Summary
interpreting prior version of Neb. Rev. Stat. § 19-910 (Reissue 2012 & Supp. 2019)
Summary of this case from Dolezal-Soukup v. Dodge Cnty. Bd. of AdjustmentOpinion
No. S-90-742.
Filed February 26, 1993.
1. Zoning: Ordinances. Neb. Rev. Stat. § 19-910 (Reissue 1991) empowers a board of adjustment to grant a variance from a zoning regulation only if strict application of the regulation, because of the unusual physical characteristics of the property existing at the time of the enactment of the regulation, would result in peculiar and exceptional practical difficulties to or exceptional and undue hardships upon the owner. 2. Zoning: Evidence: Appeal and Error. In an appeal from a board of adjustment to a district court, the district court may disturb the board's decision only if the decision was illegal or not supported by the evidence, and was thus arbitrary, unreasonable, or clearly wrong. 3. Zoning: Courts: Appeal and Error. On appeal from a district court's review of a decision of a board of adjustment, an appellate court is to decide if the district court abused its discretion or made an error of law; where competent evidence supports the district court's factual findings, the appellate court will not substitute its factual findings for those of the district court.
Appeal from the District Court for Sarpy County: RONALD E. REAGAN, Judge. Affirmed.
John W. Herdzina, Bellevue City Attorney, of Abrahams, Kaslow Cassman, for appellant.
James C. Cripe for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.
Asserting, in summary, that the district court misconstrued the authority of a board of adjustment, the defendant-appellant, City of Bellevue, Board of Adjustment, challenges the reversal of its refusal to grant the plaintiff-appellee, Joan Barrett, a zoning variance. We affirm.
Barrett's property abuts that of Frank Semin and sits 6 feet higher than his property. Semin's occupancy of his property predates 1980, when Barrett purchased her property. In 1989, Semin lowered the grade of his lot "at least a foot and left [Barrett] hanging with one foot of dirt." As a result, Barrett had a retaining wall built to "hold [her] dirt in." The height of the retaining wall appears to be approximately even with the height of Barrett's land.
Semin has, since late 1989, maintained on his property several spotlights and cameras. Some of the lights are activated by motion, such that even a moving animal turns them on. Lights also go on at other times, such as when Barrett leaves for work at 5 o'clock in the morning and when guests arrive at the Barrett house. In addition, Semin has told the occupants of the Barrett house and visitors that he has them on video. Because at least some of the lights are suspended from the eaves of Semin's garage and the Barrett property sits above the Semin property, these lights, when on, shine into the windows of the Barrett bedrooms and at night disturb the sleep of the occupants. As a consequence of all the foregoing, Barrett feels intimidated and as if she is under surveillance; she has lost 50 pounds due to the stress and tension caused her.
Although the record establishes the presence of an animus between these two neighbors, Semin claims that he maintains the lights and cameras for reasons of security.
Barrett seeks a variance so that she may erect an 80-inch-high wooden fence adjacent to and at the level of her retaining wall and between the two properties in order to shield her house from Semin's lights and cameras. The relevant zoning regulation limits the fence height to 42 inches; in addition, the regulation requires the fence to be set back 50 feet from the front lot line, and Barrett wishes to set her fence back only 24 feet.
The board urges that its power does not extend to the granting of a variance to resolve this type of dispute between neighbors and that Barrett's remedy, if any, lies elsewhere in the law.
The controlling statute is found at Neb. Rev. Stat. § 19-910 (Reissue 1991). It reads, in relevant part:
The board of adjustment shall . . . have only the following powers: . . . (3) where by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the enactment of the zoning regulations, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any enacted regulation . . . would result in peculiar and exceptional practical difficulties to or exceptional and undue hardships upon the owner of such property, to authorize, upon an appeal relating to the property, a variance from such strict application so as to relieve such difficulties or hardship, if such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any ordinance or resolution. No such variance shall be authorized by the board unless it finds that: (a) The strict application of the zoning regulation would produce undue hardship; (b) such hardship is not shared generally by other properties in the same zoning district and the same vicinity; (c) the authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance; and (d) the granting of such variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice. No variance shall be authorized unless the board finds that the condition or situation of the property concerned or the intended use of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the zoning regulations. . . .
The most recent application of the foregoing statute is found in Bowman v. City of York, 240 Neb. 201, 482 N.W.2d 537 (1992), wherein we held that since the evidence failed to establish that a strict application of the setback requirement there at issue would have produced undue hardship for the owner of the property, the district court correctly reversed the grant of a variance. In doing so, we noted that 19-910 empowers a board of adjustment to grant a variance from a zoning regulation only if strict application of the regulation, because of the unusual physical characteristics of the property existing at the time of the enactment of the regulation, "`would result in peculiar and exceptional practical difficulties to or exceptional and undue hardships upon the owner . . . .'" Id. at 213, 482 N.W.2d at 545. See, also, Frank v. Russell, 160 Neb. 354, 70 N.W.2d 306 (1955).
Bowman reaffirmed that in an appeal from a board of adjustment to the district court, the district court may disturb the board's decision only if the decision was illegal or not supported by the evidence, and was thus arbitrary, unreasonable, or clearly wrong. Bowman also determined that on appeal from a district court's review of a decision of a board of adjustment, the appellate court is to decide if the district court abused its discretion or made an error of law; where competent evidence supports the district court's factual findings, the appellate court will not substitute its factual findings for those of the district court.
The evidence here establishes that strict application of the subject zoning regulation would indeed, because of the higher elevation of the Barrett property, result in undue hardship to Barrett and that the hardship is not of the type generally shared by other properties in the same zoning district and vicinity.
The nature of the variance is such that the district court neither made an error of law nor abused its discretion in implicitly finding that the variance would not create a substantial detriment to the adjacent property, that the character of the district would not be changed, and that the variance would not produce a substantial detriment to the public good or substantially impair the intent and purpose of the zoning regulation.
Although there is no direct evidence that Barrett's property sat at least 6 feet higher than the Semin property when the zoning regulation was adopted, the difference in elevation of the two properties is so great that we cannot say the district court made an error of law or abused its discretion in impliedly finding that Barrett's property was in that regard substantially in its present condition at the time the regulation was adopted.
Accordingly, we affirm the judgment of the district court.
AFFIRMED.