Posted by: Patricia Salkin | January 31, 2021

NE Supreme Court Upholds Variance for Pigpen

This post was authored by Zoe Ferguson, J.D. (awaiting admission)

Despite a neighbor’s persistent appeals, the Supreme Court of Nebraska upheld a variance for a family’s 4-H pigpen in an agricultural-transitional zoning district, holding that there was no alternative location on the peculiarly-shaped lot where the family could have built their pen without requiring a variance.

Concluding the district court based its finding on competent evidence in the record, the court held that Joseph and Teri Kreifels’ application for a variance to build a pigpen on their property was properly granted.

In the spring of 2017, the Kreifels built a pigpen on the east side of their triangular property so their children could participate in the local 4-H program. With the pen, the family raises up to six pigs every year for county or state fairs. The pigpen is not profitable and does not serve commercial purposes.

The pen did not comply with local setback requirements, and the Kreifels’ neighbor, Carla Dolezal-Soukup, filed a complaint about the pen with the local zoning department. The Kreifels then sought a variance, stating that they did not know about the setback requirements, relocation would be expensive and there were no feasible alternatives, and they try to maintain the pen in good, clean condition. At a public hearing, Joseph Kreifel explained that they chose the location of the pen for the pigs’ benefit to maximize airflow and minimize excessive sun exposure and drainage issues. The zoning board granted the variance “due to the drainage issues,” holding that “due to the narrowness and shape of the Kreifels’ property,” strict application of the regulation would create undue hardship for the Kreifels.

Dolezal-Soukup appealed to the district court, which held that there was no alternative location on the Kreifels’ property for the pigpen and that she had failed to show any evidence that the board’s decision was illegal or clearly wrong. The court further held that the hardship “specifically related to the shape of the Kreifels’ parcel” and was not premised on “convenience, profit, or caprice” for the family.

Dolezal-Soukup appealed to the Supreme Court, arguing that the district court erred in holding the Kreifels would face undue hardship and alleging that any such hardship would be of their own creation.

Refusing to hold that the district court abused its discretion or made an error of law, the Supreme Court found the lower court properly held the property was “in and of itself unusual in a manner which is different from the nature of surrounding properties.”

“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,” the Court continued. “Here, strict application of the setback requirements, due to the narrowness of the land, in combination with preexisting structures, eliminates all use of the pen.”

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

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