Agenda - Planning Commission - 08/05/2004

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z.g. July 10, 2004 -- Page 3 because the furniture R and R proposed to sell was not the type of merchandise for which the prior variance had been granted. R and R filed another application, this time ~or the sale of oriental rugs, fine furniture, and art. During the application process, R and R assured the planning director it would limit its sales to goods that would comply with the 1990 variance. This application was approved. Several months later, the board issued a cease and desist order stating R and R was selling furniture that did not meet the terms of the variance. R and R tiled an application for a third variance, this time to allow it to set up outdoor displays for furniture, cushions, umbrellas, tableware, gaming ac- cessories, Christmas lights, grills, and holiday products. The board denied the application. R and R sued, and the court ruled in its favor, ordering the board to ap- prove the application. [t found R and R's proposed use of outdoor disp~ys did not violate the original variance. The board appealed, arguing the lower court's order to allow the applica- tion created a situation that exceeded the scope of the original variance. DECISION: Reversed. The lower court could not direct the board to grant R and R's site plan application for outdoor displays. By directing the board to ~ant the application, the court's reversal of the board's decision prohibiting outdoor displays had the. effect of tacitly approv- ing the sale of specific items that were not permitted under the terms of the permitted 1990 variance. ' The court's decision deprived the board of its discretionary authority. The original variance only allowed the sale of oriental rugs, fine furniture, and art, while the new site plan merely assured the board there would be no plastic furniture, no mass-produced furniture, and no athletic equipment on the new displays. By ordering the board to allow the entire application, the court was allow- ing R and R to sell certain goods even though it never had the right to do so. see also: Francini v. Zoning Board of Appeals, 639 A.2d 5]9 (1994). see al.~'o: R & R Pool & Home Inc. v. Zoning Board of Appeals, 684 A.2d 1207 (1996). Agency -- Petitioner sues after board of supervisors' denial Board of supervisors considered mere administrative agency Citation: Mogensen v. Board of &tpervisors, Supreme Court of Nebraska, No. S-02-1408 (2004) NEBRASKA (!)5/21/04) -- Mogensen applied for a conditional use permit to apply nutrients r~-om gray water at a hog confinement lagoon through irriga-. tion pivots or [rucks. 2004 'SLnnlan ?ublisning Group. ,~ny reproduction is prohibited. For more iniormation please call (617) 542-0048. 137