Alumni Control Bd., Alpha Psi Chapter, Delta Sigma Phi Fraternity, Inc. v. City of Lincoln

• Decision Date: 29 October 1965
• Docket Number: No. 35949,35949
• Parties: ALUMNI CONTROL BOARD, ALPHA PSI CHAPTER, DELTA SIGMA PHI FRATERNITY, INC., Appellant, v. CITY OF LINCOLN, a municipal corporation, Appellee.
• Court: Nebraska Supreme Court

Page 800

137 N.W.2d 800

179 Neb. 194

ALUMNI CONTROL BOARD, ALPHA PSI CHAPTER, DELTA SIGMA PHI FRATERNITY, INC., Appellant, v. CITY OF LINCOLN, a municipal corporation, Appellee.

No. 35949.

Supreme Court of Nebraska.

Oct. 29, 1965.

Syllabus by the Court

1. The disposition of a case involving an area variance and 'practical difficulty' under a zoning ordinance depends on the facts and circumstances of each particular case.

2. The acts of a board of zoning appeals are subject to review and reversal only if they constitute an abuse of discretion and are unreasonable, arbitrary, or illegal.

3. A litigant who invokes the provisions of a statute may not challenge its validity; nor seek the benefit and in the same action and at the time question its constitutionality.

O'Neal & Krause, Lincoln, for appellant.

Ralph D. Nelson, City Atty., Henry L. Holst, Deputy City Atty., Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.

McCOWN, Justice.

This case involves an application for a building permit requiring a variance in front, rear, and side yard requirements and in offstreet parking requirements of the zoning provisions of the Lincoln municipal code. The application was denied by the building inspector, by the board of zoning appeals, and by the city council, and the denial was affirmed by the district court. The plaintiff has appealed.

The property involved is a corner lot having a 50-foot frontage on one street and a 92-foot frontage on the other. The property was in single separate ownership at the time of the adoption of the Lincoln zoning code in 1953. The plaintiff purchased the property in 1955 and apparently has occupied and used the property since then as a fraternity house which, at the time of this application, housed 21 young men. The property is located in an F-restricted commercial district. Permitted uses are for single or two-family residences, multiple dwellings, fraternities, sororities, boarding and lodging houses, non-profit hospital, religious, educational, and philanthropic institutions, private clubs and lodges (where the chief activity is not a service carried on as a business), apartment hotels, and office buildings. The building proposed is a four-story building 30 by 60 feet. Under the provisions of the code, a building 28 by 48.6 feet was the maximum size permitted. The variances requested involved front, rear, and side yard reductions varying from 5 feet to 6.4 feet. The offstreet parking under the zoning code was required to be on the premises or within 1,200 feet, while the offstreet parking proposed was 1,280 feet from the premises.

The evidence is that a fraternity house could be built within the requirements of the city zoning code to house 48 men, but that it would not comply with the University of Nebraska housing code which became mandatory September 1, 1965. The evidence also is that a fraternity house could be built within the requirements of the city zoning code and also in compliance with the University of Nebraska housing code, but that such a fraternity house could accommodate only 36 men.

The plaintiff's position is that it is not economically desirable to construct a fraternity house for less than 48 men, and that this fact, together with the requirements of the University of Nebraska housing code, constitute 'practical difficulties' sufficient to require the granting of the variances.

Use variances are customarily concerned with 'hardship' while area variances are customarily concerned with 'practical difficulty.' A use variance is one which permits a use other than that prescribed by the zoning ordinance in a particular district. An area variance has no relationship to change of use. It is primarily a grant to erect, alter, or use a structure for a permitted use in a manner other than that prescribed by the restrictions of the zoning ordinance. Area variances are principally involved in this case.

The disposition of a case involving an area variance and 'practical difficulty' under a zoning ordinance depends on the facts and circumstances of each particular case. In most instances in which courts have found that a 'practical difficulty' was present in an area variance case, they have apparently relief on the fact that the case involved substandard lots as to which the practical difficulty was obvious. This case does not involve a 'substandard' lot, i. e., having a smaller size or having a lesser frontage than the required minimum. 1 Rathkopf, The Law of Zoning and Planning (3d ed.), 32-1. The minimum area requirements in this zoning district are: Single family or two-family residences, 4,000 square feet; multiple family residences, 500 square feet per family; and there is no minimum area restriction for fraternities. The plaintiff's lot is 4,600 square feet and it has a 50-foot frontage which is also not substandard.

The criteria generally and properly before a board of appeals on an application for a variance from area restrictions of a zoning code are: (1) Whether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk, or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome; (2) whether a grant of the variance applied for would do substantial justice to the applicant as well as to other property owners in the district, or whether a lesser relaxation than that applied for would give substantial relief to the...