Stec v. Countryside of Hastings, Inc., 38938
Decision Date | 23 November 1973 |
Docket Number | No. 38938,38938 |
Citation | 212 N.W.2d 561,190 Neb. 733 |
Parties | Phillip J. STEC and Anna L. Stec, husband and wife, et al., Appellees, v. COUNTRYSIDE OF HASTINGS, INC., a Nebraska corporation, Appellant, Impleaded with City of Hastings, a municipal corporation, et al., Appellants. |
Court | Nebraska Supreme Court |
Syllabus by the Court
In the law of land use the approval of a conditional use permit in the nature of a special exception use by the legislative body of a political subdivision is ordinarily subject to a statutory provision that requires a favorable three-fourths majority vote in event of requisite protests against a change or supplement of regulations or restrictions.
Gerald T. Whelan, Hastings, for Countryside of Hastings.
Duane L. Stromer, Hastings, for City of Hastings and others.
Ronald R. Fitzke, Hastings, for appellees.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.
In question is the meaning of a statutory requirement for amendment of a municipal regulation of zoning. In a declaratory judgment action, the District Court adjudged that the requirement governed a municipal grant of a special use permit for a mobile home park. The applicant for the permit and the city appeal.
The applicant, Countryside of Hastings, Inc., sought the permit for a tract of approximately proximately 25 acres located within the extraterritorial zoning jurisdiction of Hastings, a city of the first class. Objections were signed by almost all the adjacent resident-landowners, but the signatures were not acknowledged. Representatives of the protesters presented the petition to the city council of Hastings. The council heard the matter, but did not learn that the protesters represented approximately 100 percent of the adjacent owners. The application was approved by the council on a roll call vote of 5 ayes and 3 nays, less than a three-fourths majority.
The statutory provision in question reads in part as follows: § 19--905, R.R.S.1943. The substance of the provision has been in effect since adoption of the zoning statute in 1927. See Laws 1927, c. 43, § 5, p. 183.
The record contains two sections of the Hastings code. Section 4--331 requires the protest to be 'duly signed and acknowledged.' Section 4--318 provides for special use permits: The section enumerates over 20 uses, some with restrictions. The important one here reads:
The two sections of the Hastings code do not differentiate between mobile homes and travel trailers. The Uniform Standard Code, on the other hand, does so. See § 71--4603(1) and (2), R.R.S.1943.
Some statutory language refers generally to structures, use of land, formation of districts, and uniformity in language similar to that of the act of 1927. It also provides for a comprehensive development plan. See §§ 19--901 through 19--903, R.R.S.1943.
A statutory section central to the problem reads: § 19--904, R.R.S.1943. At the periphery of the problem lies the Uniform Standard Code for Mobile Homes and Travel Trailers. §§ 71--4601 through 71--4609, R.R.S.1943.
Countryside and the city argue that the municipal code requirement for acknowledgments of signatures by protesters was valid and applicable. They assert that the code requirement is stricter than is the statutory demand of a three-fourths majority vote and that the lack of the acknowledgment necessitates reversal of the District Court judgment.
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State Theatre Co. v. Smith
...The Law of Zoning and Planning § 28-4 (1978); Nardone v. Ryan, 266 N.Y.S.2d 847, 49 Misc.2d 93 (1966); Stec. v. Countryside of Hastings, Inc., 190 Neb. 733, 212 N.W.2d 561 (1973); Cutter v. Durham, 109 N.H. 33, 241 A.2d 216 (1968). Consequently, SDCL 11-4-5 is Finally, State Theatre argues ......
- Kroeger v. Franchise Equities Inc.