A void exists in the laws of Nebraska with respect to guidance for what constitutes sufficient hardship in granting a zoning variance. This void was clearly demonstrated in Rousseau v. Zoning Board of Appeals of Omaha. An examination of this lack of guidance in light of the policy of deference to zoning boards that has dominated variance decisions is necessary to understand why there has been so little guidance up to the present. The Nebraska Supreme Court has alluded to the reasons for such deference, stating that “[r]eview overbroad in scope would have the effect of substituting the judgment of a judge or jury for that of the [zoning board], thereby nullifying the benefits of legislative delegation to a specialized body.” Despite this policy of deference, a balance must be reached for deciding whether sufficient hardship does exist, as too much deference to the zoning boards can lead to detrimental consequences.
In Rousseau, the Nebraska Court of Appeals upheld variances for a front yard setback, a side yard setback, and a reduction in parking spaces around a proposed residential building, ruling that there was no abuse of discretion or error of law where the district court upheld the zoning board’s decision granting the variances. Elena Kerwin, the party seeking the zoning variance in Rousseau, sought to construct a building on a narrow lot in a residential neighborhood in Omaha, Nebraska, and variances were required for her to be able to build as she desired. The court of appeals looked to the established rules on variances that stemmed from previous Nebraska Supreme Court cases, and as there was no violation of any of those rules, the granting of the variances was affirmed.
Regarding hardship for zoning variances, the Nebraska Supreme Court has articulated only three rules in its decisions. In Part II, this Note will examine the history of the Nebraska Supreme Court decisions concerning hardship, laying the foundation for the rules that have thus far guided the issuing of zoning variances. The lack of guidance created by these existing rules is demonstrated in Rousseau, which provides an example of how the court of appeals is essentially limited to deferring to the decision of the zoning board. Part III analyzes how a policy of deference potentially impacts zoning and how, in order to give sufficient guidance to zoning boards and limit the potential for adverse consequences that can arise from too much deference, a new standard should be adopted that will preserve the flexibility necessary for zoning boards to function as intended.
Rousseau, along with the past decisions of the Nebraska Supreme Court, shows that current tests are insufficient for zoning boards of appeals to determine whether sufficient hardship exists to grant a variance. Thus, the deferential approach on appeal of decisions granting variances can easily lead to problems of corruption and violation of the spirit of the zoning ordinances. This Note therefore suggests a new test for zoning boards with respect to determining hardship for granting variances—a test that will follow from the previous decisions set forth by the Nebraska Supreme Court and protect the interests of individuals, neighborhoods, and communities.
Hardship and the Granting of Zoning Variances: A New Test in Light of Rousseau v. Zoning Board of Appeals, 17 Neb. App. 469, 764 N.W.2d 130 (2009),
89 Neb. L. Rev.
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