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Rodehorst Bros. v. City of Norfolk Board of Adjustment

Supreme Court of Nebraska

March 28, 2014

RODEHORST BROTHERS, APPELLANT,
v.
CITY OF NORFOLK BOARD OF ADJUSTMENT, APPELLEE

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Appeal from the District Court for Madison County: JAMES G. KUBE, Judge.

Glenn A. Rodehorst for appellant.

Clint Schukei, Norfolk City Attorney, for appellee.

WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. HEAVICAN, C.J., participating on briefs.

OPINION

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[287 Neb. 780] Connolly, J.

I. SUMMARY

Rodehorst Brothers, a partnership (Rodehorst), owns a fourplex 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 [287 Neb. 781] 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 continue and that there was no " taking" of Rodehorst's property. We affirm.

II. BACKGROUND

Rodehorst applied for several building permits for its apartment 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

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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 unoccupied. 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 essentially 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 " ...


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