## Facts

- A new commercial development in Omaha included a building to be occupied by a national retailer of consumer goods.
- The City of Omaha’s engineer, Charlie Krajicek, reviewed the development plans and projected traffic effects on South 72nd Street.
- Krajicek concluded a deceleration lane was needed for traffic control and safety because increased traffic and slowing vehicles turning into the development could create hazards for southbound traffic.
- To build the deceleration lane, the City sought to acquire a strip of land identified as Tract No. 1 (also known as 1318, 1320, and 1322 S. 72d Street) owned by John V. Haltom, along with temporary construction easements.
- The City negotiated with the property owners to obtain the needed property interests; when negotiations failed, the City filed a condemnation petition in county court.
- Court-appointed appraisers filed a report awarding Haltom and another property owner a combined total of $55,300.
- Haltom filed a complaint on appeal to the district court. Among other claims, he alleged the taking was barred by Neb. Rev. Stat. § 76-710.04 because the taking was “primarily for an economic development purpose.”
- The district court granted partial summary judgment for the City on the § 76-710.04 claim, and Haltom appealed.

## Issues

1. Does Neb. Rev. Stat. § 76-710.04 bar a city from using eminent domain to acquire land for a deceleration lane on an existing public street when the lane provides access to a private retail development?

## Decision

- The Nebraska Court of Appeals affirmed the district court’s grant of partial summary judgment for the City.
- The court held that acquiring land to construct a deceleration lane on an existing public road for traffic control and safety is not a taking “primarily for an economic development purpose” under § 76-710.04, even if the lane is contiguous to access serving a retailer.
- The court concluded the City’s evidence established a traffic-safety purpose as a matter of law, and Haltom did not present evidence creating a genuine dispute that economic development was the City’s primary purpose.

## Legal Principles

- Neb. Rev. Stat. § 76-710.04 prohibits eminent domain only when the taking is primarily for an “economic development purpose,” not when economic development is a collateral result.
- “Economic development purpose” includes taking property for subsequent use by a commercial for-profit enterprise or to increase tax revenue, tax base, employment, or general economic conditions, but the statute contains exceptions for public projects and for property made available for general public use or use as a right-of-way.
- A street improvement that becomes part of an existing public roadway system is treated as a public project/right-of-way use, not a transfer for subsequent private commercial use.
- On summary judgment, once the condemner produces evidence supporting a lawful public purpose for the taking, the party opposing the taking must produce evidence showing a genuine issue of material fact that the primary purpose falls within the statutory prohibition.

## Conclusion

City of Omaha v. Tract No. 1 holds that Nebraska’s economic-development takings restriction does not block a municipality from condemning property for a deceleration lane that will be incorporated into an existing public street, where the record shows the City acted for traffic control and safety and any benefit to a nearby private retailer is incidental rather than the taking’s primary purpose.


City of Omaha v. Tract No. 1, 778 N.W.2d 122 (2010)