Hardship and the Granting of Zoning Variances: a New Test in Light of Rousseau v. Zoning Board of Appeals, 17 Neb. App. 469, 764 N.w.2d 130 (2009)

• Jurisdiction: Nebraska,United States
• Citation: Vol. 89
• Publication year: 2021

89 Nebraska L. Rev.1171. Hardship and the Granting of Zoning Variances: A New Test in Light of Rousseau v. Zoning Board of Appeals, 17 Neb. App. 469, 764 N.W.2d 130 (2009)

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Note(fn*)

Hardship and the Granting of Zoning Variances: A New Test in Light of Rousseau v. Zoning Board of Appeals, 17 Neb. App. 469, 764 N.W.2d 130 (2009)

TABLE OF CONTENTS

I. Introduction.......................................... 1172

II. Background........................................... 1173
A. A History of Hardship............................. 1173
1.Frank v. Russell, 160 Neb. 354, 70 N.W.2d 306 (1955)......................................... 1173
2.Eastroads, L.L.C. v. Omaha Zoning Board of Appeals, 261 Neb. 969, 628 N.W.2d 677 (2001). 1175
3.Alumni Control Board v. City of Lincoln, 179 Neb. 194, 137 N.W.2d 800 (1965)............... 1176
4.Bowman v. City of York, 240 Neb. 201, 482 N.W.2d 537 (1992)............................. 1176
B.Rousseau v. Zoning Board of Appeals of Omaha .... 1178
1. Facts and Procedural History .................. 1178
2. Court of Appeals Opinion ...................... 1179
C. Statutory Guidance................................ 1180

III. Analysis .............................................. 1182
A. Deference ......................................... 1183
B. Developing the New Standard ..................... 1184
C. Proposed New Standard ........................... 1188
D.Application to Rousseau ........................... 1189

IV.Conclusion ............................................ 1190

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I. INTRODUCTION

A void exists in the laws of Nebraska with respect to guidance for what constitutes sufficient hardship in granting a zoning variance. This void was clearly demonstrated in Rousseau v. Zoning Board of Appeals of Omaha.(fn1) An examination of this lack of guidance in light of the policy of deference to zoning boards that has dominated variance decisions is necessary to understand why there has been so little guidance up to the present. The Nebraska Supreme Court has alluded to the reasons for such deference, stating that "[r]eview overbroad in scope would have the effect of substituting the judgment of a judge or jury for that of the [zoning board], thereby nullifying the benefits of legislative delegation to a specialized body."(fn2) Despite this policy of deference, a balance must be reached for deciding whether sufficient hardship does exist, as too much deference to the zoning boards can lead to detrimental consequences.(fn3)

In Rousseau, the Nebraska Court of Appeals upheld variances for a front yard setback, a side yard setback, and a reduction in parking spaces around a proposed residential building, ruling that there was no abuse of discretion or error of law where the district court upheld the zoning board's decision granting the variances.(fn4) Elena Kerwin, the party seeking the zoning variance in Rousseau, sought to construct a building on a narrow lot in a residential neighborhood in Omaha, Nebraska, and variances were required for her to be able to build as she desired.(fn5) The court of appeals looked to the established rules on variances that stemmed from previous Nebraska Supreme Court cases, and as there was no violation of any of those rules, the granting of the variances was affirmed.(fn6)

Regarding hardship for zoning variances, the Nebraska Supreme Court has articulated only three rules in its decisions.(fn7) In Part II, this Note will examine the history of the Nebraska Supreme Court decisions concerning hardship, laying the foundation for the rules that have thus far guided the issuing of zoning variances. The lack of guidance created by these existing rules is demonstrated in Rousseau, which provides an example of how the court of appeals is essentially limited to deferring to the decision of the zoning board. Part III analyzes how a policy of deference potentially impacts zoning and how, in order to give sufficient guidance to zoning boards and limit the potential for adverse consequences that can arise from too much deference,

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a new standard should be adopted that will preserve the flexibility necessary for zoning boards to function as intended.

Rousseau, along with the past decisions of the Nebraska Supreme Court, shows that current tests are insufficient for zoning boards of appeals to determine whether sufficient hardship exists to grant a variance. Thus, the deferential approach on appeal of decisions granting variances can easily lead to problems of corruption and violation of the spirit of the zoning ordinances. This Note therefore suggests a new test for zoning boards with respect to determining hardship for granting variances-a test that will follow from the previous decisions set forth by the Nebraska Supreme Court and protect the interests of individuals, neighborhoods, and communities.

II. BACKGROUND

A. A History of Hardship

1. Frank v. Russell

In Nebraska, the foundation for what constitutes sufficient hardship to issue a variance was laid in Frank v. Russell.(fn8) In Frank, a couple planned to construct a residential building on a corner lot they had purchased in Scottsbluff, Nebraska.(fn9) After discovery of a city ordinance that did not allow construction at the desired distances from the property lines, however, the city engineer halted preparation for construction.(fn10) The couple appealed to the board of adjustment for the city of Scottsbluff, and after a hearing, the board approved the original plans.(fn11) The neighbors of the couple appealed the decision to the district court.(fn12)

In district court, the appellants argued that a provision in the city ordinance that required that the setback of the building be equal to or greater than the average of the other residences on the block was con-trolling.(fn13) In response, the couple argued that a provision pertaining to corner lots controlled, which would have allowed them to build even closer to the property line.(fn14) Instead of deciding which provision controlled,

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the district court granted a variance for the construction of the building with a twenty-seven foot setback, based upon a different provision of the ordinance which allowed "minor variations" where there were "practical difficulties or unnecessary hardships."(fn15) The district court also denied an injunction to prevent construction of the build-ing,(fn16) and the two cases were appealed to the Nebraska Supreme Court.

The state supreme court reversed, finding the decision to grant a variance "unreasonable and arbitrary."(fn17) The court further stated that allowing the variance would create a thirteen foot encroachment, which was not a minor variation, that it was "destructive ... of the spirit of the ordinance" in violating the uniformity of the other residences, that it obliterated the "symmetry of the block front," and that it disrupted the view of the other residences on the block.(fn18) The Nebraska Supreme Court did recognize there would be hardship to the couple in denying them the opportunity to build as they had planned and requiring them to tear down what they had started to build.(fn19) The court focused specifically, however, on the fact that the couple had created their own hardship with knowledge of what the ordinance prohibited, stating: "It would certainly be unreasonable to allow one to create his own hardship and difficulty and take advantage of it to the prejudice of innocent parties."(fn20) The court also seemed to lay down a rule to govern the granting of variances:

It appears that the rule respecting the right of a board of adjustment, such as the one here, to grant a variance from zoning regulations on the ground of unnecessary hardship is generally that it may not be granted: Unless the denial would constitute an unnecessary and unjust invasion of the right of property; if the grant relates to a condition or situation special and peculiar to the applicant; if it relates only to a financial situation or hardship to the applicant; if the hardship is based on a condition created by the applicant; if the hardship was intentionally created by the owner; if the variation would be in derogation of the spirit, intent, purpose, or general plan of the zoning ordinance; if the variation would affect adversely or injure or result in injustice to others; or ordinarily if the applicant purchased his premises after enactment of the ordinance.(fn21)

Ultimately, the court decided that the provision requiring a forty foot setback applied.(fn22) 1175

2. Eastroads, L.L.C. v. Omaha Zoning Board of Appeals

In Eastroads, L.L.C. v. Omaha Zoning Board of Appeals,(fn23) the Nebraska Supreme Court clarified the rule on granting variances laid down in Frank. In Eastroads, a company requested an area variance to an ordinance.(fn24) The zoning board of appeals granted the variance due to the odd shape of the parcel of land, a rubble fill in the middle of the parcel that prevented building on that spot, and a state-owned right-of-way, all of which created practical difficulties to develop-ment.(fn25) After an appeal and remand,(fn26) the board of appeals again granted a variance, pointing out that the building would still meet the normal requirements of the ordinance for building setbacks.(fn27) The district court again affirmed the board's decision, finding that the granting of the variance "was not illegal, arbitrary, or capricious,"(fn28) based on the rubble fill, the...