ANSWER, COUNTERCLAIM AND APPLICATION FOR TEMPORARY by ixv13561

VIEWS: 5 PAGES: 23

									            IN THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA


THE CITY OF ELKHORN, NEBRASKA,       )             DOC. 1047                    NO. 620
a municipal corporation; CITY OF     )
ELKHORN MAYOR PHILLIP KLEIN;         )
CITY OF ELKHORN COUNCILMEN           )
MURRAY MCARDLE, GREG                 )
ROSENBAUM, JEROME GIVEN,             )
DAVID ROSACKER, DENNIS               )
KRECKLOW, and MARK JOHNSON;          )
MICHAEL MILLER; and PATRICK          )
MORRISSEY,                           )
                                     )
                     Plaintiffs,     )
                                     )
vs.                                  )
                                     )
CITY OF OMAHA, NEBRASK, a            )
Municipal corporation; CITY OF OMAHA )
MAYOR MIKE FAHEY; and CITY OF        )
OMAHA COUNCIL MEMBERS JAMES )
VOKAL, JR., CHUCK SIGERSON, JR., )
MARC KRAFT, FRANK BROWN,             )
GARRY GERNANDT, DAN WELCH,           )
And FRANKLIN THOMPSON,               )
                                     )
                     Defendants.     )



        ANSWER, COUNTERCLAIM AND APPLICATION FOR TEMPORARY
        RESTRAINING ORDER, PRELIMINARY INJUNCTION, PERMANENT
               INJUNCTION, AND DECLARATORY JUDGMENT

       Defendants, City of Omaha, Mayor Michael Fahey, and City of Omaha Councilmen,

James Vokal, Jr., Chuck Sigerson, Jr., Marc Kraft, Frank Brown, Garry Gernandt, Dan Welch,

and Franklin Thompson (collectively the “Defendants”), file this Answer, and Counterclaims

with an Application for Temporary Restraining Order, Preliminary Injunction, Permanent

Injunction, and Declaratory Judgment against the City of Elkhorn, its Mayor and City Council

Members.
                                           ANSWER

       For their Answer, Defendants state as follows:

       1.      Defendants admit that the City of Elkhorn is a municipal corporation and is a first

class city located within Douglas County, Nebraska. Defendants further admit that Phillip Klein

is the acting Mayor of the City of Elkhorn and that Murray McArdle, Greg Rosenbaum, Jerome

Given, David Rosacker, Dennis Krecklow, and Mark Johnson are acting City Councilmen of the

City of Elkhorn. Defendants are without sufficient knowledge or information to either admit or

deny the remaining allegations contained in paragraph 1 and, therefore, deny the same.

       2.      Defendants are without sufficient knowledge to either admit or deny the

allegations contained in paragraph 2 and, therefore, deny the same.

       3.      Defendants are without sufficient knowledge to either admit or deny the

allegations contained in paragraph 3 and, therefore, deny the same.

       4.      Defendants admit the allegations contained in paragraph 4.

       5.      Defendants deny the allegations contained in paragraph 5.

       6.      In answer to paragraph 6, Defendants state they are without sufficient knowledge

to either admit or deny the population of Elkhorn immediately preceding February 21, 2005, or

the population of Elkhorn after any attempted annexation, and therefore deny the same. The

remaining allegations contained in paragraph 6 are legal conclusions to which no answer is

required. To the extent an answer is required, Defendants deny the same.

       7.      Defendants deny the allegations contained in paragraph 7.

       8.      Defendants deny the allegations contained in paragraph 8.

       9.      Defendants admit the allegations contained in paragraph 9.




                                                2
        10.     In answer to paragraph 10, Defendants admit that notice of its February 22, 2005,

meeting was posted at 9:51 a.m. on February 22, 2005. Defendants deny the remaining

allegations contained in paragraph 10.

        11.     Defendants deny the allegations contained in paragraph 11.

        12.     Defendants deny the allegations contained in paragraph 12.

        13.     Defendants admit the allegations contained in paragraph 13.

        14.     Defendants admit the allegations contained in paragraph 14.

        15.     Defendants admit the allegations contained in paragraph 15.

        16.     Defendants deny the allegations contained in paragraph 16.

        17.     Defendants deny the allegations contained in paragraph 17.

        18.     Defendants deny the allegations contained in paragraph 18.

        19.     Defendants deny the allegations contained in paragraph 19.

                                       First Claim For Relief

        20.     Defendants incorporate herein by reference their responses to paragraphs 1

through 19 as if fully set forth herein.

        21.     Defendants deny the allegations contained in paragraph 21.

        22.     In answer to paragraph 22, Defendants state that Neb.Rev.Stat. § 84-1414 speaks

for itself and deny any allegations inconsistent therewith.

        23.     Defendants deny the allegations contained in paragraph 23.

        24.     Defendants admit that Plaintiffs’ action was filed within 120 days of the February

22, 2005 special meeting of the City Council of the City of Omaha, but deny that Plaintiffs have

any claim for relief under the Open Meetings Act.




                                                 3
                                      Second Claim For Relief

        25.     Defendants incorporate herein by reference their responses to paragraphs 1

through 24 as if fully set forth herein.

        26.     Defendants deny the allegations contained in paragraph 26.

        27.     Defendants deny the allegations contained in paragraph 27.

        28.     Defendants deny the allegations contained in paragraph 28.

        29.     Defendants deny the allegations contained in paragraph 29.

                                      Third Claim For Relief

        30.     Defendants incorporate herein by reference their responses to paragraphs 1

through 29 as if fully set forth herein.

        31.     In answer to paragraph 31, Defendants state that Neb.Rev.Stat. § 14-117 speaks

for itself and deny any allegations inconsistent therewith.

        32.     In answer to paragraph 32, Defendants state they are without sufficient knowledge

to either admit or deny the population of Elkhorn immediately preceding February 21, 2005, or

the population of Elkhorn after any attempted annexation, and therefore deny the same. The

remaining allegations contained in paragraph 6 are legal conclusions to which no answer is

required. To the extent an answer is required, Defendants deny the same.

        33.     Defendants deny the allegations contained in paragraph 33.

        34.     Defendants deny the allegations contained in paragraph 34.

        35.     Defendants deny the allegations contained in paragraph 35.

                WHEREFORE, having fully answered Plaintiffs’ Complaint, the Defendants pray

        that the Plaintiffs’ complaint be dismissed with prejudice, at the Plaintiffs’ costs.




                                                  4
                                       Affirmative Defenses

        1.      For further answer, the Defendants incorporate herein the allegations contained in

the counterclaim and application for injunctive relief below.

        2.      The City of Elkhorn’s notice and holding of its special meeting failed to meet the

requirements of the Open Meeting Act, Neb. Rev. Stat. § 84-1407 et seq.

        3.      The City of Elkhorn’s annexations are invalid because they attempt to annex land

that is not contiguous or adjacent.

        4.      The City of Elkhorn’s annexations are invalid because they attempt to annex land

that is agricultural in character.

        5.      The City of Elkhorn’s annexations are invalid because they are unreasonable.

        6.      The City of Elkhorn’s annexations are invalid because they are improperly

motivated.

        7.      The City of Elkhorn’s annexations are invalid because the City of Elkhorn is

unable to adequately provide services to the land and inhabitants living on said land.

        8.      The City of Elkhorn’s annexation are invalid because the City of Omaha annexed

the City of Elkhorn prior to the passage and effective date of the City of Elkhorn Annexation

Ordinances.

        9.      In further defense, the Defendants incorporate each and every additional affirmative

defense that may be uncovered or made known during investigation and discovery of this case. the

Defendants specifically reserve the right to amend its answer to include additional affirmative

defenses at the time they are discovered.




                                                  5
COUNTERCLAIM FOR APPLICATION FOR TEMPORARY RESTRAINING ORDER,
        PRELIMINARY INJUNCTION, PERMANENT INJUNCTION,
                 AND DECLARATORY JUDGMENT

           The City of Omaha, for its Counterclaim and Application for Temporary Restraining

Order, Preliminary Injunction, and Permanent Injunction, states as follows:

                                    Emergency Nature of Relief Requested

           On March 8, 2005, the City of Omaha, through its City Council, passed an ordinance

annexing land contiguous, adjacent, and within the City of Elkhorn (“City of Omaha Annexation

Ordinance”). The City of Omaha Annexation Ordinance becomes effective on March 24, 2005,

fifteen days after passage. The City of Elkhorn City Council held a Special Meeting on March

15, 2005, during which the City of Elkhorn City Council passed ordinances purporting to annex

land within the City of Omaha’s extraterritorial jurisdiction and other land (“City of Elkhorn

Annexation Ordinances”). The City of Elkhorn Annexation Ordinances, unless otherwise

enjoined would become effective on March 30, 2005, fifteen days after passage. See,

Neb.Rev.Stat. Section 19-3701.1

           The City of Elkhorn Annexation Ordinances must not be allowed to become effective

because the City of Omaha has annexed the City of Elkhorn prior to both the passage and

effective date of the City of Elkhorn Annexation Ordinances. The City of Elkhorn will cease to

exist as a separate municipality upon March 24, 2005 (the effective date of the City of Omaha

Annexation Ordinance). Therefore, the City of Elkhorn Annexation Ordinances, as well as any

other actions taken by the City of Elkhorn after such date, are null and void. Moreover, the City

of Elkhorn’s proposed annexation will create a permanent impediment to the City of Omaha’s

ability to grow and will create an irregular boundary between the two cities which will increase

the cost of providing police, fire and street maintenance services.
1
    All statutory references are to Neb.Rev.Stat. unless noted otherwise.


                                                            6
       If allowed to become effective, the City of Elkhorn Annexation Ordinances will cause

tremendous confusion concerning the status of the various properties contained in the City of

Omaha Annexation Ordinance and will hinder the City of Omaha’s ability to enforce the City of

Omaha Annexation Ordinance. Furthermore, the City of Elkhorn Annexation Ordinances will

impede the City of Omaha’s ability to regulate such matters as zoning, subdivision controls,

property maintenance, street and driveway construction, building, plumbing and other structural

or construction codes within its extraterritorial jurisdiction. If the City of Elkhorn Annexation

Ordinances are not enjoined from becoming effective, the City of Omaha will be irreparably

harmed, without adequate remedy at law.

       If the City of Elkhorn is not immediately restrained and enjoined from carrying out its

said Annexation Ordinances during the pendency of this action, then the City of Elkhorn would

proceed to exercise full municipal jurisdiction over the areas targeted in its Annexation

Ordinances (some of which areas are currently within the extraterritorial jurisdiction of the City

of Omaha, as described below). This would include taking over the assets and liabilities of the

sanitary and improvement districts involved; the exercise of regulatory and police power over the

targeted areas; the assertion of control and maintenance over the involved streets, parks, and

other public properties; the attempt to levy and collect property taxes and other taxes in the

targeted areas; and other substantial assertions of power and control difficult or impossible to

reverse after exercised.

       Furthermore, if the City of Elkhorn is not immediately restrained and enjoined from

making expenditures or monetary commitments of a capital or extraordinary nature, entering into

long term agreements, in anticipation of the City of Omaha’s annexation of Elkhorn, then the

City of Elkhorn may purposely deplete its own funds and property to arguably frustrate Omaha’s




                                                 7
annexation. The City of Elkhorn has already entered into agreements to unreasonably dispose of

property or funds upon Omaha’s annexation, and may continue to do so.

                                           The Parties

       1.      The City of Omaha, is a municipal corporation of the metropolitan class,

organized and existing under and by virtue of the Constitution and laws of the State of Nebraska

and its Home Rule Charter, and is located in Douglas County, Nebraska.

       2.      The City of Omaha has a population of over 300,000.

       3.      The City of Elkhorn is a city of the First Class, organized and existing under and

by virtue of the Constitution and laws of the State of Nebraska, and is located in Douglas

County, Nebraska.

       4.      The City of Elkhorn has a population over 5,000, but less than 10,000.

       5.      Mayor Phillip E. Klein is the duly elected or appointed, qualified and acting

Mayor of the City of Elkhorn.

       6.      Jerome Given, Murray McArdle, Dennis Krecklow, Dave Rosacker, Greg

Rosenbaum, and Mark Johnson are duly elected or appointed, qualified and acting council

members in and for the City of Elkhorn.

                                       Statutory Authority

       7.      The City of Omaha, as a city with a population in excess of 300,000, is a City of

the Metropolitan Class. Section 14-101.

       8.      As a City of the Metropolitan Class, the City of Omaha may extend its corporate

limits, by ordinance, by annexing any adjoining city of the first class having a population less

than 10,000. Section 14-117.




                                                 8
        9.      Pursuant to state laws including Sections 14-418, 14-419, and 14-116, Omaha

exercises extraterritorial jurisdiction over all lands outside, but within three miles, of its

corporate boundaries. Such jurisdiction includes power to regulate such matters as zoning,

subdivision controls, property maintenance, street and driveway construction, building, plumbing

and other structural or construction codes.

        10.     The City of Elkhorn, having a population greater than 5,000, but less than

100,000, is a City of the First Class. Section 16-101.

        11.     As a City of the First Class, the City of Elkhorn may extend its corporate limits,

by ordinance, over contiguous or adjacent lands that are urban or suburban in character, but not

over agricultural land which is rural in character. Section 16-117.

        12.     Pursuant to state laws including sections 16-901, 16-902, and 16-240, Elkhorn

exercises extraterritorial jurisdiction over all lands outside, but within two miles, of its corporate

boundaries. Such jurisdiction includes power to regulate such matters as zoning, subdivision

controls, health, building, plumbing and other structural or construction codes.

        13.     Before passing an annexation ordinance, cities of the first class must pass a

resolution of intent stating that the city is considering the annexation of land and a detailed plan

for extending county services to the land. Section 16-117. The resolution must be published and

provide for a public hearing to allow the City Council to receive testimony from interested

persons. Section 16-117.

                                              Background

        14.     On Tuesday, February 15, 2005, Elkhorn published in the Douglas County Post-

Gazette a notice stating that a Special Meeting of the Elkhorn Mayor and City Council would be

held on the following Monday, February 21, 2005, at 12:00 p.m. at the Bess Johnson Elkhorn




                                                   9
Public Library in Elkhorn. Attached hereto as Exhibit “A” and incorporated herein by reference

is a true and correct copy of the Notice of Special Meeting. The only proposed item of discussion

listed in the notice was the “One and Six Year Street Plan for the City of Elkhorn.” The notice

added that an agenda for the meeting, kept continually current, was available for public

inspection at the office of the City Clerk for Elkhorn.

       15.     Upon information and belief, the City of Elkhorn issued an agenda for the Special

Meeting scheduled for February 21, 2005 at the City of Elkhorn Public Library.

       16.     Upon information and belief, on February 21, 2005, President’s Day, the City of

Elkhorn held its Special Meeting, without public hearing and access, in the Bess Johnson

Elkhorn Public Library, which was closed to the public, and purportedly passed a resolution

expressing its desire to annex various properties beyond its city limits. Attached hereto as

Exhibit “B” and incorporated herein by reference is a true and correct copy of the City of

Elkhorn Resolution. The resolution provided that a public hearing on the proposed annexation

ordinances would take place on March 11, 2005.

       17.     Upon information and belief, the City of Elkhorn is attempting to annex those

properties listed in its resolution for the sole purpose of increasing its population over 10,000.

       18.     On February 22, 2005, the Omaha City Council first read the City of Omaha

Annexation Ordinance proposing the annexation of various properties, including the City of

Elkhorn.

       19.     On March 1, 2005, the Omaha City Council held a second reading of the City of

Omaha Annexation Ordinance and held a public hearing on the ordinance.

       20.     On March 2, 2005, the Omaha Planning Board recommended the approval of the

City of Omaha’s Plan of Annexation and Annexation Ordinance.




                                                 10
       21.     On March 8, 2005, the Omaha City Council held a third reading and passed the

City of Omaha Annexation Ordinance.

       22.     On March 11, 2005, Elkhorn held a public hearing on its proposed annexation

ordinances. Following that meeting, the Elkhorn City Council held the first reading of the City

of Elkhorn Annexation Ordinances. Attached hereto as Exhibit “C” and incorporated herein by

reference is a true and correct copies, collectively, of the City of Elkhorn Annexation

Ordinances.

       23.     On March 14, 2005, the Elkhorn City Council held the second reading of the City

of Elkhorn Annexation Ordinances.

       24.     On March 15, 2005, the Elkhorn City Council held its third reading of the City of

Elkhorn Annexation Ordinances and passed those ordinances.

       25.     On March 24, 2005, the City of Omaha Annexation Ordinance will become

effective.

       26.     The City of Elkhorn Annexation Ordinances have yet to become effective.

                                    CLAIMS FOR RELIEF

                       I. Application for Temporary Restraining Order,
                      Preliminary Injunction and Permanent Injunction.

       27.     All of the allegations contained elsewhere in this Counterclaim are incorporated

herein by this reference.

       28.     On March 8, 2005, the City of Omaha passed the City of Omaha Annexation

Ordinance annexing the City of Elkhorn and surrounding land.

       29.     The City of Elkhorn purportedly passed the City Elkhorn Annexation Ordinances

on March 15, 2005. The City Elkhorn Annexation Ordinances are null and void because they




                                                11
were passed after the City of Omaha annexed the City of Elkhorn and they do not become

effective until after the City of Omaha Annexation Ordinance becomes effective.

       30.     To allow the City of Elkhorn Annexation Ordinance to become effective or be

enforced will create tremendous confusion concerning the land annexed by the City of Omaha

and will hinder the City of Omaha’s exercise of jurisdiction over the annexed land.

        31.    Some of the lands set forth in the City of Elkhorn Annexation Ordinances lie

within the City of Omaha’s three-mile extraterritorial jurisdiction over which the City of Omaha

has the power to promulgate and enforce regulations relating to zoning, subdivision, property

maintenance, street and driveway construction, building, plumbing, and other structural or

construction matters.

        32.    The City of Elkhorn’s proposed annexations would deprive the City of Omaha of

the following, as to such areas within Omaha’s three-mile extraterritorial jurisdiction:

               a. Omaha would lose its present and future power to promulgate and enforce

               regulations relating to zoning, subdivision, property maintenance, street and

               driveway construction, building, plumbing, and other structural or construction

               matters, in the aforesaid areas lying within Omaha’s three-mile zoning

               jurisdiction but proposed to be annexed by Elkhorn; and

               b. Omaha would lose substantial amounts of revenue from fees for rezonings, use

               permits, subdivision plats, building permits and other permits and applications

               relating to land use and development in such areas, all of which would be

               collected by Omaha unless those areas were annexed by Elkhorn.




                                                12
        33.    The City of Elkhorn passed the Elkhorn Annexation Ordinances for the sole

purpose of attaining a population of over 10,000 persons so as to frustrate any future attempt by

the City of Omaha to annex the City of Elkhorn.

        34.    If the City of Elkhorn’s proposed annexations become effective notwithstanding

the City of Omaha’s annexation, and if the City of Elkhorn’s population does exceed 10,000, the

City of Omaha’s annexation of the City of Elkhorn would be directly impacted.

        35.    The City of Elkhorn’s proposed annexations would also create a narrow,

elongated north-south configuration of the City of Elkhorn boundaries, presenting a substantial

geographic barrier to any further growth of the City of Omaha to the west.

        36.    The City of Elkhorn’s proposed annexations would halt the ability of the City of

Omaha to annex and grow. If the City of Omaha cannot continue to annex and grow, then it will

become hemmed in by other jurisdictions, decreasing its tax and population base, and reducing

its ability to provide services within its boundaries, despite the fact that such other jurisdictions

benefit from proximity to the City of Omaha.

        37.    The City of Elkhorn’s proposed annexations would harm the efficiency, funding

equity, and effectiveness of providing municipal services to the entire metropolitan Omaha area,

including the City of Omaha itself.

       38.     The City of Omaha would be subjected to very serious legal burdens that would

restrict its development and growth and result in insurmountable and irrevocable damage to it, its

citizens, electors, residents, property owners and taxpayers if the City of Elkhorn Annexation

Ordinances become effective.




                                                 13
       39.     The City of Omaha will also face significant legal burdens in enforcing its

ordinances over the property described in the City of Omaha’s Annexation Ordinance if the City

of Elkhorn Annexation Ordinances are not enjoined from becoming effective.

       40.     The City of Omaha’s police power and the power to prosecute violators of its

laws would be impaired if Defendants are permitted to make effective or enforce the City of

Elkhorn’s Annexation Ordinances.

       41.     The City of Omaha would suffer irreparable loss and damage beyond repair by

subsequent judicial proceedings and a multiplicity of suits would be caused if the City of

Elkhorn Annexation Ordinances are allowed to become effective or to be enforced during the

pendency of this suit.

       42.     Upon annexation of the City of Elkhorn, the City of Omaha would assume all of

the then-existing assets, valid liabilities, and valid agreements of the City of Elkhorn, under state

law. Omaha, in its past annexations of sanitary and improvement districts (SIDs), has

experienced SIDs engaging in unreasonable expenditures of funds, depletions of assets, and

disadvantageous agreements in anticipation of annexation. The City of Elkhorn has already

entered into agreements providing for unreasonable disbursements in the event of annexation, as

detailed in the prayer of this counterclaim, below. In order to prevent further or similar practices

by the City of Elkhorn, a temporary injunction should be entered to restrict or otherwise

supervise its proposed expenditures of a capital or extraordinary nature and service contracts.

Otherwise, the City of Omaha would suffer irreparable loss and damage.

       43.     A substantial likelihood exists that the City of Omaha will prevail on the merits of

its claims herein.




                                                 14
       44.     The issuance of a temporary restraining order and temporary injunction will result

in no harm to Plaintiffs.

                                   II. Declaratory Judgment

                          A. The City of Elkhorn’s Special Meeting
                of February 21, 2005 Was Contrary to the Open Meeting Act
                    and All Actions Taken at its Special Meeting Are Void.

       45.     All of the allegations contained elsewhere in this Counterclaim are incorporated

herein by this reference.

        46.    Section 84-1411(1) provides, in relevant part:

               Each public body shall give reasonable advance publicized notice of
               the time and place of each meeting by a method designated by each
               public body and recorded in its minutes. Such notice shall be
               transmitted to all members of the public body and to the public.
               Such notice shall contain an agenda of subjects known at the time of
               the publicized notice or a statement that the agenda, which shall be
               kept continually current, shall be readily available for public
               inspection at the principal office of the public body during normal
               business hours. Except for items of an emergency nature, the
               agenda shall not be altered later than (a) twenty-four hours before
               the scheduled commencement of the meeting or (b) forty-eight
               hours before the scheduled commencement of a meeting of a city
               council or village board scheduled outside the corporate limits of the
               municipality. The public body shall have the right to modify the
               agenda to include items of an emergency nature only at such public
               meeting.

        47.    Section 84-1414 provides, in relevant part:

               Any motion, resolution, rule, regulation, ordinance, or formal action
               of a public body made or taken in violation of the Open Meetings
               Act shall be declared void by the district court if the suit is
               commenced within one hundred twenty days of the meeting of the
               public body at which the alleged violation occurred.

        48.    On February 15, 2005, the City of Elkhorn published notice of its February 21,

2005, Special Meeting, but the notice made no reference to the proposed annexation resolution.




                                                15
        49.    Upon information and belief, at the time the City of Elkhorn published notice of

its February 21, 2005, Special Meeting, the Plaintiffs knew that the annexation resolution would

be discussed at its February 21, 2005, Special Meeting.

        50.    Upon information and belief, , the City of Elkhorn issued an agenda for the

February 21, 2005, Special Meeting.

        51.    The City of Elkhorn’s holding of its Special Meeting at the City of Elkhorn Public

Library, on a day that the Public Library and all city offices were closed for Presidents Day,

failed to provide reasonable notice, failed to provide a public hearing, and failed to accommodate

the public’s right to attend, hear, and speak at the Special Meeting.

        52.    The City of Elkhorn’s Special Meeting of February 21, 2005, failed to meet the

requirements of section 84-1411 and applicable Nebraska statutes.

        53.    All actions taken by the City of Elkhorn at its Special Meeting of February 21,

2005, are void as provided in section 84-1414.

                    B. The City of Elkhorn’s Annexations are Invalid
        Because they Attempt to Annex Lands that are Not Contiguous or Adjacent

       54.     All of the allegations contained elsewhere in this Counterclaim are incorporated

herein by this reference.

        55.    Section 16-117 provides, in relevant part:

        The corporate limits of a city of the first class shall remain as before, and
        the mayor and council may by ordinance . . . at any time include within the
        corporate limits of such city any contiguous or adjacent lands. (emphasis
        added)

        56.    Section 16-118 provides:

               Lands, lots, tracts, streets, or highways shall be deemed contiguous
               although a stream, embankment, strip, or parcel of land not more
               than two hundred feet wide lies between the same and the corporate
               limits.



                                                 16
        57.    The City of Elkhorn has purportedly passed the City of Elkhorn Annexation

Ordinances which propose to annex land near and around the City of Elkhorn.

        58.    Some of the areas proposed to be annexed by the City of Elkhorn Annexation

Ordinances are not adjacent and contiguous to the City of Elkhorn, and therefore cannot be

annexed under Nebraska law.

        59.    The City of Elkhorn Annexation Ordinances propose to annex land which is

across the Elkhorn River at a point where the Elkhorn River is more that 200 feet wide, in

contravention of section 16-118.

        60.    The annexation resolution is contrary to the mandates of sections 16-117 and 16-

118 because it proposes to annex lands that are not contiguous or adjacent and the City of

Elkhorn does not have the authority to extend its boundaries over such land.

                    C. The City of Elkhorn’s Annexations are Invalid
         Because they Attempt to Annex Lands that are Agricultural in Character

       61.     All of the allegations contained elsewhere in this Counterclaim are incorporated

herein by this reference.

        62.    Section 16-117 provides, in relevant part:

        The corporate limits of a city of the first class shall remain as before, and
        the mayor and council may by ordinance . . . include within the corporate
        limits of such city any contiguous or adjacent lands, lots, tracts, streets, or
        highways as are urban or suburban in character and in such direction as
        may be deemed proper. Such grant of power shall not be construed as
        conferring power upon the mayor and council to extend the limits of a city
        of the first class over any agricultural lands which are rural in character.
        (emphasis added)

        63.    The City of Elkhorn has purportedly passed the City of Elkhorn Annexation

Ordinances which proposes to annex land near and around the City of Elkhorn.




                                                  17
        64.    The City of Elkhorn Annexation Ordinance proposes to annex agricultural lands

which are rural in character.

        65.    The City of Elkhorn Annexation Ordinances are contrary to the mandates of

section 16-117 because they propose to annex agricultural lands which are rural in character and

the City of Elkhorn does not have the authority to extend its boundaries over such land.

    D. The City of Elkhorn’s Annexations are Invalid Because they are Unreasonable,
     Improperly Motivated, and the Annexed Lands Cannot Be Adequately Served.

        66.    All of the allegations contained elsewhere in this Counterclaim are incorporated

herein by this reference.

        67.    Section 16-120 provides, in relevant part:

               The inhabitants of territories annexed to such city shall receive
               substantially the services of other inhabitants of such city as soon as
               practicable. Adequate plans and necessary city council action to
               furnish such services shall be adopted not later than one year after
               the date of annexation, and such inhabitants shall be subject to the
               ordinances and regulations of such city, except that the one-year
               period shall be tolled pending final court decision in any court
               action to contest such annexation.

        68.    The City of Elkhorn has purportedly passed the City of Elkhorn Annexation

Ordinances which propose to annex land near and around the City of Elkhorn.

        69.    Upon information and belief, the City of Elkhorn Annexation Ordinances propose

to annex land which would greatly increase the City of Elkhorn’s geographic area, by 25% or

more.

        70.    Upon information and belief, the City of Elkhorn Annexation Ordinances propose

to annex land which would increase the City of Elkhorn’s population by about 25%.

        71.    The City of Elkhorn has published an annexation plan under which it proposes to

provide services to inhabitants of the annexed territories.




                                                 18
          72.   The annexation plan reveals that the proposed annexation is not intended to foster

the City of Elkhorn’s orderly growth and expansion, but was cobbled together solely to prevent

the City of Omaha’s annexation efforts to foster its orderly growth and expansion.

          73.   The annexation plan adopted by the City of Elkhorn fails to state or address any

need or advantage for the City of Elkhorn to expand its power, jurisdiction or boundaries over

the areas targeted by it for annexation. The annexation plan fails to cite any reasons for the

annexation that are grounded on sound planning principles or orderly growth. To the contrary,

the sole reason for the City of Elkhorn’s proposed annexation is to reach a population of 10,000

and thereby attempt to preclude annexation by the City of Omaha.

          74.   The annexation plan fails to demonstrate that the City of Elkhorn will be able to

provide adequate services to the annexed inhabitants as required by section 16-120.

          75.   The City of Elkhorn’s annexation effort is improperly motivated and the City of

Elkhorn may not extend its boundaries over such land.

         E. The City of Omaha is Not Barred from Annexing the City of Elkhorn
     Because the City of Elkhorn Has a Population Less Than Ten Thousand (10,000).

       76.      All of the allegations contained elsewhere in this Counterclaim are incorporated

herein by this reference.

          77.   The City of Elkhorn has purportedly passed the City of Elkhorn Annexation

Ordinances which propose to annex land near and around the City of Elkhorn.

          78.   The City of Elkhorn acknowledges that its current population is less than ten

thousand (10,000).

          79.   The City of Elkhorn has made no attempt to certify that its population exceeds

10,000.




                                                19
       80.     The City of Omaha is statutorily authorized to annex any adjoining city of the

first class having less than ten thousand (10,000) population. Section 14-117.

       81.     The City of Elkhorn, having less than ten thousand (10,000) population, may be

annexed by the City of Omaha.

       WHEREFORE, the Defendants pray as follows:

       1.      That this Court, in exercise of its equitable jurisdiction, temporarily and

permanently restrain and enjoin Plaintiffs, and each of them, their agents, servants and

employees, until further order of the Court from:

                       a.     Enforcing in any manner the City of Elkhorn Annexation

               Ordinance Nos. 550, 551, 552, 553, 554, 555, 556, 557, and 558 passed March

               15, 2005, or any subsequent ordinance concerning any extension of its

               boundaries.

                       b.     Defining the boundaries of the City of Elkhorn so as to include

               within the said boundaries the territory or any part of the territory set forth in the

               City of Elkhorn Annexation Ordinance Nos. 550, 551, 552, 553, 554, 555, 556,

               557, and 558 , or any subsequent annexation ordinance relating to the same

               property or accomplishing the same purported purpose of increasing the City of

               Elkhorn’s population above 10,000.

                       c.     Assuming control and authority or exercising jurisdiction and

               domain as a municipal corporation over the territory or any part thereof

               comprising the property set forth in the City of Elkhorn Annexation Ordinance

               (except that extraterritorial jurisdiction that had been exercised immediately prior




                                                 20
to passage of the said City of Elkhorn Annexation Ordinance may continue to be

exercised).

        d.     Making or agreeing to make any transfer of property or funds of

the City of Elkhorn that is not reflected or contemplated in the City of Elkhorn

itemized budget for the fiscal year 2004-2005, a copy of which is attached as

Exhibit “D”; that is for any new capital improvements or capital planning; that is

for any new service contract; or that is otherwise extraordinary or capital in

nature. This order may be amended so as to authorize spending of funds not

identified in its budget for fiscal year 2004-2005 but that is necessary for its

continued, day-to-day, general operation. This order may be amended so as to

authorize spending in fiscal years subsequent to 2004-2005 if this action is still

pending, but only to allow for regular operating expenditures similar in nature to

those itemized in Exhibit “D,” or spending as is necessary for its continued, day-

to-day general operation, and that are not for new capital improvements, capital

planning, new service contracts, or other extraordinary expenditures. In

particular, there shall be no expenditures for the design or construction of a new

fire station and the Main Street South Assessment District expenditures shall not

exceed the special assessment revenues for the District.

        e.     Enforcing the Interlocal Agreement between the School District

No. 10, a/k/a Elkhorn School District, and the City of Elkhorn relating to the

Community Center. Specifically, the provision contained in Article XIII, section

4, which provides:

        Upon the termination of either party’s existence as a
separate legal entity or transfer by operation of law, merger,



                                 21
               consolidation or other action, the other party shall have the right to
               immediately acquire without the assumption of any outstanding
               obligation of the other party of bonded indebtedness incurred for
               contracts of the Community Center of School District Facilities,
               full right, title and interest in all of that property’s rights under this
               Agreement.

                       f.     Enforcing the Interlocal Agreement between the Douglas County

               Rural Fire District and the City of Elkhorn relating to transfer of fire equipment

               or assets upon annexation.

                       g.     Enforcing any agreement between the City of Elkhorn and its

               police officers which provides for the payment of money, bonuses, or other

               consideration to police officers upon the annexation of the City of Elkhorn.

       2.     That this Court, in exercise of its powers under the Uniform Declaratory

Judgment Act, enter its judgment declaring:

                       a.     The City of Omaha Annexation Ordinance is effective and prevails

               over the City of Elkhorn Annexation Ordinances; and the City of Elkhorn

               Annexation Ordinances and any ordinance of the City of Elkhorn purporting to

               annex additional properties are unlawful, void and of no effect;

                       b.     The City of Elkhorn ceased to exist as a city of the first class as of

               the effective date of the City of Omaha Annexation Ordinance, March 24, 2005,

               and all subsequent acts of the City of Elkhorn, its Mayor and City Council, to the

               extent they are inconsistent with the City of Omaha’s Annexation Ordinance, are

               null and void; and

                       c.     The City of Elkhorn’s Annexation Ordinances are invalid and void.




                                                  22
       3.     That the Court allow the Defendants their costs incurred in this matter.

       4.     That the Court grant such other and further relief as it deems just and proper.

                                            CITY OF OMAHA, MAYOR MIKE FAHEY; and
                                            CITY OF OMAHA COUNCIL MEMBERS
                                            JAMES VOKAL, JR., CHUCK SIGERSON, JR.,
                                            MARC KRAFT, FRANK BROWN, GARRY
                                            GERNANDT, DAN WELCH, and FRANKLIN
                                            THOMPSON, Defendants

                                     By:    _____________________________
                                            Paul D. Kratz, #12318
                                            Alan M. Thelen, #17811
                                            City of Omaha, City Attorney
                                            804 Omaha/Douglas Civic Center
                                            1819 Farnam Street
                                            Omaha, NE 68183
                                            (402) 444-5115

                                            and

                                            William M. Lamson, Jr., #12374
                                            Lawrence F. Harr, #11719
                                            LAMSON, DUGAN & MURRAY, LLP
                                            10306 Regency Parkway Drive
                                            Omaha, NE 68114
                                            (402) 397-7300

                               CERTIFICATE OF SERVICE

       The undersigned hereby certifies that a true and correct copy of the foregoing pleading
was served upon the following attorneys designated below by regular United States mail, postage
prepaid, this ______ day of March 2005:

       Duncan A. Young
       Jeff C. Miller
       Malcolm D. Young
       Young & White
       8742 Frederick Street
       P.O. Box 241358
       Omaha, NE 68124-5358
       ATTORNEYS FOR PLAINTIFFS
                                            __________________________________________




                                               23

								
To top