City of Omaha v. Tract No. 1

C ity of omaha , Nebraska , a muNiCipal CorporatioN,
appellee , v. traCt No. 1, also kNowN as 1318, 1320,
aNd 1322 s. 72 d street, et al ., appellees , aNd
JohN v. haltom , appellaNt.
778 N.W.2d 122
Filed January 26, 2010. 	No. A-09-323.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
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 the 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. Moot Question. A case becomes moot when the issues initially presented in
litigation cease to exist or the litigants lack a legally cognizable interest in the
litigation’s outcome.
4. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not
prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts
from exercising jurisdiction.
5. Moot Question: Appeal and Error. Under the public interest exception, an
appellate court may review an otherwise moot case if it involves a matter affect-
ing the public interest or when other rights or liabilities may be affected by
its determination.
6. ____: ____. When determining whether a case involves a matter of public inter-
est, an appellate court considers (1) the public or private nature of the question
presented, (2) the desirability of an authoritative adjudication for future guidance
of public officials, and (3) the likelihood of future recurrence of the same or a
similar problem.
7. Constitutional Law: Eminent Domain. The Constitution of Nebraska and legis-
lative enactments pursuant thereto are in no sense a grant of power, but are and
should be treated as a limitation of the power of eminent domain.
8. Eminent Domain. Neb. Rev. Stat. § 76-710.04(1) (Reissue 2009) prohibits the
use of eminent domain powers where the taking is primarily for an economic
development purpose.
9. Statutes. Absent anything to the contrary, statutory language is to be given its
plain meaning, and a court will not look beyond the statute or interpret it when
the meaning of its words is plain, direct, and unambiguous.
10. Eminent Domain: Public Purpose: Right-of-Way. Neb. Rev. Stat. § 76-710.04(1)
(Reissue 2009) does not apply to projects that make all or a major portion of the
property available for use by the general public or for use as a right-of-way.
Appeal from the District Court for Douglas County, thomas
a. otepka, Judge, on appeal thereto from the County Court
CITy oF omAhA v. TRACT No. 1 	247
Cite as 18 Neb. App. 247
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

for Douglas County, edNa atkiNs, Judge. Judgment of District
Court affirmed.
Brian B. Vakulskas, of Vakulskas Law Firm, P.C., for
appellant.
Paul D. Kratz, omaha City Attorney, and Bernard J. in den
Bosch for appellee City of omaha.
sievers, moore, and Cassel, Judges.
Cassel, Judge.
INTRoDUCTIoN
John V. haltom claims that Neb. Rev. Stat. § 76-710.04
(Reissue 2009) prohibits the City of omaha, Nebraska (the
City), from using its eminent domain powers to acquire land
for the purpose of constructing a deceleration lane on an exist-
ing public street, because the deceleration lane leads to an
access to a well-known national retailer of consumer goods.
Because, as a matter of law, such construction for traffic con-
trol and safety purposes does not constitute an “economic
development purpose,” we affirm the district court’s decision
rejecting haltom’s claim.
BACKGRoUND
This is an appeal from a condemnation action. The City
negotiated with property owners to acquire a strip of land for
the purpose of installing a deceleration lane for traffic that
would access a new development which included a building
to be occupied by the retailer. The City also sought temporary
easements for the purpose of constructing the deceleration lane.
After initial negotiations to acquire the real property failed, the
City filed a petition in county court to condemn the property.
The “Report of Appraisers” awarded haltom and another prop-
erty owner a collective total of $55,300.
haltom filed a “Complaint on Appeal” to appeal this matter
to the district court. haltom alleged four separate causes of
action, only one of which is the subject of the instant appeal.
In the relevant cause of action, haltom alleged that § 76-710.04
prevented the City from acquiring the property, because the
248 	18 NeBRASKA APPeLLATe RePoRTS

proposed use of the property constituted an “economic and
development purpose.”
The City then filed a motion for partial summary judgment
on three of the four causes of action, including the one perti-
nent to this appeal.
At the summary judgment hearing, the City adduced evi-
dence regarding the purpose for which the condemned property
would be used. This included an affidavit by Charlie Krajicek,
the city engineer. his affidavit stated that in his review of the
retailer’s development plans, he determined that a decelera-
tion lane was necessary for traffic. his specific reasoning was
as follows:
[A]s a result of the anticipated increased traffic on 72nd
Street as time elapses and the potential for the slowing
of traffic on 72nd Street accessing the new [commercial]
facility as traffic proceeded southbound, I determined that
it was necessary that a deceleration lane be constructed
to handle southbound traffic that would be accessing the
new development. . . . [T]he purpose of requiring the
deceleration lane was to allow traffic on 72nd Street to
proceed in an orderly and efficient fashion and to limit
the potential collisions as a result of cars decelerating on
the right-of-way.
Krajicek also explained that the decision to acquire the land
“was solely the decision of the City . . . and was made by
[Krajicek] and those individuals under [his] direct supervi-
sion.” Krajicek’s affidavit also stated that the construction of
the deceleration lane had been completed. haltom did not offer
any responsive evidence.
The district court granted the City’s motion for partial sum-
mary judgment. Later, at the parties’ request, the district court
dismissed the remaining cause of action.
haltom timely appeals.
ASSIGNmeNT oF eRRoR
haltom assigns, as restated, that the district court erred
in failing to determine that the City condemned his property
for an economic development purpose. In its brief, the City
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Cite as 18 Neb. App. 247

addressed haltom’s argument but also asserted that haltom’s
claim was moot.
STANDARD oF ReVIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material 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. Lamar Co. v. City of Fremont,
278 Neb. 485, 771 N.W.2d 894 (2009). In reviewing a sum-
mary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable infer-
ences deducible from the evidence. Id.
ANALySIS
Mootness.
The City argues that the appeal is moot because the City
has already installed the deceleration lane. At oral argument,
haltom’s counsel conceded that the deceleration lane had been
constructed and that it would make no sense to demolish it, but
urged the court to consider the issue under the public interest
exception to the mootness doctrine.
[3,4] A case becomes moot when the issues initially pre-
sented in litigation cease to exist or the litigants lack a legally
cognizable interest in the litigation’s outcome. Evertson v. City
of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009). Although
mootness does not prevent appellate jurisdiction, it is a jus-
ticiability doctrine that can prevent courts from exercising
jurisdiction. Id.
[5,6] But under the public interest exception, an appellate
court may review an otherwise moot case if it involves a matter
affecting the public interest or when other rights or liabilities
may be affected by its determination. See id. And when deter-
mining whether a case involves a matter of public interest, the
appellate court considers (1) the public or private nature of
the question presented, (2) the desirability of an authoritative
adjudication for future guidance of public officials, and (3) the
likelihood of future recurrence of the same or a similar prob-
lem. Id.
250 	18 NeBRASKA APPeLLATe RePoRTS

Considering 	these 	factors, 	the 	public 	interest 	exception
clearly applies. We confront a recent legislative enactment lim-
iting the use of the sovereign power of eminent domain, which
presents a public question. municipal authorities desiring to
condemn real estate for street improvements adjoining com-
mercial development would rely upon an authoritative adjudi-
cation for guidance in future proceedings. Such condemnation
proceedings frequently occur under nearly identical circum-
stances. Thus, the case falls within the public interest exception
and we turn to the substantive question before us.
Effect of § 76-710.04.
haltom’s sole argument is that § 76-710.04 prevents the City
from using its eminent domain powers in the instant case.
[7] We first summarize the nature of eminent domain.
eminent domain is defined generally as the power of the
nation or a state, or authorized public agency, to take or to
authorize the taking of private property for a public use with-
out the owner’s consent, conditioned upon the payment of
just compensation. Krambeck v. City of Gretna, 198 Neb. 608,
254 N.W.2d 691 (1977). The power of eminent domain is a
sovereign power which exists independent of the Constitution
of Nebraska. Burger v. City of Beatrice, 181 Neb. 213, 147
N.W.2d 784 (1967). The Legislature may delegate the power
of eminent domain. See Burlington Northern Santa Fe Ry.
Co. v. Chaulk, 262 Neb. 235, 631 N.W.2d 131 (2001). The
Constitution of Nebraska and legislative enactments pursuant
thereto are in no sense a grant of power, but are and should be
treated as a limitation of the power of eminent domain. Burger
v. City of Beatrice, supra.
The Legislature has delegated the power of eminent domain
to cities of the metropolitan class, including the City, to acquire
property for use as part of a public street pursuant to Neb. Rev.
Stat. § 14-366 (Reissue 2007). Section 14-366 provides as fol-
lows in this regard:
The city may purchase or acquire by the exercise of
the power of eminent domain private property or public
property which is not at the time devoted to a specific
public use, for the following purposes and uses: (1) For
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streets, alleys, avenues, parks, recreational areas, park-
ways, playgrounds, boulevards, sewers, public squares,
market places, and for other needed public uses or pur-
poses authorized by this act, and for adding to, enlarging,
widening, or extending any of the foregoing; and (2) for
constructing or enlarging waterworks, gas plants, or other
municipal utility purposes or enterprises authorized by
this act.
Thus, § 14-366 specifically allows the City to condemn private
property for use as a public street.
however, the Legislature recently subjected the power of
eminent domain to an additional limitation. In 2006, after
the U.S. Supreme Court determined in Kelo v. New London,
545 U.S. 469, 125 S. Ct. 2655, 162 L. ed. 2d 439 (2005),
that the transfer of land to a third party for the purpose of
furthering a city’s economic development plan was a suffi-
ciently public use to permit the exercise of eminent domain,
the Nebraska Legislature passed 2006 Neb. Laws, L.B. 924, to
prohibit the use of eminent domain “if the taking is primarily
for an economic development purpose.” This is now codified
at § 76-710.04.
In pertinent part, § 76-710.04 provides as follows:
(1) A condemner may not take property through the use
of eminent domain . . . if the taking is primarily for an
economic development purpose.
(2) For purposes of this section, economic develop-
ment purpose means taking property for subsequent use
by a commercial for-profit enterprise or to increase tax
revenue, tax base, employment, or general economic
conditions.
(3) This section does not affect the use of eminent
domain for:
(a) Public projects or private projects that make all or
a major portion of the property available for use by the
general public or for use as a right-of-way, aqueduct,
pipeline, or similar use.
haltom argues that the deceleration lane primarily served the
“economic development purpose” of providing vehicles access
to the retailer. he argues that the addition of the deceleration
252 	18 NeBRASKA APPeLLATe RePoRTS

lane will ultimately cause the expansion of the City’s property
and sales tax bases through providing the retailer’s customers
easier access to the retailer’s parking lot.
[8,9] however, we conclude that the plain language of
§ 76-710.04 does not prevent the City from acquiring private
property for use as a deceleration lane on an existing pub-
lic road, even though the deceleration lane is contiguous to
access to the retailer. Section 76-710.04(1) prohibits the use
of eminent domain powers where the taking is “primarily
for an economic development purpose.” (emphasis supplied.)
Absent anything to the contrary, statutory language is to be
given its plain meaning, and a court will not look beyond the
statute or interpret it when the meaning of its words is plain,
direct, and unambiguous. State ex rel. Parks v. Council of City
of Omaha, 277 Neb. 919, 766 N.W.2d 134 (2009). Although
the collateral consequences of the addition of a deceleration
lane may include some enhancement to economic develop-
ment, the primary purpose of the deceleration lane clearly is
to promote traffic safety and the efficient flow of traffic on the
City’s streets.
Based on the undisputed evidence, there are four reasons
sufficient to dispel haltom’s argument that the deceleration
lane was primarily intended to fulfill an “economic develop-
ment purpose” as defined by § 76-710.04(2). First, the City
did not take the property primarily “for subsequent use by a
commercial for-profit enterprise.” The real property was not
acquired for the “use” of a commercial enterprise in any tra-
ditional sense. The City will be the owner of title to the land,
and, because the land will be used as part of a public street,
the primary users will be members of the public at large.
Second, the City’s acquisition of the real property at issue will
not serve the primary purpose of “increas[ing] tax revenue”
or “tax base.” The land acquired by the City will not contain
any entity that will generate sales or property taxes. Property
taxes cannot be assessed on the property in question due to
the City’s ownership of the land for public use. See Neb. Rev.
Stat. § 77-202(1)(a) (Reissue 2009). Third, the City’s acquisi-
tion of the land cannot be construed as primarily serving the
purpose of increasing employment. While the construction of
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a deceleration lane will require the temporary use of labor,
the purpose of a deceleration lane is unrelated to the creation
of additional jobs; instead, it is directly related to traffic con-
trol. Finally, the use of the property cannot be construed as
primarily related to “general economic conditions,” because
there is no evidence that this affected the City’s exercise of its
eminent domain powers. The City’s engineering department,
which decided to acquire the property at issue, did so for
reasons entirely unrelated to economic conditions. In his affi-
davit, Krajicek stated that the purpose of the deceleration lane
“was to allow traffic . . . to proceed in an orderly and efficient
fashion and to limit the potential collisions as a result of cars
decelerating on the right-of-way.” haltom offered no evidence
to rebut Krajicek’s affidavit. There is no evidence that the
retailer used economic pressure to convince the City to install
the deceleration lane.
[10] In addition, § 76-710.04(3)(a) clarifies that § 76-710.04(1)
does not apply to “projects that make all or a major portion
of the property available for use by the general public or for
use as a right-of-way.” In the instant case, the deceleration
lane will be available for general public use and constitutes a
right-of-way. In this context, a right-of-way is defined as “land
covered by a public road.” Webster’s encyclopedic Unabridged
Dictionary of the english Language 1234 (1989). Thus, the
deceleration lane serves no economic development purpose
under the terms of § 76-710.04.
We acknowledge that the City’s use of eminent domain to
acquire land for a deceleration lane may provide an incidental
and indirect benefit to the retailer. however, the plain lan-
guage of § 76-710.04 prohibits the exercise of eminent domain
only where its primary purpose is economic development—not
where economic development may be a collateral benefit.
many permissible uses of eminent domain provide collateral
benefits to private industry. For example, when land is acquired
by eminent domain for the purpose of a public building such
as a school, nearby private enterprises, such as convenience
stores or restaurants, may also benefit. The use of eminent
domain to install utilities can provide collateral benefits to sur-
rounding businesses. There are countless other instances where
254 	18 NeBRASKA APPeLLATe RePoRTS

the exercise of eminent domain indirectly enhances economic
development. Therefore, haltom’s argument—which focuses
on a collateral consequence of eminent domain as opposed to
its primary purpose—is without merit.
CoNCLUSIoN
We first conclude that although the deceleration lane has
been constructed, we may consider haltom’s appeal on its mer-
its because the public interest exception to the mootness doc-
trine applies. We also conclude that the district court did not
err in granting the City’s motion for partial summary judgment,
because § 76-710.04 does not, as a matter of law, prohibit the
City from using its eminent domain powers to acquire property
for the purpose of constructing a deceleration lane on an exist-
ing public road for traffic control and safety purposes.
affirmed.
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