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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 310 Neb. 669

Main St Properties LLC, appellant, v. 

City of Bellevue, Nebraska, appellee.

___ N.W.2d ___

Filed January 7, 2022. No. S-21-129.

1. Jurisdiction: Appeal and Error. A jurisdictional question that does not 

involve a factual dispute is determined by an appellate court as a matter 

of law, which requires the appellate court to reach a conclusion independent of the lower court’s decision.

2. Motions to Dismiss: Appeal and Error. A district court’s grant of a 

motion to dismiss is reviewed de novo.

3. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an 

order dismissing a complaint, the appellate court accepts as true all facts 

which are well pled and the proper and reasonable inferences of law and 

fact which may be drawn therefrom, but not the plaintiff’s conclusion.

4. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss 

for failure to state a claim, a plaintiff must allege sufficient facts to state 

a claim to relief that is plausible on its face.

5. Dismissal and Nonsuit: Pleadings: Appeal and Error. When analyzing a lower court’s dismissal of a complaint for failure to state a claim, 

an appellate court accepts the complaint’s factual allegations as true and 

construes them in the light most favorable to the plaintiff.

6. Statutes: Appeal and Error. The right of appeal in Nebraska is purely 

statutory; unless a statute provides for an appeal from the decision of a 

quasi-judicial tribunal, such right does not exist.

7. Municipal Corporations: Appeal and Error. A city council is a tribunal whose decision can be reversed, vacated, or modified through 

the petition in error process set forth in Neb. Rev. Stat. § 25-1901 

(Reissue 2016).

8. Administrative Law: Jurisdiction: Appeal and Error. Petition-in-error 

jurisdiction is limited by statute to a review of a judgment rendered or 

final order made by any tribunal, board, or officer exercising judicial 

functions and inferior in jurisdiction to the district court.

Nebraska Supreme Court Online Library

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

03/18/2022 01:09 AM CDT
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 310 Neb. 669

9. Municipal Corporations: Appeal and Error. When an entity such as 

a city council is exercising its judicial functions, the petition in error 

statute is the proper method for challenging such actions.

10. Administrative Law: Appeal and Error. A board or tribunal exercises 

a judicial function if it decides a dispute of adjudicative fact or if a statute requires it to act in a judicial manner.

11. Evidence: Proof: Words and Phrases. Adjudicative facts are facts 

which relate to a specific party and are adduced from formal proof. 

Adjudicative facts pertain to questions of who did what, where, when, 

how, why, and with what motive or intent. They are roughly the kind of 

facts which would go to a jury in a jury case.

12. Administrative Law: Appeal and Error. Whether a board or tribunal 

is required to conduct a hearing and receive evidence may be considered 

in determining whether the inferior board or tribunal exercised judicial functions.

13. 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.

14. 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.

Appeal from the District Court for Sarpy County: George 

A. Thompson, Judge. Reversed and remanded for further 

proceedings.

David A. Domina, of Domina Law Group, P.C., L.L.O., for 

appellant.

A. Bree Robbins, Bellevue City Attorney, for appellee.

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

Papik, and Freudenberg, JJ.

Funke, J.

Main St Properties LLC (MSP) appeals the order of the 

district court for Sarpy County which dismissed its complaint 

for lack of subject matter jurisdiction. MSP’s complaint sought 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 310 Neb. 669

to enjoin a rezoning ordinance adopted by the city council for 

the City of Bellevue, Nebraska (City). The court accepted the 

City’s argument that MSP was required to bring its challenge 

as a petition in error under Neb. Rev. Stat. § 25-1901 et seq. 

(Reissue 2016 & Cum. Supp. 2020). We conclude the court 

erred in dismissing MSP’s complaint, and we reverse its decision and remand the cause for further proceedings.

BACKGROUND

MSP operated a U-Haul business on a property it owned in 

Bellevue. As part of the business, MSP rented moving vans, 

trucks, and trailers which were stored on the property. In 2012, 

MSP and the City entered into a zoning development agreement 

(the agreement) under which the City agreed to conditionally 

rezone MSP’s property from a “combined General Residential 

and Olde Town Overlay District” to a “combined Metropolitan 

General Business District and Olde Town Overlay District.” 

The agreement stated that the “City has determined that it is 

in the best interest of the health, safety and welfare of the City 

and its residents to exercise its legislative prerogative in favor 

of [MSP].” The agreement further stated:

All rights, easements, privileges, covenants, terms, conditions and restrictions created hereunder are declared to 

be in furtherance of a plan to promote and protect the 

cooperative use, operation and maintenance of the Parcel, 

the comprehensive development of the City and otherwise 

for the public health, safety, welfare and best interests of 

the City and its residents.

In exchange, MSP agreed that “[n]o parking or storage of 

U-Haul vans, trucks or trailers shall be permitted on the portion 

of the Parcel north of the north face of the building . . . .”

The “Violations and Remedies” provision of the agreement 

stated that in the event MSP should violate the agreement, 

then after providing MSP written notice of such violation, 

and upon MSP’s failure to cure within 10 days of receipt of 

notice, the City shall have the right to schedule a hearing to 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 310 Neb. 669

rezone MSP’s parcel back to its 2012 designation, deny any 

additional permits or certifications with respect to the parcel, 

enjoin unlawful use of the parcel, and utilize remedies provided by law.

On June 19, 2020, a Bellevue code enforcement officer 

issued and delivered a notice of a zoning violation upon MSP. 

The City’s official notice of zoning violation form stated, “YOU 

ARE HEREBY NOTIFIED THAT YOU ARE IN VIOLATION OF THE BELLEVUE ZONING ORDINANCE AS 

INDICATED BELOW:” next to which the officer wrote “Ref 

Contract Zoning Agreement with City of Bellevue.” The notice 

ordered MSP to, before July 19, 2020, “Have all Uhaul [sic] 

vans, trucks and/or trailers Parked or Stored South of the North 

face of the Building.” The notice stated MSP had 30 days from 

receipt of the “Official Notice” to appeal the “Order” to the 

City’s board of adjustment.

On July 13, 2020, MSP appealed to the board of adjustment, 

which upheld the zoning violation. MSP appealed the board of 

adjustment’s decision to the district court. That appeal remains 

pending, and the merits of that appeal are not at issue here. 

As the parties’ dispute over the agreement continued, MSP 

contended all proceedings should be stayed during the pendency of the board of adjustment appeal under Neb. Rev. Stat. 

§ 19-909 (Reissue 2012) and the Bellevue Municipal Code. 

Notwithstanding MSP’s argument that the matter should be 

stayed, on July 23, the City’s planning commission held a hearing and recommended reversing the conditional rezoning of 

MSP’s property based on the zoning violation. The city council 

introduced an ordinance to rezone MSP’s property, based on 

the recommendation of the planning commission, and held 

a public hearing on the ordinance. On September 1, the city 

council approved ordinance No. 4004, which rezoned MSP’s 

property as it was classified before the agreement.

On September 30, 2020, MSP filed a “Complaint for 

Declaratory and Injunctive Relief” against the City. The City 

moved to dismiss, arguing that in passing the ordinance, the 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 310 Neb. 669

city council was “exercising judicial functions and is inferior 

in jurisdiction to the district court.” The City contended, therefore, that MSP’s exclusive means of challenging the rezoning 

ordinance was to file a petition in error. The district court 

granted the City’s motion to dismiss, adopting the City’s argument that the court lacked subject matter jurisdiction because 

MSP failed to file a petition in error.

MSP appealed. We moved the case to our docket on our 

own motion.

ASSIGNMENT OF ERROR

MSP assigns, restated, the district court erred in dismissing 

the complaint for lack of subject matter jurisdiction.

STANDARD OF REVIEW

[1] A jurisdictional question that does not involve a factual 

dispute is determined by an appellate court as a matter of law, 

which requires the appellate court to reach a conclusion independent of the lower court’s decision. 1

ANALYSIS

MSP claims that the city council performed a legislative act 

when it adopted the rezoning ordinance and that the correct 

way to challenge ordinance No. 4004 was to collaterally attack 

the ordinance by requesting an injunction. The City contends 

that MSP was challenging a judicial function exercised by the 

city council and that the sole means of challenging the ordinance was to file a petition in error. The City further contends 

that MSP’s failure to do so meant the district court could not 

acquire subject matter jurisdiction over MSP’s complaint. We 

agree with MSP and conclude as a matter of law that the district court erred when it dismissed MSP’s complaint for lack of 

subject matter jurisdiction.

1 Main St Properties v. City of Bellevue, 309 Neb. 738, 962 N.W.2d 333 

(2021). Champion v. Hall County, 309 Neb. 55, 958 N.W.2d 396 (2021); 

McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120 

(2019).
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 310 Neb. 669

[2-5] A district court’s grant of a motion to dismiss is 

reviewed de novo. 2 When reviewing an order dismissing a 

complaint, the appellate court accepts as true all facts which 

are well pled and the proper and reasonable inferences of law 

and fact which may be drawn therefrom, but not the plaintiff’s 

conclusion. 3 To prevail against a motion to dismiss for failure 

to state a claim, a plaintiff must allege sufficient facts to state 

a claim to relief that is plausible on its face. 4 When analyzing 

a lower court’s dismissal of a complaint for failure to state a 

claim, an appellate court accepts the complaint’s factual allegations as true and construes them in the light most favorable to 

the plaintiff. 5

For purposes of reviewing the court’s order of dismissal, 

we summarize the relevant allegations asserted in MSP’s 

complaint for declaratory and injunctive relief. MSP alleged 

the agreement entered into in 2012 granted MSP unique land 

interests essential to its business which it had enjoyed for 8 

years; MSP had abided by the terms of the agreement; MSP 

had not used the area “north of the north face of the building” 

for parking or storage, but had openly used a parking area 

northeast of the building since September 2012; MSP had not 

violated any zoning laws; the planning commission’s recommendation was erroneous, because there was no zoning violation; Nebraska law required the city council to stay its proceedings regarding the ordinance until the conclusion of the 

board of adjustment appeal; ordinance No. 4004 unlawfully 

interferes with MSP’s contractual and property interests; as a 

result of the ordinance, MSP lost property interests, business 

interests, and interests under the agreement; and, as a result of 

the ordinance, MSP suffered immediate and irreparable harm 

2 In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 

(2021).

3 Id.

4 Id.

5 Id.
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 310 Neb. 669

for which it has no adequate remedy at law. MSP requested 

an order temporarily and permanently restraining and enjoining the City from enforcing or acting pursuant to ordinance 

No. 4004.

[6,7] The right of appeal in Nebraska is purely statutory;

unless a statute provides for an appeal from the decision of 

a quasi-judicial tribunal, such right does not exist. 6 A city 

council is a tribunal whose decision can be reversed, vacated, 

or modified through the petition in error process set forth in 

§ 25-1901. 7

[8-10] Petition-in-error jurisdiction is limited by statute to a 

review of “[a] judgment rendered or final order made by any 

tribunal, board, or officer exercising judicial functions and 

inferior in jurisdiction to the district court . . . .” 8 When an 

entity such as a city council is exercising its judicial functions, 

the petition in error statute is the proper method for challenging such actions. 9 A board or tribunal exercises a judicial function if it decides a dispute of adjudicative fact or if a statute 

requires it to act in a judicial manner. 10 But where a board or 

tribunal decides no question of adjudicative fact and no statute 

requires it to act in a judicial manner, the orders are not “judicial” and are not reviewable by error proceedings. 11

[11,12] Adjudicative facts are facts which relate to a specific party and are adduced from formal proof. 12 Adjudicative 

6 McEwen, supra note 1; Moore v. Black, 220 Neb. 122, 368 N.W.2d 488 

(1985); Fisher v. Housing Auth. of City of Omaha, 214 Neb. 499, 334 

N.W.2d 636 (1983); Friedman v. State, 183 Neb. 9, 157 N.W.2d 855 

(1968); Simpson v. City of Grand Island, 166 Neb. 393, 89 N.W.2d 117 

(1958).

7 Johnson v. City of Kearney, 277 Neb. 481, 763 N.W.2d 103 (2009); 

Abboud v. Lakeview, Inc., 237 Neb. 326, 466 N.W.2d 442 (1991).

8 § 25-1901.

9 Johnson, supra note 7. See Abboud, supra note 7.

10 Hawkins v. City of Omaha, 261 Neb. 943, 627 N.W.2d 118 (2001).

11 Id.

12 Id.
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 310 Neb. 669

facts pertain to questions of who did what, where, when, how, 

why, and with what motive or intent. They are roughly the kind 

of facts which would go to a jury in a jury case. 13 Whether a 

board or tribunal is required to conduct a hearing and receive 

evidence may be considered in determining whether the inferior board or tribunal exercised judicial functions. 14

In Landrum v. City of Omaha Planning Bd.,

 15 the Nebraska 

Supreme Court recognized the nature of the proceeding in 

question is a key factor in determining whether a proceeding is 

quasi-judicial or legislative. The court in Landrum considered 

whether a city council acted judicially by conducting a hearing 

prior to granting a rezoning request and a special use permit, 

where the record did not show evidence or testimony was 

offered and received at the hearing. In light of the nature of the 

proceedings at issue, the court held the city council acted as a 

legislative body. 16

[13,14] 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. 17 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. 18

13 Id.

14 Id., citing School Dist. No. 23 v. School Dist. No. 11, 181 Neb. 305, 148 

N.W.2d 301 (1967).

15 Landrum v. City of Omaha Planning Bd., 297 Neb. 165, 899 N.W.2d 598 

(2017); In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).

16 See id.

17 Id.; 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); Scottsbluff 

Improvement Assn. v. City of Scottsbluff, 183 Neb. 722, 164 N.W.2d 215 

(1969).

18 Id.
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 310 Neb. 669

MSP’s complaint, allegations, and exhibits properly 

embraced within the complaint do not show that the city council exercised judicial functions in rezoning MSP’s property, 

but, instead, show that the city council was exercising a legislative power. There are no allegations explaining how the city 

council, for example, received evidence or testimony into an 

official record or rendered a decision in an adversarial proceeding consistent with due process. The agreement itself, which 

is attached to the complaint, stated the conditional rezoning 

of MSP’s property was an “exercise [of the City’s] legislative prerogative.” When viewed under the motion to dismiss 

standards for review, MSP’s allegations show the city council 

adopted a rezoning ordinance based upon the recommendation 

of the planning commission. The allegations do not show the 

city council decided a dispute of adjudicative fact. 19

Furthermore, the city council was not statutorily required 

to act in a judicial manner. 20 The City admitted at oral argument before this court that the purported rezoning authority 

discussed in the agreement is derived from this court’s case 

law rather than specifically authorized by statute. Though the 

merits of the dispute regarding the agreement are not at issue 

here, the City’s position that MSP violated the agreement is 

alleged to be based on the City’s asserted authority under the 

agreement itself, or on the municipal code, but not based on 

any zoning statute under Nebraska law. There is nothing in the 

complaint showing the city council was statutorily required to 

conduct a hearing, hear testimony, and take evidence. 21

Accepting all the factual allegations in the complaint as 

true and drawing all reasonable inferences in favor of MSP, 

the complaint is sufficient to survive a motion to dismiss. As 

such, we reverse the court’s dismissal of the complaint and 

19 See Hawkins, supra note 10.

20 See id.

21 See id.
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 310 Neb. 669

remand the cause for further proceedings. We express no opinion as to the merits of MSP’s action for declaratory or injunctive relief.

CONCLUSION

The district court erred in dismissing MSP’s complaint for 

lack of subject matter jurisdiction. The cause must be and is 

hereby remanded for further proceedings.

Reversed and remanded for 

further proceedings.