Field Club v. Zoning Bd. of Appeals of Omaha

“wrong” has occurred, some tort claims against governmental
agencies will inevitably go unremedied.33 Each grade cross-
ing, like each street or highway crossing, has some inherent
danger,34 but the placement of traffic control devices is a dis-
cretionary function of a governmental entity.35 For the reasons
discussed, the district court did not err in concluding that all of
the claims which are the subject of these appeals fell within the
discretionary function exceptions of the PSTCA and the STCA,
and we therefore affirm the judgment in each case.
A ffirmed.
33 McCormick v. City of Norfolk, supra note 20.
34 See id.
35 See id. See, also, Dresser v. Thayer County, 18 Neb. App. 99, 774 N.W.2d
640 (2009).
FiEld Club v. zoNiNg bd. oF APPEAlS oF omAhA 	847
Cite as 283 Neb. 847
field C lub Home owners leAgue , A nebrAskA CorporAtion,
And tHornburg plACe neigHborHood A ssoCiAtion,
An uninCorporAted AssoCiAtion, AppellAnts ,
v. Z oning boArd of A ppeAls of
omAHA et Al ., Appellees.
814 N.W.2d 102
Filed may 11, 2012. 	No. S-11-432.
1. Jurisdiction: Appeal and Error. An appellate court reviews de novo jurisdic-
tional determinations that do not involve a factual dispute.
2. Zoning. A zoning board is an administrative body performing quasi-judicial
functions.
3. Zoning: Standing. To apply for a variance from a zoning regulation, the appli-
cant must have standing.
4. Standing: Jurisdiction: Parties. 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.
5. ____: ____: ____. Standing is a component of jurisdiction; only a party that has
standing—a legal or equitable right, title, or interest in the subject matter of the
controversy—may invoke the jurisdiction of a court or tribunal.
6. Claims: Parties. generally, a litigant must assert the litigant’s own rights and
interests, and cannot rest a claim on the legal rights or interests of third parties.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

7. Corporations: States: Standing. A foreign corporation has the right to enter
court and defend itself.
8. Zoning: Standing. A property owner has standing to seek a variance from a
zoning ordinance that, if strictly enforced, would adversely affect the owner’s
property rights or interests.
9. Zoning: Standing: Vendor and Vendee: Contracts. A prospective purchaser
under a purchase agreement subject to the grant of a variance or rezoning of the
property has standing to seek the change.
10. Zoning: Standing: Vendor and Vendee: Options to Buy or Sell. The holder
of an option to purchase property has standing to apply for a variance when the
holder is bound to purchase the property if the variance is obtained or when the
property owner anticipated that the option holder would seek the variance to
complete the sale.
11. Standing: Jurisdiction: Proof. A party invoking a court’s or tribunal’s jurisdic-
tion bears the burden of establishing the elements of standing.
12. Standing. The stage of the litigation in which a party claims that its opponent
lacks standing affects how a court should dispose of the claim.
Appeal from the district Court for douglas County: mArlon
A. polk, Judge. Reversed and vacated, and cause remanded for
further proceedings.
david 	J. 	lanphier, 	of 	broom, 	Clarkson, 	lanphier 	&
Yamamoto, for appellants.
Rosemarie R. horvath, Assistant omaha City Attorney, for
appellees zoning board of Appeals of omaha and City of
omaha.
donald J. Kleine, of Pansing, hogan, Ernst & bachman,
l.l.P., for appellee Volunteers of America, dakotas.
H eAviCAn, C.J., wrigHt, C onnolly, stepHAn, mCC ormACk ,
and miller-lermAn, JJ.
per C uriAm.
SummARY
Volunteers of America, dakotas (VoA), proposed to build
an apartment-style building for veterans in omaha. To con-
struct the building as planned, VoA applied for variances from
area and use restrictions under the omaha municipal Code
(Code). VoA applied to the zoning board of appeals of omaha
(the board) for the variances. The appellants, Field Club
home owners league and Thornburg Place Neighborhood
848 	283 NEbRASKA REPoRTS

Association (collectively Field Club), opposed the application.
The board granted the variances, concluding that the 1987
Code created an unnecessary hardship because it did not con-
template a project like VoA’s.1 The district court affirmed the
board’s decision.
We conclude that the record fails to show that VoA had
standing to seek the variances. We therefore reverse and vacate
the court’s judgment. however, because Field Club raised
standing for the first time on appeal to this court, we conclude
that the district court must conduct an evidentiary hearing on
the issue. We remand the cause with instructions for the court
to conduct this further proceeding.
bACKgRouNd
VoA requested a number of variances related to setbacks,
landscaping, buffer yards, offstreet parking, and population
density. At the hearing before the board, numerous individ-
uals expressed their opinion that because the 1987 Code did
not anticipate the type of project envisioned by VoA, its strict
application constituted a hardship that justified the board’s
granting of these variances.2 After discussion amongst the vari-
ous parties and members of the board, the board granted the
requested variances, subject to specified conditions.
Field Club petitioned the district court to review the board’s
decision, arguing that the board’s decision was contrary to law.
While the petition was pending, Field Club moved the court
to allow additional discovery. Field Club did not, however,
specifically challenge VoA’s standing to seek the variances
or judicial review of the board’s order. The court overruled
Field Club’s discovery motion and admitted only the bill of
exceptions and certain sections of the Code into evidence. in
its order, the court explained that it could reverse the board’s
decision only if it was illegal or not supported by the evi-
dence, and thus arbitrary, unreasonable, or clearly wrong. After
reviewing the evidence, the court concluded that Field Club
1 See Neb. Rev. Stat. § 14-411 (Reissue 2007).
2 See id.
FiEld Club v. zoNiNg bd. oF APPEAlS oF omAhA 	849
Cite as 283 Neb. 847

had not met that standard. The court affirmed the board’s deci-
sion. Field Club appeals.
ASSigNmENTS oF ERRoR
Field Club assigned, renumbered and restated, that the dis-
trict court erred in
(1) finding that VoA had standing to request variances from
the board;
(2) failing to permit Field Club to conduct discovery or
adduce additional evidence; and
(3) affirming the board’s granting of the variances.
STANdARd oF REViEW
[1] We review de novo jurisdictional determinations that do
not involve a factual dispute.3
ANAlYSiS
Field Club argues that VoA lacked standing to request vari-
ances from the board because (1) it had not obtained a “cer-
tificate of authority” pursuant to Neb. Rev. Stat. § 21-20,169
(Reissue 2007) and (2) it did not have a legally cognizable
interest in the property.
[2-6] A zoning board is an administrative body performing
quasi-judicial functions.4 To apply for a variance from a zon-
ing regulation, the applicant must have standing.5 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 jurisdic-
tion and remedial powers on the party’s behalf.6 Standing is a
3 See, Trumble v. Sarpy County Board, ante p. 486, 810 N.W.2d 732 (2012);
Project Extra Mile v. Nebraska Liquor Control Comm., ante p. 379, 810
N.W.2d 149 (2012).
4 See, Eastroads v. Omaha Zoning Bd. of Appeals, 261 Neb. 969, 628
N.W.2d 677 (2001); Moulton v. Board of Zoning Appeals, 251 Neb. 95,
555 N.W.2d 39 (1996).
5 See, generally, Annot., 89 A.l.R.2d 663 (1963). Compare, Smith v. City
of Papillion, 270 Neb. 607, 705 N.W.2d 584 (2005); Hagan v. Upper
Republican NRD, 261 Neb. 312, 622 N.W.2d 627 (2001).
6 In re 2007 Appropriations of Niobrara River Waters, 278 Neb. 137, 768
N.W.2d 420 (2009).
850 	283 NEbRASKA REPoRTS

component of jurisdiction; only a party that has standing—a
legal or equitable right, title, or interest in the subject matter
of the controversy—may invoke the jurisdiction of a court or
tribunal.7 generally, a litigant must assert the litigant’s own
rights and interests, and cannot rest a claim on the legal rights
or interests of third parties.8
Relying on § 21-20,169(1), Field Club first argues that VoA
lacked standing to request variances from the board because
VoA had not obtained a certificate of authority. That section
provides that “[a] foreign corporation transacting business in
this state without a certificate of authority may not maintain a
proceeding in any court in this state until it obtains a certificate
of authority.”
[7] but § 21-20,169(1) does not apply here. Although VoA
is a foreign corporation, it is not “maintaining” a court proceed-
ing. it is Field Club that petitioned the district court and named
VoA as a defendant. And a foreign corporation certainly has
the right to enter court and defend itself.9
Field Club also contends that VoA lacked standing because
it had no legally cognizable interest in the property. Field Club
argues that the owner of the property was Kiewit Construction
Company, not VoA.
[8-10] A property owner obviously has standing to seek a
variance from a zoning ordinance that, if strictly enforced,
would adversely affect the owner’s property rights or inter-
ests.10 And the majority of courts that have considered the
issue also hold that a prospective purchaser under a purchase
agreement subject to the grant of a variance or rezoning of the
7 See id. See, also, Central Neb. Pub. Power Dist. v. North Platte NRD, 280
Neb. 533, 788 N.W.2d 252 (2010).
8 Central Neb. Pub. Power Dist., supra note 7.
9 See § 21-20,169(5).
10 See, 	8 	Eugene 	mcQuillin, The 	law 	of 	municipal 	Corporations
§ 25:179.33 (rev. 3d ed. 2010); 8A Eugene mcQuillin, The law of
municipal Corporations § 25:321 (rev. 3d ed. 2012); 89 A.l.R.2d, supra
note 5, § 3 (citing cases); 101A C.J.S. Zoning and Land Planning § 319
(2005).
FiEld Club v. zoNiNg bd. oF APPEAlS oF omAhA 	851
Cite as 283 Neb. 847

property has standing to seek the change.11 Similarly, courts
have held that the holder of an option to purchase property has
standing to apply for a variance when the holder is bound to
purchase the property if the variance is obtained or when the
property owner anticipated that the option holder would seek
the variance to complete the sale.12 We agree with these hold-
ings. We note that in appeals from administrative decisions,
the issue of standing is often raised with the party’s right to
seek review of the decision in court.13 but the standing ques-
tion is the same. if a party has standing to seek judicial review,
then it also had standing to request relief from the administra-
tive board.
here, it is true that the record fails to show that VoA
has standing to seek the variances. There was evidence of a
lease agreement between VoA and the department of Veterans
Affairs, to take effect once the building was fully constructed.
This evidence suggests that VoA has an ownership interest in
the property. And VoA also told the board that it would own
the property. but VoA did not 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 vari-
ances on the company’s behalf. on the other hand, Field Club
did not specifically challenge VoA’s standing until after VoA
prevailed with the board and the district court.
[11,12] A party invoking a court’s or tribunal’s jurisdiction
bears the burden of establishing the elements of standing.14
11 See, Robinson v. City of Huntsville, 622 So. 2d 1309 (Ala. Civ. App.
1993); Lenette Realty v. City of Chesterfield, 35 S.W.3d 399 (mo. App.
2000); Silverco, Inc. v. Zoning Bd. of Adjustment, 379 Pa. 497, 109 A.2d
147 (1954). See, also, Webb v. Fox, 105 N.m. 723, 737 P.2d 82 (N.m.
App. 1987); 8A mcQuillin, supra note 10, § 25:280; 89 A.l.R.2d, supra
note 5, § 4[b].
12 See, Babitzke v. Village of Harvester, 32 ill. App. 2d 289, 177 N.E.2d 644
(1961); Hatch v. Fiscal Court of Fayette County, 242 S.W.2d 1018 (Ky.
1951).
13 See, e.g., Central Neb. Pub. Power Dist., supra note 7.
14 See Lujan v. Defenders of Wildlife, 504 u.S. 555, 112 S. Ct. 2130, 119 l.
Ed. 2d 351 (1992).
852 	283 NEbRASKA REPoRTS

but we have previously explained that the stage of the litiga-
tion in which a party claims that its opponent lacks standing
affects how a court should dispose of the claim. in Citizens
Opposing Indus. Livestock v. Jefferson Cty.,15 a citizens group
and a village petitioned the district court to review a board of
adjustment’s order which granted a special use permit. After
the court conducted a trial on the petition, the board moved
to dismiss the litigation because the village and citizens group
lacked standing. We explained that because the litigation had
moved past the pleading stage, the board had raised a factual
challenge to the plaintiffs’ standing. We held that the court
erred in failing to conduct an evidentiary hearing on standing
before dismissing the litigation.
We conclude that the same reasoning applies here. At the
pleading stage, the standard for determining the sufficiency of
a complaint or petition to allege standing is fairly liberal. And
we have not previously held what specific factual allegations
a plaintiff must allege to show standing to seek variances. So
Field Club’s standing challenge raised a factual issue on appeal
that VoA did not anticipate. in this circumstance, we will not
order the trial court to dismiss the litigation based merely on
allegations in a complaint or petition. because this litigation is
well past the pleading stage, VoA is entitled to an opportunity
to demonstrate standing in an evidentiary hearing.
We therefore reverse and vacate the judgment and remand
the cause with directions to the district court to receive addi-
tional evidence and determine whether VoA has sufficient
interest in the property to seek the variances. We leave to the
district court’s discretion whether to permit additional discov-
ery on the issue. given our disposition of the standing issue,
we do not reach the merits of Field Club’s assigned error that
the court improperly granted the variances.
reversed And vACAted, And CAuse remAnded
for furtHer proCeedings.
15 Citizens Opposing Indus. Livestock v. Jefferson Cty., 274 Neb. 386, 740
N.W.2d 362 (2007).
FiEld Club v. zoNiNg bd. oF APPEAlS oF omAhA 	853
Cite as 283 Neb. 847