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Nebraska Supreme Court: Self-Imposed Hardship Not an Absolute Bar to Zoning Variance

on Friday, 15 January 2021 in Dirt Alert: David C. Levy, Editor

Dolezal-Soukup v. Dodge County Board of Adjustment, 308 Neb. 63 (2021)

Joseph and Teri Kreifels (collectively, the “Kreifels”) erected a private pigpen to enable their children to participate in a 4-H program.  The pen held up to six pigs.  The Kreifels’ neighbor, Carla Dolezal-Soukup (“Appellant”), complained to the Dodge County Planning and Zoning Department seeking relocation or removal of the pen.  The complaint cited zoning violations and nuisance.  The Dodge County Zoning Administrator examined the pen and found that it violated the applicable zoning ordinance (the “Ordinance”) due to its proximity to Appellant’s property line and residence.  

Upon notice of the violation, the Kreifels applied for a variance from the Dodge County Board of Adjustment (the “Board”).  A variance is a permitted exception to a zoning ordinance, which is typically associated with an unusual or unanticipated pre-existing condition that causes the regular application of the applicable ordinance to unduly burden a specific property owner.  The Board approved the variance.

Appellant challenged the Board’s approval of the variance in District Court.  The District Court of Dodge County affirmed the Board’s approval.  

Appellant appealed to the Nebraska Supreme Court.  The Supreme Court affirmed the District Court, and reaffirmed the Board’s approval.  The primary issues on appeal were whether the Kreifels would experience undue hardship upon strict application of the Ordinance and whether such hardship was self-created.  

Nebraska law requires a county board to make four findings to grant a variance from a zoning regulation:  (i) strict application of the regulation would produce undue hardship; (ii) the hardship is not shared generally by other properties in the same zoning district and vicinity; (iii) the variance will not be a substantial detriment to the adjacent property or a change to the character of the zoning district; and (iv) the reasons for the variance are not convenience, profit, or caprice.  Section 23-168.03(1)(c).  The Board may not consider a self-created hardship in its determination.  See Frank v. Russell, 160 Neb. 354 (1955) and Bowman v. City of York, 240 Neb. 201 (1992).  

The Court held that the Board had given due process and consideration to each of the factors in section 23-168.03(1)(c).  In doing so, it carefully analyzed two alternate sites for the pen.

The first would require a separate variance and was adjacent to two preexisting steel sheds that would restrict airflow and endanger the animals, thereby defeating the purpose of the permitted use.  The second would create significant expense to the Kreifels, drainage onto a neighboring property, and interference with farming operations.

In its affirmation, the Court noted that, while the Kreifels’ did have both self-created and financial hardships, said hardships were not the only basis for their application and were not a per se bar to the variance.  The Court was free to consider all other potential hardships.  Accordingly, the Court found that the narrowness of the Kreifels’ property, combined with the preexisting structures, justified the variance.

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