Andrew v. Village of Nemaha, A-16-208

The Andrews installed two 12,000-gallon anhydrous ammonia storage tanks on land ~0.5 miles outside the Village of Nemaha without first obtaining a building permit; Village passed Ordinance 2014-1 (restricting >2,500 gallon ammonia storage) the same day.
The Andrews later submitted a one‑page permit application plus a safety review and insurance; the Village requested additional risk‑management detail and expressed concerns about fire‑department capacity and public safety.
The Village Board denied the permit and declared the tanks an "unsafe building" and a public nuisance, ordering removal; the Andrews appealed to the Board of Trustees acting as a Board of Appeals, which affirmed denial.
The Andrews filed a petition in error in district court; the court reviewed the administrative record, found the Board’s nuisance determination supported by sufficient relevant evidence, and denied the petition. The Andrews appealed to this court.
Key factual evidence in the record: ANSI K61.1 and expert reports showed both that (a) anhydrous ammonia is an extremely hazardous substance with potentially wide toxic endpoints, and (b) the tanks complied with industry standards; the Village emphasized proximity to residences and limited local emergency resources.

Issue	Andrews' Argument	Village's Argument	Held
Whether burden to prove nuisance rested on Andrews	Due process requires government prove nuisance before depriving property	Village and ordinance procedures place show‑cause burden on owner at nuisance hearing; Board may rely on record evidence	Court: No error — Board could consider all evidence in record and ordinances; outcome need not rest on Village presenting separate proof
Whether Board had to receive evidence from Board of Health	Section 91.16 requires Board of Health evidence; absence invalidates proceedings	Section 91.16 "shall hear" is directory; Board of Health evidence is one source, not mandatory if other evidence suffices	Court: "Shall" construed directory; hearing without Board of Health evidence valid here
Whether record contains sufficient evidence that tanks are a nuisance	Andrews: compliance with codes/ANSI means no nuisance	Village: hazardous nature, proximity to village, and inadequate local emergency resources create nuisance in fact	Court: Sufficient relevant evidence supports nuisance finding; not arbitrary or capricious
Whether denial of permit was improper (and whether Ordinance 2014‑1 invalid)	Permit should be issued because tanks are not a nuisance; ordinance invalid	Denial justified because tanks are an "unsafe building"/nuisance under village code; court need not resolve ordinance validity	Court: Denial proper because nuisance finding was supported; did not reach ordinance‑validity question

Kaapa Ethanol v. Board of Supervisors, 285 Neb. 112 (standard for reviewing administrative decisions)
Blakely v. Lancaster County, 284 Neb. 659 (administrative‑record review; courts may not reweigh evidence)
Rath v. City of Sutton, 267 Neb. 265 (deference to municipal bodies acting in honest conviction absent arbitrariness)
City of Syracuse v. Farmers Elevator, Inc., 182 Neb. 783 (lawful business may be nuisance in fact based on location and risk)
Sarraillon v. Stevenson, 153 Neb. 182 (due care by owner does not preclude nuisance finding when substantial risk exists)
Forgey v. Nebraska Dept. of Motor Vehicles, 15 Neb. App. 191 (statutory "shall" may be directory when not essential to statute's main objective)