Rodehorst Bros. v. City of Norfolk Bd. of Adjustment ( 2014 )

Nebraska Advance Sheets
RODEHORST BROS. v. CITY OF NORFOLK BD. OF ADJUSTMENT 779
Cite as 287 Neb. 779
hereby order him disbarred from the practice of law in the
State of Nebraska, effective immediately. Respondent shall
forthwith comply with all terms of Neb. Ct. R. § 3-316 of
the disciplinary rules, and upon failure to do so, he shall be
subject to punishment for contempt of this court. Accordingly,
respond­ nt is directed to pay costs and expenses in accordance
e
with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and
Neb. Ct. R. §§ 3-310(P) (rev. 2014) and 3-323 of the disci-
plinary rules within 60 days after orders imposing costs and
expenses, if any, are entered by the court.
Judgment of disbarment.
Rodehorst Brothers, appellant, v. City of Norfolk
Board of Adjustment, appellee.
___ N.W.2d ___
Filed March 28, 2014. No. S-13-253.
1. Zoning: Courts: Appeal and Error. In appeals involving a decision of a board
of adjustment, an appellate court reviews the decision of the district court, and
irrespective of whether the district court took additional evidence, the appellate
court is to decide if, in reviewing a decision of a board of adjustment, the district
court abused its discretion or made an error of law. Where competent evidence
supports the district court’s factual findings, the appellate court will not substitute
its factual findings for those of the district court.
2. Abandonment: Intent: Words and Phrases. Generally, the right to continue a
nonconforming use may be lost through abandonment. Abandonment requires
not only a cessation of the nonconforming use, but also an intent by the user to
abandon the nonconforming use.
3. Ordinances: Zoning. Zoning laws should be given a fair and reasonable con-
struction in light of the manifest intention of the legislative body, the objects
sought to be attained, the natural import of the words used in common and
accepted usage, the setting in which they are employed, and the general structure
of the law as a whole.
4. ____: ____. Where the provisions of a zoning ordinance are expressed in com-
mon words of everyday use, without enlargement, restriction, or definition,
they are to be interpreted and enforced according to their generally accepted
meaning.
5. ____: ____. Nonconforming uses are disfavored because they reduce the effec-
tiveness of zoning ordinances, depress property values, and contribute to the
growth of urban blight.
6. Zoning: Ordinances: Intent: Time. Where a zoning law provides for the ter-
mination of a legal, nonconforming use after it has been “discontinued” for a
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reasonable period, there is no requirement to show intent to abandon the noncon-
forming use.
7. Zoning: Ordinances. Whether a building is usable as a nonconforming use does
not mean that it is actually used in that manner.
8. Zoning: Ordinances: Words and Phrases. A “use” variance is one which
permits a use other than that prescribed by the particular zoning regulation. An
“area” variance, on the other hand, has no relationship to a change of use. It is
primarily a grant to erect, alter, or use a structure for a permitted use in a manner
other than that prescribed by the restrictions of the zoning ordinance.
9. Zoning: Ordinances. Neb. Rev. Stat. § 19-910 (Reissue 2012) allows a board of
adjustment to grant a variance from a zoning regulation only if strict application
of the regulation, because of the unusual physical characteristics of the property
existing at the time of the enactment, would result in exceptional practical dif-
ficulties or undue hardships to the owner.
10. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the party’s brief.
11. Zoning: Property. While property may be regulated to a certain extent, if regula-
tion goes too far, it will be recognized as a taking.
12. ____: ____. Under Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98
S. Ct. 2646, 57 L. Ed. 2d 631 (1978), relief is possible from a regulatory taking
which does not deprive the owner of all economic use of the property.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
Glenn A. Rodehorst for appellant.
Clint Schukei, Norfolk City Attorney, for appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Connolly, J.
I. SUMMARY
Rodehorst Brothers, a partnership (Rodehorst), owns a four-
plex apartment building in Norfolk, Nebraska. The parties
agree that the building’s use as a fourplex (to house up to four
families), in an area zoned R-2 for one- and two-family use,
was a legal, nonconforming use. Neb. Rev. Stat. § 19-904.01
(Reissue 2012), as well as the applicable zoning ordinance,
both provide that the right to continue such a use is lost if it
has been discontinued for 1 year. Because the record shows
that Rodehorst discontinued the use for 1 year, we conclude
that it forfeited its right to continue the use. We also conclude
Nebraska Advance Sheets
RODEHORST BROS. v. CITY OF NORFOLK BD. OF ADJUSTMENT 781
Cite as 287 Neb. 779
that the City of Norfolk Board of Adjustment (the Board)
lacked authority under Neb. Rev. Stat. § 19-910 (Reissue 2012)
to grant a “use” variance to otherwise allow the use to con-
tinue and that there was no “taking” of Rodehorst’s property.
We affirm.
II. BACKGROUND
Rodehorst applied for several building permits for its apart-
ment building in 2010 and 2011. It applied for permits to
replace the roof, fix some electrical issues, and remodel the
apartments in the building. The building inspector, Steve
Nordhues, granted the first two permits, but denied the third.
Nordhues denied the third permit because he concluded that
Rodehorst had forfeited its right to continue its nonconforming
use of a fourplex in an R-2 district.
1. Appeal to the Board
Rodehorst appealed the denial of the permit to the Board.
Rodehorst also asked the Board to grant it a use variance to
allow it to continue operating the building as a fourplex. At
a hearing on September 12, 2012, Rodehorst argued that it
did not forfeit its right to continue using the building as a
fourplex just because several of its apartments had been unoc-
cupied. And Rodehorst argued that it deserved a variance to
continue using the building as a fourplex because, otherwise,
it would suffer an undue hardship. The City of Norfolk (the
City) argued that Rodehorst had forfeited its right to continue
its nonconforming use because it had been discontinued for
1 year and that the Board did not have authority to grant a
use variance.
Several people, including Nordhues and a partner of
Rodehorst, spoke at the hearing. The Rodehorst partner essen-
tially argued that the property had always been a fourplex, that
there were clearly four apartment units, and that its use had
not changed simply because some of the apartments had been
unoccupied for several years. He also explained that he had
been trying to “fix it up” and that there had been work done on
the building “off and on.”
Nordhues spoke about his reasons for granting and denying
Rodehorst’s applications for building permits. He explained
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that he granted the first two permits because those repairs
helped “[e]nsure the health, safety and welfare of the occu-
pants at that time.” Nordhues denied the third permit, how-
ever, to remodel the four apartments “[b]ecause it was R-2
zoning and [Rodehorst] wanted it multiple use there, multi-
family use.”
Explaining further, Nordhues said that in his opinion,
Rodehorst had forfeited its right to continue its nonconform-
ing use as a fourplex in an R-2 district. In coming to this
conclusion, Nordhues relied on § 27-50 of the City’s code
which provides: “In the event that a nonconforming use is
discontinued, or its normal operation stopped, for a period
of one year, the use of the same shall thereafter conform
to the uses permitted in the district in which it is located.”1
Nordhues explained that based on power and water usage
records, “at least two of the apartments hadn’t been occupied,
one since August 8th of 2007 and the other since April 16th of
2008.” A third apartment had not been occupied since March
29, 2010. Thus, Rodehorst had discontinued its nonconform-
ing use by not having more than two apartments occupied for
more than 1 year and Rodehorst now was required to com-
ply with the R-2 zoning designation. The Board agreed. The
Board also concluded that it did not have authority to grant a
use variance.
2. Appeal to the District Court
Rodehorst then appealed to the district court. Rodehorst
reiterated many of the same arguments that it had made to the
Board. It argued that it had not forfeited its right to continue
the nonconforming use simply by failing to rent out the apart-
ments. It emphasized that the building remained a fourplex
and that its use as such continued whether the apartments
were occupied or not. It further argued that even if it had for-
feited its right to continue the nonconforming use, the Board
erred in concluding it did not have the authority to grant a use
variance. And Rodehorst made several arguments as to why
the Board’s ruling violated its constitutional rights. Primarily,
1
Norfolk Mun. Code, ch. 27, art. V, § 27-50 (2002).
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RODEHORST BROS. v. CITY OF NORFOLK BD. OF ADJUSTMENT 783
Cite as 287 Neb. 779
Rodehorst argued that the Board’s ruling was an unconstitu-
tional taking.
The district court affirmed the Board’s decision in all
respects. The court determined that the Board did not have
authority to grant a use variance. The court noted that the
City’s code defined “‘variance’” as “‘relief from or variation
of the provisions of this chapter, other than use regulations,
as applied to a specific piece of property, as distinct from
rezoning.’” The court explained that the Board could grant
variances based only on “certain physical characteristics of the
actual ground or land in question,” rather than the structures
placed on the land.
The court also determined that Nordhues’ denial of the
building permit to remodel the apartments was proper. The
court recounted the evidence admitted at the Board hearing;
specifically, that Rodehorst had not had more than two apart-
ments occupied in several years, that power and water usage
records supported that conclusion, and that Rodehorst had not
presented any evidence that “any effort had been made to rent
the apartments [or] that the apartments were in a condition to
be rented.” The court concluded that Rodehorst had “failed to
present any evidence that the property had been used as a four-
plex within the past twelve months” and that Rodehorst had
forfeited its right to continue the nonconforming use.
III. ASSIGNMENTS OF ERROR
Rodehorst assigns, restated, consolidated, and reordered,
that the district court erred in (1) finding that Rodehorst had
forfeited its right to continue the nonconforming use by not
having more than two apartments occupied for several years,
(2) finding that the Board did not have authority to grant a use
variance, and (3) failing to find that the Board’s ruling was an
unconstitutional taking of Rodehorst’s property.
IV. STANDARD OF REVIEW
[1] In appeals involving a decision of a board of adjustment,
an appellate court reviews the decision of the district court,
and irrespective of whether the district court took additional
evidence, the appellate court is to decide if, in reviewing a
decision of a board of adjustment, the district court abused its
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discretion or made an error of law.2 Where competent evidence
supports the district court’s factual findings, the appellate
court will not substitute its factual findings for those of the
district court.3
V. ANALYSIS
1. Rodehorst Forfeited Its Right to
Continue Its Nonconforming Use
Rodehorst first argues that both the district court and the
Board erred in determining that Rodehorst had forfeited its
right to continue its nonconforming use. Rodehorst argues
that although some of the apartments in the building were
unoccupied for several years, the building’s use as a fourplex
never changed, primarily because it had all the trappings of a
fourplex and the units were available for use. We conclude,
however, that because only one or two of the apartments had
been occupied for several years, Rodehorst “discontinued” its
nonconforming use for 1 year and therefore forfeited its right
to continue that use.
(a) “Discontinued” Versus “Abandoned”
We first begin with the language of the relevant statute and
zoning regulation. Because the City is a city of the first class,4
§ 19-904.01 controls the regulation of nonconforming uses.
It provides, in pertinent part: “If [a] nonconforming use is in
fact discontinued for a period of twelve months, such right to
the nonconforming use shall be forfeited and any future use
of the building and premises shall conform to the regulation.”
Section 27-50 of the City’s code, also at issue here, similarly
provides: “In the event that a nonconforming use is discon-
tinued, or its normal operation stopped, for a period of one
year, the use of the same shall thereafter conform to the uses
permitted in the district in which it is located.”5 As such, under
2
See, Hanchera v. Board of Adjustment, 269 Neb. 623, 694 N.W.2d 641
(2005); Bowman v. City of York, 240 Neb. 201, 482 N.W.2d 537 (1992).
3
See id.
4
See, Neb. Rev. Stat. § 16-101 (Reissue 2012); 2013 Nebraska Directory of
Municipal Officials (2013).
5
Norfolk Mun. Code, supra note 1.
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Cite as 287 Neb. 779
these provisions, if a nonconforming use is “discontinued” for
1 year, then the user’s right to continue the nonconforming use
is lost.
[2] The use of the term “discontinued,” as opposed to “aban-
doned,” is important. Generally, the right to continue a noncon-
forming use may be lost through abandonment.6 Abandonment
requires not only a cessation of the nonconforming use, but
also an intent by the user to abandon the nonconforming use.7
But as various commentators have recognized, where a leg-
islature or other zoning authority has used the word “discon-
tinued,” (or other similar term, such as “ceased”), instead of
“abandoned,” their purpose “is to do away with the need to
prove intent to abandon.”8
Yet despite this clear purpose, some courts have simply
interpreted “discontinued” to be synonymous with “aban-
doned,” and still require a showing that the user intended to
abandon the nonconforming use.9 Some courts, however, have
concluded that the terms are distinct and that where a zoning
regulation uses a term like “discontinued,” the zoning authority
need not show that a user intended to abandon the nonconform-
ing for the right to continue that use to be lost.10
6
See, e.g., 8A Eugene McQuillin, The Law of Municipal Corporations
§§ 25-200 and 25-201 (3d ed. 2012); 12 Richard R. Powell & Michael
Allan Wolf, Powell on Real Property § 79C.06[3][f] (2008); 1 Kenneth H.
Young, Anderson’s American Law of Zoning § 6.65 (4th ed. 1996 & Cum.
Supp. 2002); 83 Am. Jur. 2d Zoning and Planning § 611 (2013).
7
See, 8A McQuillin, supra note 6, § 25-201; 12 Powell & Wolf, supra note
6, § 79C.06[3][f][ii]; 1 Young, supra note 6; 83 Am. Jur. 2d, supra note 6,
§ 612.
8
8A McQuillin, supra note 6, § 25:203 at 141. See, also, 12 Powell & Wolf,
supra note 6, § 79C.06[3][f][iii]; 1 Young, supra note 6, § 6.68.
9
See, e.g., Dubitzky v. Liquor Control Commission, 160 Conn. 120, 273
A.2d 876 (1970); Board of Zoning Adjustment v. Boykin, 265 Ala. 504,
92 So. 2d 906 (1957). See, also, 8A McQuillin, supra note 6, § 25:203;
12 Powell & Wolf, supra note 6, 79C.06[3][f][iii]; 1 Young, supra note 6,
§ 6.68; 83 Am. Jur. 2d, supra note 6, § 617.
10
See, e.g., City of Glendale v. Aldabbagh, 189 Ariz. 140, 939 P.2d 418
(1997); Hartley v. City of Colorado Springs, 764 P.2d 1216 (1988). See,
also, 8A McQuillin, supra note 6, § 25:203; 12 Powell & Wolf, supra note
6, 79C.06[3][f][iii]; 1 Young, supra note 6, § 6.68.
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For several reasons, we believe the latter approach to be the
correct one. Those reasons stem mostly from our decision in
City of Lincoln v. Bruce.11 In that case, Billy and Betty Bruce
sought to continue having a mobile home on their property
even though it conflicted with the applicable zoning regula-
tions. The Bruces challenged the constitutionality of the per-
tinent statute and zoning regulation. And they argued that,
even if the statute and regulation were constitutional, they
had a right to continue having a mobile home on the property
because there was a mobile home on the property when they
bought it; in other words, they had a legal, nonconforming use
and a right to continue it.
[3,4] We first dismissed the constitutional challenge to the
relevant statute because the Bruces did not notify the Attorney
General as required by our procedural rules. We then addressed
the Bruces’ argument that the applicable zoning regulation was
unconstitutionally vague. We stated that
zoning laws should be given a fair and reasonable con-
struction in light of the manifest intention of the legisla-
tive body, the objects sought to be attained, the natural
import of the words used in common and accepted usage,
the setting in which they are employed, and the general
structure of the law as a whole.12
And we stated that “[w]here the provisions of a zoning ordi-
nance are expressed in common words of everyday use, without
enlargement, restriction, or definition, they are to be interpreted
and enforced according to their generally accepted meaning.”13
Applying these principles to the Bruces’ vagueness challenge,
we found the zoning regulation to be sufficiently clear.
As for the Bruces’ argument that they had a right to continue
having a mobile home on their property because they had a
legal, nonconforming use, we disagreed. We explained that
while the Lincoln Municipal Code allowed legal, nonconform-
ing uses to continue, it also “provided that the discontinuance
11
City of Lincoln v. Bruce, 221 Neb. 61, 375 N.W.2d 118 (1985).
12
Id. at 65, 375 N.W.2d at 121.
13
Id. See, also, Thieman v. Cedar Valley Feeding Co., 18 Neb. Ct. App. 302, 789
N.W.2d 714 (2010).
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RODEHORST BROS. v. CITY OF NORFOLK BD. OF ADJUSTMENT 787
Cite as 287 Neb. 779
of a nonconforming use for a period of 2 years forfeited the
right to reestablish such a nonconforming use thereafter.”14 We
reasoned that the Bruces had forfeited their nonconforming use
because “there was no mobile home on the Bruces’ property
for a period of 3 years and 8 months, from May 1969 through
January 1973.”15
Several things from Bruce stand out. First, Bruce stands for
the proposition that we give effect to the intent of the zoning
authority, as expressed through the language of the zoning law,
by giving the language its plain and ordinary meaning. As men-
tioned, it is well recognized that where a zoning authority uses
the word “discontinued” instead of “abandoned,” its purpose
“is to do away with the need to prove intent to abandon.”16
That squares with the plain and ordinary meaning of the term
“discontinue.” Webster’s dictionary defines “discontinue” as,
for example, to “end the operations or existence of” and to
“cease to use.”17 In other words, to discontinue is to stop. To
stop something does not require an intent to abandon.
And second, Bruce is notable for how it applied the dis-
continuance provision at issue. The provision, similar to the
one here, stated that “‘discontinuance of a nonconforming use
for a period of 2 years forfeited the right to establish such a
nonconforming use thereafter.’”18 We reasoned that the Bruces
had forfeited their nonconforming use because “there was no
mobile home on the Bruces’ property for a period of 3 years
and 8 months.”19 Significantly, we reached that conclusion
without regard to whether the Bruces intended to abandon their
right to continue the nonconforming use; the passage of the
required 2 years was enough.
14
Bruce, supra note 11, 221 Neb. at 66, 375 N.W.2d at 122.
15
Id. at 65-66, 375 N.W.2d at 122.
16
8A McQuillin, supra note 6, § 25:203 at 141. See, also, Hartley, supra
note 10; 12 Powell & Wolf, supra note 6, § 79C.06[3][f][iii]; 1 Young,
supra note 6, § 6.68.
17
Webster’s Third New International Dictionary of the English Language,
Unabridged 646 (1993).
18
Bruce, supra note 11, 221 Neb. at 66, 375 N.W.2d at 122.
19
Id. at 65-66, 375 N.W.2d at 122.
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[5,6] We also note that “[n]onconforming uses are disfa-
vored because they reduce the effectiveness of zoning ordi-
nances, depress property values, and contribute to the growth
of urban blight.”20 Modern zoning laws generally attempt to
eliminate nonconforming uses as quickly as reasonably pos-
sible.21 This policy is best served by recognizing a distinction
between a nonconforming use that has been “discontinued” and
one that has been “abandoned.” We hold that where a zoning
law provides for the termination of a legal, nonconforming use
after it has been “discontinued” for a reasonable period, there
is no requirement to show intent to abandon the nonconform-
ing use.
(b) Rodehorst “Discontinued”
Its Nonconforming Use
The remaining question is whether the City met its burden to
show that Rodehorst had discontinued its nonconforming use
for 1 year.22 In concluding that it had, both the Board and the
district court relied heavily on evidence showing that no more
than one or two of the apartments had been occupied for sev-
eral years. Rodehorst argues that this was error and emphasizes
that the nature and characteristics of the building (namely, that
it has four separate units and accompanying features) demon-
strate that its nonconforming use remained in effect.
[7] As one facet of that argument, Rodehorst argues that
because the apartments were available for use, that fact, in
and of itself, is sufficient. We disagree. Whether a building
is usable as a nonconforming use does not mean that it is
actually used in that manner.23 To accept Rodehorst’s argu-
ment otherwise would mean that, short of razing the building
or the units themselves, its nonconforming use could never
be considered discontinued. But nonconforming uses were
20
Hartley, supra note 10, 764 P.2d at 1224.
21
See, e.g., 8A McQuillin, supra note 6, § 25-186; 12 Powell & Wolf, supra
note 6, § 79C.06[1][a]; 83 Am. Jur. 2d, supra note 6, § 555.
22
See 12 Powell & Wolf, supra note 6, § 79C.06[3][f][ii].
23
See Cizek v. Concerned Citizens of Eagle River, 49 P.3d 228 (Alaska
2002).
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never meant to exist into perpetuity.24 We reject this portion of
Rodehorst’s argument.
As to the relative importance of occupancy and the charac-
teristics of the building, our research has revealed few cases
which address similar factual scenarios, i.e., where an owner is
operating a multifamily dwelling as a nonconforming use (with
features typical of such a dwelling), but which is less than
fully occupied. Our research did reveal a short annotation in an
American Law Report relatively on point. It framed the issue
as “whether less than 100-percent occupancy of a multifamily
dwelling unit constitutes abandonment or discontinuance of
a multifamily nonconforming use.”25 Though the annotation
treats “abandonment” and “discontinuance” as synonymous, its
collection of cases is still helpful.
In Parish of Jefferson v. Boyd,26 the Louisiana Court of
Appeals held that the right to continue using a triplex in a
single-family zone was lost where the building had been used
as a single-family residence for 4 years. In so holding, the
court relied on witnesses’ testimony and utility records demon-
strating that only one person resided in the building during the
relevant period. The court apparently found it inconsequential
that the building had three separate units (though one parti-
tion wall had been knocked down), with three kitchens and
three bathrooms.27
Similarly, in Pailet v. City of New Orleans, Dept. of Saf.,28
the Louisiana Court of Appeals held that the occupancy of a
single apartment in a five-apartment building did not preserve
its nonconforming use in a single- and two-family zoning dis-
trict. In Pailet, the building owner, an elderly woman, moved
out of an apartment in the building to live with her son, but
24
See, e.g., Duffy v. Milder, 896 A.2d 27 (R.I. 2006). See, also, 8A
McQuillin, supra note 6, § 25-186; 12 Powell & Wolf, supra note 6,
§ 79C.06[1][a]; 83 Am. Jur. 2d, supra note 6, § 555.
25
Annot., 40 A.L.R. 4th 1012 (1985).
26
Parish of Jefferson v. Boyd, 192 So. 2d 873 (La. App. 1966).
27
See id.
28
Pailet v. City of New Orleans, Dept. of Saf., 433 So. 2d 1091 (La. App.
1983).
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left most of her belongings at the apartment, including furni-
ture and appliances. The evidence showed that the son stopped
by the apartment several times a week to check on the apart-
ment so as to discourage vandalism and that he stored some of
his things in the garage and used some of the appliances. The
court held that the building was “vacant” within the meaning
of the applicable ordinance. The court also held that even if it
were not considered vacant, the owner’s conforming use as a
single-family residence for longer than the ordinance’s limita-
tion period forfeited the right to continue the nonconforming
use. These two cases, Parish of Jefferson and Pailet, seem-
ingly focused on the degree of occupancy of the building in
determining whether the right to continue the nonconforming
use had been lost.
Those cases holding differently (that less than 100-percent
occupancy did not forfeit the right to continue a nonconform-
ing use), generally focused on the lack of evidence indicat-
ing an intent to abandon the nonconforming use.29 In Brown
v. Gerhardt,30 the Supreme Court of Illinois addressed the
use of a five-unit apartment building in a single-family zon-
ing area. The court first concluded that discontinuance was
equivalent to abandonment. The court then emphasized that
“[n]o physical changes were made . . . indicating an intention
to change use of the building as a multiple-housing unit” and
that “[t]he mere fact that only one family occupied [the build-
ing] is not conclusive of intention to abandon it for multiple-
dwelling purposes.”31
Similarly, in Town of East Greenwich v. Day,32 the Rhode
Island Supreme Court addressed the use of a two-family dwell-
ing in a single-family zoning area. There, too, the question
was whether the user had abandoned the nonconforming use.
The court stated that “5 years of nonuse of the dwelling for
two-family occupancy was merely evidence of an intent to
29
See, Brown v. Gerhardt, 5 Ill. 2d 106, 125 N.E.2d 53 (1955); Town of East
Greenwich v. Day, 119 R.I. 1, 375 A.2d 953 (1977).
30
Gerhardt, supra note 29.
31
Id. at 110, 125 N.E.2d at 56.
32
Town of East Greenwich, supra note 29.
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a
­ bandon,” but that “[b]ecause that nonuse was unaccompanied
by any overt act or failure to act indicating an intent to aban-
don, it was insufficient to extinguish the vested right to the
nonconforming use.”33 The court agreed with the trial judge
that a sewage assessment being reduced to accommodate a
single family was insufficient to infer an intent to abandon,
particularly where the building maintained “characteristics
commonly associated with multi-family dwellings [such] as a
four-car tandem driveway and separate gas and electric meters,
thermostats, and kitchen and bath facilities.”34
Based on the above cases, the degree of occupancy is the
critical factor in determining whether a multifamily dwell-
ing nonconforming use remains in effect, while the existing
characteristics of the dwelling (such as separate units and
features) generally go to whether the user intended to abandon
the nonconforming use. As noted earlier, intent to abandon is
not relevant here because the zoning laws speak in terms of
discontinuance, which requires only a stoppage of the noncon-
forming use. Thus, the degree of occupancy of the building is
the central inquiry.
Remember that our standard of review is deferential to the
district court: We review its decision for abuse of discretion
or an error of law, and we will not substitute our own factual
findings for those of the district court.35 Here, the court deter-
mined that utility records showed that two of the apartments
had been unoccupied since 2007 and 2008. The court therefore
concluded that the building had not been used as a fourplex for
at least 12 months and that Rodehorst had lost its right to con-
tinue the nonconforming use. We find no abuse of discretion or
error of law in the court’s reasoning or conclusion.
We note that this is not a situation where a landlord con-
tinuously sought, but was unable to find, new tenants.36 In
other words, this was not a situation where the discontinuance
33
Id. at 6-7, 375 A.2d at 956.
34
Id. at 6, 375 A.2d at 955.
35
See Hanchera, supra note 2.
36
See, e.g., Flowerree v. City of Concord, 93 N.C. App. 483, 378 S.E.2d 188
(1989).
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was involuntary.37 Rather, the district court found that “[t]here
was no evidence from [Rodehorst] that any effort had been
made to rent the apartments and there was no evidence that
the apartments were in a condition to be rented.” Moreover,
there was evidence from the City showing otherwise. The City
presented evidence of the building’s long-term nonuse at the
same time there were low vacancy rates (indicating that ten-
ants were available). The City also presented evidence, through
Nordhues, that the apartments were in disrepair when Nordhues
visited the building in 2010. From this evidence, a fact finder
could infer that Rodehorst had not tried to find new tenants.
And “[a] discontinuance period will run where the landlord did
not really try to rent the premises.”38
2. The Board Had No Authority
to Grant a “Use” Variance
Rodehorst also argues that the Board should have granted
it a “use” variance to otherwise allow its nonconforming use
to continue. Rodehorst argues that the district court erred
in affirming the Board’s conclusion that it did not have the
authority to consider and grant Rodehorst such a variance.
We disagree.
[8] A “use” variance is one which permits a use other than
that prescribed by the particular zoning regulation.39 An “area”
variance, on the other hand, has no relationship to a change of
use. It is primarily a grant to erect, alter, or use a structure for
a permitted use in a manner other than that prescribed by the
restrictions of the zoning ordinance.40
In this case, § 19-910 controls the granting of variances.
Section 19-910 provides, in relevant part:
(1) The board of adjustment shall . . . have only the
following powers: . . . (c) when by reason of exceptional
narrowness, shallowness, or shape of a specific piece of
37
See, e.g., Smith v. Board of Adjustment, 460 N.W.2d 854 (Iowa 1990).
38
8A McQuillin, supra note 6, § 25:203 at 146.
39
See Alumni Control Board v. City of Lincoln, 179 Neb. 194, 137 N.W.2d
800 (1965).
40
See id.
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property at the time of the enactment of the zoning regu-
lations, or by reason of exceptional topographic condi-
tions or other extraordinary and exceptional situation or
condition of such piece of property, the strict application
of any enacted regulation . . . 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 with-
out substantially impairing the intent and purpose of any
ordinance or resolution.
[9] We give statutory language its plain and ordinary mean-
ing.41 As evidenced by its language, and as we have held
previously, § 19-910 allows a board of adjustment to grant a
variance from a zoning regulation “only if strict application
of the regulation, because of the unusual physical character-
istics of the property existing at the time of the enactment,”
would result in exceptional practical difficulties or undue
hardships to the owner.42 Rodehorst requested a variance
based on its desire to continue using its building as a four-
plex, not because of any unique physical characteristic of the
property. The Board, limited in its ability to grant a variance
under § 19-910, did not have authority to grant Rodehorst its
requested use variance.43
3. Application of the Zoning R egulations
Did Not Constitute an Unconstitutional
Taking of Rodehorst’s P roperty
[10] Although Rodehorst makes several arguments as
to why applying the zoning regulations in this manner is
41
See, e.g., Lozier Corp. v. Douglas Cty. Bd. of Equal., 285 Neb. 705, 829
N.W.2d 652 (2013).
42
Barrett v. Bellevue, 242 Neb. 548, 551, 495 N.W.2d 646, 648 (1993)
(emphasis supplied) (citing Bowman, supra note 2).
43
Cf. Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680, 515 N.W.2d 401
(1994), disapproved in part on other grounds, Scofield v. State, 276 Neb.
215, 753 N.W.2d 345 (2008).
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unconstitutional, to be considered by an appellate court, an
alleged error must be both specifically assigned and specifi-
cally argued in the party’s brief.44 Rodehorst assigned as error
only the district court’s “failure to recognize that this was
an unconstitutional taking o[f] property.” We therefore will
address only that argument.
In most cases where courts address discontinuance provi-
sions, they provide little guidance as to the constitutionality
of those provisions. In City of Lincoln v. Bruce, this court
simply concluded that such provisions are “generally consid-
ered a proper exercise of a municipality’s power.”45 In City
of Glendale v. Aldabbagh,46 the Arizona Supreme Court, after
holding that intent to abandon was not required under the
cessation prong of a city ordinance, did not address the ordi-
nance’s constitutionality. And in Hartley v. City of Colorado
Springs,47 the Colorado Supreme Court, after holding that
intent to abandon was not required under an ordinance similar
to this one, summarily concluded that such provisions are con-
stitutional if they specify a reasonable period for terminating
the nonconforming use.
Of those courts that did address the constitutionality of dis-
continuance provisions, and specifically whether they worked
a taking, their analysis is of little help here. In Hinsdale
v. Village of Essex Junction,48 the Vermont Supreme Court
reasoned that zoning restrictions which “prevent the ‘undue
perpetuation’ of preexisting, nonconforming uses are consti-
tutionally valid,” and not regulatory takings, because they
substantially advance legitimate state interests. The U.S.
44
See, e.g., Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).
45
Bruce, supra note 11, 221 Neb. at 66, 375 N.W.2d at 122.
46
Aldabbagh, supra note 10.
47
Hartley, supra note 10.
48
Hinsdale v. Village of Essex Junction, 153 Vt. 618, 626, 572 A.2d 925,
930 (1990) (referencing Nollan v. California Coastal Comm’n, 483 U.S.
825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), and Agins v. Tiburon, 447
U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980), abrogated, Lingle v.
Chevron U.S.A. Inc., 544 U.S. 528, 125 S. Ct. 2074, 161 L. Ed. 2d 876
(2005)).
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Supreme Court, however, has since repudiated the “‘substan-
tially advances’” test, so that reasoning is no longer valid.49
And although the New Hampshire Supreme Court, in Dugas
v. Town of Conway,50 held that a discontinuance provision
worked a taking, it did so only under its state constitution,
while we generally look to federal law.51 Further, the Dugas
court’s analysis basically consisted of recognizing that there
was a line between a proper exercise of the police power and
an unconstitutional taking, and the court agreed with the lower
court that a taking had occurred.52
[11] Nevertheless, we believe that discontinuance provi-
sions may, in some cases, work a taking and that the frame-
work for analyzing such a claim is clear. It is well settled
that “while property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking.”53
We analyze such claims under article I, § 21, of the Nebraska
Constitution and the 5th Amendment to the U.S. Constitution,
made applicable to the states through the 14th Amendment.54
While the Nebraska Constitution provides broader protec-
tion in this area than the U.S. Constitution (compensation
for damages as well as for taking), we have treated federal
constitutional case law and our state constitutional case law
as coterminous.55
As we explained in Scofield v. State,56 the U.S. Supreme
Court has clarified the law surrounding regulatory takings
claims and provided a framework under which such claims
are to be addressed. The Court has identified two types of
49
See Lingle, supra note 48, 544 U.S. at 545.
50
Dugas v. Town of Conway, 125 N.H. 175, 480 A.2d 71 (1984).
51
See Scofield, supra note 43.
52
See Dugas, supra note 50.
53
Penn. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 67 L. Ed. 322
(1922).
54
See, Lamar Co. v. City of Fremont, 278 Neb. 485, 771 N.W.2d 894 (2009);
Scofield, supra note 43.
55
See Scofield, supra note 43.
56
Id.
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796 287 NEBRASKA REPORTS
regulatory actions that constitute categorical or per se tak-
ings: (1) where the government requires an owner to suffer a
permanent physical invasion of his property, however minor,
and (2) where regulations completely deprive an owner of
all economically beneficial use of his property.57 Neither
applies here. Outside these two relatively narrow categories
(and the special context of land-use exactions, which this is
not), regulatory takings challenges are governed by the stan-
dards set forth in Penn Central Transp. Co. v. New York City
(Penn Central).58
[12] Under Penn Central, relief is possible from a regula-
tory taking which does not deprive the owner of all economic
use of the property. The standards set forth in Penn Central
are designed to allow careful examination and weighing of all
relevant circumstances. The U.S. Supreme Court has explained
that the “‘[p]rimary’” Penn Central factors include “‘“[t]he
economic impact of the regulation on the claimant and, par-
ticularly, the extent to which the regulation has interfered with
distinct investment-backed expectations.”’”59 Another relevant
factor is the “‘“character of the governmental action”—for
instance whether it amounts to a physical invasion or instead
merely affects property interests through “some public program
adjusting the benefits and burdens of economic life to promote
the common good.”’”60 The Penn Central analysis turns in
large part, albeit not exclusively, upon the magnitude of a regu-
lation’s economic impact and the degree to which it interferes
with legitimate property interests.61
Based on the record before us, we conclude that there was
no taking. Although addressing a different type of regulation,
we find Board of Zoning Appeals v. Leisz62 instructive. In that
57
See id. (citing Lingle, supra note 48).
58
Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646,
57 L. Ed. 2d 631 (1978); Scofield, supra note 43.
59
Scofield, supra note 43, 276 Neb. at 232, 753 N.W.2d at 359 (citing Penn
Central, supra note 58).
60
Id. at 232-33, 753 N.W.2d at 359 (citing Penn Central, supra note 58).
61
See id. (citing Lingle, supra note 48).
62
Board of Zoning Appeals v. Leisz, 702 N.E.2d 1026 (Ind. 1998).
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case, the City of Bloomington, Indiana, passed an ordinance
limiting the number of unrelated adults who could live in a
single dwelling unit. Bloomington also “enacted a grandfather-
ing provision that permitted owners of properties that became
nonconforming uses under the zoning ordinance to preserve
their lawful nonconforming use status if they registered it” by
a certain date.63 The prior owners of a nonconforming dwelling
(with more than three unrelated adults in each of two units)
failed to register their nonconforming use and, under the new
provisions, forfeited their right to continue that use. The new
owners were denied the continuation of the nonconforming
use. The Indiana Supreme Court held that it was not an uncon-
stitutional taking.64
Although the court analyzed the takings claim, in part, under
the outdated “substantially advances” test, it also analyzed
the claim under the Penn Central framework. In addressing
the economic impact of the regulation, the court noted that
where a regulation is “‘reasonably related to the promotion
of the general welfare,’” as that one was, the U.S. Supreme
Court had “‘uniformly reject[ed] the proposition that dimi-
nution in property value, standing alone, [could] establish a
“taking[.]”’”65 The court also found that the regulation did not
affect the owners’ “reasonable investment-based expectations,”
because the owners were well aware of the ordinance, and that
the prior owners had failed to register the nonconforming use.66
Finally, the court noted that the character of the governmental
action pointed in favor of no taking, because “[t]he registration
requirement [took] nothing from the landowner,” but instead
“merely require[d] the filing of a form by a designated date.”67
The court noted that “[n]oncompliance with the regulation,
not the regulation itself, result[ed] in the forfeiture of a vested
63
Id. at 1027.
64
See Leisz, supra note 62.
65
Id. at 1030 (citing Penn Central, supra note 58, citing Euclid v. Ambler
Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926), and Hadacheck v.
Los Angeles, 239 U.S. 394, 36 S. Ct. 143, 60 L. Ed. 348 (1915)).
66
Id.
67
Id. at 1031.
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property right.”68 The court thus concluded that there was
no taking.
For similar reasons, we conclude that the regulation here
did not work a taking on Rodehorst. The record is not clear
on the economic impact of the regulation on Rodehorst.
Certainly, Rodehorst will no longer be able to have four sepa-
rate units in the building, but the record shows that only one
or two of the units had been occupied for several years and
that the unoccupied units were generally not in a state to be
rented. There is also at least a suggestion that were Rodehorst
to remodel the four apartments into two larger units, it might
be able to earn comparable profits. But even if we were to
assume that Rodehorst would lose 50 percent of the value
of the property, that level of diminution in value generally
does not equate to a regulatory taking under U.S. Supreme
Court precedents.69
We also conclude that the regulation has not interfered
with Rodehorst’s reasonable investment-backed expectations.
The record shows that Rodehorst bought the fourplex in 1987
and continued to use it as a fourplex, a legal nonconforming
use, for many years. Section 19-904.01 was the law before
the purchase, and the City adopted its discontinuance provi-
sion in 2002. A property owner is presumed to know the law
affecting his property.70 Rodehorst’s reasonable expectation
was that it could continue its nonconforming use, indefi-
nitely, if it was not discontinued for 1 year. That expectation
was met.
Finally, the character of the governmental intrusion weighs
in favor of concluding there was not a taking. Though the Penn
Central language is somewhat vague, these zoning laws seem
less like a “‘physical invasion’” and more like a “‘“public
program adjusting the benefits and burdens of economic life
68
Id.
69
See Penn Central, supra note 58 (citing Euclid, supra note 65, and
Hadacheck, supra note 65).
70
See Texaco, Inc. v. Short, 454 U.S. 516, 102 S. Ct. 781, 70 L. Ed. 2d 738
(1982).
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to promote the common good.”’”71 In essence, discontinuance
provisions work gradually over time to eliminate nonconform-
ing uses, a recognized good. And, as in Leisz, the regulation
here did not outright terminate the nonconforming use, but,
rather, allowed Rodehorst to continue the nonconforming use
if it did not discontinue the use for 1 year. As in Leisz, “[t]he
power to protect the property interest rest[ed] solely with the
landowner.”72 For these reasons, we conclude that the dis-
continuance provision at issue here did not work a taking
on Rodehorst.
VI. CONCLUSION
We conclude that Rodehorst discontinued its nonconform-
ing use for 1 year and therefore forfeited its right to continue
the use under the relevant zoning laws. We also conclude
that the Board did not have authority to grant Rodehorst a
use variance and that there was not a taking of Rodehorst’s
property.
Affirmed.
Heavican, C.J., participating on briefs.
71
See Scofield, supra note 43, 276 Neb. at 232-33, 753 N.W.2d at 359
(citing Penn Central, supra note 58).
72
Leisz, supra note 62, 702 N.E.2d at 1031.
State of Nebraska, appellee, v.
Andre D. Robinson, appellant.
___ N.W.2d ___
Filed March 28, 2014. No. S-13-575.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of
ineffective assistance of counsel is a mixed question of law and fact.
3. ____: ____. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear error.
4. ____: ____. With regard to the questions of counsel’s performance or preju-
dice to the defendant as part of the two-pronged test articulated in Strickland