Agenda - Planning Commission - 12/07/2017

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October 10, 2017 1 Volume 11 1 Issue 19 Zoning Bulletin and the Planning Board were "illegal, not supported by the evidence, and thus arbitrary, unreasonable, clearly wrong, and a violation of due process." Specifically regarding the special use permit and the MCC overlay district, the Homeowners alleged, among other things, that the Developers had failed to provide accurate information about the owner- ship of the subject property or the authority to develop it. The City denied the allegations. The City also challenged the Home- owners standing (i.e., legal right or interest in the case). The City fur- ther argued that the court lacked subject matter jurisdiction to hear the Homeowners claims (i.e., the legal authority of the court to hear the case on the subjects raised), alleging that: (1) the Homeowners' chal- lenge of the conditional use permit was untimely; and (2) the City's rezoning of the property was not reviewable by an error proceeding because rezoning was a legislative function, which is not a proper subject of an error proceeding. The district court affirmed the determinations of the City Council and the Planning Board, and dismissed the Homeowners' petition in error. The court found that the Planning Board and City had acted within their jurisdiction and that their determinations were supported by sufficient relevant evidence. The Homeowners appealed. The City also appealed, again presenting arguments of standing, timeliness, and subject matter jurisdiction. DECISION: Judgment of District Court affirmed in part, vacated in part, and dismissed. The Supreme Court of Nebraska first concluded that the Homeown- ers had standing to bring their claims. The court explained that an adjacent landowner generally has standing to object to the rezoning of property if the landowner shows some special injury separate from the general public. Here, the court found that presence of a special injury was shown by the fact that the Homeowners owned property within 300 feet of the proposed project, and were thus entitled to notice of the proposed project under Nebraska statute (Neb. Rev. Stat. § 14-420). A finding of special injury (and thus standing) was also supported by expert testimony that the proposed project would diminish property values in the area, found the court. The Supreme Court of Nebraska also held, as a matter of apparent first impression (i.e., the first time Nebraska courts addressed the issue), that the City Council acted as a legislative body when it granted the zoning overlay and special use permit. The court noted that Nebraska case law had not previously addressed the categorizing of municipal ac- tion (either as legislative or judicial) when the municipality deals with a simultaneous rezoning and special use permit —as in this case. The Homeowners had contended that, by conducting simultaneous hearings on the special use permit and the rezoning, the City Council had acted 4 ©2017 Thomson Reuters