Posted by: Patricia Salkin | January 14, 2021

NE Supreme Court Holds Landowners Established that Strict Application of Zoning Regulations Would Result in Undue Hardship on Land in Ag District

This post was authored by Matthew Loescher, Esq.

Joseph Kreifels and Teri Kreifels owned approximately 5.15 acres of land in the A-3 agricultural-transitional zoning district of Dodge County, Nebraska. In 2017, the Kreifels built an L-shaped, 32- by 16-foot pen on the east side of their property. The fenced pen was 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 allowed the children to learn hard work and responsibility for animals and prepares them to eventually work in agriculture.

Dolezal-Soukup filed a complaint regarding the pen with the Dodge County zoning department. The Dodge County zoning administrator then issued a letter to the Kreifels notifying them that their pen was sited in violation of county setback requirements. As a result, the Kreifels sought a variance from the Dodge County Board of Adjustment. At the close of the hearing, in a 5-0 decision, the Board granted the variance. Dolezal-Soukup appealed the Board’s decision to the district court for Dodge County, which affirmed the Board’s decision to grant a variance.

Dolezal-Soukup first argued on appeal that strict application of the setback requirements would not result in undue hardship to the Kreifels, because the Kreifels merely desired to have a 4-H pen on their land, and to avoid the costs of removing and reconstructing the pen in a location that did not violate the zoning setback requirements. The Board found the property did not contain any viable alternative site for the pen, with the only alternative that did not require a variance creating drainage issues for neighboring property. The record reflected that the district court affirmed, because the Board found that the hardship related to the shape of the Kreifels’ parcel, and the granting of the variance was not based on convenience, profit, or caprice.

 Dolezal-Soukup next contended that the Kreifels were barred from seeking a variance, because their hardships were self-created; however, 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 indicated 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. Accordingly, the court held that 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.

Dolezal-Sokup v Dodge County Board of Adjustment, 308 Neb. 63 (12/31/2020)

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