Seward County Bd. of Com'rs v. City of Seward

• Decision Date: 02 June 1976
• Docket Number: No. 40292,40292
• Citation: 242 N.W.2d 849,196 Neb. 266
• Parties: SEWARD COUNTY BOARD OF COMMISSIONERS et al., Appellants, v. CITY OF SEWARD, Nebraska, a Municipal Corporation, et al., Appellees. Ed BRINKMEYER, Jr., et ux., Appellant, v. CITY OF SEWARD, Nebraska, a Municipal Corporation, et al., Appellees. Norman LUEBBE et ux., Appellants, v. CITY OF SEWARD, Nebraska, a Municipal Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 849

242 N.W.2d 849

196 Neb. 266

SEWARD COUNTY BOARD OF COMMISSIONERS et al., Appellants, v. CITY OF SEWARD, Nebraska, a Municipal Corporation, et al., Appellees.

Ed BRINKMEYER, Jr., et ux., Appellant, v. CITY OF SEWARD, Nebraska, a Municipal Corporation, et al., Appellees.

Norman LUEBBE et ux., Appellants, v. CITY OF SEWARD, Nebraska, a Municipal Corporation, et al., Appellees.

No. 40292.

Supreme Court of Nebraska.

June 2, 1976.

Syllabus by the Court

1. The propriety of a taking of property by eminent domain is not defeated by the fact that the purpose for which the property is taken is a use prohibited by the zoning regulations. Zoning permitting a contemplated use is not a condition precedent to a taking.

2. Section 18--1716, R.R.S.1943, was designed to eliminate overlapping in municipal extraterritorial zoning.

3. The power of eminent domain is inherently superior to the exercise of the zoning power, and the grant of eminent domain power to a governmental unit renders the unit immune from zoning regulation.

4. Although the governmental proprietary distinction may be a useful device for limiting governmental tort immunity, it is not appropriate for the resolution of zoning conflicts.

5. Under sections 25--2501 to 25--2506, R.S.Supp., 1974, the uniform procedure for acquiring private property for public use act, the hearing is not a hearing to justify the taking itself, but is in the nature of a 'town meeting' to explain the taking and to inform landowners of their procedural rights.

Curtis H. Evans, County Atty., Seward, for Seward County Bd. of commissioners.

Blevens, Bartu, Blevens & Jacobs, Bryce Bartu, Seward, for Brinkmeyer and Luebbe.

Baird, Holm, McEachen, Pedersen, Hamann & Haggart, Thomas E. Johnson, Omaha, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON and BRODKEY, JJ.

BRODKEY, Justice.

This is a consolidated appeal from a decree entered by the District Court for Seward County, Nebraska, on July 2, 1975, dismissing the petitions in three separate actions previously consolidated for trial. We affirm.

The historical background of this litigation is as follows. The City of Seward has, for many years, endeavored to establish a municipal airport. Prior efforts have apparently been unsuccessful. See Bruns v. City of Seward, 186 Neb. 658, 185 N.W.2d 853 (1971). The City of Seward, however, has persevered in its efforts to obtain an airport. In furtherance of that purpose, on September 27, 1974, it instituted eminent domain proceedings in the county court of Seward County, Nebraska, in an action entitled City of Seward, Nebraska, for and on behalf of the Seward Airport Authority, condemners, v. Edward W. Brinkmeyer, Jr., and Lucille Brinkmeyer, husband and wife; Norman Luebbe and Naomi Luebbe, husband and wife, et al., condemnees. The condemnees were all owners of real estate, or interests therein, comprising the site of the proposed airport. Under the statutes of this state, municipalities, including cities, and airport authorities created by such cities, are authorized to acquire property for the purpose of establishing, constructing, and enlarging airports; and, for that purpose and granted powers of condemnation. See, §§ 3--201 to 3:204, 3:503, and 3--504, R.R.S.1943. See, also, § 3--504, R.S.Supp., 1975.

In the condemnation proceeding the appraisers appointed by the county court took their oath of office; inspected the respective properties involved; heard the interested parties on the question of valuation and damages; and, on May 12, 1975, filed their returns as to the value of the property of each of the condemnees, including the Brinkmeyers and the Luebbes, who on May 14, 1975, filed notice of appeal to the District Court for Seward County.

The record discloses, however, that in October 1974, shortly after the commencement of the condemnation proceedings in county court on September 27, 1974, but prior to the award of the appraisers, the Seward County Board of Commissioners, under the authority contained in section 23--114.05, R.R.S.1943, filed an action in equity in the District Court for Seward County for the purpose of compelling enforcement of its county zoning regulations. It claimed these zoning regulations would be violated by the use of the property in question for airport purposes, and prayed that the City of Seward and the Seward Airport Authority be restrained and enjoined from proceeding in any manner with regard to the proposed airport project. At the same time, the Brinkmeyers and the Luebbes filed separate actions in the District Court praying for the same relief. These are the three actions to which we previously referred as being consolidated for trial on January 6, 1975. The temporary restraining orders, entered on October 31, 1974, against the defendants-appellees, were dissolved on April 7, 1975. The defendants-appellees thereafter filed their respective answers, and the consolidated cases were tried on the merits on April 21, 1975. The court entered its decree on July 2, 1975, finding in favor of the defendants and dismissing all the petitions. The Seward County Board of Commissioners, the Brinkmeyers, and the Luebbes then perfected their consolidated appeal to this court.

It is conceded that the tract of land involved in this action lies outside the zoning jurisdiction of the City of Seward. On September 4, 1973, the Seward County Board of Commissioners, upon recommendation of the Seward County planning commission, adopted by resolution county zoning regulations, which incorporated a comprehensive development plan and a zoning map for Seward County. Prior to the adoption of the county zoning regulations, Norman Luebbe appeared before the Seward County planning commission, and requested and received commercial and residential zoning use designations for the Luebbe property. The Brinkmeyers also requested and received residential zoning use designation for 20 acres of their property. At the time of the commencement of the eminent domain proceedings in the county court, an airport was a permitted conditional use in an agricultural area, but was not a permitted conditional use in a residential area. During the pendency of the proceedings, the county zoning ordinance was amended on April 15, 1975, by repealing the section that permitted airports as a conditional use in an agricultural area, and substituting the provision that an airport was a principal use permitted in the C--1 commercial district. No request was made by the defendants-appellees for a modification of the provisions of the ordinance. There is no question that under the terms of the county zoning ordinance, as it presently exists, the construction of the airport on the land in question would not be permitted.

Appellants in their brief list seven assignments of error which they claim require reversal of the District Court's judgment. Only three of these require discussion. They contend that the court erred: (1) In finding that the City of Seward and the Seward Airport Authority were not subject to the Seward County zoning regulations; (2) in finding that zoning was not a condition precedent to the exercise of eminent domain; and (3) in finding that the City of Seward and the Seward Airport Authority had complied with sections 25--2501 to 25--2506, R.S.Supp., 1974. Appellants concede in their brief and oral argument that the basic question to be determined is whether the City of Seward and the Seward Airport Authority in exercising their statutory powers to establish an airport in an area outside the city's corporate limits are subject to the zoning regulations of the county. While we shall discuss that issue in this opinion, we first wish to comment on appellants' claim that the finding of the District Court that zoning is not a condition precedent to the exercise of the power of eminent domain was erroneous. Appellants contend that the Seward Airport Authority may not take any land except that which has been zoned to permit an airport, and it has to be so zoned before it may be taken.

The general rule is that the propriety of a taking of property by eminent domain is not defeated by the fact that the purpose for which the property is taken is a use prohibited by the zoning regulations. 101 C.J.S. Zoning § 137, p. 896. In West v. Housing Authority of City of Atlanta, 211 Ga. 133, 84 S.E.2d 30 (1954), the court held that despite a statutory provision that the Atlanta Housing Authority was amenable to zoning ordinances, the authority's compliance with ordinances and regulations was not a condition precedent to its condemning private property. In Sellors v. Town of Concord, 329 Mass. 259, 107 N.W.2d 784 (1952), the court was faced with a similar problem, and in its opinion stated: 'That a possibility exists that the land may not be devoted to the proposed uses cannot be denied. But in the absence of evidence that the town cannot reasonably expect to achieve its public purposes, we cannot deny its right to take land by eminent domain. Obviously in the carrying out of the projects contemplated by the town many steps must be taken, and they cannot all be taken at once. The town would hardly be in a position to ask the board of appeals for permission to use the land for municipal purposes before it had acquired the land. It would have to appropriate funds for the construction of the proposed buildings. And, conceivably, it might have to borrow money and issue bonds for this purpose. Very likely the services of an architect would be required and authority to employ him would be necessary. Perhaps building permits would also be required. It is possible, therefore, that the proposed buildings might never be built because of the failure of the town to obtain or grant authority with respect to one or more of these matters. But it would be unreasonable to hold that the town could not exercise the power of eminent domain until all steps necessary to the carrying...