Bowman v. City of York

• Decision Date: 13 March 1992
• Docket Number: No. S-89-826,S-89-826
• Citation: Bowman v. City of York, 240 Neb. 201, 482 N.W.2d 537 (Neb. 1992)
• Parties: Harold BOWMAN and Donna Bowman, Husband and Wife, Appellees and Cross-Appellees, v. CITY OF YORK et al., Appellees and Cross-Appellants, and York Cold Storage Company, Inc., Intervenor-Appellant.
• Court: Nebraska Supreme Court

Page 537

482 N.W.2d 537

240 Neb. 201

Harold BOWMAN and Donna Bowman, Husband and Wife, Appellees and Cross-Appellees, v. CITY OF YORK et al., Appellees and Cross-Appellants and York Cold Storage Company, Inc., Intervenor-Appellant.

No. S-89-826.

Supreme Court of Nebraska.

March 13, 1992.

Syllabus by the Court

1. Administrative Law: Governmental Subdivisions. An administrative agency is a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking.

2. Zoning: Administrative Law. Boards of adjustment function primarily as administrative agencies.

3. Zoning: Evidence: Appeal and Error. A district court may disturb a decision of a board of adjustment only if the board's decision was illegal or is not supported

by the evidence and is thus arbitrary, unreasonable, or clearly wrong.

4. Zoning: Evidence: Appeal and Error. In deciding whether a board of adjustment's decision is supported by the evidence, the district court shall consider any additional evidence it receives.

5. Zoning: Courts: Appeal and Error. In appeals involving a decision of a board of adjustment, an appellate court reviews the decision of the district court, and irrespective of whether the district court took additional evidence, the appellate court is to decide if, in reviewing the decision of a board of adjustment, the district court abused its discretion or made an error of law; where competent evidence supports the district court's factual findings, the appellate court will not substitute its factual findings for those of the district court.

6. Zoning: Ordinances. Neb.Rev.Stat. § 19-910 (Reissue 1987) empowers a board of adjustment to grant a variance from a zoning regulation only if strict application of the regulation, because of the unusual physical characteristics of the property existing at the time of the enactment, would result in peculiar and exceptional practical difficulties to or exceptional and undue hardships upon the owner.

7. Zoning: Words and Phrases. An undue hardship is a demonstrable and exceptional hardship, as distinguished from variations for purposes of convenience, profit, or caprice.

8. Zoning: Ordinances. The financial situation or pecuniary hardship of a single owner affords no adequate grounds for granting a variance from a zoning regulation.

9. Waiver: Words and Phrases. Waiver is a voluntary and intentional relinquishment of a known, existing legal right or conduct from which such relinquishment can be inferred.

10. Waiver: Estoppel. To establish the waiver of a legal right, there must be clear, unequivocal, and decisive action of the party showing such purpose, or acts which amount to an estoppel.

11. Judgments: Restitution: Zoning: Appeal and Error. Just as a plaintiff who collects a judgment which is appealed but is not superseded takes the risk of having to make restitution, so, too, does one who builds in accordance with a zoning variance which is appealed take the risk that it will have to tear down what it has built.

12. Zoning: Notice: Appeal and Error. Expenditures made in accordance with a zoning variance after notice that the grant of the variance has been appealed are not made in good faith reliance on the variance.

13. Pretrial Procedure: Pleadings: Interventions. The direct and immediate interest which requires the granting of a motion for leave to intervene is such an interest that the one seeking to intervene will either lose or gain by the direct application of the judgment.

14. Injunction. Under the provisions of Neb.Rev.Stat. § 19-912 (Reissue 1987), a district court may grant permanent mandatory injunctive relief.

15. Actions: Pleadings: Evidence. The prayer of a petition is not a part of the allegations of fact constituting the cause of action; thus, where the facts alleged state a cause of action and are supported by the evidence, the court will grant proper relief, although it may not conform to the relief requested.

Robert T. Grimit and Gail S. Perry, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for intervenor-appellant.

Rex R. Schultze, of Perry, Guthery, Haase & Gessford, P.C., Lincoln, for appellees Bowman.

Vincent Valentino, of Angle, Murphy, Valentino & Campbell, P.C., York, for appellees City of York et al.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. INTRODUCTION

The City of York, an appellee in this court, through its board of adjustment, granted a zoning variance to York Cold Storage Company, Inc. The abutting property owners, Harold Bowman and his wife, Donna Bowman, also appellees in this court, challenged the board's decision in the district court. That court reversed the grant of the variance and ordered York Cold Storage to tear down the portion of the structure erected in accordance with the variance. York Cold Storage, which had intervened in the district court, then appealed to this court, assigning as errors the district court's (1) finding that the variance was granted illegally, (2) failure to find that the Bowmans had waived their right to challenge the variance, (3) failure to find that York Cold Storage had detrimentally relied in good faith on the variance and thus had a vested right to use its property in accordance therewith, and (4) order to remove the offending portion of the structure. The City of York cross-appealed, joining in appellant York Cold Storage's claim that the district court erred in finding that the variance was granted illegally and adding the assertion that the district court erred in permitting an expert witness to testify. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Bowmans purchased realty abutting to the east of the realty owned by York Cold Storage. At the time of the Bowman purchase, both pieces of abutting property were zoned residential.

In April 1987, York Cold Storage applied to have its property zoned to permit heavy industrial use. Following a public hearing, the planning commission of the City of York recommended approval of the zoning change notwithstanding the Bowmans' objection. The City of York then amended its zoning ordinance in accordance with the commission's recommendation.

York Cold Storage next applied for a permit authorizing it to build a warehouse on its property such that its 30-foot high rear wall would be within 1 foot of the line dividing its property from that of the Bowmans. However, the heavy-industrial-use zoning designation requires a 15-foot rear yard building setback when the property abuts a residential zone. Accordingly, York Cold Storage requested a 14-foot variance from the required rear setback.

Neb.Rev.Stat. § 19-910 (Reissue 1987) provides that a board of adjustment shall have the power,

where by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the enactment of the zoning regulations, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any enacted regulation ... would result in peculiar and exceptional practical difficulties to or exceptional and undue hardships upon the owner of such property, to authorize, upon an appeal relating to the property, a variance from such strict application so as to relieve such difficulties or hardship, if such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any ordinance or resolution.

Section 19-910 further provides:

No such variance shall be authorized by the board unless it finds that: (a) The strict application of the zoning regulation would produce undue hardship; (b) such hardship is not shared generally by other properties in the same zoning district and the same vicinity; (c) the authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance; and (d) the granting of such variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice.

The foregoing criteria are also found in the York Code of Ordinances, app. A, art. XXVII, § 10 (1986).

At the hearing before the board, a vice president and director of York Cold Storage, Roger Sack, testified:

Our hardship is potentially financial. But I don't want to really dwell on that because I think in the broader sense the only representation we can make and we have a past history to back it up, is that the intent of this project is to lead to a substantial increase in local employment. It is not guaranteed but this sure won't happen without it. We have a substantial prospect for a materially large facility coming in to utilize this building which we cannot get unless we build it up first to prove it. So if we want to talk about adversity it is more along the lines of broader community risk. But going to negotiation is one thing or another--it isn't really the sort of thing that we can come right out and sit down and tell stories the way we would like to about exactly who we are talking to and what they are saying. But we do want to make the representation that we think the project will not only be a substantial benefit to the community not the least of which is $5,000 of [sic] $6,000 a year in taxes instead of $35.... So the adversity I could recite that in dollars but I think it might be inappropriate and it may be technically irrelevant in terms of our own direct situation but I can guarantee you that it would be adverse to the community.

Sack conceded, however, that "it would be mechanically as easy to build the building farther west thereby utilizing the 15 foot setback, however, the building would have to be smaller and that is against the interests of the...