985 N.W.2d 599
Neb.2023Background
- BSH Kilgore, LLC applied for a conditional use permit (CUP) to build 19 commercial wind turbines in Cherry County near Kilgore.
- Preserve the Sandhills, LLC (PTS) and landowner Charlene Reiser‑McCormick sued to enjoin two Cherry County commissioners from considering or voting on the CUP, alleging conflicts under the Nebraska Political Accountability and Disclosure Act (NPADA).
- After the defendants denied the alleged conflicts and challenged standing, the district court held an evidentiary hearing and dismissed the suit for lack of subject matter jurisdiction.
- The district court found PTS owned no property in Cherry County and could not import its members’ injuries into a corporate injury; Reiser‑McCormick owned land but it was ~40 miles from the project, so no injury different from the general public was shown.
- A real‑estate broker’s affidavit offered to show diminution in value was excluded for lack of foundation; the court also rejected asserted statutory or zoning‑regulation bases for standing (§ 23‑114.05, Cherry County §§ 1202 and 910).
- The Nebraska Supreme Court affirmed, holding plaintiffs lacked standing and that standing cannot be created by waiver or estoppel from participation in board proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Common‑law / injury‑in‑fact standing to enjoin commissioners from voting | Reiser‑McCormick: owns land in Cherry County and will suffer property‑value and marketability harms (broker opinion); PTS: organization dedicated to Sandhills has members who will be harmed | Defendants: PTS has no property or distinct injury; Reiser‑McCormick is geographically too distant and harms are speculative | Held: No standing. PTS has no separate injury; Reiser‑McCormick’s property is ~40 miles away so no distinct, imminent injury shown; broker affidavit speculative and properly excluded for lack of foundation |
| Admissibility of broker affidavit on property value | Broker’s opinion would prove diminution and establish injury‑in‑fact | Defendants: affidavit lacks requisite foundation showing familiarity with local market, comparable sales, and materials reviewed | Held: District court did not abuse discretion excluding affidavit; broker lacked foundation linking opinion to Cherry County market |
| Standing under Cherry County zoning regs (§ 1202 and § 910) | Plaintiffs: county zoning rules confer standing to challenge CUP issuance | Defendants: the cited provisions either address zoning violations or appeals to board of adjustment, not review of CUP issuance | Held: Inapplicable. § 1202 addresses zoning‑violation enforcement and § 910/Art. 9 pertains to board of adjustment appeals; plaintiffs’ challenge concerns a CUP under Art. 10 |
| Statutory standing under Neb. Rev. Stat. § 23‑114.05 and effect of participation before Board | Plaintiffs: § 23‑114.05 permits owners/taxpayers to bring actions and their participation before the Board shows acceptance of standing | Defendants: § 23‑114.05 confers standing to challenge zoning violations, not issuance of a CUP; subject matter jurisdiction cannot be created by waiver/estoppel | Held: No standing under § 23‑114.05; participation before the Board does not create jurisdictional standing (waiver/estoppel unavailable for subject matter jurisdiction) |
Key Cases Cited
- Egan v. County of Lancaster, 308 Neb. 48 (2020) (landowner lacking injury in fact where project was distant; § 23‑114.05 does not confer standing to challenge special use permit)
- Great Plains Livestock v. Midwest Ins. Exch., 312 Neb. 367 (2022) (distinguishing factual challenges to subject matter jurisdiction where evidentiary hearing occurs)
- Continental Resources v. Fair, 311 Neb. 184 (2022) (standing is a jurisdictional component and threshold issue)
- Central Neb. Public Power Dist. v. North Platte NRD, 280 Neb. 533 (2010) (injury‑in‑fact must be concrete, distinct, and actual or imminent)
- Hemsley v. Langdon, 299 Neb. 464 (2018) (appellate standard reviewing trial court’s admission/exclusion of expert testimony is abuse of discretion)
- Iske v. Metropolitan Utilities Dist., 183 Neb. 34 (1968) (expert or lay witness must be familiar with the property and state of the market to opine on real estate value)
- Jacobs Engineering Group v. ConAgra Foods, 301 Neb. 38 (2018) (subject matter jurisdiction cannot be created by waiver, estoppel, or consent)