§ 14-411 — Zoning board of appeals; appeal; notice; hearing; powers of board

Nebraska § 14-411

• Jurisdiction: Nebraska
• Ch. 14: Cities of the Metropolitan Class

Text

The zoning board of appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it pursuant to section 14-409 and give due notice of such hearing to the parties and decide such appeal or other matter within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney. The zoning board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and shall make such order, requirement, decision, or determination as in its opinion ought to be made in the premises, and to that end shall have all the powers of the officer from whom the appeal is taken. Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinance, the zoning 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.

Legislative History

Source: Laws 1925, c. 45, § 8, p. 183; C.S.1929, § 14-411; R.S.1943, § 14-411; Laws 2022, LB800, § 141. Annotations: A property owner has standing to seek a variance from a zoning ordinance that, if strictly enforced, would adversely affect the owner's property rights or interests. Field Club v. Zoning Bd. of Appeals of Omaha, 283 Neb. 847, 814 N.W.2d 102 (2012). A prospective purchaser has standing to seek a variance from, or a change in, a zoning ordinance if the prospective purchaser has executed a purchase agreement subject to the grant of a variance or rezoning of the property. Similarly, the holder of an option to purchase property has standing to apply for a variance when the holder is bound to purchase the property if the variance is obtained or when the property owner anticipated that the option holder would seek the variance to complete the sale. Field Club v. Zoning Bd. of Appeals of Omaha, 283 Neb. 847, 814 N.W.2d 102 (2012). This section acts to stay, upon appeal, proceedings, not only in furtherance of the action appealed from, but also in related actions, if resolution of those related actions could alter the circumstances under which the original appeal was taken. Lamar Co. v. Omaha Zoning Bd. of Appeals, 271 Neb. 473, 713 N.W.2d 406 (2006). Due to the similarity between this section and section 19-910 when Frank v. Russell, 160 Neb. 354, 70 N.W.2d 306 (1955), was decided, Frank is applicable to decisions rendered under both statutes. Eastroads, L.L.C. v. Omaha Zoning Bd. of Appeals, 261 Neb. 969, 628 N.W.2d 677 (2001). Relief is required hereunder where a certificate of occupancy has been properly obtained and the certificate holder has incurred substantial expenses, commitments and obligations. A. C. Nelsen Enterprises, Inc. v. Cook, 188 Neb. 184, 195 N.W.2d 759 (1972). Ruling of zoning board of appeal was arbitrary. City of Omaha v. Cutchall, 173 Neb. 452, 114 N.W.2d 6 (1962). Board of appeals has power to give appropriate relief in hardship cases. Peterson v. Vasak, 162 Neb. 498, 76 N.W.2d 420 (1956). Zoning board of appeals has power on appeal to vary or modify the application of zoning regulations. Roncka v. Fogarty, 152 Neb. 467, 41 N.W.2d 745 (1950). A zoning board of appeals need not find a taking in order to grant a variance from a zoning regulation. Rousseau v. Zoning Bd. of Appeals of Omaha, 17 Neb. App. 469, 764 N.W.2d 130 (2009). Pursuant to this section, a zoning board of appeals is not precluded from granting a variance to a zoning regulation even though the regulation went in effect before the applicant purchased the property. Rousseau v. Zoning Bd. of Appeals of Omaha, 17 Neb. App. 469, 764 N.W.2d 130 (2009).