Smith v. City of Papillion

Citation270 Neb. 607,705 N.W.2d 584
Decision Date10 November 2005
Docket NumberNo. S-04-1358.,S-04-1358.
PartiesJon SMITH et al., appellants, v. CITY OF PAPILLION, Nebraska, a city of the first class located in Sarpy County, Nebraska, et al., appellees.
CourtSupreme Court of Nebraska

Michael D. McClellan and William E. Gast, of Gast & McClellan, Omaha, for appellants.

Michael N. Schirber, of Schirber & Wagner, L.L.P., Papillion, for appellee City of Papillion.

James M. Bausch, Shawn D. Renner, and Steven M. Delaney, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellee Market Pointe, L.L.C.

Irving B. Epstein, of Epstein & Epstein, Omaha, for appellee Kae S. Pavlik, trustee of the Duane M. Pavlik Family Trust.

CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

After the Papillion City Council took action to amend the City of Papillion's comprehensive development plan and rezone a parcel of land to accommodate a large commercial development, adjacent landowners brought an action to declare such actions void and enjoin any activity consistent with the rezoning. The district court denied the landowners' requests, and they appealed. For the following reasons, we affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

The City of Papillion hired an urban planner to prepare a comprehensive development plan (CDP) for the city in 1995 and again in 2002. The 2002 CDP was adopted via resolution No. 1275 on September 3, 2002, and highlighted the area of 72d Street and Highway 370 for significant commercial development. In early 2004, the planner was contacted by the city to draft an amendment to the 2002 CDP to accommodate a large commercial project under consideration. Specifically, he was instructed to opine as to whether the area in the southeast quadrant of the intersection of 72d Street and Giles Road was a "defensible site" for commercial development and to prepare a plan amendment addressing that property.

In May 2004, the City of Papillion approved the amendment as resolution No. R04-0054, amending the 2002 CDP to allow for commercial development of approximately 75 acres of property southeast of the intersection of 72d Street and Giles Road. The proposed development included construction of a Wal-Mart Supercenter on the site, along with other businesses, forming a development called Market Pointe. In July 2004, the city passed ordinance No. 1443, changing the zoning of the site from agricultural to mixed use, and approved resolutions Nos. R04-0083 through R04-0086, which dealt with a final plat, mixed-use development agreement, subdivision agreement, and water connection agreement for the site. According to the Papillion city code, the mixed-use classification is meant to accommodate projects that combine several compatible land uses into an integrated development.

The plaintiffs—11 individuals who own real property adjacent to the site (the Homeowners)—filed a complaint against the owner of the site, Kae S. Pavlik, trustee of the Duane M. Pavlik Family Trust; the developers, The R.H. Johnson Company and Papillion Place, L.L.C., also known as Market Pointe, L.L.C.; and the city (collectively the Defendants). The Homeowners sought a judgment declaring the approval of ordinance No. 1443 and the related development plans and agreements to be invalid and void, in violation of the city code and the Homeowners' due process rights. In addition, the Homeowners sought a judgment declaring resolution No. R04-0054 to be illegal and void, arbitrary and capricious, and a violation of the Homeowners' due process rights. Finally, the Homeowners sought an order temporarily and permanently restraining the Defendants from engaging in any activity authorized by the approval of ordinance No. 1443, the zone change from agricultural to mixed use, and any related development plans.

The Defendants filed motions for summary judgment, which came on for hearing in September 2004. In its order dated September 15, 2004, the district court overruled the Defendants' motions for summary judgment and set trial for the case on September 22. The court also denied the Homeowners' request for a temporary restraining order.

Thereafter, the Homeowners filed a motion for continuance and to correct the record by vacating the court's ruling on their temporary restraining order. In their motion, the Homeowners explained that no motion or application for a temporary restraining order had been made by any of the parties to the action and that, thus, the court's ruling on such a motion should be vacated and stricken from the record. The court overruled both motions. In response to the Homeowners' request to correct the record, the court explained that its decision denying the temporary restraining order was in reference to the Homeowners' request for an order restraining the Defendants from activity authorized by the passage of ordinance No. 1443, as set forth in their complaint. Trial commenced on September 22, 2004.

In its judgment of November 29, 2004, the district court denied the Homeowners' request for injunctive relief and concluded that resolution No. R04-0054 was properly adopted by the city as part of the CDP and was not arbitrary, discriminatory, or unreasonable. In addition, the district court found that resolutions Nos. R04-0083 through R04-0086 and ordinance No. 1443 were valid and not unreasonable, discriminatory, or arbitrary. The court determined that the resolutions and ordinance were a proper exercise of the city's police powers and consistent with the public health, safety, morals, and general welfare of the citizens. The Homeowners timely appealed.

ASSIGNMENTS OF ERROR

The Homeowners assign, summarized and restated, that the district court erred in (1) finding that resolution No. R04-0054 was effective to amend the city's CDP, (2) finding that ordinance No. 1443 was a valid exercise of the city's zoning power, (3) failing to find that the rezoning was done for an improper purpose and was therefore invalid, and (4) failing to sustain their motion to correct the record by striking the court's ruling on a motion for a temporary restraining order.

STANDARD OF REVIEW

An action for declaratory judgment is sui generis; whether such an action is to be treated as one at law or one in equity is to be determined by the nature of the dispute. State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 (2004).

An action to declare a zoning ordinance void and to enjoin its enforcement is equitable in nature. Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680, 515 N.W.2d 401 (1994); Giger v. City of Omaha, 232 Neb. 676, 442 N.W.2d 182 (1989). 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. Giger, supra.

ANALYSIS

Homeowners Have Standing to Pursue Present Action.

Standing is the legal or equitable right, title, or interest in the subject matter of the controversy. Cornhusker Pub. Power Dist. v. City of Schuyler, 269 Neb. 972, 699 N.W.2d 352 (2005). The requirement of standing is fundamental to a court's exercise of jurisdiction, and either a litigant or a court before which a case is pending can raise the question of standing at any time during the proceeding. Stevens v. Downing, Alexander, 269 Neb. 347, 693 N.W.2d 532 (2005). Prior to argument, the parties were directed to submit supplemental briefs addressing whether the Homeowners have standing to challenge the validity of the rezoning at issue in this case. For the reasons that follow, we conclude that the Homeowners have standing in the present case.

In support of the Homeowners' argument that they have standing to challenge the validity of the rezoning accomplished by the city council in this case, they cite Eastroads, Inc. v. City of Omaha, 237 Neb. 837, 467 N.W.2d 888 (1991). In Eastroads, Inc., the plaintiff filed a petition for declaratory judgment against the defendants to declare a rezoning ordinance invalid and enjoin construction on the property in question. The district court found that the plaintiff had no standing to bring the action and granted summary judgment in favor of the defendants. On appeal, the plaintiff argued that the ordinance was arbitrary and unreasonable because of a question of ownership of the property and authority of the applicant to act for the owners in requesting the zone change. In our discussion of the issue, we cited several cases from other jurisdictions addressing irregularities in an application for rezoning property. We then concluded that although adjacent landowners have standing to object to the rezoning of property, they do not have standing to object to an irregularity in the application itself without demonstrating prejudice caused by the irregularity. Thus, we determined that the plaintiff had no standing to attack any irregularity in the application for a zoning change by reason of ownership of the property. Id.

In contrast to the Homeowners' argument, the Defendants rely on the reasoning of the Nebraska Court of Appeals in SID No. 347 v. City of Omaha, 8 Neb. App. 78, 589 N.W.2d 160 (1999). In SID No. 347, the property at issue was rezoned to permit construction of a fast-food restaurant and drive-through in Greenfields Plaza in Omaha. A neighborhood resident filed an action to enjoin implementation of the zoning change. The district court voided the rezoning, and the City of Omaha and the developer appealed. In addressing whether the resident had standing to bring the action, the Court of Appeals stated:

In situations where a party seeks to restrain an act of a municipal body, as is the case here, the party must show some special injury peculiar to...

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