Thursday, December 01, 2005

Follow up: Neighboring landowners who disputed Wal-Mart development in Papillion seek rehearing after Nebraska Supreme Court rejects their lawsuit against development; Their attorney claims the Papillion comprehensive plan is legislation that the City Council may not amend simply by resolutions Neighboring landowners have asked the Nebraska Supreme Court to reconsider its Nov. 10 decision allowing the project. Mike McClellan, an attorney for the neighbors, said the court's decision raises constitutional issues of due process and equal protection. Mike Schirber, the Papillion city attorney, concluded the neighbors' 25-page brief for rehearing raised no new issues. As a result, he said, they declined to formally respond. "Had we chosen to respond, we would have simply added about another 30 to 45 days to the process," Schirber said. "We didn't want to be a party to any further unnecessary delay." If the court were to grant a rehearing, the matter would be scheduled on the next available docket, which is currently in February. In their brief, neighbors challenge the court's conclusion that comprehensive development plans are administrative guides, not laws, that can be amended by resolution without the stricter public notice procedures to adopt an ordinance. Smith v City of Papillion. That conclusion, neighbors say, conflicts with a 1979 ruling of the Nebraska Supreme Court that the Lincoln City Council's adoption of a comprehensive plan was a legislative act. "They can't be right in 1979 and be right in 2005," McClellan said. See Copple v. City of Lincoln, 202 Neb. 152, 158, 274 N.W.2d 520, 524 (1979) ("[t]he comprehensive plan, as adopted by the City of Lincoln, itself recognizes it is only to serve as a general guide in the development of Lincoln and Lancaster County. While the comprehensive plan specifically refers to the location of [one defendant's] property as a site for a regional multiuse shopping center, it does not necessarily follow that [the defendant's] property will, in fact, be developed as the regional shopping center"). The Papillion City Council passed a resolution last year to change the city's comprehensive plan and allow the shopping area at 72nd Street and Giles Road. It would contain a Wal-Mart Supercenter, Lowe's home improvement store and Kohl's department store.

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