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Bruning v. City of Omaha Zoning Board of Appeals

Supreme Court of Nebraska

May 17, 2019

Sharon Bruning and Robert Bruning, wife and husband, appellants,
v.
City of Omaha Zoning Board of Appeals, appellee.

         1. Zoning: Appeal and Error. 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.

         2. ___: ___. 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.

         3. ___: ___. Where competent evidence supports the district court's factual findings regarding a zoning appeal, an appellate court will not substitute its factual findings for those of the district court.

         4. Zoning: Ordinances. Certain factual circumstances are by themselves insufficient to justify a finding of hardship, including the desire to build a larger building, the desire to generate increased profits, and where the applicant for a variance from a zoning regulation created his or her own hardships.

         5. ___: ___ . The general rule respecting the right of a zoning board of appeals to grant a variance from zoning regulations on the ground of unnecessary hardship is that it may not be granted unless the denial would constitute an unnecessary and unjust invasion of the right of property.

          Appeal from the District Court for Douglas County: W. Russell Bowie III, Judge.

          Diana J. Vogt, Jason M. Bruno, and James L. Schneider, of Sherrets, Bruno & Vogt, L.L.C., for appellants.

         [303 Neb. 147] Jennifer J. Taylor, Senior Omaha City Attorney, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Miller-Lerman, J.

         NATURE OF CASE

         After leasing their agricultural-zoned land near 163d and Fort Streets in Omaha, Nebraska (Property), to several commercial entities and others, Sharon Bruning and Robert Bruning unsuccessfully sought a variance from the requirements of Omaha's zoning code based on a claim of unnecessary hardship. The request for a variance was denied by the City of Omaha Zoning Board of Appeals (Board). The district court for Douglas County affirmed the decision of the Board. The Brunings appeal. Competent evidence supports the findings of the district court and its conclusion that the Brunings' situation did not warrant a variance under Neb. Rev. Stat. § 14-411 (Reissue 2012). The district court did not abuse its discretion or make an error of law when it upheld the Board's decision. We affirm.

         STATEMENT OF FACTS

         The following facts are taken from the record in this appeal. The Brunings own a 4.66-acre parcel of land located near 163d and Fort Streets in Omaha. The land is and has been zoned for ...


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