Schauer v. Grooms

C urt SChauer and SuSan SChauer , appellantS, v.
alvin “Jeep ” G roomS et al ., appelleeS.
786 N.W.2d 909
Filed August 6, 2010. 	No. S-07-740.
1. Jurisdiction: Judgments: Appeal and Error. Determination of a jurisdictional
issue which does not involve a factual dispute is a matter of law which requires
an appellate court to reach an independent conclusion.
2. Annexation: Ordinances: Equity. An action to determine the validity of an
annexation ordinance and enjoin its enforcement sounds in equity.
3. Actions: Equity: Public Meetings: Appeal and Error. An appellate court
reviews actions for relief under the Open Meetings Act in equity because the
relief sought is in the nature of a declaration that action taken in violation of the
act is void or voidable.
4. Equity: Appeal and Error. On appeal from an equity action, an appellate court
tries factual questions de novo on the record and, as to questions of both fact and
law, is obligated to reach a conclusion independent of the conclusion reached by
the trial court. But when credible evidence is in conflict on material issues of
fact, an appellate court considers and may give weight to the fact the trial court
observed the witnesses and accepted one version of the facts over another.
5. Standing: Jurisdiction: Parties. Standing is a jurisdictional component of a
party’s case.
6. Standing: Words and Phrases. Standing is the legal or equitable right, title, or
interest in the subject matter of the controversy which entitles a party to invoke
the jurisdiction of the court.
7. Standing: Claims: Parties. In order to have standing, a litigant must assert that
his or her own legal rights and interests would benefit by the relief to be granted,
and the litigant cannot rest his or her claim on the legal rights and interests of
third parties.
8. Standing: Legislature: Statutes. The Legislature may, by statute, supplant
common-law concepts of standing. When it does so, then a special injury is
not required.
9. Standing: Annexation. Landowners do not have standing simply by virtue of
their land’s proximity to the annexed area.
10. Zoning: Ordinances. Zoning ordinances do not confer a vested right or interest
upon their intended beneficiaries.
11. Public Meetings: Statutes. The open meetings laws should be broadly inter-
preted and liberally construed to obtain their objective of openness in favor of
the public.
12. Public Meetings: Statutes: Intent: Public Policy. The intent of the Open
Meetings Act is to ensure that the formation of public policy is public business,
not conducted in secret, and to allow citizens to exercise their democratic privi-
lege of attending and speaking at meetings of public bodies.
13. Public Meetings: Statutes: Intent: Notice. The purpose of the agenda require-
ment of the public meetings laws is to give some notice of the matters to be
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considered at the meeting so that persons who are interested will know which
matters will be for consideration at the meeting.
14. Public Meetings: Statutes: Public Officers and Employees: Public Policy.
The Open Meetings Act does not require policymakers to remain ignorant of the
issues they must decide until the moment the public is invited to comment on a
proposed policy.
15. Municipal Corporations: Public Officers and Employees: Statutes. The fact
that a statute gives a certain official the right to cast the deciding vote in case
of a tie in a governmental body does not, of itself, make that official a member
of that body for the purposes of ascertaining a quorum or majority, or for any
other purpose.
16. Municipal Corporations: Public Officers and Employees. There is no meeting
of a public body based upon unspoken thoughts of council members who happen
to be sitting in the same room.
17. Summary Judgment: Proof. A prima facie case for summary judgment is shown
by producing enough evidence to demonstrate that the movant is entitled to a
judgment in its favor if the evidence were uncontroverted at trial.
18. Summary Judgment: Evidence: Proof. After the movant for summary judgment
makes a prima facie case by producing enough evidence to demonstrate that the
movant is entitled to judgment if the evidence was uncontroverted at trial, the
burden to produce evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party opposing the motion.
Appeal from the District Court for Valley County: K arin l.
noaKeS, Judge. Affirmed.
George G. Vinton for appellants.
Steven M. Curry for appellee Green plains Ord LLC.
Justin r. Herrmann and Daniel L. Lindstrom, of Jacobsen,
Orr, Nelson, Lindstrom & Holbrook, p.C., L.L.O., for appellees
Alvin “Jeep” Grooms et al.
heaviCan, 	C.J., 	WriGht, 	C onnolly, 	G errard, 	Stephan,
mCC ormaCK, and miller-lerman, JJ.
mCC ormaCK, J.
I. NATUre OF CASe
Curt Schauer and Susan Schauer live in Valley County,
Nebraska, several miles outside of the City of Ord (City).
The Schauers seek to invalidate the annexation by the City of
neighboring vacant agricultural land. The annexation enabled
the use of tax increment financing (TIF) for the construction of
SCHAUer v. GrOOMS 	427
Cite as 280 Neb. 426

an ethanol plant, which the Schauers opposed as a nuisance to
their farmstead.
The Schauers alleged two causes of action: (1) that the
annexation was invalid because it exceeded the statutory author-
ity conferred to the City by Neb. rev. Stat. § 17-405.01(2)
(reissue 2007) and by the Community Development Law1 and
(2) that the City had violated the Open Meetings Act2 during
the process that culminated in the formal action of the City’s
annexing the subject land. The district court granted summary
judgment in favor of the defendants, and the Schauers appeal.
II. BACkGrOUND
Sometime in early 2005, the Valley County economic
Development Board determined that it would be economically
beneficial to the county to recruit a developer to build and
operate an ethanol facility on undeveloped land somewhere
in the county. The Valley County economic Development
Board’s 	business 	development 	and 	recruitment 	committee
envisioned that the developer recruited for the ethanol plant
would take advantage of TIF when the City annexed the land
under special statutory provisions pertaining to land declared
blighted and in need of redevelopment.3 It was apparently the
City’s and the county’s understanding that the City was to
make the blight determination necessary for the annexation—a
point on which the Schauers disagree. In any event, TIF would
not be available to the ethanol plant developer unless the land
was annexed.4
The site ultimately selected for the ethanol facility became
known as redevelopment Area #3. It consisted of land noncon-
tiguous to the City, approximately 41⁄2 miles east of its border.
redevelopment Area #3 is located approximately one-eighth of
a mile from the Schauers’ home. Val-e ethanol, LLC (Val-e),
was eventually recruited to build a 40-million-gallons-per-year
1 Neb. rev. Stat. §§ 18-2101 to 18-2144 (reissue 1997).
2 Neb. rev. Stat. §§ 84-1407 to 84-1414 (reissue 1999, Cum. Supp. 2004 &
Supp. 2005)
3 See, generally, §§ 18-2101 to 18-2144.
4 See id.
428 	280 NeBrASkA repOrTS

ethanol plant on the site. During the pendency of this appeal,
Val-e’s successor in interest filed for bankruptcy. Green plains
Ord LLC has since acquired the property and has been substi-
tuted as party defendant.
Several 	meetings 	of 	the 	Ord 	City 	Council, 	the 	Ord
planning Commission, and the Ord Community Development
Agency were held in the process of the City’s (1) declaring
redevelopment Area #3 blighted, (2) formally adopting a rede-
velopment plan for the area, (3) entering into a redevelopment
financing agreement with Val-e and, finally, (4) annexing the
land. Because the meetings leading up to the annexation are
the subject of the Schauers’ challenge under the Open Meetings
Act, we will describe them in detail.
1. publiC bodieS
The city council consists of six persons and is overseen
by the mayor. At all times pertinent to this case, the coun-
cil members were Alvin “Jeep” Grooms, Debra eppenbach,
Michael Blaha, Leon koehlmoos, Dennis philbrick, and Daniel
petska. pursuant to Neb. rev. Stat. § 17-105 (reissue 2007),
a majority of all members of the city council, four persons,
constitutes a quorum for the transaction of business. The mayor
may vote only when his or her vote “shall be decisive and the
council is equally divided on any pending matter, legislation,
or transaction.”5
The community development agency was formed pursuant
to § 18-2101.01. It consists of the city council sitting as the
agency, with the mayor presiding. Action by the agency is
undertaken by a majority vote if a quorum of four is present.
The planning commission consists of five members appointed
by the mayor and approved by the city council. A majority of
the commission, or three members, constitutes a quorum for
the transaction of business. During the period in question,
Blaha was the only city council member who also served on
the planning commission.
The city clerk testified that based upon her review of the
minutes of the meetings of these bodies, it has been the
5 Neb. rev. Stat. § 17-110 (reissue 2007).
SCHAUer v. GrOOMS 	429
Cite as 280 Neb. 426

standard practice of the city council since 1968, of the com-
munity development agency since 1999, and of the planning
commission since 1983, to post advance notice of all of their
meetings at three public locations: the Ord township library,
the Valley County courthouse, and the Ord city hall. every
posted notice briefly describes the agenda for the meeting and
the place it will be held; and the agenda is available for inspec-
tion by the public at the offices of the city clerk.
2. preliminary reSolutionS and tour /dinner
The 	first 	meeting 	concerning 	redevelopment 	Area 	#3
occurred on February 7, 2005. It was a regular meeting of
the city council at the city hall, and notice of the meeting was
posted in the usual manner. On the agenda was a resolution
to move forward in support of the proposed ethanol facility in
Valley County. Grooms, eppenbach, koehlmoos, and philbrick
were present, and all voted in favor of the resolution.
On February 22, 2005, a special joint meeting was held
between the city council and the board of public works of
the City. prior notice of the meeting was posted. The mayor
reported to the city council on Valley County’s efforts to
recruit a developer to build an ethanol plant and on the need
to consider annexation and TIF for the site. The mayor asked
for and received approval to hire an attorney with experience
in TIF for an ethanol plant. Grooms, eppenbach, Blaha, and
koehlmoos were in attendance, and all voted in favor of hiring
said attorney.
The next day, on February 23, 2005, a special meeting
of the city council was held, with prior notice posted in the
customary manner. The city council authorized the City to
hire a consulting firm to complete a blight and substandard
determination study of redevelopment Area #3. All city coun-
cil members were in attendance, and all voted in favor of
the authorization.
On May 17, 2005, after the study was completed, conclud-
ing the area was blighted and in need of redevelopment, a pub-
lic announcement ceremony was held for the proposed Val-e
plant. There were over 200 members of the public present, as
well as several media outlets. Three members of the planning
430 	280 NeBrASkA repOrTS

commission and three members of the city council were pres-
ent at the ceremony. There is no evidence that these officials
did anything other than observe the ceremony.
On June 1, 2005, the Valley County economic Development
Board hosted a dinner and a tour of an ethanol facility similar
to the one proposed by Val-e. personal invitations were sent
out to various individuals, including all of the city council
members and the Schauers, but no public notice regarding
the tour/dinner was published or posted. The Schauers later
reported to the city council that they had elected not to attend
the tour/dinner because their former neighbors, who had sold
the property for the ethanol plant, were going to be there. The
mayor and three of the five city council members: eppenbach,
Blaha, and petska attended the tour/dinner. It does not appear
that any of the planning commission members, other than
Blaha, attended. Approximately 40 other individuals were
in attendance.
The mayor and those city council members who attended
the tour testified that they were split into two groups. The
mayor and petska were in one group, and eppenbach and
Blaha were in the other. One group watched a video explain-
ing how ethanol is produced, while the other group toured the
facility. After the tour, the participants went to a restaurant to
eat dinner. eppenbach, Blaha, petska, and the mayor explained
that they ate dinner at the same restaurant but that they did
not “eat dinner together.” All members testified that on the
day of the tour/dinner, they did not discuss or receive infor-
mation associated with the redevelopment plan and contract,
they did not hold any formal or informal hearings, and they
did not make policy or take any formal action on behalf of the
city council.
On June 6, 2005, at a regular meeting of the city coun-
cil, conducted after the customary advance public notice, the
city council determined to forward the completed blight and
substandard study to the planning commission and to set a
public hearing on the study at the regular July city council
meeting. City council members Grooms, Blaha, koehlmoos,
philbrick, and petska were in attendance and voted in favor of
the determination.
SCHAUer v. GrOOMS 	431
Cite as 280 Neb. 426

3. deClaration of redevelopment area #3
The city clerk posted notice of a meeting of the planning
commission to be held on June 8, 2005, identifying as an
agenda item the “Blight and Substandard Determination for
redevelopment Area #3.” At that meeting, the commission
reviewed the blight and substandard determination study and
approved a motion to recommend to the city council that it
be approved.
In the meantime, Val-e applied to the Valley County zon-
ing office for a conditional use permit to begin construction of
the ethanol plant. On June 28, 2005, the Valley County Board
of Supervisors approved Val-e’s application for a conditional
use permit, even though county zoning regulations stated that
commercial fuel bulk plants shall be separated at least one-half
mile from any neighboring dwelling unit. In a separate action,
the Schauers instigated suit against the Valley County Board
of Supervisors, its individual members, and Val-e, challenging
the grant of the permit. After the annexation, the defendants
moved to dismiss the case as moot.6 The district court found
the motion premature and stayed the suit pending the outcome
of this appeal.
On June 29 and July 6, 2005, the city clerk posted notice in
the customary manner, and also published notice in the local
newspaper, of a July 19 hearing. The published notice stated
that the purpose of the hearing was “to obtain public comment
prior to consideration of declaration of an area of the City as
blighted and substandard and in need of redevelopment pur-
suant to the Nebraska Community Development Law.” The
published notice also contained a legal description and map
showing the area. The posted notice described the agenda
as “public Hearing on Blight and Substandard Analysis for
redevelopment Area #3.”
The city clerk also mailed notice of the July 19, 2005,
hearing by certified mail to representatives of neighborhood
associations, presidents or chairpersons of the governing body
of each county, and any school district, community college,
6 See, e.g., Alderman v. County of Antelope, 11 Neb. App. 412, 653 N.W.2d
1 (2002).
432 	280 NeBrASkA repOrTS

educational service unit, and natural resources district within
a 1-mile radius of redevelopment Area #3, in accordance with
the requirements of § 18-2115(2). The notice gave a legal
description and contained an attached map of redevelopment
Area #3.
At the July 19, 2005, meeting, after receiving public com-
ment, including that of the Schauers, the city council passed
resolution No. 949. City council members eppenbach, Blaha,
koehlmoos, philbrick, and petska were in attendance, and all
voted in favor of the resolution. resolution No. 949 declared
redevelopment Area #3 blighted, substandard, and in need
of redevelopment.
4. adoption of redevelopment plan
and finanCinG C ontraCt
On September 19, 2005, a special meeting was held, with
prior posted notice, to consider “road Improvement for the
ethanol plant.” At the meeting, details of the TIF proposal
were discussed in the context of the possible use of sales tax
funds for a county road project to the site. All city council
members were present, and all voted in favor of pursuing up
to $750,000 in bonds, secured against the sales tax fund, that
would pay for infrastructure improvements on the county road
providing access to the ethanol plant.
A meeting of the city council, sitting as the community
development agency, was held on October 24, 2005. The
posted notice for the meeting stated that it was to consider
“Cost benefit analysis for Val-e ethanol” and “preliminary
approval of redevelopment contract for Val-e ethanol.” At the
time of the posting, the plan for redevelopment Area #3 was
the only redevelopment plan pending before the city council
and the planning commission and was the only matter associ-
ated with an ethanol plant.
At the meeting, the community development agency adopted
resolution No. 3, which stated that after review of the cost-
benefit analysis, it recommended that the City adopt the rede-
velopment plan. The matter was forwarded to the planning
commission for further consideration. All city council mem-
bers were in attendance. Grooms, eppenbach, Blaha, philbrick,
SCHAUer v. GrOOMS 	433
Cite as 280 Neb. 426

and petska voted in favor of the resolution; koehlmoos,
however, abstained from voting. The minutes explain that
koehlmoos abstained to avoid any appearance of impropri-
ety, because he also served on the Valley County economic
Development Board.
On November 1, 2005, a meeting of the planning commis-
sion was held. The posted notice for the meeting stated that
the agenda was the “redevelopment plan and redevelopment
Contract for Val-e ethanol.” At the meeting, the planning com-
mission, like the community development agency, adopted
resolution No. 3, recommending that the City approve the
redevelopment plan and enter into a redevelopment contract
with Val-e.
Notice of a meeting of the city council, scheduled for
November 14, 2005, was posted in the customary manner and
described the agenda as “public Hearing - redevelopment plan
and Contract for Val-e ethanol” and “Annexation Ordinance for
Val-e ethanol Site.” On October 26 and November 2, the city
clerk also published notice of the November 14 meeting in the
local newspaper. The notice explained that the purpose of the
meeting was to obtain public comment prior to consideration of
a redevelopment plan “for an area of the City which has been
declared as blighted and substandard and in need of redevelop-
ment pursuant to the Nebraska Community Development Law.”
The published notice included a detailed legal description of
the land and stated that the land was 41⁄2 miles east of the cor-
porate limits of the City.
At the November 14, 2005, meeting, several members of
the public, including the Schauers, were heard. Afterward, the
city council passed resolution No. 961, which approved the
official plan for redevelopment Area #3 and the official rede-
velopment contract with Val-e. All council members, including
koehlmoos, were present and voted in favor of the resolution.
A first formal reading of the proposed annexation ordinance
was also made.
5. adoption of annexation ordinanCe
On November 16, 2005, the city council held a special
meeting, after notice was posted in the customary manner, for
434 	280 NeBrASkA repOrTS

the second reading of the proposed annexation ordinance. The
notice described the agenda as “Annexation Ordinance for Val-e
ethanol Site.” At the meeting, the second reading was made and
the final reading was scheduled for November 21.
Notice of the November 21, 2005, meeting was posted
in the usual manner. The agenda item for the meeting was
“Annexation Ordinance for Val-e ethanol Site.” At the meet-
ing, there was a final reading of the annexation ordinance. The
City then passed ordinance No. 731, annexing redevelopment
Area #3 and expanding the municipal boundaries of the City to
include it. All council members were present. Council member
koehlmoos abstained from voting to avoid the appearance of
impropriety because of his involvement with the Valley County
economic Development Board. The remaining members all
voted in favor of the annexation.
Four months later, on March 21, 2006, the Schauers filed this
action seeking to void the annexation. They alleged two causes
of action. In their first cause of action, the Schauers asserted
that the annexation was brought about in a manner which was
beyond the scope of the authority granted to the City through
the relevant annexation and redevelopment statutes. In their
second cause of action, the Schauers asserted that the annexa-
tion was tainted by violations of the Open Meetings Act.
III. ASSIGNMeNTS OF errOr
The Schauers assert generally that the district court erred
in granting summary judgment in favor of the defendants
and in refusing to grant summary judgment in their favor.
More particularly, as concerns their first cause of action, the
Schauers allege the court erred in (1) ruling that a second-
class city can declare noncity land substandard and blighted
under § 18-2109 and then annex the land because it is blighted
under § 17-405.01(2); (2) concluding that there is an obvious
conflict between §§ 17-405.01(2) and 18-2109; (3) ruling that
there is no restriction in the Community Development Law,
§§ 18-2101 to 18-2144, as to where a redevelopment project
area can be located; (4) ruling that there is no issue of mate-
rial fact regarding whether or not the City failed to specifically
identify the area to be redeveloped under the redevelopment
SCHAUer v. GrOOMS 	435
Cite as 280 Neb. 426

plan as required under § 18-2115; (5) ruling that § 17-405.01
does not require the City to annex all of the property desig-
nated blighted and substandard in the redevelopment plan; (6)
ruling that proper notice of the public hearings required under
the Community Development Law was given by the City; (7)
ruling that the Schauers have no standing to contest annexation
of land by the City; (8) not ruling that the mayor of the City
is required to vote on the ordinance annexing land; and (9) not
ruling that the City’s annexation of the real estate was an ultra
vires act and was null and void ab initio.
As concerns their second cause of action, the Schauers
allege that the district court erred in (10) ruling that the City
had a designated method of giving notice of the time and place
of public meetings as required under § 84-1411 and (11) ruling
that the Open Meetings Act was complied with relating to the
announcement ceremony on May 17, 2005, and the tour/dinner
on June 1.
IV. STANDArD OF reVIeW
[1] Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law which requires an
appellate court to reach an independent conclusion.7
[2] An action to determine the validity of an annexation
ordinance and enjoin its enforcement sounds in equity.8
[3] An appellate court reviews actions for relief under the
Open Meetings Act in equity because the relief sought is in the
nature of a declaration that action taken in violation of the act
is void or voidable.9
[4] On appeal from an equity action, an appellate court
tries factual questions de novo on the record and, as to ques-
tions of both fact and law, is obligated to reach a conclusion
independent of the conclusion reached by the trial court.10 But
7 See Crosby v. Luehrs, 266 Neb. 827, 669 N.W.2d 635 (2003).
8 County of Sarpy v. City of Papillion, 277 Neb. 829, 765 N.W.2d 456
(2009).
9 City of Elkhorn v. City of Omaha, 272 Neb. 867, 725 N.W.2d 792 (2007).
See Shoemaker v. Shoemaker, 275 Neb. 112, 745 N.W.2d 299 (2008).
10 See Shoemaker v. Shoemaker, supra note 9.
436 	280 NeBrASkA repOrTS

when credible evidence is in conflict on material issues of fact,
we consider and may give weight to the fact the trial court
observed the witnesses and accepted one version of the facts
over another.11
V. ANALYSIS
1. StandinG
[5-8] We first address whether the Schauers, as neighbor-
ing landowners to the area being annexed, have standing to
bring the two causes of action currently before us. Standing
is a jurisdictional component of a party’s case.12 It is the legal
or equitable right, title, or interest in the subject matter of the
controversy which entitles a party to invoke the jurisdiction
of the court.13 In order to have standing, a litigant must assert
that his or her own legal rights and interests would benefit by
the relief to be granted, and the litigant cannot rest his or her
claim on the legal rights and interests of third parties.14 The
Legislature may, however, by statute, supplant common-law
concepts of standing.15 When it does so, then a special injury
is not required.16
At the outset, we clarify that while the Schauers allege
numerous ways in which their interests were and will be physi-
cally and financially harmed by the construction and operation
of the ethanol plant, this appeal solely concerns the validity
of the annexation of the land on which the plant was built.
The Schauers failed to bring an action within 30 days of the
11 See id.
12 See Adam v. City of Hastings, 267 Neb. 641, 676 N.W.2d 710 (2004).
13 Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005). See,
also, In re 2007 Appropriations of Niobrara River Waters, 278 Neb. 137,
768 N.W.2d 420 (2009).
14 See County of Sarpy v. City of Gretna, 267 Neb. 943, 678 N.W.2d 740
(2004).
15 See, e.g., In re Guardianship & Conservatorship of Cordel, 274 Neb. 545,
741 N.W.2d 675 (2007); Metropolitan Utilities Dist. v. Twin Platte NRD,
250 Neb. 442, 550 N.W.2d 907 (1996).
16 See, Hall v. Progress Pig, Inc., 254 Neb. 150, 575 N.W.2d 369 (1998);
Metropolitan Utilities Dist. v. Twin Platte NRD, supra note 15.
SCHAUer v. GrOOMS 	437
Cite as 280 Neb. 426

city council’s decision to formally approve the redevelopment
project with Val-e, ensuring its financing and redevelopment
contract. Thus, under § 18-2142.01, this agreement is conclu-
sively presumed to be in accordance with the purposes and
provisions of the Community Development Law and Neb. rev.
Stat. §§ 18-2145 to 18-2154 (reissue 1997 & Cum. Supp.
2004).17 Furthermore, this appeal is not from an action for nui-
sance, because, at the time this suit was brought, the ethanol
facility had not yet begun its operations.18 Thus, the question
of standing in this case is narrow: Do the Schauers have a
personal stake in the annexation of their neighbor’s land? If
not, did the Legislature grant the Schauers standing by statute?
We reject the Schauers’ contention that no standing analysis is
required because the annexation was void ab initio as an ultra
vires act.
(a) First Cause of Action
We have addressed on numerous occasions the question of
who, under common-law principles of standing, may challenge
an annexation ordinance. We have long held that a person
who owns property or is a voter in the territory sought to be
annexed has standing to maintain an action against a munici-
pality to enjoin the enforcement of the annexation or to have
the attempted annexation declared void.19 We have also held
that a public power district has standing to challenge an annex-
ation if the annexation removes property from within the power
district’s service territory, thereby causing lost revenue.20 We
have said that a municipality that is in the crosshairs of annexa-
tion has standing.21 Finally, we have recognized the standing of
17 See §§ 18-2115(2) and 18-2129.
18 See, e.g., Horn v. Community Refuse Disposal, Inc., 186 Neb. 43, 180
N.W.2d 691 (1970); Demont v. Abbas, 149 Neb. 765, 32 N.W.2d 737
(1948).
19 Adam v. City of Hastings, supra note 12; Wagner v. City of Omaha, 156
Neb. 163, 55 N.W.2d 490 (1952).
20 Cornhusker Pub. Power Dist. v. City of Schuyler, 269 Neb. 972, 699
N.W.2d 352 (2005).
21 City of Elkhorn v. City of Omaha, supra note 9. See, also, County of Sarpy
v. City of Gretna, supra note 14.
438 	280 NeBrASkA repOrTS

plaintiffs whose land would fall under a new zoning authority
as a result of the challenged annexation ordinance.22
[9] But we have never held that a neighboring landowner,
who neither owns a property interest in the annexed territory
nor will be subject to new zoning regulations as a result of the
annexation has standing to challenge the annexation of some-
one else’s land. To the contrary, we have been clear that land-
owners do not have standing simply by virtue of their land’s
proximity to the annexed area.23
In Adam v. City of Hastings,24 for instance, we held that
landowners living adjacent to land being annexed did not have
standing, even though their land fell within the zoning juris-
diction of the annexing body. This was because the plaintiffs’
land fell within the annexing body’s zoning jurisdiction even
before the annexation. Furthermore, in Adam, we rejected the
landowners’ argument that they were harmed because of their
new proximity to the city, which made them more susceptible
to future annexation.25 We concluded that such an alleged per-
sonal interest in the annexation was simply too remote.26
In this case, it is undisputed that the Schauers’ property was
not being annexed. They are not citizens or taxpayers of the
annexing entity. Nor will the City’s zoning authority extend to
the Schauers’ land by virtue of the annexation.27 Nevertheless,
the Schauers assert that they have standing. The Schauers argue
they have a legal interest in the annexation, because, as a result
of the annexation, redevelopment Area #3 is no longer subject
to a county zoning law prohibiting the construction of com-
mercial fuel bulk plants within one-half mile of a neighboring
dwelling unit.
22 See, Adam v. City of Hastings, supra note 12; Johnson v. City of Hastings,
241 Neb. 291, 488 N.W.2d 20 (1992); Piester v. City of North Platte, 198
Neb. 220, 252 N.W.2d 159 (1977).
23 See Adam v. City of Hastings, supra note 12.
24 Id.
25 Id.
26 Id.
27 See § 17-405.01(2).
SCHAUer v. GrOOMS 	439
Cite as 280 Neb. 426

The Schauers acknowledge that even before the annexa-
tion of redevelopment Area #3 by the City, the Valley County
Board of Supervisors granted Val-e a conditional use permit
to construct the ethanol plant. But the Schauers claim that the
annexation still caused them harm because, if they lose this
appeal to invalidate the annexation, then the Schauers’ lawsuit
against the county will be rendered moot.
[10] Zoning ordinances do not confer a vested right or inter-
est upon their intended beneficiaries.28 And we conclude that
the mootness of another lawsuit, which may or may not have
otherwise been successful, is too remote an interest to confer
standing. Beyond that, all of the alleged personal, pecuniary,
or property interests that the Schauers claim give them stand-
ing in this case pertain to the existence of the ethanol plant,
not whether the land on which the plant is located should have
been annexed by the City.
We are cognizant of the fact that only a city or village may
offer TIF, and so, the annexation enabled financing which other-
wise would not have been available. This, in turn, facilitated
the ethanol plant’s construction, which may or may not have
occurred without it. But such a link is, again, too tenuous to
give the Schauers a legal interest in the annexation. Moreover,
as already mentioned, the financing contract is not in issue in
this case, but is conclusively presumed to be in accordance
with redevelopment laws.
Challenges to rezoning and to redevelopment plans and
agreements are distinct from challenges to set aside an annexa-
tion. Standing to contest the former is unrelated to standing to
contest the latter.29 Under our common-law principles of stand-
ing for challenges to annexations, we conclude that we have no
jurisdiction over the Schauers’ claims described in their first
cause of action.
28 See, Whitehead Oil Co. v. City of Lincoln, 234 Neb. 527, 451 N.W.2d
702 (1990); City of Omaha v. Glissmann, 151 Neb. 895, 39 N.W.2d 828
(1949).
29 See Town of Berthoud v. Town of Johnstown, 983 p.2d 174 (Colo. App.
1999). See, also, Smith v. City of Papillion, supra note 13.
440 	280 NeBrASkA repOrTS

(b) Second Cause of Action:
Open Meetings Act
But, in their second cause of action, the Schauers allege that
the Legislature has conferred standing upon them regardless
of whether they can allege a particularized injury as a direct
result of the annexation. We agree that the Open Meetings Act
confers standing for the very limited purpose of challenging
meetings allegedly in violation of the act.
Section 84-1414(3) of the Open Meetings Act states:
Any citizen of this state may commence a suit . . . for the
purpose of requiring compliance with or preventing viola-
tions of the Open Meetings Act, for the purpose of declar-
ing an action of a public body void, or for the purpose of
determining the applicability of the act to discussions or
decisions of the public body.
(emphasis supplied.) Section 84-1414 does not exclude chal-
lenges under the Open Meetings Act when the ultimate result
of the meetings is an annexation, as opposed to anything else;
none of the cases discussed above involved challenges under
the Open Meetings Act.30
[11] Furthermore, we have explained that the open meet-
ings laws should be broadly interpreted and liberally construed
to obtain their objective of openness in favor of the public.31
Through the Open Meetings Act, the Legislature has granted
standing to a broad scope of its citizens who would lack the
pecuniary interest necessary under common law, so that they
may help police the public policy embodied by the act.32 As
the Nebraska Court of Appeals has explained, the electors of
the township where the meetings are held may not be the only
30 See City of Elkhorn v. City of Omaha, supra note 9.
31 State ex rel. Newman v. Columbus Township Bd., 15 Neb. App. 656, 735
N.W.2d 399 (2007).
32 See, e.g., Cournoyer v. Montana, 512 N.W.2d 479 (S.D. 1994); Pueblo
School Dist. v. High School Act, 30 p.3d 752 (Colo. App. 2000); Mayhew
v. Wilder, 46 S.W.3d 760 (Tenn. App. 2001); Highsmith v. Clark, 245
Ga. 158, 264 S.e.2d 1 (1980); Society of Plastics Ind. v. Suffolk Cty., 77
N.Y.2d 761, 573 N.e.2d 1034, 570 N.Y.S.2d 778 (1991); Sloan v. Friends
of Hunley, Inc., 369 S.C. 20, 630 S.e.2d 474 (2006).
SCHAUer v. GrOOMS 	441
Cite as 280 Neb. 426

“‘persons who are interested’” in the township’s actions to be
considered during the meeting.33 rather, the act clearly con-
templates that “citizens,” as well as members of the general
public and reporters or other representatives of news media, are
the intended beneficiaries of the openness sought by the act.34
Having determined that they have standing, we turn now to the
merits of the Schauers’ Open Meetings Act claims.
2. meetinGS
[12] Through the Open Meetings Act, the Legislature has
declared that “the formation of public policy is public business
and may not be conducted in secret.”35 The intent of the Open
Meetings Act is thus to ensure that the formation of public
policy is public business, not conducted in secret, and to allow
citizens to exercise their democratic privilege of attending and
speaking at meetings of public bodies.36
(a) Officially recognized Meetings
[13] An integral part of a meeting which is “open to the
public”37 is that the public be adequately notified of when and
where the meeting will take place. Section 84-1411 of the
Open Meetings Act governs the required notice and states in
relevant part:
(1) each public body shall give reasonable advance
publicized notice of the time and place of each meet-
ing by a method designated by each public body and
recorded in its minutes. Such notice shall be transmitted
to all members of the public body and to the public.
Such notice shall contain an agenda of subjects known
at the time of the publicized notice or a statement that
the agenda, which shall be kept continually current,
shall be readily available for public inspection at the
33 State ex rel. Newman v. Columbus Township Bd., supra note 31, 15 Neb.
App. at 663, 735 N.W.2d at 406.
34 Id.
35 § 84-1408.
36 See Alderman v. County of Antelope, supra note 6.
37 § 84-1408.
442 	280 NeBrASkA repOrTS

principal office of the public body during normal busi-
ness hours.
We have explained that the purpose of the agenda requirement
of the public meetings laws is to give “some notice of the
matter[s] to be considered at the meeting so that persons who
are interested will know which matters will be for consider-
ation at the meeting.”38
The Schauers make no claim that any of the notices for the
meetings leading up to the annexation were untimely or that
they failed to specify where a meeting would be held. In fact,
we cannot fully discern from the Schauers’ briefs and the pro-
ceedings below exactly which meetings and in what manner
the Schauers believe the various bodies of the City violated
the Open Meetings Act. We have reviewed all of the meetings
relevant to this case and find no violations of the act. But we
discuss in more detail those meetings and gatherings for which
the Schauers clearly articulate a challenge.
The Schauers first suggest that describing the land in the
published notices as being “within the city,” when actually it
was not, was misleading.39 We agree with the district court that
the accompanying map and statement that the land was 41⁄2
miles from the City’s boundaries was sufficient to give reason-
able notice to the public of which matters were to be under
consideration at the meeting.
The Schauers also claim that the City somehow violated the
Open Meetings Act, because the designated method of notice
was not formally set forth in the minutes as such. We find no
merit to this contention, derived from the statutory language set
forth in § 84-1411 that the notice be “by a method designated
by each public body and recorded in its minutes.” The city
clerk testified that she was able to discern, through the minutes
of past meetings, a customary and consistent method of notify-
ing the public.
Finally, the Schauers assert that the publications and post-
ings—in public places within the City—were not likely to
38 Pokorny v. City of Schuyler, 202 Neb. 334, 339-40, 275 N.W.2d 281, 285
(1979).
39 Brief for appellants at 22.
SCHAUer v. GrOOMS 	443
Cite as 280 Neb. 426

be seen by “the rural persons who would truly be affected by
the redevelopment project and annexation.”40 We reject the
Schauers’ underlying premise that the citizens of the City are
not the ones “truly . . . affected” by the annexation of this new
territory within the City’s boundaries and the resulting TIF
indebtedness incurred by the City. But, regardless, we find the
places of posting, combined with the publication of several
key meetings in the local newspaper, were reasonable under
the circumstances.
In summary, we reject any contention that the City failed
to give proper notice or leave open for the public its official
meetings leading up to and concerning the annexation of
redevelopment Area #3. The Schauers’ main concern in this
appeal, however, is with the presence of the City’s officials at
events the officials did not consider “meetings” at all.
(b) Tour/Dinner
The Schauers’ principal concern under the Open Meetings
Act is with the June 1, 2005, tour of the kindred ethanol facil-
ity and the dinner following the tour. It appears that there was
no public notice of this tour/dinner because the City did not
think it was a “meeting” governed by the act.
Section 84-1409(2) defines meetings as “all regular, special,
or called meetings, formal or informal, of any public body for
the purposes of briefing, discussion of public business, forma-
tion of tentative policy, or the taking of any action of the pub-
lic body.” Section 84-1410(4) states further that “[n]o closed
session, informal meeting, chance meeting, social gathering,
email, fax, or other electronic communication shall be used for
the purpose of circumventing the requirements of the [Open
Meetings A]ct.” However, § 84-1410(5) states:
The act does not apply to chance meetings or to attend-
ance at or travel to conventions or workshops of members
of a public body at which there is no meeting of the
body then intentionally convened, if there is no vote or
other action taken regarding any matter over which the
40 Brief for appellants at 42.
444 	280 NeBrASkA repOrTS

public body has supervision, control, jurisdiction, or advi-
sory power.
In City of Elkhorn v. City of Omaha,41 we explained that the
requirement of the Open Meetings Act is that “‘[e]very meet-
ing of a public body shall be open to the public . . . .’”42 Thus,
informational sessions attended by a subgroup of the city coun-
cil, consisting of less than a quorum which, accordingly, had
no power to make any determination or effect any action, were
not meetings of a “public body” under the act.43 We noted that
the act defines “public body” so as to exclude “subcommittees
of such bodies unless a quorum of the public body attends a
subcommittee meeting or unless such subcommittees are hold-
ing hearings, making policy, or taking formal action on behalf
of their parent body.”44 And “if the [Open Meetings] Act does
not apply to a subcommittee, it would also not apply to an even
lesser subgroup.”45
[14] We explained that the Open Meetings Act does not
require policymakers to remain ignorant of the issues they
must decide until the moment the public is invited to com-
ment on a proposed policy.46 “The public would be ill served
by restricting policymakers from reflecting and preparing to
consider proposals, or from privately suggesting alternatives.”47
We concluded that by excluding nonquorum subgroups from
the definition of a public body, the Legislature had balanced
the public’s need to be heard on matters of public policy with a
practical accommodation for a public body’s need for informa-
tion to conduct business.48
41 City of Elkhorn v. City of Omaha, supra note 9.
42 Id. at 880, 725 N.W.2d at 805. See, also, § 84-1408 (emphasis supplied).
43 § 84-1409.
44 § 84-1409(1)(b)(i).
45 City of Elkhorn v. City of Omaha, supra note 9, 272 Neb. at 881, 725
N.W.2d at 805.
46 See id.
47 Id. at 881, 725 N.W.2d at 806.
48 Id.
SCHAUer v. GrOOMS 	445
Cite as 280 Neb. 426

During the tour of the ethanol facility, there was never
a group of more than two city council members. Thus, we
conclude that, as in City of Elkhorn, there was no meeting of
a public body. As in City of Elkhorn, the small groups were
merely acquiring information—information that was amply
commented upon by the public in subsequent meetings of a
quorum of the city council and which, moreover, there is no
reason to believe the public did not have access to. We see no
special benefit derived from passively touring an ethanol facil-
ity at the same time as the city council members.
Nor is there evidence, as the Schauers suggest, that sepa-
rating the groups into less than a quorum for the tour was
somehow a “‘walking quorum[]’”49 designed to circumvent the
requirements of the Open Meetings Act. There is simply no
evidence that, through the tour, the city council was attempting
to reach a consensus and form public policy in secret.
[15] With regard to the dinner, there were three city council
members and the mayor eating at the same restaurant. The pres-
ence of the mayor is inconsequential, because the fact that a
statute gives a certain official the right to cast the deciding vote
in case of a tie in a governmental body does not, of itself, make
that official a member of that body for the purposes of ascer-
taining a quorum or majority, or for any other purpose.50 But
the Schauers argue that city council member koehlmoos was
disqualified, as opposed to merely abstaining from voting, and
that therefore, he should not be counted in determining whether
there was a quorum present at the dinner.51 Accordingly, the
three members present at the dinner constituted a quorum and
a “public body.”
The Schauers are incorrect in their somewhat bald asser-
tion that city council member koehlmoos was disqualified.
The only evidence in the record as concerns koehlmoos’
decision to abstain from voting on the annexation was that he
served on the Valley County economic Development Board.
49 Brief for appellants at 41.
50 See 59 Am. Jur. 2d Parliamentary Law § 9 (2002).
51 See id.
446 	280 NeBrASkA repOrTS

The Schauers assert that we should infer that koehlmoos was
“working with” Val-e “in promoting the ethanol plant to the
City.”52 even if true, there is no evidence that this alleged pro-
motion of the facility was for anything other than the benefit of
Valley County residents. There is no evidence that koehlmoos
had either a personal interest affecting his partiality or a per-
sonal, financial gain at stake.53 The Schauers make no argu-
ment as to how koehlmoos’ favoring of the ethanol project
made him unable to be a fair arbiter of the City’s interests. In
fact, the Schauers make no argument that the annexation of
redevelopment Area #3 was anything other than beneficial to
the City.
Furthermore, the Schauers were unable to present any evi-
dence that the dinner was “for the purposes of briefing, discus-
sion of public business, formation of tentative policy, or the
taking of any action of the public body.”54 rather, the attend-
ing city council members and the mayor specifically testified
that at the dinner, they did not discuss or receive information
associated with the redevelopment plan and contract and that
they did not hold any hearing, make policy, or take any formal
action on behalf of the city council.
[16] As indicated by City of Elkhorn,55 the secret formation
of policy prohibited by the Open Meetings Act refers to the
formation of such policy as a group. This implies some com-
munication between a meaningful number of its members, from
which the public has been excluded. If there is no meeting of a
public body when less than a quorum convenes and discusses
an issue, there is likewise no meeting of a public body when,
although there is a quorum present, there is no interaction as
to the policy in question. There is no meeting of a public body
52 Brief for appellants at 41.
53 See, generally, Annot., 4 A.L.r.6th 263 (2005 & Supp. 2010); 83 Am. Jur.
2d Zoning and Planning § 731 (2003 & Cum. Supp. 2010); 56 Am. Jur. 2d
Municipal Corporations, Etc. § 126 (2000).
54 See § 84-1409(2).
55 City of Elkhorn v. City of Omaha, supra note 9.
SCHAUer v. GrOOMS 	447
Cite as 280 Neb. 426

based upon unspoken thoughts of council members who hap-
pen to be sitting in the same room.56
A similar case to the one at hand was presented in Harris v.
Nordquist.57 There, the court held that gatherings of a quorum
of the school board at various restaurants, sometimes after
official meetings, were not “meetings” under open meetings
law, and the trial court was correct in granting summary judg-
ment in favor of the board. The court explained that the only
evidence presented was that the board did not meet for the
purpose of deciding on or deliberating toward a decision on
any matter and, furthermore, that the board did not discuss or
deliberate about board business at the gatherings.
Likewise, in Board of Com’rs v. Costilla Conservancy,58 the
court held that the plaintiffs had failed to demonstrate the req-
uisite link between the policymaking function of the board and
the attendance of certain members at an informational meeting
held at a restaurant. The meeting was organized by two state
government departments and a private mine to report about the
mine’s efforts to comply with pollution regulations. Although
the plaintiffs argued that the lack of detailed information on
what occurred at the gathering should not be held against the
people, the council members testified that they did nothing
other than listen passively to a highly technical presentation,
eat dinner, and leave.
The court in Costilla Conservancy explained that the public
meetings law was not so broad and sweeping as to require
public access to any gathering of any sort that is attended
by a quorum of a local public body.59 Such a position, the
court explained, would make an already broad statute virtu-
ally limitless. Instead, the transparency required by the law
pertained only to those gatherings in which the public could
legitimately take part in or gain insight into the policymaking
56 See, generally, Harris v. Nordquist, 96 Or. App. 19, 771 p.2d 637 (1989).
See, also, Kessel v. D’Amato, 97 Misc. 2d 675, 412 N.Y.S.2d 303 (1979);
Board of Com’rs v. Costilla Conservancy, 88 p.3d 1188 (Colo. 2004).
57 Harris v. Nordquist, supra note 56.
58 Board of Com’rs v. Costilla Conservancy, supra note 56.
59 Id.
448 	280 NeBrASkA repOrTS

process.60 There was simply no evidence that the gatherings
in question involved a policymaking function, and thus, the
board was entitled to summary judgment.
[17,18] While the Schauers argue that it can be “inferred”61
that a public meeting occurred, the defendants presented to the
court evidence that there was no formation of public policy at
the gathering, and the Schauers failed to present any evidence
showing otherwise. A prima facie case for summary judgment
is shown by producing enough evidence to demonstrate that
the movant is entitled to a judgment in its favor if the evidence
were uncontroverted at trial.62 After the movant for summary
judgment makes a prima facie case by producing enough evi-
dence to demonstrate that the movant is entitled to judgment if
the evidence was uncontroverted at trial, the burden to produce
evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party oppos-
ing the motion.63 The district court properly concluded on sum-
mary judgment that the tour/dinner was not a meeting under
the Open Meetings Act.
(c) Announcement Ceremony
Based on our discussion concerning the tour/dinner, it
should be apparent that the passive attendance of several offi-
cials at the May 17, 2005, announcement ceremony likewise
did not violate the Open Meetings Act. But, in any event, the
announcement ceremony was not placed in issue below, and it
is thus not properly before us on appeal.64 The Schauers allege
no other secret meetings in violation of the act.
VI. CONCLUSION
The Schauers lack standing to assert the claims made in their
first cause of action, and they failed to raise any material issue
60 Id.
61 Brief for appellants at 36.
62 Corona de Camargo v. Schon, 278 Neb. 1045, 776 N.W.2d 1 (2009).
63 Id.
64 See, e.g., Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 47
(2010).
SCHAUer v. GrOOMS 	449
Cite as 280 Neb. 426

of fact in their second cause of action. We affirm the court’s
judgment in favor of the defendants in this suit to set aside the
annexation of redevelopment Area #3 by the City.
affirmed.
viviKa a. deviney, appellant, v. union paCifiC
railroad C ompany, a delaWare
Corporation, appellee .
786 N.W.2d 902
Filed August 6, 2010. 	No. S-08-1259.
1. Summary Judgment. A court should grant summary judgment when the plead-
ings and evidence admitted show that no genuine issue exists regarding any mate-
rial fact or the ultimate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Negligence. Foreseeable risk is an element in the determination of negligence,
not legal duty. In order to determine whether appropriate care was exercised, the
fact finder must assess the foreseeable risk at the time of the defendant’s alleged
negligence. The extent of the foreseeable risk depends on the specific facts of the
case and cannot be usefully assessed for a category of cases; small changes in the
facts may make a dramatic change in how much risk is foreseeable.
4. Federal Acts: Railroads: Liability: Negligence: Damages. Under the Federal
employers’ Liability Act, railroad companies are liable in damages to any
employee who suffers injury during the course of employment when such injury
results in whole or in part due to the railroad’s negligence.
5. Federal Acts: Railroads: Employer and Employee. The Federal employers’
Liability Act requires that a railroad provide its employees with a reasonably
safe workplace.
6. Negligence: Damages: Proximate Cause. In order to prevail in a negligence
action, there must be a legal duty on the part of the defendant to protect the plain-
tiff from injury, a failure to discharge that duty, and damage proximately caused
by the failure to discharge that duty.
7. Negligence: Proximate Cause. Foreseeability in the context of proximate cause
relates to the question of whether the specific act or omission of the defendant
was such that the ultimate injury to the plaintiff reasonably flowed from the
defendant’s breach of duty.
8. Animals: Liability. The doctrine of ferae naturae essentially provides that a
landowner cannot be held liable for the actions of dangerous animals on his or
450 	280 NeBrASkA repOrTS