Rousseau v. Zoning Bd. of Appeals of Omaha

reverse the Commission’s decision upholding the termination
of Parent’s employment.
R eveRsed and Remanded with diRections.
maRk owen Rousseau, appellant, v. Z oning BoaRd
of appeals of omaha , neBRaska , and
elena keRwin, appellees.
764 N.W.2d 130
Filed March 24, 2009. 	No. A-08-453.
1. Zoning: Appeal and Error. On appeal, a district court may disturb the decision
of a zoning appeals board only when the decision was illegal or is not supported
by the evidence and is thus arbitrary, unreasonable, or clearly wrong.
2. ____: ____. In reviewing a decision of the district court regarding a zoning
appeal, the standard of review is whether the district court abused its discretion
or made an error of law. Where competent evidence supports the district court’s
factual findings, an appellate court will not substitute its factual findings for those
of the district court.
3. Judgments: Appeal and Error. A proper result will not be reversed merely
because it was reached for the wrong reason.
4. Zoning: Ordinances. A variance from a zoning regulation is not appropri-
ate where the person seeking the variance created the condition necessitating
the variance.
5. ____: ____. Standing alone, neither the desire to build a larger building nor the
desire to generate increased profits constitutes a sufficient hardship to justify a
variance from a zoning regulation.
Appeal from the District Court for Douglas County: thomas
a. otepka, Judge. Affirmed.
Marion F. Pruss for appellant.
Alan M. Thelen, Deputy Omaha City Attorney, for appellee
Zoning Board of Appeals of Omaha.
Charles M. Bressman, Jr., of Anderson & Bressman Law
Firm, P.C., L.L.O., for appellee Elena Kerwin.
caRlson, mooRe, and cassel, Judges.
rOuSSEAu v. ZONINg BD. OF APPEALS OF OMAhA 	469
Cite as 17 Neb. App. 469
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

cassel, Judge.
INTrODuCTION
Mark Owen rousseau appeals from the judgment of the dis-
trict court after a bench trial denying his request to reverse the
decision of the Omaha Zoning Board of Appeals (Board). The
Board granted Elena Kerwin three zoning variances, one of
which amounts to at most a matter of inches. We conclude that
the density of the existing development in the area where the
lot in issue is located is sufficient to support the district court’s
determination that the additional variances were appropriate
because of undue hardship.
BACKgrOuND
In 2005, Kerwin purchased a lot located in a portion of
Omaha, Nebraska, known as Dundee. Dundee is a residential
area originally developed at the end of the 19th century. At
the time Kerwin purchased the lot, it was vacant. A fire had
destroyed the structure previously standing on the property.
After initially making plans to build 11 total condominiums
on the property, Kerwin decided to build a four-story, four-
unit condominium that included an elevator. Kerwin wanted
to design a building in the old “federal” style with an interior
that would look like a condominium found “in Chicago or New
York.” Kerwin designed this particular building to fit the needs
of professionals coming from other parts of the country, who
she believed did not generally like the housing in Omaha that
was currently available.
Kerwin made changes in the project, working with an
Omaha city planner to attempt to make the building comply
with the Omaha Municipal Code. Kerwin had the project rede-
signed 11 times in an attempt to get it to comply with zoning
regulations before deciding to seek a waiver. Kerwin decided
that it would be impossible to accomplish her architectural
goals and comply with the existing zoning ordinances and
filed an appeal with the Board to seek variances. her applica-
tion stated that her grounds for seeking the variances were
as follows:
Waiver of variance to front yard setback ([Omaha Mun.
Code, ch. 55, art. VI, §] 55-246 [(1980)]) from 35 [feet]
470 	17 NEBrASKA APPELLATE rEPOrTS

to 20 [feet] to bring proposed structure into alignment
with adjacent buildings which average 19.33 [feet] on the
north side of Davenport Street. Waiver of off-street park-
ing requirement ([Omaha Mun. Code, ch. 55, art. XIV,
§] 55-734 [(2001)]) from 1.5 to 1.0 [parking stall] per unit
(6 to 4 stalls total) due to inner-city location with good
access to existing bus routes and availability of traditional
on-street parking locations[.]
On May 17, 2007, the Board heard Kerwin’s application for
variances. In addition to the two variances which Kerwin had
initially requested on her application, the Board considered a
third variance that would allow Kerwin to decrease her side
yard setback from 12 feet to 10 feet. Although the application
did not specifically request this variance, the notice provided
to the interested parties stated this and Kerwin’s building plans
as submitted to the Board indicated that this variance would be
necessary. At the hearing, an attorney appeared on behalf of
rousseau, who owned the property directly west of Kerwin’s
lot, to oppose the application. At the conclusion of the hearing,
the Board granted all three proposed variances.
rousseau then filed a complaint in district court to seek a
reversal of the Board’s decision as to all three variances. On
March 3, 2008, the parties tried this matter before the dis-
trict court.
At trial, Kerwin admitted that it was possible to build a
multiple-family residential building on the lot and still com-
ply with zoning regulations. Nevertheless, Kerwin contended
that the zoning regulations prohibited her from building the
particular style of building that she desired to build. Kerwin
adduced evidence that the zoning regulations from which she
sought a variance were designed to control growth in more
suburban areas.
rousseau testified that he believed Kerwin’s proposed build-
ing plans would decrease the value of his property. he also
stated that Kerwin’s failure to provide parking as per the zon-
ing regulations would be problematic because there is limited
parking available on the street.
The district court upheld the Board’s decision. The court
found that the zoning regulations permitted Kerwin’s proposed
rOuSSEAu v. ZONINg BD. OF APPEALS OF OMAhA 	471
Cite as 17 Neb. App. 469

front yard setback without a variance. The court also found that
the density of the neighborhood was a hardship that justified
the side yard setback and parking space variances.
rousseau timely appeals.
ASSIgNMENT OF ErrOr
rousseau’s sole assignment of error is that the district court
erred in determining that any evidence existed to support the
Board’s finding that there were practical difficulties or unneces-
sary hardships justifying a waiver of Omaha’s existing zon-
ing ordinances.
STANDArD OF rEVIEW
[1,2] On appeal, a district court may disturb the decision of
a zoning appeals board only when the decision was illegal or is
not supported by the evidence and is thus arbitrary, unreason-
able, or clearly wrong. Goodman v. City of Omaha, 274 Neb.
539, 742 N.W.2d 26 (2007). In reviewing a decision of the
district court regarding a zoning appeal, the standard of review
is whether the district court abused its discretion or made an
error of law. Eastroads v. Omaha Zoning Bd. of Appeals, 261
Neb. 969, 628 N.W.2d 677 (2001). Where competent evidence
supports the district court’s factual findings, an appellate court
will not substitute its factual findings for those of the district
court. Id.
ANALYSIS
rousseau argues that Kerwin was unable to demonstrate
sufficient hardship to justify the variances. Neb. rev. Stat.
§ 14-411 (reissue 2007) supplies the applicable standard
governing the Board’s power to grant variances from zon-
ing ordinances. The applicable portion of § 14-411 states
as follows:
Where there are practical difficulties or unnecessary
hardships in the way of carrying out the strict let-
ter of such ordinance, the board of appeals shall have
the power in passing upon appeals, to vary or modify
the application of any of the regulations or provisions
of such ordinance relating to the use, construction or
alteration of buildings or structures or the use of land,
472 	17 NEBrASKA APPELLATE rEPOrTS

so that the spirit of the ordinance shall be observed,
public safety and welfare secured, and substantial jus-
tice done.
Neb. rev. Stat. § 14-413 (reissue 2007) provides for an
appeal from the Board’s decision to the district court on the
ground that the decision is illegal, and states in pertinent part
as follows:
Any person or persons . . . aggrieved by any decision
of the board of appeals, or any officer, department, board
or bureau of the municipality, may present to the district
court a petition, duly verified, setting forth that such deci-
sion is illegal, in whole or in part, specifying the grounds
of such illegality.
Front Yard Setback “Variance.”
First, it is clear that the front yard setback variance which
Kerwin requested is at most a minor deviation from the require-
ments of the applicable ordinances. Kerwin requested a front
yard setback of 20 feet. Omaha Mun. Code, ch. 55, art. VI,
§ 55-246 (1980), provides that in an r7 district, the minimum
front yard setback is 35 feet. Thus, at first glance, it appears
that Kerwin was requesting a substantial variance.
however, where existing nearby buildings have a lesser
setback than the one required by current standards, the code
provides an adjustment to the otherwise applicable setback.
Omaha Mun. Code, ch. 55, art. XVI, § 55-782(c) (1995), pro-
vides an explicit exception to the regular setback requirement
and specifies three alternative substitutes, one of which is perti-
nent to the instant case. Section 55-782(c) states:
Setback 	adjustment 	for 	developed 	residential 	blocks.
These provisions apply if 75 percent or more of the lots
on a residentially zoned blockface are developed and if
50 percent or more of the buildings on that blockface
have front yard setbacks less than those required for the
specific district.
(1) If a building is to be built on a parcel of land
within 100 feet of existing buildings on both sides, the
minimum front yard shall be the mean setbacks of the
adjacent buildings.
rOuSSEAu v. ZONINg BD. OF APPEALS OF OMAhA 	473
Cite as 17 Neb. App. 469

(2) If a building is to be built on a parcel of land
within 100 feet of an existing building on one side only,
the minimum front yard shall be the setback of the adja-
cent building.
(3) If a building is to be built on a parcel of land not
within 100 feet of an existing building on either side, then
the minimum front yard shall be the mean setback of all
existing buildings on the blockface.
(Emphasis in original.) The evidence clearly shows that the
75- and 50-percent criteria of § 55-782(c) were satisfied. The
evidence also shows that Kerwin’s building was to be built on
a parcel of land within 100 feet of existing buildings on both
sides. Thus, the exception provided by § 55-782(c)(1) applies
to the instant case, and the required setback is determined
by the average setback of the adjacent buildings. The Board
granted a “variance” of the front yard setback.
The district court’s order indicated that no actual variance
was required, but the court apparently relied upon the wrong
exception. In so doing, the court stated that “the average
front yard setback for the nine structures on the north side of
Davenport [Street] is 19.33 [feet].” The court apparently rea-
soned that Kerwin’s proposed 20-foot setback exceeded the
19.33-foot-average setback of all buildings on the block. This
would have been correct under § 55-782(c)(3), if Kerwin’s lot
was not within 100 feet of an existing building on either side.
however, the evidence is clear and undisputed that Kerwin’s lot
was bordered on both sides by buildings within 100 feet. Thus,
§ 55-782(c)(1) applies, and the exception looks only to the
average setback of the immediately adjoining structures.
The evidence is not entirely clear that any variance of
the front yard setback was required. Omaha’s city planning
department seemed to treat the proposed setback as being in
conformity with the applicable ordinance prior to the hearing
before the Board. At the trial before the district court, robert
Peters, an architect who had retired in 2005 from his post as
director of Omaha’s city planning department, testified that the
range of setbacks along the applicable street was 15 to 25 feet.
Kerwin also introduced an exhibit which shows the structures
on each side of Kerwin’s lot having respective setbacks of
474 	17 NEBrASKA APPELLATE rEPOrTS

15 and 25 feet. If these distances were precisely correct, the
Omaha code setback, applying § 55-782(c)(1), would be 20
feet, and no variance would have been required. however, this
exhibit was generated by a computer-based tool utilizing aerial
photographs, and the exhibit sets forth a disclaimer stating that
“accuracy is not guaranteed” and that the document “should
not be substituted for a . . . survey.”
If a variance of the front yard setback is required, it amounts
only to a matter of inches. Another exhibit showed the exist-
ing setbacks of the adjoining buildings as 15.40 feet and 24.90
feet, respectively. under § 55-782(c)(1), the average of those
setbacks, or 20.15 feet, would constitute the code require-
ment, and Kerwin’s proposed setback would be approximately
1.8 inches less than the requirement. As Peters explained at
the trial, the request for a variance of the front yard setback
was made “because we get into decimal points” and because
“it becomes a requirement on the owner to spend 5 to 500 to
$1000 for a survey to justify the placement of that setback
when common sense and looking at the existing setbacks
would say . . . that you place it in the midpoint.”
[3] The district court found that no variance was required,
but relied on an incorrect understanding of the Omaha code.
however, the Board’s decision to grant this insignificant vari-
ance was supported by the evidence and was neither arbitrary,
unreasonable, nor clearly wrong. A proper result will not be
reversed merely because it was reached for the wrong reason.
In re Trust Created by Cease, 267 Neb. 753, 677 N.W.2d
495 (2004).
Side Yard and Parking Variances.
rousseau also argues that the district court erred in grant-
ing Kerwin variances which permitted her to decrease the side
yard setback from 12 feet to 10 feet and decrease the number
of on-property parking spaces from six to four. Section 55-246
requires that multiple-family dwellings in an r7 residential dis-
trict have an interior side yard setback of 10 feet if the building
is 45 feet or less high and “2 additional feet for each 10 feet
or fraction thereof over 45 feet in height.” Because Kerwin’s
proposed plans demonstrated that the building would be at
rOuSSEAu v. ZONINg BD. OF APPEALS OF OMAhA 	475
Cite as 17 Neb. App. 469

least 47 feet tall, the code required a setback of 12 feet. Omaha
Mun. Code, ch. 55, art. XIV, § 55-734 (2001), also requires
that a multiple-family dwelling unit provide 11⁄2 off-street
parking places for each one-bedroom unit. Because Kerwin’s
proposed building contained four one-bedroom units, the code
required six off-street parking places.
At trial, the parties adduced conflicting testimony regarding
whether there was a sufficient hardship to justify granting the
variances. Kerwin testified that the current zoning regulations
would prevent her from building the style of building that
she desired to build. Kerwin also called Peters, who testi-
fied that historically, Dundee was developed into small lots
for high-density worker housing. Peters testified that Dundee
was developed with the assumption that only one off-street
parking stall per unit would be available due to the extensive
availability of nearby public transportation when the area
was developed. Peters also stated that the current version of
the zoning regulations was “definitely drafted to adequately
control suburban growth” and “not as friendly” as other codes
regarding existing development. Peters commented that in his
experience, three out of four of the Board’s cases came from
the inner city.
In response, rousseau called an architect who testified that
he believed that the lot was not located in a high-density area.
rousseau also testified that he believed that Kerwin’s proposed
structure was not appropriate for the neighborhood and would
decrease his property value.
In deciding to uphold the side yard setback and parking
variances, the district court characterized the issues as “ques-
tions of density.” The court characterized Dundee as having a
“densely developed nature” relating to its “develop[ment] at
the turn of the 20th Century.” These findings are supported by
Peters’ trial testimony. Because competent evidence supports
the findings, we will not substitute our factual findings for
those of the district court. See Eastroads v. Omaha Zoning Bd.
of Appeals, 261 Neb. 969, 628 N.W.2d 677 (2001).
rousseau claims that since the lot at issue can be developed
in compliance with current zoning ordinances, there is no prac-
tical difficulty or substantial hardship that justifies a variance.
476 	17 NEBrASKA APPELLATE rEPOrTS

rousseau relies on Frank v. Russell, 160 Neb. 354, 70 N.W.2d
306 (1955), in this assertion. In Frank v. Russell, the Nebraska
Supreme Court announced a general rule regarding when it is
appropriate for a board of adjustment to grant a variance. As is
relevant to this case, the court explained:
It appears that the rule respecting the right of a board
of adjustment, such as the one here, to grant a variance
from zoning regulations on the ground of unnecessary
hardship is generally that it may not be granted: unless
the denial would constitute an unnecessary and unjust
invasion of the right of property; . . . if it relates only to
a financial situation or hardship to the applicant; if the
hardship is based on a condition created by the applicant;
if the hardship was intentionally created by the owner; if
the variation would be in derogation of the spirit, intent,
purpose, or general plan of the zoning ordinance; if the
variation would affect adversely or injure or result in
injustice to others; or ordinarily if the applicant purchased
his premises after enactment of the ordinance.
Id. at 362-63, 70 N.W.2d at 312. Specifically, rousseau argues
that pursuant to Frank v. Russell, Kerwin may not claim hard-
ship, because the zoning regulation did not cause Kerwin a
hardship tantamount to a taking, Kerwin purchased the lot after
the regulations went into effect, and Kerwin’s proposed struc-
ture would injure his property value.
First, as the Board correctly responds, the Nebraska Supreme
Court has on several occasions approved zoning variances
under circumstances that obviously did not constitute a taking
or an unjust invasion of the fundamental right of property. See,
e.g., Barrett v. City of Bellevue, 242 Neb. 548, 495 N.W.2d
646 (1993) (board ordered to allow variances in height and
setback of fence); McClelland v. Zoning Bd. of Appeals, 232
Neb. 711, 441 N.W.2d 893 (1989) (board ordered to issue
variance for deck, roof, and stairs); Roncka v. Fogarty, 152
Neb. 467, 41 N.W.2d 745 (1950) (affirming variance of rear
yard setback).
[4] Second, the Nebraska Supreme Court has more recently
held that the word “ordinarily” in the context of the above-
quoted language of Frank v. Russell means that a previously
rOuSSEAu v. ZONINg BD. OF APPEALS OF OMAhA 	477
Cite as 17 Neb. App. 469

passed zoning ordinance does not automatically preclude a
new owner from being able to seek a variance. See Eastroads
v. Omaha Zoning Bd. of Appeals, supra. In Eastroads v. Omaha
Zoning Bd. of Appeals, the court found that existing ordinances
“do not remove the board’s discretion, in an appropriate case,
to relax the ‘strict letter’ of the zoning code by granting a
variance.” 261 Neb. at 979, 628 N.W.2d at 684. Further, the
court commented that this portion of the Frank v. Russell hold-
ing was dicta. In Frank v. Russell, the court’s explicit holding
was only that a variance is not appropriate where the person
seeking the variance had created the condition necessitating
the variance.
Third, it appears that the trial court considered rousseau’s
testimony that the proposed structure would impair his property
value and did not accord weight to it. We will not substitute our
factual findings for those of the district court.
[5] The ultimate question is whether the particular form of
hardship found here—where the density of an already existing,
land-poor development conflicts with a strict application of
area requirements—is sufficient to justify a variance. Certain
factual circumstances are by themselves insufficient to justify
a finding of hardship. We acknowledge that, standing alone,
neither the desire to build a larger building, see Alumni Control
Board v. City of Lincoln, 179 Neb. 194, 137 N.W.2d 800 (1965),
nor the desire to generate increased profits, see Bowman v. City
of York, 240 Neb. 201, 482 N.W.2d 537 (1992), constitutes a
sufficient hardship to justify a variance. Although these two
cases were decided under different variance standards than
the one at issue today, the reasoning justifying the decisions
is applicable to the present case. Beyond these situations and
the situation in Frank v. Russell, 160 Neb. 354, 70 N.W.2d 306
(1955), where the applicant created his own hardship, there are
not hard and fast rules.
generally, it is the zoning board of appeals’ duty, and
not the function of a court, to make this kind of decision.
The Legislature has granted zoning boards of appeals sig-
nificant leeway in making decisions and has required district
courts to uphold a board’s decision, barring illegality, insuf-
ficient evidentiary support, or an arbitrary, unreasonable, or
478 	17 NEBrASKA APPELLATE rEPOrTS

clearly wrong decision. See Eastroads v. Omaha Zoning Bd. of
Appeals, 261 Neb. 969, 628 N.W.2d 677 (2001). Specifically,
the Supreme Court has explained that administrative agencies
including the zoning board of appeals provide
“expertise and an opportunity for specialization unavail-
able in the judicial or legislative branches. They are able
to use these skills, along with the policy mandate and dis-
cretion entrusted to them by the legislature, to make rules
and enforce them in fashioning solutions to very complex
problems. Thus, their decisions are not to be taken lightly
or minimized by the judiciary.”
Id. at 979, 628 N.W.2d at 684 (quoting Bowman v. City of
York, supra). We recognize that the Board is dealing with the
complex problem of zoning ordinances that must accommo-
date existing development by granting limited exemptions to
their requirements. We are not called to determine whether
we would make the same decision under the applicable stan-
dard. Therefore, we find that the district court did not abuse
its discretion or make an error of law in upholding the
Board’s decision.
CONCLuSION
The variance for Kerwin’s proposed front yard setback is
either unnecessary because the proposed setback complies
with § 55-782(c)(1) or a minor variance amounting to a mere
matter of inches. The district court did not abuse its discre-
tion or make an error of law in determining that the density
of the already existing development in Dundee was sufficient
hardship to justify upholding the Board’s decision to grant the
other variances.
affiRmed.
rOuSSEAu v. ZONINg BD. OF APPEALS OF OMAhA 	479
Cite as 17 Neb. App. 469