Board of appeals; decision; review by district court; priority; evidence; judgment; costs.
If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Costs shall not be allowed against the board, unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from. All issues in any proceeding under sections 14-408 to 14-414 shall have preference over all other civil actions and proceedings.
Source:Laws 1925, c. 45, § 8, p. 184; C.S.1929, § 14-411; R.S.1943, § 14-414.
Pursuant to this section, the district court is given only the power to reverse, modify, or affirm the decision of the zoning board of appeals brought up for review. Kuhlmann v. City of Omaha, 251 Neb. 176, 556 N.W.2d 15 (1996).
Acts of board of appeals are judicial in nature and subject to court review. Peterson v. Vasak, 162 Neb. 498, 76 N.W.2d 420 (1956).
On review of action of zoning board of appeals, district court is empowered to reverse or affirm, wholly or partly, or may modify the decision brought up for review. Roncka v. Fogarty, 152 Neb. 467, 41 N.W.2d 745 (1950).
When a district court hears a zoning board decision on appeal, the district court cannot grant a motion of summary judgment. Eastroads, L.L.C. v. Omaha Zoning Bd. of Appeals, 7 Neb. App. 951, 587 N.W.2d 413 (1998).
A district court reviewing a decision of a zoning board of appeals under this section, without taking additional evidence or appointing a referee to do so, functions as an intermediate court of appeals. The filing of a motion for new trial in a court which functions as an intermediate court of appeals does not stop the running of the time within which to perfect an appeal. Morello v. City of Omaha, 5 Neb. App. 785, 565 N.W.2d 41 (1997).