## Facts

- Midlands Development Company planned a mixed-use project, “One Pacific Place,” in southwest Omaha and sought rezoning.
- Midlands submitted a final development plan and entered into four written agreements with the City governing project design and limits (collectively, a development agreement).
- The development agreement allowed deviations only if the City found no material deviation from the plan and no violation of the municipal code.
- The agreement imposed restrictions more stringent than the baseline zoning (e.g., ceilings on aspects of development such as office-building intensity).
- The Omaha City Council enacted an ordinance approving and incorporating the development agreement and adopted five rezoning ordinances covering the project property.
- The City issued building permits and construction began.
- Neighboring property owners filed two district court actions seeking declarations that the rezoning ordinances and permits were void and injunctions to stop development inconsistent with prior zoning.
- The district court denied relief; the plaintiffs appealed.

## Issues

1. Whether a suit to declare a zoning ordinance void and to enjoin enforcement is an equitable action reviewed de novo on the record.
2. Whether rezoning ordinances conditioned on, and incorporating, a development agreement constitute unlawful contract rezoning or an impermissible surrender of municipal police power.
3. Whether the imposed conditions were unreasonable, discriminatory, or arbitrary, or lacked a substantial relationship to public health, safety, morals, or general welfare.

## Decision

- The Nebraska Supreme Court affirmed the district court.
- The court held the action was equitable and reviewed de novo, giving weight to the trial court on credibility determinations.
- The court held conditional (or “contract”) rezoning is not per se invalid; a city may use agreements or other devices to ensure the project is built as represented, so long as the conditions are within the police power.
- The plaintiffs failed to prove, by clear and satisfactory evidence, that the conditions were unreasonable, discriminatory, or arbitrary, or unrelated to legitimate zoning objectives.
- The rezoning ordinances, the incorporated development agreement, and the issued building permits were upheld.

## Legal Principles

- An action to void a zoning ordinance and enjoin enforcement is equitable; appellate review is de novo on the record with limited deference on credibility findings.
- Zoning is a legislative function exercised under delegated state police power and must relate to public health, safety, morals, or general welfare.
- Zoning ordinances carry a presumption of validity; challengers bear the burden to show invalidity by clear and satisfactory evidence.
- A municipality may condition rezoning on a development agreement (or similar mechanism) to assure construction proceeds as represented, provided conditions are a proper exercise of police power.
- To invalidate conditional rezoning, challengers must show the conditions are unreasonable, discriminatory, or arbitrary and bear no substantial relation to legitimate zoning purposes.
- A municipality possesses only those powers expressly granted, fairly implied, or essential to its declared purposes.

## Conclusion

The Nebraska Supreme Court sustained Omaha’s rezoning conditioned on an incorporated development agreement, concluding the arrangement regulated (rather than surrendered) the City’s police power and that challengers did not meet their burden to prove the conditions were arbitrary, discriminatory, or unrelated to legitimate zoning goals.


Giger v. City of Omaha, 232 Neb. 676, 442 N.W.2d 182 (Neb. 1989)