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Nebraska Supreme Court Upholds a Sarpy County Zoning Ordinance That Exempts Property Owners Who Filed a Plat Prior to the Adoption of the Ordinance

on Friday, 4 September 2015 in Dirt Alert: David C. Levy, Editor

Dowd Grain Co. v. Sarpy Cnty., 291 Neb. 620 (2015).

The Nebraska Supreme Court upheld the constitutionality of an overlay zoning ordinance that exempts properties platted before the effective date of the ordinance. In doing so, the court rejected a non-exempt landowner’s claim that the ordinance is unconstitutional.

In March 2004, Sarpy County adopted a zoning ordinance to regulate properties along a road corridor and establish design guidelines. The ordinance applied only to future development and did not apply to plats filed before March 9, 2004. Dowd Grain Company (“Dowd”) owned a property that is not exempt from the ordinance. Dowd brought a lawsuit against Sarpy County seeking a declaratory judgment that the zoning ordinance was unconstitutional. Dowd argued the zoning ordinance granted special privileges and immunities to the exempt property owners in violation of Nebraska’s prohibition against special legislation. The district court entered judgment in favor of Sarpy County, and Dowd appealed. The Nebraska Supreme Court moved the case to its docket and affirmed.

Article III, section 18 of the Nebraska Constitution prohibits passing local or special laws that grant special or exclusive privileges or immunity. An ordinance violates this prohibition if it (1) creates a permanently closed class, a group that leaves no opportunity for an increase in the numbers of the class, or (2) creates an arbitrary or unreasonable method of classification.

The ordinance created a class consisting of property owners who filed a plat prior to the adoption of the ordinance. Because property ownership is subject to change, as people buy and sell properties, the ordinance did not create a closed class.

The Supreme Court next considered whether Sarpy County arbitrarily selected the class the exemption benefitted. The ordinance exempts only property owners who filed a plat prior to the adoption of the ordinance, and submitting a plat application required employment of an engineer, a surveyor, and other professionals. It also required property grading, street paving, and the building of storm sewers and water mains. In short, submitting a plat application required significant planning and expense, and subjecting those property owners to the new requirements of the overlay ordinance was harsh and unfair. Accordingly, limiting the exemption to property owners who submitted a plat application prior to the adoption of the ordinance was a reasonable method of selecting the class.

Because the ordinance did not create a closed class, and Sarpy County did not arbitrarily select the class benefitting from the exemption, the Nebraska Supreme Court ruled the ordinance was constitutional. A full copy of the opinion is available here.

Brian R. Schumacher

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