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03/11/2022 08:07 AM CST
- 669 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 310 Neb. 669
Main St Properties LLC, appellant, v.
City of Bellevue, Nebraska, appellee.
___ N.W.2d ___
Filed January 7, 2022. No. S-21-129.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclusion indepen-
dent of the lower court’s decision.
2. Motions to Dismiss: Appeal and Error. A district court’s grant of a
motion to dismiss is reviewed de novo.
3. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an
order dismissing a complaint, the appellate court accepts as true all facts
which are well pled and the proper and reasonable inferences of law and
fact which may be drawn therefrom, but not the plaintiff’s conclusion.
4. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss
for failure to state a claim, a plaintiff must allege sufficient facts to state
a claim to relief that is plausible on its face.
5. Dismissal and Nonsuit: Pleadings: Appeal and Error. When analyz-
ing a lower court’s dismissal of a complaint for failure to state a claim,
an appellate court accepts the complaint’s factual allegations as true and
construes them in the light most favorable to the plaintiff.
6. Statutes: Appeal and Error. The right of appeal in Nebraska is purely
statutory; unless a statute provides for an appeal from the decision of a
quasi-judicial tribunal, such right does not exist.
7. Municipal Corporations: Appeal and Error. A city council is a tri-
bunal whose decision can be reversed, vacated, or modified through
the petition in error process set forth in Neb. Rev. Stat. § 25-1901
(Reissue 2016).
8. Administrative Law: Jurisdiction: Appeal and Error. Petition-in-error
jurisdiction is limited by statute to a review of a judgment rendered or
final order made by any tribunal, board, or officer exercising judicial
functions and inferior in jurisdiction to the district court.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 310 Neb. 669
9. Municipal Corporations: Appeal and Error. When an entity such as
a city council is exercising its judicial functions, the petition in error
statute is the proper method for challenging such actions.
10. Administrative Law: Appeal and Error. A board or tribunal exercises
a judicial function if it decides a dispute of adjudicative fact or if a stat-
ute requires it to act in a judicial manner.
11. Evidence: Proof: Words and Phrases. Adjudicative facts are facts
which relate to a specific party and are adduced from formal proof.
Adjudicative facts pertain to questions of who did what, where, when,
how, why, and with what motive or intent. They are roughly the kind of
facts which would go to a jury in a jury case.
12. Administrative Law: Appeal and Error. Whether a board or tribunal
is required to conduct a hearing and receive evidence may be considered
in determining whether the inferior board or tribunal exercised judi-
cial functions.
13. Municipal Corporations: Ordinances: Zoning. A zoning ordinance
constitutes the exercise of a governmental and legislative function, and
a city council adopting a rezoning ordinance which amends a general
zoning ordinance acts in a legislative capacity.
14. Municipal Corporations: Actions: Appeal and Error. An appeal or
error proceeding does not lie from a purely legislative act by a public
body to which legislative power has been delegated, and the only rem-
edy in such cases is by collateral attack, that is, by injunction or other
suitable action.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Reversed and remanded for further
proceedings.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellant.
A. Bree Robbins, Bellevue City Attorney, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Main St Properties LLC (MSP) appeals the order of the
district court for Sarpy County which dismissed its complaint
for lack of subject matter jurisdiction. MSP’s complaint sought
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 310 Neb. 669
to enjoin a rezoning ordinance adopted by the city council for
the City of Bellevue, Nebraska (City). The court accepted the
City’s argument that MSP was required to bring its challenge
as a petition in error under Neb. Rev. Stat. § 25-1901 et seq.
(Reissue 2016 & Cum. Supp. 2020). We conclude the court
erred in dismissing MSP’s complaint, and we reverse its deci-
sion and remand the cause for further proceedings.
BACKGROUND
MSP operated a U-Haul business on a property it owned in
Bellevue. As part of the business, MSP rented moving vans,
trucks, and trailers which were stored on the property. In 2012,
MSP and the City entered into a zoning development agreement
(the agreement) under which the City agreed to conditionally
rezone MSP’s property from a “combined General Residential
and Olde Town Overlay District” to a “combined Metropolitan
General Business District and Olde Town Overlay District.”
The agreement stated that the “City has determined that it is
in the best interest of the health, safety and welfare of the City
and its residents to exercise its legislative prerogative in favor
of [MSP].” The agreement further stated:
All rights, easements, privileges, covenants, terms, condi-
tions and restrictions created hereunder are declared to
be in furtherance of a plan to promote and protect the
cooperative use, operation and maintenance of the Parcel,
the comprehensive development of the City and otherwise
for the public health, safety, welfare and best interests of
the City and its residents.
In exchange, MSP agreed that “[n]o parking or storage of
U-Haul vans, trucks or trailers shall be permitted on the portion
of the Parcel north of the north face of the building . . . .”
The “Violations and Remedies” provision of the agreement
stated that in the event MSP should violate the agreement,
then after providing MSP written notice of such violation,
and upon MSP’s failure to cure within 10 days of receipt of
notice, the City shall have the right to schedule a hearing to
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 310 Neb. 669
rezone MSP’s parcel back to its 2012 designation, deny any
additional permits or certifications with respect to the parcel,
enjoin unlawful use of the parcel, and utilize remedies pro-
vided by law.
On June 19, 2020, a Bellevue code enforcement officer
issued and delivered a notice of a zoning violation upon MSP.
The City’s official notice of zoning violation form stated, “YOU
ARE HEREBY NOTIFIED THAT YOU ARE IN VIOLA-
TION OF THE BELLEVUE ZONING ORDINANCE AS
INDICATED BELOW:” next to which the officer wrote “Ref
Contract Zoning Agreement with City of Bellevue.” The notice
ordered MSP to, before July 19, 2020, “Have all Uhaul [sic]
vans, trucks and/or trailers Parked or Stored South of the North
face of the Building.” The notice stated MSP had 30 days from
receipt of the “Official Notice” to appeal the “Order” to the
City’s board of adjustment.
On July 13, 2020, MSP appealed to the board of adjustment,
which upheld the zoning violation. MSP appealed the board of
adjustment’s decision to the district court. That appeal remains
pending, and the merits of that appeal are not at issue here.
As the parties’ dispute over the agreement continued, MSP
contended all proceedings should be stayed during the pend
ency of the board of adjustment appeal under Neb. Rev. Stat.
§ 19-909 (Reissue 2012) and the Bellevue Municipal Code.
Notwithstanding MSP’s argument that the matter should be
stayed, on July 23, the City’s planning commission held a hear-
ing and recommended reversing the conditional rezoning of
MSP’s property based on the zoning violation. The city council
introduced an ordinance to rezone MSP’s property, based on
the recommendation of the planning commission, and held
a public hearing on the ordinance. On September 1, the city
council approved ordinance No. 4004, which rezoned MSP’s
property as it was classified before the agreement.
On September 30, 2020, MSP filed a “Complaint for
Declaratory and Injunctive Relief” against the City. The City
moved to dismiss, arguing that in passing the ordinance, the
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 310 Neb. 669
city council was “exercising judicial functions and is inferior
in jurisdiction to the district court.” The City contended, there-
fore, that MSP’s exclusive means of challenging the rezoning
ordinance was to file a petition in error. The district court
granted the City’s motion to dismiss, adopting the City’s argu-
ment that the court lacked subject matter jurisdiction because
MSP failed to file a petition in error.
MSP appealed. We moved the case to our docket on our
own motion.
ASSIGNMENT OF ERROR
MSP assigns, restated, the district court erred in dismissing
the complaint for lack of subject matter jurisdiction.
STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law,
which requires the appellate court to reach a conclusion inde-
pendent of the lower court’s decision. 1
ANALYSIS
MSP claims that the city council performed a legislative act
when it adopted the rezoning ordinance and that the correct
way to challenge ordinance No. 4004 was to collaterally attack
the ordinance by requesting an injunction. The City contends
that MSP was challenging a judicial function exercised by the
city council and that the sole means of challenging the ordi-
nance was to file a petition in error. The City further contends
that MSP’s failure to do so meant the district court could not
acquire subject matter jurisdiction over MSP’s complaint. We
agree with MSP and conclude as a matter of law that the dis-
trict court erred when it dismissed MSP’s complaint for lack of
subject matter jurisdiction.
1
Main St Properties v. City of Bellevue, 309 Neb. 738, 962 N.W.2d 333
(2021). Champion v. Hall County, 309 Neb. 55, 958 N.W.2d 396 (2021);
McEwen v. Nebraska State College Sys., 303 Neb. 552, 931 N.W.2d 120
(2019).
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 310 Neb. 669
[2-5] A district court’s grant of a motion to dismiss is
reviewed de novo. 2 When reviewing an order dismissing a
complaint, the appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plaintiff’s
conclusion. 3 To prevail against a motion to dismiss for failure
to state a claim, a plaintiff must allege sufficient facts to state
a claim to relief that is plausible on its face. 4 When analyzing
a lower court’s dismissal of a complaint for failure to state a
claim, an appellate court accepts the complaint’s factual allega-
tions as true and construes them in the light most favorable to
the plaintiff. 5
For purposes of reviewing the court’s order of dismissal,
we summarize the relevant allegations asserted in MSP’s
complaint for declaratory and injunctive relief. MSP alleged
the agreement entered into in 2012 granted MSP unique land
interests essential to its business which it had enjoyed for 8
years; MSP had abided by the terms of the agreement; MSP
had not used the area “north of the north face of the building”
for parking or storage, but had openly used a parking area
northeast of the building since September 2012; MSP had not
violated any zoning laws; the planning commission’s recom-
mendation was erroneous, because there was no zoning viola-
tion; Nebraska law required the city council to stay its pro-
ceedings regarding the ordinance until the conclusion of the
board of adjustment appeal; ordinance No. 4004 unlawfully
interferes with MSP’s contractual and property interests; as a
result of the ordinance, MSP lost property interests, business
interests, and interests under the agreement; and, as a result of
the ordinance, MSP suffered immediate and irreparable harm
2
In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807
(2021).
3
Id.
4
Id.
5
Id.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 310 Neb. 669
for which it has no adequate remedy at law. MSP requested
an order temporarily and permanently restraining and enjoin-
ing the City from enforcing or acting pursuant to ordinance
No. 4004.
[6,7] The right of appeal in Nebraska is purely statutory;
unless a statute provides for an appeal from the decision of
a quasi-judicial tribunal, such right does not exist. 6 A city
council is a tribunal whose decision can be reversed, vacated,
or modified through the petition in error process set forth in
§ 25-1901. 7
[8-10] Petition-in-error jurisdiction is limited by statute to a
review of “[a] judgment rendered or final order made by any
tribunal, board, or officer exercising judicial functions and
inferior in jurisdiction to the district court . . . .” 8 When an
entity such as a city council is exercising its judicial functions,
the petition in error statute is the proper method for challeng-
ing such actions. 9 A board or tribunal exercises a judicial func-
tion if it decides a dispute of adjudicative fact or if a statute
requires it to act in a judicial manner. 10 But where a board or
tribunal decides no question of adjudicative fact and no statute
requires it to act in a judicial manner, the orders are not “judi-
cial” and are not reviewable by error proceedings. 11
[11,12] Adjudicative facts are facts which relate to a spe-
cific party and are adduced from formal proof. 12 Adjudicative
6
McEwen, supra note 1; Moore v. Black, 220 Neb. 122, 368 N.W.2d 488
(1985); Fisher v. Housing Auth. of City of Omaha, 214 Neb. 499, 334
N.W.2d 636 (1983); Friedman v. State, 183 Neb. 9, 157 N.W.2d 855
(1968); Simpson v. City of Grand Island, 166 Neb. 393, 89 N.W.2d 117
(1958).
7
Johnson v. City of Kearney, 277 Neb. 481, 763 N.W.2d 103 (2009);
Abboud v. Lakeview, Inc., 237 Neb. 326, 466 N.W.2d 442 (1991).
8
§ 25-1901.
9
Johnson, supra note 7. See Abboud, supra note 7.
10
Hawkins v. City of Omaha, 261 Neb. 943, 627 N.W.2d 118 (2001).
11
Id.
12
Id.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 310 Neb. 669
facts pertain to questions of who did what, where, when, how,
why, and with what motive or intent. They are roughly the kind
of facts which would go to a jury in a jury case. 13 Whether a
board or tribunal is required to conduct a hearing and receive
evidence may be considered in determining whether the infe-
rior board or tribunal exercised judicial functions. 14
In Landrum v. City of Omaha Planning Bd., 15 the Nebraska
Supreme Court recognized the nature of the proceeding in
question is a key factor in determining whether a proceeding is
quasi-judicial or legislative. The court in Landrum considered
whether a city council acted judicially by conducting a hearing
prior to granting a rezoning request and a special use permit,
where the record did not show evidence or testimony was
offered and received at the hearing. In light of the nature of the
proceedings at issue, the court held the city council acted as a
legislative body. 16
[13,14] A zoning ordinance constitutes the exercise of a gov-
ernmental and legislative function, and a city council adopting
a rezoning ordinance which amends a general zoning ordinance
acts in a legislative capacity. 17 An appeal or error proceeding
does not lie from a purely legislative act by a public body to
which legislative power has been delegated, and the only rem-
edy in such cases is by collateral attack, that is, by injunction
or other suitable action. 18
13
Id.
14
Id., citing School Dist. No. 23 v. School Dist. No. 11, 181 Neb. 305, 148
N.W.2d 301 (1967).
15
Landrum v. City of Omaha Planning Bd., 297 Neb. 165, 899 N.W.2d 598
(2017); In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).
16
See id.
17
Id.; Giger v. City of Omaha, 232 Neb. 676, 442 N.W.2d 182 (1989); Copple
v. City of Lincoln, 210 Neb. 504, 315 N.W.2d 628 (1982); Scottsbluff
Improvement Assn. v. City of Scottsbluff, 183 Neb. 722, 164 N.W.2d 215
(1969).
18
Id.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 310 Neb. 669
MSP’s complaint, allegations, and exhibits properly
embraced within the complaint do not show that the city coun-
cil exercised judicial functions in rezoning MSP’s property,
but, instead, show that the city council was exercising a legis-
lative power. There are no allegations explaining how the city
council, for example, received evidence or testimony into an
official record or rendered a decision in an adversarial proceed-
ing consistent with due process. The agreement itself, which
is attached to the complaint, stated the conditional rezoning
of MSP’s property was an “exercise [of the City’s] legisla-
tive prerogative.” When viewed under the motion to dismiss
standards for review, MSP’s allegations show the city council
adopted a rezoning ordinance based upon the recommendation
of the planning commission. The allegations do not show the
city council decided a dispute of adjudicative fact. 19
Furthermore, the city council was not statutorily required
to act in a judicial manner. 20 The City admitted at oral argu-
ment before this court that the purported rezoning authority
discussed in the agreement is derived from this court’s case
law rather than specifically authorized by statute. Though the
merits of the dispute regarding the agreement are not at issue
here, the City’s position that MSP violated the agreement is
alleged to be based on the City’s asserted authority under the
agreement itself, or on the municipal code, but not based on
any zoning statute under Nebraska law. There is nothing in the
complaint showing the city council was statutorily required to
conduct a hearing, hear testimony, and take evidence. 21
Accepting all the factual allegations in the complaint as
true and drawing all reasonable inferences in favor of MSP,
the complaint is sufficient to survive a motion to dismiss. As
such, we reverse the court’s dismissal of the complaint and
19
See Hawkins, supra note 10.
20
See id.
21
See id.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 310 Neb. 669
remand the cause for further proceedings. We express no opin-
ion as to the merits of MSP’s action for declaratory or injunc-
tive relief.
CONCLUSION
The district court erred in dismissing MSP’s complaint for
lack of subject matter jurisdiction. The cause must be and is
hereby remanded for further proceedings.
Reversed and remanded for
further proceedings.