Agenda - Planning Commission - 12/07/2017

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Zoning Bulletin October 10, 2017 I Volume 11 I Issue 19 judicially —and that therefore, the petition in error was the proper means to seek review of such action. In rejecting that argument, the court found that "the record reflected] that the special use permit and rezoning ap- plications proceeded at the same hearing pursuant to separate agenda items," and that no "evidence was offered and received or that testimony was offered." The court explained that "a zoning ordinance constitutes the exercise of a governmental and legislative function and that a city council adopting a rezoning ordinance which amends a general zoning ordinance acts in a legislative capacity." The court said that "parties cannot transform an otherwise legislative proceeding into a quasi- judicial function or establish a quasi-judicial record by simply present- ing arguments and handing documents to the presiding body." Thus, in light of the nature of the proceedings at issue here, the court concluded that the City Council acted as a legislative body in granting the rezon- ing request and in granting the special use permit. The court further explained that "an appeal or error proceeding does not lie from a purely legislative act by a public body to which legisla- tive power has been delegated" and that "the only remedy in such cases is by collateral attack, that is, by injunction or other suitable action." In other words, the court explained that legislative actions cannot be chal- lenged through a petition in error —such as that brought by the Home- owners here. Accordingly, the court concluded that the petition in error brought by the Homeowners was therefore an improper means to seek review of the City's approval of the rezoning and special use permit. A request for a permanent injunction, not a petition in error, was the proper means to seek review of both determinations, said the court. Because the Homeowners filed a petition in error to review both the rezoning and special use permit approvals by the City Council, the court did not have jurisdiction to proceed on those issues. As to the Homeowners' remaining claim challenging the City ap- proval of the conditional use permit, the court first rejected the City's argument that the claim was untimely. Under Nebraska statutory law (Neb. Rev. Stat. §§ 25-1905 and 25-1931), proceedings in error must be brought within 30 days after the final judgment or order that is challenged. Here, although the Homeowners had filed their petition in error with the district court more than 30 days after the Planning Board approved the conditional use permit, the court found that the conditional use permit did not become a "final order" until the City Council ap- proved the zoning overlay for the proposed facility. The court found that the Homeowners filed their petition in error within 30 days of that final order. The court ultimately concluded that the Homeowner's chal- lenge of the conditional use permit failed because, "[a]lthough the Homeowners raised valid concerns," the Planning Board "had sufficient evidence to approve the conditional use permit and had provided the Homeowners with due process of notice and an opportunity to be heard." © 2017 Thomson Reuters 5