Sunday, January 13, 2008

Nebraska Supreme Court allows Otoe County to require mutual impact easements when real estate developers seek permits to build houses close to existing hog confinement facilities. Coffey v. County of Otoe, S-06-921, 274 Neb. 796A property developer and a purchaser of one of his lots sought to build a house that was close to an existing hog confinement facility. Otoe County required in its zoning regulations that homeowners and livestock producers file mutual impact easements before it would allow the building to continue. When the livestock producer refused to grant the easement and Otoe County refused to allow a variance, the developer and his customer sued. The Otoe County District Court reversed finding the mutual impact easement requirement was an unconstitutional delegation of legislative power. Nebraska Supreme Court reverses, the zoning regulations were proper exercises of zoning power. "If the consent is used for no other purpose than to waive or modify a restriction which the governing body has lawfully created and has provided for such a waiver or modification by those most affected, then the consent is regarded as being within constitutional limitations," Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S . Ct. 190, 61 L. E d. 472 (1917).we conclude that the mutual impact easement language in Otoe County’s zoning regulations is not an unconstitutional delegation of legislative authority, and the district court erred in concluding otherwise

No comments: