street and West Dodge Road.Sanitary and Improvement DistrictNo. 347 of Douglas County, Nebraska (SID No. 347), and Christopher B. Dennis(Dennis) sued the City of Omaha(City) and Simmonds in the district court for Douglas County to void the zoning change.The district court found that the change of zoning was unreasonable and arbitrary and, as a result, null and void.

FACTUAL BACKGROUND

On May 17, 1994, the city council adopted ordinance No. 33268, which changed the zoning of Lots G and H in Greenfields Plaza from LC to CC.The change would allow the construction and operation of a fast-food restaurant with a drive-through facility.Simmonds had an agreement to purchase the site, conditioned upon it being rezoned to CC.Simmonds purchased the site in August 1994 for $250,000.In late September 1994, SID No. 347 and Dennis filed their lawsuit to enjoin the implementation of rezoning ordinance No. 33268.We have included a drawing of the area involved in this litigation which shows the intersection of West Dodge Road and 156th Street, an access road (which we will refer to as "South Frontage Road"), Greenfields Plaza, and some of the surrounding neighborhood.Immediately to the southwest of the intersection of 156th Street and West Dodge Road lies Greenfields Plaza, which has no direct access from West Dodge Road.One can get into Greenfields Plaza by turning southbound off of West Dodge Roadat 163d Street and proceeding eastbound on Chicago Street which turns into South Frontage Road as it passes in front of Greenfields Plaza.A second method to get into Greenfields Plaza is to exit from 156th Street westbound onto South Frontage Road.South Frontage Road ultimately runs along the north edge of Greenfields Plaza and intersects with 156th Street.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1987, Greenfields Plaza was initially zoned LC, but by the spring of 1994, the surrounding area had changed with the construction of approximately 300 single-family homes.Some historical perspective may be helpful.B.H.I. Development, Inc.(BHI), the owner of Greenfields Plaza, filed an application in 1990 with the city planning department for the rezoning of a portion of Greenfields Plaza, Lots 193 and 194, from LC to CC to allow for the construction of a Goodyear tire store.The city planning board initially recommended denial of this zoning change but granted a motion for reconsideration.After a second hearing, the city planning department maintained its recommendation to deny the rezoning, but the city planning board reversed itself and on a 4-to-3 vote recommended the rezoning from LC to CC for the Goodyear store.The city council granted that zoning change.

Residents of the Greenfields residential subdivision instituted litigation to stop the rezoning of Lots 193 and 194 in Greenfields Plaza for the Goodyear store.In the settlement of that litigation, BHI agreed that it would not submit a future request for rezoning for six specified uses: (1) automotive washing, (2) hotel-motel, (3) pawnshop services, (4) auto repair, (5) laundry services, and (6) video arcade entertainment.Thereafter, the proposal to rezone Lots G and H to LC so that Simmonds could build a Burger King with a drive-through emerged.

In the course of the rezoning process for Lots G and H and the passage of ordinance No. 33268, an attorney for the board of trustees of SID No. 347 wrote a letter to the city clerk and sent copies of the letter to city council members.This letter states:

The Board of Trustees wish[es] to make it clear that it does not take any position, either for or against the proposed rezoning of the Burger King store.The SID's only interest is whether there is presently a traffic problem at the intersection of the frontage road and 156th Street, whether there will be one in the foreseeable future, and, if there is...