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303 Nebraska Report

BRUNING v. CITY OF OMAHA ZONING BD. OF APPEALS

Cite as 303 Neb. 146

Sharon Bruning and Robert

wife and husband, appellants, 

City of Omaha Zoning B

of Appeals, appellee

___ N.W.2d ___

Filed May 17, 2019. No. S-18-214.

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. Affi

Diana J. Vogt, Jason M. Bruno, and James L. Schneider, of 

Sherrets, Bruno & Vogt, L.L.C., for appellants.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/24/2019 09:07 AM CDT
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BRUNING v. CITY OF OMAHA ZONING BD. OF APPEALS

Cite as 303 Neb. 146

Jennifer J. Taylor, Senior Omaha City Attorney, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Miller-Lerman,

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 agricultural use since before the Brunings acquired 

the land in 1979.

In 2015, after receiving a complaint, the City of Omaha 

Planning Department (City) investigated and concluded that 

the Property was being used for activities not permitted by 

ordinance in an agricultural district. Specifically, the City 

found that the Property was being leased for use as landscaping and boiler repair businesses, as well as automobile storage. The Brunings thereafter applied for a variance requesting 

waivers which, if granted, would allow them to deviate from 

zoning requirements and continue these uses of the land. The 
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Cite as 303 Neb. 146

variance sought several waivers from the requirements of 

chapter 55 of the Omaha Municipal Code, specifically: Omaha 

Mun. Code, ch. 55, art. V, §§ 55-84 (2010) and 55-87 (2002); 

Omaha Mun. Code, ch. 55, art. XIII, § 55-715 (2014); and 

Omaha Mun. Code, ch. 55, art. XIV, §§ 55-734 (2012) and 

55-740(f) (2013). The request also included waivers from the 

requirements regarding maximum building coverage, maximum impervious surface coverage, street yard landscaping, 

perimeter parking lot landscaping, and the required number of 

parking stalls.

The Brunings submitted the following information in support 

of their unsuccessful request for waivers. When the Brunings 

purchased the land in 1979, it was zoned for agricultural use 

and had been operated as a farm for over 100 years. The 

Property contained a house, a barn, and several other outbuildings. The Brunings operated seeding businesses on the land 

from 1979 until 2004 and employed 25 to 30 regular workers. 

During this time, the Brunings replaced several buildings and 

added new buildings for their businesses. They also paved a 

significant portion of the property and altered the grading to 

improve drainage. They claimed that each time they erected 

a new building, they sought permits from the City but were 

told that they did not need permits, because the buildings were 

used for storing supplies for the seeding businesses, a permitted agricultural use. The seeding companies performed mowing, seeding, landscaping, tree removal, erosion control, and 

similar services.

In 2004, the Brunings sold the seeding businesses. The 

purchaser of the seeding companies thereafter rented three 

buildings on the land from the Brunings to use as storage for 

the businesses. Over time, the businesses expanded, and the 

Brunings referred to them collectively as a “lawn and landscaping business.” The Brunings continued to rent buildings to the 

lawn and landscaping business and, in addition, began renting 

other buildings to other enterprises, including seeding, lawn 

care, and landscaping businesses. Other than office space for 
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BRUNING v. CITY OF OMAHA ZONING BD. OF APPEALS

Cite as 303 Neb. 146

two office workers, the rented buildings were utilized for storage purposes, and the businesses receive no customers at the 

buildings. The Brunings also leased two buildings for personal 

private car collections and one for storage of vehicles and 

equipment of a local boiler repair business, which performed 

no repair work on site. The Brunings have completed many 

improvements to the buildings and land. The property is neat 

and orderly, and the Brunings mow regularly.

In both their request for a variance and appeal to the Board 

from the denial thereof, the Brunings primarily argued that 

because the Property had been used in essentially the same 

manner since 1979, and they had invested significant money 

in improvements to support their business activities without 

objection by the City, they suffered a hardship. The Brunings 

asserted that the only change in the use of the land was that the 

buildings previously used by the Brunings were now merely 

leased to others to use for similar purposes. Several adjoining 

residential neighbors supported the Brunings’ application.

The Board held four hearings on the Brunings’ request for a 

variance in February, April, May, and June 2017. The City and 

the Brunings attempted to resolve the issues, causing the matter 

to be postponed several times. The Board toured the Property 

during the pendency of the appeal. During this process, the 

City generally advised the Brunings that their current use of 

the land would more properly be characterized as industrial 

use, but that it would be unlikely that the land could be rezoned 

as industrial, because the land surrounding the Property had 

developed into residential use, and that under the City’s master 

plan, the Property is ultimately targeted for residential development. The record shows that the Brunings attempted to reach 

an agreement with the City which would allow them to continue using the land as currently altered. The Board voted to 

deny the variance on June 8, 2017.

The Brunings appealed the decision to the district court 

for Douglas County under Neb. Rev. Stat. § 14-413 (Reissue 

2012). On February 5, 2018, the district court found that there 
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BRUNING v. CITY OF OMAHA ZONING BD. OF APPEALS

Cite as 303 Neb. 146

was substantial evidence in the record to support the decision and affirmed the Board’s denial. In reaching its decision, 

the district court noted that although the Property is zoned 

agricultural, the Brunings unilaterally altered the use of the 

Property by leasing buildings to others, a commercial activity. In its discussion, the district court also noted that the 

appeals process with the Board lasted 4 months and that all 

persons were able to speak, present evidence, and consult 

City officials.

The Brunings appeal.

ASSIGNMENTS OF ERROR

The Brunings claim, summarized and restated, that the district court erred when it found that the Board’s decision to deny 

a variance was supported by the record and was not arbitrary 

and capricious. Specifically, they assert they were entitled to a 

variance because they had invested in the improvements and 

would suffer unnecessary hardship and lost income if they 

return the land to agricultural use.

STANDARDS OF REVIEW

[1-3] 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. Lamar Co. v. Omaha Zoning Bd. of 

Appeals, 271 Neb. 473, 713 N.W.2d 406 (2006). 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. Id. Where competent evidence supports the district court’s factual findings, an appellate court will not substitute its factual findings for those of 

the district court. Eastroads v. Omaha Zoning Bd. of Appeals, 

261 Neb. 969, 628 N.W.2d 677 (2001).

ANALYSIS

The Brunings claim that the district court erred when it 

affirmed the decision of the Board which had denied their 
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Cite as 303 Neb. 146

request for a variance. Relying on § 14-411, they contend that 

they were entitled to a variance because carrying out the strict 

letter of the ordinance would cause “unnecessary hardships.” 

Because we determine that the district court did not err, we 

reject this assignment of error.

Section 14-411 defines the authority of zoning boards of 

appeal to grant a variance in cities of the metropolitan class, 

such as Omaha. See Eastroads v. Omaha Zoning Bd. of Appeals, 

supra. Section 14-411 provides, in relevant part:

Where there are practical difficulties or unnecessary 

hardships in the way of carrying out the strict letter of 

such ordinance, the [Board] 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.

As noted, the Brunings’ claim relies on “unnecessary hardships,” which generally address a use prohibited by an ordinance, and they do not claim “practical difficulties,” which 

generally address improvements which conflict with the 

restrictions. See, Bowman v. City of York, 240 Neb. 201, 482 

N.W.2d 537 (1992); 3 Sara C. Bronin & Dwight H. Merriam, 

Rathkopf’s The Law of Zoning and Planning § 58:4 (4th 

ed. 2019).

[4] Our case law under § 14-411 and its predecessors 

was summarized in Rousseau v. Zoning Bd. of Appeals of 

Omaha, 17 Neb. App. 469, 478, 764 N.W.2d 130, 136 (2009), 

wherein the Nebraska Court of Appeals stated: “Certain factual circumstances are by themselves insufficient to justify 

a finding of hardship.” These include the desire to build 

a larger building, the desire to generate increased profits, 

and where the applicant created his or her own hardships. 

Rousseau v. Zoning Bd. of Appeals of Omaha, supra. See, 

Bowman v. City of York, supra; Alumni Control Board v. City 
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of Lincoln, 179 Neb. 194, 137 N.W.2d 800 (1965); Frank v. 

Russell, 160 Neb. 354, 70 N.W.2d 306 (1955). In this case, 

the Brunings’ assertion that they are entitled to a variance 

due to unnecessary hardship implicates the latter two scenarios recited above, i.e., the desire for increased profits and 

self-created hardships.

[5] The general rule respecting the right of the Board to 

grant a variance from zoning regulations on the ground of 

unnecessary hardship is that “it may not be granted . . . [u]nless 

the denial would constitute an unnecessary and unjust invasion 

of the right of property.” Frank v. Russell, 160 Neb. at 362-63, 

70 N.W.2d at 312. But it has been observed that the purpose of 

zoning would be defeated if every desire to remove restrictions 

on use justified a variance. One treatise states:

Every zoning ordinance imposes some degree of hardship on all property to which it applies, since the restrictions of the ordinance limit the uses to which the property 

may be put. This degree of hardship is implicit in zoning; 

the restrictions on each parcel of property are compensated for by similar restrictions on neighboring property. 

The inability of each property owner to put his property 

to any desired use, however profitable to him and undesirable as far as his neighbors are concerned, is balanced by 

the fact that his neighbor’s property cannot be so used as 

to injure his. Such hardship, consistent with the hardship 

imposed on all other pieces of property in the district, is 

not a ground for a variance.

3 Bronin & Merriam, supra, § 58:5 at 58-17.

With respect to maximizing profits, we have stated that 

although maximizing profits is an “understandable, and even 

laudable, goal,” it does not provide a basis for “a variance from 

zoning regulations with which the rest of the community must 

live.” Bowman v. City of York, 240 Neb. at 213, 482 N.W.2d at 

545. See Frank v. Russell, supra.

With respect to self-created hardships, one treatise explains 

that they are those which “result from affirmative acts of the 
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property owner and which could have been avoided through a 

different course of action.” 2 Patricia E. Salkin, American Law 

of Zoning § 13:16 at 13-133 to 13-134 (5th ed. 2018). A selfcreated hardship arises, for example, when a property owner 

establishes a structure or use not permitted under the zoning 

ordinance and then seeks a variance after the fact to legitimize 

the property use. 2 Salkin, supra. Self-created hardship “is 

almost always a bar to relief” where a property owner seeks 

an “‘after the fact’” variance. Id. at 13-134. We have similarly 

stated that “‘[i]t would certainly be unreasonable to allow one 

to create his own hardship and difficulty and take advantage of 

it to the prejudice of innocent parties.’” Eastroads v. Omaha 

Zoning Bd. of Appeals, 261 Neb. 969, 978, 628 N.W.2d 677, 

684 (2001) (quoting Frank v. Russell, supra).

Our review in this case is narrowly limited to whether the 

district court abused its discretion or committed an error of law 

when it affirmed the Board’s decision to deny the variance. See 

Lamar Co. v. Omaha Zoning Bd. of Appeals, 271 Neb. 473, 

713 N.W.2d 406 (2006). Where competent evidence supports 

the district court’s factual findings, an appellate court will not 

substitute its factual findings for those of the district court. 

Eastroads v. Omaha Zoning Bd. of Appeals, supra.

In this case, the district court found “substantial evidence 

in the record” to support the Board’s decision. The record 

includes recommendations from the City, numerous exhibits, 

input from stakeholders, and testimony offered at four hearings. The Board discussed the issues extensively, including life 

safety, public works, zoning issues, and proposed solutions, 

and it toured the Property during the process. Although the 

record indicates that the Brunings received support from some 

of their neighbors, comments by the Board members indicate 

concern that granting waivers would be a significant deviation 

from the zoning plan, and not merely reasonable adjustments. 

The Board members indicated they were concerned the existing use was not consistent with the “spirit of the ordinance.” 

See § 14-411.
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In its order, the district court analyzed the issues as follows:

The property in question is zoned agricultural. . . . 

The [Brunings] have unilaterally altered the permissible 

use of the property by leasing portions of the buildings to others—essentially a commercial use. Even 

though the building[s] were used by the lessees for the 

same purpose[s] as the [Brunings], the permissible use 

changed.

. . . [The Brunings] complain that they will be denied 

the income from the rents they had been receiving, but 

those rents were due to an impermissible use of the property. A denial of [the Brunings’] request for a variance 

does not change the ability of the [Brunings] to make full 

use of their property as it was originally intended.

Competent evidence supports these findings by the district 

court.

In Rousseau v. Zoning Bd. of Appeals of Omaha, 17 Neb. 

App. 469, 478-79, 764 N.W.2d 130, 137 (2009), the Court of 

Appeals noted the roles of the zoning boards and the courts in 

the context of granting or denying variances and stated:

Generally, it is the zoning board of appeals’ duty, and 

not the function of a court, to make this kind of decision. 

The Legislature has granted zoning boards of appeals 

significant leeway in making decisions and has required 

district courts to uphold a board’s decision, barring illegality, insufficient evidentiary support, or an arbitrary, 

unreasonable, or clearly wrong decision. See Eastroads v. 

Omaha Zoning Bd. of Appeals[, supra]. Specifically, the 

Supreme Court has explained that administrative agencies 

including the zoning board of appeals provide “expertise 

and an opportunity for specialization unavailable in the 

judicial or legislative branches. They are able to use 

these skills, along with the policy mandate and discretion entrusted to them by the legislature, to make rules 

and enforce them in fashioning solutions to very complex 

problems. Thus, their decisions are not to be taken lightly 
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or minimized by the judiciary.” Id. at 979, 628 N.W.2d at 

684 (quoting Bowman v. City of York, supra).

For completeness, we note that the Brunings are not deprived 

of all beneficial or reasonable use of their agricultural-zoned 

land such as would constitute a legally cognizable hardship. 

The denial of their request for a variance is not an unjust invasion of the right of property. See Frank v. Russell, 160 Neb. 

354, 70 N.W.2d 306 (1955). Omaha Mun. Code § 55-84 lists 

the use types that are permitted in the agricultural district, 

which include but are not limited to horticulture, single family 

residential, park and recreation services, kennels, and stables. 

Omaha Mun. Code, ch. 55, art. V, §§ 55-85 (2002) and 55-86 

(2008), list the use types that are allowed, subject to approval 

of a conditional or special use permit, including but not limited to campgrounds, religious assembly, agricultural sales and 

service, sports and recreation, and veterinary services. When 

the Brunings developed and began leasing the Property to 

others, ultimately expanding to numerous separate businesses 

and uses, their activities became incompatible with agricultural use.

We find no abuse of discretion or error of law when the district court affirmed the decision of the Board which had denied 

the variance.

CONCLUSION

The Brunings developed the Property, their agriculturalzoned land, over the course of many years, eventually allowing 

commercial activities by others on the Property. On appeal, 

the district court found that the decision of the Board to deny 

the request for a variance was not illegal and that there was 

substantial evidence in the record to support the decision of the 

Board. Substantial evidence supports the district court’s factual 

findings, and we find no errors of law or abuse of discretion by 

the district court. Accordingly, we affirm.

Affirmed