Tierney v. Four H Land Company Limited Partnership

288 Neb. 586 (2014)


D applied for a CUP to operate a sand and gravel pit on the property. The application was approved by the Planning Commission and the Board of Adjustment. P appealed approval of the 1997 CUP to the district court, and on July 1998, the 1997 CUP was set aside due to the board of adjustment's failure to follow the correct procedures for issuance of a CUP under zoning regulations. D, P, and the owners of lots 1 and 2 of the Hidden Lakes subdivision entered into an agreement. The agreement provided that P and the other property owners would 'waive their right to appeal . . . the issuance of the [CUP] for the sand and gravel pit operation.' In return, D and Western accepted various conditions to the operation of the sand and gravel pit. D's application for a CUP was thereafter approved. The 1998 CUP was to be effective for a period of 10 years, terminating on October 31, 2007. The agreement required that D shall reclaim the land in the phase of prior operations by filling to at least its approximate original topography, covered with a minimum of four (4) inches of topsoil and seeded with appropriate native grasses to prevent erosion and to visually restore the site, except the area to be used for a lake. The relevant provision of the 1998 CUP provided: At the close of each phase of the sand and gravel pit operation the area shall be leveled to its original topography within one year of termination of each phase. The areas not covered by water shall then be covered with four inches (minimum) of topsoil and seeded with appropriate native grasses to prevent erosion of the soil. In April 2009, Ps filed an action for specific performance against D in that D had 'failed to meet the requirements of the [1998 CUP]' or 'their obligations under the agreement.' D was required to and agreed that they would return the area of the mining operation to its original topography. D, in fact, raised the ground level of the majority of the area of the mining operation to approximately six feet to eight feet higher than the original topography. P requested specific performance. D claimed to have 'substantially complied with and performed the obligations and requirements of the 'Agreement' dated August 11, 1998.' The district court concluded that the 1998 CUP and the agreement were ambiguous. The district court applied a 'heightened burden of certainty and definiteness' to determine whether it should order specific performance. It concluded the 1998 CUP and the agreement did not meet the requirements of certainty and definiteness, because identifying the intent of the parties as to restoration of the property had been 'tortuous' and required interpreting the language of the agreement 'in a way contrary to natural usage.' The court ultimately concluded that specific performance was not an appropriate remedy, because the 1998 CUP and the agreement were not sufficiently certain and definite and the burden upon D outweighed the benefits to P. The court concluded that the burdens on D were 'so out of balance' with the benefits to P that the 'overall result would be more spiteful than just.'  The district court entered summary judgment in favor of D. The Court of Appeals affirmed the judgment. P appealed.