Welcome to the Nebraska Planning and Zoning Association
NPZA is a group of citizens committed to providing education, training, and assistance for the betterment of planning in your community. NPZA was formed more than 50 years ago by persons interested in issues related to planning and zoning. Our members include elected officials, members of city and county zoning and planning commissions, representatives of state agencies and professional planners. We welcome any individual, firm or organization with an interest in community and regional planning to join our organization.
NPZA Celebrates 50 years as an organization supporting local planning in Nebraska!
Please save the date for the 2017 Conference March 8-10, 2017 at the
Younes Conference Center
The 2016 Fall Nebraska Planning Workshop in Grand Island September 26-27
Additional Information located on the Conference page
2016 NPZA/APA Conference Pictures
2016 NPZA/APA Awards Pictures
NPZA Constitution and Bylaws as Approved in May 2015
Career Opportunity at JEO as the Senior Planner Position click here for additional information
Memorandum to the Association in PDF (updated July 30, 2014)
The Nebraska Annual Planning Conference/ training event is keyed to providing local planning officials from commissioners to elected officials to appointed officials to citizens to attorneys, which are rookies or veterans committed to the continuous development of sound planning principles for their counties and municipalities. It also offers many choices for the professional planners, which assist the volunteer planners, in expanding their knowledge of planning disciplines through NE APA.
Your community /organization is encouraged to support NPZA as a 2016 member. Join NPZA
Steve Charleston, NPZA membership secretary/treasurer.
By MARGERY A. GIBBS Associated Press Writer
OMAHA, Neb. (AP) -- A Colorado cellular company is suing Saunders County in eastern Nebraska, seeking to force county officials to let it build a cell tower there.
The lawsuit filed Tuesday in U.S. District Court in Omaha by Viaero Wireless seeks injunctive relief to build the tower, as well as unspecified damages and attorneys fees. Viaero wants to build the tower to provide wireless services in Mead, Yutan and surrounding areas just southwest of Omaha. Viaero Wireless operates throughout rural areas of Nebraska and Colorado.
In its lawsuit, Viaero says the Saunders County board violated the federal Telecommunications Act, among other things, by denying Viaero a permit last year to build a 330-foot tower in the middle of a row crop.
The lawsuit says the county's decision to deny the permit was not in writing and was "not supported by substantial evidence in written record," as required by the Telecommunications Act. The denial also violated the act's requirement that local governments cannot discriminate among providers of functionally equivalent services, the lawsuit says.
Viaero says it was denied a permit, even after other wireless companies such as Alltel, U.S. Cellular and SBA Towers had been given county permits to build towers. "In fact ... Saunders County owns and operates a wireless communications tower approximately 400 feet high," the lawsuit says.
The denial of Viaero's request for a permit came after a May 27, 2007, public hearing at which some people opposed the tower, raising objections over aesthetics and because they feared it would hurt their property values, the lawsuit says. "These comments did not involve any technical, engineering or reliable evidence relating to the siting of the facility, nor did Saunders County or the opponents present any evidence relating to the criteria set forth in the zoning regulations," the lawsuit says. Viaero's attorney, Jaron Bromm of Denver, said the lawsuit is a first for the company, because it has never been denied permission to put up a tower.
Bromm said Saunders County officials left the company no choice but to sue, because there is no appeal process for Viaero to take. "In the public hearings on this and in discussions with the county attorney, we raised the issue of federal pre-emption," Bromm said.
"I don't know that they necessarily understood the extent of pre-emption." Bromm said the case has been assigned to U.S. District Court Judge Richard Kopf, who five years ago ruled in favor of another wireless provider in a nearly identical lawsuit against the city of Bellevue. In that case, Kopf found that the City Council's decision to deny a permit to U.S. Cellular was not in writing and was not supported by substantial evidence in written record, as required by federal law. Kopf ordered the city to issue a permit to U.S. Cellular to let it build a cell tower.
A message left by The Associated Press for Saunders County Attorney Scott Tingelhoff was not immediately returned.
The case centered around an application by Mark Olmer to site a hog finishing facility on the Madison County side of the Madison County/Platte County line filed in 2005. The Madison County Joint Planning Commission recommended approval after a public hearing. Included in the recommendation was a Statement of Finding of Facts that had 37 separate facts that were established during the public hearing.
The Board of Commissioners held a separate hearing and after a long deliberation voted against siting the facility citing facts listed in the Statement of Finding of Facts. These facts described a neighbor living just inside Platte County, but outside of the one-quarter mile setback area, had proved she had a severe case of asthma that could be triggered and possibly result in her death by hogs. High nitrates in area water supplies were also cited. The Commissioners were following the County Zoning Regulations by recognizing special circumstances that threatened the health, safety and welfare of neighboring property owners. The applicant had met all of the other requirements of the Zoning Regulations including passing the Madison County Livestock Feeding Operation Siting Matrix designed to make the application process easier, but not give automatic approval.
Olmer appealed to District Court as outlined in state statutes. In his appeal he had asked for a new trial to be held in front of the District Court Judge. The judge ruled the appeal should be heard as a "Petition in Error" case and then reviewed the county's procedures for errors. Judge Patrick Rogers ruled the county had followed their own regulations and the state statutes in denying the application and also said no new trial would be held.
Olmer appealed Judge Rogers decision to the State Court of Appeals and it was picked up by the Supreme Court. In overturning Judge Rogers, the supreme court made two rulings:
- Political Subdivisions: Appeal and Error. A party may seek review of a decision regarding a conditional use or special exception permit either by appealing to the district court under Neb. Rev. S tat. § 23-114.01(5) (Cum. Supp. 2006) or by filing a petition in error under Neb. Rev. S tat. § 25-1901 (Supp. 2007).
- Political Subdivisions: Judgments: Appeal and Error. When a decision regarding a conditional use or special exception permit is appealed under Neb. Rev. Stat. § 23-114.01(5) (Cum. Supp. 2006) and a trial is held de novo under Neb. Rev. S tat. § 25-1937 (Reissue 1995), the findings of the district court shall have the effect of a jury verdict and the court’s judgment will not be set aside by an appellate court unless the court’s factual findings are clearly erroneous or the court erred in its application of the law.
The rulings didn't decide whether or not the Madison County Board of Commissioners were correct or not in denying the permit. Rather the ruling centered on the way Judge Rogers handled the appeal as a "Petition in Error." So the case was sent back to Judge Rogers to hold a trial. The Supreme Court Opinion also said once a trial is held on an appeal of Conditional Use Permit or Special Exception the judges decision will be treated the same as a jury verdict and therefore can only be appealed based on errors in the factual findings of the court.
The court finished its opinion by saying, "We acknowledge, and in fact encourage, that in most instances, a trial de novo(new trial) in the district court may be had by way of a stipulated record, as sensibly occurred in the present case. We also recognize the potential burden that may be placed on district courts, and we do not comment on the wisdom or efficacy of having a trial de novo on an appeal from a decision of the county board regarding a conditional use or special exception permit. Nonetheless, we are not at liberty to ignore the clear mandate of § 23-114.01(5). If more efficient and effective procedures for review are to be implemented, the Legislature is the body that must make such a policy determination.
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