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308 Nebraska Reports

DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT

Cite as 308 Neb. 63

Carla Dolezal-Soukup, appellant, v. Dodge 

County Board of Adjustment and Joseph 

Kreifels and Teri Kreifels, husband 

and wife, appellees.

___ N.W.2d ___

Filed December 31, 2020. No. S-20-295.

1. Zoning: Evidence: Appeal and Error. A district court may disturb 

a decision of a board of adjustment if the decision was illegal or is 

not supported by the evidence and is thus arbitrary, unreasonable, or 

clearly wrong.

2. Zoning: Evidence. In deciding whether a board of adjustment’s decision is supported by the evidence, the district court shall consider any 

additional evidence it receives.

3. Zoning: Courts: Appeal and Error. In appeals involving a decision of 

a board of adjustment, an appellate court reviews the decision of the district court, and irrespective of whether the district court took additional 

evidence, the appellate court is to decide if, in reviewing a decision of a 

board of adjustment, the district court abused its discretion or made an 

error of law.

4. Appeal and Error. 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.

5. Zoning: Appeal and Error. The party appealing the board of adjustment’s decision to district court must specify the grounds of the 

illegality.

6. Zoning. When it comes to the determination of whether a landowner 

will experience sufficient hardship to justify a variance, the decision of 

a board of adjustment carries significant weight.

7. ____. The financial situation or pecuniary hardship of a single owner 

affords no adequate grounds for granting a variance from a zoning 

regulation.

Nebraska Supreme Court Online Library

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

03/19/2021 09:09 AM CDT
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8. ____. As a general rule, hardship that is personal to the property owner 

will not support the grant of a variance.

9. Zoning: Proof. The applicant for a variance must show that the property 

is in and of itself unusual in a manner which is different from the nature 

of surrounding properties and relates to the hardship complained of and 

that granting a variance to take this into account would not substantially 

affect the zoning plan.

10. Zoning. A self-imposed hardship exists where a party comes to the 

restricted subject property with a particular unpermitted use in mind and 

mindful of the impossible area restrictions for that use. By contrast, a 

hardship is not self-imposed if it results from inherent and preexisting 

characteristics of the property.

11. ____. A self-imposed hardship is not a per se bar to a variance. Rather, a 

self-imposed hardship is a factor for the regulatory authority to consider 

when deciding whether or not to grant the variance.

Appeal from the District Court for Dodge County: Geoffrey 

C. Hall, Judge. Affirmed.

David V. Drew, of Drew Law Firm, P.C., L.L.O., for 

appellant.

Robert S. Keith and Alexis M. Wright, of Engles, Ketcham, 

Olson & Keith, P.C., for appellee Dodge County Board of 

Adjustment.

Spencer B. Wilson and David C. Mitchell, of Yost, 

Schafersman, Lamme, Hillis, Mitchell, Schulz & Hartmann, 

P.C., for appellees Joseph Kreifels and Teri Kreifels.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

Carla Dolezal-Soukup appeals the order of the district court, 

which approved the granting of a variance for a 4-H pigpen 

built in violation of county setback requirements. We conclude 

there is competent evidence in the record which supports the 

district court’s factual findings. The district court did not abuse 

its discretion or make an error of law in upholding the decision 

to grant a variance. We affirm.
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT

Cite as 308 Neb. 63

BACKGROUND

Since 2012, Joseph Kreifels and Teri Kreifels have owned 

approximately 5.15 acres of land in the A-3 agriculturaltransitional zoning district of Dodge County, Nebraska. The 

property is located on the north side of County Road O, east 

of Highway 275, in Nickerson, Nebraska. The lot is triangle 

shaped. The Kreifels’ residence and two steel sheds, which 

were in existence at the time the Kreifels purchased the property, are located in the lot’s narrow, south corner. The ground 

is flat in the south with a downgrade to the north and west. The 

lot’s wider north edge contains irrigated crops. The Kreifels 

have a crop lease with their neighbor farmer to the north, 

Marlin Brabec, for $4,800 annually. Brabec owns an irrigation pivot which crosses through the northwest corner of the 

Kreifels’ lot.

In the spring of 2017, the Kreifels built an L-shaped, 32- by 

16-foot pen on the east side of their property. The fenced pen 

is segmented into different portions, with one portion covered 

with a portable shed, another portion with a cement floor, and 

a third portion consisting of dirt. The Kreifels built the pen so 

their children can participate in the 4-H program “put on by 

the University of Nebraska Extension Office,” which program 

allows the children to learn hard work and responsibility for 

animals and prepares them to eventually work in agriculture. 

Each year since 2017, the Kreifels have raised six or fewer 

pigs from the beginning of April through the end of August 

until the pigs are shown at county or state fairs and then sold. 

The pen is not used for commercial purposes and is not financially profitable for the Kreifels.

Since 2003, Dolezal-Soukup has owned the 10.03-acre, 

rectangle-shaped lot east of the Kreifels. Article 14 of the 

Dodge County zoning regulations covers A-3 agriculturaltransitional districts. Section 1 of article 14 covers “Permitted 

Principal Uses,” and subsection 1.9 covers “Private Kennels.” 

For purposes of this dispute, the parties have stipulated that 

subsection 1.9 applies to the 4-H pen. Subsection 1.9 permits 
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the use of the pen provided that the pen is located at least 

100 feet from the property line and 300 feet from any neighboring residence. The Kreifels’ pen is located approximately 

30 feet from the property line shared with Dolezal-Soukup, 

200 feet from Dolezal-Soukup’s residence, and 175 feet from 

the Kreifels’ residence.

Dolezal-Soukup filed a complaint regarding the pen with the 

Dodge County zoning department. The Dodge County zoning 

administrator issued a letter to the Kreifels notifying them that 

their pen is sited in violation of county setback requirements. 

As a result, the Kreifels sought a variance from the Dodge 

County Board of Adjustment. The request stated that when the 

Kreifels built the pen, at a cost of $2,600, they were not aware 

of the setback requirements; that they thought the pen would 

not cause disruption, because it is not in view of any neighboring homes; that they kept the facility clean with regular power 

washing and changing of pig bedding; and that when they saw 

rain in the forecast, they closed off access to the dirt area to 

reduce any mess or odor. They estimated the cost of relocating the pen would be between $5,000 and $6,000, due to dirt, 

concrete, and fencing expenses.

The zoning administrator, on behalf of the board of adjustment, publicly notified all adjoining property owners that the 

board would hold a public hearing on September 21, 2017, 

to consider the Kreifels’ request for a variance. Prior to the 

hearing, members of the board personally viewed the properties, reviewed photographs of the Kreifels’ property taken by 

the zoning administrator, and considered a letter from Brabec 

which supported the Kreifels’ request.

At the hearing, Joseph stated that the site for the pen was 

chosen with the best interests of the animals in mind and that 

if the pen were relocated to the west, there would be a lack 

of airflow due to the surrounding buildings. He stated that 

relocating the pen to the north would require altering the dirt 

on the cropland, which would cause water to run off from the 

Kreifels’ buildings onto Brabec’s property. Dolezal-Soukup 
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stated that the pen has an unpleasant smell, attracts flies, 

and has a metal self-feeder, which produces a constant banging noise.

Members of the board complimented the pen’s cleanliness. 

At the close of the hearing, in a 5-0 decision, the board granted 

the variance. The board agreed that “there’s not really a place 

on their property that they could put [the pen] without getting 

a variance.” A form attached to the minutes for the hearing 

reflects that the board granted the variance “due to the drainage 

issues.” The board specifically found that (1) strict application of the regulation would produce undue hardship; (2) such 

hardship is not shared by other properties in the same zoning 

district and vicinity; (3) authorizing the variance will not be a 

substantial detriment to adjacent property and will not change 

the character of the district; (4) granting the variance is based 

on demonstrable and exceptional hardship, as distinguished 

from convenience, profit, or caprice; and (5) the property and 

its intended use are not of a general or a recurring nature so 

as to make adopting an amendment to the general regulation 

reasonably practicable.

Dolezal-Soukup appealed the board’s decision to the district court for Dodge County. Dolezal-Soukup alleged in her 

petition and amended petition that the decision of the board 

of adjustment was illegal, on the specific grounds that (1) the 

Kreifels would not have experienced exceptional hardship; (2) 

there are alternative locations for the pen on the property, making relocating the pen merely an inconvenience and financial 

burden, which would not merit a variance; (3) any hardship 

experienced by the Kreifels was not created by exceptional 

narrowness, shallowness, or shape of their property at the time 

of the adoption of the zoning regulations; and (4) authorizing 

a variance will be of substantial detriment to Dolezal-Soukup’s 

adjacent property.

On September 4, 2019, at the hearing on Dolezal-Soukup’s 

appeal, the court received exhibits and heard testimony from 

the zoning administrator, Dolezal-Soukup, Joseph, and Teri. 
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT

Cite as 308 Neb. 63

The zoning administrator described the pen as “a clean cement 

slab [with] fences around it, not a very big slab, not [a] very 

big pen.” Dolezal-Soukup testified that she can smell the 

pigs from her house; that when the pigs eat, the metal selffeeder sounds like “a garbage can lid slamming down”; and 

that the pen has artificial lights, which cause the pigs to eat 

at night. On cross-examination, Dolezal-Soukup testified that 

she maintains five horses on her property year round, there 

is a tree line which separates the pen from her residence, and 

her property is bordered on the south by County Road O, near 

Highway 275.

The court heard testimony regarding two possible alternative 

locations for the pen. Joseph testified that neither alternative 

is workable. The first alternative is located in the cropland. 

Joseph testified that the farm ground “drains to the north and a 

little bit to the west.” Due to the slope of the lot, relocating the 

pen would require moving significant dirt into the field, which 

would create drainage issues for Brabec’s property, interfere 

with Brabec’s irrigation pivot, limit crop production, and result 

in the termination of the crop lease.

The second alternative is located on the west side of the two 

steel sheds north of the Kreifels’ residence. Joseph testified this 

location would require a variance due to the narrow dimensions of the lot; the pen would be located within 100 feet of 

the western property line. He stated that the sheds would limit 

airflow to the pigs and subject them to heat exposure due to 

the sun’s reflection off the steel sheds and that the sheds would 

block the view of the pen from the family home, which would 

create safety concerns due to the inability to monitor the children as they tend to the 250-to-300-pound pigs.

Teri testified that neither the pig smell nor the feeding noise 

affect her family when they sleep with the windows open in 

the spring and summer. She explained that the lights are heating lamps, located inside the portable shed, used for a short 

period of time in the spring when the pigs are young. She has 

not noticed an inordinate amount of flies on her property since 

the installation of the pen.
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT

Cite as 308 Neb. 63

Following the hearing, the court issued a written order 

affirming the board’s decision to grant a variance. The court 

reviewed the testimony and exhibits and found that DolezalSoukup failed to submit any evidence to show that the board’s 

decision was illegal or clearly wrong. The court cited the testimony of Joseph stating that there are no feasible alternative 

locations for the pen. The court found the location to the west 

of the steel sheds was not viable, because (1) that site would 

still require a variance, (2) the limited airflow and excessive 

heat at that location is dangerous to the health of pigs, and (3) 

the sheds block the view of the pen from the home creating 

a safety issue for the children. The court found the alternative site in the cropland would create “significant additional 

expense” for the Kreifels, including $6,000 in costs for relocating the pen and the annual loss of $4,800 due to termination of the lease. The court further found that this site would 

“require that additional dirt be brought on to the property and 

that the ground be re-graded to prevent water runoff problems, 

which could lead to further legal disputes and potential additional costs.”

In concluding its order, the court stated that “[i]t is important to note that the [b]oard determined that a hardship specifically related to the shape of the Kreifels’ parcel” and that “the 

variance was granted after a showing of exceptional hardship 

by the Kreifels and . . . was not based on convenience, profit, 

or caprice.” The court found that based on the evidence and the 

relevant statutes and regulations, the board’s decision to grant 

the variance was “reasonable and well considered and within 

the discretion of the [b]oard.”

Dolezal-Soukup appeals. We moved the case to our docket 

on our own motion.

ASSIGNMENTS OF ERROR

Dolezal-Soukup assigns, restated and consolidated, that the 

district court erred in affirming the board of adjustment’s 

decision to grant the variance, because (1) the Kreifels would 

not suffer an undue or exceptional hardship and (2) any such 
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hardship would have been shared by others in the same zoning district and vicinity. Dolezal-Soukup further assigns the 

court erred in failing to find that the Kreifels created their 

own hardship.

STANDARD OF REVIEW

[1,2] A district court may disturb a decision of a board of 

adjustment if the decision was illegal or is not supported by the 

evidence and is thus arbitrary, unreasonable, or clearly wrong. 1

In deciding whether a board’s decision is supported by the evidence, the district court shall consider any additional evidence 

it receives. 2

[3,4] In appeals involving a decision of a board of adjustment, an appellate court reviews the decision of the district 

court, and irrespective of whether the district court took additional evidence, the appellate court is to decide if, in reviewing 

a decision of a board of adjustment, the district court abused 

its discretion or made an error of law. 3 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. 4

ANALYSIS

Dolezal-Soukup claims that the district court erred in affirming the board of adjustment’s decision to grant the variance. 

Specifically, Dolezal-Soukup argues that under Neb. Rev. Stat. 

§ 23-168.03 (Reissue 2012), the board erred in finding that 

strict application of the setback requirements would result in 

“peculiar and exceptional practical difficulties” “or exceptional 

and undue hardships” for the Kreifels.

1 Hanchera v. Board of Adjustment, 269 Neb. 623, 694 N.W.2d 641 (2005).

2 Id.

3 Id.

4 Id.
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DOLEZAL-SOUKUP v. DODGE CTY. BD. OF ADJUSTMENT

Cite as 308 Neb. 63

Statutory Framework for County 

Board of Adjustment

Section 23-168.03(1)(c) authorizes a county board of adjustment to grant a variance from a zoning regulation only if strict 

application of the regulation, because of the exceptional narrowness, shallowness, or shape of the property existing at the 

time of the enactment of the regulation, would result in peculiar and exceptional practical difficulties to, or exceptional and 

undue hardships upon, the owner. 5 Under § 23-168.03(1)(c), 

a variance is authorized only if such relief may be granted 

without substantial detriment to the public good and without 

substantially impairing the intent and purpose of any zoning 

regulations. Additionally, under § 23-168.03(1)(c), no variance 

shall be authorized unless the board of adjustment finds:

(i) The strict application of the resolution would produce 

undue hardship; (ii) such hardship is not shared generally by other properties in the same zoning district and 

the same vicinity; (iii) the authorization of such variance 

will not be of substantial detriment to adjacent property 

and the character of the district will not be changed by 

the granting of the variance; and (iv) the granting of 

such variance is based upon reasons of demonstrable and 

exceptional hardship as distinguished from variations for 

purposes of convenience, profit or caprice.

Section 23-168.03(1)(c) requires the board to support 

any grant of a variance with evidence-based findings with 

respect to each of the four factors enumerated above. Section 

23-168.03(1)(c)(iv) defines “undue burden” as “demonstrable and exceptional hardship as distinguished from variations 

for purposes of convenience, profit or caprice.” 6 In addition, 

5 See, Barrett v. City of Bellevue, 242 Neb. 548, 495 N.W.2d 646 (1993) 

(interpreting prior version of Neb. Rev. Stat. § 19-910 (Reissue 2012 & 

Supp. 2019)); Bowman v. City of York, 240 Neb. 201, 482 N.W.2d 537 

(1992) (same); City of Battle Creek v. Madison Cty. Bd. of Adjust., 9 Neb. 

App. 223, 609 N.W.2d 706 (2000).

6 See Bowman, supra note 5.
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under § 23-168.03(2), a variance is not authorized unless the 

board finds that the condition or situation of the property concerned or the intended use of the property is not of so general 

or recurring a nature as to make reasonably practicable the 

formulation of a general regulation to be adopted as an amendment to the zoning regulations.

[5,6] Neb. Rev. Stat. § 23-168.04 (Reissue 2012) provides for an appeal from the board’s decision to the district court on the ground that the decision is illegal. Section 

23-168.04 requires the party appealing the board’s decision to 

district court to “specify[] the grounds of the illegality.” The 

Legislature’s requirement that district courts are to uphold a 

board of adjustment’s decision absent illegality makes clear 

that, when it comes to the determination of whether a landowner will experience sufficient hardship to justify a variance, the decision of a board of adjustment carries significant 

weight. As this court stated in Bowman v. City of York,

 7 boards 

of adjustment provide

“a high level of 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 or minimized by the judiciary.”

Undue Hardship

[7] Dolezal-Soukup contends that strict application of the 

setback requirements would not result in undue hardship to 

the Kreifels, because the Kreifels merely desire to have a 

4-H pen on their land and to avoid the costs of removing 

and reconstructing the pen in a location that does not violate 

7 Id. at 210, 482 N.W.2d at 544. See, also, Eastroads v. Omaha Zoning Bd. 

of Appeals, 261 Neb. 969, 628 N.W.2d 677 (2001); Rousseau v. Zoning 

Bd. of Appeals of Omaha, 17 Neb. App. 469, 764 N.W.2d 130 (2009).
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the zoning setback requirements. She argues that because the 

pen could have been constructed in an alternative location, 

the only hardship would be financial in nature. The financial 

situation or pecuniary hardship of a single owner affords 

no adequate grounds for granting a variance from a zoning regulation. 8

In this court’s 1955 decision in Frank v. Russell,

 9 property owners sought a variance after commencing construction 

of a residential building in violation of a zoning ordinance. 

Because the owners’ building was designed to set back 27 feet 

from the front lot line, rather than the required 40 feet, the 

city engineer halted the construction. Pursuant to § 19-910, 

which defines the authority of boards of adjustment in cities 

of the first and second class and villages to grant a variance, 

the owners filed a petition for a variance with the city board 

of adjustment. The board granted a variance, and the district 

court affirmed.

On appeal in Frank, we analyzed the five factors under the 

ordinance required for a variance, which were that the variation (1) must be minor, (2) may not violate the spirit of the 

ordinance, (3) may not interfere with public safety or welfare, 

(4) may not abridge substantial justice, and (5) must relieve 

practical difficulties or unnecessary hardships. We found that 

the owner’s 13-foot encroachment on the otherwise symmetrical residential block failed to satisfy any of these factors. Our 

analysis concentrated on the fifth factor. We acknowledged 

that denying the variance did involve hardship and practical 

difficulties to the owners. But we found that the owners had 

created these hardships and difficulties with full knowledge of 

the ordinance and that it would be unreasonable “to allow one 

to create his own hardship and difficulty and take advantage of 

it to the prejudice of innocent parties.” 10

8 See, Bowman, supra note 5; Rousseau, supra note 7.

9 Frank v. Russell, 160 Neb. 354, 70 N.W.2d 306 (1955).

10 Id. at 361, 70 N.W.2d at 311.
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On the subject of hardship generally, we stated: “‘Ordinarily, 

a claim of unnecessary hardship cannot be based upon conditions created by the owner or applicant.’ . . . ‘A hardship 

intentionally created by the owner of premises for the purpose 

of laying a basis for an application for a variance cannot be 

considered for such purpose.’” 11 We concluded that under the 

circumstances, the board of adjustment lacked authority to 

grant the variance, and we reversed. Subsequent to Frank, the 

Legislature amended § 19-910 to enumerate specific criteria 

which must be satisfied to sustain a request for a variance. 12

In our 1992 decision in Bowman, we considered whether, 

under § 19-910, a board of adjustment had the power to grant 

a variance to a company which sought authorization to build 

a warehouse within 1 foot of the property line rather than the 

15 feet required by the ordinance. 13 The board granted the variance, but the district court reversed. We analyzed the requirement of § 19-910(2)(d) that describes undue hardship as a 

“demonstrable and exceptional hardship as distinguished from 

variations for purposes of convenience, profit, or caprice.” 

We found that because the record showed that the company’s 

sole justification for the variance was to maximize its profits, 

the company had failed to establish that strict application of 

the setback requirement would have produced undue hardship. Thus, the company failed to set forth adequate grounds 

for a variance.

Eastroads v. Omaha Zoning Bd. of Appeals 14 concerned 

the application of Frank 15 in the context of Neb. Rev. Stat. 

§ 14-411 (Reissue 2012), which defines the authority of zoning 

11 Id. at 361-62, 70 N.W.2d at 311, quoting Annot., 168 A.L.R. 13 (1947).

12 See, § 19-910(2) (substantively similar to § 23-168.03(1)(c)); Bowman, 

supra note 5.

13 Bowman, supra note 5.

14 Eastroads, supra note 7.

15 Frank, supra note 9.
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boards of appeal in cities of the metropolitan class to grant a 

variance. In Eastroads, a company requested the city zoning 

board of appeals to waive application of an ordinance requiring a 30-foot bufferyard area between commercial-zoned and 

residential-zoned lands. The company presented evidence to 

the board showing that the variance was needed due to the 

irregular shape of the property line, the location of an old 

rubble fill site in the center of the land, and the need for an 

entry point on the north end of the development due to a 

state-owned right-of-way on the south end. The board granted 

the variance.

Following an appeal, the district court held an evidentiary 

hearing and affirmed the board’s decision. The court found 

that the board’s decision to grant the variance was supported 

by the following factors: (1) the rubble fill is on the majority of 

the property; (2) the state controlled right-of-way, which was 

acquired after the company purchased the property, “‘forecloses 

the possibility of any reasonable development in this area’”; 16

and (3) the required bufferyard was uniquely increased due to 

the irregular boundary line.

The company appealed to the Nebraska Court of Appeals, 

which pursuant to Frank 17 reversed, finding that the difficulties asserted to justify the variance were self-created. 18 Upon 

a petition for further review, we reversed the decision of the 

Court of Appeals and found that the board had acted legally 

in granting the variance. 19 We held Frank was distinguishable, 

because there was no evidence that the state’s right-of-way 

was a condition created by the property owner and that further, the state’s right-of-way created a practical difficulty in 

the strict application of the ordinance. We found the language 

16 Eastroads, 261 Neb. at 974, 628 N.W.2d at 681.

17 Frank, supra note 9.

18 Eastroads v. Omaha Zoning Bd. of Appeals, 9 Neb. App. 767, 619 N.W.2d 

618 (2000), reversed, Eastroads, supra note 7.

19 Eastroads, supra note 7.
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from Frank regarding hardship generally to be dicta and to not 

establish an absolute bar to a request for a variance.

These Supreme Court authorities provide instruction in 

identifying what qualifies as undue hardship. The Court of 

Appeals’ 2009 decision in Rousseau v. Zoning Bd. of Appeals 

of Omaha 20 provides additional guidance. In that case, a property owner had purchased a vacant lot in a residential area. The 

owner wanted to build a condominium designed in an old style 

like those found in Chicago or New York. After redesigning 

the project 11 times, attempting to comply with zoning regulations, the owner sought variances from front yard setback and 

off-street parking requirements. The board granted the owner’s 

requests, and it also granted a variance from a side yard setback requirement. After an appeal, the matter was tried in district court. The owner provided testimony admitting that it was 

possible to build a multiple-family residential building on the 

lot in compliance with zoning regulations, but contended that 

the regulations prohibited her from building the particular style 

of building that she desired to build. The court affirmed, finding that no variance from the front yard setback requirements 

was necessary and that the “density of the neighborhood” 21

was a hardship that justified the side yard setback and parking 

space variances.

On appeal, the Court of Appeals acknowledged that, standing alone, neither the desire to build a larger building 22 nor the 

desire to generate increased profits 23 constitutes a sufficient 

hardship to justify a variance. However, the court found that 

the particular form of hardship at issue, where the density of 

an already existing development conflicts with strict application of local zoning requirements, was sufficient to justify a 

20 Rousseau, supra note 7.

21 Id. at 472, 764 N.W.2d at 132.

22 Rousseau, supra note 7, citing Alumni Control Board v. City of Lincoln, 

179 Neb. 194, 137 N.W.2d 800 (1965).

23 Id., citing Bowman, supra note 5.
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variance. Thus, it was not the owner’s desire to build a particular style of building, but, rather, the density of the area which 

qualified as undue hardship.

We now turn to apply the foregoing principles to the present 

dispute. Here, in a unanimous decision, the board of adjustment found that the Kreifels’ request for a variance was meritorious. The board supported its decision with factual findings 

with respect to all factors required under § 23-168.03(1)(c) 

and (2). We are convinced that the evidence establishes that 

the board of adjustment and the district court correctly found 

that strict application of the zoning regulations would result 

in undue hardship to the Kreifels. The board members applied 

their expertise and specialization by personally viewing the 

property at issue, reviewing photographs of the pen, considering a letter in support of the Kreifels’ request authored by 

an adjoining landowner, and questioning the landowners and 

an adjoining landowner. The board considered the request for 

a variance in the context of the specific dimensions of the 

properties, and it carefully evaluated the proposed alternative 

locations. The board concluded, based on the evidence and 

the required statutory considerations, that due to the narrowness and shape of the Kreifels’ property, strict application of 

the setback requirements would cause the Kreifels undue and 

exceptional hardships.

Specifically, the board found the property contains no viable 

alternative site for the pen. The only alternative that did not 

require a variance would create drainage issues for neighboring 

property. The district court affirmed, because the board found 

that the hardship related to the shape of the Kreifels’ parcel. 

And, contrary to Dolezal-Soukup’s position on appeal, the 

court found that “the granting of the variance was not based 

on convenience, profit, or caprice.” The factual findings of the 

board and the district court carry significant weight. 24

24 See, Eastroads, supra note 7; Bowman, supra note 5; Rousseau, supra

note 7.
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Analyzing the feasibility of alternative pen locations illustrates the persuasiveness of the findings of the board and the 

district court regarding undue hardship. When the zoning regulations are strictly applied, it is clear the location west of the 

sheds is no alternative. That location requires a variance on the 

western line, and furthermore, it poses the peculiar and exceptional practical difficulties of harming the swine due to lack of 

airflow and heat exhaustion, which would defeat the purpose of 

a permitted principal use of the property.

The alternative location in the farm ground is not viable. 

The Kreifels’ land is flat in the south with a downgrade to the 

north and west into the farm ground. Joseph testified that due 

to the conditions of the land, relocating the pen to this site 

would cause water from the Kreifels’ buildings to run off onto 

the Brabec property. Constructing a new pen in this area would 

require significant dirt work, which would reduce the land’s 

crop production and interfere with Brabec’s irrigation pivot and 

farming operations.

[8,9] In response to the evidence that the Kreifels’ would 

incur costs from demolition and reconstruction of the pen, 

and lose farming income, Dolezal-Soukup argues on appeal 

that purely financial hardships are inadequate grounds for 

a variance. It is true that, as a general rule, hardship that is 

personal to the property owner will not support the grant of 

a variance. 25 The applicant for a variance must show that the 

property is in and of itself unusual in a manner which is different from the nature of surrounding properties and relates 

to the hardship complained of and that granting a variance to 

25 2 Patricia E. Salkin, American Law. of Zoning § 13:15 (5th ed. 2018), 

citing Matter of First Natl. Bank of Downsville v. City of Albany Bd. 

of Zoning Appeals, 216 A.D.2d 680, 628 N.Y.S.2d 199 (1995); Matter 

of Congregation Beth El of Rochester v. Crowley, 30 Misc. 2d 90, 217 

N.Y.S.2d 937 (1961); Williams v. Dept. of Env. and Natural Res., 144 N.C. 

App. 479, 548 S.E.2d 793 (2001) (superseded by statute as stated in The 

Riggings v. Coastal Resources Com’n, 228 N.C. App. 630, 747 S.E.2d 

301 (2013)).
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take this into account would not substantially affect the zoning plan. 26

The premise of Dolezal-Soukup’s argument has merit. 

Standing alone, neither the desire to build a larger building 

nor the desire to generate increased profits constitutes a sufficient hardship to justify a variance from a zoning regulation. 27

However, when applied to the facts of this case, DolezalSoukup’s argument fails. Unlike the request for a variance in 

Bowman,

 28 the Kreifels’ request for a variance is not solely 

based on personal or financial considerations. And the fact that 

the Kreifels have proved that strict application of the regulations would cause them financial losses does not forfeit them 

the opportunity to establish that they would experience undue 

hardship as a result of the conditions of their property.

Dolezal-Soukup’s lead authority, Bruning v. City of Omaha 

Zoning Bd. of Appeals,

 29 is distinguishable from the present 

matter. In Bruning, property owners had operated seeding 

businesses on land zoned for agricultural use. The owners 

sold their seeding businesses and rented buildings on the land 

to be used for storage for lawn and landscaping businesses, 

and they leased other buildings for automobile storage and 

boiler repair businesses. The landowners requested a variance 

for their agricultural-zoned land, and the city zoning board 

of appeals denied the request. The board members found that 

“granting waivers would be a significant deviation from the 

26 131 Am. Jur. Proof of Facts 3d 253 Proof of Hardship Necessary for 

Zoning Variance § 16 (2013), citing Montgomery County v. Rotwein, 169 

Md. App. 716, 906 A.2d 959 (2006). See, e.g., Barrett, supra note 5; 

Lang v. Zoning Board of Adjustment, 160 N.J. 41, 733 A.2d 464 (1999); 

Allegheny West Civic Council v. Zoning Bd., 547 Pa. 163, 689 A.2d 

225 (1997).

27 Rousseau, supra note 7.

28 Bowman, supra note 5.

29 Bruning v. City of Omaha Zoning Bd. of Appeals, 303 Neb. 146, 927 

N.W.2d 366 (2019).
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zoning plan, and not merely reasonable adjustments.” 30 The 

district court affirmed, finding that the property owners had 

unilaterally altered the agricultural use of the property by leasing buildings to others, a commercial activity. On appeal, the 

Supreme Court affirmed, finding competent evidence in the 

record to support the district court’s conclusion that the property owners’ hardship stemmed from their desire for increased 

profits and self-created hardships.

The Kreifels’ request for a variance is much different than 

that at issue in Bruning. The pen is a permitted principal use 

in the A-3 agricultural-transitional zoning district. The Kreifels 

constructed the pen absent knowledge of the zoning requirements, and they did not intend to use the pen for financial 

profit. When the Kreifels’ purchased the lot, the steel sheds and 

residence were already located in the narrow, south corner. The 

zoning administrator testified that the pen is not very big, yet 

the board found, due to the narrowness or shape of the lot, that 

there is no feasible location for the pen that would comply with 

the zoning requirements. Therefore, under the requirements of 

§ 23-168.03(1)(c), the Kreifels have demonstrated undue hardship to justify a variance.

Dolezal-Soukup argues there is no legally cognizable hardship, because the Kreifels have not been deprived of all beneficial or reasonable use of their land. However, § 23-168.03(1)(c) 

contains no such requirement. It is a misconception that the 

term “undue hardship” requires an applicant to prove that 

without the variance, the property would lose all utility. 31

Sufficient proof of hardship is established if strict enforcement 

of regulations, due to the property’s unique characteristics, 

inhibits the extent to which the property can be used. 32 Here, 

strict application of the setback requirements, due to the 

30 Id. at 153, 927 N.W.2d at 371.

31 Lang, supra note 26.

32 Id.
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narrowness of the land, in combination with preexisting structures, eliminates all use of the pen.

Our review in this case is limited to whether the district 

court abused its discretion or committed an error of law in 

affirming the board’s decision to grant the variance. After conducting an evidentiary hearing, the court found that DolezalSoukup presented no evidence to establish that the board’s 

decision was clearly wrong, illegal, unreasonable, or arbitrary. 

Based upon our review of the record, with respect to the issue 

of undue hardship, we conclude there is competent evidence 

in the record to support the district court’s factual findings. 

We will not substitute our factual findings for those of the 

district court.

Hardship Not Self-Created

[10] Dolezal-Soukup next argues that the Kreifels are 

barred from seeking a variance, because their hardships were 

self-created. Dolezal-Soukup relies on the rule against selfcreated hardships from Bruning and Frank, discussed above. 33

However, Dolezal-Soukup applies this rule out of context. Both 

Bruning and Frank involved applicants which sought variances 

while intentionally violating zoning regulations. As stated in 

one of the passages from Frank, quoted above, “‘A hardship 

intentionally created by the owner of premises for the purpose 

of laying a basis for an application for a variance cannot be 

considered for such purpose.’” 34 A self-imposed hardship exists 

where a party comes to the restricted subject property with a 

particular unpermitted use in mind and mindful of the impossible area restrictions for that use. 35 By contrast, a hardship 

is not self-imposed if it results from inherent and preexisting 

characteristics of the property. 36

33 See, Bruning, supra note 29; Frank, supra note 9.

34 Frank, supra note 9, 160 Neb. at 362, 70 N.W.2d at 311.

35 Bd. of Adjustment of Sussex v. Verleysen, 36 A.3d 326 (Del. 2012).

36 Id.
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[11] Dolezal-Soukup’s self-created hardship argument is not 

based on any intentional violation by the Kreifels. Rather, 

Dolezal-Soukup attempts to impute an intent to the Kreifels 

by arguing that they “had a legal duty to know the zoning 

requirements and to follow them.” 37 Dolezal-Soukup’s argument is fundamentally flawed for two reasons. First, a selfimposed hardship is not a per se bar to a variance. 38 Rather, a 

self-imposed hardship is a factor for the regulatory authority to 

consider when deciding whether or not to grant the variance. 39

Second, Dolezal-Soukup’s argument is not properly raised. 

Section 23-168.04 requires the party appealing the board’s 

decision to district court to “specify[] the grounds of the illegality.” Nowhere in her petition or amended petition filed with 

the district court did Dolezal-Soukup allege the Kreifels’ hardships were self-created. While the bill of exceptions does show 

that Joseph admitted he installed the pen without first obtaining 

a building permit, he stated he did so because he was not aware 

of the zoning requirements. The district court’s written order 

made no findings with respect to the issue of self-created hardships. This argument is being applied out of context, overstates 

its legal impact, and was not properly raised. This assignment 

of error is without merit.

Hardship Not Generally Shared 

by Others in Area

Dolezal-Soukup’s next argument is, if the Kreifels’ alleged 

hardship is an inability to construct a pen for 4-H activities, 

then, contrary to the requirements of § 23-168.03(1)(c)(ii), 

that is a hardship that can be shared generally by other properties in the same zoning district and vicinity. However, 

37 Brief for appellant at 17.

38 See, Eastroads, supra note 7; Rousseau, supra note 7; Verleysen, supra

note 35.

39 See, Eastroads, supra note 7; Rousseau, supra note 7; CCS Investors, LLC 

v. Brown, 977 A.2d 301 (Del. 2009).
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as discussed, the hardship in this case is not personal to the 

Kreifels. The Kreifels’ hardship is that, due to the narrowness 

and shape of their property, in combination with the placement of preexisting structures, there is no other location on 

their property to site the pen, which is a permitted principal 

use. There is no evidence that this hardship is shared generally by other properties in the area. This assignment of error 

is without merit.

CONCLUSION

The Kreifels’ variance is based on, within the meaning of 

§ 23-168.03(1)(c), peculiar and exceptional practical difficulties or exceptional and undue hardships. The district court did 

not abuse its discretion or make an error of law in determining 

that the narrowness or shape of the Kreifels’ property resulted 

in sufficient hardship to justify upholding the board’s decision 

to grant the variance.

Affirmed.