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COUNTY OF SARPY v. CITY OF GRETNA

Cite as 309 Neb. 320

County of Sarpy, a body corporate and politic, 

appellee, v. City of Gretna, a Nebraska 

municipal corporation, appellant.

___ N.W.2d ___

Filed May 28, 2021. No. S-20-330.

1. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment is granted and 

gives the party the benefit of all reasonable inferences deducible from 

the evidence.

2. Annexation: Ordinances: Equity. An action to determine the validity 

of an annexation ordinance and enjoin its enforcement sounds in equity.

3. Equity: Appeal and Error. On appeal from an equity action, an appellate court decides factual questions de novo on the record and, as to 

questions of both fact and law, is obligated to reach a conclusion independent of the trial court’s determination.

4. Annexation: Agriculture. The issue of whether annexed territory is 

agricultural land that is rural in character is a question of law.

5. Summary Judgment: Expert Witnesses: Testimony. A conflict of 

expert testimony regarding an issue of fact establishes a genuine issue 

of material fact which precludes summary judgment.

6. Expert Witnesses. Two experts coming to different legal conclusions on 

the same issue does not create a material issue of fact.

7. Municipal Corporations: Annexation: Agriculture. Neb. Rev. Stat. 

§ 17-407(2) (Cum. Supp. 2020) does not prohibit annexation of all 

agricultural lands, but only those agricultural lands which are rural in 

character. Lands may be currently utilized in an agricultural fashion and 

still not be rural in character.

8. Annexation: Words and Phrases. The word “rural” is defined as of or 

pertaining to the country as distinguished from a city or town, and the 

word “urban” is defined as of or belonging to a city or town.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/20/2021 12:11 AM CDT
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Cite as 309 Neb. 320

9. Ordinances: Proof. The burden is on the one who attacks an ordinance, 

valid on its face and enacted under lawful authority, to prove facts to 

establish its invalidity.

10. Municipal Corporations: Annexation. To determine whether lands 

are urban or suburban, or rural, the test is whether a city has arbitrarily 

and irrationally used the power granted therein to include lands entirely 

disconnected, agricultural in character, and bearing no rational relation 

to the legitimate purposes of annexation.

11. Annexation: Agriculture. The use of land for agricultural purposes 

does not necessarily mean it is rural in character. It is the nature of its 

location as well as its use which determine whether it is rural or urban 

in character.

12. Municipal Corporations: Annexation. The annexation of land by a 

city is a legislative matter. However, courts have the power to inquire 

into and determine whether the conditions exist which authorize the 

annexation thereof.

13. Annexation. It is not for the courts to determine what portions of land 

may be properly annexed, because the fixing of boundary lines under 

this authority is a legislative act.

Appeal from the District Court for Sarpy County: Stefanie 

A. Martinez, Judge. Reversed.

Jeff C. Miller, Duncan A. Young, and Keith I. Kosaki, of 

Young & White Law Offices, for appellant.

Kayla N. Hathcote and Gage R. Cobb, Deputy Sarpy County 

Attorneys, and Stephen Hueber, Senior Certified Law Student, 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

This is an action filed by the County of Sarpy, Nebraska, 

to determine the validity of two annexation ordinances and 

a zoning extension ordinance adopted by the City of Gretna, 

Nebraska. The district court granted Sarpy County’s motion 

for summary judgment, denied Gretna’s motion for summary 
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Cite as 309 Neb. 320

judgment, and declared the ordinances invalid. Gretna appeals, 

arguing that the ordinances are valid, because Gretna did 

not annex agricultural lands that are rural in character. We 

find Gretna’s argument to have merit. Therefore, we reverse 

the order of the district court and declare the ordinances to 

be valid.

BACKGROUND

Gretna is a city of the second class under Neb. Rev. Stat. 

§ 17-101 (Cum. Supp. 2020), located entirely within Sarpy 

County, in southeastern Nebraska. On November 21, 2017, the 

Gretna City Council adopted ordinances Nos. 2003 and 2004, 

which together annexed 2,953 acres contiguous or adjacent 

to the municipal boundaries. On the same date, the Gretna 

City Council adopted ordinance No. 2005, which extended 

Gretna’s extraterritorial zoning jurisdiction as a result of the 

annexations.

Ordinance No. 2003 annexed contiguous territory to the east 

and south of Gretna’s existing corporate limits. This territory 

included undeveloped parcels; tax lots; Sanitary and Improvement District (SID) No. 258 of Sarpy County; four developed 

residential subdivisions consisting of Covington, Forest Run, 

Lyman Highlands, and Green Acres Estates; and three singlelot subdivisions of Pumpkin Hollow, Mintken’s Addition, and 

Lot 2 Fenton Addition Replat 2. Ordinance No. 2003 also 

included Vala’s Pumpkin Patch (Vala’s) and adjacent parcels 

south of Interstate 80 (I-80).

Ordinance No. 2004 annexed territory located further east, 

including some undeveloped parcels; tax lots; and SID Nos. 

48, 176, 202, 250, 251, and 282 of Sarpy County. Ordinance 

No. 2004 also annexed residential subdivisions and commercial 

and industrial developments located further east, consisting of 

Country Estates; Harder Subdivision Replat 1; M&M Acres; 

The Hill; Wicks Southpointe; Lake Ridge Estates; Murray 

Sapp; Murray Sapp Replat 1; 370 Storage; SWN Investments 
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Nos. 2 through 7; Zapata; Meadowlark Subdivision; B-4 

Corners Nos. 1, 4, 5, 7, 9, 11, and 12; Sapp Brothers Replat; 

Lakeview South; and Lakeview South Nos. 3 through 7. In 

addition, ordinance No. 2004 annexed five subdivisions to 

the west and south of Gretna’s corporate limits, consisting 

of Lincoln Place, Truelson Subdivision, Valley View Estates, 

Standing Stone, and Willow Park.

Prior to Gretna’s adoption of the ordinances, on September 

12, 2017, the board of commissioners for Sarpy County adopted 

Sarpy County’s comprehensive plan “for the build-out of Sarpy 

County.” The plan stated that Sarpy County is the fastest 

growing county in the State of Nebraska with the third largest 

population, behind only Douglas County and Lancaster County, 

and that by 2040, Sarpy County’s population was projected to 

increase by 75 percent.

On September 28, 2017, Gretna issued an annexation study 

and plan for furnishing municipal services. The study noted 

substantial economic development and growth within the city 

and surrounding areas. According to the study, the territory 

annexed under Gretna’s plan “is either in close proximity to 

the current corporate limits or in the middle of the City of 

Gretna’s future growth area.” Both ordinance No. 2003 and 

ordinance No. 2004 contained an I-80 gateway and community 

entrance to the city. Ordinance No. 2003 contained a planned 

I-80 interchange between South 186th and South 192d Streets. 

Ordinance No. 2004 contained the Highway 370 corridor, 

which was the eastern entrance for the city and connected to 

I-80. Gretna designated both community entrances as special 

character areas in its 2017 comprehensive plan update. Under 

Gretna’s plan, the I-80 interchange in ordinance No. 2003 will 

initiate the development of the South 192d Street corridor 

to the north and lead to development east and west on the 

Highway 370 corridor. Gretna found that annexing these areas 

will promote growth, increase the city’s population and tax 

base, and preserve the city’s future growth areas.
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Cite as 309 Neb. 320

On December 14, 2017, Sarpy County brought this action 

in the district court for Sarpy County, seeking to enjoin 

the ordinances adopted by Gretna and have them declared 

invalid. Sarpy County contended that because the annexed 

area includes 22 parcels with agricultural land that is rural in 

character, Gretna exceeded its annexation authority under Neb. 

Rev. Stat. § 17-407(2) (Cum. Supp. 2020) when it adopted 

ordinances Nos. 2003 and 2004. Section 17-407(2) authorizes 

a city of the second class to annex contiguous or adjacent lands 

which are “urban or suburban in character” and prohibits the 

annexation of “agricultural lands which are rural in character.” 

Sarpy County claimed that the specified 22 parcels were almost 

exclusively unplatted, with rural roads and no sewer connection. Sarpy County claimed that because ordinances Nos. 2003 

and 2004 were invalid, Gretna’s extension of extraterritorial 

zoning jurisdiction via ordinance No. 2005 was invalid.

Gretna filed an answer which denied the allegations and 

asserted that the ordinances and annexations were lawful, valid, and in compliance with § 17-407 and all other 

applicable statutes and laws. Sarpy County filed an amended 

complaint, and Gretna filed an amended answer. Thereafter, 

each party moved for summary judgment. The issue before 

the court was whether, under § 17-407(2), any of the contested 

22 parcels qualified as agricultural lands which are rural in 

character.

Each party submitted an annotated statement of undisputed 

facts. The record established that ordinance No. 2003 contained contested parcels 1 through 11 and 19 through 22, which 

represented approximately 655 of the 1,075 acres annexed 

under ordinance No. 2003. Vala’s, consisting of six parcels 

and approximately 400 acres, was included within the challenged parcels in ordinance No. 2003. Parcels 12 through 

18 are located within ordinance No. 2004 and represented 

approximately 373 of the 1,878 acres annexed under ordinance No. 2004.
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For purposes of summary judgment disposition, the parties 

agreed that all of the contested parcels contain undeveloped 

land used for agricultural purposes and that all of the contested 

parcels were accessed by unimproved roads and lacked connections to municipal water and sewer services. Gretna has 

planned for future street, interchange, and highway improvements for the contested areas and has planned to provide 

water, sewer, and utilities services to the contested areas. 

However, the timeframe for these plans will depend on future 

development.

All of the contested parcels were located in the Gretna 

school district, which had grown in student population by 

approximately 8 percent annually over the previous 11 years. A 

seventh elementary school was projected to open in the fall of 

2021 on the northeast corner of South 192d Street and Schram 

Road, which abutted contested parcel 2 in exhibit 16-A, shown 

above. Gretna submitted an affidavit from a certified planner, 

EXHIBIT 16-A
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who stated that the school district’s growth in population, student enrollment, and school buildings demonstrated that families with children greatly desired the area and have moved into 

the school district in large numbers.

Gretna submitted an affidavit from Trenton J. Rengo, a 

licensed appraiser, who stated that the highest and best use 

of the contested parcels was for either residential acreages or 

future subdivision development. According to Rengo, the fair 

market value of the contested parcels, when used for future 

development or residential acreages, was between $20,000 and 

$40,000 per acre, as compared to an agricultural use value of 

approximately $10,500 per acre.

All of the contested parcels were designated with “greenbelt” special valuation status for property tax purposes under 

Neb. Rev. Stat. §§ 77-201(3), 77-1343, and 77-1344 (Reissue 

2018 & Cum. Supp. 2020), for agricultural land and horticultural land actively devoted to agricultural or horticultural purposes which has value for purposes other than agricultural or 

horticultural uses.

On April 16, 2020, the district court issued its order granting Sarpy County’s motion for summary judgment and denying 

Gretna’s motion for summary judgment. The court accepted 

Sarpy County’s arguments that the contested parcels qualified as agricultural land that is rural in character, because the 

parcels were undeveloped and were being used for agricultural 

purposes, the parcels would not be connected to municipal 

services until development occurred, and the parcels received 

greenbelt tax assessment status. The court found that none 

of the contested parcels were currently being developed and 

that while Gretna had substantially grown in recent years, the 

growth had not trended in the general direction of the areas 

which Gretna sought to annex. Lastly, because Gretna sought 

to annex several SID’s, the court found that approval of annexation would stifle development of the area. Accordingly, the 

court invalidated ordinances Nos. 2003, 2004, and 2005.

Gretna appeals. We granted bypass at the parties’ request.
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ASSIGNMENTS OF ERROR

Gretna assigns that the district court erred in (1) finding 

that the contested parcels qualified as agricultural land that is 

rural in character, (2) granting Sarpy County’s motion for summary judgment and invalidating the annexation ordinances and 

zoning extension ordinance, and (3) failing to grant Gretna’s 

motion for summary judgment and uphold the validity of 

the ordinances.

STANDARD OF REVIEW

[1] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment is granted and gives the party 

the benefit of all reasonable inferences deducible from the 

evidence. 1

[2-4] An action to determine the validity of an annexation 

ordinance and enjoin its enforcement sounds in equity. 2 On 

appeal from an equity action, an appellate court decides factual 

questions de novo on the record and, as to questions of both 

fact and law, is obligated to reach a conclusion independent of 

the trial court’s determination. 3 The issue of whether annexed 

territory is agricultural land that is rural in character is a question of law. 4

ANALYSIS

[5,6] In the form of competing motions for summary judgment, the issue presented to the district court was whether 

Sarpy County showed, under § 17-407(2), that Gretna annexed 

agricultural land that is rural in character. Though the parties’ 

1 SID No. 196 of Douglas Cty. v. City of Valley, 290 Neb. l, 858 N.W.2d 553 

(2015).

2 Id.; United States Cold Storage v. City of La Vista, 285 Neb. 579, 831 

N.W.2d 23 (2013); Swedlund v. City of Hastings, 243 Neb. 607, 501 

N.W.2d 302 (1993).

3 Id.

4 See SID No. 196 of Douglas Cty., supra note 1.
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experts provided conflicting testimony as to how the property 

should be characterized, neither party contends that there are 

any genuine issues of material fact as to how the area should 

be characterized under the relevant statutory authority. A conflict of expert testimony regarding an issue of fact establishes 

a genuine issue of material fact which precludes summary 

judgment. 5 The key element of the rule is whether the experts 

conflict on a question of fact or a question of law. 6 Two 

experts coming to different legal conclusions on the same issue 

does not create a material issue of fact. 7 Here, because neither 

party contends that there are any genuine issues of material 

fact as to how the area should be classified under the relevant statutory authority and because our review of the record 

confirms there are no triable issues of fact, this appeal solely 

concerns a question of law, which we resolve independently of 

the decision of the district court. Essentially, we must decide 

whether Gretna has the authority to annex an area which is in 

close proximity to developing areas and which is planned for 

development, but is presently undeveloped and is being used 

for agricultural purposes.

[7,8] Section 17-407(2) provides that cities of the second 

class may annex contiguous or adjacent lands which are urban 

or suburban in character and prohibits the annexation of “agricultural lands which are rural in character.” We have previously 

recognized that this language does not prohibit annexation of 

all agricultural lands, but only those agricultural lands which 

are rural in character. 8 “[L]ands may be currently utilized in 

an agricultural fashion and still not be rural in character.” 9 The 

5 Id.

6 Id.

7 Id.

8 See, e.g., Bierschenk v. City of Omaha, 178 Neb. 715, 135 N.W.2d 12 

(1965).

9 Voss v. City of Grand Island, 186 Neb. 232, 236, 182 N.W.2d 427, 430 

(1970).
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word “rural” is defined as “of or pertaining to the country as 

distinguished from a city or town,” and the word “urban” is 

defined as “of or belonging to a city or town.” 10

[9,10] The burden is on the one who attacks an ordinance, 

valid on its face and enacted under lawful authority, to prove 

facts to establish its invalidity. 11 To determine whether lands 

are urban or suburban, or rural, the test is “‘whether a city has 

arbitrarily and irrationally used the power granted therein to 

include lands entirely disconnected, agricultural in character, 

and bearing no rational relation to the legitimate purposes 

of annexation.’” 12

Gretna argues that Sarpy County failed to prove that the 

ordinances are invalid. Gretna argues that while there is no 

dispute that the contested parcels were undeveloped and were 

being used for agricultural purposes, the location of the area 

and its proximity to growth areas show that the annexed territory is urban or suburban in character. Upon de novo review, 

we conclude that Gretna’s arguments are well founded. The 

annexed territory does bear a rational relation to legitimate 

purposes of annexation, and the district court erred in finding 

that the annexed territory contained agricultural land that is 

rural in character.

[11] In its determination, the district court characterized 

the contested areas primarily based on current uses. In its 

appellee brief, Sarpy County’s principal defense of the court’s 

decision is that the parcels are currently undeveloped and are 

being used for agricultural purposes. However, this argument 

is flawed, because this court has previously stated that “‘[t]he 

use of land for agricultural purposes does not necessarily mean 

it is rural in character. It is the nature of its location as well 

10 Wagner v. City of Omaha, 156 Neb. 163, 168, 55 N.W.2d 490, 494 (1952).

11 Id. Accord, Omaha Country Club v. City of Omaha, 214 Neb. 3, 332 

N.W.2d 206 (1983); Bierschenk, supra note 8.

12 SID No. 196 of Douglas Cty., supra note 1, 290 Neb. at 10-11, 858 N.W.2d 

at 561, quoting Voss, supra note 9. See Wagner, supra note 10.
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as its use which determine[] whether it is rural or urban in 

character.’” 13

The district court primarily relied upon our 1952 decision 

in Wagner v. City of Omaha.

 14 In Wagner, property owners 

challenged an ordinance which annexed unincorporated land 

east of Omaha, Nebraska, near the Missouri River. The area 

experienced standing water during wet seasons, but ordinarily 

was dry and could be farmed. The area contained limited retail 

and industry. The district court declared the ordinance invalid 

and enjoined the city from enforcing it. We affirmed, because 

“somewhere between 90 and 103 acres of the area sought to be 

annexed is unplatted agricultural lands which are rural in character and over which the city did not have authority to extend 

its boundary.” 15

The district court here found that Gretna annexed agricultural land that is rural in character, because, as in Wagner, the 

contested parcels within ordinance No. 2003 were not platted 

into lots, were not planned for any subdivisions, were not connected to sewer and water services until development occurs, 

and were being used for agricultural or horticultural purposes. 

This analysis is correct to a point. However, under this court’s 

precedent, further inquiry is required when examining the overall character of annexed territory.

As Gretna set forth in its brief, in determining whether 

agricultural land is rural in character, in addition to considering the annexed area’s current use, this court has considered 

other factors such as an area’s proximity to growth areas, 16

including the “undisputed location, character, and degree of 

13 Omaha Country Club, supra note 11, 214 Neb. at 6, 332 N.W.2d at 208 

(emphasis omitted). Accord, Voss, supra note 9; Sullivan v. City of Omaha, 

183 Neb. 511, 162 N.W.2d 227 (1968).

14 Wagner, supra note 10.

15 Id. at 170, 55 N.W.2d at 495.

16 Swedlund, supra note 2; Sullivan, supra note 13.
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development of the land involved herein.” 17 In Voss v. City of 

Grand Island,

 18 we found that although the annexed territory 

included isolated spots that were vacant and used for agricultural purposes, the continuous development of the land and 

surrounding areas was “clearly indicative and persuasive that 

the land is urban and suburban in character and not rural in 

character.” In Sullivan v. City of Omaha,

 19 the city annexed an 

irregular tract of land abutting the corporate limits, a portion 

of which was used for agricultural purposes, had no improvements, and had not been subdivided or platted. We found that 

the challengers failed to meet their burden, because “[t]he 

entire area being annexed goes through the heart of a rapidly 

developing residential and industrial area.” 20

Sarpy County does not contest that Gretna is rapidly developing, but argues that the trend of development has been to 

the north and west, and not to the east and south, where the 

contested parcels are located. Sarpy County therefore argues 

this case is unlike Sullivan. This argument is insufficient to 

overcome the area’s urban character.

Under the relevant authority, there is no requirement for 

Gretna to show that the annexed area goes through the heart 

of a rapidly developing area. In the 70 years since our decision in Wagner,

 21 we have repeatedly recognized that land 

need not already be zoned and developed into a nonagricultural use before it can be annexed. 22 We have noted that any 

such construction of the annexation statutes would seriously 

impair intelligent planning and coordination of the changeover 

17 Voss, supra note 9, 186 Neb. at 237, 182 N.W.2d at 430.

18 Id.

19 Sullivan, supra note 13.

20 Id. at 515, 162 N.W.2d at 230.

21 Wagner, supra note 10.

22 SID No. 196 of Douglas Cty., supra note 1; Voss, supra note 9; Sullivan, 

supra note 13.
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in the use of land for urban purposes. 23 Moreover, the statute 

governing annexation does not require that an annexed territory 

have regular boundaries, because cities do not tend to grow in 

straight lines. 24

Here, the district court failed to give sufficient consideration to contemplated future development of the annexed 

area. Under the city’s 2017 comprehensive plan update, the 

proposed I-80 interchange at 192d Street and the existing 

Highway 370 corridor are designated as community entrance 

and special character areas and are expected to develop the 

contested areas into the city’s future growth areas. The city, 

the county, the state, and other governmental agencies all have 

plans to develop the area, because it is the fastest growing area 

in Nebraska. These are characteristics “belonging to a city” 

and not “pertaining to the country” and are accordingly urban 

or suburban in nature.

In our most recent decision on this issue, SID No. 196 of 

Douglas County v. City of Valley,

 25 we rejected the challenger’s 

argument that the city had annexed agricultural land that is 

rural in character where there had been no residential development on the property at the time of summary judgment. We 

considered the evidence of contemplated future development 26

and concluded that the challenger’s argument failed to establish 

that the city had exercised its annexation authority arbitrarily 

and irrationally. We further concluded that the land in question, at the time of annexation, did bear a “‘rational relation to 

the legitimate purposes of annexation.’” 27 Likewise here, even 

though the plans for development will take time, we are not 

persuaded that the city has acted arbitrarily or irrationally.

23 Id.

24 See Bierschenk, supra note 8.

25 SID No. 196 of Douglas Cty., supra note 1.

26 Id. See, also, Swedlund, supra note 2.

27 SID No. 196 of Douglas Cty., supra note 1, 290 Neb. at 11, 858 N.W.2d 

at 561.
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There was evidence that development in the area was already 

underway. All of the contested parcels are located within the 

rapidly growing Gretna school district. Ten of the contested 

parcels are located within 1 mile of a new elementary school 

building to open in the fall of 2021 with 400 students enrolled. 

In Bierschenk v. City of Omaha,

 28 we found that although 

portions of annexed territory were used for agricultural purposes, evidence of residential growth in the form of parks, 

schools, churches, and other public grounds showed that the 

area was urban or suburban in character. Moreover, Gretna’s 

appraiser, Rengo, stated that the future development or residential value of the annexed territory exceeded its agricultural 

use value. In our decision in Holden v. City of Tecumseh,

 29

we evaluated land that was principally used for agricultural 

purposes, but had a residential or commercial use value which 

exceeded its agricultural use value, and found that development had occurred which made the area urban or suburban in 

character rather than rural. We do not suggest that increased 

property values are the only factor to consider in determining 

whether property is urban or suburban or rural in character. 

Rather, multiple factors such as current use, location, and 

future plans for development should be considered in conjunction with property values to determine the overall character of 

annexed land.

Additionally, Sarpy County failed to show that Vala’s is 

rural in character. The record shows that Vala’s commenced 

operations in the early 1990’s as a seasonal commercial and 

recreational facility operating from September to November 

each year. Since its beginnings, Vala’s has expanded its operations to involve over 100 buildings, structures, and attractions, 

as well as 4,964 parking spots. Pursuant to special use permits 

issued by the county, Vala’s now runs multiple commercial 

28 Bierschenk, supra note 8.

29 Holden v. City of Tecumseh, 188 Neb. 117, 195 N.W.2d 225 (1972), citing 

Voss, supra note 9, and Sullivan, supra note 13.
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operations from May to November each year. In Plumfield 

Nurseries, Inc. v. Dodge County,

 30 we considered the annexation of an area with a nursery business, accessed by gravel 

roads, which had never been platted. We found that the nursery, 

although involved in agricultural pursuits in the same manner as in some rural territories, was a business in the ordinary 

sense and was urban in character. 31

Adjacent to the south of Vala’s are parcels 19 through 22, 

located south of I-80. Under § 17-407(2), the annexation 

authority of a city of the second class includes “any contiguous or adjacent lands, lots, tracts, streets, or highways as are 

urban or suburban in character and in such direction as may 

be deemed proper.” 32 Parcels 19 through 22 are located within 

1 mile south of the proposed future I-80 interchange at South 

192d Street. Parcels 19 through 21 are zoned “AG-HC,” for 

agricultural with a highway corridor overlay, and are currently 

used for interim crop production. Parcel 22 is zoned “AGD,” 

for agricultural development, and is currently used for interim 

crop production and for operating a highway commercial business which operates under a special use permit. Sarpy County’s 

future land use plan designates these subject properties for 

general commercial use.

Parcel 19 is located within the Papillion Creek Watershed 

and the Platte River Watershed. Parcels 20 through 22 are 

located within the Papillion Creek Watershed. According to 

Rengo, the subject properties are not located in a flood hazard 

area. All public utilities are able to be extended to the properties within the Papillion Creek Watershed, and all utilities, 

except for sewer, are able to be extended to the portion of 

parcel 19 located in the Platte River Watershed. Rengo stated 

30 Plumfield Nurseries, Inc. v. Dodge County, 184 Neb. 346, 167 N.W.2d 560 

(1969).

31 Id.

32 See Sullivan, supra note 13.
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in his reports regarding each of these parcels that the properties contain no other known physical characteristics that would 

limit development. Rengo opined that the maximal productive 

use of the subject properties would be to develop for subdivision purposes, with demand.

Having considered the present uses of the annexed territory, 

as well as its contemplated future uses and existing plans for 

development, we find that the annexed area is urban in character and that the ordinances are a lawful exercise of the city’s 

annexation powers.

For completeness, we address novel arguments raised by 

Sarpy County and relied upon by the district court. Sarpy 

County argues that the greenbelt tax assessment status of 

the contested parcels render them rural in character. Under 

§ 77-1344, land qualifies for special valuation if (a) the land 

is located outside the corporate boundaries of any SID, city, or 

village, unless it is in a conservation or preservation easement, 

and (b) the land is agricultural or horticultural land. Sarpy 

County refers to 350 Neb. Admin. Code, ch. 11, § 001.01 

(2009), to argue that the purpose of greenbelt status is to provide protection for those persons who wish to continue working in agriculture. We find nothing in the law which leads us 

to believe that the Legislature intended greenbelt tax assessment status to function as a restriction on a city’s annexation authority. Rather, greenbelt status concerns a separate 

legislative determination regarding taxation and market value. 

Additionally, given the evidence of the Sarpy County assessor 

that all agricultural parcels within Sarpy County have a market 

value that is influenced by nonagricultural factors, we find no 

reason why the greenbelt status of the contested parcels qualifies as particular evidence of rural character.

[12,13] Lastly, the district court accepted Sarpy County’s 

argument that annexation would eliminate SID’s in the area, 

and would therefore limit resources available for development. 

This argument is not relevant to the question of whether the 

city acted within its annexation authority. The annexation of 
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land by a city is a legislative matter. 33 However, courts have 

the power to inquire into and determine whether the conditions 

exist which authorize the annexation thereof. 34 In doing so, it 

is not for the courts to determine what portions of land may be 

properly annexed, because the fixing of boundary lines under 

this authority is a legislative act. 35

Based upon all of the foregoing, Sarpy County has failed 

to prove that the ordinances adopted by Gretna are invalid. 

Gretna’s appeal has merit.

CONCLUSION

The annexation ordinances and zoning extension ordinances 

adopted by Gretna were valid under the relevant statutory 

authority. The judgment of the district court should be and is 

hereby reversed.

Reversed.

33 Wagner, supra note 10.

34 Id.

35 Id.

Cassel, J., dissenting.

Because the “reach” of Gretna’s ordinances exceeds the 

“grasp” authorized by state annexation law, 1 I would affirm 

the district court’s judgment. Where any part of a municipal 

annexation is of agricultural lands which are rural in character, 

the entire ordinance must be invalidated, because the drawing 

of boundary lines is a legislative act and a court has no authority to revise the boundary line of a city, as extended by the 

ordinance. 2

The majority opinion fails to apply the principle here to agricultural land. Particularly, tracts 19 through 22 are separated 

1 See Neb. Rev. Stat. § 17-407(2) (Cum. Supp. 2020).

2 See, County of Sarpy v. City of Papillion, 277 Neb. 829, 765 N.W.2d 456 

(2009); Wagner v. City of Omaha, 156 Neb. 163, 55 N.W.2d 490 (1952).
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from the other lands by the interstate highway, lie in the Platte 

River Watershed and/or the Papillion Creek Watershed, lack 

infrastructure or plans for development, are used for agriculture, and remain largely untouched without any financially feasible means of development. The majority’s characterization of 

these tracts as urban or suburban seems to flow from the notion 

that development is inevitable at some future time (despite 

Gretna’s expert’s recognition that future development depends 

upon “demand” that does not now exist). But that is not the 

proper test and fundamentally departs from our case law, which 

is driven by longstanding statutory language.

Further, I am troubled by the majority opinion’s reliance on 

a fleeting reference to increased property value in Holden v. 

City of Tecumseh.

 3 The Holden court’s decision was driven by 

the peculiar growth of Tecumseh in an “L” shape around the 

annexed tract. The reference there to value must be viewed 

in that context. Here, Gretna has been growing away from, 

not near or around, the contested parcels—especially tracts 

19 through 22. Despite the majority’s attempt to disclaim its 

opinion’s effect, it allows Gretna to justify its overreach by 

citing increased property valuations—which exist around any 

city’s limits—to annex rural agricultural land. This approach 

paves the way for a city to expand in any direction it wants, 

regardless of its directional development, by citing increased 

property valuations.

I respectfully dissent.

3 Holden v. City of Tecumseh, 188 Neb. 117, 195 N.W.2d 225 (1972).