§ 23-168.04 — Board of adjustment; decision; appeal; procedure

Nebraska § 23-168.04

• Jurisdiction: Nebraska
• Ch. 23: County Government and Officers

Text

Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any officer, department, board, or bureau of the county, may present to the district court for the county a petition, duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. The petition must be presented to the court within fifteen days after the filing of the decision in the office of the board of adjustment. Upon the filing of such petition a summons shall be issued and be served upon the board of adjustment together with a copy of the petition, and return of service shall be made within four days after the issuance of the summons. Within ten days after the return day of the summons, the county board shall file an answer to the petition which shall admit or deny the substantial averments of the petition and matters in dispute as disclosed by the petition. The answer shall be verified in like manner as required for the petition. At the expiration of the time for filing the answer, the court shall proceed to hear and determine the cause without delay and shall render judgment according to law. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Appeal to the district court shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order. Any appeal from such judgment of the district court shall be prosecuted in accordance with the general laws of the state regulating appeals in actions at law.

Legislative History

Source: Laws 1967, c. 117, § 11, p. 374. Annotations: The party appealing the board of adjustment's zoning decision to district court must specify the grounds of the illegality. Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment, 308 Neb. 63, 952 N.W.2d 674 (2020). When it comes to the determination of whether a landowner will experience sufficient hardship to justify a variance, the decision of the board of adjustment carries significant weight. Dolezal-Soukup v. Dodge Cty. Bd. of Adjustment, 308 Neb. 63, 952 N.W.2d 674 (2020). Verification of a petition under this section is a purely procedural direction which is formal but does not go to the essence of the law with regard to requirements for jurisdiction of the courts. Citizens Opposing Indus. Livestock v. Jefferson Cty., 269 Neb. 725, 695 N.W.2d 435 (2005). The specific statutory procedure for appealing local administrative decisions to a board of adjustment foreclosed a landowner's ability to appeal by a petition in error the county board of supervisors' denial of a conditional use permit. Mogensen v. Board of Supervisors, 268 Neb. 26, 679 N.W.2d 413 (2004). Board's only statutory power being to grant zoning variances resolution purporting to grant exemption construed to grant variance and action presumed correct until changed by court, and requirement of immediate compliance proper. Adler v. Lynch, 415 F.Supp. 705 (D. Neb. 1976).