Wolf v. City of Omaha

• Decision Date: 10 July 1964
• Docket Number: No. 35649,35649
• Citation: 129 N.W.2d 501,177 Neb. 545
• Parties: Gustave R. WOLF and Esther E. Wolf, husband and wife, Appellants, v. The CITY OF OMAHA, a municipal corporation, Appellee.
• Court: Nebraska Supreme Court

Page 501

129 N.W.2d 501

177 Neb. 545

Gustave R. WOLF and Esther E. Wolf, husband and wife, Appellants, v. The CITY OF OMAHA, a municipal corporation, Appellee.

No. 35649.

Supreme Court of Nebraska.

July 10, 1964.

Syllabus by the Court

1. The city of Omaha under its home rule charter has the power, by ordinance, to zone the city in the interest of public health, safety, morals, and the general welfare. Any such act of the city must however not be unreasonable, discriminatory, and arbitrary and it must bear some relationship to the purpose or purposes sought to be accomplished by the ordinance.

2. To overturn a city ordinance on the ground that it is unreasonable and arbitrary or that it invades private rights, the evidence of such facts should be clear and satisfactory.

3. In determining the validity of a city ordinance regularly passed in the exercise of police power, the court will presume that the city council acted with full knowledge of the conditions relating to the subject of municipal legislation.

4. In the exercise of police power delegated by the state Legislature to a city, the municipal legislature, within constitutional limits, is the sole judge as to what laws should be enacted for the welfare of the people, and as to when and how such police power should be exercised.

5. What is the public good as it relates to zoning ordinances affecting the use of property is, primarily, a matter lying within the discretion and determination of the municipal body to which the power and function of zoning is committed, and, unless an abuse of this discretion has been clearly shown, it is not the province of the courts to interfere.

6. In passing upon the validity of zoning ordinances, an appellate court should give great weight to the determination of local authorities and local courts especially familiar with local conditions.

7. Every zoning ordinance effects some impairment of vested rights either by restricting prospective uses or by prohibiting continuation of existing uses, because it affects property already owned by individuals at the time of its enactment.

8. Whether a zoning ordinance is unreasonable, arbitrary, and discriminatory is related to its application to particular property involved, and each case must be determined on its own facts.

9. A zoning ordinance may be amended from time to time as new and changing conditions warrant revision.

10. Public welfare must be considered from the standpoint of objective of zoning and of all property within any particular use district, and it is not contemplated that preexisting nonconforming uses are to be perpetual.

Hilmes & Woodruff, Omaha, for appellants.

Herbert M. Fitle, Bernard E. Vinardi, Irving B. Epstein, Edward M. Stein, Sebastian J. Todero, Frederick S. Geihs, and Walter J. Matejka, Omaha, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

MESSMORE, Justice.

This is an action brought in the district court for Douglas County by Gustave R. Wolf and Esther E. Wolf, husband and wife, for themselves and others similarly situated, seeking a temporary and permanent injunction to enjoin the City of Omaha, a municipal corporation, defendant, from enforcing the provisions of section 55.50.050 of the Omaha municipal code, as amended by ordinance No. 21611 of the city of Omaha.

The trial court found generally in favor of the defendant and against the plaintiffs; that ordinance No. 21611 of the city of Omaha passed by the city council on February 7, 1961, and approved by the mayor of the city on February 9, 1961, the same being section 55.50.050 of the Omaha municipal code, was valid and constitutional; that the plaintiffs were not entitled to a permanent injunction preventing its enforcement; and that the restraining order issued in this action be dissolved.

The plaintiffs filed a motion for new trial which was overruled, and the plaintiffs appealed.

The plaintiffs are residents of the city of Omaha, a municipal corporation of the mettropolitan class, organized and existing under and by virtue of the Constitution and laws of the State of Nebraska.

The plaintiffs alleged in their petition that this is a class action brought by the plaintiffs in their behalf and in behalf of others similarly situated with respect to the subject matter of this action; that the plaintiffs for many years have bred and raised purebred dogs at their home and upon the premises owned by them; that when the defendant enacted an ordinance defining a dog kennel, and exempting one or two dogs owned by a single owner from the provisions of such ordinance, the plaintiffs, upon the advice of city officials, secured a license from the city of Omaha, paying the prescribed fees therefor, which license entitled them to continue breeding and raising purebred dogs; that the plaintiffs' acts constitute a nonconforming use; that the plaintiffs were in operation and licensed for such breeding and raising of purebred dogs prior to the enactment of any regulating and prohibiting ordinance by the defendant; and that the Legislature, under the provisions of Chapter 14, article 4, of the statutes, which act is controlling of the zoning regulations of the defendant, in 1925 enacted what is now section 14-406, R.R.S.1943. The plaintiffs' petition then sets forth the ordinances, the statutes, and the zoning regulations, their passage and dates pertinent to the instant case, and what such instruments disclosed. The plaintiffs further alleged that section 55.50.050 of the Omaha municipal code is unreasonable, arbitrary, discriminatory, and illegal because it violates the Fourteenth Amendment to the Constitution of the United States and Article I, sections 1 and 3, of the Constitution of the State of Nebraska, and other reasons. The plaintiffs' petition prayed that the court declare section 55.50.050 of the city code to be illegal, invalid, and unconstitutional, and for a permanent injunction prohibiting the enforcement of section 55.50.050 of the city code.

The defendant, by answer, denied all allegations of the plaintiffs' petition not admitted, and alleged that Chapter 14, article 4, R.R.S.1943, delegates the powers to cities of the metropolitan class to zone and provide for location and use of buildings, structures, and land for the residents or other purposes. The answer then set forth the history of the ordinances here involved, and alleged that the city had the power delegated to it by the Legislature and by its police power to zone and regulate dog kennels such as owned by the plaintiffs herein, and prayed that the plaintiffs' petition be dismissed.

An exhibit in evidence is a stipulation that the ordinances and sections thereof enacted by the city council of the defendant, the dates of enactment thereof, and the periods said ordinances and sections thereof are alleged to be in force and effect are admitted to be true and correct, and that the same be considered as being correct without further introduction of evidence.

The original home rule charter adopted by the city of Omaha, and which was in effect until 1956, was adopted July 18, 1922, pursuant to Article XI, section 5, of the Constitution of Nebraska. See Belitz v. City of Omaha, 172 Neb. 36, 108 N.W.2d 421. In 1956, by vote of the electors, the City of Omaha adopted the home rule charter of 1956, which charter is now in effect. See Mollner v. City of Omaha, 169 Neb. 44, 98 N.W.2d 33.

The home rule charter of 1922, in effect until 1956, included the following provisions setting forth the grant of power by statute to the city of Omaha to enact zoning regulations.

As a background, the following relate to the history of the subject matter here involved.

Section 14-401, R.R.S.1943, provides: 'For the purpose of promoting the health, safety, morals or the general welfare of the community, the city council in a city of the metropolitan class is hereby empowered to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes. Such regulations may provide that a board of appeals may determine and vary their application in harmony with their general purpose and intent, and in accordance with general or specific rules therein contained.'

Section 14-402, R.R.S.1943, provides: 'For any or all of said purposes the city council may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of sections 14-401 to 14-418. Within such districts it may regulate, restrict or prohibit the erection, construction, reconstruction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.'

Section 14-406, R.R.S.1943, provides: 'The lawful use of land existing on April 1, 1925, although such use does not conform to the provisions hereof, may be continued, but if such nonconforming use is abandoned, any future use of said premises shall be in conformity with the provisions of sections 14-401 to 14-418. The lawful use of a building existing on April 1, 1925, may be continued, although such use does not conform with the provisions hereof, and such use may be extended throughout the building, provided no structural alterations, except those required by law or ordinance are made therein. If no structural alterations are made, a nonconforming use of a building may be changed to another nonconforming use of the same or a higher classification. Whenever a use district shall be changed, any then existing nonconforming use in such changed district may be continued or changed to a use permitted...