Omaha, Lincoln, Kansas City, Sioux Falls, Sioux City, and many other cities in the Midwest have grown so much that large residential or agricultural parcels within the city limits can be very valuable. However, they may be even more valuable after they have been rezoned to allow commercial or multifamily uses (like apartment complexes).
Omaha, Douglas County
In Omaha, zoning regulations are found in Section 55 of the City’s Municipal Code. In our hypothetical situation, we are considering whether a large tract of property currently zoned as residential property can be used for an apartment complex (multifamily). Section 55-105 of the Omaha Municipal Code indicates that is not an approved use. Thus, we would need to assist our client with a request that this property be rezoned.
The City presumes that stablished zoning is correct and appropriate. In order for property to be rezoned, we will need to sufficiently justify why the rezoning should be approved.
To request the rezoning of a property in Omaha, Nebraska we would follow quite a few steps for our clients.
Step 1: Schedule a pre-application discussion with a planner in the Omaha Planning Office ((402) 444-5150).
Step 2: Submit: a completed rezoning application form to the Manager of the Planning Department (the current form is available here). You will need to include a site plan showing existing and proposed improvements as well as the appropriate fee.
Contact the Planning Department to verify fees. Checks should be made payable to the City of Omaha.
The Planning Section will let you know of any deficiencies in the application submission within three (3) days. If you fail to submit a complete application, the case will be removed from the Planning Board agenda until all required information is provided.
Step 3: Following a review, the Planning Department will prepare and transmit a recommendation report to the applicant. This report is advisory only and may not represent the final decision on the case.
Step 4: Planning Board hearing. This hearing is intended to allow the public an opportunity to comment on the request and to receive additional information about the impact of the proposed change.
Step 5: Following the hearing the applicant will receive a letter advising of the action of the Planning Board. A recommendation will be forwarded to the City Council. A recommendation of denial will be forwarded to the City Council unless the applicant requests in writing that the Department not proceed with the application.
Step 6: City Council hearing. If the request is approved, the rezoning is established on the effective date of the ordinance (15 days after approval).
When the Planning Board recommends approval subject to the submission of revised plans or documents, that information must be submitted within thirty (30) days of the Planning Board meeting. If it is not submitted within that timeframe, the Planning Director will prepare and transmit the request with a Departmental recommendation for denial to the City Council.
The Planning Department will review all requests to determine:
- That the proposed change is consistent with and carries out the goals and objectives of the City of Omaha Master Plan.
- That the proposed change will allow an appropriate use of land which will not adversely affect the neighborhood by causing congestion; endanger public safety; cause undue concentration of people; impede the use of transportation, water, sewer, schools, parks or other public facilities; or, reduce the value of buildings.
- That the proposed use and site improvements can comply with site development, landscaping and parking requirements of the Zoning Ordinance.
In our hypothetical situation, we will need to look at the housing section of the Omaha Master Plan (page 21) and determine if this property to be rezoned to allow a multifamily use might fit within the City’s plan. It would help if this is considered a blighted area.
Sarpy County, Nebraska
In order to request the rezoning of property in Sarpy County, Nebraska (Bellevue and Papillion, Nebraska), you should follow these steps.
Step 1: Have an initial discussion with the Planning Department.
Step 2: Submit an application for a change of zone to the Planning Department with the appropriate form, with a filing fee payable to Sarpy County. The Fee is available on the “Master Fee Schedule for the Planning and Building Department.
The fee will include a mailing fee for written notices to be sent to property owners within 300 feet of the property which is the subject of the application to change zoning.
You will also need to submit a copy of the deed for the property.
Step 3: Public meeting.
The Sarpy County Planning Commission will consider the following factors when being asked to rezone a property. The Planning Commission will consider the Sarpy County Comprehensive Plan and other factors noted in the rezoning section of the Sarpy County zoning regulations.
Keep in mind the following application deadlines when considering an application to rezone property.
|Application Deadline||Planning Commission Meeting Date|
|June 3, 2019||July 16, 2019|
|July 1, 2019||August 20, 2019|
|August 1, 2019||September 17, 2019|
|September 3, 2019||October 15, 2019|
|October 1, 2019||November 19, 2019|
|November 1, 2019||December 17, 2019|
|December 3, 2019||January 21, 2020|
General considerations in Nebraska, and alternative options
As noted in the Nebraska Planning Handbook, zoning of property in conformity with master plans should represent a balance between private property rights and the value of public investments. If a rezoning is not permitted, you might consider a change to the zoning ordinance allowing an overlay zone for a the planned unit development. A planned unity development (PUD) is intended to provide flexibility in locating land uses within the land area of a specific development project.
PUD’s are often only allowed on multiple-acre parcels (for example, two or more acres). The PUD can allow the community and developer to negotiate a unique zoning solution for a specified parcel. Every city of the metropolitan, primary, and first class in Nebraska is permitted to include within its zoning ordinance provisions authorizing and regulating planned unit developments (Neb. Rev. Stat. § 19-4401). A PUD includes any development of land or an aggregation of adjacent parcels to be developed into a single project which proposes “density transfers, density increases, and mixing of land uses, or any combination thereof” based upon the application of site planning criteria.
The intent of a PUD is to:
- Permit flexibility in land development;
- Encourage innovative land uses and variety in design, layout, and types of structures;
- Achieve economy and efficiency in land use, natural resources, energy, and the provision of public services and utilities;
- Encourage the preservation of useful open space; and 5. provide improved housing, employment, or shopping opportunities.
To authorize a PUD, the city must enact an ordinance establishing criteria relating to the review of the proposed PUD to ensure that the proposed PUD is:
- Compatible with adjacent land uses;
- Supportable by capacities of public infrastructure; and
- Consistent with the public health, safety, and welfare standards of the city, as well as with the comprehensive plan.
The PUD ordinance must contain regulations dealing with permitted uses, lot sizes, setbacks, height limits, required facilities, buffers, open spaces, roadway and parking design, and land use density. These regulations need not be uniform with regard to each land use. The approval of a PUD is to be similar to the procedures established for zone changes. The city may, either by conditional approval or by separate agreement, impose such reasonable conditions as it deems necessary to ensure that the PUD accomplishes its objectives.
If you are considering rezoning your property in Douglas or Sarpy County Nebraska, you should carefully consider the Master Plan of the City and whether your proposed use will fit. For questions, contact one of our attorneys at our Omaha, Sioux City, or Sioux Falls office today.
Angela Madathil is a Real Estate, M&A, and Deal Attorney and provides legal assistance to buyers and sellers of businesses, as well as business brokers in Nebraska, Missouri, and Kansas. This can involve contract review and negotiation, due diligence assistance, and post-sale integration. The Goosmann Law Firm team advises to buyers and sellers of commercial real estate throughout the Midwest and has attorneys licensed in Iowa, Kansas, Minnesota, Missouri, Nebraska, South Dakota, and other states.