This post was authored by Matthew Loeser, Esq.
Sharon Bruning and Robert Bruning leased their agricultural-zoned land near 163d and Fort Streets in Omaha, Nebraska, to several commercial entities. After receiving a complaint, the City of Omaha Planning Department investigated and concluded that the property was being used for activities not permitted by ordinance in an agricultural district. The Brunings 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. The district court for Douglas County affirmed the decision of the Board, and the Brunings appealed.
The Brunings claimed on appeal that they were entitled to a variance because carrying out the strict letter of the ordinance would cause “unnecessary hardships.” The court noted, however, that self-created hardship “is almost always a bar to relief” where a property owner seeks an “ ‘after the fact’ ” variance. 2 Patricia E. Salkin, American Law of Zoning § 13:16 at 13-133 to 13-134 (5th ed. 2018). Here, the Brunings unilaterally altered the permissible use of the property by leasing portions of the buildings to others, which the court determined was essentially a commercial use. Thus, even though the buildings were used by the lessees for the same purpose as the Brunings, the court found the permissible use had changed.
Notwithstanding the above, the court held the Brunings were not deprived of all beneficial or reasonable use of their agricultural zoned land to constitute a legally cognizable hardship. Thus, the denial of their request for a variance was not an unjust invasion of the right of property. Accordingly, the court upheld the holding of the district court affirming the decision of the Board, which had denied the variance.
Bruning v. City of Omaha Zoning Board of Appeals, 303 Neb. 146 (5/17/2019)
LAW OF THE LAND 
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