Strode v. City of Neb.
| Decision Date | 28 October 2016 |
| Docket Number | No. S-15-956.,S-15-956. |
| Citation | 886 N.W.2d 293,295 Neb. 44 |
| Parties | Randy Strode and Helen Strode, appellants, v. City of Ashland, Nebraska, and Saunders County, Nebraska, appellees. |
| Court | Nebraska Supreme Court |
Terry K. Barber, of Barber & Barber, P.C., L.L.O., Lincoln, for appellants.
Mark A. Fahleson and Sheila A. Bentzen, of Rembolt Ludtke, L.L.P., Lincoln, for appellee City of Ashland.
Duke Drouillard and Steven J. Twohig, Deputy Saunders County Attorneys, for appellee Saunders County.
Heavican, C.J., Wright, Mille-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
Randy Strode and Helen Strode seek review of the district court's decision dismissing Randy's zoning regulation inverse condemnation claim, granting a motion for summary judgment on Helen's zoning regulation inverse condemnation claim, and granting a motion for summary judgment on the Strodes' takings claim based on the load limit posted on a bridge located near their property. We affirm.
First, we hold that Randy is barred from bringing his inverse condemnation claim, because the statute of limitations on his claim for compensation began to accrue at the time the City of Ashland (the City) notified Randy that the use of the property was in violation of the ordinance. Next, we turn to Helen's claim. We similarly dispose of that claim based on the statute of limitations, because, as a joint owner, she has the same rights in the property as Randy. Finally, we hold that summary judgment was appropriate on the Strodes' bridge takings claim, because the load limit on the bridge does not amount to a regulatory taking of the property and there are no issues of material fact.
Randy and Helen are residents of Saunders County, Nebraska. They are married.
Randy owns real property on Block 16, Lots 1, 2, and 3, and Randy and Helen jointly own real property on Block 16, Lots 7 through 12, and Block 21, Lots 10 and 11, of Stambaugh's Addition, in Ashland, Saunders County, Nebraska. On April 29, 1999, Randy purchased Lots 1, 2, and 3 of Block 16 from Greenwood Farmers Cooperative. On November 2, 2000, Randy and Helen purchased Lots 10, 11, and 12 of Block 16 from Donald D. Strode and Lucille D. Strode. On December 20, 2001, Randy and Helen purchased Lots 7, 8, and 9 of Block 16 from Donald and Lucille. On April 18, 2002, Randy and Helen purchased Lots 10 and 11 of Block 21 from David L. Hancock. The property was zoned Public (PUB) by ordinance No. 808, passed and approved on March 5, 1998, prior to the Strodes' purchase of the property. The ordinance provides in pertinent part:
Since the time of purchase, the Strodes have operated a business for the manufacture of agricultural fencing and the storage of salvage on the property. Between November 2002 and June 10, 2003, the City zoning administrator repeatedly notified Randy that his use of the property was in violation of the City's code and regulations and requested Randy to remedy his violations. Initially, Helen contended that she did not become aware of the zoning violation until Randy mentioned it to her in June 2002, but later testified that she was unaware of the violation notices until May or June of 2003.
The City filed for an injunction against Randy's nonconforming use of the property on September 5, 2003. Randy alleged in his amended answer that the zoning regulations were ineffective and void because they amounted to a taking of the property without just compensation. In his prayer for relief, Randy asked only that the City's complaint be dismissed at the City's costs. He did not set forth a counterclaim for inverse condemnation.
The district court held that Randy's use of the property to store salvage was in violation of the zoning ordinance and granted the City's request for an injunction. The district court also found that the manufacture of agricultural fencing on Block 16, Lots 7 through 12, was permitted as a continuing, nonconforming use.
Randy appealed from the award of the injunction. On appeal, Randy argued that the regulations amounted to a taking without just compensation. The Nebraska Court of Appeals affirmed the district court's decision and found Randy's arguments concerning inverse condemnation to be without merit. The Court of Appeals noted that its review was “confined to questions which had been determined by the trial court,” and thus it could not address the claim.1 However, the Court of Appeals did observe that there was “nothing in the record to show the [inverse condemnation] claim would be ripe for review.”2
The property may be reached by two access points: (1) a railroad underpass and (2) a bridge located inside the corporate limits of the City with a posted load limit of 14 tons.
The Strodes use the bridge for transporting commercial goods with semitrailer trucks that exceed the load limit. On June 23, 2004, the county highway superintendent mailed notice to Randy that his use of the bridge violated the posted weight limit.
On September 5, 2013, Randy and Helen filed suit against the City, Saunders County (hereinafter the County), and the Nebraska Department of Roads for inverse condemnation based on the zoning ordinance and the load limit regulation of the bridge. The cause of action against the Department of Roads was dismissed, apparently because the bridge was not under the jurisdiction of the State. The district court held that Randy's zoning takings claim was barred by claim preclusion because it was a matter that was litigated in the 2003 case. The district court did not dismiss Helen's zoning takings claim because the record did not contain sufficient information from which the court could determine whether Helen's claim was precluded. The district court overruled the County's motion to dismiss the Strodes' takings claim in regard to the bridge load limit.
The district court subsequently held that Helen's zoning takings claim was barred by the statute of limitations because she was aware of the effect of the zoning ordinance after June 2003. The district court noted that the applicable statute of limitations was 10 years. As such, Helen's claim, which she discovered in June 2003, was barred as of June 2013, prior to her filing suit in September 2013. Finally, the district court dismissed the Strodes' bridge takings claim. The court held that the restrictions on the bridge did not amount to a taking, because there was reasonable access to the property via an underpass and the bridge—provided the restrictions are observed. The Strodes appeal.
On appeal, the Strodes assign, restated and consolidated, that the district court erred in (1) granting the City's motion to dismiss by determining Randy's claim was precluded by earlier litigation, (2) determining that Helen's regulatory takings claim was barred by the applicable statute of limitations, (3) finding that the regulation of the bridge structure was not a regulatory taking, and (4) granting the City's and the County's motions for summary judgment.
The applicability of claim and issue preclusion is a question of law. On a question of law, we reach a conclusion independent of the court below.3
The point at which a statute of limitations begins to run must be determined from the facts of each case, and the decision of the district court on the issue of the statute of limitations normally will not be set aside by an appellate court unless clearly wrong.4...
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