Dowd Grain Co. v. County of Sarpy

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291 Nebraska reports
DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
D owD G raiN C ompaNy, iNC., a Nebraska CorporatioN,
appellaNt, v. C ouNty of sarpy, a Corporate
boDy politiC, appellee .
867 N.W.2d 599
Filed August 14, 2015. 	No. S-14-611.
1. Constitutional Law: Ordinances. The constitutionality of an ordinance
presents a question of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. Zoning: Ordinances: Presumptions: Proof. The validity of a zoning
ordinance will be presumed in the absence of clear and satisfactory evi-
dence to the contrary.
4. Constitutional Law: Zoning: Ordinances: Proof. The burden of dem-
onstrating a constitutional defect in a zoning ordinance rests with the
challenger.
5. Municipal Corporations: Zoning: Ordinances: Proof. To successfully
challenge the validity of a zoning ordinance, the party challenging must
prove that the conditions imposed by the city in adopting the zoning
ordinance were unreasonable, discriminatory, or arbitrary, and that the
regulation bears no relationship to the purpose sought to be accom-
plished by the ordinance.
6. Zoning: Legislature. Where the validity of the legislative classification
for zoning purposes is fairly debatable, the legislative judgment must be
allowed to control.
7. Special Legislation. The focus of the prohibition against special legisla-
tion is the prevention of legislation which arbitrarily benefits or grants
special favors to a specific class. A legislative act constitutes special
legislation if it either (1) creates an arbitrary and unreasonable method
of classification or (2) creates a permanently closed class.
8. ____. A special legislation analysis focuses on a legislative body’s
purpose in creating a challenged class and asks if there is a substan-
tial difference of circumstances to suggest the expediency of diverse
legislation.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:30 AM CST

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291 Nebraska reports
DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
9. Constitutional 	Law: 	Statutes: 	Special 	Legislation. 	When 	the
Legislature confers privileges on a class arbitrarily selected from many
who are standing in the same relation to the privileges, without reason-
able distinction or substantial difference, then the statute in question
has resulted in the kind of improper discrimination prohibited by the
Nebraska Constitution.
10. Special Legislation: Public Policy. To be valid, a legislative classifica-
tion must rest upon some reason of public policy, some substantial dif-
ference in circumstances, which would naturally suggest the justice or
expediency of diverse legislation regarding the objects to be classified.
11. Special Legislation. The Legislature has the power to enact special
legislation where the subject or matters sought to be remedied could not
be properly remedied by a general law and where the Legislature has a
reasonable basis for the enactment of the law.
12. ____. Legislative classifications must be real and not illusive; they can-
not be based on distinctions without a substantial difference. The dis-
tinctive treatment must bear some reasonable relation to the legitimate
objectives and purposes of the legislative act. The question is always
whether the things or persons classified by the act form by themselves a
proper and legitimate class concerning the purpose of the act.
13. Special Legislation: Words and Phrases. A closed class is one that
limits application of the law to a present condition, and leaves no room
or opportunity for an increase in the numbers of the class by future
growth or development.
14. Special Legislation. Generally, a class of property owners in a certain
geographic area cannot form a closed class.
15. Statutes: Special Legislation. In determining whether a statute legiti-
mately classifies, a court must consider the actual probability that others
will come under the act’s operation. If the prospect is merely theoretical,
and not probable, the act is special legislation.
Appeal from the District Court for Sarpy County: DaviD k.
arterburN, Judge. Affirmed.
Terry J. Grennan, of Cassem, Tierney, Adams, Gotch &
Douglas, and Duane J. Dowd for appellant.
L. Kenneth Polikov, Sarpy County Attorney, and Michael A.
Smith for appellee.
H eaviCaN, C.J., C oNNolly, stepHaN, miller-lermaN, and
Cassel , JJ.

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291 Nebraska reports
DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
Cassel , J.
I. INTRODUCTION
The County of Sarpy revised an overlay zoning ordinance
to exempt properties platted before the effective date of the
original ordinance. An owner of nonexempt property sought a
judgment declaring the exemption unconstitutional as special
legislation. The owner now appeals from a judgment for the
county. Because the exemption did not create a closed class
and its application was not arbitrary or unreasonable, we affirm
the judgment.
II. BACKGROUND
1. marCH 9, 2004, orDiNaNCe
On March 9, 2004, the Sarpy County Board of Commissioners
supplemented the Sarpy County zoning ordinances by adopting
an overlay district zoning ordinance (overlay ordinance). In
effect, the overlay ordinance imposed additional regulations on
land along a specified road corridor. These regulations included
design guidelines.
The original overlay ordinance applied only to future devel-
opments. It stated that “[t]he design guidelines are applicable
for new development proposals within the area of application
including plats, zoning changes or site plan review.”
The Nebraska Court of Appeals considered a challenge
to the applicability of the original overlay ordinance.1 The
court held that building permits constituted “‘new develop-
ment proposals’”2 under the plain language of the ordinance.
The court further reasoned that an administrative replat and
a site development plan filed after March 9, 2004, were new
development proposals to which the design guidelines applied.
1 See Dowd Grain Co. v. County of Sarpy Bd. of Adj., No. A-06-681, 2008
WL 2511150 (Neb. App. June 24, 2008) (selected for posting to court
Web site).
2 Id. at *4.

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DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
2. 2007 revisioN
In May 2007, the Sarpy County Board of Commissioners
adopted a resolution amending the overlay ordinance. The
revised ordinance contained a subsection designated “33.3
Project Application and Exceptions” (exemption), which stated
that the overlay ordinance applied, in part, to the following:
33.3.1 Any new development requiring a building
permit built on land within the boundaries of the HC
Highway Corridor Overlay District after the effective date
of this Ordinance, except any land that was platted prior
to March 9, 2004; provided however, that land within the
boundaries of the HC Highway Corridor Overlay District
that was zoned other than agricultural prior to March 9,
2004[,] that was part of a Phased Development shall also
be excepted.
(a) Replats, lot line adjustments, and lot consolidations
of such platted properties shall remain excepted.
(b) Phased Developments shall m[e]an property that
was, at a minimum, preliminary platted and at least a
part of the property within the preliminary plat was
final platted.
Thus, under the exemption, any land platted prior to March 9,
2004, did not have to comply with the design guidelines con-
tained in the overlay ordinance.
3. pleaDiNGs
Dowd Grain Company, Inc. (Dowd Grain), brought a declar-
atory judgment action against the county, claiming that the
exemption was unconstitutional. Dowd Grain alleged that it
owned real property subject to the overlay ordinance but not
qualifying for the exemption. It claimed that its property was
similarly situated to the exempted property. And it asserted
that the exemption created special privileges and immunities in
favor of the class of real property exempted from enforcement
of the overlay ordinance, in violation of Neb. Const. art. III,
§ 18. Dowd Grain sought a declaration that the exemption
was unconstitutional.

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DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
The county filed a responsive pleading. It alleged that the
property exempted from the overlay ordinance formed a legiti-
mate class. The exemption, it claimed, served a legitimate
governmental purpose. This purpose was to “protect[] from
harm property owners who have substantially changed posi-
tion in good-faith reliance upon existing zoning by incurring
substantial expenses related to construction and by incurring
financial obligations to third parties.”
4. eviDeNCe at trial
Several matters were undisputed at trial:
• Properties located within the overlay district that were not
platted prior to March 9, 2004, could not be added to the
class created by the exemption.
• The exemption’s language prevented expansion of the exempt
geographic area.
• Dowd Grain spent over $500,000 grading and preparing its
property for development.
Other evidence focused on the effect of failing to exempt
properties 	already 	under 	development. 	The 	district 	court
received into evidence a partial transcript of a May 8, 2007,
meeting of the county’s board of commissioners. This meet-
ing addressed the then-proposed amendments to the over-
lay ordinance.
At this meeting, several business representatives testified
regarding the potential adverse effects. One representative
stated that the proposed amendment to the overlay ordinance
was consistent with the representations made to and relied
upon by that business. An attorney for a different business
stated that imposition of restrictions on land that had been
purchased and planned for a number of years would under-
mine the business’ ability to grow as it intended. And an attor-
ney speaking on behalf of a partnership that was currently in
the process of building in the affected area testified that the
partnership would suffer damages if the county board voted
against the “grandfathering clause.” The attorney explained
that the partnership had already laid the footings for its

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DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
building and placed steel framework and that if the grand-
fathering language was stricken, the partnership would have to
redo that work at a cost of about $1 million.
5. D istriCt C ourt’s JuDGmeNt
The district court entered judgment in favor of the county.
Although other legal issues were raised before the district
court, Dowd Grain assigns error only to the court’s determina-
tion regarding its special legislation claim.
In determining whether the exemption constituted special
legislation, the court first considered whether the ordinance
created a closed class. The court noted that any replats would
change the number of parcels and that any class consisting
of property owners in a given area is subject to constant
change. The court concluded that the exemption did not cre-
ate a closed class, reasoning that “[a]lthough . . . the geo-
graphic area is restricted, [the court] cannot find that the
class is closed as to the number of parcels or the ownership
of the property.”
The district court further reasoned that even if a closed class
were created, there was a reasonable basis for the exemption.
The court observed that the county board heard testimony
about the harsh effects that the adoption of the overlay ordi-
nance without an exemption would have on certain property
owners. The court stated:
It is clear to this Court that certain property owners
within the overlay district relied in good faith on the
validity of the exemptions contained in the Ordinance
when they made substantial investments in developing
their property prior to the Amendment, and were properly
exempted from the retroactive effects of the Amendment
according to the purposes of the Overlay Ordinance.
The court determined that treating similarly situated property
differently was permissible in this case:
The separate treatment of property owners who had plat-
ted prior to March 9, 2004, is proper because they are
distinct from property owners who have yet to make

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DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
improvements on their land. This distinction bears a rea-
sonable relation to the legitimate purposes of the Overlay
Ordinance without penalizing those entities who took
action in reliance on previous regulations.
Dowd Grain timely appealed. We moved the case to our
docket under our statutory authority to regulate the caseloads
of the appellate courts of this state.3
III. ASSIGNMENT OF ERROR
Dowd Grain assigns six errors which can be condensed into
one: The district court erred in failing to find that the exemp-
tion was special legislation.
IV. STANDARD OF REVIEW
[1,2] The constitutionality of an ordinance presents a ques-
tion of law.4 An appellate court independently reviews ques-
tions of law decided by a lower court.5
V. ANALYSIS
1. G overNiNG priNCiples
(a) Validity of Zoning Ordinance
[3-6] The validity of a zoning ordinance will be presumed
in the absence of clear and satisfactory evidence to the con-
trary.6 The burden of demonstrating a constitutional defect in
a zoning ordinance rests with the challenger.7 To successfully
challenge the validity of a zoning ordinance, the party chal-
lenging must prove that the conditions imposed by the city in
adopting the zoning ordinance were unreasonable, discrimina-
tory, or arbitrary, and that the regulation bears no relationship
to the purpose sought to be accomplished by the ordinance.8
3 Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
4 D-CO, Inc. v. City of La Vista, 285 Neb. 676, 829 N.W.2d 105 (2013).
5 Id.
6 Coffey v. County of Otoe, 274 Neb. 796, 743 N.W.2d 632 (2008).
7 See id.
8 Id.

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DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
Where the validity of the legislative classification for zoning
purposes is fairly debatable, the legislative judgment must be
allowed to control.9 These same principles apply when a party
challenges the validity of a zoning ordinance on the basis of
special legislation.10
(b) Special Legislation
Neb. Const. art. III, §18, provides in pertinent part that
“[t]he Legislature shall not pass local or special laws” which
grant “any special or exclusive privileges, immunity, or fran-
chise whatever” and that “[i]n all other cases where a general
law can be made applicable, no special law shall be enacted.”
The special legislation prohibition also applies to municipal
ordinances.11 And a zoning ordinance is a type of munici-
pal ordinance.12
[7] The focus of the prohibition against special legislation
is the prevention of legislation which arbitrarily benefits or
grants special favors to a specific class.13 A legislative act con-
stitutes special legislation if it either (1) creates an arbitrary
and unreasonable method of classification or (2) creates a per-
manently closed class.14
[8-11] A special legislation analysis focuses on a legisla-
tive body’s purpose in creating a challenged class and asks if
there is a substantial difference of circumstances to suggest
the expediency of diverse legislation.15 When the Legislature
confers privileges on a class arbitrarily selected from many
who are standing in the same relation to the privileges,
9 Giger v. City of Omaha, 232 Neb. 676, 442 N.W.2d 182 (1989).
10 See Appeal of Apgar From Bd. of Manheim Tp., 661 A.2d 445 (Pa.
Commw. 1995).
11 D-CO, Inc. v. City of La Vista, supra note 4.
12 See, generally, Black’s Law Dictionary 1857 (10th ed. 2014) (defining
“zoning ordinance”).
13 Banks v. Heineman, 286 Neb. 390, 837 N.W.2d 70 (2013).
14 Id.
15 J.M. v. Hobbs, 288 Neb. 546, 849 N.W.2d 480 (2014).

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DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
without reasonable distinction or substantial difference, then
the statute in question has resulted in the kind of improper
discrimination prohibited by the Nebraska Constitution.16 To
be valid, a legislative classification must rest upon some
reason of public policy, some substantial difference in cir-
cumstances, which would naturally suggest the justice or
expediency of diverse legislation regarding the objects to
be classified.17 Thus, the Legislature has the power to enact
special legislation where the subject or matters sought to be
remedied could not be properly remedied by a general law
and where the Legislature has a reasonable basis for the
enactment of the law.18
[12] Legislative classifications must be real and not illu-
sive; they cannot be based on distinctions without a substan-
tial difference.19 The distinctive treatment must bear some
reasonable relation to the legitimate objectives and purposes
of the legislative act.20 The question is always whether the
things or persons classified by the act form by themselves
a proper and legitimate class concerning the purpose of
the act.21
2. wHetHer exemptioN is
speCial leGislatioN
(a) Whether Exemption
Created Closed Class
[13] In considering whether the exemption in the revised
ordinance is special legislation, we first consider whether it
created a closed class. A closed class is one that limits appli-
cation of the law to a present condition, and leaves no room
16 Id.
17 Id.
18 Banks v. Heineman, supra note 13.
19 J.M. v. Hobbs, supra note 15.
20 Id.
21 Id.

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DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
or opportunity for an increase in the numbers of the class by
future growth or development.22 The district court concluded
that the exemption did not create a closed class. We agree.
The exemption, approved in 2007, excepted property platted
prior to March 9, 2004—the date of adoption of the overlay
ordinance—from certain of the overlay ordinance’s provisions.
Dowd Grain argues that the exemption created a permanently
closed class. There is no dispute that Dowd Grain’s property
cannot be added to the class created by the exemption. Nor is
there a dispute that the exemption prevented expansion of the
geographic area that is exempt from the overlay ordinance.
But that does not necessarily mean that the exemption created
a closed class.
[14] Generally, a class of property owners in a certain
geographic area cannot form a closed class. We previously
determined that a class consisting of Nebraska property owners
who possessed irrigated property not located within the Upper,
Middle, and Lower Republican Natural Resources Districts
and who were exempt from an occupation tax under a particu-
lar statute was not a closed class.23 We reasoned that because
real property is alienable, the composition of any class con-
sisting of owners of property in a certain area is subject to
constant change.24
[15] We agree with the district court that the exemption
did not create a closed class. The number of parcels within
the fixed geographic area is subject to change. And, as in
Kiplinger v. Nebraska Dept. of Nat. Resources,25 the own-
ers composing the class can change via a sale of the real
property. We are cognizant that in determining whether a
statute legitimately classifies, we must consider the actual
22 Banks v. Heineman, supra note 13.
23 See Kiplinger v. Nebraska Dept. of Nat. Resources, 282 Neb. 237, 803
N.W.2d 28 (2011), disapproved on other grounds, Banks v. Heineman,
supra note 13.
24 See id.
25 Id.

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DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
probability that others will come under the act’s operation; if
the prospect is merely theoretical, and not probable, the act
is special legislation.26 The future transfer of property within
the exemption’s geographic area is certainly probable. Thus,
the class is not closed.
(b) Whether Exemption Created
Arbitrary and Unreasonable
Method of Classification
The next question is whether the class benefited by the
exemption was arbitrarily selected. The district court concluded
that the exemption in the revised ordinance was not special
legislation because there was a reasonable basis for the exemp-
tion. Again, we agree.
The prohibition against special legislation aims to prevent
arbitrary classifications that favor select persons or objects
while excluding others that are not substantially different in
circumstance in relation to the legislation’s purpose.27 The
legislative classification must (1) be based on some substantial
difference of circumstances or situation that would indicate the
justice or expediency of diverse legislation with regard to the
objects classified and (2) further a public purpose.28
The evidence established substantial differences between
those exempted and those who were not. Only those property
owners who filed a plat prior to enactment of the overlay
ordinance were exempt. The submission of a plat application
requires the employment of an engineer, a surveyor, and pos-
sibly other professionals. It requires provisions for grading
of the property, paving of streets, and the building of storm
sewers and water mains. And any easements for utilities must
be documented. Thus, the submission of a plat application
entails significant expense and planning. To then “change
the rules” and subject those property owners to the design
26 See id.
27 See J.M. v. Hobbs, supra note 15.
28 City of Ralston v. Balka, 247 Neb. 773, 530 N.W.2d 594 (1995).

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DOWD GRAIN CO. v. COUNTY OF SARPY
Cite as 291 Neb. 620
requirements contained in the overlay ordinance after they
had already submitted a plat based on the absence of those
design requirements would be harsh and unfair.
We recognize that other property owners within the overlay
district, such as Dowd Grain, may have similarly expended
substantial funds and engaged in detailed planning. But lim-
iting the exemption to those property owners who had com-
pleted the process of actually submitting a plat is a reasonable
distinction. While the solution chosen by the county may not
be perfect, perfection is not required. As we noted above,
where the validity of the legislative classification for zoning
purposes is fairly debatable, the legislative judgment must be
allowed to control.29 We conclude that the exemption contained
within the revised ordinance is not unconstitutional.
VI. CONCLUSION
We conclude that the exemption did not create a closed
class, because the number of parcels within the specified geo-
graphic area and the owners of the real property are subject
to change in the future. We further conclude that there was
a reasonable basis for exempting from enforcement of the
overlay ordinance those property owners who had submitted a
plat for their property prior to enactment of the overlay ordi-
nance, because those property owners were in a substantially
different situation from property owners who had not yet com-
pleted a plat for their property. Because the exemption was
not unconstitutional special legislation, we affirm the district
court’s judgment.
affirmeD.
mCC ormaCk, J., participating on briefs.
wriGHt, J., not participating.
29 Giger v. City of Omaha, supra note 9.