732 F.2d 1095
ARTHUR GUINNESS & SONS, PLC, Plaintiff-Appellant,v.STERLING PUBLISHING COMPANY, INC., Defendant-Appellee,andBantam Books, Inc., Intervenor-Defendant.
No. 1009, Docket 83-9056.
United States Court of Appeals,Second Circuit.
Argued March 28, 1984.Decided April 16, 1984.

Oliver P. Howes, Jr., Nims, Howes, Collison & Isner, New York City (Julie A. Lauber, Thomas J. Ward, J. Dickson Burton, Ward Lazarus, Grow & Cihlar, Washington, D.C., of counsel), for plaintiff-appellant.
Jeffrey A. Mishkin, Proskauer, Rose, Goetz & Mendelsohn, New York City (Francis D. Landrey and David M. Lederkramer, New York City, of counsel), for defendant-appellee.
Before KAUFMAN, KEARSE and PIERCE, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:

1
For the past thirty years, the human adventure in its astonishing, recondite, inspiring, and not infrequently bizarre variety has been chronicled in a unique publication.  First styled the "Guinness Book of Superlatives" and later the "Guinness Book of Records", this product of a British brewery's desire to settle its customers' barroom disputes is widely known in America and elsewhere as the "Guinness Book of World Records."    The record book, published in the United States since 1961 by Sterling Publishing Co.  ("Sterling") under license from Arthur Guinness & Sons PLC ("Guinness"), has long since outgrown its original conception as an arbiter of drinking companions' arguments.  The Guinness Book of World Records has become an institution--a fascinating chronicle of human achievement and natural wonders.

2
The compilers of the record book are not unacquainted with the judicial system.  Their tome describes history's most protracted litigation (761 years for a dispute involving religious festivals, finally terminated in India in 1966), the highest bail ($50 million, in 1977 in Iran), and the shortest probated will (two words in length).  In October, 1983, Guinness became a participant, rather than a spectator, of the legal process when it commenced this action against Sterling, its American licensee, alleging trademark infringement and false designation of origin of goods in violation of the Trademark Act of 1946 (the Lanham Act), 15 U.S.C. Secs. 1114, 1125(a).  Guinness's complaint, and its application for a temporary restraining order, were the culmination of a dispute between the British licensor and the American licensee that began two years earlier.

3
The trial court denied the request for a temporary restraining order, and subsequently held a hearing on Guinness's motion for a preliminary injunction requesting an order that Sterling refrain from selling, distributing, or advertising the 1984 American edition of the Guinness Book of World Records.  Judge Duffy denied that motion in November, and Guinness brought this appeal.  We conclude that the district court's denial of Guinness's motion is consistent with the preliminary injunction standards this Circuit has formulated.  Accordingly, we affirm the trial court's order.  Before discussing our reasoning in greater detail, we set forth the relevant facts.

I.

4
The Guinness-Sterling relationship began in 1961, when Sterling secured the exclusive right to use the Guinness trademark in the United States to publish the American edition of the Guinness Book of World Records.  Sterling has produced the American edition annually since that time.  A new License Agreement dated January 31, 1973 extended Sterling's exclusive right to publish the Guinness Book of World Records in the United States until the year 2016, subject to editorial review and approval of each edition by Guinness.  A Publishing Agreement concluded February 2, 1973, set forth the operational details of the arrangement.  According to the Agreement, Guinness was to begin furnishing Sterling with page proofs of the subsequent year's British edition each May, and all page proofs (or "updating materials") were to be provided by August 15.  Sterling would then revise and modify the updating materials for the United States market (substituting baseball records for cricket statistics, for example) and ship its American edition to bookstores in time for the Christmas season.

5
The Publishing Agreement also gave Sterling the exclusive right to negotiate merchandising "tie-ins" involving the Guinness name, subject to final approval by the licensor.  Guinness was to receive 50% of the net proceeds from such licenses, after Sterling had deducted "all direct out of pocket expenses (including reasonable agency commissions and legal fees if any)."    Examples of merchandising rights specified in the contract include tie-in licenses for puzzles, chewing gum and coloring books.  The Agreement could be terminated by Guinness if Sterling "wilfully [broke] an important obligation" of the contract and failed to cure it within one month of notification.  Both parties adhered to the Agreement without apparent rancor for seven years.

6
Guinness acquired new management in 1981, and by the company's own account, began to re-evaluate its relationship with Sterling.  In April, 1982, Guinness formulated new guidelines for the merchandise licenses, instituting detailed procedures for Sterling to follow in obtaining Guinness's approval.  Sterling, for example, had entered into negotiations for an American manufacturer to produce Guinness wallpaper;  Guinness insisted that a formal request be made for that license despite Sterling's belief, based on Guinness's previous furnishing of British wallpaper samples, that the license would be authorized by Guinness.  As part of its new procedures, Guinness insisted that Sterling itemize the legal fees it deducted from royalty payments.  Previously, Sterling had deducted from the royalties related to merchandising a percentage of the monthly retainer it paid to its law firm.

7
Guinness continued to suspect that the legal fee withholdings were excessive, and that Sterling was charging Guinness for expenses unrelated to licenses approved by Guinness.  In September, Sterling's lawyer submitted an itemized bill for work performed beginning in April 1982.  Guinness immediately disputed Sterling's right to deduct these fees from the royalty payments Sterling was forwarding to Guinness.  The details of the dispute do not properly concern us for purposes of this appeal, because they presumably will be the subject of further litigation in the underlying suit from which the motion for an injunction arose.  In brief, Guinness contends that the fees deducted by Sterling are not attributable to work connected with Guinness.  Sterling asserts that the disputed expenses were incurred in connection with negotiations for licenses which Guinness refused to approve.  The dispute continued for the next six months, with Guinness adding the further demand that the Publishing Agreement be re-negotiated and the merchandising rights returned to Guinness's exclusive control.

8
On April 14, 1983, Guinness informed Sterling that it regarded the licensee's refusal to pay the disputed amounts as a wilful breach of an important obligation, thereby invoking the threat of termination.  Guinness demanded immediate payment.  Sterling responded by tendering $16,388 in disputed deductions, but the American publisher continued to insist that $33,600 in legal fees was properly withheld.  Guinness, referring not only to the fee dispute but to its dissatisfaction with the quality of Sterling's merchandising efforts, responded by informing Sterling that it considered the license and Publishing Agreement terminated.1

9
For the duration of 1983, Sterling made timely demands upon Guinness to furnish the 1984 page proofs in accordance with the procedure that had been followed each year since the inception of the license.  Guinness steadfastly refused, although it had been informed as early as May 5 that Sterling, which had ordered paper, reserved presses, placed advertisements in trade publications and already received orders for the next edition, fully intended to produce the 1984 record book.  Faced with Guinness's refusal to supply the page proofs, Sterling proceeded to produce the 1984 edition by revising and modifying the 1983 version.  Sterling followed the same procedure used in preparing previous editions.  It prepared new editorial material for the American market, updated those sections for which it had information on new world records, and edited the book to appeal to American readers.  In accordance with the terms of the license, it offered page proofs for Guinness to approve, but the licensor refused to cooperate in any way.  90,000 non-returnable hardcover copies of Sterling's 1984 American edition had been shipped to customers throughout the United States by October 21, 1983, the date on which Guinness served the order to show cause seeking a temporary restraining order.

10
Judge Duffy denied the request for a restraining order, and following a two-day hearing that concluded Nov. 1, denied the motion for a preliminary injunction, finding that Guinness failed to show that Sterling's publication would cause irreparable injury, or that Guinness was substantially likely to prevail on the merits of the fee dispute.  This appeal followed.

II.

11
We now turn to the applicable law.  The purpose of a preliminary injunction is to preserve the status quo pending the final determination of a dispute.  See 7 Moore's Federal Practice p 65.04 (1982).  It is well-settled in this Circuit that the party seeking injunctive relief must establish that the injunction is necessary to prevent irreparable harm and that he is likely to prevail on the merits of the underlying controversy.    Bell & Howell:  Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983).  In the alternative, the moving party need not show likelihood of success on the merits, but must demonstrate the presence of sufficiently serious and substantial questions going to the merits as to make them a fair ground for litigation, and a balance of hardships tipping decidedly toward the movant.  Id.;  see also Buffalo Courier-Express v. Buffalo Evening News, 601 F.2d 48, 54 (2d Cir.1979).  On this appeal, Guinness bears the heavy burden of establishing that the trial court misapplied these accepted principles.  Our review on appeal is limited to determining whether the trial judge abused his discretion in denying the motion.    See Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975).

12
Without a showing of irreparable injury, Guinness would have no right to an injunction under either of the two tests.  It is widely recognized that a pirate's use of another's trademark can, without more, establish so substantial a likelihood of confusion among consumers as to warrant a preliminary injunction.    See, e.g., Warner Brothers Inc. v. Gay Toys, Inc., 658 F.2d 76 (2d Cir.1981), rev'g 513 F.Supp. 1066 (S.D.N.Y.1981), after remand, 724 F.2d 327 (2d Cir.1983), aff'g 553 F.Supp. 1018 (S.D.N.Y.1983).  But the instant case is not one where an unauthorized junior user appropriates a senior user's mark.  Because Sterling is Guinness's licensee and the American edition of the Book of World Records has been produced by Sterling since 1961, we cannot perceive how Sterling's 1984 publication could irreparably have harmed its licensor unless the product was so inferior that it could severely injure Guinness's reputation in the United States.    See Bell & Howell:  Mamiya Co. v. Masel Supply Co., supra, 719 F.2d at 46;  cf. Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc., 687 F.2d 563 (2d Cir.1982) (use of trademark by unlicensed, unauthorized party).

13
The sole evidence adduced at the hearing to establish irreparable injury was Guinness's assertion that Sterling's 1984 edition did not contain up-to-date records, a necessary concomitant of the British licensor's refusal to cooperate with Sterling by providing the updating materials required by the Publishing Agreement.  Judge Duffy concluded, however, that this characteristic of the record book could not have irreparably harmed Guinness.  The licensor's own witness testified that new world records are claimed daily.  The trial court's conclusion that the record book is, in a sense, continually out of date, based on its evaluation of testimony, was not clearly erroneous, and therefore we decline to reverse it.    See State of New York v. Nuclear Regulatory Commission, 550 F.2d 745, 752 (2d Cir.1977).

14
Guinness also contends that it was prejudiced when the trial judge announced after the first day that he was converting the consolidated hearing on the motion for a preliminary injunction and the trial on the merits, Fed.R.Civ.P. 65(a)(2), into a hearing solely on the injunction issue.  The licensor claims that because the trial judge stressed the importance of showing that the Publishing Agreement was terminated, it did not present extensive evidence of irreparable injury, but instead concentrated on the full trial issue of whether it had a right to terminate the contract.  We can perceive no prejudice to Guinness as a result of the trial court's action, because a full day of hearings ensued in which Guinness had a full opportunity to meet its burden as the party seeking an injunction.  Moreover, the judge's emphasis upon whether the Publishing Agreement had been terminated could not have been misleading to Guinness, since the licensor would have to show that the Publishing Agreement was no longer in force to obtain an injunction.  See Part III infra.    Moreover, Guinness raised no objection to the court's action at the hearing and never suggested below that it had additional evidence on the issue of irreparable injury that it had been foreclosed from presenting.  Because Guinness has made no showing on appeal that the finding there was no irreparable injury is clearly erroneous, we will not reverse the trial court's conclusion.2

15
Although the failure of Guinness to establish irreparable injury is sufficient grounds for denying the injunction under either the likelihood of success or substantial question standard, the trial court ruled in the alternative that Guinness failed to demonstrate that the balance of hardships tipped in its favor.  The uncontradicted testimony of Guinness's own witness was that Guinness had a hand in precipitating the very harm it now asserts is irreparable: that Sterling's volume is not up-to-date.  Guinness refused to supply updating materials or edit Sterling's page proofs during the five-month period in 1983 specified by the Publishing Agreement as the time for such work to be performed.  The contribution by Guinness to the alleged defects in the 1984 edition, its failure to bring suit for six months while Sterling proceeded with its announced plan to publish the book, and, as Judge Duffy found, the licensor's apparent attempt to exploit the fee dispute to renegotiate the terms of the license, all support the conclusion Guinness failed to establish that the balance of hardships tips decisively in its favor.

III.

16
Failure to establish irreparable injury would ordinarily be the end of our inquiry, see Bell & Howell:  Mamiya Co. v. Masel Supply Co., supra, 719 F.2d at 42.  We note, however, that on this record Guinness would fail to meet its burden as the party seeking injunctive relief even if publication of the 1984 American edition were to constitute irreparable harm.  As we noted in Part II supra, Guinness would be required to establish that it was substantially likely to prevail on the merits of the underlying license dispute;  alternatively, if the balance of hardships weighed in its favor, it could show that the contract dispute was a serious and substantial question going to the merits of the litigation.  Whether Sterling's refusal to compensate its licensor for the disputed fees was a "wilful" breach of "an important obligation" of the Publishing Agreement is, of course, a serious and substantial question.  Failure to pass the balance of hardships test, however, forecloses Guinness from obtaining an injunction on the basis of the seriousness of the underlying issue.  Guinness would therefore be required to show that it is substantially likely to prevail on the merits of the fee dispute, assuming arguendo it could establish irreparable injury.

17
We do not decide the merits of Guinness's claim that Sterling's actions empower it to terminate the license.  We note, however, that there is sufficient doubt whether Guinness would prevail on the merits, precluding injunctive relief.  Whether Sterling wilfully broke an important obligation in withholding the disputed legal fees, as Guinness contends, or whether, as Judge Duffy concluded, the quarrel was an honest disagreement concerning a relatively small sum, is a matter sufficiently unclear at this stage to warrant denial of Guinness's motion.  Because Sterling was licensed to produce the record book, Guinness was required to demonstrate the likelihood that the publishing agreement was no longer in force.    Oleg Cassini, Inc. v. Couture Coordinates, Inc., 297 F.Supp. 821, 827 (S.D.N.Y.1969).

18
We have previously indicated that a bona fide dispute concerning royalty payments does not, as a matter of law, establish a material breach justifying rescission of the contract absent an express provision in the agreement.    Nolan v. Sam Fox Publishing Co., 499 F.2d 1394, 1397 (2d Cir.1974).  The Guinness-Sterling publishing agreement at no point states that any violation of its terms must necessarily be considered a breach of an "important obligation."    Whether Sterling's action in withholding disputed legal fees is such a breach is therefore sufficiently arguable to debar Guinness from obtaining an injunction.  The trial court's conclusion that Guinness was not substantially likely to prevail does not, of course, prevent Guinness from succeeding on the merits after a full trial.    See University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981).

IV.

19
The compilers of the Guinness Book of World Records may yet prevail in their action against their American licensee, but as the trial court found, they have failed to establish their right to a preliminary injunction.  This is entirely consistent with the purpose of injunctive relief, since Sterling's publication of the 1984 record book maintains a status quo unbroken since 1961 until the underlying contract dispute can be resolved.  This principle has in the past been invoked by Guinness to its advantage.    See Guinness-Harp Corp. v. Jos.  Schlitz Brewing Co., 613 F.2d 468 (2d Cir.1980) (mandatory injunction issued to maintain status quo pending resolution of distributorship termination dispute).

20
The Guinness Book of World Records lists the highest contract damage award ever obtained as $1.7 million.  We express no view as to the accuracy of this "world record," but this 1932 British award is an indication of the magnitude of what is at stake in commercial disputes.  Confronted with a complicated mercantile litigation involving multi-million dollar contracts, and in the absence of any showing of the prospect of irreparable injury, a district court is well advised to maintain the status quo pending resolution of the issue.    See, e.g., Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.1969), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969).  Accordingly, we affirm the district court's order denying Guinness's motion for a preliminary injunction.

1
 The specific sums at issue when Guinness purported to terminate the license were $33,600 in legal fee deductions made by Sterling on grounds that the legal work was connected with negotiations for merchandising tie-ins;  $4568 in legal fees for contract interpretation which Sterling claimed Guinness requested it to obtain;  and $11,820 in "claims" for income lost by Sterling because of Guinness's actions.  Sterling paid Guinness a total of approximately $300,000 in royalties in 1982, although the record does not disclose how much of this was attributable to merchandising licenses
Following Guinness's threatened termination, Sterling remunerated its licensor for all but the $33,600 in disputed legal fees.  At the inception of the hearing on the preliminary injunction, Sterling conceded that under a strict construction of the Publishing Agreement, $20,100 of the $33,600 should not have been withheld, because the merchandising licenses to which the legal work related were never formally approved by Guinness.

2
 Guinness's other claims of irreparable injury are similarly unsupported by the record.  Sterling's 1984 edition contains a foreword written by Lord Iveagh, Chairman of Guinness, essentially copied from the 1983 edition;  moreover, it lists Norris McWhirter as "Editor and Compiler."    Guinness contends that neither of these individuals consented to use of their names in connection with the book.  McWhirter, however, has been listed as "editor and compiler" on every edition ever produced by Sterling, and Sterling followed the normal procedure authorized by the Publishing Agreement in using the previous edition's foreword.  The page proofs of these portions of the 1984 edition were submitted by Sterling to Guinness prior to publication, but Guinness made no comment other than its refusal to supply page proofs or otherwise assent to Sterling's publication
Guinness also asserts that Sterling authorized activities that reflected adversely upon the record book's image.  Specifically, Guinness was displeased with the quality of a "Guinness Book of World Records Tour" of Japan authorized by Sterling, and consented to by Guinness.  Guinness also objected to a "Guinness Day" event in which Japanese tourists were brought to Los Angeles.  These disagreements reflect the long-simmering dispute between the British licensor and the American licensee as to the proper approach to take in merchandising the Guinness name in America.  We express no view on the merits of Guinness's assertion that Sterling has wilfully broken an important obligation of the Publishing Agreement in arranging for these events and the other merchandising tie-ins.  Because the Agreement gives Sterling the right to merchandise the Guinness name, however, we cannot say that the dispute over the quality of the licenses is so abundantly unquestionable to be adjudged a breach justifying termination and to compel the granting of a preliminary injunction.


386 B.R. 11 (2008)
In re NEW CENTURY TRS HOLDINGS, INC., et al., Debtors.
No. 07-10416 (KJC).
United States Bankruptcy Court, D. Delaware.
February 14, 2008.
*12 Christopher M. Samis, Chun I. Jang, Marcos Alexis Ramos, Mark D. Collins, Michael Joseph Merchant, Paul Noble Heath, Russell C. Silberglied, Richards, Layton & Finger, P.A., Wilmington, DE, Ivan Lerer Kallick, Manatt Phelps & Phillips, LLP, Suzzanne S. Uhland, Ben H. Logan, Brian M. Metcalf, Victoria Newmark, Emily R. Culler, O'Melveny & Myers LLP, San Francisco, CA, for Debtors.

MEMORANDUM[1]
KEVIN J. CAREY, Bankruptcy Judge.

BACKGROUND
New Century TRS Holdings, Inc. and its affiliates (the "Debtors") filed voluntary petitions for relief under chapter 11 of the United States Bankruptcy Code on April 2, 2007.[2] Currently before the Court is the Debtors' motion pursuant to 11 U.S.C. §§ 105(a) and 362(a) for an order enforcing the automatic stay against the Internal Revenue Service and granting related relief (docket no. 3829)(the "Motion"). In the Motion, the Debtors ask this Court to enter an order directing the Internal Revenue Service (the "IRS") to release a tax refund to the Debtors. The IRS opposes the Motion, arguing that this Court is without jurisdiction to consider it. For the reasons set forth herein, the Motion will be denied.

UNDISPUTED FACTS
The following facts, asserted by the parties in their respective submissions, have not been disputed and T rely upon them in consideration of the Motion.
New Century Financial Corporation ("NCF") was a large specialty mortgage finance business. Through its subsidiaries and its primary holding company subsidiary, New Century TRS Holdings, Inc., NCF originated, purchased, sold and serviced mortgage loans nationwide.
On July 17, 2007, the Debtors submitted a From 1139 to the IRS in accordance with Section 6411 of the Internal Revenue Code (26 U.S.C. § 6411).[3] On its Form 1139 Application, the Debtors claimed a net operating loss for the 2006 tax year, that it carried back to the 2004 tax year, resulting in an anticipated tax refund for the 2004 tax year in the approximate amount of $66 *13 million dollars (the "Tax Refund").[4] The Debtors claim that the IRS reflected the Tax Refund on the Debtors' transcript of account as being allowed and credited to their account. However, the IRS did not release the Tax Refund to the Debtors.
On November 15, 2007, the Debtors filed the Motion. The Debtors argued that the IRS should have completed its examination of the Form 1139 Application and issued the refund by October 15, 2007, i.e., ninety days after the Debtors filed the Application. On November 28, 2007, the IRS objected to the Motion, arguing that (1) the Motion was not ripe for consideration because the IRS's response to the Debtors' Form 1139 Application was not due until December 31, 2007, based on extensions given to the Debtors for filing their 2006 tax return, and (2) this Court is without jurisdiction to review the IRS's failure to act on the Form 1139 Application. (See docket no. 3955). The parties agreed that the IRS would file another response to the Motion on or after December 31, 2007.
On December 31, 2007, the IRS filed its second objection to the Motion, arguing that it had denied the Debtor's Form 1139 Application and that this Court lacks jurisdiction to review the denial (the "Second Objection"). (See docket no. 4267). In a declaration attached to the Second Objection, the revenue agent stated that he denied the Form 1139 Application because:
[The Application] contains errors of computation and material omissions which could not be corrected within 90 days from the last day of the month in which fell the last date prescribed by law including extensions for filing a return for the taxable year ended December 31, 2006.
The [A]pplication contained errors of computation and material omissions due to the following reasons:
a. An improper valuation of the inventory of loans as of December 31, 2006.
b. An improper change in the method of accounting for the mark to market adjustment for the year ended December 31, 2006.
c. The failure to provide information in response to the limited examination of the application for a tentative carryback adjustment as requested by the Revenue Agent.
See IRS Second Objection, ¶¶ 4-5 (docket no. 4267). On January 4, 2008, the Debtors filed a response to the Second Objection, arguing that the IRS's denial of its Application was based upon an examination that went beyond the limited scope of review permitted by 26 U.S.C. § 6411 and, further, that the IRS had waived its sovereign immunity by filing a proof of claim in this case, thereby giving the Court jurisdiction pursuant to 11 U.S.C. § 106(b). (See docket no. 4319).
A hearing to consider the Motion and the IRS's Second Objection was held on January 9, 2008, and the matter was taken under advisement.

DISCUSSION
The Debtors are seeking a tax refund based upon 26 U.S.C. § 6411, which allows taxpayers to use an expedited procedure to *14 request tentative tax refunds based on loss carrybacks, rather than by initiating their refund request under the standard procedure provided by 26 U.S.C. § 6402. The advantages and disadvantages of the "tentative refund" procedure are described in The Columbia Gas System, Inc. v. United States, 32 Fed.Cl. 318 (1994):
The presumption of § 6411 is in favor of prompt refunds for taxpayers pinched by [net operating losses]. Although § 6411 offers the taxpayer a potentially quicker refund, it has potential drawbacks as well. A disallowance decision under § 6411, unlike a similar decision under § 6402, is not reviewable. Refunds made under § 6411 are also more vulnerable to recapture because, unlike refunds made under § 6402, they may be taken back without notice or a right to contest.
Id. at 323. The IRS denied the Debtors' Form 1139 Application. The Debtors claim the denial violates that the automatic stay, and, through the Motion, ask this Court for an order directing the IRS to release the Tax Refund.[5] The IRS argues that this Court lacks jurisdiction to consider the Debtors' Motion. Jurisdiction is a threshold issue that must be addressed first.
The Debtors argue that the IRS has waived its sovereign immunity by filing a proof of claim against the Debtors for 2004 and 2005 income taxes, "thereby vesting this Court with jurisdiction over all factual and legal issues relevant to the Debtors' 2004 and 2005 tax years." Debtors' Response, docket no. 4319, p. 3. Section 106(b) provides:
A governmental unit that has filed a proof of claim in the case is deemed to have waived sovereign immunity with respect to a claim against such governmental unit that is property of the estate and that arose out of the same transaction or occurrence out of which the claim of such governmental unit arose.
11 U.S.C. § 106(b). The IRS disputes the Debtors' contention that the issues regarding the calculation of a net operating loss for tax year 2006 arise out of the same transaction or occurrence as its claim for 2004 and 2005 taxes. However, even if I agreed with the Debtors. Section 106(b), without more, does not provide jurisdiction for determining whether the IRS should release the Tax Refund to the Debtors. "[B]ankruptcy Code § 106 does not provide a substantive or independent basis for asserting a claim against the government.... [A] plaintiff ... seeking to use the waiver in § 106 must demonstrate that a source outside of § 106 entitles it to the relief sought." Franklin Savings Corp. v. United States (In re Franklin Savings Corp.), 385 F.3d 1279, 1286 (10th Cir.2004). See also Graham v. United States (In re Graham), 981 F.2d 1135, 1138 (10th Cir. 1992) ("While the [debtors] argue correctly that section 106 of the Bankruptcy Code provides a waiver of sovereign immunity for refund claims under some circumstances, any such general governmental waiver of the right not to be sued does not waive other jurisdictional requirements.").
I turn next to the statutory provisions cited by the parties that affect jurisdiction in this matter. First, the IRS argues that this Court lacks jurisdiction over the Debtors' Motion under § 6411, which provides, in part, that "the Secretary may disallow, without further action, any application which he finds contains errors of *15 computation which he deems cannot be corrected by him within such 90-day period or material omissions." 26 U.S.C. § 6411(b)(2008). The applicable regulations regarding this section further provide:
[A district director or director of a service center's] action in disallowing, in whole or in part, any application for a tentative carryback adjustment shall be final and may not be challenged in any proceeding. The taxpayer in such case, however, may file a claim for credit or refund under section 6402, and may maintain a suit based on such claim if it is disallowed or if such internal revenue officer does not act upon the claim within 6 months from the date it is filed.
26 C.F.R. § 1.6411-3(c) (eff. to Aug. 26, 2007).[6]
In response, the Debtors contend that § 6411 does not grant unlimited discretion to the IRS but, instead, sets specific guidelines, permitting a review of Form 1139 applications, which is limited only to a determination of whether there are mathematical errors or omissions in the application. The Debtors argue that, in this case, the IRS exceeded its review authority when it incorrectly questioned the valuation and accounting methods used by the Debtors' in determining the net operating loss for tax year 2006. The Debtors claim that this Court has jurisdiction to decide whether the IRS abused its discretion and violated those guidelines.
Section 6411 provides, in pertinent part:
(b) Allowance of adjustments. Within a period of 90 days from the date on which an application for tentative carryback adjustment is filed under subsection (a), or from the last day of the month in which falls the last date prescribed by law (including any extension of time granted the taxpayer) for filing the return for the taxable year of the net operating loss, net capital loss, or unused business credit from which such carryback results, whichever is later, the Secretary shall make, to the extent he deems practicable in such period, a limited examination of the application, to discover omissions and errors of computation therein, and shall determine the amount of the decrease in the tax attributable to such carryback upon the basis of the application and the examination, except that the Secretary may disallow, without further action, any application which he finds contains errors of computation which he deems cannot be corrected by him within such 90-day period or material omissions,
26 U.S.C. § 6411(b)(2008) (emphasis added).
The Debtors focus on the high-lighted language of § 6411, while ignoring the remaining language of the statute which permits the Secretary to deny an application  without further action  in the case of errors of computation or material omissions that cannot be corrected in 90 days. Here, the revenue agent has asserted that the Application has errors of computation and material omissions are present. Whether § 6411 permits the IRS to look beyond the four corners of the Application in questioning the computations is less clear. However, the statute and applicable regulations are clear in stating that this *16 Court may not review the IRS's denial of the Application.
Other courts have recognized that the denial of an application for a tentative carryback adjustment and refund is unreviewable. See I.C.T.S. U.S.A., Inc. v. United States, 2007 WL 512791 (S.D.N.Y. Feb. 15, 2007) (deciding that an application for tentative carryback adjustment is not a claim for credit or refund, and noting that, if such an application is denied, "no suit may be maintained in any court for recovery of any tax based upon such application."); Schrader v. Internal Revenue Service, 1975 WL 516 (W.D.Ky. Jan. 17, 1975) (dismissing a complaint alleging that the IRS had failed to pay her tax refunds upon filing of a tentative refund application); Rock v. United States, 279 F.Supp. 96, 99 (S.D.N.Y.1968) (After discussing § 6411's direction for limited examination of the application, the court also noted that "[d]isallowance of a tentative carryback adjustment is final and may not be challenged in any proceeding.").
While the IRS's denial of an application is not reviewable by a court, the taxpayer is not left without a remedy.
Here, Congress has afforded the taxpayer an opportunity to seek speedy tax relief during the period immediately following a loss year, when such relief may be most sorely needed. If, however, a tentative application is disallowed, the taxpayer is still left with the option to pursue his claim for a refund in the normal manner. Reg. § 1.6411-3(c).
Rock, 279 F.Supp. at 99. Accordingly, under § 6411, this Court does not have jurisdiction to review the IRS's denial of the Debtors' Form 1139 Application.
The foregoing analysis is consistent with other statutory provisions in both the Internal Revenue Code and the Bankruptcy Code that do not allow a court to consider a tax refund case until the taxpayer has complied with the taxing authority's procedures for a refund. Section 7422(a) of the Internal Revenue Code provides:
(a) No suit prior to filing claim for refund. No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, ... or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.
26 U.S.C. § 7422(a). An application for a tentative carry-back adjustment does not constitute a claim for a credit or refund 26 C.F.R. 1.6411-1(b)(2). See also I.C.T.S., 2007 WL 512791 at *1 citing Rock, 279 F.Supp. at 98-99 ("[t]he differences between an application for a tentative carryback adjustment and a claim for refund are not merely formal; they are substantive, and the statute and regulations ... so state."). Section 7422 does not permit a court to consider a tax refund suit until the IRS's claim procedures are followed.
Moreover, Section 505 of the Bankruptcy Code provides that a bankruptcy court may not determine "any right of the estate to a tax refund, before the earlier of  (i) 120 days after the trustee properly requests such refund from the governmental unit from which such refund is claimed; or (ii) a determination by such governmental unit of such request." 11 U.S.C. § 505(a)(2)(B). In the decision City of Perth Amboy v. Custom Distrib. Serv., Inc. (In re Custom Distrib. Serv., Inc.), 224 F.3d 235 (3d Cir.2000), the Third Circuit Court of Appeals reviewed "the legislative history of § 505(a), the overwhelming case authority interpreting it as precluding the bankruptcy court from adjudicating claims for refund of taxes *17 that were not seasonably contested in accordance with procedures set out by the taxing authority, and the policy considerations underpinning § 505" and held that a bankruptcy court did not have jurisdiction to order a city to refund excess tax payments when the debtor did not contest those payments in accordance with the applicable state tax laws. Custom Distrib., 224 F.3d at 243-44. See also ANC Rental Corp v. County of Allegheny (In re ANC Rental Corp.), 316 B.R. 146 (Bankr.D.Del. 2004).
Analysis of each of these statutes and the judicial decisions interpreting them inform this Court that it does not have jurisdiction to consider the Debtors' request for a order directing the IRS to release a tax refund when only a Form 1139 Application has been filed. There is no dispute that the Debtors have not filed a claim for the Tax Refund with the IRS.[7] The Debtors' Motion will be dismissed for lack of jurisdiction.
An appropriate order will be entered.
NOTES
[1]  This Memorandum constitutes the findings of fact and conclusions of law, as required by Fed.R.Bankr.P. 7052.
[2]  By Order dated April 3, 2007, the Court granted the motion by New Century TRS Holdings, Inc. and its affiliates for joint administration of the related chapter 11 cases. (See Docket no. 52).
[3]  Form 1139 is also referred to as an application for a tentative carryback adjustment and may be referred to as the "Form 1139 Application" or the "Application" herein.
[4]  The Debtors' net operating losses in 2006, underlying the claim for a substantial tax refund for tax year 2004, can be traced, in part, to the acknowledged "accounting errors" that resulted in a need to restate their reported financial results for the first three quarters of 2006 relating to treatment of loan repurchase losses. (See The Debtors' pre-petition News Release dated February 7, 2007, attached as Ex. A to the Motion of the United States Trustee for an Order Directing the Appointment of a Chapter 11 Trustee or, in the alternative, an Examiner, docket no. 278.)
[5]  The Debtors have argued that their Motion is not a claim for a tax refund, but is a motion to enforce compliance with 26 U.S.C. § 6411. While it is not a "formal" claim for a tax refund, the Motion seeks an order directing the IRS to release a tax refund under § 6411. Clearly the Motion is a request for a tax refund.
[6]  Section 1.6411-3 of the Regulations was amended on August 27, 2007, but the amendment did not alter substantively the language quoted above. (See 72 F.R. 48933-01). The amendment applies to applications for tentative refunds filed on or after August 27, 2007, 26 C.F.R. § 1.6411-3(e)(2008).
[7]  The Debtors acknowledged that this was so at the time of the hearing on the Motion.


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                  M atthew Landrum et al., appellants and cross-appellees,
                         v. City of Omaha Planning Board et al.,
                            appellees and cross-appellants, and
                               Daryl Leise et al., appellees.
                                                   ___ N.W.2d ___

                                         Filed July 14, 2017.    No. S-16-383.

                1.	 Ordinances: Appeal and Error. Interpretation of a municipal ordi-
                    nance is a question of law on which an appellate court reaches an
                    independent conclusion irrespective of the determination made by the
                    court below.
                2.	 Administrative Law: Appeal and Error. In reviewing a decision based
                    on a petition in error, an appellate court determines whether the inferior
                    tribunal acted within its jurisdiction and whether the inferior tribunal’s
                    decision is supported by sufficient relevant evidence.
                3.	 Standing: Words and Phrases. Standing is the legal or equitable right,
                    title, or interest in the subject matter of the controversy.
                4.	 Jurisdiction: Standing. The requirement of standing is fundamental to
                    a court’s exercise of jurisdiction, and either a litigant or a court before
                    which a case is pending can raise the question of standing at any time
                    during the proceeding.
                5.	 Standing: Zoning. It is generally held that an adjacent landowner has
                    standing to object to the rezoning of property if such landowner shows
                    some special injury separate from a general injury to the public.
                6.	 Municipal Corporations: Actions: Appeal and Error. An appeal or
                    error proceeding does not lie from a purely legislative act by a public
                    body to which legislative power has been delegated, and the only rem-
                    edy in such cases is by collateral attack, that is, by injunction or other
                    suitable action.
                7.	 Municipal Corporations: Ordinances: Zoning. A zoning ordinance
                    constitutes the exercise of a governmental and legislative function, and
                    a city council adopting a rezoning ordinance which amends a general
                    zoning ordinance acts in a legislative capacity.
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 8.	 Jurisdiction: Appeal and Error. When a trial court lacks the power,
     that is, jurisdiction, to adjudicate the merits of a claim, the Supreme
     Court also lacks power to adjudicate the merits of the claim.
 9.	 Standing: Jurisdiction: Proof. A party invoking a tribunal’s jurisdic-
     tion has the burden to establish the elements of standing.
10.	 Appeal and Error. An issue not presented to the trial court may not be
     raised on appeal.
11.	 Administrative Law: Evidence: Appeal and Error. The reviewing
     court is restricted to the record before the administrative agency and
     does not reweigh evidence or make independent findings of fact, and
     the evidence is sufficient to support an administrative agency’s decision
     if the agency could reasonably find the facts as it did based on the testi-
     mony and exhibits contained in the record.
12.	 Administrative Law: Due Process: Jurisdiction: Notice: Evidence:
     Appeal and Error. A court reviewing an order of an administrative
     agency must determine whether there has been due process of law; and
     this includes an inquiry into the jurisdiction of the agency, whether there
     was reasonable notice and an opportunity for fair hearing, and whether
     the finding was supported by evidence.

  Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed in part, and in part vacated
and dismissed.
   Rex J. Moats and Margaret A. McDevitt, of Moats Law
Firm, P.C., L.L.O., for appellants.
   Russell S. Daub for appellees Daryl Leise et al.
  Alan M. Thelen, Deputy Omaha City Attorney, for appellees
City of Omaha Planning Board et al.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
   K elch, J.
                     I. INTRODUCTION
   Matthew Landrum, Shandra Landrum, Rex Moats, Diane
Moats, Edward Malesa, and Valerie Malesa (Homeowners)
appeal the order of the district court for Douglas County that
dismissed their amended petition in error. The Homeowners
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sought to challenge a conditional use permit issued by the
Omaha Planning Board (Planning Board) and a special use
permit and rezoning granted by the Omaha City Council (City
Council). The City of Omaha (City), the Planning Board, and
the City Council cross-appeal, arguing that the Homeowners’
petition in error was untimely and that the district court lacked
subject matter jurisdiction. We dismiss for lack of jurisdiction
that portion of the Homeowners’ appeal concerning rezoning
and a special use permit, and we vacate the corresponding
portion of the district court’s order. However, because the
Planning Board acted within its jurisdiction, based its find-
ings on sufficient evidence, and afforded the Homeowners due
process, we affirm the district court’s order in regard to the
conditional use permit.
                       II. BACKGROUND
                   1. Procedural Background
   This appeal arises from permits and rezoning granted to
Daryl Leise; Redbird Group, LLC; and Ray Anderson, Inc.
(collectively the Developers), for a proposed convenience stor-
age and warehouse facility to be constructed on real estate in
the Omaha area (subject property). Ray Anderson, Inc., is the
current owner of the subject property.
   The City carries out its zoning powers through the enact-
ment and enforcement of its zoning code, Omaha Municipal
Code, chapter 55.
   The Omaha Municipal Code designates various base zoning
districts, including a “community commercial” (CC) district,
which is the designation of the subject property. Omaha Mun.
Code, ch. 55, art. VIII, § 55-362 (1980). Further, the code
provides for a special “overlay district” that can be “over-
laid” upon a property in addition to its base zoning district.
Omaha Mun. Code, ch. 55, art. XI, § 55-682 (2007). One
type of overlay district is the “major commercial corridor”
(MCC) district, for which Leise applied in this case. See id.
The zoning regulations enumerate various use types. For the
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subject property, Leise sought the use types “[w]arehousing
and distribution (limited),” see Omaha Mun. Code, ch. 55, art.
III, § 55-49(h) (1980) (emphasis omitted), and “[c]onvenience
storage,” see Omaha Mun. Code, ch. 55, art. III, § 55-45(m)
(2007) (emphasis omitted). The “[w]arehousing and distribu-
tion (limited)” use type is allowed subject to approval of a
conditional use permit. Omaha Mun. Code, ch. 55, art. VIII,
§ 55-364(e) (2008). Similarly, a special use permit is required
for convenience storage in the CC district. Omaha Mun. Code,
ch. 55, art. VIII, § 55-365(c) (2008).
   As noted above, Leise sought to place the subject property
into the MCC overlay district while maintaining the base
CC zoning district. Buildings built within the MCC overlay
district are subject to certain urban design rules. See Omaha
Mun. Code, ch. 55, art. XI, §§ 55-682 through 55-687 (2007),
and Omaha Mun. Code, ch. 55, art. XXII, §§ 55-927 through
55-936 (2007). These urban design rules provide for enhanced
regulation of screening, parking, site and building access, land-
scaping, and general building design guidelines. Id.
   In sum, to proceed with the proposed project, the Omaha
Municipal Code required three zoning approvals from the
City: a conditional use permit, which could be issued by
the Planning Board; a special use permit, which could be
granted by the City Council after a recommendation by the
Planning Board; and a rezoning, which could be granted by
the City Council after a recommendation by the Planning
Board, to place the subject property within the MCC overlay
district. See Omaha Mun. Code, ch. 55, art. XX, § 55-883(h)
and (k) (2008), § 55-884(g)(3) (2008), and § 55-886(f) and
(g) (1980).

                   2. Municipal Proceedings
   The subject property is a 4.75-acre vacant lot at the north-
east corner of 204th Street (Highway 31) and Farnam Street,
located near a residential area. Leise’s statement of proposed
use and plans for the subject property anticipated constructing
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a three-story storage building, resembling an office building,
with internal storage spaces. Leise also proposed construct-
ing five single-story storage buildings with garage-type stalls.
The storage facilities would contain 700 storage spaces for
rental to customers, with estimated visits of two or three cars
per hour.
   Leise submitted a proposed concept design to the City’s
planning department. The concept design, dated February 17,
2015, provided preliminary specifications to demonstrate com-
pliance with site development, landscaping, and buffer require-
ments for a CC property.
   After reviewing the proposed concept design, the plan-
ning department issued a responsive letter, dated February 27,
2015. The planning department summarized the proposed proj-
ect’s classification and permit requirements under the Omaha
Municipal Code.
   The planning department scheduled the matter for a May
6, 2015, hearing before the Planning Board. On March 20,
the planning department issued the following notice via a
letter to residents near the proposed project site: “NOTICE
OF REQUEST FOR: Approval of a Special Use Permit to
allow Convenience storage and a Conditional Use Permit
to allow Warehousing and distribution (limited) in a
CC-Community Commercial District, with approval of an
MCC-Major Commercial Corridor Overlay District.” The
notice further invited any interested persons to hear and
comment on the proposal, which was on file at the planning
department, and provided details about the approval proce-
dure and hearing.
   On April 6, 2015, Leise submitted a planning department
zoning application form. The application form allowed the
applicant to check boxes to select a special use permit, a con-
ditional use permit, and “Other.” Leise’s application selected
a special use permit and “Other,” specifying “Adopt MCC
Overlay District,” but a conditional use permit was not selected.
The application form provided basic factual information,
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including the address and legal description of the subject
property, its owner, the applicant, a contact person, and infor-
mation on proposed building, parking, and landscaping. Leise
incorrectly identified the property owner as “Ray Anderson
c/o Anderson Food Shops,” rather than “Ray Anderson, Inc.”
Leise listed himself as the applicant and contact person. There
were illegible signatures on the lines designated for “Owner’s
Signature” and “Applicant Signature.” Under the applicant’s
signature, the form states, “(If not the property owner, the
applicant certificates [sic] with this signature to be the autho-
rized agent of the property owner.)”
   On April 29, 2015, the planning department issued a rec-
ommendation report that analyzed the proposed project in
light of applicable portions of the Omaha Municipal Code.
The report noted that the adjacent land use was primarily
residential. It stated that before the City annexed the subject
property and converted it to a CC district, it was originally
zoned “C-3 Highway Commercial” by the City of Elkhorn,
a designation which allowed warehousing and distribution as
a permitted use. The report noted that conditionally, Leise’s
permit request was in substantial conformance with “the zon-
ing ordinance” and the City’s master plan. The report further
evaluated the proposed uses pursuant to specific portions of
Omaha Mun. Code, ch. 55, art. XX, § 55-885 (2008), which
sets forth criteria for the review and evaluation of applications
for conditional use permits and special use permits. It deduced
that the proposed uses would comply with those criteria and
that the economic impact on surrounding properties would
be acceptable. The report recommended (1) approval of “the
MCC-Major Commercial Overlay District,” (2) approval of the
special use permit to allow convenience storage in “a CC-MCC
District” subject to plan revisions for compliance with zoning
regulations, and (3) approval of the conditional use permit to
allow “Warehousing and distribution (limited) in a CC-MCC
District,” subject to plan revisions for compliance with zon-
ing regulations.
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   On May 5, 2015, residents near the subject property sub-
mitted to the Planning Board a “Petition” with 52 signatures,
expressing opposition to the proposed project. Residents also
submitted letters and email messages detailing the reasons
for their opposition, which included safety risks, lack of suf-
ficient buffer space from adjacent homes, increased risk of
crime, excessive light from the development, lack of conti-
nuity with the adjacent homes, and adverse effects on prop-
erty values.
   The Planning Board held a public hearing on Leise’s
requests on May 6, 2015. Leise appeared and described the
proposal. Several neighborhood opponents also spoke, includ-
ing one of the Homeowners. Opponents generally expressed
that they were not yet familiar with the plan. They opined that
the structure would not “fit” with the nearby residential neigh-
borhoods and may contribute to crime and obstruct views. A
real estate broker with 14 years’ experience and others stated
that the structure would be detrimental to the neighboring
residents’ property values. Other concerns included lighting,
safety, and compliance with the City’s master plan. Some
opponents stated that they had not been personally informed
about the project and that they felt they had been “ambushed.”
Another complained that some residents near the proposed
project site did not receive the notice of hearing from the
Planning Board. The Planning Board laid over the case to
allow Leise and the neighboring residents to meet and discuss
the issues.
   Leise submitted revised plans, and the City’s planning
department issued a revised recommendation report on July
29, 2015. The revised recommendation report found that the
revised plans “addressed most of the conditions listed in the
previous recommendation report.” The report noted that the
Developers needed to provide a floor plan for the indoor stor-
age facility. Like the previous report, it provided a written
analysis of the project in light of § 55-885 and concluded that
other than a few conditions to address, “the proposed uses
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will comply with all the applicable base district development
standards and [are] consistent with the criteria in Section
55-885.” The planning department added that “[t]he proposed
uses are consistent with and carry out the goals and objectives
of the City[’s] Master Plan.”
   On August 5, 2015, the Planning Board conducted another
hearing. The planning department again issued a notice let-
ter regarding the proposed conditional use permit, special use
permit, and rezoning. At the hearing, the Developers’ attorney
addressed issues including tree buffers, the “upgraded design,”
topography, compliance with size regulations, views from the
exterior, security issues, and fencing and buffering. He also
noted the meetings and contacts between Leise and the resi-
dential neighbors.
   At the August 5, 2015, hearing, neighbors again expressed
concerns about views from the exterior, lighting, the City’s
master plan, compatibility with the neighborhood, and safety.
One of the Homeowners implied that demographically, owners
of nearby starter homes valued at about $125,000 would be
more likely to use the storage facility than homeowners like
him with large homes valued at $400,000. Following these
remarks, a board member advised the Homeowner and others
present to be “very careful about generalizing about people.”
The Homeowner reiterated:
         The point I’m trying to make here is that it is a dif-
      ferent type of housing in this neighborhood that would
      be next to that type of facility. It is not $125,000 homes,
      it is not whatever they are for trailer homes. These are
      houses that are valued between 300,000 and $400,000.
   Later in the hearing, another board member referred to pre-
meeting discussions, stating, “[I]t was socioeconomic impact
discussion that really sort of floored me because it dealt with
the income levels of people who will be using this type of
storage facility.” He also alluded to the Homeowner’s com-
ments and said:
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      [T]hat’s offensive to me, okay? It’s offenses [sic] to have
      that type of discussion about the construction of a stor-
      age facility.
         I’m convinced that if we took the same structure that
      [Leise] wants to build and put something else on the
      inside of it, we wouldn’t get this argument because it
      wouldn’t be a storage facility . . . .
   Immediately following the hearing, the Planning Board
voted in favor of the conditional use permit, special use per-
mit, and MCC overlay rezoning. Thus, the conditional use
permit was approved, subject to conditions, and the special use
permit and rezoning were forwarded to the City Council for
final action.
   On September 29, 2015, the City Council held a public
hearing on the special use permit and rezoning, designated
as separate agenda items. Prior to the hearing before the City
Council, nearby residents submitted to the City Council an
“Opposition Document” detailing their concerns about the pro-
posed project. Two hundred ninety-two neighboring residents,
including at least three of the Homeowners, signed “petitions”
that accompanied the opposition document. The opposition
document was later filed in the City clerk’s office. At the hear-
ing, the Developers’ attorney again spoke. In addition, some
neighbors voiced concerns similar to those discussed at previ-
ous hearings. The City Council voted to lay over the case for
3 weeks.
   On October 20, 2015, the City Council held another hear-
ing. The Developers’ attorney stated that in response to the
neighbors’ concerns, the Developers had further revised the
plan, adding seven features which the Developers listed in
a letter to the City Council. The seven features pertained to
enhanced landscaping and finishes to improve the appear-
ance of the proposed development. At the hearing, the
Developers’ attorney reported that one of the homeowners’
associations that had formerly objected to the project had now
approved it.
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   The Homeowners’ representative stated at the hearing that
they had presented an “alternative design” to the Developers.
The Developers’ attorney responded that they had evaluated the
cost of the alternative design relative to the potential income
and concluded that it would be an “economic disaster.”
   The City Council voted 5 to 2 to approve the MCC rezoning
and ultimately passed an ordinance to implement it. The City
Council also approved the special use permit by a vote of 5 to
2, subject to compliance with various regulations and condi-
tions, including the seven features listed in the Developers’
October 19, 2015, letter.

                  3. District Court Proceedings
   On October 21, 2015, the Homeowners filed a petition
in error with the district court, seeking to challenge the
approvals of the conditional use permit, special use permit,
and rezoning.
   On October 30, 2015, the Homeowners filed an application
for a temporary restraining order and temporary injunction in
district court. They sought to prevent the issuance of any per-
mits, the implementation of the MCC overlay district, and the
development of the subject property.
   On November 2, 2015, the Homeowners filed an amended
petition in error. The Homeowners requested vacation or rever-
sal of (1) the Planning Board’s approval of the conditional
use permit, (2) the City Council’s passage of a resolution that
approved the special use permit, and (3) the City Council’s
passage of an ordinance implementing the MCC overlay dis-
trict. The Homeowners claimed that the decisions of the City
Council and the Planning Board were illegal, not supported by
the evidence, and thus arbitrary, unreasonable, clearly wrong,
and a violation of due process. Specifically regarding the spe-
cial use permit and the MCC overlay district, the Homeowners
alleged, among other things, that Leise had failed to provide
accurate information about the ownership of the subject prop-
erty or his authority to develop it.
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   On November 9, 2015, the Developers filed a motion to
dismiss the Homeowners’ amended petition in error. However,
on November 25, they withdrew the motion to dismiss and
filed a motion to affirm the special use permit, along with
the MCC overlay district. The Developers alleged that while
the Homeowners’ amended petition in error was pending, the
special use permit had been issued and the ordinance approv-
ing the MCC overlay district had been passed and signed by
the mayor. The Developers further averred that the City enti-
ties’ actions appeared to comply with the law and that the
Homeowners’ claims were not specific enough to meet their
burden of proving otherwise.
   On December 1, 2015, the City Council, the Planning
Board, and the City filed an answer essentially denying the
allegations of the amended petition in error. They affirma-
tively alleged that the Homeowners lacked standing, that the
district court lacked subject matter jurisdiction over some
or all of the claims, that the Homeowners made an untimely
challenge of the conditional use permit, and that the City’s
rezoning of the subject property was not reviewable by an
error proceeding.
   On February 17, 2016, the district court held a hearing on
the amended petition in error and received the administrative
record, including chapter 55 of the Omaha Municipal Code. On
that date, the district court also determined that it did not have
subject matter jurisdiction over the application for a temporary
restraining order and temporary injunction.
   In an April 11, 2016, order, the district court affirmed the
determinations of the City Council and the Planning Board
and dismissed the amended petition in error with preju-
dice. The district court stated that after reviewing the evi-
dence, it found that the Planning Board and the City Council
acted within their jurisdiction and that their determinations
were supported by sufficient relevant evidence. This appeal
followed.
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                III. ASSIGNMENTS OF ERROR
   On direct appeal, the Homeowners assign that the district
court erred in (l) finding that the Planning Board acted within
its jurisdiction and had sufficient evidence to approve the
conditional use permit, (2) finding that the City Council had
jurisdiction and sufficient evidence to approve the special
use permit, (3) finding that the City Council acted within its
jurisdiction and had sufficient evidence to approve the MCC
rezoning, and (4) affirming the determinations of the Planning
Board and City Council, because the record showed that the
Planning Board and City Council did not act with due process
of law.
   On cross-appeal, the City, the Planning Board, and the City
Council assign that the district court erred in (1) failing to rule
that the Homeowners’ petition in error was untimely as to the
conditional use permit, (2) failing to rule that the Homeowners
lacked standing as to the rezoning challenge and that the
district court thereby lacked subject matter jurisdiction, and
(3) failing to rule that the petition in error was an improper
remedy as to the rezoning, thereby precluding subject mat-
ter jurisdiction.

                 IV. STANDARD OF REVIEW
   [1] Interpretation of a municipal ordinance is a question of
law, on which we reach an independent conclusion irrespec-
tive of the determination made by the court below. See State
ex rel. Parks v. Council of City of Omaha, 277 Neb. 919, 766
N.W.2d 134 (2009).
   [2] In reviewing a decision based on a petition in error,
an appellate court determines whether the inferior tribunal
acted within its jurisdiction and whether the inferior tribunal’s
decision is supported by sufficient relevant evidence. Crown
Products Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d
294 (1997).
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                          V. ANALYSIS
                         1. Cross-A ppeal
   We begin by addressing the cross-appeal of the City, the
Planning Board, and the City Council, because its resolution is
partially dipositive of the Homeowners’ direct appeal.
                (a) Timeliness of Petition in Error
   On cross-appeal, the City, the Planning Board, and the City
Council contend that the district court lacked subject mat-
ter jurisdiction because the Homeowners untimely filed their
petition in error more than 30 days after the Planning Board’s
decision to approve the conditional use permit.
   Neb. Rev. Stat. §§ 25-1905 and 25-1931 (Reissue 2016)
govern proceedings in error and require that within 30 days
after the rendition of the final judgment or order sought to
be reversed, vacated, or modified, a petitioner in error must
file a petition and an appropriate transcript containing the
final judgment or order. See, Abdullah v. Nebraska Dept. of
Corr. Servs., 245 Neb. 545, 513 N.W.2d 877 (1994); Glup
v. City of Omaha, 222 Neb. 355, 383 N.W.2d 773 (1986).
Here, the Homeowners filed their petition in error with the
district court on October 21, 2015, unquestionably more than
30 days after the Planning Board approved the conditional
use permit on August 5. However, the Homeowners contend
that the Planning Board’s approval was not a final order.
We agree.
   The Homeowners point to the Omaha Municipal Code,
which provides that “[a]pproval of a conditional use permit
by the planning board shall be effective five days after action,
unless associated with an application for rezoning or subdivi-
sion approval.” § 55-883(j). In this instance, the request for
the conditional use permit was associated with an application
for rezoning. Therefore, we apply § 55-883(c) of the Omaha
Municipal Code, which addresses concurrent applications.
Section 55-883(c) provides in part, “The official effective
date of a conditional use permit shall be the effective date
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of an ordinance approved by the city council implementing
rezoning of the site.” In this case, the conditional use permit
went into effect on October 20, 2015, when the City Council
passed the ordinance approving the amendment of the MCC
overlay district. On the same date, the conditional use permit
became a final order, and the Homeowners filed their peti-
tion in error on October 21, within 30 days of the final order.
See Neb. Rev. Stat. § 25-1902 (Reissue 2016) (defining final
order for purposes of review on petition in error). Therefore,
the district court had subject matter jurisdiction. See Neb.
Rev. Stat. § 25-1901 (Reissue 2016) (providing for district
court’s appellate jurisdiction over any “final order made by
any tribunal, board, or officer exercising judicial functions”)
and § 25-1931.

                          (b) Standing
   Next, the City, the Planning Board, and the City Council
contend that the Homeowners failed to allege or prove any
special injury arising from the “imposition of the stricter
MCC overlay rules onto the subject property” and that there-
fore, they do not have standing. Brief for appellees on cross-
appeal at 39. The City, the Planning Board, and the City
Council point out that the MCC overlay district actually
is more restrictive to future development than the existing
commercial base district and provides the Homeowners with
added protection.
   [3-5] Standing is the legal or equitable right, title, or inter-
est in the subject matter of the controversy. Smith v. City of
Papillion, 270 Neb. 607, 705 N.W.2d 584, 590 (2005). The
requirement of standing is fundamental to a court’s exercise
of jurisdiction, and either a litigant or a court before which a
case is pending can raise the question of standing at any time
during the proceeding. Id. It is generally held that an adjacent
landowner has standing to object to the rezoning of property
if such landowner shows some special injury separate from a
general injury to the public. See id.
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    The Homeowners point out that since they live adjacent to
or within 300 feet of the proposed project, they have stand-
ing, like the property owners in Smith v. City of Papillion,
supra. There, we noted that Neb. Rev. Stat. § 19-905 (Reissue
1997) required notice to owners of property within 300 feet
of the proposed project in first-class cities such as Papillion
and that the property owners’ entitlement to such notice sup-
ported a finding of special injury. Here, the operative statute
in  metropolitan-class cities like Omaha is Neb. Rev. Stat.
§ 14-420 (Cum. Supp. 2016), which also requires notice to
owners of property within 300 feet of the proposed proj-
ect. See Neb. Rev. Stat. § 14-101 (Reissue 2012) (defining
metropolitan-class cities). Thus, the Homeowners’ entitlement
 to notice in this case tends to show the presence of a special
 injury. Further, in Smith, we noted that the finding of spe-
 cial injury was also supported by expert testimony that the
 proposed project would diminish property values in the area.
 We find similar evidence of a special injury in the instant
 case, where a real estate broker with 14 years of experience
 provided evidence to the Planning Board that the proposed
 changes would cause an adverse impact on the neighboring
 residents’ property values. Although contradictory evidence
 was presented by way of the planning department report, the
 Homeowners met their initial burden to show standing to chal-
 lenge the proposed uses and rezoning.

                        (c) Jurisdiction
   [6,7] Lastly, the City, the Planning Board, and the City
Council contend that the City Council’s decision on the appli-
cation for rezoning was a legislative function and, therefore,
not the proper subject of an error proceeding. Previously, we
have found that “an appeal or error proceeding does not lie
from a purely legislative act by a public body to which leg-
islative power has been delegated” and that “the only remedy
in such cases is by collateral attack, that is, by injunction or
other suitable action.” In re Application of Frank, 183 Neb.
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722, 723, 164 N.W.2d 215, 216 (1969). We have held that a
zoning ordinance constitutes the exercise of a governmental
and legislative function and that a city council adopting a
rezoning ordinance which amends a general zoning ordinance
acts in a legislative capacity. Giger v. City of Omaha, 232
Neb. 676, 442 N.W.2d 182 (1989); Copple v. City of Lincoln,
210 Neb. 504, 315 N.W.2d 628 (1982); In re Application of
Frank, supra.
   But as pointed out by the Homeowners, although the above-
cited cases preclude a petition in error following a legislative
act, none of them deals with a simultaneous rezoning and spe-
cial use permit. See, Giger v. City of Omaha, supra; Copple
v. City of Lincoln, supra; In re Application of Frank, supra.
Our case law does not address that situation. And the ques-
tion becomes whether the City Council acted legislatively or
judicially when faced with simultaneous requests for rezoning
and a special use permit.
   The Homeowners contend that by conducting simultaneous
hearings on the special use permit and the rezoning, the City
Council acted judicially. They argue:
         In deciding to include Leise’s convenience storage
      and warehouse project within the MCC Overlay District,
      the . . . City Council acted judicially and not legisla-
      tively. The hearings on the amendment and the special
      use permit were at the same time and date, had the same
      participants and opponents and evidence, and utilized the
      same hearing procedures.
Reply brief for appellants at 10.
   To support their argument, the Homeowners cite McNally
v. City of Omaha, 273 Neb. 558, 731 N.W.2d 573 (2007), for
the proposition that when a tribunal is required to conduct a
hearing and receive evidence, it exercises a judicial function
in determining questions of fact. And under Neb. Rev. Stat.
§ 25-1903 (Reissue 2016), proceedings to obtain a reversal,
vacation, or modification of a final order made by any tri-
bunal, board, or officer exercising judicial functions shall be
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by a petition entitled “petition in error.” However, McNally
involved an administrative hearing before a building review
board and not a hearing before a city council. Further, we
noted in McNally that there was an adversarial hearing where
evidence had been presented by both sides and that the build-
ing review board exercised “‘judicial functions.’” 273 Neb. at
564, 731 N.W.2d at 580.
   Where our case law has not explicitly stated whether a pro-
ceeding is quasi-judicial or legislative, the nature of the pro-
ceeding in question is a key factor in making that determina-
tion. For example, in In re Application of Olmer, 275 Neb. 852,
752 N.W.2d 124 (2008), we found that the county board acted
quasi-judicially in denying an application for a conditional use
permit; in so finding, we noted that the record included exhib-
its offered and received and a stipulated supplemental record
which included a deposition with attached exhibits.
   Here, the record reflects that the special use permit and
rezoning applications proceeded at the same hearing pursuant
to separate agenda items. Further, the record does not show
that evidence was offered and received or that testimony was
offered. Rather, the Homeowners’ opposition document was
simply submitted to the City Council prior to the hearing and
later filed with the City clerk’s office. Several neighboring
residents, including some of the Homeowners, also presented
argument at the two City Council hearings. Although we rec-
ognize that various boards and councils do not function as
courts in the strict sense, parties cannot transform an other-
wise legislative proceeding into a quasi-judicial function or
establish a quasi-judicial record by simply presenting argu-
ments and handing documents to the presiding body. In light
of the nature of the proceedings at issue here, we conclude
that the City Council acted as a legislative body in granting
the rezoning request and in granting the special use per-
mit. Accordingly, a request for a permanent injunction, not
a petition in error, was the proper means to seek review of
both determinations.
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   [8] Because the Homeowners filed a petition in error to
review both the rezoning and special use permit approvals by
the City Council, the district court did not have jurisdiction
to proceed on those issues, and as a result, neither does this
court. When a trial court lacks the power, that is, jurisdiction,
to adjudicate the merits of a claim, the Supreme Court also
lacks power to adjudicate the merits of the claim. Nebraska
State Bar Found. v. Lancaster Cty. Bd. of Equal., 237 Neb.
1, 465 N.W.2d 111 (1991). We therefore dismiss for lack of
jurisdiction that portion of the Homeowners’ appeal regarding
the City Council’s approval of the rezoning and the special use
permit. Consequently, we need not address the Homeowners’
assignments of error concerning the rezoning and the special
use permit. Johnson v. Nelson, 290 Neb. 703, 861 N.W.2d 705
(2015) (appellate court is not obligated to engage in analy-
sis that is not necessary to adjudicate case and controversy
before it).

                       2. Direct A ppeal
   Our holding regarding the cross-appeal limits our consid-
eration of the Homeowners’ direct appeal to only the follow-
ing issues related to the conditional use permit: whether the
Planning Board acted within its jurisdiction, whether it had
sufficient evidence to approve the conditional use permit, and
whether it acted with due process of law.

                        (a) Jurisdiction
   [9] The Homeowners claim that the district court erred in
finding that the Planning Board acted within its jurisdiction. In
reviewing a decision based upon a petition in error, an appel-
late court determines, among other things, whether the inferior
tribunal acted within its jurisdiction. See Crown Products
Co. v. City of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997).
A party invoking the tribunal’s jurisdiction has the burden to
establish the elements of standing. Field Club v. Zoning Bd. of
Appeals of Omaha, 283 Neb. 847, 814 N.W.2d 102 (2012). The
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Homeowners argue that Leise failed to show standing because
the application he submitted did not reflect that he was the
owner of the subject property or the agent of the owner and did
not specifically request a conditional use permit.
   [10] Both sides agree that Leise failed to check the box
requesting a conditional use permit on the original applica-
tion. On the other hand, the City, the Planning Board, and the
City Council point out that the Homeowners allege Leise’s
seeking of a conditional use permit in their amended petition
in error and that the hearings were all advertised to reflect
that a conditional use permit was being considered. However,
the controlling issue here is that the Homeowners failed to
challenge, in their petition in error, Leise’s failure to check
the box requesting a conditional use permit on the original
application. An issue not presented to the trial court may
not be raised on appeal. V.C. v. Casady, 262 Neb. 714, 634
N.W.2d 798 (2001). Now, for the first time, the Homeowners
raise the issue of Leise’s failure to check the box requesting
a conditional use permit, and we cannot consider that portion
of their argument.
   Similarly, the Homeowners now assert that Leise lacked
standing to obtain the conditional use permit because his
application did not demonstrate that he was the owner of
the subject property or the agent of the actual owner. They
argue that Leise failed to establish any agency relationship
when he incorrectly designated “Ray Anderson c/o Anderson
Food Shops” as the owner, rather than “Ray Anderson, Inc.”
However, the Homeowners did not raise this issue before the
district court in the context of the conditional use permit.
Instead, their amended petition in error alleged that because
Leise’s application failed to provide accurate information
about the ownership of the subject property or the authority
to develop it, the Planning Board and the City Council lacked
sufficient evidence to approve the special use permit and the
rezoning. As it pertains to the conditional use permit, then,
this issue was neither presented to nor passed upon by the
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district court, and the Homeowners cannot now raise it on
appeal. See id.

                  (b) Sufficiency of Evidence
   [11] The Homeowners also argued to the district court and
now on appeal that the Planning Board had insufficient evi-
dence to approve the conditional use permit. In reviewing a
decision based on a petition in error, an appellate court deter-
mines whether the inferior tribunal acted within its jurisdic-
tion and whether the inferior tribunal’s decision is supported
by sufficient relevant evidence. Crown Products Co. v. City
of Ralston, 253 Neb. 1, 567 N.W.2d 294 (1997). Further, the
reviewing court is restricted to the record before the adminis-
trative agency and does not reweigh evidence or make inde-
pendent findings of fact, and the evidence is sufficient to sup-
port an administrative agency’s decision if the agency could
reasonably find the facts as it did based on the testimony and
exhibits contained in the record. Geringer v. City of Omaha,
237 Neb. 928, 468 N.W.2d 372 (1991).
   In summary, the Homeowners argue that “[t]here was not
sufficient competent evidence for approval of the condi-
tional use permit for the industrial use of warehousing and
distribution (limited) given the unrebutted evidence regard-
ing lack of compatibility, adverse economic effects, and
safety concerns.” Brief for appellants at 30. Specifically,
the Homeowners maintain that the City, the Planning Board,
and the City Council failed to follow the criteria as set forth
in § 55-885. Section 55-885(a) does set forth the criteria
for review and evaluation for a conditional use permit. But
§ 55-885(b) further provides that “conditional use permits . . .
shall be reviewed in accordance with the relevant criteria,”
which means that the reviewing body need not consider each
listed standard. The record reflects that although the City, the
Planning Board, and the City Council did not consider each
factor within § 55-885, they gave due consideration to the
factors relevant in this case.
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   Additionally, the Homeowners argue that the affected resi-
dential areas are composed of single-family dwellings in
medium- to low-density neighborhoods and are not zoned to
include convenience storage or warehousing as conditional
or special uses. The Homeowners contend that the Planning
Board approved the conditional use permit for limited indus-
trial warehousing and distribution “without any consideration
of extensive public opposition to the project and the unrebutted
concerns regarding compatibility, adverse economic effects,
and safety concerns.” Brief for appellants at 29. Certainly,
opposition and concerns were raised.
   On the other hand, the City’s planning department presented
a report to the Planning Board dated April 29, 2015, which
analyzed Leise’s application. That report acknowledged the
surrounding residential properties and that prior to the subject
property’s annexation by the City, warehousing and distribu-
tion were permitted uses for the subject property. It noted that
Leise’s permit request was in substantial conformance with
the zoning ordinance and the City’s master plan. Further, the
planning department’s report thoroughly analyzed the proposed
project in light of the relevant criteria of § 55-885 and con-
cluded that the economic impact on surrounding properties was
acceptable. In an updated report dated July 29, 2015, the plan-
ning department opined that Leise had essentially complied
with all requested changes to his proposal and recommended
approval of the conditional use permit, the special use permit,
and the rezoning, subject to certain conditions.
   Although the Homeowners raised valid concerns, we can-
not find from the record that the Planning Board did not
evaluate the application using its own criteria as outlined in
§ 55-885 or that its decision was not supported by sufficient
relevant evidence.

                      (c) Due Process
   Lastly, the Homeowners contend that they were not pro-
vided due process. They argue:
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      The [Planning] Board did not provide the opportunity to
      question . . . Leise or his counsel. Very little time was
      provided to present opposition evidence and concerns to
      the [Planning] Board. It was clear from the responses by
      the majority of [Planning] Board members to concerned
      citizens’ testimony at the May 6 . . . and August 5, 2015
      public meetings that the [Planning] Board had already
      decided in favor of . . . Leise’s plan.
Brief for appellants at 33. The Homeowners obviously believe
that the Planning Board did not sufficiently consider their
viewpoint.
   However, the two portions of the record that the Homeowners
cite do not support their position. First, a Homeowner sug-
gested that the storage facility would be frequented by owners
of lower-end homes rather than owners of higher-end homes
such as his. In response, a board member cautioned him and
others present to be “very careful about generalizing about
people.” The Homeowners argue that this reflects that the
Planning Board was not an “impartial adjudicator . . . and in
effect became witnesses” for Leise. Brief for appellants at 32.
Certainly, the Homeowner who offered the suggestion had the
right to protect his property investment, which he believed
would be adversely affected by the proposed uses. However, a
Planning Board member’s redirecting the Homeowner’s com-
ments does not equate with partiality or becoming a witness.
Second, the Homeowners point to a portion of the record
wherein a Planning Board member expressed his concerns
about the Homeowners’ arguing against the project from a
socioeconomic standpoint. Again, we cannot find that those
concerns reflected either that the board member was not impar-
tial or that he had become a witness. Further, neither instance
shows that the Homeowners were not allowed to offer evi-
dence, were not allowed to offer their opinion, or attempted to
question Leise on the record.
   [12] A court reviewing an order of an administrative agency
must determine whether there has been due process of law;
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and this includes an inquiry into the jurisdiction of the agency,
whether there was reasonable notice and an opportunity for
fair hearing, and whether the finding was supported by evi-
dence. Ashby v. Civil Serv. Comm., 241 Neb. 988, 492 N.W.2d
849 (1992). See, also, Crown Products Co. v. City of Ralston,
253 Neb. 1, 567 N.W.2d 294 (1997) (in proceedings before
administrative agency or tribunal, procedural due process
requires, among other things, opportunity to present evidence
and hearing before impartial board). As an appellate court
performing a review of the record for due process, we are
positioned not to judge the wisdom of the Planning Board’s
decision, but to ensure that an aggrieved party had the oppor-
tunity to be heard. The Homeowners had that opportunity.
Certainly, another board may have allowed more time than
allotted here, but the amount of time devoted is not as relevant
as the independence of the inquiry. In particular, for us to find
error, the record must reflect an actual bias rather than mere
disagreement. Based on our review of the record, we find that
the Homeowners were provided due process.
                       VI. CONCLUSION
   For the aforementioned reasons, we dismiss for lack of
jurisdiction the portion of the Homeowners’ appeal address-
ing the rezoning and special use permit, and we further vacate
the district court’s order in that regard for lack of jurisdiction.
However, we affirm the district court’s order in regard to the
conditional use permit.
	A ffirmed in part, and in part
	                                 vacated and dismissed.