Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT
Cite as 308 Neb. 63Carla Dolezal-Soukup, appellant, v. Dodge
County Board of Adjustment and Joseph
Kreifels and Teri Kreifels, husband
and wife, appellees.
___ N.W.2d ___
Filed December 31, 2020. No. S-20-295.
1. Zoning: Evidence: Appeal and Error. A district court may disturb
a decision of a board of adjustment if the decision was illegal or is
not supported by the evidence and is thus arbitrary, unreasonable, or
clearly wrong.
2. Zoning: Evidence. In deciding whether a board of adjustment’s deci-
sion is supported by the evidence, the district court shall consider any
additional evidence it receives.
3. Zoning: Courts: Appeal and Error. In appeals involving a decision of
a board of adjustment, an appellate court reviews the decision of the dis-
trict 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.
4. Appeal and Error. Where competent evidence supports the district
court’s factual findings, an appellate court will not substitute its factual
findings for those of the district court.
5. Zoning: Appeal and Error. The party appealing the board of adjust-
ment’s decision to district court must specify the grounds of the
illegality.
6. Zoning. When it comes to the determination of whether a landowner
will experience sufficient hardship to justify a variance, the decision of
a board of adjustment carries significant weight.
7. ____. The financial situation or pecuniary hardship of a single owner
affords no adequate grounds for granting a variance from a zoning
regulation.
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT
Cite as 308 Neb. 638. ____. As a general rule, hardship that is personal to the property owner
will not support the grant of a variance.
9. Zoning: Proof. 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.
10. Zoning. A self-imposed hardship exists where a party comes to the
restricted subject property with a particular unpermitted use in mind and
mindful of the impossible area restrictions for that use. By contrast, a
hardship is not self-imposed if it results from inherent and preexisting
characteristics of the property.
11. ____. A self-imposed hardship is not a per se bar to a variance. Rather, a
self-imposed hardship is a factor for the regulatory authority to consider
when deciding whether or not to grant the variance.
Appeal from the District Court for Dodge County: Geoffrey
C. Hall, Judge. Affirmed.
David V. Drew, of Drew Law Firm, P.C., L.L.O., for
appellant.
Robert S. Keith and Alexis M. Wright, of Engles, Ketcham,
Olson & Keith, P.C., for appellee Dodge County Board of
Adjustment.
Spencer B. Wilson and David C. Mitchell, of Yost,
Schafersman, Lamme, Hillis, Mitchell, Schulz & Hartmann,
P.C., for appellees Joseph Kreifels and Teri Kreifels.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Carla Dolezal-Soukup appeals the order of the district court,
which approved the granting of a variance for a 4-H pigpen
built in violation of county setback requirements. We conclude
there is competent evidence in the record which supports the
district court’s factual findings. The district court did not abuse
its discretion or make an error of law in upholding the decision
to grant a variance. We affirm.
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT
Cite as 308 Neb. 63BACKGROUND
Since 2012, Joseph Kreifels and Teri Kreifels have owned
approximately 5.15 acres of land in the A-3 agricultural-
transitional zoning district of Dodge County, Nebraska. The
property is located on the north side of County Road O, east
of Highway 275, in Nickerson, Nebraska. The lot is triangle
shaped. The Kreifels’ residence and two steel sheds, which
were in existence at the time the Kreifels purchased the prop-
erty, are located in the lot’s narrow, south corner. The ground
is flat in the south with a downgrade to the north and west. The
lot’s wider north edge contains irrigated crops. The Kreifels
have a crop lease with their neighbor farmer to the north,
Marlin Brabec, for $4,800 annually. Brabec owns an irriga-
tion pivot which crosses through the northwest corner of the
Kreifels’ lot.
In the spring of 2017, the Kreifels built an L-shaped, 32- by
16-foot pen on the east side of their property. The fenced pen
is segmented into different portions, with one portion covered
with a portable shed, another portion with a cement floor, and
a third portion consisting of dirt. The Kreifels built the pen so
their children can participate in the 4-H program “put on by
the University of Nebraska Extension Office,” which program
allows the children to learn hard work and responsibility for
animals and prepares them to eventually work in agriculture.
Each year since 2017, the Kreifels have raised six or fewer
pigs from the beginning of April through the end of August
until the pigs are shown at county or state fairs and then sold.
The pen is not used for commercial purposes and is not finan-
cially profitable for the Kreifels.
Since 2003, Dolezal-Soukup has owned the 10.03-acre,
rectangle-shaped lot east of the Kreifels. Article 14 of the
Dodge County zoning regulations covers A-3 agricultural-
transitional districts. Section 1 of article 14 covers “Permitted
Principal Uses,” and subsection 1.9 covers “Private Kennels.”
For purposes of this dispute, the parties have stipulated that
subsection 1.9 applies to the 4-H pen. Subsection 1.9 permits
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT
Cite as 308 Neb. 63the use of the pen provided that the pen is located at least
100 feet from the property line and 300 feet from any neigh-
boring residence. The Kreifels’ pen is located approximately
30 feet from the property line shared with Dolezal-Soukup,
200 feet from Dolezal-Soukup’s residence, and 175 feet from
the Kreifels’ residence.
Dolezal-Soukup filed a complaint regarding the pen with the
Dodge County zoning department. The Dodge County zoning
administrator issued a letter to the Kreifels notifying them that
their pen is sited in violation of county setback requirements.
As a result, the Kreifels sought a variance from the Dodge
County Board of Adjustment. The request stated that when the
Kreifels built the pen, at a cost of $2,600, they were not aware
of the setback requirements; that they thought the pen would
not cause disruption, because it is not in view of any neighbor-
ing homes; that they kept the facility clean with regular power
washing and changing of pig bedding; and that when they saw
rain in the forecast, they closed off access to the dirt area to
reduce any mess or odor. They estimated the cost of relocat-
ing the pen would be between $5,000 and $6,000, due to dirt,
concrete, and fencing expenses.
The zoning administrator, on behalf of the board of adjust-
ment, publicly notified all adjoining property owners that the
board would hold a public hearing on September 21, 2017,
to consider the Kreifels’ request for a variance. Prior to the
hearing, members of the board personally viewed the proper-
ties, reviewed photographs of the Kreifels’ property taken by
the zoning administrator, and considered a letter from Brabec
which supported the Kreifels’ request.
At the hearing, Joseph stated that the site for the pen was
chosen with the best interests of the animals in mind and that
if the pen were relocated to the west, there would be a lack
of airflow due to the surrounding buildings. He stated that
relocating the pen to the north would require altering the dirt
on the cropland, which would cause water to run off from the
Kreifels’ buildings onto Brabec’s property. Dolezal-Soukup
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT
Cite as 308 Neb. 63stated that the pen has an unpleasant smell, attracts flies,
and has a metal self-feeder, which produces a constant bang-
ing noise.
Members of the board complimented the pen’s cleanliness.
At the close of the hearing, in a 5-0 decision, the board granted
the variance. The board agreed that “there’s not really a place
on their property that they could put [the pen] without getting
a variance.” A form attached to the minutes for the hearing
reflects that the board granted the variance “due to the drainage
issues.” The board specifically found that (1) strict applica-
tion of the regulation would produce undue hardship; (2) such
hardship is not shared by other properties in the same zoning
district and vicinity; (3) authorizing the variance will not be a
substantial detriment to adjacent property and will not change
the character of the district; (4) granting the variance is based
on demonstrable and exceptional hardship, as distinguished
from convenience, profit, or caprice; and (5) the property and
its intended use are not of a general or a recurring nature so
as to make adopting an amendment to the general regulation
reasonably practicable.
Dolezal-Soukup appealed the board’s decision to the dis-
trict court for Dodge County. Dolezal-Soukup alleged in her
petition and amended petition that the decision of the board
of adjustment was illegal, on the specific grounds that (1) the
Kreifels would not have experienced exceptional hardship; (2)
there are alternative locations for the pen on the property, mak-
ing relocating the pen merely an inconvenience and financial
burden, which would not merit a variance; (3) any hardship
experienced by the Kreifels was not created by exceptional
narrowness, shallowness, or shape of their property at the time
of the adoption of the zoning regulations; and (4) authorizing
a variance will be of substantial detriment to Dolezal-Soukup’s
adjacent property.
On September 4, 2019, at the hearing on Dolezal-Soukup’s
appeal, the court received exhibits and heard testimony from
the zoning administrator, Dolezal-Soukup, Joseph, and Teri.
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT
Cite as 308 Neb. 63The zoning administrator described the pen as “a clean cement
slab [with] fences around it, not a very big slab, not [a] very
big pen.” Dolezal-Soukup testified that she can smell the
pigs from her house; that when the pigs eat, the metal self-
feeder sounds like “a garbage can lid slamming down”; and
that the pen has artificial lights, which cause the pigs to eat
at night. On cross-examination, Dolezal-Soukup testified that
she maintains five horses on her property year round, there
is a tree line which separates the pen from her residence, and
her property is bordered on the south by County Road O, near
Highway 275.
The court heard testimony regarding two possible alternative
locations for the pen. Joseph testified that neither alternative
is workable. The first alternative is located in the cropland.
Joseph testified that the farm ground “drains to the north and a
little bit to the west.” Due to the slope of the lot, relocating the
pen would require moving significant dirt into the field, which
would create drainage issues for Brabec’s property, interfere
with Brabec’s irrigation pivot, limit crop production, and result
in the termination of the crop lease.
The second alternative is located on the west side of the two
steel sheds north of the Kreifels’ residence. Joseph testified this
location would require a variance due to the narrow dimen-
sions of the lot; the pen would be located within 100 feet of
the western property line. He stated that the sheds would limit
airflow to the pigs and subject them to heat exposure due to
the sun’s reflection off the steel sheds and that the sheds would
block the view of the pen from the family home, which would
create safety concerns due to the inability to monitor the chil-
dren as they tend to the 250-to-300-pound pigs.
Teri testified that neither the pig smell nor the feeding noise
affect her family when they sleep with the windows open in
the spring and summer. She explained that the lights are heat-
ing lamps, located inside the portable shed, used for a short
period of time in the spring when the pigs are young. She has
not noticed an inordinate amount of flies on her property since
the installation of the pen.
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT
Cite as 308 Neb. 63Following the hearing, the court issued a written order
affirming the board’s decision to grant a variance. The court
reviewed the testimony and exhibits and found that Dolezal-
Soukup failed to submit any evidence to show that the board’s
decision was illegal or clearly wrong. The court cited the tes-
timony of Joseph stating that there are no feasible alternative
locations for the pen. The court found the location to the west
of the steel sheds was not viable, because (1) that site would
still require a variance, (2) the limited airflow and excessive
heat at that location is dangerous to the health of pigs, and (3)
the sheds block the view of the pen from the home creating
a safety issue for the children. The court found the alterna-
tive site in the cropland would create “significant additional
expense” for the Kreifels, including $6,000 in costs for relo-
cating the pen and the annual loss of $4,800 due to termina-
tion of the lease. The court further found that this site would
“require that additional dirt be brought on to the property and
that the ground be re-graded to prevent water runoff problems,
which could lead to further legal disputes and potential addi-
tional costs.”
In concluding its order, the court stated that “[i]t is impor-
tant to note that the [b]oard determined that a hardship specifi-
cally related to the shape of the Kreifels’ parcel” and that “the
variance was granted after a showing of exceptional hardship
by the Kreifels and . . . was not based on convenience, profit,
or caprice.” The court found that based on the evidence and the
relevant statutes and regulations, the board’s decision to grant
the variance was “reasonable and well considered and within
the discretion of the [b]oard.”
Dolezal-Soukup appeals. We moved the case to our docket
on our own motion.
ASSIGNMENTS OF ERROR
Dolezal-Soukup assigns, restated and consolidated, that the
district court erred in affirming the board of adjustment’s
decision to grant the variance, because (1) the Kreifels would
not suffer an undue or exceptional hardship and (2) any such
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT
Cite as 308 Neb. 63hardship would have been shared by others in the same zon-
ing district and vicinity. Dolezal-Soukup further assigns the
court erred in failing to find that the Kreifels created their
own hardship.
STANDARD OF REVIEW
[1,2] A district court may disturb a decision of a board of
adjustment if the decision was illegal or is not supported by the
evidence and is thus arbitrary, unreasonable, or clearly wrong. 1
In deciding whether a board’s decision is supported by the evi-
dence, the district court shall consider any additional evidence
it receives. 2
[3,4] In appeals involving a decision of a board of adjust-
ment, an appellate court reviews the decision of the district
court, and irrespective of whether the district court took addi-
tional 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. 3 Where competent evi-
dence supports the district court’s factual findings, an appellate
court will not substitute its factual findings for those of the
district court. 4
ANALYSIS
Dolezal-Soukup claims that the district court erred in affirm-
ing the board of adjustment’s decision to grant the variance.
Specifically, Dolezal-Soukup argues that under Neb. Rev. Stat.
§ 23-168.03 (Reissue 2012), the board erred in finding that
strict application of the setback requirements would result in
“peculiar and exceptional practical difficulties” “or exceptional
and undue hardships” for the Kreifels.
1
Hanchera v. Board of Adjustment, 269 Neb. 623, 694 N.W.2d 641 (2005).
2
Id.3
Id.4
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Cite as 308 Neb. 63Statutory Framework for County
Board of Adjustment
Section 23-168.03(1)(c) authorizes a county board of adjust-
ment to grant a variance from a zoning regulation only if strict
application of the regulation, because of the exceptional nar-
rowness, shallowness, or shape of the property existing at the
time of the enactment of the regulation, would result in pecu-
liar and exceptional practical difficulties to, or exceptional and
undue hardships upon, the owner. 5 Under § 23-168.03(1)(c),
a variance 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. Additionally, under § 23-168.03(1)(c), no variance
shall be authorized unless the board of adjustment finds:
(i) The strict application of the resolution would produce
undue hardship; (ii) such hardship is not shared gener-
ally 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.
Section 23-168.03(1)(c) requires the board to support
any grant of a variance with evidence-based findings with
respect to each of the four factors enumerated above. Section
23-168.03(1)(c)(iv) defines “undue burden” as “demonstra-
ble and exceptional hardship as distinguished from variations
for purposes of convenience, profit or caprice.” 6 In addition,
5
See, Barrett v. City of Bellevue, 242 Neb. 548, 495 N.W.2d 646 (1993)
(interpreting prior version of Neb. Rev. Stat. § 19-910 (Reissue 2012 &
Supp. 2019)); Bowman v. City of York, 240 Neb. 201, 482 N.W.2d 537(1992) (same); City of Battle Creek v. Madison Cty. Bd. of Adjust., 9 Neb.
App. 223, 609 N.W.2d 706 (2000).
6
See Bowman, supra note 5.
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT
Cite as 308 Neb. 63under § 23-168.03(2), a variance is not authorized unless the
board finds that the condition or situation of the property con-
cerned 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 amend-
ment to the zoning regulations.
[5,6] Neb. Rev. Stat. § 23-168.04 (Reissue 2012) pro-
vides for an appeal from the board’s decision to the dis-
trict court on the ground that the decision is illegal. Section
23-168.04 requires the party appealing the board’s decision to
district court to “specify[] the grounds of the illegality.” The
Legislature’s requirement that district courts are to uphold a
board of adjustment’s decision absent illegality makes clear
that, when it comes to the determination of whether a land-
owner will experience sufficient hardship to justify a vari-
ance, the decision of a board of adjustment carries significant
weight. As this court stated in Bowman v. City of York, 7 boards
of adjustment provide
“a high level of expertise and an opportunity for special-
ization unavailable in the judicial or legislative branches.
They are able to use these skills, along with the policy
mandate and discretion entrusted to them by the legisla-
ture, to make rules and enforce them in fashioning solu-
tions to very complex problems. Thus, their decisions are
not to be taken lightly or minimized by the judiciary.”
Undue Hardship
[7] Dolezal-Soukup contends that strict application of the
setback requirements would not result in undue hardship to
the Kreifels, because the Kreifels merely desire to have a
4-H pen on their land and to avoid the costs of removing
and reconstructing the pen in a location that does not violate
7
Id. at 210, 482 N.W.2d at 544. See, also, Eastroads v. Omaha Zoning Bd.
of Appeals, 261 Neb. 969, 628 N.W.2d 677 (2001); Rousseau v. Zoning
Bd. of Appeals of Omaha, 17 Neb. App. 469, 764 N.W.2d 130 (2009).
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT
Cite as 308 Neb. 63the zoning setback requirements. She argues that because the
pen could have been constructed in an alternative location,
the only hardship would be financial in nature. The financial
situation or pecuniary hardship of a single owner affords
no adequate grounds for granting a variance from a zon-
ing regulation. 8
In this court’s 1955 decision in Frank v. Russell, 9 prop-
erty owners sought a variance after commencing construction
of a residential building in violation of a zoning ordinance.
Because the owners’ building was designed to set back 27 feet
from the front lot line, rather than the required 40 feet, the
city engineer halted the construction. Pursuant to § 19-910,
which defines the authority of boards of adjustment in cities
of the first and second class and villages to grant a variance,
the owners filed a petition for a variance with the city board
of adjustment. The board granted a variance, and the district
court affirmed.
On appeal in Frank, we analyzed the five factors under the
ordinance required for a variance, which were that the varia-
tion (1) must be minor, (2) may not violate the spirit of the
ordinance, (3) may not interfere with public safety or welfare,
(4) may not abridge substantial justice, and (5) must relieve
practical difficulties or unnecessary hardships. We found that
the owner’s 13-foot encroachment on the otherwise symmetri-
cal residential block failed to satisfy any of these factors. Our
analysis concentrated on the fifth factor. We acknowledged
that denying the variance did involve hardship and practical
difficulties to the owners. But we found that the owners had
created these hardships and difficulties with full knowledge of
the ordinance and that it would be unreasonable “to allow one
to create his own hardship and difficulty and take advantage of
it to the prejudice of innocent parties.” 10
8
See, Bowman, supra note 5; Rousseau, supra note 7.
9
Frank v. Russell, 160 Neb. 354, 70 N.W.2d 306 (1955).
10
Id. at 361, 70 N.W.2d at 311.
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Cite as 308 Neb. 63On the subject of hardship generally, we stated: “‘Ordinarily,
a claim of unnecessary hardship cannot be based upon condi-
tions created by the owner or applicant.’ . . . ‘A hardship
intentionally created by the owner of premises for the purpose
of laying a basis for an application for a variance cannot be
considered for such purpose.’” 11 We concluded that under the
circumstances, the board of adjustment lacked authority to
grant the variance, and we reversed. Subsequent to Frank, the
Legislature amended § 19-910 to enumerate specific criteria
which must be satisfied to sustain a request for a variance. 12
In our 1992 decision in Bowman, we considered whether,
under § 19-910, a board of adjustment had the power to grant
a variance to a company which sought authorization to build
a warehouse within 1 foot of the property line rather than the
15 feet required by the ordinance. 13 The board granted the vari-
ance, but the district court reversed. We analyzed the require-
ment of § 19-910(2)(d) that describes undue hardship as a
“demonstrable and exceptional hardship as distinguished from
variations for purposes of convenience, profit, or caprice.”
We found that because the record showed that the company’s
sole justification for the variance was to maximize its profits,
the company had failed to establish that strict application of
the setback requirement would have produced undue hard-
ship. Thus, the company failed to set forth adequate grounds
for a variance.
Eastroads v. Omaha Zoning Bd. of Appeals 14 concerned
the application of Frank 15 in the context of Neb. Rev. Stat.
§ 14-411 (Reissue 2012), which defines the authority of zoning
11
Id. at 361-62, 70 N.W.2d at 311, quoting Annot., 168 A.L.R. 13 (1947).
12
See, § 19-910(2) (substantively similar to § 23-168.03(1)(c)); Bowman,
supra note 5.
13
Bowman, supra note 5.
14
Eastroads, supra note 7.
15
Frank, supra note 9.
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Cite as 308 Neb. 63boards of appeal in cities of the metropolitan class to grant a
variance. In Eastroads, a company requested the city zoning
board of appeals to waive application of an ordinance requir-
ing a 30-foot bufferyard area between commercial-zoned and
residential-zoned lands. The company presented evidence to
the board showing that the variance was needed due to the
irregular shape of the property line, the location of an old
rubble fill site in the center of the land, and the need for an
entry point on the north end of the development due to a
state-owned right-of-way on the south end. The board granted
the variance.
Following an appeal, the district court held an evidentiary
hearing and affirmed the board’s decision. The court found
that the board’s decision to grant the variance was supported
by the following factors: (1) the rubble fill is on the majority of
the property; (2) the state controlled right-of-way, which was
acquired after the company purchased the property, “‘forecloses
the possibility of any reasonable development in this area’”; 16
and (3) the required bufferyard was uniquely increased due to
the irregular boundary line.
The company appealed to the Nebraska Court of Appeals,
which pursuant to Frank 17 reversed, finding that the difficul-
ties asserted to justify the variance were self-created. 18 Upon
a petition for further review, we reversed the decision of the
Court of Appeals and found that the board had acted legally
in granting the variance. 19 We held Frank was distinguishable,
because there was no evidence that the state’s right-of-way
was a condition created by the property owner and that fur-
ther, the state’s right-of-way created a practical difficulty in
the strict application of the ordinance. We found the language
16
Eastroads, 261 Neb. at 974, 628 N.W.2d at 681.
17
Frank, supra note 9.
18
Eastroads v. Omaha Zoning Bd. of Appeals, 9 Neb. App. 767, 619 N.W.2d
618 (2000), reversed, Eastroads, supra note 7.
19
Eastroads, supra note 7.
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Cite as 308 Neb. 63from Frank regarding hardship generally to be dicta and to not
establish an absolute bar to a request for a variance.
These Supreme Court authorities provide instruction in
identifying what qualifies as undue hardship. The Court of
Appeals’ 2009 decision in Rousseau v. Zoning Bd. of Appeals
of Omaha 20 provides additional guidance. In that case, a prop-
erty owner had purchased a vacant lot in a residential area. The
owner wanted to build a condominium designed in an old style
like those found in Chicago or New York. After redesigning
the project 11 times, attempting to comply with zoning regula-
tions, the owner sought variances from front yard setback and
off-street parking requirements. The board granted the owner’s
requests, and it also granted a variance from a side yard set-
back requirement. After an appeal, the matter was tried in dis-
trict court. The owner provided testimony admitting that it was
possible to build a multiple-family residential building on the
lot in compliance with zoning regulations, but contended that
the regulations prohibited her from building the particular style
of building that she desired to build. The court affirmed, find-
ing that no variance from the front yard setback requirements
was necessary and that the “density of the neighborhood” 21
was a hardship that justified the side yard setback and parking
space variances.
On appeal, the Court of Appeals acknowledged that, stand-
ing alone, neither the desire to build a larger building 22 nor the
desire to generate increased profits 23 constitutes a sufficient
hardship to justify a variance. However, the court found that
the particular form of hardship at issue, where the density of
an already existing development conflicts with strict applica-
tion of local zoning requirements, was sufficient to justify a
20
Rousseau, supra note 7.
21
Id. at 472, 764 N.W.2d at 132.
22
Rousseau, supra note 7, citing Alumni Control Board v. City of Lincoln,
179 Neb. 194, 137 N.W.2d 800 (1965).
23
Id., citing Bowman, supra note 5.
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Cite as 308 Neb. 63variance. Thus, it was not the owner’s desire to build a particu-
lar style of building, but, rather, the density of the area which
qualified as undue hardship.
We now turn to apply the foregoing principles to the present
dispute. Here, in a unanimous decision, the board of adjust-
ment found that the Kreifels’ request for a variance was meri-
torious. The board supported its decision with factual findings
with respect to all factors required under § 23-168.03(1)(c)
and (2). We are convinced that the evidence establishes that
the board of adjustment and the district court correctly found
that strict application of the zoning regulations would result
in undue hardship to the Kreifels. The board members applied
their expertise and specialization by personally viewing the
property at issue, reviewing photographs of the pen, consid-
ering a letter in support of the Kreifels’ request authored by
an adjoining landowner, and questioning the landowners and
an adjoining landowner. The board considered the request for
a variance in the context of the specific dimensions of the
properties, and it carefully evaluated the proposed alternative
locations. The board concluded, based on the evidence and
the required statutory considerations, that due to the narrow-
ness and shape of the Kreifels’ property, strict application of
the setback requirements would cause the Kreifels undue and
exceptional hardships.
Specifically, the board found the property contains no viable
alternative site for the pen. The only alternative that did not
require a variance would create drainage issues for neighboring
property. The district court affirmed, because the board found
that the hardship related to the shape of the Kreifels’ parcel.
And, contrary to Dolezal-Soukup’s position on appeal, the
court found that “the granting of the variance was not based
on convenience, profit, or caprice.” The factual findings of the
board and the district court carry significant weight. 24
24
See, Eastroads, supra note 7; Bowman, supra note 5; Rousseau, supra
note 7.
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Cite as 308 Neb. 63Analyzing the feasibility of alternative pen locations illus-
trates the persuasiveness of the findings of the board and the
district court regarding undue hardship. When the zoning regu-
lations are strictly applied, it is clear the location west of the
sheds is no alternative. That location requires a variance on the
western line, and furthermore, it poses the peculiar and excep-
tional practical difficulties of harming the swine due to lack of
airflow and heat exhaustion, which would defeat the purpose of
a permitted principal use of the property.
The alternative location in the farm ground is not viable.
The Kreifels’ land is flat in the south with a downgrade to the
north and west into the farm ground. Joseph testified that due
to the conditions of the land, relocating the pen to this site
would cause water from the Kreifels’ buildings to run off onto
the Brabec property. Constructing a new pen in this area would
require significant dirt work, which would reduce the land’s
crop production and interfere with Brabec’s irrigation pivot and
farming operations.
[8,9] In response to the evidence that the Kreifels’ would
incur costs from demolition and reconstruction of the pen,
and lose farming income, Dolezal-Soukup argues on appeal
that purely financial hardships are inadequate grounds for
a variance. It is true that, as a general rule, hardship that is
personal to the property owner will not support the grant of
a variance. 25 The applicant for a variance must show that the
property is in and of itself unusual in a manner which is dif-
ferent from the nature of surrounding properties and relates
to the hardship complained of and that granting a variance to
25
2 Patricia E. Salkin, American Law. of Zoning § 13:15 (5th ed. 2018),
citing Matter of First Natl. Bank of Downsville v. City of Albany Bd.
of Zoning Appeals, 216 A.D.2d 680, 628 N.Y.S.2d 199 (1995); Matter
of Congregation Beth El of Rochester v. Crowley, 30 Misc. 2d 90, 217
N.Y.S.2d 937 (1961); Williams v. Dept. of Env. and Natural Res., 144 N.C.
App. 479, 548 S.E.2d 793 (2001) (superseded by statute as stated in The
Riggings v. Coastal Resources Com’n, 228 N.C. App. 630, 747 S.E.2d
301 (2013)).
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Cite as 308 Neb. 63take this into account would not substantially affect the zon-
ing plan. 26
The premise of Dolezal-Soukup’s argument has merit.
Standing alone, neither the desire to build a larger building
nor the desire to generate increased profits constitutes a suffi-
cient hardship to justify a variance from a zoning regulation. 27
However, when applied to the facts of this case, Dolezal-
Soukup’s argument fails. Unlike the request for a variance in
Bowman, 28 the Kreifels’ request for a variance is not solely
based on personal or financial considerations. And the fact that
the Kreifels have proved that strict application of the regula-
tions would cause them financial losses does not forfeit them
the opportunity to establish that they would experience undue
hardship as a result of the conditions of their property.
Dolezal-Soukup’s lead authority, Bruning v. City of Omaha
Zoning Bd. of Appeals, 29 is distinguishable from the present
matter. In Bruning, property owners had operated seeding
businesses on land zoned for agricultural use. The owners
sold their seeding businesses and rented buildings on the land
to be used for storage for lawn and landscaping businesses,
and they leased other buildings for automobile storage and
boiler repair businesses. The landowners requested a variance
for their agricultural-zoned land, and the city zoning board
of appeals denied the request. The board members found that
“granting waivers would be a significant deviation from the
26
131 Am. Jur. Proof of Facts 3d 253 Proof of Hardship Necessary for
Zoning Variance § 16 (2013), citing Montgomery County v. Rotwein, 169
Md. App. 716, 906 A.2d 959 (2006). See, e.g., Barrett, supra note 5;
Lang v. Zoning Board of Adjustment, 160 N.J. 41, 733 A.2d 464 (1999);
Allegheny West Civic Council v. Zoning Bd., 547 Pa. 163, 689 A.2d
225 (1997).
27
Rousseau, supra note 7.
28
Bowman, supra note 5.
29
Bruning v. City of Omaha Zoning Bd. of Appeals, 303 Neb. 146, 927
N.W.2d 366 (2019).
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Cite as 308 Neb. 63zoning plan, and not merely reasonable adjustments.” 30 The
district court affirmed, finding that the property owners had
unilaterally altered the agricultural use of the property by leas-
ing buildings to others, a commercial activity. On appeal, the
Supreme Court affirmed, finding competent evidence in the
record to support the district court’s conclusion that the prop-
erty owners’ hardship stemmed from their desire for increased
profits and self-created hardships.
The Kreifels’ request for a variance is much different than
that at issue in Bruning. The pen is a permitted principal use
in the A-3 agricultural-transitional zoning district. The Kreifels
constructed the pen absent knowledge of the zoning require-
ments, and they did not intend to use the pen for financial
profit. When the Kreifels’ purchased the lot, the steel sheds and
residence were already located in the narrow, south corner. The
zoning administrator testified that the pen is not very big, yet
the board found, due to the narrowness or shape of the lot, that
there is no feasible location for the pen that would comply with
the zoning requirements. Therefore, under the requirements of
§ 23-168.03(1)(c), the Kreifels have demonstrated undue hard-
ship to justify a variance.
Dolezal-Soukup argues there is no legally cognizable hard-
ship, because the Kreifels have not been deprived of all benefi-
cial or reasonable use of their land. However, § 23-168.03(1)(c)
contains no such requirement. It is a misconception that the
term “undue hardship” requires an applicant to prove that
without the variance, the property would lose all utility. 31
Sufficient proof of hardship is established if strict enforcement
of regulations, due to the property’s unique characteristics,
inhibits the extent to which the property can be used. 32 Here,
strict application of the setback requirements, due to the
30
Id. at 153, 927 N.W.2d at 371.
31
Lang, supra note 26.
32
Id.
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Cite as 308 Neb. 63narrowness of the land, in combination with preexisting struc-
tures, eliminates all use of the pen.
Our review in this case is limited to whether the district
court abused its discretion or committed an error of law in
affirming the board’s decision to grant the variance. After con-
ducting an evidentiary hearing, the court found that Dolezal-
Soukup presented no evidence to establish that the board’s
decision was clearly wrong, illegal, unreasonable, or arbitrary.
Based upon our review of the record, with respect to the issue
of undue hardship, we conclude there is competent evidence
in the record to support the district court’s factual findings.
We will not substitute our factual findings for those of the
district court.
Hardship Not Self-Created
[10] Dolezal-Soukup next argues that the Kreifels are
barred from seeking a variance, because their hardships were
self-created. Dolezal-Soukup relies on the rule against self-­
created hardships from Bruning and Frank, discussed above. 33
However, Dolezal-Soukup applies this rule out of context. Both
Bruning and Frank involved applicants which sought variances
while intentionally violating zoning regulations. As stated in
one of the passages from Frank, quoted above, “‘A hardship
intentionally created by the owner of premises for the purpose
of laying a basis for an application for a variance cannot be
considered for such purpose.’” 34 A self-imposed hardship exists
where a party comes to the restricted subject property with a
particular unpermitted use in mind and mindful of the impos-
sible area restrictions for that use. 35 By contrast, a hardship
is not self-imposed if it results from inherent and preexisting
characteristics of the property. 36
33
See, Bruning, supra note 29; Frank, supra note 9.
34
Frank, supra note 9, 160 Neb. at 362, 70 N.W.2d at 311.
35
Bd. of Adjustment of Sussex v. Verleysen, 36 A.3d 326 (Del. 2012).
36
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Cite as 308 Neb. 63[11] Dolezal-Soukup’s self-created hardship argument is not
based on any intentional violation by the Kreifels. Rather,
Dolezal-Soukup attempts to impute an intent to the Kreifels
by arguing that they “had a legal duty to know the zoning
requirements and to follow them.” 37 Dolezal-Soukup’s argu-
ment is fundamentally flawed for two reasons. First, a self-
imposed hardship is not a per se bar to a variance. 38 Rather, a
self-imposed hardship is a factor for the regulatory authority to
consider when deciding whether or not to grant the variance. 39
Second, Dolezal-Soukup’s argument is not properly raised.
Section 23-168.04 requires the party appealing the board’s
decision to district court to “specify[] the grounds of the ille-
gality.” Nowhere in her petition or amended petition filed with
the district court did Dolezal-Soukup allege the Kreifels’ hard-
ships were self-created. While the bill of exceptions does show
that Joseph admitted he installed the pen without first obtaining
a building permit, he stated he did so because he was not aware
of the zoning requirements. The district court’s written order
made no findings with respect to the issue of self-created hard-
ships. This argument is being applied out of context, overstates
its legal impact, and was not properly raised. This assignment
of error is without merit.
Hardship Not Generally Shared
by Others in Area
Dolezal-Soukup’s next argument is, if the Kreifels’ alleged
hardship is an inability to construct a pen for 4-H activities,
then, contrary to the requirements of § 23-168.03(1)(c)(ii),
that is a hardship that can be shared generally by other prop-
erties in the same zoning district and vicinity. However,
37
Brief for appellant at 17.
38
See, Eastroads, supra note 7; Rousseau, supra note 7; Verleysen, supra
note 35.
39
See, Eastroads, supra note 7; Rousseau, supra note 7; CCS Investors, LLC
v. Brown, 977 A.2d 301 (Del. 2009).
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Cite as 308 Neb. 63as discussed, the hardship in this case is not personal to the
Kreifels. The Kreifels’ hardship is that, due to the narrowness
and shape of their property, in combination with the place-
ment of preexisting structures, there is no other location on
their property to site the pen, which is a permitted principal
use. There is no evidence that this hardship is shared gener-
ally by other properties in the area. This assignment of error
is without merit.
CONCLUSION
The Kreifels’ variance is based on, within the meaning of
§ 23-168.03(1)(c), peculiar and exceptional practical difficul-
ties or exceptional and undue hardships. The district court did
not abuse its discretion or make an error of law in determining
that the narrowness or shape of the Kreifels’ property resulted
in sufficient hardship to justify upholding the board’s decision
to grant the variance.
Affirmed.