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Property Owner Forfeited a Legal Nonconforming Use By Discontinuing It for One Year

on Friday, 22 August 2014 in Dirt Alert: David C. Levy, Editor

On March 28, 2014, in Rodehorst Brothers v. City of Norfolk Board of Adjustment, the Nebraska Supreme Court held that discontinuing a nonconforming use for twelve months may forfeit the right to continue that use. The opinion provides valuable guidance for owners of property with a lawful nonconforming use.

Rodehorst Brothers (“Rodehorst”) owned a fourplex apartment building in Norfolk, Nebraska. Nebraska Revised Statutes section 19-904.01 and the City of Norfolk’s zoning code provide that the use of a building, existing and lawful at the time of the adoption of a zoning regulation, or at the time of an amendment of a regulation, may be continued, even though the use does not conform with the provisions of the new regulation. Although Rodehorst’s fourplex was located in an area zoned for one and two-family use, its use as a fourplex was a legal nonconforming use. Section 19-904.01 and Norfolk’s zoning code also provide, however, that the right to continue a nonconforming use is lost if the use “is in fact discontinued for a period of 12 months.” Rodehorst applied for building permits to fix and remodel the building. The building inspector granted the permits for repairs but denied the permit to remodel. Based on power and water usage records, the inspector concluded Rodehorst had not used the building as a fourplex for more than one year. Rodehorst appealed to the City of Norfolk Board of Adjustment (the “Board”) and asked the Board to grant a use variance. The Board denied Rodehorst’s appeal.

Rodehorst appealed the Board’s decision to the District Court for Madison County. The district court affirmed the Board’s decision, and Rodehorst appealed to the Nebraska Supreme Court. The Nebraska Supreme Court affirmed. The court distinguished between “discontinued” and “abandoned” and held that the zoning laws in question did not require an intent to abandon the nonconforming use. The lack of occupancy of the building as a fourplex was the critical factor. Moreover, Rodehorst had not tried to find new tenants.

The court also held that the Board could not grant Rodehorst a variance. Nebraska Revised Statutes section 19-910 allowed the Board to do so only if strict application of the regulation, because of the unusual physical characteristics of the real estate, would result in exceptional practical difficulties or undue hardship. Rodehorst requested a variance based on the building, not the land, and therefore, the court held the Board lacked the authority to grant Rodehorst the variance.

Click here for a copy of the Nebraska Supreme Court’s opinion.

Pedro A. Salazar 

Anthony D. Todero

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