Two rulings on horse stable dispute. The owners of a horse riding lesson business can continue to operate for now as the case moves to the permanent injunction hearing stage; the City of Plattsmouth is no longer a defendant.
The Cassgram reports two couples, William and Ann Herek and Mark and Jann Bergerson, are asking the court to order that Scott and Cheryl (Dorff) Gourley shut down the riding lesson business because the commercial operation of the stable violates Swallow Hills covenants.
---The plaintiffs’ motion for a temporary injunction was heard August 5th.
Attorneys for the Hereks and Bergersons said the covenants and restrictions were filed as public record in 1981 and clearly state “no commercial enterprises” are allowed in the 42 lot development. Those covenants also give property owners the right to enforce those restrictions, said attorney David Chebatoris.
The defendants argued that the covenants are not enforceable in part due to waiver, abandonment and acquiescence. Attorney Bill Reinsch said other businesses operate in the subdivision and there are other violations of the covenants. The defense also argued restrictive covenants were not intended to be enforced as other people acquired interest in Swallow Hills lots.
(Now retired) Cass County District Court Judge Randall Rehmeier wrote that state law says a temporary injunction should only be issued “when it is reasonably clear that the order is necessary and will prevent wrongs and injury otherwise unavoidable, without itself causing greater injury” or when there is a “substantial probability of success at trial by the moving party.”
Rehmeier used this scenario from case law as an example of when a temporary injunction should be issued: Someone is cutting down trees on property being claimed by two different parties.
In the Swallow Hills case the evidence “does not support that the plaintiffs will incur irreparable injury” if a temporary injunction is not issued, said Rehmeier. The judge went on to say “the Court finds that it would be important for the Court to hear and receive” all the issues and evidence as the matter proceeds toward trial.
---The city issued a special use permit for the riding lesson business and was added as a defendant.
Heather Anschutz, co-counsel for the plaintiffs, said “the city did not respect the covenants” of Swallow Hills. The plaintiffs said the permit was unlawful and impermissible and that the permit is null and void.
The City of Plattsmouth asked for dismissal of the portion of the complaint in which it is named as a defendant. Attorney Larry Welch Jr. said the correct appeal process was not followed and the “city doesn’t belong in this issue” in the court system.
In dismissing the City of Plattsmouth as a defendant, Rehmeier said the “plaintiffs are attempting to circumvent the appellate process that was available to them.” He agreed with Welch that the court “lacks jurisdiction over the subject matter” and the complaint “fails to state a claim upon which relief can be granted.”