Agenda - Planning Commission - 11/12/2015

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Zoning Bulletin September 25, 2015 1 Volume 9 1 Issue 18 ordinance. Thus, under the 2007 exception, any land platted prior to, March 9, 2004 did not have to comply with the design guidelines contained in the overlay ordinance. Dowd Grain Company, Inc. ("Dowd Grain") owned property in the County that was not exempt from the overlay ordinance. Down Grain sued Sarpy County (the "County"), claiming that the 2007 exemption was unconstitutional as special legislation. Under the Nebraska Constitution, Neb. Const. art. III, § 18, munici- palities cannot pass municipal ordinances, including zoning ordinances, that are "special laws" in that they grant "any special or exclusive priv- ileges, immunity, or franchise whatever." The district court entered judgment in favor of the County. It found that the 2007 overlay district zoning ordinance amendment was not an unconstitutional special law. Dowd Grain appealed. DECISION: Judgment of district court affirmed. The Supreme Court of Nebraska agreed that the 2007 amended overlay district zoning ordinance, which created exceptions from enforcement of design guidelines for a certain class of property owners (those with land platted prior to March 9, 2004), was not an unconstitu- tional special law. In so holding, the court explained that the focus of the constitutional' prohibition against special legislation was the prevention of legislation which arbitrarily benefits or grants special favors to a specific class. The court further explained that a legislative act, including the amended overlay district zoning ordinance here, would constitute unconstitu- tional special legislation if it either: (1) created an arbitrary and unrea- sonable method of classification (rather than being based on some substantial difference of circumstances or situation or being based on a public purpose); or (2) created a permanently closed class. Here, the court found that the ordinance's exception for land platted prior to the effective date of the ordinance did not meet either of those criteria. Thecourt determined that the exception did not create a closed class because the number of parcels within the fixed geographic area was subject to change and the owners composing the class could change via a sale of real property. The court further determined that the class that benefited from the exemption (i.e., owners of land platted prior to March 9, 2004) was not arbitrarily selected, but rather was exempted from enforcement of the overlay ordinance on a reasonable basis; those property owners who had submitted a plat for their property prior to the enactment of the overlay ordinance incurred significant expenses and time planning and were thus in a substantially different situation from property owns who had not yet completed a plat for their property. © 2015 Thomson Reuters 9