Douglas Dist Judge Moran rules for Omaha in Elkhorn annexation fight

Municipal and Zoning law expert: "nothing will stand in Omaha's way until the State's annexation laws change." Omaha World Herald Omaha solidly won the first battle Friday, with Douglas County District Judge Gerald Moran's 34-page order in favor of the bigger city.The two cities early this year unveiled competing annexation packages on back-to-back days. Elkhorn's was designed to reach a population of 10,000 and thus escape its own forcible annexation. Omaha's was created to take Elkhorn and keep open its path for westward growth. John Fullenkamp, a prominent development and annexation attorney in Omaha, referred to a clause in Moran's ruling as especially telling. Moran wrote that the Nebraska Legislature never intended for Omaha to be "placed in a position where its orderly growth and expansion could be inhibited by a city of lesser size. Statutorily there is not, nor was there ever, a possibility that Elkhorn could tactically spring a surprise annexation on Omaha and, by doing so, successfully outmaneuver the City of Omaha."Fullenkamp said Elkhorn will struggle to win on appeal. "I think it's going to be tough," he said.He said Moran appeared to have covered every question. "It's pretty clear," he said. "He just takes them one by one."Elkhorn reisdent Eddie Ohm says he is bothered by the judge's ruling aginst Elkhorn, but he will remain in Elkhorn even if it is annexed by Omaha. Ohm, 89 moved from Saunders County to Elkhorn during the Depression some 70 years ago. He and his wife, Leola, have lived in their home 54 years. "Elkhorn is able to stand on its own," he said while repairing a retaining wall in his yard. "Omaha says Elkhorn's services would be the same, but that's impossible."Fullenkamp said a higher court would have to find that Moran erred somewhere in his ruling. Fullenkamp said Omaha leaders always have had state annexation laws on their side."Unless and until that's changed, they'll probably win," Fullenkamp said.Moran ruled for Omaha on almost every point raised. At least 12 went in Omaha's favor and two minor points went in Elkhorn's favor. Elkhorn legally tried to annex land that is adjacent to it, Moran ruled, and it didn't annex farmland, despite Omaha's claim. Moran ruled that Omaha, too, appropriately annexed land that is adjacent to it. He found that Omaha's initial meeting on annexation complied with the state open meetings law, but that Elkhorn's didn't. He ruled that Omaha's annexation of Elkhorn was properly motivated, but that Elkhorn's was hastily put together simply to push its population past 10,000.He wrote that Omaha could provide Elkhorn with city services that are equal to or better than those to which Elkhorn is accustomed. But Elkhorn's annexation package would strain Elkhorn finances and services, he wrote. "Had Elkhorn's ordinances been allowed to proceed, Omaha would have been effectively blocked insofar as any future growth to the west is concerned," Moran determined. Elkhorn leaders tried to stay upbeat Friday. They filed a notice of appeal that will be forwarded to the Nebraska Court of Appeals. The case might go directly to the Nebraska Supreme Court. Elkhorn City Attorney Duncan Young said he and other Elkhorn leaders chose not to request a retrial at the Douglas County District Court level because Omaha and Elkhorn both acknowledged all along that the case would be resolved at the appellate court level."We're not going to try to stretch it out," Young said of the matter. The town just wants a favorable ruling, he said."If that's a quick decision, that's fine," Young said. "If it's a long, drawn-out one, that's fine." Elkhorn City Administrator Don Eikmeier called Moran's ruling "only the beginning in a multiple-step process."Elkhorn residents want to retain their independence and control of their community, Eikmeier said. He expressed confidence that his town would prevail on appeal.John K. Green, another attorney with knowledge of Nebraska's annexation law, said Moran "went through every point raised by every party." Green detected one point, however, that Elkhorn conceivably could win on appeal. Elkhorn was the first to hold a meeting to present its annexation plan, on Feb. 21. Omaha followed with its initial meeting the next day. Elkhorn contends that it started first and should win on what is called the "prior jurisdiction rule." Moran determined that the rule wasn't applicable and that Omaha technically took the first valid step anyway.Green, the City of Gretna's attorney, said the Nebraska Supreme Court never has ruled on the prior jurisdiction argument in a case involving annexation.He said the appeal is the obvious next step in the fight between the two communities. "This case was always going to the Supreme Court because the stakes were so high," he said.Thirty-four years ago, the City of Omaha succeeded in annexing Millard after a long battle. The U.S. Supreme Court declined to hear the case in 1971, two years after Omaha had begun the process of annexation. The Elkhorn annexation fight is the biggest Omaha has taken on since then.