The Nebraska Supreme Court recently ruled on claims for a variance from the requirements of Omaha’s zoning code based alleging unnecessary hardship. The case is a helpful reminder of the importance of seeking legal advice before making substantial investments or changes relating to land use.

Facts of the Case

The Brunings own a 4.66-acre parcel of land located near 163d and Fort Streets in Omaha. The land is and had been zoned for agricultural use. The Brunings operated a seeding and landscaping business on the land from 1979 until they sold the business in 2004. The seeding business employed 25 to 30 regular workers and performed mowing, seeding, landscaping, and similar services. Each time they erected a new building they claim they sought permits from the City but were told they did not need permits because the buildings were used for storing supplies for the seeding businesses, a permitted agricultural use.

After the sale of the seeding business, the Brunings continued to lease their land and outbuildings to local businesses including a landscaping and boiler repair business and a automobile storage business. The rented buildings were utilized for storage purposes. The Brunings keep the land neat and orderly.

In 2015, the zoning board received a complaint that the land was not being used for activities permitted by the agricultural district ordinances. After the complaint the Brunings were required to halt their long-standing, commercial use of the land.

Thereafter, the Brunings applied for a zoning variance, requesting a waiver which would allow them to continue the commercial use of the land. The request was denied. The Brunings’ argued that the land was used essentially in the same manner as it had been when they were operating the seeding and landscaping business from 1979 till 2004. The only change in the use of the land was that the buildings were now leased to others. They had invested significant money to support the business without any objections from the city and they had suffered a hardship.

The Douglas County district court affirmed the Board’s denial.

Reasoning

The Nebraska Supreme Court affirmed the district court upholding the Omaha Zoning Board of Appeals’ denial of the request for a variance. 303 Neb. 156 (2019). The Board’s denial noted that the Brunings had altered the use of the Property by leasing the buildings to others, a commercial activity. While the Brunings had invested in the improvements and were losing income, being unable to use their land commercially did not pose a substantial hardship. The land could still be used for agriculture.

Takeaways

A self-created hardship can arise when a property owner establishes a structure or use not permitted under the zoning ordinance and then seeks a variance after the fact. A self-created hardship is almost always a bar to relief. The Court is unlikely to give relief when the harm was self-inflicted and will defer to the judgment of the zoning board.

Erickson | Sederstrom’s attorneys have significant experience working with entities of all sizes to limit exposure to, or conflict with, government regulations. If you have any questions about whether your existing, or planned, use of land complies with local zoning ordinances, Erickson | Sederstrom attorneys would be happy to help.