Preserve the Sandhills v. Cherry County
310 Neb. 184
| Neb. | 2021Background:
- In 2019 the Cherry County Board granted BSH Kilgore, LLC a conditional use permit (CUP) for a commercial wind project.
- Preserve the Sandhills, LLC and individual citizens (PTS) appealed the Board’s CUP grant to district court.
- While that appeal was pending, the Board granted BSH a 4-year extension to complete the project.
- PTS filed a separate “Complaint and Petition on Appeal” in district court challenging the extension and sought a trial de novo under Neb. Rev. Stat. § 23-114.01 and § 25-1937.
- The district court dismissed PTS’ second appeal for lack of jurisdiction, holding § 23-114.01(5) authorizes de novo appeals only from decisions granting, denying, or partially granting/denying a CUP.
- The Nebraska Supreme Court affirmed dismissal, holding the extension was not an appealable “decision” under § 23-114.01(5) and declining to reach cross-appeals or whether a petition in error would have been available.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board’s grant of an extension to complete a CUP is a "decision" under § 23-114.01(5) permitting a de novo appeal to district court | PTS: § 23-114.01(5) authorizes appeal of any "decision...regarding a conditional use"; the extension is such a decision | County/BSH: The statute’s plain language limits appeals to actions that grant, deny, or partially grant/deny a CUP; an extension is not such an action | Court: "Decision" means grant, denial, or partial grant/partial denial of a CUP; extension is not an appealable decision; lack of jurisdiction |
| Whether the district court should have converted PTS’ chosen de novo appeal into a petition in error (alternative remedy) | PTS: District court should have converted the filing to a petition in error so the court could reach the merits | Defendants: PTS chose its procedural route; court should respect that choice and dismissal for lack of jurisdiction is appropriate | Court: Cannot convert on appeal; appellant must choose route below; court lacked jurisdiction to consider conversion or petition in error |
Key Cases Cited
- Champion v. Hall County, 309 Neb. 55, 958 N.W.2d 396 (2021) (statutory interpretation and appeal-right principles)
- In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021) (statutory interpretation standards)
- Butler County Landfill v. Butler County Bd. of Supervisors, 299 Neb. 422, 908 N.W.2d 661 (2018) (jurisdictional limits when lower court lacks subject-matter jurisdiction)
- In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008) (respect for appellant’s chosen method of appeal from CUP decisions)
- Niewohner v. Antelope County Bd. of Adjustment, 12 Neb. App. 132, 668 N.W.2d 258 (2003) (background legislative history prompting amendment to § 23-114.01)