Rousseau v. Zoning Bd. of Appeals of Omaha

764 N.W.2d 130, 17 Neb. Ct. App. 469
CourtNebraska Court of Appeals
DecidedMarch 24, 2009
DocketA-08-453
StatusPublished
Cited by51 cases

This text of 764 N.W.2d 130 (Rousseau v. Zoning Bd. of Appeals of Omaha) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rousseau v. Zoning Bd. of Appeals of Omaha, 764 N.W.2d 130, 17 Neb. Ct. App. 469 (Neb. Ct. App. 2009).

Opinion

764 N.W.2d 130 (2009)
17 Neb. App. 469

Mark Owen ROUSSEAU, Appellant,
v.
ZONING BOARD OF APPEALS OF OMAHA, Nebraska, and Elena Kerwin, Appellees.

No. A-08-453.

Court of Appeals of Nebraska.

March 24, 2009.

*131 Marion F. Pruss, Omaha, for appellant.

Alan M. Thelen, Deputy Omaha City Attorney, for appellee Zoning Board of Appeals of Omaha.

Charles M. Bressman, Jr., of Anderson & Bressman Law Firm, P.C., L.L.O., Omaha, for appellee Elena Kerwin.

CARLSON, MOORE, and CASSEL, Judges.

CASSEL, Judge.

INTRODUCTION

Mark Owen Rousseau appeals from the judgment of the district court after a bench trial denying his request to reverse the decision of the Omaha Zoning Board of Appeals (Board). The Board granted Elena Kerwin three zoning variances, one of which amounts to at most a matter of inches. We conclude that the density of the existing development in the area where the lot in issue is located is sufficient to support the district court's determination that the additional variances were appropriate because of undue hardship.

BACKGROUND

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.

After initially making plans to build 11 total condominiums on the property, Kerwin decided to build a four-story, four-unit condominium that included an elevator. *132 Kerwin wanted to design a building in the old "federal" style with an interior that would look like a condominium found "in Chicago or New York." Kerwin designed this particular building to fit the needs of professionals coming from other parts of the country, who she believed did not generally like the housing in Omaha that was currently available.

Kerwin made changes in the project, working with an Omaha city planner to attempt to make the building comply with the Omaha Municipal Code. Kerwin had the project redesigned 11 times in an attempt to get it to comply with zoning regulations before deciding to seek a waiver. Kerwin decided that it would be impossible to accomplish her architectural goals and comply with the existing zoning ordinances and filed an appeal with the Board to seek variances. Her application stated that her grounds for seeking the variances were as follows:

Waiver of variance to front yard setback ([Omaha Mun.Code, ch. 55, art. VI, §] 55-246 [(1980)]) from 35 [feet] to 20 [feet] to bring proposed structure into alignment with adjacent buildings which average 19.33 [feet] on the north side of Davenport Street. Waiver of off-street parking requirement ([Omaha Mun. Code, ch. 55, art. XIV, §]55-734 [(2001)]) from 1.5 to 1.0 [parking stall] per unit (6 to 4 stalls total) due to innercity location with good access to existing bus routes and availability of traditional on-street parking locations[.]

On May 17, 2007, the Board heard Kerwin's application for variances. In addition to the two variances which Kerwin had initially requested on her application, the court considered a third variance that would allow Kerwin to decrease her side yard setback from 12 feet to 10 feet. Although the application did not specifically request this variance, the notice provided to the interested parties stated this and Kerwin's building plans as submitted to the Board indicated that this variance would be necessary. At the hearing, an attorney appeared on behalf of Rousseau, who owned the property directly west of Kerwin's lot, to oppose the application. At the conclusion of the hearing, the Board granted all three proposed variances.

Rousseau then filed a complaint in district court to seek a reversal of the Board's decision as to all three variances. On March 3, 2008, the parties tried this matter before the district court.

At trial, Kerwin admitted that it was possible to build a multiple-family residential building on the lot and still comply with zoning regulations. Nevertheless, Kerwin contended that the zoning regulations prohibited her from building the particular style of building that she desired to build. Kerwin adduced evidence that the zoning regulations from which she sought a variance were designed to control growth in more suburban areas.

Rousseau testified that he believed Kerwin's proposed building plans would decrease the value of his property. He also stated that Kerwin's failure to provide parking as per the zoning regulations would be problematic because there is limited parking available on the street.

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.

Rousseau timely appeals.

ASSIGNMENT OF ERROR

Rousseau's sole assignment of error is that the district court erred in determining *133 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.

STANDARD OF REVIEW

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. Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007). In reviewing a decision of the district court regarding a zoning appeal, the standard of review is whether the district court abused its discretion or made an error of law. Eastroads v. Omaha Zoning Bd. of Appeals, 261 Neb. 969, 628 N.W.2d 677 (2001). 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. Id.

ANALYSIS

Rousseau argues that Kerwin was unable to demonstrate sufficient hardship to justify the variances. Neb.Rev.Stat. § 14-411 (Reissue 2007) supplies the applicable standard governing the Board's power to grant variances from zoning ordinances. The applicable portion of § 14-411 states as follows:

Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinance, the board of appeals shall have the power in passing upon appeals, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.

Neb.Rev.Stat. § 14-413 (Reissue 2007) provides for an appeal from the Board's decision to the district court on the ground that the decision is illegal, and states in pertinent part as follows:

Any person or persons ...

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Cite This Page — Counsel Stack

Bluebook (online)
764 N.W.2d 130, 17 Neb. Ct. App. 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rousseau-v-zoning-bd-of-appeals-of-omaha-nebctapp-2009.