Stratbucker Children's Trust v. Zoning Bd. of Appeals

• Decision Date: 26 March 1993
• Docket Number: No. S-90-949,S-90-949
• Parties: STRATBUCKER CHILDREN'S TRUST, Doris Stratbucker, Trustee, Appellee and Cross-Appellant, v. ZONING BOARD OF APPEALS et al., Appellants and Cross-Appellees.
• Court: Nebraska Supreme Court

Page 671

497 N.W.2d 671

243 Neb. 68

STRATBUCKER CHILDREN'S TRUST, Doris Stratbucker, Trustee, Appellee and Cross-Appellant, v. ZONING BOARD OF APPEALS et al., Appellants and Cross-Appellees.

No. S-90-949.

Supreme Court of Nebraska.

March 26, 1993.

Syllabus by the Court

1. Zoning: Appeal and Error. A district court may disturb a decision of the zoning board of appeals only if the decision was illegal or is not supported by the evidence and is thus arbitrary, unreasonable, or clearly wrong. In deciding whether a board's decision is supported by the evidence, the district court shall consider any additional evidence it receives.

2. Zoning: Appeal and Error. 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 the zoning board of appeals, 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.

3. Zoning: Courts. A district court cannot properly order a zoning board of appeals to issue building permits, as Neb.Rev.Stat. § 14-419 (Reissue 1991) provides that issuance of those permits is the province of a city council.

4. Zoning: Courts: Appeal and Error. Under Neb.Rev.Stat. § 14-414 (Reissue 1991), a district court may reverse, modify, or affirm a decision brought up for review from the zoning board of appeals.

5. Zoning. A zoning board of appeals, which is neither a court nor a legislature, is a governmental authority that affects the rights of private parties through adjudication or rulemaking. As such, it functions primarily as an administrative agency.

6. Administrative Law. Generally, for purposes of construction, a rule or order of an administrative agency is treated like a statute.

7. Zoning: Waiver. A conditional zoning waiver is analogous to a certificate of occupancy. Thus, when the holder of the waiver incurs substantial expenses and commitments in good faith reliance on the waiver, it cannot be arbitrarily revoked.

Herbert M. Fitle, Omaha City Atty., and Alan M. Thelen, Omaha, for appellants.

James E. Lang, of Laughlin, Peterson & Lang, Omaha, for appellee.

HASTINGS, C.J., and WHITE, CAPORALE, and FAHRNBRUCH, JJ., MERRITT and COLWELL, District Judges, retired.

WHITE, Justice.

Stratbucker Children's Trust (Stratbucker) appeals the Nebraska Court of Appeals' decision that partially affirmed and partially reversed the district court's rulings on the extension of a zoning waiver. Stratbucker contests the appellate court's holdings that (1) the district court did not abuse its discretion by failing to extend Stratbucker's zoning waiver for an indefinite period; and (2) the district court improperly ordered appellant Omaha Zoning Board of Appeals (the board) to reissue several revoked permits to Stratbucker. We affirm the judgment of the Court of Appeals in part, and in part reverse and remand.

On August 25, 1988, the board granted Stratbucker a conditional zoning waiver that allowed Stratbucker to operate a farmer's market in an otherwise residential area of Omaha. The board conditioned the waiver on compliance with several requirements, including specified operating hours, limits on sign dimensions, compliance with the terms of an agreement with Omaha Planning Director S.P. Benson, and that "this waiver be conditioned on a one year review basis."

On August 24, 1989, the board refused to continue the conditional waiver. Stratbucker appealed to the Douglas County District Court, which found in its July 16, 1990, order that the board had failed to give Stratbucker a fair and complete hearing. The court, taking additional evidence pursuant to Neb.Rev.Stat. § 14-414 (Reissue 1991), found that Stratbucker had in fact complied with the conditions of the waiver. In particular, the court found (1) that Stratbucker had expended substantial amounts of money in attempting to comply with the waiver; and (2) that a December 14, 1988, report by Omaha's chief building inspector indicated that Stratbucker had complied with the terms of the Stratbucker-Benson agreement. The court therefore reversed the board's August 24, 1989, ruling and extended the conditional waiver until August 25, 1991, conditioned on two other matters.

In the interim between the filing of Stratbucker's appeal to the district court and the court's July 16, 1990, order, the city of Omaha revoked three building permits and a sign permit held by Stratbucker. On September 7, 1990, the district court ordered the board to reissue the sign permit and two of the building permits to Stratbucker (hereinafter referred to as the "permits"). The board then appealed to the Court of Appeals.

The board argued to the Court of Appeals that the district court had erred by extending the conditional waiver and by ordering that the permits be reissued. Stratbucker cross-appealed, arguing that although the district court had correctly extended the zoning waiver, it had acted arbitrarily by extending the waiver only until August 25, 1991.

The Court of Appeals, in an opinion filed on August 11, 1992, first held that the board's argument regarding extension of the waiver was moot because the extension period had since passed. Stratbucker Children's Trust v. Zoning Bd. of Appeals, 1 NCA 1108, 1992 WL 193715 (1992). The court then held that the district court had incorrectly ordered reissuance of the permits, reasoning that the permit issue was beyond the scope of the decision appealed to the district court. Finally, in dismissing the cross-appeal, the Court of Appeals held that the district court had not abused its discretion by extending the waiver for only a finite period.

Stratbucker then petitioned this court to further review the decision of the Court of Appeals. Restated, Stratbucker alleges that the Court of Appeals erred by (1) failing to find that the district court abused its discretion by arbitrarily extending the waiver for only 13 months; and (2) reversing the district court's order that directed the board to reissue the permits.

Recently, in Bowman v. City of York, 240 Neb. 201, 482 N.W.2d 537 (1992), we addressed the standards of review for district courts and appellate courts with regard to the decision of a city board of adjustment. In Bowman, we stated at 210-11, 482 N.W.2d at 544:

[A] district court may disturb a decision of such a board [of adjustment] only if ... the decision was illegal or is not supported by the evidence and is thus arbitrary, unreasonable, or clearly wrong. In deciding whether a board's decision is supported by the evidence, the district court shall consider any additional evidence it receives.

....

... [A]n 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 the 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.

(Citations omitted.) Accord Barrett v. City of Bellevue, 242 Neb. 548, 495 N.W.2d 646 (1993).

Although the zoning board of appeals is created pursuant to a different statute than is a board of adjustment, the portions of the statutes relating to the standard of review are virtually identical. See Neb.Rev.Stat. §§ 14-408, 14-413, 14-414, 19-908, and 19-912 (Reissue 1991). As a result, our analysis in Bowman concerning the applicable standards for review of a decision of a board of adjustment also applies to the review of a decision from the zoning board of appeals. Cf. Mossman v. City of Columbus, 234 Neb. 78, 449 N.W.2d 214 (1989). We thus apply those standards to the decisions we now review.

We first address Stratbucker's contention that the Court of Appeals erred when it reversed the district court's order that the board reissue the revoked permits. The Court of Appeals correctly noted that the city council is given the power to issue building permits. Neb.Rev.Stat. § 14-419 (Reissue 1991). However, nothing in the statutes implies that the board has a similar power. The board is given express power to issue special permits, but only to the State, political subdivisions, and public utilities. Neb.Rev.Stat. § 14-412 (Reissue 1991).

The board has authority to hear and decide appeals from, and review decisions or orders of, administrative officials. It also hears and decides matters referred to it by ordinance. Neb.Rev.Stat. § 14-409 (Reissue 1991). The reissuance of the permits was never appealed to the board, nor was it required by ordinance. Instead, the permit issue came to the board via the district court--eliminating the "appeal and review" inherent in the board's nature. The proper entity to issue the building permits was the city of Omaha. See § 14-419. However, the city was not made a party to this action.

Moreover, the permit issue was not raised in Stratbucker's amended petition to the district court. Rather, it was raised in a separate motion. Section 14-414 states that the district court may reverse, modify, or affirm "the decision brought up for review." The permit issue was not brought up for review from the board. Hence, the district court had no authority to deal with the permit issue.

The district court made an error of law by ordering the board to reissue the revoked permits. The Court of Appeals correctly reversed the district court's judgement on this issue. Stratbucker's first assignment of error is without merit.

With regard to the conditional waiver, Stratbucker argues that instead of a 13-month extension, the extension should have been indefinite--continuing until the conditions of the waiver are...