Brothers v. City of Norfolk Bd. of Adjustment
| Decision Date | 28 March 2014 |
| Docket Number | No. S–13–253,S–13–253 |
| Court | Nebraska Supreme Court |
| Parties | Rodehorst Brothers, Appellant, v. City of Norfolk Board of Adjustment, Appellee. |
OPINION TEXT STARTS HERE
Appeal from the District Court for Madison County: James G. Kube, Judge. Affirmed.
Glenn A. Rodehorst, for appellant.
Clint Schukei, Norfolk City Attorney, for appellee.
1. 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 a 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.
2. Abandonment: Intent: Words and Phrases. Generally, the right to continue a nonconforming use may be lost through abandonment. Abandonment requires not only a cessation of the nonconforming use, but also an intent by the user to abandon the nonconforming use.
3. Ordinances: Zoning. Zoning laws should be given a fair and reasonable construction in light of the manifest intention of the legislative body, the objects sought to be attained, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the law as a whole.
4. Ordinances: Zoning. Where the provisions of a zoning ordinance are expressed in common words of everyday use, without enlargement, restriction, or definition, they are to be interpreted and enforced according to their generally accepted meaning.
5. Ordinances: Zoning. Nonconforming uses are disfavored because they reduce the effectiveness of zoning ordinances, depress property values, and contribute to the growth of urban blight.
6. Zoning: Ordinances: Intent: Time. Where a zoning law provides for the termination of a legal, nonconforming use after it has been “discontinued” for a reasonable period, there is no requirement to show intent to abandon the nonconforming use.
7. Zoning: Ordinances. Whether a building is usable as a nonconforming use does not mean that it is actually used in that manner.
8. Zoning: Ordinances: Words and Phrases. A “use” variance is one which permits a use other than that prescribed by the particular zoning regulation. An “area” variance, on the other hand, has no relationship to a 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.
9. Zoning: Ordinances.Neb.Rev.Stat. § 19–910 (Reissue 2012) allows 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 exceptional practical difficulties or undue hardships to the owner.
10. Appeal and Error. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the party's brief.
11. Zoning: Property. While property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.
12. Zoning: Property. Under Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), relief is possible from a regulatory taking which does not deprive the owner of all economic use of the property.
Rodehorst Brothers, a partnership (Rodehorst), owns a fourplex apartment building in Norfolk, Nebraska. The parties agree that the building's use as a fourplex (to house up to four families), in an area zoned R–2 for one- and two-family use, was a legal, nonconforming use. Neb.Rev.Stat. § 19–904.01 (Reissue 2012), as well as the applicable zoning ordinance, both provide that the right to continue such a use is lost if it has been discontinued for 1 year. Because the record shows that Rodehorst discontinued the use for 1 year, we conclude that it forfeited its right to continue the use. We also conclude that the City of Norfolk Board of Adjustment (the Board) lacked authority under Neb.Rev.Stat. § 19–910 (Reissue 2012) to grant a “use” variance to otherwise allow the use to continue and that there was no “taking” of Rodehorst's property. We affirm.
Rodehorst applied for several building permits for its apartment building in 2010 and 2011. It applied for permits to replace the roof, fix some electrical issues, and remodel the apartments in the building. The building inspector, Steve Nordhues, granted the first two permits, but denied the third. Nordhues denied the third permit because he concluded that Rodehorst had forfeited its right to continue its nonconforming use of a fourplex in an R–2 district.
Rodehorst appealed the denial of the permit to the Board. Rodehorst also asked the Board to grant it a use variance to allow it to continue operating the building as a fourplex. At a hearing on September 12, 2012, Rodehorst argued that it did not forfeit its right to continue using the building as a fourplex just because several of its apartments had been unoccupied. And Rodehorst argued that it deserved a variance to continue using the building as a fourplex because, otherwise, it would suffer an undue hardship. The City of Norfolk (the City) argued that Rodehorst had forfeited its right to continue its nonconforming use because it had been discontinued for 1 year and that the Board did not have authority to grant a use variance.
Several people, including Nordhues and a partner of Rodehorst, spoke at the hearing. The Rodehorst partner essentially argued that the property had always been a fourplex, that there were clearly four apartment units, and that its use had not changed simply because some of the apartments had been unoccupied for several years. He also explained that he had been trying to “fix it up” and that there had been work done on the building “off and on.”
Nordhues spoke about his reasons for granting and denying Rodehorst's applications for building permits. He explained that he granted the first two permits because those repairs helped “[e]nsure the health, safety and welfare of the occupants at that time.” Nordhues denied the third permit, however, to remodel the four apartments “[b]ecause it was R–2 zoning and [Rodehorst] wanted it multiple use there, multifamily use.”
Explaining further, Nordhues said that in his opinion, Rodehorst had forfeited its right to continue its nonconforming use as a fourplex in an R–2 district. In coming to this conclusion, Nordhues relied on § 27–50 of the City's code which provides: “In the event that a nonconforming use is discontinued, or its normal operation stopped, for a period of one year, the use of the same shall thereafter conform to the uses permitted in the district in which it is located.” 1 Nordhues explained that based on power and water usage records, “at least two of the apartments hadn't been occupied, one since August 8th of 2007 and the other since April 16th of 2008.” A third apartment had not been occupied since March 29, 2010. Thus, Rodehorst had discontinued its nonconforming use by not having more than two apartments occupied for more than 1 year and Rodehorst now was required to comply with the R–2 zoning designation. The Board agreed. The Board also concluded that it did not have authority to grant a use variance.
Rodehorst then appealed to the district court. Rodehorst reiterated many of the same arguments that it had made to the Board. It argued that it had not forfeited its right to continue the nonconforming use simply by failing to rent out the apartments. It emphasized that the building remained a fourplex and that its use as such continued whether the apartments were occupied or not. It further argued that even if it had forfeited its right to continue the nonconforming use, the Board erred in concluding it did not have the authority to grant a use variance. And Rodehorst made several arguments as to why the Board's ruling violated its constitutional rights. Primarily, Rodehorst argued that the Board's ruling was an unconstitutional taking.
The district court affirmed the Board's decision in all respects. The court determined that the Board did not have authority to grant a use variance. The court noted that the City's code defined “ ‘variance’ ” as “ ‘relief from or variation of the provisions of this chapter, other than use regulations, as applied to a specific piece of property, as distinct from rezoning.’ ” The court explained that the Board could grant variances based only on “certain physical characteristics of the actual ground or land in question,” rather than the structures placed on the land.
The court also determined that Nordhues' denial of the building permit to remodel the apartments was proper. The court recounted the evidence admitted at the Board hearing; specifically, that Rodehorst had not had more than two apartments occupied in several years, that power and water usage records supported that conclusion, and that Rodehorst had not presented any evidence that “any effort had been made to rent the apartments [or] that the apartments were in a condition to be rented.” The court concluded that Rodehorst had “failed to present any evidence that the property had been used as a fourplex within the past twelve months” and that Rodehorst had forfeited its right to continue the nonconforming use.
Rodehorst assigns, restated, consolidated, and reordered, that the district court erred in (1) finding that Rodehorst had forfeited its right to continue the nonconforming use by...
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