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LANDRUM v. CITY OF OMAHA PLANNING BD.

Cite as 297 Neb. 165

Matthew Landrum et al., appellants and cross-appellees, 

v. City of Omaha Planning Board et al., 

appellees and cross-appellants, and

Daryl Leise et al., appellees.

___ N.W.2d ___

Filed July 14, 2017. No. S-16-383.

1. Ordinances: Appeal and Error. Interpretation of a municipal ordinance is a question of law on which an appellate court reaches an 

independent conclusion irrespective of the determination made by the 

court below.

2. Administrative Law: Appeal and Error. In reviewing a decision based 

on a petition in error, an appellate court determines whether the inferior 

tribunal acted within its jurisdiction and whether the inferior tribunal’s 

decision is supported by sufficient relevant evidence.

3. Standing: Words and Phrases. Standing is the legal or equitable right, 

title, or interest in the subject matter of the controversy.

4. Jurisdiction: Standing. The requirement of standing is fundamental to 

a court’s exercise of jurisdiction, and either a litigant or a court before 

which a case is pending can raise the question of standing at any time 

during the proceeding.

5. Standing: Zoning. It is generally held that an adjacent landowner has 

standing to object to the rezoning of property if such landowner shows 

some special injury separate from a general injury to the public.

6. Municipal Corporations: Actions: Appeal and Error. An appeal or 

error proceeding does not lie from a purely legislative act by a public 

body to which legislative power has been delegated, and the only remedy in such cases is by collateral attack, that is, by injunction or other 

suitable action.

7. Municipal Corporations: Ordinances: Zoning. A zoning ordinance 

constitutes the exercise of a governmental and legislative function, and 

a city council adopting a rezoning ordinance which amends a general 

zoning ordinance acts in a legislative capacity.

Nebraska Supreme Court Online Library

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

08/25/2017 09:15 PM CDT
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8. Jurisdiction: Appeal and Error. When a trial court lacks the power, 

that is, jurisdiction, to adjudicate the merits of a claim, the Supreme 

Court also lacks power to adjudicate the merits of the claim.

9. Standing: Jurisdiction: Proof. A party invoking a tribunal’s jurisdiction has the burden to establish the elements of standing.

10. Appeal and Error. An issue not presented to the trial court may not be 

raised on appeal.

11. Administrative Law: Evidence: Appeal and Error. The reviewing 

court is restricted to the record before the administrative agency and 

does not reweigh evidence or make independent findings of fact, and 

the evidence is sufficient to support an administrative agency’s decision 

if the agency could reasonably find the facts as it did based on the testimony and exhibits contained in the record.

12. Administrative Law: Due Process: Jurisdiction: Notice: Evidence: 

Appeal and Error. A court reviewing an order of an administrative 

agency must determine whether there has been due process of law; and 

this includes an inquiry into the jurisdiction of the agency, whether there 

was reasonable notice and an opportunity for fair hearing, and whether 

the finding was supported by evidence.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirmed in part, and in part vacated 

and dismissed.

Rex J. Moats and Margaret A. McDevitt, of Moats Law 

Firm, P.C., L.L.O., for appellants.

Russell S. Daub for appellees Daryl Leise et al.

Alan M. Thelen, Deputy Omaha City Attorney, for appellees 

City of Omaha Planning Board et al.

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

Kelch, and Funke, JJ.

Kelch, J.

I. INTRODUCTION

Matthew Landrum, Shandra Landrum, Rex Moats, Diane 

Moats, Edward Malesa, and Valerie Malesa (Homeowners) 

appeal the order of the district court for Douglas County that 

dismissed their amended petition in error. The Homeowners 
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Cite as 297 Neb. 165

sought to challenge a conditional use permit issued by the 

Omaha Planning Board (Planning Board) and a special use 

permit and rezoning granted by the Omaha City Council (City 

Council). The City of Omaha (City), the Planning Board, and 

the City Council cross-appeal, arguing that the Homeowners’ 

petition in error was untimely and that the district court lacked 

subject matter jurisdiction. We dismiss for lack of jurisdiction 

that portion of the Homeowners’ appeal concerning rezoning 

and a special use permit, and we vacate the corresponding 

portion of the district court’s order. However, because the 

Planning Board acted within its jurisdiction, based its findings on sufficient evidence, and afforded the Homeowners due 

process, we affirm the district court’s order in regard to the 

conditional use permit.

II. BACKGROUND

1. Procedural Background

This appeal arises from permits and rezoning granted to 

Daryl Leise; Redbird Group, LLC; and Ray Anderson, Inc. 

(collectively the Developers), for a proposed convenience storage and warehouse facility to be constructed on real estate in 

the Omaha area (subject property). Ray Anderson, Inc., is the 

current owner of the subject property.

The City carries out its zoning powers through the enactment and enforcement of its zoning code, Omaha Municipal 

Code, chapter 55.

The Omaha Municipal Code designates various base zoning 

districts, including a “community commercial” (CC) district, 

which is the designation of the subject property. Omaha Mun. 

Code, ch. 55, art. VIII, § 55-362 (1980). Further, the code 

provides for a special “overlay district” that can be “overlaid” upon a property in addition to its base zoning district. 

Omaha Mun. Code, ch. 55, art. XI, § 55-682 (2007). One 

type of overlay district is the “major commercial corridor” 

(MCC) district, for which Leise applied in this case. See id.

The zoning regulations enumerate various use types. For the 
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subject property, Leise sought the use types “[w]arehousing 

and distribution (limited),” see Omaha Mun. Code, ch. 55, art. 

III, § 55-49(h) (1980) (emphasis omitted), and “[c]onvenience 

storage,” see Omaha Mun. Code, ch. 55, art. III, § 55-45(m) 

(2007) (emphasis omitted). The “[w]arehousing and distribution (limited)” use type is allowed subject to approval of a 

conditional use permit. Omaha Mun. Code, ch. 55, art. VIII, 

§ 55-364(e) (2008). Similarly, a special use permit is required 

for convenience storage in the CC district. Omaha Mun. Code, 

ch. 55, art. VIII, § 55-365(c) (2008).

As noted above, Leise sought to place the subject property 

into the MCC overlay district while maintaining the base 

CC zoning district. Buildings built within the MCC overlay 

district are subject to certain urban design rules. See Omaha 

Mun. Code, ch. 55, art. XI, §§ 55-682 through 55-687 (2007), 

and Omaha Mun. Code, ch. 55, art. XXII, §§ 55-927 through 

55-936 (2007). These urban design rules provide for enhanced 

regulation of screening, parking, site and building access, landscaping, and general building design guidelines. Id.

In sum, to proceed with the proposed project, the Omaha 

Municipal Code required three zoning approvals from the 

City: a conditional use permit, which could be issued by 

the Planning Board; a special use permit, which could be 

granted by the City Council after a recommendation by the 

Planning Board; and a rezoning, which could be granted by 

the City Council after a recommendation by the Planning 

Board, to place the subject property within the MCC overlay 

district. See Omaha Mun. Code, ch. 55, art. XX, § 55-883(h) 

and (k) (2008), § 55-884(g)(3) (2008), and § 55-886(f) and 

(g) (1980).

2. Municipal Proceedings

The subject property is a 4.75-acre vacant lot at the northeast corner of 204th Street (Highway 31) and Farnam Street, 

located near a residential area. Leise’s statement of proposed 

use and plans for the subject property anticipated constructing 
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a three-story storage building, resembling an office building, 

with internal storage spaces. Leise also proposed constructing five single-story storage buildings with garage-type stalls. 

The storage facilities would contain 700 storage spaces for 

rental to customers, with estimated visits of two or three cars 

per hour.

Leise submitted a proposed concept design to the City’s 

planning department. The concept design, dated February 17, 

2015, provided preliminary specifications to demonstrate compliance with site development, landscaping, and buffer requirements for a CC property.

After reviewing the proposed concept design, the planning department issued a responsive letter, dated February 27, 

2015. The planning department summarized the proposed project’s classification and permit requirements under the Omaha 

Municipal Code.

The planning department scheduled the matter for a May 

6, 2015, hearing before the Planning Board. On March 20, 

the planning department issued the following notice via a 

letter to residents near the proposed project site: “NOTICE 

OF REQUEST FOR: Approval of a Special Use Permit to 

allow Convenience storage and a Conditional Use Permit 

to allow Warehousing and distribution (limited) in a 

CC-Community Commercial District, with approval of an 

MCC-Major Commercial Corridor Overlay District.” The 

notice further invited any interested persons to hear and 

comment on the proposal, which was on file at the planning 

department, and provided details about the approval procedure and hearing.

On April 6, 2015, Leise submitted a planning department 

zoning application form. The application form allowed the 

applicant to check boxes to select a special use permit, a conditional use permit, and “Other.” Leise’s application selected 

a special use permit and “Other,” specifying “Adopt MCC 

Overlay District,” but a conditional use permit was not selected. 

The application form provided basic factual information, 
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Cite as 297 Neb. 165

including the address and legal description of the subject 

property, its owner, the applicant, a contact person, and information on proposed building, parking, and landscaping. Leise 

incorrectly identified the property owner as “Ray Anderson 

c/o Anderson Food Shops,” rather than “Ray Anderson, Inc.” 

Leise listed himself as the applicant and contact person. There 

were illegible signatures on the lines designated for “Owner’s 

Signature” and “Applicant Signature.” Under the applicant’s 

signature, the form states, “(If not the property owner, the 

applicant certificates [sic] with this signature to be the authorized agent of the property owner.)”

On April 29, 2015, the planning department issued a recommendation report that analyzed the proposed project in 

light of applicable portions of the Omaha Municipal Code. 

The report noted that the adjacent land use was primarily 

residential. It stated that before the City annexed the subject 

property and converted it to a CC district, it was originally 

zoned “C-3 Highway Commercial” by the City of Elkhorn, 

a designation which allowed warehousing and distribution as 

a permitted use. The report noted that conditionally, Leise’s 

permit request was in substantial conformance with “the zoning ordinance” and the City’s master plan. The report further 

evaluated the proposed uses pursuant to specific portions of 

Omaha Mun. Code, ch. 55, art. XX, § 55-885 (2008), which 

sets forth criteria for the review and evaluation of applications 

for conditional use permits and special use permits. It deduced 

that the proposed uses would comply with those criteria and 

that the economic impact on surrounding properties would 

be acceptable. The report recommended (1) approval of “the 

MCC-Major Commercial Overlay District,” (2) approval of the 

special use permit to allow convenience storage in “a CC-MCC 

District” subject to plan revisions for compliance with zoning 

regulations, and (3) approval of the conditional use permit to 

allow “Warehousing and distribution (limited) in a CC-MCC 

District,” subject to plan revisions for compliance with zoning regulations.
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Cite as 297 Neb. 165

On May 5, 2015, residents near the subject property submitted to the Planning Board a “Petition” with 52 signatures, 

expressing opposition to the proposed project. Residents also 

submitted letters and email messages detailing the reasons 

for their opposition, which included safety risks, lack of sufficient buffer space from adjacent homes, increased risk of 

crime, excessive light from the development, lack of continuity with the adjacent homes, and adverse effects on property values.

The Planning Board held a public hearing on Leise’s 

requests on May 6, 2015. Leise appeared and described the 

proposal. Several neighborhood opponents also spoke, including one of the Homeowners. Opponents generally expressed 

that they were not yet familiar with the plan. They opined that 

the structure would not “fit” with the nearby residential neighborhoods and may contribute to crime and obstruct views. A 

real estate broker with 14 years’ experience and others stated 

that the structure would be detrimental to the neighboring 

residents’ property values. Other concerns included lighting, 

safety, and compliance with the City’s master plan. Some 

opponents stated that they had not been personally informed 

about the project and that they felt they had been “ambushed.” 

Another complained that some residents near the proposed 

project site did not receive the notice of hearing from the 

Planning Board. The Planning Board laid over the case to 

allow Leise and the neighboring residents to meet and discuss 

the issues.

Leise submitted revised plans, and the City’s planning 

department issued a revised recommendation report on July 

29, 2015. The revised recommendation report found that the 

revised plans “addressed most of the conditions listed in the 

previous recommendation report.” The report noted that the 

Developers needed to provide a floor plan for the indoor storage facility. Like the previous report, it provided a written 

analysis of the project in light of § 55-885 and concluded that 

other than a few conditions to address, “the proposed uses 
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will comply with all the applicable base district development 

standards and [are] consistent with the criteria in Section 

55-885.” The planning department added that “[t]he proposed 

uses are consistent with and carry out the goals and objectives 

of the City[’s] Master Plan.”

On August 5, 2015, the Planning Board conducted another 

hearing. The planning department again issued a notice letter regarding the proposed conditional use permit, special use 

permit, and rezoning. At the hearing, the Developers’ attorney 

addressed issues including tree buffers, the “upgraded design,” 

topography, compliance with size regulations, views from the 

exterior, security issues, and fencing and buffering. He also 

noted the meetings and contacts between Leise and the residential neighbors.

At the August 5, 2015, hearing, neighbors again expressed 

concerns about views from the exterior, lighting, the City’s 

master plan, compatibility with the neighborhood, and safety. 

One of the Homeowners implied that demographically, owners 

of nearby starter homes valued at about $125,000 would be 

more likely to use the storage facility than homeowners like 

him with large homes valued at $400,000. Following these 

remarks, a board member advised the Homeowner and others 

present to be “very careful about generalizing about people.” 

The Homeowner reiterated:

The point I’m trying to make here is that it is a different type of housing in this neighborhood that would 

be next to that type of facility. It is not $125,000 homes, 

it is not whatever they are for trailer homes. These are 

houses that are valued between 300,000 and $400,000.

Later in the hearing, another board member referred to premeeting discussions, stating, “[I]t was socioeconomic impact 

discussion that really sort of floored me because it dealt with 

the income levels of people who will be using this type of 

storage facility.” He also alluded to the Homeowner’s comments and said:
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[T]hat’s offensive to me, okay? It’s offenses [sic] to have 

that type of discussion about the construction of a storage facility.

I’m convinced that if we took the same structure that 

[Leise] wants to build and put something else on the 

inside of it, we wouldn’t get this argument because it 

wouldn’t be a storage facility . . . .

Immediately following the hearing, the Planning Board 

voted in favor of the conditional use permit, special use permit, and MCC overlay rezoning. Thus, the conditional use 

permit was approved, subject to conditions, and the special use 

permit and rezoning were forwarded to the City Council for 

final action.

On September 29, 2015, the City Council held a public 

hearing on the special use permit and rezoning, designated 

as separate agenda items. Prior to the hearing before the City 

Council, nearby residents submitted to the City Council an 

“Opposition Document” detailing their concerns about the proposed project. Two hundred ninety-two neighboring residents, 

including at least three of the Homeowners, signed “petitions” 

that accompanied the opposition document. The opposition 

document was later filed in the City clerk’s office. At the hearing, the Developers’ attorney again spoke. In addition, some 

neighbors voiced concerns similar to those discussed at previous hearings. The City Council voted to lay over the case for 

3 weeks.

On October 20, 2015, the City Council held another hearing. The Developers’ attorney stated that in response to the 

neighbors’ concerns, the Developers had further revised the 

plan, adding seven features which the Developers listed in 

a letter to the City Council. The seven features pertained to 

enhanced landscaping and finishes to improve the appearance of the proposed development. At the hearing, the 

Developers’ attorney reported that one of the homeowners’ 

associations that had formerly objected to the project had now 

approved it.
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The Homeowners’ representative stated at the hearing that 

they had presented an “alternative design” to the Developers. 

The Developers’ attorney responded that they had evaluated the 

cost of the alternative design relative to the potential income 

and concluded that it would be an “economic disaster.”

The City Council voted 5 to 2 to approve the MCC rezoning 

and ultimately passed an ordinance to implement it. The City 

Council also approved the special use permit by a vote of 5 to 

2, subject to compliance with various regulations and conditions, including the seven features listed in the Developers’ 

October 19, 2015, letter.

3. District Court Proceedings

On October 21, 2015, the Homeowners filed a petition 

in error with the district court, seeking to challenge the 

approvals of the conditional use permit, special use permit, 

and rezoning.

On October 30, 2015, the Homeowners filed an application 

for a temporary restraining order and temporary injunction in 

district court. They sought to prevent the issuance of any permits, the implementation of the MCC overlay district, and the 

development of the subject property.

On November 2, 2015, the Homeowners filed an amended 

petition in error. The Homeowners requested vacation or reversal of (1) the Planning Board’s approval of the conditional 

use permit, (2) the City Council’s passage of a resolution that 

approved the special use permit, and (3) the City Council’s 

passage of an ordinance implementing the MCC overlay district. The Homeowners claimed that the decisions of the City 

Council 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 Leise had failed to provide 

accurate information about the ownership of the subject property or his authority to develop it.
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Cite as 297 Neb. 165

On November 9, 2015, the Developers filed a motion to 

dismiss the Homeowners’ amended petition in error. However, 

on November 25, they withdrew the motion to dismiss and 

filed a motion to affirm the special use permit, along with 

the MCC overlay district. The Developers alleged that while 

the Homeowners’ amended petition in error was pending, the 

special use permit had been issued and the ordinance approving the MCC overlay district had been passed and signed by 

the mayor. The Developers further averred that the City entities’ actions appeared to comply with the law and that the 

Homeowners’ claims were not specific enough to meet their 

burden of proving otherwise.

On December 1, 2015, the City Council, the Planning 

Board, and the City filed an answer essentially denying the 

allegations of the amended petition in error. They affirmatively alleged that the Homeowners lacked standing, that the 

district court lacked subject matter jurisdiction over some 

or all of the claims, that the Homeowners made an untimely 

challenge of the conditional use permit, and that the City’s 

rezoning of the subject property was not reviewable by an 

error proceeding.

On February 17, 2016, the district court held a hearing on 

the amended petition in error and received the administrative 

record, including chapter 55 of the Omaha Municipal Code. On 

that date, the district court also determined that it did not have 

subject matter jurisdiction over the application for a temporary 

restraining order and temporary injunction.

In an April 11, 2016, order, the district court affirmed the 

determinations of the City Council and the Planning Board 

and dismissed the amended petition in error with prejudice. The district court stated that after reviewing the evidence, it found that the Planning Board and the City Council 

acted within their jurisdiction and that their determinations 

were supported by sufficient relevant evidence. This appeal 

followed.
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III. ASSIGNMENTS OF ERROR

On direct appeal, the Homeowners assign that the district 

court erred in (l) finding that the Planning Board acted within 

its jurisdiction and had sufficient evidence to approve the 

conditional use permit, (2) finding that the City Council had 

jurisdiction and sufficient evidence to approve the special 

use permit, (3) finding that the City Council acted within its 

jurisdiction and had sufficient evidence to approve the MCC 

rezoning, and (4) affirming the determinations of the Planning 

Board and City Council, because the record showed that the 

Planning Board and City Council did not act with due process 

of law.

On cross-appeal, the City, the Planning Board, and the City 

Council assign that the district court erred in (1) failing to rule 

that the Homeowners’ petition in error was untimely as to the 

conditional use permit, (2) failing to rule that the Homeowners 

lacked standing as to the rezoning challenge and that the 

district court thereby lacked subject matter jurisdiction, and 

(3) failing to rule that the petition in error was an improper 

remedy as to the rezoning, thereby precluding subject matter jurisdiction.

IV. STANDARD OF REVIEW

[1] Interpretation of a municipal ordinance is a question of 

law, on which we reach an independent conclusion irrespective of the determination made by the court below. See State 

ex rel. Parks v. Council of City of Omaha, 277 Neb. 919, 766 

N.W.2d 134 (2009).

[2] In reviewing a decision based on a petition in error, 

an appellate court determines whether the inferior tribunal 

acted within its jurisdiction and whether the inferior tribunal’s 

decision is supported by sufficient relevant evidence. Crown 

Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 

294 (1997).
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V. ANALYSIS

1. Cross-Appeal

We begin by addressing the cross-appeal of the City, the 

Planning Board, and the City Council, because its resolution is 

partially dipositive of the Homeowners’ direct appeal.

(a) Timeliness of Petition in Error

On cross-appeal, the City, the Planning Board, and the City 

Council contend that the district court lacked subject matter jurisdiction because the Homeowners untimely filed their 

petition in error more than 30 days after the Planning Board’s 

decision to approve the conditional use permit.

Neb. Rev. Stat. §§ 25-1905 and 25-1931 (Reissue 2016) 

govern proceedings in error and require that within 30 days 

after the rendition of the final judgment or order sought to 

be reversed, vacated, or modified, a petitioner in error must 

file a petition and an appropriate transcript containing the 

final judgment or order. See, Abdullah v. Nebraska Dept. of 

Corr. Servs., 245 Neb. 545, 513 N.W.2d 877 (1994); Glup 

v. City of Omaha, 222 Neb. 355, 383 N.W.2d 773 (1986). 

Here, the Homeowners filed their petition in error with the 

district court on October 21, 2015, unquestionably more than 

30 days after the Planning Board approved the conditional 

use permit on August 5. However, the Homeowners contend 

that the Planning Board’s approval was not a final order. 

We agree.

The Homeowners point to the Omaha Municipal Code, 

which provides that “[a]pproval of a conditional use permit 

by the planning board shall be effective five days after action, 

unless associated with an application for rezoning or subdivision approval.” § 55-883(j). In this instance, the request for 

the conditional use permit was associated with an application 

for rezoning. Therefore, we apply § 55-883(c) of the Omaha 

Municipal Code, which addresses concurrent applications. 

Section 55-883(c) provides in part, “The official effective 

date of a conditional use permit shall be the effective date 
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of an ordinance approved by the city council implementing 

rezoning of the site.” In this case, the conditional use permit 

went into effect on October 20, 2015, when the City Council 

passed the ordinance approving the amendment of the MCC 

overlay district. On the same date, the conditional use permit 

became a final order, and the Homeowners filed their petition in error on October 21, within 30 days of the final order. 

See Neb. Rev. Stat. § 25-1902 (Reissue 2016) (defining final 

order for purposes of review on petition in error). Therefore, 

the district court had subject matter jurisdiction. See Neb. 

Rev. Stat. § 25-1901 (Reissue 2016) (providing for district 

court’s appellate jurisdiction over any “final order made by 

any tribunal, board, or officer exercising judicial functions”) 

and § 25-1931.

(b) Standing

Next, the City, the Planning Board, and the City Council 

contend that the Homeowners failed to allege or prove any 

special injury arising from the “imposition of the stricter 

MCC overlay rules onto the subject property” and that therefore, they do not have standing. Brief for appellees on crossappeal at 39. The City, the Planning Board, and the City 

Council point out that the MCC overlay district actually 

is more restrictive to future development than the existing 

commercial base district and provides the Homeowners with 

added protection.

[3-5] Standing is the legal or equitable right, title, or interest in the subject matter of the controversy. Smith v. City of 

Papillion, 270 Neb. 607, 705 N.W.2d 584, 590 (2005). The 

requirement of standing is fundamental to a court’s exercise 

of jurisdiction, and either a litigant or a court before which a 

case is pending can raise the question of standing at any time 

during the proceeding. Id. It is generally held that an adjacent 

landowner has standing to object to the rezoning of property 

if such landowner shows some special injury separate from a 

general injury to the public. See id.
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The Homeowners point out that since they live adjacent to 

or within 300 feet of the proposed project, they have standing, like the property owners in Smith v. City of Papillion, 

supra. There, we noted that Neb. Rev. Stat. § 19-905 (Reissue 

1997) required notice to owners of property within 300 feet 

of the proposed project in first-class cities such as Papillion 

and that the property owners’ entitlement to such notice supported a finding of special injury. Here, the operative statute 

in metropolitan-class cities like Omaha is Neb. Rev. Stat. 

§ 14-420 (Cum. Supp. 2016), which also requires notice to 

owners of property within 300 feet of the proposed project. See Neb. Rev. Stat. § 14-101 (Reissue 2012) (defining 

metropolitan-class cities). Thus, the Homeowners’ entitlement 

to notice in this case tends to show the presence of a special 

injury. Further, in Smith, we noted that the finding of special injury was also supported by expert testimony that the 

proposed project would diminish property values in the area. 

We find similar evidence of a special injury in the instant 

case, where a real estate broker with 14 years of experience 

provided evidence to the Planning Board that the proposed 

changes would cause an adverse impact on the neighboring 

residents’ property values. Although contradictory evidence 

was presented by way of the planning department report, the 

Homeowners met their initial burden to show standing to challenge the proposed uses and rezoning.

(c) Jurisdiction

[6,7] Lastly, the City, the Planning Board, and the City 

Council contend that the City Council’s decision on the application for rezoning was a legislative function and, therefore, 

not the proper subject of an error proceeding. Previously, we 

have found that “an appeal or error proceeding does not lie 

from a purely legislative act by a public body to which legislative 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 re Application of Frank, 183 Neb. 
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722, 723, 164 N.W.2d 215, 216 (1969). We have held 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. Giger v. City of Omaha, 232 

Neb. 676, 442 N.W.2d 182 (1989); Copple v. City of Lincoln, 

210 Neb. 504, 315 N.W.2d 628 (1982); In re Application of 

Frank, supra.

But as pointed out by the Homeowners, although the abovecited cases preclude a petition in error following a legislative 

act, none of them deals with a simultaneous rezoning and special use permit. See, Giger v. City of Omaha, supra; Copple 

v. City of Lincoln, supra; In re Application of Frank, supra. 

Our case law does not address that situation. And the question becomes whether the City Council acted legislatively or 

judicially when faced with simultaneous requests for rezoning 

and a special use permit.

The Homeowners contend that by conducting simultaneous 

hearings on the special use permit and the rezoning, the City 

Council acted judicially. They argue:

In deciding to include Leise’s convenience storage 

and warehouse project within the MCC Overlay District, 

the . . . City Council acted judicially and not legislatively. The hearings on the amendment and the special 

use permit were at the same time and date, had the same 

participants and opponents and evidence, and utilized the 

same hearing procedures.

Reply brief for appellants at 10.

To support their argument, the Homeowners cite McNally 

v. City of Omaha, 273 Neb. 558, 731 N.W.2d 573 (2007), for 

the proposition that when a tribunal is required to conduct a 

hearing and receive evidence, it exercises a judicial function 

in determining questions of fact. And under Neb. Rev. Stat. 

§ 25-1903 (Reissue 2016), proceedings to obtain a reversal, 

vacation, or modification of a final order made by any tribunal, board, or officer exercising judicial functions shall be 
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by a petition entitled “petition in error.” However, McNally

involved an administrative hearing before a building review 

board and not a hearing before a city council. Further, we 

noted in McNally that there was an adversarial hearing where 

evidence had been presented by both sides and that the building review board exercised “‘judicial functions.’” 273 Neb. at 

564, 731 N.W.2d at 580.

Where our case law has not explicitly stated whether a proceeding is quasi-judicial or legislative, the nature of the proceeding in question is a key factor in making that determination. For example, in In re Application of Olmer, 275 Neb. 852, 

752 N.W.2d 124 (2008), we found that the county board acted 

quasi-judicially in denying an application for a conditional use 

permit; in so finding, we noted that the record included exhibits offered and received and a stipulated supplemental record 

which included a deposition with attached exhibits.

Here, the record reflects that the special use permit and 

rezoning applications proceeded at the same hearing pursuant 

to separate agenda items. Further, the record does not show 

that evidence was offered and received or that testimony was 

offered. Rather, the Homeowners’ opposition document was 

simply submitted to the City Council prior to the hearing and 

later filed with the City clerk’s office. Several neighboring 

residents, including some of the Homeowners, also presented 

argument at the two City Council hearings. Although we recognize that various boards and councils do not function as 

courts in the strict sense, parties cannot transform an otherwise legislative proceeding into a quasi-judicial function or 

establish a quasi-judicial record by simply presenting arguments and handing documents to the presiding body. In light 

of the nature of the proceedings at issue here, we conclude 

that the City Council acted as a legislative body in granting 

the rezoning request and in granting the special use permit. Accordingly, a request for a permanent injunction, not 

a petition in error, was the proper means to seek review of 

both determinations.
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[8] Because the Homeowners filed a petition in error to 

review both the rezoning and special use permit approvals by 

the City Council, the district court did not have jurisdiction 

to proceed on those issues, and as a result, neither does this 

court. When a trial court lacks the power, that is, jurisdiction, 

to adjudicate the merits of a claim, the Supreme Court also 

lacks power to adjudicate the merits of the claim. Nebraska 

State Bar Found. v. Lancaster Cty. Bd. of Equal., 237 Neb. 

1, 465 N.W.2d 111 (1991). We therefore dismiss for lack of 

jurisdiction that portion of the Homeowners’ appeal regarding 

the City Council’s approval of the rezoning and the special use 

permit. Consequently, we need not address the Homeowners’ 

assignments of error concerning the rezoning and the special 

use permit. Johnson v. Nelson, 290 Neb. 703, 861 N.W.2d 705 

(2015) (appellate court is not obligated to engage in analysis that is not necessary to adjudicate case and controversy 

before it).

2. Direct Appeal

Our holding regarding the cross-appeal limits our consideration of the Homeowners’ direct appeal to only the following issues related to the conditional use permit: whether the 

Planning Board acted within its jurisdiction, whether it had 

sufficient evidence to approve the conditional use permit, and 

whether it acted with due process of law.

(a) Jurisdiction

[9] The Homeowners claim that the district court erred in 

finding that the Planning Board acted within its jurisdiction. In 

reviewing a decision based upon a petition in error, an appellate court determines, among other things, whether the inferior 

tribunal acted within its jurisdiction. See Crown Products 

Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997). 

A party invoking the tribunal’s jurisdiction has the burden to 

establish the elements of standing. Field Club v. Zoning Bd. of 

Appeals of Omaha, 283 Neb. 847, 814 N.W.2d 102 (2012). The 
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Homeowners argue that Leise failed to show standing because 

the application he submitted did not reflect that he was the 

owner of the subject property or the agent of the owner and did 

not specifically request a conditional use permit.

[10] Both sides agree that Leise failed to check the box 

requesting a conditional use permit on the original application. On the other hand, the City, the Planning Board, and the 

City Council point out that the Homeowners allege Leise’s 

seeking of a conditional use permit in their amended petition 

in error and that the hearings were all advertised to reflect 

that a conditional use permit was being considered. However, 

the controlling issue here is that the Homeowners failed to 

challenge, in their petition in error, Leise’s failure to check 

the box requesting a conditional use permit on the original 

application. An issue not presented to the trial court may 

not be raised on appeal. V.C. v. Casady, 262 Neb. 714, 634 

N.W.2d 798 (2001). Now, for the first time, the Homeowners 

raise the issue of Leise’s failure to check the box requesting 

a conditional use permit, and we cannot consider that portion 

of their argument.

Similarly, the Homeowners now assert that Leise lacked 

standing to obtain the conditional use permit because his 

application did not demonstrate that he was the owner of 

the subject property or the agent of the actual owner. They 

argue that Leise failed to establish any agency relationship 

when he incorrectly designated “Ray Anderson c/o Anderson 

Food Shops” as the owner, rather than “Ray Anderson, Inc.” 

However, the Homeowners did not raise this issue before the 

district court in the context of the conditional use permit. 

Instead, their amended petition in error alleged that because 

Leise’s application failed to provide accurate information 

about the ownership of the subject property or the authority 

to develop it, the Planning Board and the City Council lacked 

sufficient evidence to approve the special use permit and the 

rezoning. As it pertains to the conditional use permit, then, 

this issue was neither presented to nor passed upon by the 
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district court, and the Homeowners cannot now raise it on 

appeal. See id.

(b) Sufficiency of Evidence

[11] The Homeowners also argued to the district court and 

now on appeal that the Planning Board had insufficient evidence to approve the conditional use permit. In reviewing a 

decision based on a petition in error, an appellate court determines whether the inferior tribunal acted within its jurisdiction and whether the inferior tribunal’s decision is supported 

by sufficient relevant evidence. Crown Products Co. v. City 

of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997). Further, the 

reviewing court is restricted to the record before the administrative agency and does not reweigh evidence or make independent findings of fact, and the evidence is sufficient to support an administrative agency’s decision if the agency could 

reasonably find the facts as it did based on the testimony and 

exhibits contained in the record. Geringer v. City of Omaha, 

237 Neb. 928, 468 N.W.2d 372 (1991).

In summary, the Homeowners argue that “[t]here was not 

sufficient competent evidence for approval of the conditional use permit for the industrial use of warehousing and 

distribution (limited) given the unrebutted evidence regarding lack of compatibility, adverse economic effects, and 

safety concerns.” Brief for appellants at 30. Specifically, 

the Homeowners maintain that the City, the Planning Board, 

and the City Council failed to follow the criteria as set forth 

in § 55-885. Section 55-885(a) does set forth the criteria 

for review and evaluation for a conditional use permit. But 

§ 55-885(b) further provides that “conditional use permits . . . 

shall be reviewed in accordance with the relevant criteria,” 

which means that the reviewing body need not consider each 

listed standard. The record reflects that although the City, the 

Planning Board, and the City Council did not consider each 

factor within § 55-885, they gave due consideration to the 

factors relevant in this case.
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Additionally, the Homeowners argue that the affected residential areas are composed of single-family dwellings in 

medium- to low-density neighborhoods and are not zoned to 

include convenience storage or warehousing as conditional 

or special uses. The Homeowners contend that the Planning 

Board approved the conditional use permit for limited industrial warehousing and distribution “without any consideration 

of extensive public opposition to the project and the unrebutted 

concerns regarding compatibility, adverse economic effects, 

and safety concerns.” Brief for appellants at 29. Certainly, 

opposition and concerns were raised.

On the other hand, the City’s planning department presented 

a report to the Planning Board dated April 29, 2015, which 

analyzed Leise’s application. That report acknowledged the 

surrounding residential properties and that prior to the subject 

property’s annexation by the City, warehousing and distribution were permitted uses for the subject property. It noted that 

Leise’s permit request was in substantial conformance with 

the zoning ordinance and the City’s master plan. Further, the 

planning department’s report thoroughly analyzed the proposed 

project in light of the relevant criteria of § 55-885 and concluded that the economic impact on surrounding properties was 

acceptable. In an updated report dated July 29, 2015, the planning department opined that Leise had essentially complied 

with all requested changes to his proposal and recommended 

approval of the conditional use permit, the special use permit, 

and the rezoning, subject to certain conditions.

Although the Homeowners raised valid concerns, we cannot find from the record that the Planning Board did not 

evaluate the application using its own criteria as outlined in 

§ 55-885 or that its decision was not supported by sufficient 

relevant evidence.

(c) Due Process

Lastly, the Homeowners contend that they were not provided due process. They argue:
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The [Planning] Board did not provide the opportunity to 

question . . . Leise or his counsel. Very little time was 

provided to present opposition evidence and concerns to 

the [Planning] Board. It was clear from the responses by 

the majority of [Planning] Board members to concerned 

citizens’ testimony at the May 6 . . . and August 5, 2015 

public meetings that the [Planning] Board had already 

decided in favor of . . . Leise’s plan.

Brief for appellants at 33. The Homeowners obviously believe 

that the Planning Board did not sufficiently consider their 

viewpoint.

However, the two portions of the record that the Homeowners 

cite do not support their position. First, a Homeowner suggested that the storage facility would be frequented by owners 

of lower-end homes rather than owners of higher-end homes 

such as his. In response, a board member cautioned him and 

others present to be “very careful about generalizing about 

people.” The Homeowners argue that this reflects that the 

Planning Board was not an “impartial adjudicator . . . and in 

effect became witnesses” for Leise. Brief for appellants at 32. 

Certainly, the Homeowner who offered the suggestion had the 

right to protect his property investment, which he believed 

would be adversely affected by the proposed uses. However, a 

Planning Board member’s redirecting the Homeowner’s comments does not equate with partiality or becoming a witness. 

Second, the Homeowners point to a portion of the record 

wherein a Planning Board member expressed his concerns 

about the Homeowners’ arguing against the project from a 

socioeconomic standpoint. Again, we cannot find that those 

concerns reflected either that the board member was not impartial or that he had become a witness. Further, neither instance 

shows that the Homeowners were not allowed to offer evidence, were not allowed to offer their opinion, or attempted to 

question Leise on the record.

[12] A court reviewing an order of an administrative agency 

must determine whether there has been due process of law; 
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and this includes an inquiry into the jurisdiction of the agency, 

whether there was reasonable notice and an opportunity for 

fair hearing, and whether the finding was supported by evidence. Ashby v. Civil Serv. Comm., 241 Neb. 988, 492 N.W.2d 

849 (1992). See, also, Crown Products Co. v. City of Ralston, 

253 Neb. 1, 567 N.W.2d 294 (1997) (in proceedings before 

administrative agency or tribunal, procedural due process 

requires, among other things, opportunity to present evidence 

and hearing before impartial board). As an appellate court 

performing a review of the record for due process, we are 

positioned not to judge the wisdom of the Planning Board’s 

decision, but to ensure that an aggrieved party had the opportunity to be heard. The Homeowners had that opportunity. 

Certainly, another board may have allowed more time than 

allotted here, but the amount of time devoted is not as relevant 

as the independence of the inquiry. In particular, for us to find 

error, the record must reflect an actual bias rather than mere 

disagreement. Based on our review of the record, we find that 

the Homeowners were provided due process.

VI. CONCLUSION

For the aforementioned reasons, we dismiss for lack of 

jurisdiction the portion of the Homeowners’ appeal addressing the rezoning and special use permit, and we further vacate 

the district court’s order in that regard for lack of jurisdiction. 

However, we affirm the district court’s order in regard to the 

conditional use permit.

 Affirmed in part, and in part

vacated and dismissed.