Opinion
No. A-06-681.
Filed June 24, 2008.
INBODY, Chief Judge, and IRWIN and CASSEL, Judges. CASSEL, Judge.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. OF PRAC. 2E.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
INTRODUCTION
In this appeal from a county's issuance of two building permits, we conclude that the subject building, proposed and begun on land acquired and replatted after adoption of a 2004 overlay district zoning ordinance, constitutes a "new development proposal" under the plain language of the ordinance. Because the building concededly failed to comply with the overlay district ordinance's design standards, the district court erred in affirming the decision below. We therefore reverse, and remand with directions.
BACKGROUND
In October 2001, the Commerce Business Centre platted the property at issue in a subdivision located in Sarpy County, Nebraska. The original plat of "Commerce Business Centre" subdivided a tract of land in part of the west half of the northwest quarter of Section 35, Township 14 North, Range 11 East of the 6th P.M. in Sarpy County, Nebraska, thereby creating 12 consecutively-numbered lots.
In March 2004, the Sarpy County Board of Commissioners adopted a revised zoning ordinance called "Overlay District (Highway 370 Highway 50)." The new ordinance adopted design guidelines in a 1-mile-wide district centered on Highway 370 between Interstate 80 and 132d Street. These design guidelines addressed matters of site design, signage, building design, and material regulations. As an "overlay district," it appears that land within this area also remained subject to other regulations under the preexisting zoning regulations.
On August 31, 2005, OSI Properties Limited Partnership (OSI) purchased lots 8 through 10 and 12 from the Commerce Business Centre. OSI also purchased lot 11 from a different seller. These lots were combined and redesignated as "lot 1, Commerce Business Centre Replat 5" (Lot 1). The replat, labeled an "administrative replat," was filed on September 28.
On October 20, 2005, OSI, through its builder, applied for a building permit to construct footings and foundation for a commercial building on Lot 1 at an estimated cost of $340,000. The Sarpy County Planning and Building Coordinator/Building Inspector (coordinator) issued the permit. On November 17, OSI's builder applied for and obtained a building permit to construct a 123,000-square-foot commercial building on Lot 1, at an estimated cost of $5,595,000.
On November 21, 2005, Dowd Grain Co., Inc.; Duane J. Dowd, trustee; Grand Prix, Inc.; Duane J. Dowd; and Lawrence Dowd (Appellants) filed an appeal from the coordinator's issuance of the first building permit. The appeal claimed that (1) the permit did not state that the proposed use of the building or land conformed to the Sarpy County zoning ordinances, (2) the proposed use of the land and buildings contemplated by the permit violated Sarpy County zoning ordinances, (3) the issuance of the permit was contrary to law, (4) the permit was issued incorrectly and in error, and (5) construction of the improvements would cause Appellants significant damage. On December 16, they filed an appeal from the issuance of the second building permit, stating the same grounds as in the first appeal. Both appeals ran to the Sarpy County Board of Adjustment (Board).
On January 23, 2006, the Board conducted a hearing. The Board accepted into the record all of the evidence submitted at the hearing. By a 3-to-2 vote, the Board denied the appeals, concluding that the coordinator did not err in issuing the building permits.
On February 6, 2006, Appellants filed a verified complaint to appeal the Board's decision, alleging that it was illegal, not supported by competent evidence, erroneous, arbitrary, and should be reversed for numerous reasons.
A transcription of the proceedings before the Board was made a part of the record before the district court. Following the hearing before the district court, the parties stipulated that an exhibit containing the stipulation and "Subdivision Regulations" be included as part of the evidentiary record.
On May 22, 2006, the district court entered a comprehensive order affirming the Board's decision. The court stated that the burden of proof rested on Appellants in an action to reverse a decision of a county board of adjustment upholding the issuance of a building permit under provisions of a county zoning regulation to establish that such action was in violation of zoning ordinances. The district court concluded:
[T]he plain language, when considered in conjunction with the interpretative definitions, of the portion of the Overlay District Ordinance making it only "applicable for new development proposals within the area of application including plats, zoning changes, or site plan review," support[s] a finding that [OSI's] application for a building permit for the proposed construction and [the coordinator's] review and approval thereof were not subject to the design guidelines within the ordinance.
The court also stated that its conclusion was supported by a review of the legislative history of the overlay district ordinance. The court ordered that no further evidentiary hearing was required, and it affirmed the Board's decision.
Appellants timely appeal.
ASSIGNMENTS OF ERROR
Appellants assert that the district court erred in nine ways, which we have consolidated and restated to two. First, they allege that the court erred in failing to find that the decision of the Board was illegal, not supported by competent evidence, arbitrary, unreasonable, clearly wrong, and contrary to law. Second, they allege that the court erred in failing to allow them to conduct discovery and introduce additional evidence.
Appellants include a lengthy argument that the coordinator improperly issued the building permits to OSI. However, we find no assignment of error directly addressing the coordinator's actions. Errors argued but not assigned will not be considered on appeal. Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007). Therefore, we do not consider such argument except as it may be subsumed within Appellants' arguments concerning the correct interpretation of the overlay district ordinance.
STANDARD OF REVIEW
A district court may disturb the decision of a board of adjustment if the decision was illegal or is not supported by the evidence and is thus arbitrary, unreasonable, or clearly wrong. In deciding whether a board's decision is supported by the evidence, the district court shall consider any additional evidence it receives. Hanchera v. Board of Adjustment, 269 Neb. 623, 694 N.W.2d 641 (2005).
In appeals involving a decision of a board of adjustment, an appellate court reviews the decision of the district court, and irrespective of whether the district court took additional evidence, the appellate court is to decide if, in reviewing a decision of a board of adjustment, the district court abused its discretion or made an error of law. Id.
The interpretation of a zoning ordinance presents a question of law. Kaiser v. Western R/C Flyers, 239 Neb. 624, 477 N.W.2d 557 (1991). When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusion. Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731 N.W.2d 164 (2007).
ANALYSIS
Applicability of Overlay District Ordinance.
In essence, Appellants claim that OSI's building, which would have a metal exterior, would violate the building design and material regulations imposed by the 2004 overlay district ordinance. The overlay district ordinance, found in the Sarpy County zoning ordinances as section 33, 370-50 OD, sets forth building design and material regulations. Clearly, the county adopted the overlay district ordinance before OSI either acquired the real estate or sought the building permits. Further, there does not appear to be any dispute that OSI's building would not comply with the 2004 building design and material regulations.
OSI defends the appeal by relying on the second sentence of the introductory paragraph of section 33. The entire introductory paragraph states:
The design guidelines specifically apply to the land within one-half (1/2) mile of the centerline of Highway 370 from Interstate 80 east to 132nd Street. . . . The design guidelines are applicable for new development proposals within the area of application including plats, zoning changes or site plan review.
(Emphasis supplied.) OSI claims that this language excludes OSI's project from the overlay district ordinance. The case before us turns upon the interpretation of this ordinance.
When analyzing an ordinance, an appellate court applies the same rules utilized in statutory interpretation. See, State v. Prater, 268 Neb. 655, 686 N.W.2d 896 (2004); McKenzie v. City of Omaha, 14 Neb. App. 398, 708 N.W.2d 286 (2006). Zoning laws should be given a fair and reasonable construction in the light of the manifest intention of the legislative body, the objects sought to be attained, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the law as a whole. Mossman v. City of Columbus, 234 Neb. 78, 449 N.W.2d 214 (1989).
The court first looks to the language of the ordinance. State v. Prater, supra. In the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning; an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous. Id. In interpreting definitions in zoning statutes or ordinances, the court cannot supply what the municipal legislative body might have provided but which the court cannot by reasonable construction say that it did provide. Beckman v. City of Grand Island, 182 Neb. 840, 157 N.W.2d 769 (1968). Further, in interpreting the language of the ordinance to determine the extent of the restriction upon use of the property, the language must be interpreted, where doubt exists as to the intention of the legislative body, in favor of the property owner and against any implied extension of the restriction. Id. The parties dispute whether OSI's building permits qualify as "new development proposals" under the ordinance. But Appellants implicitly concede that if the contested language does not extend to OSI's project, their appeal must fail.
The Sarpy County zoning ordinances do not expressly define the phrase "new development proposals." However, section 44 of the ordinances — the section providing definitions — defines "development" as "any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, . . . grading, paving, [or] excavation. . . ." Section 44.1 dictates that "[w]ords or phrases used in this ordinance shall be interpreted so as to give them the same meaning as they have in common usage and so as to give this ordinance its most reasonable application." Both "new" and "proposals" are words of common usage and are readily understood. Appellants argue:
It defies the English language to say that the massive new building on a new lot in a new, replatted subdivision . . . with new easements and setbacks[,] which is being constructed by OSI is not "new development" as defined by the Sarpy County [z]oning [o]rdinances.
If the OSI building is not "new development" then nothing is.
Reply brief for appellants at 6. We agree. In making applications for building permits, OSI made a "proposal" for a "new" building, which clearly is a form of "development." We hold that OSI's requests constituted "new development proposals" within the plain meaning of the overlay district ordinance.
Even if one assumes that the subsequent list effectively limits the phrase "new development proposals" to "plats, zoning changes or site plan review," we reach the same conclusion. OSI's arguments implicitly rely upon the legal principle of expressio unius est exclusio alterius — the expression of one thing is the exclusion of the others. This legal principle recognizes the general principle of statutory construction that an expressed object of a statute's operation excludes the statute's operation on all other objects unmentioned by the statute. Chapin v. Neuhoff Broad.-Grand Island, Inc., 268 Neb. 520, 684 N.W.2d 588 (2004). Applying this principle, OSI asserts that the overlay district zoning ordinance applies only to plats, zoning changes, or site plan reviews.
We acknowledge that because other zoning regulations explicitly refer to building permits, we must attach some significance to omission of "building permits" in section 33. For example, the landscaping regulations found within the Sarpy County zoning ordinances at section 38B state in part at section 38B.1, " General Provisions: All plans submitted in support of a plat application, rezoning application, site plan review, building permit or other development proposal shall include a landscape and screening plan, demonstrating compliance with the provisions of this section." In the landscaping regulations, the legislative body recognized a "building permit" as a type of "development proposal." If the county had intended the phrase "new development proposals" to include building permits, it would not have omitted them from the list. We therefore turn to the items which were listed. As Appellants concede that there has been no zoning change, we consider whether OSI submitted a plat or a site plan review. We discuss each in turn.
Under the plain meaning of the applicable regulations, an "administrative replat" constitutes a "plat" within the scope of a "new development proposal" under section 33. In several instances, OSI's administrative replat refers to itself as a "plat." Section 3.1 of the "Subdivision Regulations" generally defines a "plat" as "a map which delineates the subdivision of a quantity of land. A plat commonly shows lots, blocks, streets and other features relevant to the development and improvement of the property." Before the "administrative replat" in September 2005, OSI's property consisted of 5 platted lots within a subdivision of 12 such lots. As a result of the replat, the number of lots in the Commerce Business Centre declined from 12 to 8. A plat which reduces the number of lots nonetheless "delineates" the subdivision of the covered land.
OSI argues that the administrative replat is not a plat because it meets the criteria for an administrative replat. This circular argument fails to explain why an instrument which calls itself a plat and plainly falls within the definition of a plat should nonetheless be treated as something else.
Similarly, we reject OSI's argument that the process for obtaining its building permits did not include a "site plan review" within the meaning of section 33. The zoning ordinances define a "site plan" as "a plan, prepared to scale, showing accurately and with complete dimensions, all of the uses proposed for a specific parcel of land." While the specific phrase "site plan review" is not defined by the zoning ordinances, it seems plain to us that it means the review of a site plan.
OSI contends that the ordinances contemplate both a "site plan" and a "site development plan," and distinguish between the two concepts. OSI admits that it provided a "site development plan" as part of its application for a building permit but claims that it was not required to submit a "site plan" for such purpose. Section 2.3 and its subsections required OSI to submit a "site development plan and other drawings" to support its application for a building permit and to show that its plans "conform to the requirements of these ordinances." These documents must be drawn "at a scale of not less than 1 inch equals 100 feet and calculations necessary to determine that the proposed development meets the requirements of the district in which the proposed development is located." In addition, the "plans" must show "the number and arrangement of buildings on the land, the building bulk and height, access drives, walks, parking areas, drainage, grading plan, utility distribution, recreation areas, open spaces, landscape development and, in general, the specific land use of the site."
While Appellants concede that "there are different definitions for `site plan' . . . and `site development plan,'" they argue that the distinction is "mere semantics." Reply brief for appellants at 5. We agree. The "site development plan" concededly supplied by OSI clearly falls within the general definition of a "site plan." In obtaining review of OSI's plans as part of the process for issuance of building permits, OSI secured "site plan review" within the meaning of the overlay district ordinance.
Because we base our decision on the plain language of the ordinances, we do not consider the evidence purporting to address the legislative history of the overlay district ordinance. If the language of a statute is clear, the words of such statute are the end of any judicial inquiry regarding its meaning. Salazar v. Scotts Bluff Cty., 266 Neb. 444, 665 N.W.2d 659 (2003).
Discovery.
Appellants argue that the district court should have allowed discovery, in the form of both depositions and other discovery devices, concerning (1) a letter from OSI to the coordinator with an attached master plan for the project, (2) other property described in the county attorney's presentation at the Board hearing, and (3) the replatting of the OSI property.
An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it. Law Offices of Ronald J. Palagi v. Howard, 275 Neb. 334, 747 N.W.2d 1 (2008). In light of our disposition of the first issue, we need not address this argument.
CONCLUSION
We conclude that the plain language of the overlay district ordinance applies to OSI's proposed building, which constitutes a "new development proposal" within the meaning of the ordinance. We need not address Appellants' other claim of error. We reverse, and remand with directions to reverse the decision of the Board.
REVERSED AND REMANDED WITH DIRECTIONS.