Main St Properties v. City of Bellevue

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
Main St Properties LLC, appellant, v.
City of Bellevue, Nebraska, appellee.
___ N.W.3d ___
Filed December 6, 2024. 	Nos. S-23-940, S-23-951.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor.
3. ____: ____. An appellate court will affirm a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show that there is
no genuine issue as to any material facts or as to the ultimate inferences
that may be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
5. ____: ____. Where a lower court lacks subject matter jurisdiction to
adjudicate the merits of a claim, issue, or question, an appellate court
also lacks the power to determine the merits of the claim, issue, or ques-
tion presented to the lower court.
6. Administrative Law: Jurisdiction: Appeal and Error. Petition-in-
error jurisdiction is limited by statute to a review of a judgment rendered
or final order made by any tribunal, board, or officer exercising judicial
functions and inferior in jurisdiction to the district court.
7. Municipal Corporations: Appeal and Error. When an entity such as
a city council is exercising its judicial functions, the petition in error
statute is the proper method for challenging such actions.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:19 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
8. Administrative Law: Words and Phrases: Appeal and Error. A
board or tribunal exercises a judicial function if it decides a dispute of
adjudicative fact or if a statute requires it to act in a judicial manner.
But where a board or tribunal decides no question of adjudicative fact
and no statute requires it to act in a judicial manner, the orders are not
“judicial” and are not reviewable by error proceedings.
9. Evidence: Proof: Words and Phrases. Adjudicative facts are facts
which relate to a specific party and are adduced from formal proof.
Adjudicative facts pertain to questions of who did what, where, when,
how, why, and with what motive or intent. They are roughly the kind of
facts which would go to a jury in a jury case.
10. Administrative Law: Appeal and Error. Whether a board or tribunal
is required to conduct a hearing and receive evidence may be considered
in determining whether the inferior board or tribunal exercised judicial
functions.
11. Municipal Corporations: Ordinances: Zoning. A zoning ordinance
constitutes the exercise of a governmental and legislative function, and
a city council adopting a rezoning ordinance which amends a general
zoning ordinance acts in a legislative capacity.
12. Municipal Corporations: Actions: Appeal and Error. An appeal or
error proceeding does not lie from a purely legislative act by a public
body to which legislative power has been delegated, and the only rem-
edy in such cases is by collateral attack, that is, by injunction or other
suitable action.
13. Judgments: Jurisdiction: Appeal and Error. An appellate court has
the power to determine whether it lacks jurisdiction over an appeal
because the lower court lacked jurisdiction to enter the order; to vacate
a void order; and, if necessary, to remand the cause with appropriate
directions.
14. Jurisdiction: Appeal and Error. When an appellate court is without
jurisdiction to act, the appeal must be dismissed.
15. Summary Judgment: Proof. The party moving for summary judg-
ment must make a prima facie case by producing enough evidence to
show the movant would be entitled to judgment if the evidence were
uncontroverted at trial. If the burden of proof at trial would be on the
nonmoving party, then the party moving for summary judgment may sat-
isfy its prima facie burden either by citing to materials in the record that
affirmatively negate an essential element of the nonmoving party’s claim
or by citing to materials in the record demonstrating that the nonmoving
party’s evidence is insufficient to establish an essential element of the

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
nonmoving party’s claim. If the moving party makes a prima facie case,
the burden shifts to the nonmovant to produce evidence showing the
existence of a material issue of fact that prevents judgment as a matter
of law.
16. Summary Judgment. Summary judgment proceedings do not resolve
factual issues, but instead determine whether there is a material issue of
fact in dispute.
17. ____. In the summary judgment context, a fact is material only if it
would affect the outcome of the case.
18. Summary Judgment: Appeal and Error. The grant of a motion for
summary judgment may be affirmed on any ground available to the trial
court, even if it is not the same reasoning the trial court relied upon.
19. Contracts: Intent. When the terms of a contract are clear, a court may
not resort to rules of construction, and terms are accorded their plain and
ordinary meaning as an ordinary or reasonable person would understand
them. In such a case, a court shall seek to ascertain the intention of the
parties from the plain language of the contract.
20. Summary Judgment. Conclusions based on guess, speculation, conjec-
ture, or a choice of possibilities do not create material issues of fact for
the purposes of summary judgment.
21. 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.
22. 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.
Appeals from the District Court for Sarpy County, George
A. Thompson, Judge. Judgment in No. S-23-940 affirmed.
Appeal in No. S-23-951 dismissed, and judgment vacated.
Adam J. Sipple, of Sipple Law, for appellant.
Ryan M. Kunhart and Claire E. Monroe, of Dvorak Law
Group, L.L.C., for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
Cassel, J.
I. INTRODUCTION
In consolidated cases—one for declaratory and injunctive
relief and the other an error proceeding—a landowner chal-
lenged a city ordinance rezoning its property. From an adverse
summary 	judgment 	entered 	in 	both 	cases, 	the 	landowner
brought separate appeals. Because the city’s action was legisla-
tive, there could be no error proceeding. And because the city
adopted the ordinance pursuant to its rights under a conditional
zoning agreement that the landowner violated, we find no merit
to the other appeal. In one case, we vacate and dismiss, and in
the other, we affirm.
II. BACKGROUND
These cases involve an ongoing dispute between Main St
Properties LLC (MSP) and the City of Bellevue, Nebraska
(City). As discussed in a previous appeal, 1 MSP operated a
U-Haul business on a property it owned in Bellevue. As part
of the business, MSP rented moving vans, trucks, and trailers,
which were stored on the property.
1. Conditional Zoning Agreement
In 2012, MSP and the City entered into an agreement
under which the City agreed to “conditionally rezone” MSP’s
property from a combined “General Residence” and “Olde
Towne Overlay” district to a combined “Metropolitan General
Business District” and “Olde Towne Overlay” district. The
agreement stated that the “City has determined that it is in the
best interest of the health, safety and welfare of the City and
its residents to exercise its legislative prerogative in favor of
[MSP].” It further stated:
All rights, easements, privileges, covenants, terms, con-
ditions and restrictions created hereunder are declared
1 Main St Properties v. City of Bellevue, 310 Neb. 669, 968 N.W.2d 625
(2022).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
to be in furtherance of a plan to promote and protect
the cooperative use, operation and maintenance of the
Parcel, the comprehensive development of the City and
otherwise for the public health, safety, welfare and best
interests of the City and its residents.
In exchange, MSP agreed that “[n]o parking or storage of
U-Haul vans, trucks or trailers shall be permitted on the portion
of the Parcel north of the north face of the building . . . .”
The agreement set forth a “Violations and Remedies” provi-
sion. It stated that in the event MSP should violate the agree-
ment, “then, after providing [MSP] with written notice of such
violation, and upon [MSP’s] failure to cure such violation
within ten (10) days after receipt of such notice, or, after three
(3) violations have occurred regardless if the violations are
cured,” the City shall have the right to schedule a hearing to
rezone MSP’s parcel back to its 2012 designation, deny any
additional permits or certifications with respect to the parcel,
enjoin unlawful use of the parcel, and utilize remedies pro-
vided by law.
On the same day that the City signed the agreement, the
city council approved an ordinance that conditionally rezoned
MSP’s property as set forth above.
2. Notices of Violations and
Board of Adjustment Appeal
The City presented evidence that it issued and delivered
written notices upon MSP for violations of the agreement on
at least four occasions. Particularly relevant here, the notices
referred to violations occurring in October 2012, September
2014, April 2020, and June 2020. Photographs taken at or
around the time of the violations, which the court received
in evidence, showed U-Haul trucks and trailers parked on the
northeast corner of MSP’s parcel and, in one instance, in an
area located directly north of the building. Below, a separate
photograph illustrates the parcel, with the northeast corner

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
marked in the image by a red rectangle, the parking directly
north of the building marked by a yellow rectangle, and a blue
square—which we have added for illustrative purposes only—
outlining the building.
MSP’s position has largely revolved around the meaning of
the language “north of the north face of the building” in the
agreement. MSP argues that it referred only to the area marked
in the image by the yellow rectangle. The City maintains that
the language referred to all areas north of the building line
and thus prohibited parking U-Haul vehicles and trailers inside
both rectangles.
Each written notice indicated that it was issued and deliv-
ered upon MSP by a Bellevue code enforcement officer. The
City’s official notice of violation form stated, “YOU ARE
HEREBY NOTIFIED THAT YOU ARE IN VIOLATION OF
THE BELLEVUE ZONING ORDINANCE AS INDICATED
BELOW,” next to which there were handwritten notes referring

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
to the agreement. Although there are slight differences in the
capitalization and language used in the four notices, all gener-
ally ordered MSP to, within 30 days, “[h]ave all Uhaul [sic]
vans, trucks and/or trailers Parked or Stored South of the North
face of the Building.”
The written notices stated that MSP had 30 days from receipt
of the “Official Notice” to appeal the “Order” to the City’s
board of adjustment and stated, “If you fail to timely appeal
this Order or fail to appear at a hearing scheduled pursuant to
a timely request, then it shall be conclusively presumed that
you are in violation of the Bellevue Zoning Ordinance sections
referenced above.”
It is undisputed that MSP did not appeal from the 2012,
2014, or April 2020 notices. However, MSP did file an appeal
from the June 2020 notice, to the board of adjustment, which
upheld the zoning violation. MSP then appealed the board of
adjustment’s decision to the district court. The parties eventu-
ally stipulated to the dismissal of that appeal, the merits of
which are not at issue here.
3. Subsequent Rezoning Ordinance
While the board of adjustment appeal remained pending, the
City’s planning commission held a hearing and recommended
reversing the conditional rezoning of MSP’s property based
on the “documented violations” of the agreement. The city
council introduced an ordinance to rezone MSP’s property,
based on the recommendation of the planning commission, and
held public hearings on the ordinance. On September 1, 2020,
the city council approved ordinance No. 4004, which rezoned
MSP’s property as it was classified before the agreement.
4. Instant Lawsuits
MSP filed the instant lawsuits against the City in the district
court, challenging the validity and enforcement of the rezon-
ing ordinance. In one case (this court’s case No. S-23-940),
MSP requested declaratory and injunctive relief. In the other
case (this court’s case No. S-23-951), MSP sought to challenge

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
the ordinance pursuant to a petition in error. The cases were
consolidated for purposes of discovery and trial.
5. Motions for Summary Judgment
The parties filed motions for summary judgment. Specifi-
cally, MSP moved for partial summary judgment in the case
seeking 	declaratory 	and 	injunctive 	relief. 	MSP’s 	motion
alleged, in pertinent part, that (1) the court had subject matter
jurisdiction and (2) the passage of ordinance No. 4004 “vio-
lated the statutory stay imposed by [Neb. Rev. Stat.] § 19-909
[(Reissue 2022)],” which “render[ed] the ordinance void and
unenforceable.” The City moved for summary judgment on all
claims asserted by MSP.
The district court held a joint hearing on the motions in both
cases, during which it received numerous exhibits. We will
discuss the evidence in more detail later in the opinion.
6. District Court’s Judgment
The district court entered summary judgment for the City in
both cases and dismissed MSP’s motion for partial summary
judgment as moot. The court’s written judgment found the
City properly identified the undisputed material facts, includ-
ing that the City “had record of” more than three violations
of the agreement and “chose to exercise its rights” under the
agreement to rezone MSP’s property as it was classified before
the agreement.
The court’s analysis focused on three issues. First, it rejected
MSP’s argument that the adoption of the rezoning ordinance
violated the stay provision in Neb Rev. Stat. § 19-909 (Reissue
2022). The premise of MSP’s argument was that the City
adopted the ordinance “in furtherance of” 2 the June 2020 vio-
lation from which MSP appealed. However, the court agreed
with the City that
[w]hen the City exercised its right under the Agreement
to schedule a hearing to rezone the Property based on the
2 See § 19-909.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
requisite amount of MSP’s violations occurring, all the
aforementioned notices of violations were included as a
basis to such request for rezoning, not solely the June 19,
2020 violation . . . . This was a valid action by the City
with or without the June 19, 2020 violation included,
a remedy afforded to the City by express terms of the
Agreement.
Turning to MSP’s interpretation argument, the court found
that there was no genuine issue of material fact regarding the
meaning of “north of the north face of the building.” It rea-
soned that certain statements made in 2012 by MSP’s prior
counsel “specifically identified the area in question. North of
the north face of the building includes both the ‘red’ and ‘yel-
low’ marked areas.” The court characterized the statements as
a “judicial admission” waiving the issue.
Finally, the court found that the adoption of the ordinance
was not arbitrary, capricious, or unreasonable. It reasoned that
the City’s decision to exercise its rights under the agreement
was based on three or more zoning violations by MSP at the
property upon which MSP received notice. The court stated
that MSP’s assertion otherwise was “based on speculation and
conjecture rather than the facts of the case.”
MSP filed timely appeals in both cases, which appeals we
moved to our docket. 3 We consolidated the appeals for briefing
and disposition.
III. ASSIGNMENTS OF ERROR
MSP chiefly assigns that the district court erred in deny-
ing MSP summary judgment and granting summary judgment
for the City. MSP asserts, consolidated and restated, that the
district court erred in (1) misinterpreting § 19-909 and finding
the adoption of the rezoning ordinance was “not ‘in further-
ance of’” the zoning violation notice issued in June 2020 and
(2) finding there was no genuine issue of material fact regard-
ing whether
3 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
• prior counsel for MSP made a “judicial admission” waiving
MSP’s interpretation argument regarding the language “north
of the north face of the building” in the agreement,
• MSP committed and received notice of three or more viola-
tions of the agreement,
• the City is “estopped from claiming the violations,” and
• the City’s actions were “taken out of ill will, or in bad faith,”
and were “arbitrary and unreasonable.”
IV. STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law. 4
[2,3] An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all rea-
sonable inferences in that party’s favor. 5 An appellate court
will affirm a lower court’s grant of summary judgment if the
pleadings and admitted evidence show that there is no genuine
issue as to any material facts or as to the ultimate inferences
that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law. 6
V. ANALYSIS
1. Appellate Jurisdiction
[4,5] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. 7 In order to determine
that we have jurisdiction to review the merits of MSP’s claims
on appeal, we must first determine whether the district court
had subject matter jurisdiction to decide these cases. Where a
4 Dylan H. v. Brooke C., 317 Neb. 264, 9 N.W.3d 439 (2024).
5 Continental Resources v. Fair, 317 Neb. 391, 10 N.W.3d 510 (2024).
6 Id.
7 State ex rel. Constance v. Evnen, 317 Neb. 600, 10 N.W.3d 763 (2024).

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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
lower court lacks subject matter jurisdiction to adjudicate the
merits of a claim, issue, or question, an appellate court also
lacks the power to determine the merits of the claim, issue, or
question presented to the lower court. 8
In both cases, MSP challenged the validity and enforce-
ment of the rezoning ordinance. A key difference between the
operative complaints was the relief sought. In one case, MSP
requested declaratory and injunctive relief. The other case
sought to challenge the ordinance pursuant to a petition in
error. This distinction is important.
For reasons set forth below, our jurisdiction turns on whether
the city council rezoned MSP’s property through exercising
judicial functions or a legislative power. In a previous appeal
involving these parties, 9 we distilled the applicable principles.
None was novel.
[6-8] Petition-in-error jurisdiction is limited by statute to a
review of “[a] judgment rendered or final order made by any
tribunal, board, or officer exercising judicial functions and
inferior in jurisdiction to the district court . . . .” 10 When an
entity such as a city council is exercising its judicial func-
tions, the petition in error statute is the proper method for
challenging such actions. 11 A board or tribunal exercises a
judicial function if it decides a dispute of adjudicative fact or
if a statute requires it to act in a judicial manner. 12 But where
a board or tribunal decides no question of adjudicative fact and
no statute requires it to act in a judicial manner, the orders are
not “judicial” and are not reviewable by error proceedings. 13
[9,10] Adjudicative facts are facts which relate to a specific
party and are adduced from formal proof. Adjudicative facts
8 Lancaster County v. Slezak, 317 Neb. 157, 9 N.W.3d 414 (2024).
9 Main St Properties v. City of Bellevue, supra note 1.
10 Neb. Rev. Stat. § 25-1901 (Reissue 2016).
11 Main St Properties v. City of Bellevue, supra note 1.
12 Id.
13 Id.

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Nebraska Supreme Court Advance Sheets
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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
pertain to questions of who did what, where, when, how, why,
and with what motive or intent. They are roughly the kind
of facts which would go to a jury in a jury case. 14 Whether a
board or tribunal is required to conduct a hearing and receive
evidence may be considered in determining whether the infe-
rior board or tribunal exercised judicial functions. 15
[11,12] A zoning ordinance constitutes the exercise of a
governmental and legislative function, and a city council
adopting a rezoning ordinance which amends a general zon-
ing ordinance acts in a legislative capacity. 16 An appeal or
error proceeding does not lie from a purely legislative act by
a public body to which legislative power has been delegated,
and the only remedy in such cases is by collateral attack, that
is, by injunction or other suitable action. 17
Here, the undisputed facts show that the city council was
exercising a legislative power in rezoning MSP’s property.
For example, it is undisputed that the city council did not hear
sworn testimony, mark exhibits, or decide a dispute of adjudi-
cative fact, and there is nothing suggesting that it was statu-
torily required to do so. The agreement itself stated that the
conditional rezoning of MSP’s property was an “exercise [of
the City’s] legislative prerogative.” Moreover, the city council
adopted the rezoning ordinance based upon the recommenda-
tion of the planning commission. It did not render a decision in
an adversarial proceeding.
It follows that MSP’s only remedy in this matter was by col-
lateral attack, that is, by injunction or other suitable action. 18
Accordingly, we conclude that MSP utilized a proper method
14 Id.
15 Id.
16 Id.
17 Id.
18 See id.

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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
for challenging the city council’s exercise of its legislative
function in the declaratory and injunctive relief case. We have
jurisdiction of the appeal there.
[13,14] 	We 	reach 	a 	different 	conclusion 	regarding 	the
petition-in-error case. An appeal or error proceeding did not
lie from the city council’s purely legislative act. 19 We there-
fore vacate the portion of the judgment that purported to enter
summary judgment in the petition-in-error case and dismiss
that appeal for lack of jurisdiction. An appellate court has the
power to determine whether it lacks jurisdiction over an appeal
because the lower court lacked jurisdiction to enter the order;
to vacate a void order; and, if necessary, to remand the cause
with appropriate directions. 20 When an appellate court is with-
out jurisdiction to act, the appeal must be dismissed. 21
Having determined we have jurisdiction of one appeal, we
next turn to MSP’s assignments of error.
2. Stay Provision in § 19-909 Did Not Apply
MSP argues that the rezoning ordinance is “void” because
the City introduced and adopted it in violation of a stay pro-
vision in § 19-909. Under § 19-909, “Appeals to the board
of adjustment may be taken by any person aggrieved or by
any officer, department, board, or bureau of the municipality
affected by any decision of the administrative officer.” Section
19-909 provides, in pertinent part:
An appeal stays all proceedings in furtherance of the
action appealed from, unless the officer from whom the
appeal is taken certifies to the board of adjustment, after
the notice of appeal shall have been filed with him or
her, that by reason of facts stated in the certificate a stay
19 See id.
20 Evert v. Srb, 308 Neb. 895, 957 N.W.2d 475 (2021).
21 In re Interest of Sayrah P., 315 Neb. 436, 996 N.W.2d 623 (2023).

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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
would, in his or her opinion, cause imminent peril to life
or property.
(Emphasis supplied.)
MSP’s argument derives from the plain language of the stat-
ute. We understand MSP to argue that pursuant to § 19-909,
its appeal from the June 2020 violation to the board of adjust-
ment “stay[ed] all proceedings in furtherance of” the June 2020
violation, including adopting the rezoning ordinance. MSP
highlights that the ordinance was adopted while the board of
adjustment appeal remained pending and in the absence of an
“imminent peril” certification as contemplated in § 19-909. But
on these facts, MSP’s argument lacks merit.
We agree with the City that its adoption of the rezon-
ing ordinance was not a § 19-909 “proceeding[] in further-
ance of” the June 2020 violation from which MSP appealed.
Instead, the City adopted the ordinance pursuant to its rights
under the agreement after three or more violations by MSP.
The “Violations and Remedies” provision of the agreement
expressly gave the City the right, “after three (3) violations
have occurred regardless if the violations are cured,” to sched-
ule a hearing to rezone MSP’s parcel to its prior classification.
The City did so. In this situation, § 19-909 did not apply.
3. No Genuine Issue of Material Fact
MSP makes several arguments that the district court erred in
granting summary judgment for the City, because there were
genuine issues of material fact. We disagree.
(a) Summary Judgment Principles
[15] The party moving for summary judgment must make
a prima facie case by producing enough evidence to show the
movant would be entitled to judgment if the evidence were
uncontroverted at trial. If the burden of proof at trial would
be on the nonmoving party, then the party moving for sum-
mary judgment may satisfy its prima facie burden either by
citing to materials in the record that affirmatively negate an

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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
essential element of the nonmoving party’s claim or by citing
to materials in the record demonstrating that the nonmoving
party’s evidence is insufficient to establish an essential element
of the nonmoving party’s claim. If the moving party makes a
prima facie case, the burden shifts to the nonmovant to produce
evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law. 22
[16-18] Summary judgment proceedings do not resolve fac-
tual issues, but instead determine whether there is a material
issue of fact in dispute. 23 In the summary judgment context,
a fact is material only if it would affect the outcome of the
case. 24 The grant of a motion for summary judgment may be
affirmed on any ground available to the trial court, even if it is
not the same reasoning the trial court relied upon. 25
(b) Additional Background
Before addressing MSP’s specific arguments, we summarize
pertinent evidence.
The City presented evidence on certain events leading up to
the agreement. Before it signed the agreement and condition-
ally rezoned MSP’s property in 2012, the city council held a
public hearing. MSP’s prior counsel spoke in favor of rezon-
ing of the property. He recognized the City’s concern that “we
don’t want the first thing that people see when they drive into
our community from the east [to] be U-Haul trailers.” He con-
firmed that MSP was willing to “restrict the property so you
couldn’t have anything out here close to the street that, to the
extent that people found the U-Haul vehicles to be offensive,
they would be back a ways.”
22 Ronnfeldt Farms v. Arp, 317 Neb. 690, 11 N.W.3d 371 (2024).
23 Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958
N.W.2d 378 (2021), disapproved on other grounds, Clark v. Sargent Irr.
Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).
24 Slama v. Slama, 313 Neb. 836, 987 N.W.2d 257 (2023).
25 Schuemann v. Timperley, 314 Neb. 298, 989 N.W.2d 921 (2023).

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MAIN ST PROPERTIES v. CITY OF BELLEVUE
Cite as 318 Neb. 116
As a potential solution, MSP’s prior counsel proposed that
the rezoning of MSP’s property include a “‘no U-Haul zone.’”
To that end, he presented the following diagram:
Elaborating on the diagram, counsel proposed that the city
council adopt a “covenant” designating a paved area—includ-
ing “everything that was in front of the building line, which
happens to be the same building line for the lots to the east
and the property to the west”—where there would be “no
parking of U-Haul vehicles, whether it be trucks, trailers,
and vans, whatever.” Similar language later appeared in the
agreement.
The City also presented evidence that it rezoned MSP’s
property pursuant to the “Violations and Remedies” provision
of the agreement. It offered the affidavits of various city offi-
cials, copies of the written notices, photographs documenting

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the violations, internal communications between city officials
regarding the violations, and the deposition testimony of an
employee of MSP whom the October 2012 and September
2014 notices referred to as the recipient.
MSP disputed that the September 2014 notice was signed
and received by its employee—whose first name was “Sarah”—
when the notice listed the recipient as “Sara.” MSP also
pointed to the deposition testimony of its owner, alleging he
“d[id] not recall the . . . notice.” The owner of MSP generally
testified that he had a conversation with a city official in 2014
regarding the agreement and that the official “advised” him
the disputed language did not refer to the parking spots on the
northeast corner of the parcel. The owner did not recall who
the city official was or the date on which this conversation
took place, and there was no documentation of it.
Similarly, MSP disputed that a code enforcement officer
issued and delivered the April 2020 notice, which stated it was
posted to the front door of MSP’s property. In support, MSP
pointed to the deposition testimony of its owner, alleging he
“d[id] not recall receiving the . . . [n]otice.”
MSP also disputed that the City had record of three or more
violations of the agreement and “chose to exercise its rights”
under the agreement to rezone MSP’s property. MSP pointed
to the deposition testimony of its owner. It also pointed to the
City’s internal records, which showed that certain violations
were eventually marked as “‘closed’” or “‘cleared.’” MSP
asserted that any notice it received was “timely cured.”
Finally, MSP—relying on the affidavit of its owner—argued
that the City acted in bad faith. The affidavit stated that the
owner was previously a member of the city council, and in
2017, a recall petition was initiated to remove him; that in
2018, the City demolished a carwash he owned; that in 2019,
he was “acquitted of charges related to electrical repairs” per-
formed at another property he owned, and the charges were
“brought by the City while [it was] attempting to interfere
with [his] renovations” of that property; that he later initiated

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a recall effort against a fellow member of the city council; and
that in April 2020, the City demolished a building owned by
MSP and then “imposed” a lien related to the demolition, but
a district court found the amount of the lien was unreasonable
and reduced it.
(c) MSP’s Arguments
(i) Purported Admission
In the first of several arguments, MSP disputes that prior
counsel made a “judicial admission” about the meaning of
“north of the north face of the building” in the agreement.
Without commenting on the propriety of the district court’s
reasoning, we reach an independent conclusion that any dispute
regarding the meaning was immaterial here.
The material facts were undisputed. The City presented
evidence that MSP violated the agreement on at least four
occasions—in October 2012, September 2014, April 2020, and
June 2020. The agreement stated that the City had the right
to rezone MSP’s property after three violations of the agree-
ment, regardless of whether they were cured by MSP. MSP
does not dispute that it failed to file an appeal challenging
the City’s interpretation of the agreement until the June 2020
violation—which was, at least, the fourth one. We agree with
the City that MSP forfeited the issue and cannot raise it now
by collateral attack.
(ii) Violations and Notices
MSP next 	draws 	our 	attention 	to 	purported 	discrepan-
cies with the violations and notices. First, MSP disputes that
the September 2014 notice was signed and received by its
employee, whose first name was “Sarah,” when the notice
listed the recipient as “Sara.” MSP generally contends that it
was not the employee’s signature, showing that MSP did not
receive the notice.
[19] However, the plain language of the agreement estab-
lishes that the absence of notice is not material. When the

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terms of a contract are clear, a court may not resort to rules of
construction, and terms are accorded their plain and ordinary
meaning as an ordinary or reasonable person would understand
them. In such a case, a court shall seek to ascertain the inten-
tion of the parties from the plain language of the contract. 26
Here, the agreement stated:
In the event that [MSP] should violate any of the provi-
sions of [the agreement], then, after providing [MSP] with
written notice of such violation, and upon [MSP’s] failure
to cure such violation within ten (10) days after receipt
of such notice, or, after three (3) violations have occurred
regardless if the violations are cured,
the City had the right to schedule a hearing to rezone MSP’s
parcel back to its 2012 designation, deny any additional per-
mits or certifications with respect to the parcel, enjoin unlawful
use of the parcel, and utilize remedies provided by law.
The agreement provided two options to the City regarding
violations by MSP. The agreement set them forth separated by
the disjunctive word “or.” Each option began with the word
“after.”
The first option addressed a 10-day window to cure a viola-
tion. It required written notice to MSP.
But the second option did not require such notice. It permit-
ted the City to schedule a hearing to rezone after three viola-
tions had occurred.
Because the second option applied here, the presence or
absence of notice of the individual violations was immaterial.
There is no material issue of fact regarding the City’s three
prior determinations that a violation had occurred. And under
the agreement, it did not matter whether the violations were
cured, whether timely or otherwise. Under the agreement and
the facts here, whether MSP received notice of the prior viola-
tions was not material.
26 Seemann v. Seemann, 316 Neb. 671, 6 N.W.3d 502 (2024).

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Likewise, based on the plain language of the agreement, we
reject MSP’s argument that it did not receive the April 2020
notice. Here again, the presence or absence of notice was
not material.
Finally, MSP highlights the City’s internal records show-
ing that some violations were eventually marked “‘closed’”
or “‘cleared.’” 27 We fail to see how this affects the outcome
of the case. It is undisputed that the agreement gave the City
the right to rezone MSP’s property after three violations of the
agreement, regardless of whether they were cured by MSP.
This argument lacks merit.
(iii) Estoppel
MSP contends—based solely on the deposition testimony
of its owner—that the City was “estopped” from claiming the
violations, because in 2014, the City “agree[d] [MSP] could
park in the northeast corner of the lot.” 28 The City responds
that MSP’s allegations are not supported by competent evi-
dence and that the testimony of MSP’s owner regarding a “so-
called 2014 agreement” 29 should be disregarded.
[20] As noted above, MSP’s owner could not provide any
specific details regarding the purported 2014 “agreement”
between the parties. We are not persuaded that the owner’s
deposition testimony about a legal conclusion involving an
unknown city official on an unknown date, of which there is no
other evidence, creates a material issue of fact for the purposes
of summary judgment. Conclusions based on guess, specula-
tion, conjecture, or a choice of possibilities do not create mate-
rial issues of fact for the purposes of summary judgment. 30
27 Brief for appellant at 23.
28 Id. at 22.
29 Brief for appellee at 21.
30 Strahan v. McCook Hotel Group, 317 Neb. 350, 10 N.W.3d 187 (2024).

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(iv) Motive and Purpose
Finally, MSP argues that there is a genuine issue of material
fact regarding whether the City’s actions were taken in bad
faith or were arbitrary, capricious, or unreasonable. MSP relies
upon the affidavit of its owner, which described certain events
preceding—but not necessarily connected to—the adoption of
the ordinance. We see no merit to this argument.
[21,22] The validity of a zoning ordinance will be pre-
sumed in the absence of clear and satisfactory evidence to the
contrary. 31 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 regula-
tion bears no relationship to the purpose sought to be accom-
plished by the ordinance. 32 MSP has failed to do so here.
VI. CONCLUSION
We conclude the following:
• We lack jurisdiction of the appeal from the district court’s
rejection of MSP’s petition in error.
• We have jurisdiction of the appeal from the summary judgment
refusing MSP’s request for declaratory or injunctive relief.
• Section 19-909 did not apply to the City’s legislative action
based upon its contractual rights under the agreement.
• MSP forfeited the issue of whether “north of the north face
of the building” included the northeast corner of the property.
• The plain language of the agreement permitted the City to pro-
ceed with such legislative action without regard to the presence
or absence of notice of the individual violations.
• There was no genuine issue of material fact precluding sum-
mary judgment.
31 Dowd Grain Co. v. County of Sarpy, 291 Neb. 620, 867 N.W.2d 599
(2015).
32 Id.

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• The judgment in the action for declaratory and injunctive relief
is affirmed.
• The appeal from the judgment regarding the petition in error is
dismissed, and that judgment is vacated.
Judgment in No. S-23-940 affirmed.
Appeal in No. S-23-951 dismissed,
and judgment vacated.