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Rousseau v. Zoning Bd. of Appeals of Omaha, 17 Neb.App. 469, 764 N.W.2d 130

Facts

Elena Kerwin purchased a vacant lot in Omaha's Dundee area, intending to build a four-story, four-unit condominium. After multiple redesigns to comply with zoning regulations, she sought variances for the front yard setback, side yard setback, and parking requirements. The Omaha Zoning Board of Appeals granted her request, leading Rousseau, a neighboring landowner, to file a complaint seeking to reverse the Board's decision. The district court upheld the Board's decision, finding that the density of the neighborhood constituted a hardship justifying the variances.

In 2005, Kerwin purchased a lot located in a portion of Omaha, Nebraska, known as Dundee. Dundee is a residential area originally developed at the end of the 19th century. At the time Kerwin purchased the lot, it was vacant. A fire had destroyed the structure previously standing on the property.

Issue

Did the district court err in upholding the Omaha Zoning Board of Appeals' decision to grant variances to Kerwin?

Rousseau's sole assignment of error is that the district court erred in determining that any evidence existed to support the Board's finding that there were practical difficulties or unnecessary hardships justifying a waiver of Omaha's existing zoning ordinances.

Rule

A district court may disturb a zoning appeals board's decision only if it was illegal or not supported by evidence, and the standard of review is whether the district court abused its discretion or made an error of law.

On appeal, a district court may disturb the decision of a zoning appeals board only when the decision was illegal or is not supported by the evidence and is thus arbitrary, unreasonable, or clearly wrong.

Analysis

The court applied the zoning regulations and determined that the front yard setback variance was either unnecessary or a minor deviation. It found that the density of the existing development in Dundee justified the side yard and parking variances. The court noted that Kerwin's proposed building complied with the average setbacks of adjacent buildings, and the Board's decision was supported by competent evidence.

The district court found that the zoning regulations permitted Kerwin's proposed front yard setback without a variance. The court also found that the density of the neighborhood was a hardship that justified the side yard setback and parking space variances.

Conclusion

The Court of Appeals affirmed the district court's decision, concluding that the Board's granting of the variances was not arbitrary, unreasonable, or clearly wrong.

The ultimate question is whether the particular form of hardship found here—where the density of an already existing, land-poor development conflicts with a strict application of area requirements—is sufficient to justify a variance.

Who won?

Elena Kerwin prevailed in the case because the court found that the Board's decision to grant the variances was supported by sufficient evidence and justified by the density of the neighborhood.

The district court upheld the Board's decision. The court found that the zoning regulations permitted Kerwin's proposed front yard setback without a variance. The court also found that the density of the neighborhood was a hardship that justified the side yard setback and parking space variances.

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