Nebraska Supreme Court Upholds a City’s Authority to Rezone Property Despite an Ongoing Appeal

Main St Properties v. City of Bellevue, 318 Neb. 116 (2024)

The Nebraska Supreme Court affirmed a city’s rezoning of property after the owner violated terms of a conditional zoning agreement because legislative power is not subject to a “petition in error” claim.  At issue was whether the city council could rezone the property while the owner’s appeal of the violation was pending.

Main Street Properties LLC (“Main Street”) entered into a conditional zoning agreement with the City of Bellevue (the “City”) in 2012.  A conditional zoning agreement allows for favorable rezoning of property, provided the owner complies with specified conditions.  Here, the City agreed to rezone Main Street’s property in exchange for Main Street agreeing to not park vehicles on the northern portion of the parcel.

The City cited Main Street for violating this parking requirement four times, but Main Street never appealed the violations until the fourth occasion in 2020.  The City then rezoned the property back to 2012 requirements while Main Street’s appeal of the fourth violation remained pending.

Main Street filed two lawsuits in response.  One requested declaratory and injunctive relief from the rezoning.  The other challenged the City’s reversal of the conditional use agreement as a “petition in error.”  The trial court consolidated the two cases and granted summary judgment to the City in both matters. 

Main Street appealed the trial court’s decision. On appeal, the Nebraska Supreme Court found the “stay” requirements of Neb. Rev. Stat. § 19-909 did not apply, dismissed Main Street’s petition in error claim, and upheld summary judgment on the declaratory and injunctive relief matter in favor of the City.

Main Street argued its appeal of the fourth parking violation should have prevented the City from rezoning the property under Neb. Rev. Stat. § 19-909 (“An appeal stays all proceedings in furtherance of the action appealed from.”) (emphasis added). The court disagreed and found the rezoning ordinance adopted by the City was not a § 19-909 proceeding because the conditional zoning agreement expressly allowed the City to rezone the property after three violations. Therefore, the court held an appeal of the fourth violation would not “stay” the City from rezoning under § 19-909.

The court then dismissed Main Street’s petition in error claim. A petition in error claim allows a party to challenge a city council or inferior court’s “exercis[e] of judicial functions.”  Neb. Rev. Stat. § 25‑1901 (emphasis added).  Here, the Nebraska Supreme Court found the City was using legislative, not judicial, power when rezoning the property because no adjudicative facts (sworn testimony, exhibits, adversarial proceedings, etc.) were involved.  Because a petition in error claim cannot apply to the City’s legislative power, the court dismissed Main Street’s claim.

The Nebraska Supreme Court also affirmed summary judgment in favor of the City on the issue of declaratory and injunctive relief.  The court held there were no genuine issues of material fact between the parties concerning the meaning of the “northern portion” of the property.  Thus, Main Street’s parking of vehicles there violated the agreement.

This case illustrates the importance of compliance with land use agreements.  Local governments have legislative authority to rezone a property for violation in some situations, and appeal of the violation might not prevent the rezoning from going into effect.

Attorneys at Baird Holm specialize in various subject matter areas, including land use and litigation.  Please contact us if you have any questions.