Posted by: Patricia Salkin | July 24, 2012

Nebraska Supreme Court Remands Question as to Whether Applicant Had a Property Interest Sufficient for Standing to Request the Variance

Volunteers of America (VOA) requested variances relating to setbacks, landscapes, buffer yards, off-street parking, and population density, in order to build a proposed apartment building for veterans. The Board granted the requested variances. Field Club Homeowners League (Field Club) challenged the decision in district court. The court affirmed the board’s decision, and Field Club appealed.

On Appeal, Field Club contended that the VOA lacked standing to request variances from the Board. Field Club argued that the VOA had not received a “certificate of authority,” and that the VOA did not have a legal interest in the property. “To apply for a variance from a zoning regulation, the applicant must have standing. Standing refers to whether a party had, at the commencement of the litigation, a personal stake in the outcome of the litigation that would warrant a court’s or tribunal’s exercising its jurisdiction and remedial powers on the party’s behalf.”

The Court first considered Field Club’s argument that VOA had not received the appropriate certificate. A certificate of Authority is required by a foreign corporation transacting business in the state in order to maintain a proceeding in court. The Court held that “although VOA is a foreign corporation, it is not maintaining a court proceeding. It is Field Club that petitioned the district court and named VOA as a defendant.”

Next, Field Club contended that VOA lacked standing because the owner of the property was Kiewit Construction Company. While the VOA told the Board that it would own the property, VOA failed to show “the existence of a purchase agreement that was subject to its ability to obtain variances, an option contract subject to the same conditions, or Kiewit Construction Company’s authorization for VOA to seek variances on the company’s behalf.” However, Field Club did not challenge VOA’s standing until after the district court’s decision. The Court held that because the litigation was past the pleading stage, VOA was “entitled to an opportunity to demonstrate standing in an evidentiary hearing.”

The Court reversed, vacated, and remanded with directions to determine whether VOA had sufficient interest in the property to allow it to seek the requested variances.

Field Club Home Owners League v. Zoning Board of Appeals of Omaha, 283 Neb. 847, 814 N.W.2d 102 (NEB 5/11/2012)

The opinion can be accessed at:,33&as_vis=1

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