Preserve the Sandhills v. Cherry County
964 N.W.2d 721
Neb.2021Background
- In 2019 the Cherry County Board granted BSH Kilgore, LLC a conditional use permit (CUP) for a commercial wind project.
- Opponents (Preserve the Sandhills, LLC and individuals, “PTS”) appealed that grant to the district court.
- While that appeal remained pending, the Board granted BSH a 4-year extension to complete the project.
- PTS filed a separate district-court action titled a “Complaint and Petition on Appeal,” seeking a trial de novo under Neb. Rev. Stat. § 23-114.01 and § 25-1937 to challenge the extension.
- The district court dismissed the second action for lack of jurisdiction, ruling § 23-114.01(5) authorizes de novo appeals only from decisions granting, denying, or partially granting a CUP, not from incidental actions like extensions.
- PTS appealed to the Nebraska Supreme Court; the Supreme Court found it lacked jurisdiction and dismissed the appeal, declining to reach the cross-appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a county board’s grant of an extension of time for performance of a CUP is an appealable “decision” under § 23-114.01(5) | The statute permits appeal from any “decision by the county board … regarding a conditional use,” so extension is an appealable decision and entitles PTS to de novo review under § 25-1937 | The statute’s repeated language (grant/deny/denial) shows “decision” means a decision to grant, deny, or partially grant/deny a CUP; an extension is not such a decision | The Court held “decision” in § 23-114.01(5) means grant, denial, or partial grant/denial of a CUP; an extension while an earlier grant appeal is pending is not an appealable decision, so no jurisdiction |
| Whether the district court erred by not converting PTS’s pleadings seeking de novo review into a petition in error (alternative procedural route) | PTS argued the district court should have treated its filing as a petition in error or otherwise afforded review despite procedural label | Defendants argued PTS selected its route (§ 23-114.01/§ 25-1937) and cannot change routes on appeal; the district court had no basis to convert because PTS never filed a petition in error or asked conversion | The Court held an appellant’s chosen method of appeal must be respected; PTS never filed a petition in error or requested conversion, so the Court would not convert or address that alternate route |
| Effect of pending appeal of original CUP grant on jurisdiction to review extension | PTS: extension affects the rights/interests and thus is independently reviewable | Defendants: extension does not change the substance of the CUP; if the original grant is overturned, extension is moot; therefore the extension is not an independently appealable decision | The Court held where an earlier grant remains pending on appeal, the extension does not alter the substantive grant/deny decision and is not an appealable decision under § 23-114.01(5) |
| Cross-appeal ground (failure to state a claim) | N/A (cross-appellants argued district court should have dismissed PTS for failure to state claim) | Cross-appellees defended dismissal on jurisdictional grounds | Court did not address the cross-appeal because it lacked jurisdiction to hear the primary appeal |
Key Cases Cited
- Champion v. Hall County, 309 Neb. 55 (Neb. 2021) (statutory right of appeal is purely statutory; jurisdictional principles)
- In re Adoption of Yasmin S., 308 Neb. 771 (Neb. 2021) (statutory interpretation standards)
- In re Application of Olmer, 275 Neb. 852 (Neb. 2008) (courts must respect appellant’s chosen method of appeal)
- Niewohner v. Antelope Cty. Bd. of Adjustment, 12 Neb. App. 132 (Neb. Ct. App. 2003) (legislative history prompting change to § 23-114.01)
- Prigge v. Johns, 186 Neb. 761 (Neb. 1971) (courts may look through form to substance in reviewing administrative actions)