McNally v. City of Omaha, 273 Neb. 558

Summary

The Nebraska Supreme Court reviewed a challenge to Omaha code-violation notices issued concerning a rental duplex. The court upheld violations involving cracked exterior walls and an uneven sidewalk, but reversed findings concerning furnaces, cosmetic repairs, and workmanship. It also held that the appeal was properly pursued by petition in error and that the Metropolitan Utilities District had exclusive authority over routine gas-furnace permitting and inspections.

Holdings

1. A Building Board of Review that is required to conduct a hearing and receive evidence exercises judicial functions, and its decision is reviewable by petition in error under Neb. Rev. Stat. § 25-1901 rather than under the municipal claims appeal provision.
2. Sufficient relevant evidence supported the finding that the cracked brick walls constituted unsafe structures under Omaha Municipal Code § 48-71(1), including the requirement that the owners obtain a structural review.
3. Sufficient evidence supported the finding that the approximately one-inch variance in the sidewalk violated § 302.3 of the International Property Maintenance Code because it presented a pedestrian tripping hazard.
4. The city lacked statutory authority to require separate municipal permits and routine inspections of the gas furnaces because the Legislature granted the Metropolitan Utilities District exclusive authority over gas equipment and appliances on consumers' premises.
5. Omaha Municipal Code § 48-15 did not apply to the unpainted stucco, poorly painted window, and tuck-pointing because those repairs were not caused directly or indirectly by enforcement of the code.
6. The Board's decision was not void merely because it was not issued in a separate written order where the record contained minutes reflecting the Board's decision at the hearing.

Questions Presented

1. What appellate procedure and jurisdictional requirements governed review of the Building Board of Review's decision?
2. Whether sufficient relevant evidence supported findings that the cracked exterior walls and raised sidewalk violated the Omaha Code.
3. Whether the city had statutory authority to require separate city permits and inspections for the gas furnaces despite the Metropolitan Utilities District's inspection authority.
4. Whether Omaha Municipal Code § 48-15 applied to cosmetic repairs performed voluntarily rather than pursuant to enforcement of the code.
5. Whether the Board's failure to issue a separate written decision rendered its decision void.

Disposition

other