Nebraska Revised Statute 23-168.03

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Chapter 23

23-168.03.

Board of adjustment; powers; variance; when permitted; power to reverse or modify action.

(1) The board of adjustment shall, subject to such appropriate conditions and safeguards as may be established by the county board, have only the following powers:

(a) To hear and decide appeals when it is alleged by the appellant that there is an error in any order, requirement, decision, or refusal made by an administrative official or agency based on or made in the enforcement of any zoning regulation or any regulation relating to the location or soundness of structures. The board of adjustment shall have no authority to hear and decide appeals regarding conditional use permits or special exceptions which may be granted pursuant to section 23-114.01;

(b) To hear and decide, in accordance with the provisions of any regulation, requests for interpretation of any map; and

(c) When by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the adoption 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 under sections 23-114 to 23-114.05, 23-168.01 to 23-168.04, 23-172 to 23-174, 23-174.02, 23-373, and 23-376 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 zoning regulations, but no such variance shall be authorized unless the board of adjustment finds that: (i) The strict application of the resolution would produce undue hardship; (ii) such hardship is not shared generally by other properties in the same zoning district and the same vicinity; (iii) 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 (iv) the granting of such variance is based upon reasons of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice.

(2) 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.

(3) In exercising the powers granted in this section, the board may, in conformity with the provisions of sections 23-114 to 23-114.05, 23-168.01 to 23-168.04, 23-172 to 23-174, 23-174.02, 23-373, and 23-376, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as shall be proper, and to that end shall have the power of the officer or agency from whom the appeal is taken. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such regulation or to effect any variation in such regulation.

Source

Cross References

  • For authorization to act as a zoning board of adjustment for a municipality, see section 19-912.01.

Annotations

  • 1. Variances

  • 2. Miscellaneous

  • 1. Variances

  • A county board of adjustment is authorized to grant a variance from a zoning regulation only if strict application of the regulation, because of the exceptional narrowness, shallowness, or shape of the property existing at the time of the enactment of the regulation, would result in peculiar and exceptional practical difficulties or exceptional and undue hardships. Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment, 308 Neb. 63, 952 N.W.2d 674 (2020).

  • A county board of adjustment is not authorized to grant a variance from a zoning regulation unless the board supports any grant of a variance with evidence-based findings with respect to each of the statutory factors. Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment, 308 Neb. 63, 952 N.W.2d 674 (2020).

  • A variance from a zoning regulation is authorized only if such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning regulations. Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment, 308 Neb. 63, 952 N.W.2d 674 (2020).

  • As a general rule, hardship that is personal to the property owner will not support the grant of a variance. The applicant for a variance must show that the property is in and of itself unusual in a manner which is different from the nature of surrounding properties and relates to the hardship complained of and that granting a variance to take this into account would not substantially affect the zoning plan. Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment, 308 Neb. 63, 952 N.W.2d 674 (2020).

  • Landowners established that strict application of zoning regulations, permitting use of an animal pen provided that the pen was located at least 100 feet from their property line and 300 feet from any neighboring residence, would result in undue hardship to the landowners, who sought a variance from zoning regulations for an animal pen, which was located approximately 30 feet from their property line shared with a neighbor and 200 feet from the neighbor's residence; due to the narrowness and shape of the landowners' property, strict application of the zoning regulations' setback requirements would cause the landowners undue and exceptional hardships, the landowners' property contained no viable alternative site for the pen, and the only alternative that did not require a variance would create drainage issues for a different neighbor, and the landowners' request for a variance was not solely based on personal or financial considerations. Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment, 308 Neb. 63, 952 N.W.2d 674 (2020).

  • Neither the desire to build a larger building nor the desire to generate increased profits constitutes a sufficient hardship to justify a variance. Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment, 308 Neb. 63, 952 N.W.2d 674 (2020).

  • Pursuant to subsection (2) of this section, a variance is not authorized unless the county board of adjustment 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. Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment, 308 Neb. 63, 952 N.W.2d 674 (2020).

  • The term "undue hardship" does not require the applicant for a zoning variance to prove that, without the variance, the property would lose all utility. Sufficient proof of hardship, as required for a variance from zoning regulations, is established if strict enforcement of regulations, due to the property's unique characteristics, inhibits the extent to which the property can be used. Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment, 308 Neb. 63, 952 N.W.2d 674 (2020).

  • "Undue burden," for purposes of a zoning variance, is a demonstrable and exceptional hardship, as distinguished from variations for purposes of convenience, profit, or caprice. Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment, 308 Neb. 63, 952 N.W.2d 674 (2020).

  • 2. Miscellaneous

  • The specific statutory procedure for appealing local administrative decisions to a board of adjustment foreclosed a landowner's ability to appeal by a petition in error the county board of supervisors' denial of a conditional use permit. Mogensen v. Board of Supervisors, 268 Neb. 26, 679 N.W.2d 413 (2004).

  • A board of supervisors is an administrative agency within the meaning of this section. Niewohner v. Antelope Cty. Bd. of Adjustment, 12 Neb. App. 132, 668 N.W.2d 258 (2003).

  • Board's only statutory power being to grant zoning variances resolution purporting to grant exemption construed to grant variance and action presumed correct until changed by court, and requirement of immediate compliance proper. Adler v. Lynch, 415 F.Supp. 705 (D. Neb. 1976).