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Not Spot Zoned
by Ron Davis

Homeowners opposing construction of a huge new shopping center in their Nebraska neighborhood have now exhausted all means of legal resistance.

The shopping center, to be known as Market Pointe, will sit on 75 acres of land in the Omaha suburb of Papillion. Opponents of the project own homes surrounding the site, and, in fact, eight live within 300 feet of the property. Moreover, studies indicate that the large development would result in a “diminishing” of the value of homes in the area.

But Papillion city officials decided to allow the developers to build the shopping center, maintaining that the area would benefit through increased tax revenue and shopper convenience. So the officials held public hearings, then voted unanimously to rezone the property to permit the development.

The homeowners protested, arguing, first, that they were not given an opportunity to present their opposing views and, second, that the project represents “spot zoning,” in violation of local zoning guidelines.

Local officials pointed out, however, that the homeowners did in fact have chances to air their concerns over the project. Those chances included town hall meeting, planning commission meetings, city council meetings, and one-on-one conversations with city council members.

As to the charge of “spot zoning,” local officials noted that a 75-acre development could hardly be described as a “small parcel of land.” They added that the size and scope of the shopping center actually form the basis of the homeowners’ opposition.

The Nebraska Supreme Court, in its ruling allowing the project, explained, “A review of the record indicates that the homeowners had chances to voice their concerns in various settings. They were indeed given adequate opportunities to make their elected officials aware of their interests.... The city determined that the economic development promised by the Market Pointe project was in the public interest. Although the homeowners presented expert testimony in support of their contention that their property values would decrease as a result of the project, such evidence does not establish that the rezoning is either illegal or arbitrary and capricious.... The exercise of the power to zone may not be denied on the ground that individual property rights may be adversely affected thereby.” (Smith v. City of Papillion, 270 Neb. 607, 705 N.W.2d 584)

Decision: November 2005 Published: January 2006



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