S-19-1193 Sanitary Improvement District #2, Knox County, Nebraska, Greg Blomberg, Jim Pelster, and Denny Tilton (Appellees) v. Joann Fischer, Coburn Construction, LLC, Nest Marina, LLC, Nest Yacht Club, LLC
Knox County District Court, Judge Mark A. Johnson
Attorneys: Ryan D. Cwach (Birmingham & Cwach Law Offices, PLLC, for Appellant, Coburn Construction, LLC, Nest Marina, LLC, and Nest Yacht Club, LLC) – John Thomas (Knox County Attorney, for Appellant, Joann Fischer) -- Tracey Buettner (Stratton, DeLay, Doele, Carlson & Buettner, PC, LLO, for Appellees)
Civil: Easements, covenants and restrictions
Proceedings Below: The district court found that approximately 2,332 platted lots, were not owned for “other than residential uses because the Declarations of Easement, Covenants, and Restrictions clearly set out the platted lots may only be owned for residential purposes, unless otherwise designated by the developer. Additionally, the court found that defendants (other than Ms. Fischer), own the platted lots for resale to purchasers who have the ultimate intentions of owning the same for residential purposes.
Issues: Appellant Joann Fisher assigns that 1) the district court did not afford the election commissioner a presumption that, as a public officer she faithfully performed her official duties or a presumption of the regularity of her official acts; 2) the district court erred in holding that the factor of the covenants was binding; and 3) the district court admitted into evidence that the covenants to show that every lot in Devils Nest was owned for private residential use; but denied receipt of a parcel designation offered to complete the picture and show many lots were designated as commercial or other uses.
Appellant Coburn Construction, LLC, Nest Marina, LLC, and Nest Yacht Club LLC assign that the court’s finding that 1) “a Plat was filed in accordance with the District Court’s Decree in 1970 and later re-platted through the year 1973. The platted property is known as Devils Nest Subdivision. At the time of the filing of the original Plat a “Declaration of Easements, Covennts, and Restrictions” as also recorded and also subsequently refiled in 1973” was wrong because the record demonstrated that the sanitary improvement district was established separately and acts independently of the developer and of the recorded declarations of easements, covenants, and restrictions; 2) the election commissioner must solely prioritize the contents of recorded Declarations of Easements, Covenants, and Restrictions for purposes of interpreting N.R.S. § 31-735(b) without considering other relevant factors is an incorrect interpretation of the plain meaning and legislative intent of the statute; 3) the election commissioner must consider the prospective use of a commercial developer’s present ownership of land for purposes of interpreting N.R.S. § 31-735(b)(2) is an incorrect interpretation of the plain meaning and legislative intent of the statute; and 4) “there currently remains less than 90% of the area of SID #2 owned for other than residential uses” was clearly wrong.