Bruning v. City of Omaha Zoning Bd. of Appeals, 927 N.W.2d 366

Background

Sharon and Robert Bruning own a 4.66-acre parcel in Omaha zoned agricultural since before 1979; over decades they built structures and altered grading while operating seeding/landscape businesses.
After selling their businesses in 2004, the Brunings leased buildings to multiple commercial tenants (landscaping, storage, car collections, boiler-business storage), prompting the City to investigate following a complaint in 2015.
The City determined the current uses were not permitted in an agricultural district and the Brunings applied for variances from multiple provisions of Omaha’s zoning code to legitimize the existing uses.
The City’s Zoning Board of Appeals held multiple hearings, toured the property, and denied the variance in June 2017; the City indicated the site was more properly industrial but unlikely to be rezoned given surrounding residential development.
The Brunings appealed to the district court arguing unnecessary hardship due to their investments and lost rental income; the district court affirmed the Board, finding substantial evidence supported denial because the Brunings had effectively created a commercial use inconsistent with the zoning.
The Nebraska Supreme Court affirmed, holding the district court did not abuse its discretion or err as competent evidence supported the decision and the claimed hardships were not legally cognizable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a variance was required because denial would cause "unnecessary hardship" under Neb. Rev. Stat. § 14-411	Brunings: long-standing use and substantial improvements mean denial would cause unnecessary hardship and lost income	City/Board: Brunings’ current commercial uses are not permitted in agricultural zoning; hardships are self-created and profit-driven, not legally cognizable	Denial affirmed: no unnecessary hardship; evidence shows self-created commercial uses incompatible with zoning
Whether district court erred in upholding Board’s denial (standard of review)	Brunings: Board’s decision was arbitrary and unsupported by evidence	City/Board: Board had substantial evidence, held hearings, and toured property; decision within discretion	Affirmed: district court did not abuse discretion or commit error of law
Whether profit motive or past investments justify variance	Brunings: investments and income losses justify relief	City/Board: desire to increase profits or legitimizing after-the-fact uses is insufficient	Held: profit motive and after-the-fact actions do not establish hardship warranting variance
Whether property retains reasonable beneficial uses consistent with zoning	Brunings: denial prevents productive use of property	City/Board: many permitted agricultural uses remain; current commercial activities made property incompatible with agricultural zoning	Held: not deprived of reasonable use; denial is not unjust invasion of property rights

Key Cases Cited

Lamar Co. v. Omaha Zoning Bd. of Appeals, 271 Neb. 473 (2006) (standard for judicial review of zoning board decisions)
Eastroads v. Omaha Zoning Bd. of Appeals, 261 Neb. 969 (2001) (appellate deference to district court factual findings in zoning appeals)
Bowman v. City of York, 240 Neb. 201 (1992) (profit motive does not justify variance)
Alumni Control Bd. v. City of Lincoln, 179 Neb. 194 (1965) (limitations on variances where hardships are self-created)
Frank v. Russell, 160 Neb. 354 (1955) (variance may not be granted unless denial is unnecessary and unjust invasion of property rights)
Rousseau v. Zoning Bd. of Appeals of Omaha, 17 Neb. App. 469 (2009) (certain factual circumstances insufficient alone to show hardship)