Opinion
No. A-06-682.
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, we consider whether landowners who claim that a county has issued building permits in violation of the county's zoning ordinances to another landowner in the same zoning district may pursue an action in district court to enjoin the violations while at the same time pursuing an appeal of the issuance of such permits to the county board of adjustment. Because we conclude that such action is expressly authorized by Neb. Rev. Stat. § 23-114.05 (Cum. Supp. 2006), we reverse, and remand for further proceedings.
BACKGROUND
Dowd Grain Co., Inc.; Duane J. Dowd, trustee; Grand Prix, Inc.; Duane J. Dowd; and Lawrence Dowd (Appellants) filed an action in the Sarpy County District Court seeking relief such as declaratory judgment, temporary and permanent injunctions, the abatement of a nuisance, and damages based on an alleged improper issuance of building permits and zoning violations. OSI Properties Limited Partnership (OSI) filed a motion for judgment on the pleadings, and County of Sarpy, Richard Houck, and the Sarpy County Department of Planning and Building (collectively the Sarpy County defendants) orally joined in the motion. The district court sustained the motions and dismissed Appellants' complaint.
Appellants' complaint alleged that they were taxpayers in Sarpy County who owned real property lying within Sarpy County's zoning authority, including property in an overlay zoning district, and that OSI owned real property within the overlay district. Appellants alleged that OSI had commenced construction of a building on property situated in the overlay district and that the building permits had been issued by the Sarpy County Department of Planning and Building in violation of zoning ordinances, including the overlay district ordinance. The complaint asserted that Appellants had filed appeals to the Sarpy County Board of Adjustment concerning the building permits and that the appeals were pending. Appellants claimed that, among other grounds, they were entitled to relief under § 23-114.05.
Appellants sought injunctive relief to require OSI to cease and desist from violating, and to affirmatively require OSI to comply with, the Sarpy County overlay district zoning ordinances and to require the Sarpy County defendants to perform their duties and require OSI to comply with the law.
On February 7, 2006, the city of Papillion filed an amended motion to intervene as a plaintiff. The city alleged that it was an interested party because the overlay district rules and regulations, as jointly adopted and passed by the city and Sarpy County, had not been implemented or adhered to by the Sarpy County Board of Adjustment.
On February 14, 2006, OSI filed a motion for judgment on the pleadings. OSI alleged that the district court did not have subject matter jurisdiction because Appellants' complaint was not an appeal from a final decision of the county board of adjustment. OSI further alleged that Appellants failed to name the Sarpy County Board of Adjustment as a defendant and failed to allege that the Board's decision was illegal. The Sarpy County defendants later orally moved to join in OSI's motion.
On March 15, 2006, the district court filed its opinion and order, determining that it lacked jurisdiction and dismissing the complaint. The court noted that Appellants had filed appeals to the Board regarding the building permits issued to OSI and that such appeals had not been resolved by the time of filing of the instant action. The court sustained the motions for judgment on the pleadings. It overruled the city of Papillion's motion to intervene as moot.
Appellants subsequently filed a motion to alter or amend, and the court overruled the motion. Appellants timely appeal.
ASSIGNMENTS OF ERROR
Appellants allege that the court erred in (1) ruling that § 23-114.05 did not provide a separate basis for jurisdiction and a separate remedy for Appellants to seek redress for zoning violations apart from the board of adjustment procedure set forth in Neb. Rev. Stat. §§ 23-168.01 to 23-168.04 (Reissue 1997); (2) ruling that it did not have jurisdiction to hear Appellants' statutory, equitable, and common-law claims for an injunction, damages, and declaratory relief apart from the procedure set forth in § 23-168.01 et seq. and separate from § 23-114.05; (3) dismissing their complaint; (4) denying their motion to alter or amend; (5) failing to apply the correct legal standards in ruling on the motion for judgment on the pleadings; (6) ruling that the case at bar only involved the OSI building permits; (7) failing to grant Appellants the right to amend their complaint; (8) not permitting Appellants to conduct discovery; and (9) not receiving evidence on the merits of the case.
Appellants also allege that the court erred in denying the city of Papillion's motion to intervene. The city is not a party in this appeal, and Appellants do not have standing to raise this issue. See Rozmus v. Rozmus, 257 Neb. 142, 595 N.W.2d 893 (1999) (to have standing, litigant must assert litigant's own legal rights and interests and cannot rest his or her claim on legal rights or interests of third parties).
STANDARD OF REVIEW
A motion for judgment on the pleadings is properly granted when it appears from the pleadings that only questions of law are presented. In re Trust Created by Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007).
Motions under Neb. Ct. R. of Pldg. in Civ. Actions 12(c) (rev. 2003) are reviewed under the standard of review that governs rule 12(b)(6) motions. See Dennes v. Dunning, 14 Neb. App. 934, 719 N.W.2d 737 (2006). A district court's grant of a motion to dismiss for failure to state a claim under rule 12(b)(6) is reviewed de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Washington v. Conley, 273 Neb. 908, 734 N.W.2d 306 (2007).
ANALYSIS
The issue presented by this case is whether the board of adjustment procedure set forth in § 23-168.01 et seq. is Appellants' sole remedy to seek redress for complaints regarding the improper issuance of building permits and violations of zoning regulations.
The district court determined that it lacked jurisdiction to hear the complaint, relying on "the assumption that the Legislature did not intend for there to be two simultaneous procedures each litigating identical questions regarding the lawfulness of building permits under pertinent zoning ordinances" and on the Nebraska Supreme Court's decisions in Gabel v. Polk Cty. Bd. Of Comrs., 269 Neb. 714, 695 N.W.2d 433 (2005), and Mogensen v. Board of Supervisors, 268 Neb. 26, 679 N.W.2d 413 (2004). In Gabel and Mogensen, the Supreme Court determined that a petition in error proceeding could not be used to challenge the issuance or denial of a conditional use permit because the Legislature provided for a specific method for appeal in accordance with the board of adjustment procedure set forth in § 23-168.01 et seq.
However, in In re Application of Olmer, 275 Neb. 852, ___ N.W.2d ___(2008), the Nebraska Supreme Court expressly recognized that the court's decision in Mogensen had been superseded by legislative enactment. A footnote in Olmer suggests that the Gabel decision was also superseded by the same legislative enactment. Thus, we find Gabel and Mogensen inapplicable to the case before us.
We also observe that, even under the rationale of Gabel and Mogensen, in an error proceeding the district court acts as an appellate court, much the same as it would under § 23-168.04. A petition in error is authorized by Neb. Rev. Stat. § 25-1901 (Cum. Supp. 2006), which states in relevant part that "[a] judgment rendered or final order made by any tribunal, board, or officer exercising judicial functions and inferior in jurisdiction to the district court may be reversed, vacated, or modified by the district court." However, in the instant case, the district court was not called upon to act as an appellate court.
The instant case was filed as an original action in the district court, not as an appeal to that court. Appellants alleged in their complaint that the court had jurisdiction under § 23-114.05. To the extent that the Sarpy County defendants and OSI argue that § 23-114.05 does not provide for original jurisdiction or that alleged zoning violations can only be contested through the building permit process, the Nebraska Supreme Court's decision in Johnson v. Knox Cty. Partnership, 273 Neb. 123, 728 N.W.2d 101 (2007), dispels such arguments. The Johnson court expressly stated, "Section 23-114.05 provides a procedure whereby owners of real estate affected by a violation of county zoning regulations may bring an action to enjoin the violation." Johnson v. Knox Cty. Partnership, 273 Neb. at 130, 728 N.W.2d at 107.
In Johnson, a cattle confinement facility obtained a permit to operate a waste control facility, and the appellants sought to enjoin the operation of such facility in excess of that permitted by county zoning regulations and the concentrated dumping of manure. The district court entered a summary judgment, finding that the evidence did not indicate that there was a violation of any county zoning permit or of a use authorized by the county zoning officials. On appeal, the Nebraska Supreme Court affirmed the entry of summary judgment on the § 23-114.05 claim, but reversed the entry of summary judgment with respect to the appellants' private nuisance claim.
Earlier authority supports the independent existence of the district court's equitable jurisdiction. In Omaha Fish and Wildlife Club, Inc. v. Community Refuse, Inc., 208 Neb. 110, 302 N.W.2d 379 (1981), the plaintiff sued for an injunction under § 23-114.05 to stop the defendants from establishing a solid waste disposal area on lands zoned for other purposes. The defendants filed a demurrer claiming that the Environmental Protection Act, Neb. Rev. Stat. §§ 81-1501 to 81-1532 (Reissue 1976), exclusively governed operations relating to solid waste disposal and that because the Department of Environmental Control was the licensor for such enterprises, the district court lacked subject matter jurisdiction. The district court sustained the demurrer, but the Nebraska Supreme Court reversed and remanded with directions to overrule the demurrer. The Supreme Court stated:
The statute pertaining to injunctions against a violation of a county zoning ordinance is clear. There must be such a procedure, because § 23-114.05 enacts it. In this way, county zoning ordinances are self-policing. Not only can the county officials begin a suit, but other "affected" owners of real estate also can do so.
Omaha Fish and Wildlife Club, Inc. v. Community Refuse, Inc., 208 Neb. at 112, 302 N.W.2d at 380. The court determined that even if the provisions of the Environmental Protection Act could be read to "`preempt' the field," the district court was not divested of its constitutional chancery jurisdiction in suits for an injunction. Id. at 112, 302 N.W.2d at 381.
In the instant case, Appellants sought injunctive relief from the district court. Neb. Const. art. V, § 9, states that "[t]he district courts shall have both chancery and common law jurisdiction, and such other jurisdiction as the Legislature may provide." The jurisdiction of the district courts conferred by the terms of the Nebraska Constitution, as thus conferred, is beyond the power of the Legislature to limit or control; while the Legislature may grant to the district courts such other jurisdiction as it may deem proper, it cannot limit or take away from such courts their broad and general jurisdiction which the constitution has conferred upon them. Susan L. v. Steven L., 273 Neb. 24, 729 N.W.2d 35 (2007). The board of adjustment procedure cannot be Appellants' exclusive remedy because the Legislature cannot limit the district court's jurisdiction over suits for injunctive relief.
Section 23-114.05 states in pertinent part:
The . . . construction . . . of any building . . . in violation of sections 23-114 to 23-115.02, 23-168.01 to 23-168.04, 23-172 to 23-174, 23-174.02, 23-373, and 23-376 or of any regulation made by the county board under such sections shall be a misdemeanor. Any [specified entity] violating such sections or any regulation of the county board or erecting, constructing, reconstructing, altering, or converting any structure without having first obtained a permit shall be guilty of a Class III misdemeanor. . . . In addition to other remedies, . . . any owner or owners of real estate within the district affected by the regulations, may institute any appropriate action or proceedings to prevent such unlawful construction . . . to restrain, correct, or abate such violation, or to prevent the illegal act, conduct, business, or use in or about such premises. Any taxpayer or taxpayers of the county may institute proceedings to compel specific performance by the proper official or officials of any duty imposed by such sections or in resolutions adopted pursuant to such sections.
(Emphasis supplied.)
Among Appellants' many claims for relief, they sought a mandatory order and permanent injunction preventing OSI from constructing the building, ordering OSI to correct and abate the violations of the zoning ordinances, and compelling the Sarpy County defendants to enforce the zoning ordinances. It appears that these claims fall within the ambit of § 23-114.05. Accordingly, the district court erred in finding that it lacked jurisdiction and in sustaining the motions for judgment on the pleadings. We express no opinion on whether our resolution in a related case, Dowd Grain Co. v. County of Sarpy Bd. of Adj., No. A-06-681 (Neb.App. June 24, 2008) (selected for posting to court Web site), will affect the proceedings in the instant case on remand. Based on our resolution of this issue, we need not reach Appellants' other assignments of error. An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it. Fokken v. Steichen, 274 Neb. 743, 744 N.W.2d 34 (2008).
CONCLUSION
Because some of the issues raised by Appellants' complaint were properly before the district court under § 23-114.05, the district court erred in sustaining the motions for judgment on the pleadings. Accordingly, we reverse, and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.