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State Supreme Court Rejects Homeowners Lawsuit Against Elkhorn, NE, Self-Storage Project


Update 7/21/17 – The Nebraska Supreme Court upheld the Omaha City Council’s August 2015 decision to approve the rezoning and conditional-use permit required for Leise and Redbird LLC to build a self-storage facility near homes in two Elkhorn neighborhoods. The ruling will enable Leise to proceed with construction on a three-story storage building and five single-story structures. “There’s no legal obstacle to the development moving forward,” deputy city attorney Alan Thelen told the source.

The case was heard by the state’s highest court after homeowners appealed a district-court decision in favor of the city. Homeowners contended the council’s approval was illegal and the conduct of officials during public hearings had denied them due process. Among their arguments was that Leise had made errors on his application and the council “acted judicially and not legislatively” by conducting simultaneous hearings on two self-storage applications. The court dismissed the first argument because it wasn’t part of the homeowners’ argument in district court and rejected the judicial-body notion since both proposals were discussed as separate agenda items, according to the ruling.

The court also rejected homeowners’ assertion that the planning board approved the permit “without any consideration of extensive public opposition to the project and the unrebutted concerns regarding compatibility, adverse economic effects, and safety concerns.”

“Although the homeowners raised valid concerns, we cannot find from the record that the planning board did not evaluate the application using its own criteria as outlined in §55-885 or that its decision was not supported by sufficient relevant evidence,” the justices wrote.

In their argument that due process had been denied, homeowners contended the planning board failed to allow enough time for those opposed to the project to make their case and that it disregarded the arguments presented because board members had “already decided in favor” of the project. In his presentation to the court, Moats also contended the board “in effect became witnesses” and not an “impartial adjudicator” during proceedings when board members admonished him for raising socioeconomic concerns about typical self-storage tenants and the potential for negative impact on property values in the area.

“Certainly, the homeowner who offered the suggestion had the right to protect his property investment, which he believed would be adversely affected by the proposed uses. However, a planning board member’s redirecting the homeowner’s comments does not equate with partiality or becoming a witness,” the court ruled.

The court also determined homeowners were properly allowed to present evidence against the development, offer opinions and question Leise in a public forum. “As an appellate court performing a review of the record for due process, we are positioned not to judge the wisdom of the planning board’s decision, but to ensure that an aggrieved party had the opportunity to be heard,” justices wrote. “Based on our review of the record, we find that the homeowners were provided due process.”

Moats said homeowners were disappointed in the court’s decision. “The court expanded government's ability to adversely impact private property rights,” he told the source. “They affirmed actions taken by the Omaha Planning Board, Omaha City Council and Mayor [Jean] Stothert, which have a detrimental impact on residential dwellings."

10/26/15 – A group of residents have filed a lawsuit against the city in Omaha, Neb., to block the development of a self-storage facility in the suburb of Elkhorn. The suit was filed on behalf of Elkhorn residents by Rex Moats, an attorney and resident of the area, which is dominated by horse ranches. It names as defendants the city, council members, the Omaha Planning Department, the self-storage-business owners and others, according to the source.

The lawsuit claims the council’s August approval of a special-use permit to allow the self-storage development was arbitrary and illegal. The city has yet to respond.

Omaha Planning Department board members voted 5-2 on Aug. 5 to permit Daryl Leise to build a self-storage property at 204th and Farnam streets, a vacant commercial corner, despite objections from hundreds of residents. The project was approved because it complied with the city’s master development plan and zoning regulations, according to Cheri Rockwell, planning manager. Homeowners presented the board with a petition containing more than 350 signatures to persuade members to reject the proposal.

Leise’s site plan includes one three-story building and six single-story structures to be built near homes in the Elk Valley and Skyline Ranches subdivisions. Residents claim the self-storage project wouldn’t be compatible with the area or the best use for the property. They also say it would be unsightly, cause light pollution and traffic problems, and attract crime, the source reported.

Russ Daub, Leise’s attorney, assured the board the buildings would be well-designed and blend with existing properties, including nearby Elkhorn South High School. Large trees and other landscaping would add a buffer, and the lighting would be controlled, Daub said.

An “opposition document” was also submitted to the board, showing that half of self-storage tenants earn less than $50,000 annually. The median household income in Elkhorn was $80,490 in 2013, according to the document. Residents suggested the facility would be better suited to an area with lower-valued homes. Developed in the 1960s, Skyline Ranches was designed for homeowners with horses. The neighborhood has dedicated trails and a park for horse-related activities.

Rockwell reiterated that planners should review proposals for compatibility to the city’s master plan and zoning regulations, and it “doesn’t matter what the value of the property next door is,” she told the source.

Leise’s proposal is in line with storage-development trends for more aesthetically pleasing buildings in high-profile areas, said board member Trenton Magid. “You can also store Ferraris, horse feed and saddles there. It’s not only [for] plastic folding chairs from Walmart.”



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