Exemption to zoning overlay district did not constitute special legislation

by Andrea Vaage

Dowd Grain Co. v. Sarpy County
Nebraska Supreme Court, August 14, 2015

In March 2004, Sarpy County enacted a zoning overlay ordinance that imposed design guidelines and other regulations along a specified road corridor. In 2007, this ordinance was amended to exempt land that was platted before the enactment of the ordinance in 2004. Dowd Grain Company owned land subject to the overlay ordinance but did not qualify for the exemption. Dowd Grain filed a declaratory judgement action against the County. It claimed that the exemption was unconstitutional because the ordinance was special legislation. It argued that its property was similarly situated to the exempted land and that the exemption proffered special privileges on the exempted land.

As with other challenges to municipal ordinances, the burden falls to the challenger to prove a zoning provision is unconstitutional. The ordinance must be shown to be unreasonable, arbitrary, or discriminatory and that the provisions bear no relation to the purpose of the ordinance. Special legislation cases are determined to fulfill these requirements if the legislation creates a permanently closed class or an arbitrary and unreasonable method of classification. The district court ruled in favor of the County on all counts, whereupon Dowd Grain appealed.

The first question under review was whether the overlay ordinance created a closed class. A closed class is one that cannot expand in number due to future growth or development. Dowd Grain argued that its property cannot be added to the exempted class and no property beyond the geographical limits of the overlay district can be added. However, Nebraska case law has established that property owners in a geographic area cannot create a closed class because real property is alienable and subject to constant change, including division. The number of parcels could change and new members could join the class by a change in ownership of property.  Dowd thus failed to prove the ordinance created a closed class.

The second issue was whether the class created by the ordinance was arbitrarily selected and served no real public interest. Those exempt from the ordinance were property owners who had submitted a plat application before March 2004. Submission of a plat application requires considerable expense and planning. It was not unreasonable to exempt property owners who had submitted a plat before the implementation of the design guidelines in the overlay district because these owners expended time and money to develop their property based on previous guidelines. The submittal of a plat application was a reasonable distinction between those property owners exempted from the ordinance and those subject to it. The ordinance, therefore, did not create a special class.

The district court ruling in favor of the county was affirmed.

 

 

 

 

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