Legal Memorandum: Permits and Variances

Issue: To what extent may a Nebraska court revisit a county board’s approval of a permit?

The district court’s authority to enjoin construction of the manure system and require County officials to comply with the proper permitting process based on alleged errors in issuance of the permit stems from Neb. Rev. Stat. § 23-114.05 (2000), which states:

[T]he county board or the proper local authorities of the county, as well as any owner . . .  of real estate within the district affected by the regulations, may institute any appropriate action . . . to prevent such unlawful construction . . . or use, to restrain . . . or to prevent the illegal act . . . or use in or about such premises.  Any taxpayer or taxpayers of the county may institute proceedings to compel specific performance by the proper official or officials of any duty imposed by such sections . . .

Municipal board decisions regarding permit approval involve the board’s exercise of discretion in applying use standards to the specific characteristics of a piece of property.  Whitehead Oil Co. v. City of Lincoln, 515 N.W.2d 390, 393 (Neb. 1994).  They are therefore quasi-judicial decisions and may be reviewed also on that basis.  Id. at 393.  In contrast, adoption of zoning ordinances is a legislative task, which may also be reviewed but which is given a higher degree of deference by the courts.  See id. at 397. 

The Nebraska Supreme Court noted that courts have traditionally afforded deference to the decisions of municipalities regarding permits and variances, overturning them only if they are arbitrary and capricious, or exhibit bad faith.  Fitzke v. […]