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.





Legislation moving Nebraska State Fair to Grand Island was not unconstitutional special legislation

NOTE:  With the start of fall classes the BLUZ welcomes its newest student contributor, Melanie Thwing.  Melanie’s bio appears under “contributors.”  My hazing ritual required her to write a case brief for a case involving my alma mater.  Her sucessful result follows:

by Melanie Thwing

Yant v. City of Grand Island
(Nebraska Supreme Court, May 28, 2010)

The location of the Nebraska State Fair has been set by statute since 1901. Until 2009, Neb. Rev. Stat. § 2-101(3) provided in part**:

“The state fair shall be held at or near the city of Lincoln, in Lancaster County, under the direction and supervision of the Nebraska State Fair Board, upon the site and tract of land selected and now owned by the state for that purpose and known as the Nebraska State Fairgrounds.”

In 2003 at the annual meeting the State Fair Board it was announced that the state fair and the location that housed it were in a financial crisis. The Nebraska State Legislature ordered two studies to determine if any new models for conducting the state fair would help alleviate the problem. One of the options discussed in these studies was relocating the state fair completely. Then, in 2008, L.B. 1116 was brought to the Nebraska Legislature.  It proposed moving the state fair to Fonner Park in Grand Island.  L.B. 1116 was debated at public hearings of the Agriculture Committee, where individuals were allowed to present testimony both for and against the bill.  The bill was also debated on the floor of the legislature.

L.B. 1116 passed.  It permanently moved the state fair grounds to Grand Island, allotted preparation tasks of the site to Hall County Livestock Improvement Association (HCLIA), directed the State Fair Board and the Nebraska Board of Regents to cooperate in turning the current State Fair grounds over to the University of Nebraska.

In 2008 Roger Yant, Brian Von Seggem, and Jerry Christensen filed suit in Lancaster County District Court for declaratory judgment on the basis that L.B. 1116 was unconstitutional because it (1) created special legislation in violation of Nebraska Constitution, Article III, §18, and it (2) it created an improper delegation of authority to spend public tax dollars to HCLIA and the State Fair Board. The District Court denied the request, and the petitioners appealed to the Nebraska Supreme Court.

Article III, § 18, provides that the Legislature cannot pass any special laws that would grant privileges to specific corporations or associations. The Nebraska Supreme Court struck down petitioners’ claim because legislative classification can be valid if it is “…based upon some reason of public policy, some substantial difference of situation or circumstance….” The Nebraska Supreme Court pointed out that the site of the state fair had been in statute since 1901, the State Fair is something of interest to the entire state, and incidental benefits to HCLIA and the University of Nebraska of the relocation do not automatically qualify that statute unconstitutional if it is enacted for public purpose.

The Nebraska Supreme Court also dismissed petitioners’ claims with regard to the improper delegation of authority.  “It is a well-established principle that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the policy of a statute, and in particular, we have said that delegation of legislative power is most commonly indicated where the relations to be regulated are highly technical or where regulation requires a course of continuous decision.  The Court found the grant of authority under L.B. 1116 to be sufficiently specific in addressing expenditures for carrying out the move and improving the facilities at Fonner Park.  The Nebraska Supreme Court affirmed the decision of the District Court.

**Neb. Rev. Stat. 2-101, as amended by L.B. 1116 can be found here.





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