Rodehorst Bros. v. City of Norfolk Bd. of Adjustment
287 Neb. 779
| Neb. | 2014Background
- Rodehorst Brothers owns a fourplex in Norfolk, Nebraska, with the building’s use in an R-2 district recognized as a legal, nonconforming use.
- Nebraska statutes and the city ordinance provide that a nonconforming use is forfeited if discontinued for one year.
- Rodehorst sought permits in 2010–2011 for roof replacement, electrical work, and remodeling; the remodel permit was denied based on forfeiture of the nonconforming use.
- The Board of Adjustment found Rodehorst forfeited its nonconforming-use rights due to occupancy gaps and declined to grant a use variance.
- The district court affirmed and held the Board lacked authority to grant a use variance and Rodehorst had forfeited its right to continue the nonconforming use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Rodehorst forfeit its nonconforming use by discontinuing for one year? | Rodehorst argued occupancy gaps did not extinguish the use. | Board and district court held discontinuance for a year forfeited the right. | Yes, forfeit occurred after one year of discontinuance. |
| Did the Board have authority to grant a use variance to continue the nonconforming use? | Rodehorst contended a use variance was available to permit continued fourplex use. | Board lacked authority to grant a use variance under § 19-910 for a use change. | No; Board did not have authority to grant a use variance. |
| Was the regulatory action a taking of Rodehorst's property under the Nebraska or U.S. Constitution? | Rodehorst argued the discontinuance provision effected a taking. | The Board and court rejected the taking claim based on Penn Central framework. | No taking; regulation did not deprive Rodehorst of all economic use or property rights. |
Key Cases Cited
- City of Lincoln v. Bruce, 221 Neb. 61 (Neb. 1985) (discontinuance vs. abandonment; extent of nonconforming-use rights)
- Bruce, 221 Neb. 61 (Neb. 1985) (discontinuance language does not require intent to abandon)
- Leisz v. Board of Zoning Appeals, 702 N.E.2d 1026 (Ind. 1998) (takings framework for regulatory zoning actions; civic program shaping burdens and benefits)
- Scofield v. State, 276 Neb. 232 (Neb. 2009) (Penn Central takings framework applied to regulatory actions)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (U.S. 1978) (central Penn Central factors for regulatory takings)
- Dugas v. Town of Conway, 125 N.H. 175 (N.H. 1984) (discontinuance/takings analysis in state constitution context)