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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT

Cite as 305 Neb. 321

Frank Hochstein and Bow Creek Valley, LLC, 

appellants, v. Cedar County Board of 

Adjustment and Mark and Carla 

Goeden, appellees.

___ N.W.2d ___

Filed March 20, 2020. No. S-19-459.

1. 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.

2. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

3. Zoning: Ordinances. The interpretation of a zoning ordinance presents 

a question of law.

4. Zoning: Statutes: Ordinances: Appeal and Error. When interpreting 

zoning regulations, an appellate court applies the same rules utilized in 

statutory interpretation.

5. Zoning: Statutes: Ordinances. Just as statutes relating to the same 

subject are in pari materia and should be construed together, a county’s 

zoning regulations should be read and construed together.

6. Zoning: Ordinances. Zoning laws should be given a fair and reasonable 

construction in light of the manifest intention of the legislative body, 

the objects sought to be attained, the natural import of the words used 

in common and accepted usage, the setting in which they are employed, 

and the general structure of the law as a whole.

7. ____: ____. Where the provisions of a zoning ordinance are expressed 

in common words of everyday use, without enlargement, restriction, or 

definition, they are to be interpreted and enforced according to their 

generally accepted meaning.

Nebraska Supreme Court Online Library

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

04/03/2020 01:07 AM CDT
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HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT

Cite as 305 Neb. 321

8. Zoning: Ordinances: Intent. Restrictions in zoning ordinances and 

regulations should not be extended by implication to cases not clearly 

within the scope of the purpose and intent manifest in their language.

9. Zoning: Statutes: Ordinances. In interpreting definitions in zoning 

statutes or ordinances, the court cannot supply what the municipal legislative body might have provided but which the court cannot by reasonable construction say that it did provide.

10. Zoning: Ordinances: Intent. In interpreting the language of an ordinance to determine the extent of the restriction upon use of the property, 

the language must be interpreted, where doubt exists as to the intention 

of the legislative body, in favor of the property owner and against any 

implied extension of the restriction.

Appeal from the District Court for Cedar County: Paul J. 

Vaughan, Judge. Affirmed.

Stephen D. Mossman, of Mattson Ricketts Law Firm, for 

appellants.

Mark D. Fitzgerald, of Fitzgerald, Vetter, Temple, Bartell & 

Henderson, for appellee Cedar County Board of Adjustment.

Jeffrey L. Hrouda for appellees Mark and Carla Goeden.

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

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

A county board of adjustment affirmed the grant of a zoning 

permit for construction of a new residence within an agricultural intensive district. The district court affirmed. The ultimate 

issue is whether the proposed residence was a “non-Farm 

residence” under the zoning regulations. Construing the regulations as a whole and giving them a reasonable construction, we 

find no abuse of discretion or legal error. Therefore, we affirm 

the judgment.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT

Cite as 305 Neb. 321

BACKGROUND

Parties and Proceedings

Frank Hochstein and Bow Creek Valley, LLC (collectively 

Hochstein), operated a 4,500 animal unit feedlot within the 

“‘A-1’ Agricultural - Intensive District” (A-1 District) of Cedar 

County, Nebraska. Under the Cedar County zoning regulations, Hochstein’s cattle feedlot fell within the definition of 

a livestock feeding operation (LFO). For an LFO the size of 

Hochstein’s, the regulations specify a setback distance of 1 

mile for a residence.

Mark and Carla Goeden are neighboring landowners of 

Hochstein. They are involved in an agricultural operation in 

Cedar County consisting of the ownership and use of approximately 900 acres of farmland. Of the 900 acres, 240 acres are 

located in one platted section, including both a quarter section 

of 160 acres at the north end and an adjoining 80-acre tract on 

the south end.

The Goedens submitted an application for a zoning permit, 

seeking a permit to construct a new house on the 80-acre tract 

at the south end of their 240-acre farm. The Cedar County zoning administrator approved the permit.

Two days later, Hochstein filed a notice of appeal of 

the zoning administrator’s decision with the Cedar County 

Board of Adjustment (the board). Hochstein alleged that the 

Goedens’ zoning permit was for a “non-farm residence” and 

that the zoning regulations provided that “[n]ew non-Farm 

residences” shall not be located “closer to existing LFO’s 

than the setback distances for LFO’s from existing residences 

on the matrix set out above.” Hochstein asserted that the 

Goedens’ proposed residence was located 3,300 feet from 

Hochstein’s LFO, but that the required setback was 1 mile, 

or 5,280 feet. By a 4-to-1 vote, the board affirmed the zoning 

administrator’s decision.
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Nebraska Supreme Court Advance Sheets

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HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT

Cite as 305 Neb. 321

Ten days later, Hochstein filed a complaint in district 

court. Hochstein alleged that the board’s decision was illegal 

and not supported by the evidence and therefore was arbitrary, unreasonable, or clearly wrong. The district court held 

a hearing and received the verbatim transcript of the board 

hearing, exhibits offered to the board, and the board’s written 

resolution. One of the exhibits was the Cedar County zoning regulations.

Zoning Regulations

The structure of the zoning regulations impedes a clear recitation. The regulations are divided into topics, each identified 

by a topic phrase. Within a topic, sections are numbered. But 

the same section numbers are used under other topics within 

the regulations. We organize this summary to omit confusing references.

We will first recall the regulations’ definitions, identifying 

undefined terms and quoting definitions of other terms. Then 

we will quote regulations governing an A-1 District. These will 

include sections covering intent and purpose, principal permitted uses, conditional uses, and setback requirements. Finally, 

we will quote the regulation for an A-1 District imposing a 

setback requirement for “[n]ew non-Farm residences”—the 

regulation at the heart of the dispute.

As we begin with definitions, we first note key terms which 

are not defined. The zoning regulations provide no definitions 

of “non-farm residence,” “farm residence,” and “residence.” 

With respect to such undefined terms, the regulations dictate 

that “[w]ords or terms not herein defined shall have their ordinary meaning in relation to the context.”

Turning now to defined terms, we progress from general to 

specific. First, “agriculture” is defined as

the use of a tract of land for the growing of crops, pasturage, nursery, or the raising of poultry, including the 

structures necessary for carrying out farming operations, 

the residence or residences of those owning or operating 
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HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT

Cite as 305 Neb. 321

the premises, a member of the family thereof, or persons 

employed thereon, and the family thereof, but such use 

shall not include feedlots.

Second, a “farm” means

an are[a] containing at least forty (40) acres or more 

which is used for growing of the usual farm products such 

as vegetables, fruit, and grain, and storage on the area, as 

well as for the raising thereon of the usual farm poultry 

and farm animals up to 300 animal units as defined in 

these regulations[.]

Third, “agricultural operations” are defined as “[f]armsteads 

of forty acres or more that produce one thousand dollars 

($1,000.00) or more of farm products each year.” Finally, 

“agricultural and farm buildings and structures” are defined 

to mean

any building or structure that is necessary or incidental 

to the normal conduct o[f] a farm including but not limited to residence of the operator, residence of hired men, 

barns, buildings and sheds for housing livestock, poultry 

and farm machinery, buildings for the storage or shelter 

of grain, hay and other crops, silos, windmills and water 

storage tanks.

(Emphasis supplied.)

Turning to zoning regulations addressing an A-1 District, we 

first quote the language explaining its intent and purpose:

The [A-1 District] regulations are intended to provide for 

the use and conservation of agricultural land, to protect 

the value of such land, and to protect it from indiscriminate residential and urban development and other incompatible and conflicting land uses: to conserve and protect 

the value of open space, wooded areas, streams, mineral 

deposits and other natural resources and to protect them 

from incompatible land uses and to provide for their 

timely utilization; to provide for the location and govern the establishment and operation of land uses which 

are compatible with agriculture and are of such nature 
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HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT

Cite as 305 Neb. 321

that their location away from residential, commercial 

and industrial areas is most desirable; to provide for the 

location and govern the establishment of residential uses 

which are accessory to and necessary for the conduct of 

agriculture and to provide for the location and govern 

the establishment and use of limited non-agricultural 

residential uses. Such non-agricultural residential uses 

shall not be so located as to be detrimental to our [sic] 

conflict with other uses which are named as permitted 

or conditional uses in this district and are appropriate to 

other property in the area. The nature of the A-1 District 

and the uses allowed out right [sic] or by conditional use 

precludes the provision of services, amenities and protection from other land uses which are afforded to residential uses by the regulations of other districts, and it is 

not intended that the A-1 District regulations afford such 

services, amenities and protection to residential; [sic] uses 

located therein.

(Emphasis supplied.)

The regulations for an A-1 District list “permitted principal 

uses.” One such use is “[a]gricultural operations, and the usual 

agricultural and farm buildings and structures, including the 

residence of the owners and their families and any tenants and 

employees who are engaged in agricultural operations on the 

premises.” Another is “[n]ew single family dwellings on lots of 

eighty (80) acres or more.”

The A-1 District regulations also itemize conditional uses. 

Conditional uses are those which the governing body “may, 

by conditional use permit, authorize . . . subject to such conditions as the [g]overning [b]ody deems necessary.” One such 

conditional use is “[n]ew single-family dwellings on lots no 

less than forty (40) acres, provided the Intensity of Use and all 

other requirements of this district are met.”

The regulations contain a matrix with setback distances 

from existing residences and LFOs. Following the matrix, a 

regulation states in part, “The distance requirements may be 
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT

Cite as 305 Neb. 321

decreased or waived by a waiver signed by all of the property 

owners of non-farm residence or other residence not on the 

owner’s property or LFOs within the distances specified.”

The last regulation contained in the A-1 District section is 

a focal point of these proceedings. It states: “New non-Farm 

residences, as defined in these Regulations, shall be located no 

closer to existing LFO’s than the setback distances for LFO’s 

from existing residences on the matrix set out above.” But, 

as noted above, “non-Farm residences” is not defined in the 

regulations.

District Court’s Decision

The district court affirmed the board’s decision. The court 

recognized that permitted uses in an A-1 District included 

“‘farm buildings and structures, including the residence of the 

owners’” and “‘new single family dwellings on lots of eighty 

(80) acres or more.’” It noted that the Goedens were the owners of farmland, including a 240-acre tract, and that their land 

qualified as an “Agricultural Operation” under the zoning 

regulations.

The court reasoned that “using the plain meaning of the 

terms, a ‘non-Farm’ residence would be a residence which 

was not located on a farm.” But, the court observed, the proposed residence would be constructed on a farm. The court 

emphasized that the zoning regulations specifically permitted 

as principal uses the residence of the owners and new single 

family dwellings on lots of 80 acres or more. It reasoned that 

“the only new residences subject to the setback requirements 

are non-Farm residences.” The court concluded:

The Goeden building permit is consistent with the overall 

manifest intention of the Cedar County Supervisors to 

protect agriculture. The residences of farmers, operators 

or mere landlords, are permitted principal uses in the 

district while the interests of a conditional use LFO are 

subordinated to farmer residences but protected to some 

degree by non-farm residences.
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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT

Cite as 305 Neb. 321

Hochstein filed a timely appeal, which we moved to our 

docket. 1

ASSIGNMENTS OF ERROR

Hochstein alleges that the court erred in (1) interpreting 

the zoning regulations in determining whether the proposed 

residence qualified as a “non-farm residence,” (2) finding the 

proposed residence was consistent with the intent of the zoning regulations, (3) affirming the decision of the board, and (4) 

finding the decision of the board was not arbitrary, unreasonable, or clearly wrong.

STANDARD OF REVIEW

[1] 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. 2

[2] An appellate court independently reviews questions of 

law decided by a lower court. 3

ANALYSIS

[3] Although Hochstein makes four assignments of error, 

all ultimately rest upon a single contention—that the Goedens’ 

new residence was not a “farm residence,” or stated conversely, 

that it was a “non-farm residence.” At oral argument, all of the 

parties characterized the question before us as one of law. We 

agree. The interpretation of a zoning ordinance presents a question of law. 4

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

2 Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, 287 Neb. 779, 844 

N.W.2d 755 (2014).

3 Drought v. Marsh, 304 Neb. 860, 937 N.W.2d 229 (2020).

4 Kaiser v. Western R/C Flyers, 239 Neb. 624, 477 N.W.2d 557 (1991).
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HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT

Cite as 305 Neb. 321

Before turning to Hochstein’s points of emphasis and the 

Goedens’ and the board’s respective responses, we recall governing principles of law.

Governing Principles of Law

[4-6] One principle establishes a framework for interpretation: When interpreting zoning regulations, an appellate court 

applies the same rules utilized in statutory interpretation. 5 Just 

as statutes relating to the same subject are in pari materia and 

should be construed together, 6 a county’s zoning regulations 

should be read and construed together. Zoning laws should be 

given a fair and reasonable construction in light of the manifest intention of the legislative body, the objects sought to be 

attained, the natural import of the words used in common and 

accepted usage, the setting in which they are employed, and the 

general structure of the law as a whole. 7 Nebraska’s appellate 

courts have long followed this principle. 8

[7] Another principle guides our understanding of specific words: Where the provisions of a zoning ordinance are 

expressed in common words of everyday use, without enlargement, restriction, or definition, they are to be interpreted and 

enforced according to their generally accepted meaning. 9 The 

rule also enjoys a long pedigree. 10

5 See Premium Farms v. County of Holt, 263 Neb. 415, 640 N.W.2d 633 

(2002).

6 See Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).

7 Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, supra note 2.

8 See, Mossman v. City of Columbus, 234 Neb. 78, 449 N.W.2d 214 (1989); 

City of Lincoln v. Bruce, 221 Neb. 61, 375 N.W.2d 118 (1985); City of 

Beatrice v. Goodenkauf, 219 Neb. 756, 366 N.W.2d 411 (1985); Beckman 

v. City of Grand Island, 182 Neb. 840, 157 N.W.2d 769 (1968); Thieman 

v. Cedar Valley Feeding Co., 18 Neb. App. 302, 789 N.W.2d 714 (2010).

9 Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, supra note 2.

10 See, Mossman v. City of Columbus, supra note 8; City of Lincoln v. Bruce, 

supra note 8; City of Beatrice v. Goodenkauf, supra note 8; State v. Smiley, 

182 Neb. 211, 153 N.W.2d 906 (1967); Henke v. Zimmer, 158 Neb. 697, 64 

N.W.2d 458 (1954); Thieman v. Cedar Valley Feeding Co., supra note 8.
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HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT

Cite as 305 Neb. 321

[8-10] Several principles naturally follow. Restrictions in 

zoning ordinances and regulations should not be extended by 

implication to cases not clearly within the scope of the purpose and intent manifest in their language. 11 In interpreting 

definitions in zoning statutes or ordinances, the court cannot 

supply what the municipal legislative body might have provided but which the court cannot by reasonable construction 

say that it did provide. 12 Thus, in interpreting the language of 

an ordinance to determine the extent of the restriction upon 

use of the property, the language must be interpreted, where 

doubt exists as to the intention of the legislative body, in favor 

of the property owner and against any implied extension of 

the restriction. 13

Application

Three things are indisputable: The Goedens’ proposed building site is located on a “farm,” they are the owners of that 

farm, and that farm constitutes an “agricultural operation[].” 

As we quoted more fully above, the regulations define “farm” 

as an “are[a] containing at least forty (40) acres or more 

which is used for growing of the usual farm products such 

as . . . grain.” Hochstein does not dispute that the Goedens 

own the tract of land, that it is at least 40 acres in size, and 

that it is used for the growing of corn and soybeans, which 

are “grain[s].” Thus, it is a farm. Similarly, the farm fits the 

definition of an “agricultural operation[],” as it is a farmstead 

of 40 acres or more that produces $1,000 or more of farm 

products annually.

From an affidavit the Goedens submitted to the board, 

Hochstein draws a conclusion and emphasizes a fact. First, 

11 Beckman v. City of Grand Island, supra note 8.

12 Id.

13 Mossman v. City of Columbus, supra note 8; Beckman v. City of Grand 

Island, supra note 8; Dowd Grain Co. v. County of Sarpy Bd. of Adj., 

No. A-06-681, 2008 WL 2511150 (Neb. App. June 24, 2008) (selected for 

posting to court website).
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Cite as 305 Neb. 321

Hochstein asserts, since 2007, “the Goedens have not farmed

this tract,” but instead have “cash leased” it to another corporate entity. 14 In the affidavit, the Goedens assert continuing 

involvement in the production of grain on the 240-acre farm. 

Specifically, they state: “In 2007, [they] engaged the services 

of [a corporate entity] to produce agricultural products on the 

Farm on a year to year basis. [The Goedens] maintain a supervisory role in the active production of the crops associated with 

the Farm.” Second, Hochstein emphasizes that the Goedens’ 

personal care and raising of pheasants and 11 head of livestock 

takes place on another site located approximately 3 miles east 

of the 240-acre farm.

As the board points out, Hochstein at least implicitly argues 

that because the definition of “agricultural and farm buildings and structures” includes the phrase “residence of the 

operator,” an owner’s residence is excluded. But this argument 

ignores the words “but not limited to” following the word 

“including.”

Hochstein explicitly argues, quoting from the definition of 

“agricultural and farm buildings and structures,” that the proposed residence is not “necessary or incidental to the normal 

conduct o[f] a farm.” According to Hochstein, building a new 

residence is not “necessary” for the Goedens to “sign a lease 

or cash a rent check.” 15 Likewise, Hochstein asserts, it is not 

“necessary” for the Goedens to construct a residence “over 

three miles east” of the location where they raise pheasants and 

11 head of livestock. 16

But Hochstein’s initial brief ignored the words “incidental 

to”—the regulation’s disjunctive alternative to “necessary.” The 

definition required the board to consider whether the Goedens’ 

proposed residence was “necessary or incidental to the normal 

conduct o[f] a farm.” (Emphasis supplied.) In ordinary usage, 

14 Brief for appellant at 10 (emphasis supplied).

15 Id.

16 Id.
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HOCHSTEIN v. CEDAR CTY. BD. OF ADJUSTMENT

Cite as 305 Neb. 321

“incidental to” means “liable to happen to” or “to which a 

thing is liable or exposed.” 17 A definition of “incidental” is 

“being likely to ensue as a chance or minor consequence.” 18

Both the Goedens and the board point to the A-1 District 

permitted principal uses, emphasizing that the regulations 

endorse the “residence of the owners” as a permitted use. The 

Goedens’ proposed residence falls within both of the permitted 

principal uses quoted above. It is difficult to understand how a 

permitted principal use in the A-1 District is not at least a use 

“incidental to” the normal conduct of a farm.

And Hochstein’s reply brief merely proclaims that “the use 

of the [Goedens’] residence is not in any way incidental to 

agricultural operations.” 19 Hochstein does not explain why this 

is so. Presumably, this argument rests upon the characterization 

of the Goedens’ relationship with the other corporate entity as 

a cash lease and the Goedens’ use of their other farm approximately 3 miles east of the 240-acre farm. Neither is dispositive. We reject Hochstein’s notion that the Goedens’ residence 

would not be “incidental to” their 240-acre farm.

To bolster the argument, Hochstein relies upon snippets 

from the section explaining the intent and purpose of the A-1 

District regulations. Those snippets are emphasized in the full 

quotation of the section above. But we agree with the Goedens 

and the board that the zoning regulations must be read and 

construed together. In doing so, we give them a fair and reasonable construction in light of the manifest intention of the 

legislative body, the objects sought to be attained, the natural 

import of the words used in common and accepted usage, the 

setting in which they are employed, and the general structure 

of the law as a whole. The regulations define “agriculture” 

as “the use of a tract of land for the growing of crops, . . . 

17 “Incidental to,” Oxford English Dictionary Online, http://www.oed.com/

view/Entry/93467 (last visited Mar. 16, 2020).

18 Merriam-Webster’s Collegiate Dictionary 629 (11th ed. 2014).

19 Reply brief for appellant at 2.
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Cite as 305 Neb. 321

including the structures necessary for carrying out farming 

operations, the residence or residences of those owning or 

operating the premises, a member of the family thereof, or persons employed thereon, and the family thereof.” The Goedens 

own the 240-acre tract, and their proposed residence falls 

within that definition.

CONCLUSION

Ultimately, the question is whether the Goedens’ new residence is a “non-Farm residence” under the last section of the 

A-1 District regulations. Construing the zoning regulations as 

a whole, we hold that it is not. Although the last section of the 

A-1 District topic could have prohibited the construction of all

new residences within the distance prescribed by the setback 

matrix, it did not do so. Because we find no abuse of discretion 

or legal error by the district court, we affirm its judgment.

Affirmed.