Opinion
No. 43268.
Filed March 6, 1981.
1. Zoning: Eminent Domain. Zoning ordinances are inapplicable to governmental projects for the construction of which the agency in question has the power to condemn or appropriate lands by the power of eminent domain. 2. ___: ___. The general rule is that the propriety of a taking of property by eminent domain is not defeated by the fact that the purpose for which the property is taken is a use prohibited by the zoning regulations.
Appeal from the District Court for Butler County: BRYCE BARTU, Judge. Affirmed.
George H. Moyer, Jr., of Moyer, Moyer Egley for appellants.
Kent F. Jacobs of Blevens, Blevens Jacobs for appellee.
Heard before BOSLAUGH, CLINTON, and BRODKEY, JJ., and REIMER and HIPPE, District Judges.
The plaintiffs are owners of Lots 8, 9, and 10, Block 2, Original Town of the Village of Brainard in Butler County, Nebraska, upon which is located a dwelling house which they intend to remodel and occupy as a dwelling. The defendant Village acquired by purchase Lots 11 and 12, Block 2, Original Town of the Village of Brainard, Nebraska, and have duly proceeded to construct a fire station thereon.
The plaintiffs brought this action for injunction in the District Court of Butler County, Nebraska, alleging violations of the duly adopted zoning ordinances of the Village of Brainard, Nebraska. A temporary restraining order was issued by the county court of Butler County, Nebraska, on May 17, 1979, in the absence of a district judge within the county. The District Court of Butler County dissolved the restraining order and plaintiff's application for a temporary injunction was denied on July 9, 1979. On January 14, 1980, the District Court denied a permanent injunction and dismissed the plaintiffs' petition. Motion for new trial was denied and appeal to this court was perfected.
It appears from the evidence that the fire station, which at the time of hearing on the permanent injunction was nearing completion, did not comply with certain setback provisions of the zoning ordinance. Plaintiffs further complain that construction of a fire station within a business district zone is not a permitted use under the zoning ordinance.
The plaintiffs contend on this appeal that the District Court erred in failing to apply the terms of the zoning ordinance to the construction of the fire station. The decision of the District Court is affirmed.
This court has not previously dealt with this exact question, but did rule on a related question in Seward County Board of Commissioners v. City of Seward, 196 Neb. 266, 242 N.W.2d 849 (1976), by deciding that injunction against the city of Seward in its condemnation proceeding to acquire land for airport purposes was not warranted, even though the land was within the zoning jurisdiction of the Seward County board of commissioners and its use as an airport may not have been a permitted use under the existing zoning regulations applying to that specific land.
Other jurisdictions generally grant to municipalities exemption from zoning ordinances in varying degrees, depending upon the theory of exemption adopted in that jurisdiction. The discussion at 82 Am. Jur. 2d Zoning and Planning 149, 150, 151, 152, and 153 (1976) indicates such exemptions may be based upon express exemption contained in the zoning ordinance, or pursuant to the construction of the zoning regulations themselves; also by the express language in a supervening statute suspending the applicability of the zoning regulation, and by reason of immunity of the sovereign from suit, or where the use of the property in question was in furtherance of a governmental, rather than a proprietary, function. In 152 at 636-37 eminent domain is discussed: "The view has gained some ascendancy that zoning ordinances are inapplicable to governmental projects for the construction of which the agency in question has the power to condemn or appropriate lands by the power of eminent domain. The courts supporting this view have, at least tacitly, reasoned that the power of eminent domain is superior to the zoning power, and that a political subdivision with mere zoning authority should not be permitted to prevent or place limitations upon a public use of property in the furtherance of which a governmental entity has been clothed with condemnation power by the state legislature."
This court has adopted the eminent domain theory of exemption in Seward County Board of Commissioners v. City of Seward, supra at 270, 242 N.W.2d at 852: "The general rule is that the propriety of a taking of property by eminent domain is not defeated by the fact that the purpose for which the property is taken is a use prohibited by the zoning regulations."
Furthermore, the Legislature has, at Neb. Rev. Stat. § 19-901 (Reissue 1977), limited the purposes of zoning by villages by the following language: "[L]egislative bodies . . . may adopt zoning regulations which regulate and restrict . . . the location and use of buildings, structures and land for trade, industry, residence or other purposes," and by inference withheld zoning authority over public buildings. In addition, the Legislature has provided for conflict between overlapping zoning authority in the grant of eminent domain authority at Neb. Rev. Stat. § 19-709 (Reissue 1977), wherein it is provided: "[T]he chairman and members of the board of trustees of any village shall have power to purchase or appropriate private property or school lands for the use of the . . . village for . . . public fire stations, training facilities for firemen . . . except that no . . . village may acquire through the exercise of the power of eminent domain or otherwise any real estate within the zoning jurisdiction of any other city of the first or second class or village for any of the works enumerated in this section if the use for which the real estate is to be acquired would be contrary to or would not be a use permitted by the existing zoning ordinances and regulations of such other city or village, but such real estate may be acquired within the zoning jurisdiction of another city of the first or second class or village for such contrary or nonpermitted use if the governing body of such other city or village shall approve such acquisition and use."
The order of the District Court denying permanent injunction and dismissing plaintiffs' petition is affirmed.
AFFIRMED.
CLINTON, J., concurs in result.