Summary
The Nebraska Supreme Court affirmed a district court order upholding the Dodge County Board of Adjustment’s grant of a zoning variance for a 4-H pigpen that violated county setback requirements. The court held that competent evidence supported the finding of exceptional hardship based on the property’s triangular shape, drainage concerns, and lack of feasible alternative locations, and that the district court did not abuse its discretion or make an error of law.
Topics
Practice areas
Questions Presented
- Whether competent evidence supported the district court's determination that the Kreifels' property-specific conditions created exceptional and undue hardship sufficient to justify a zoning variance under Neb. Rev. Stat. § 23-168.03(1)(c).
- Whether the alleged hardship was self-created because the Kreifels built the pen without knowing the setback requirements.
- Whether the hardship was shared generally by other properties in the same zoning district and vicinity.
- Whether the appellate court should substitute its factual findings for those of the district court in reviewing the board's variance decision.
Holdings
- In an appeal involving a board of adjustment decision, the appellate court reviews the district court's decision for abuse of discretion or error of law, regardless of whether the district court took additional evidence, and will not substitute its factual findings when competent evidence supports the district court's findings.
- A variance may be justified when strict enforcement of zoning regulations, because of the property's exceptional narrowness, shallowness, or shape and related preexisting conditions, inhibits the property's permitted use and creates peculiar and exceptional practical difficulties or exceptional and undue hardship. The applicant need not prove that the property would otherwise lose all beneficial or reasonable use.
- A self-imposed hardship is not a per se bar to a zoning variance; it is a factor for the regulatory authority to consider. A hardship is self-imposed when an applicant comes to restricted property intending an unpermitted use with knowledge of the applicable restrictions, but not when the hardship results from inherent and preexisting characteristics of the property.
- The variance applicant satisfied the requirement that the hardship not be shared generally by other properties in the same zoning district and vicinity when the evidence showed that the hardship arose from the unique narrowness and shape of the subject property, together with the placement of preexisting structures.
Key quotations
“A self-imposed hardship is not a per se bar to a variance. Rather, a self-imposed hardship is a factor for the regulatory authority to consider when deciding whether or not to grant the variance.” (82)
“It is a misconception that the term “undue hardship” requires an applicant to prove that without the variance, the property would lose all utility.” (81)
“The Kreifels’ hardship is that, due to the narrowness and shape of their property, in combination with the placement of preexisting structures, there is no other location on their property to site the pen, which is a permitted principal use.” (83)
Factual background
Joseph and Teri Kreifels owned approximately 5.15 acres in Dodge County's A-3 agricultural-transitional zoning district. They built a small, noncommercial pigpen for their children's 4-H activities approximately 30 feet from a neighboring property line, violating setback requirements requiring 100 feet from the property line and 300 feet from a neighboring residence. The Kreifels sought a variance, and the county board found that the property's narrow, triangular shape, preexisting structures, drainage conditions, and lack of feasible alternative locations created exceptional hardship. The district court affirmed after finding that relocating the pen would create drainage, farming, safety, animal-health, and financial problems.
Procedural history
The Dodge County Board of Adjustment unanimously granted Joseph and Teri Kreifels a variance from agricultural zoning setback requirements for a 4-H pigpen. Dolezal-Soukup appealed to the district court, arguing that the variance lacked exceptional hardship, alternative locations existed, the hardship was self-created, and the variance would harm adjacent property. The district court affirmed after considering testimony and exhibits, and the Nebraska Supreme Court affirmed on appeal.