986 N.W.2d 265
Neb.2023Background
- In 2019 Cherry County granted a conditional use permit (CUP) to BSH Kilgore, LLC to build a commercial wind project near Kilgore. Opponents Preserve the Sandhills, LLC (PTS) and Charlene Reiser‑McCormick appealed.
- On November 29, 2019 appellants filed a "Complaint and Petition on Appeal" in Cherry County District Court invoking Neb. Rev. Stat. § 23‑114.01(5) and the Olmer procedure, and later amended their pleadings several times.
- After nearly two years of district‑court litigation, the plaintiffs orally moved to convert their appeal into a petition in error under § 25‑1901; the court allowed conversion and the plaintiffs filed a second amended complaint.
- The district court granted defendants’ summary judgment and dismissed the second amended complaint for lack of jurisdiction, reasoning the appellate record did not show compliance with statutory requirements to perfect a CUP appeal (notice and docket fee).
- On appeal the Nebraska Supreme Court issued an order to show cause requiring proof the CUP appeal was timely perfected; appellants submitted counsel’s affidavit and unsigned/undated documents but no file‑stamped notice or clear proof the district‑court docket fee was deposited within 30 days.
- The Supreme Court held the record does not establish strict compliance with the Olmer/§25‑2729 requirements (timely filed notice with county board or clerk and timely deposit of docket fee), so the district court—and the Supreme Court—lacked jurisdiction; judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellants timely filed a notice of appeal (required within 30 days under Olmer/§25‑2729 analog) | Appellants asserted counsel directed hand delivery and mailing of a notice on Nov 12, 2019 (within 30 days) | Defendants pointed out no file‑stamped notice appears in the record and no affidavit from county personnel confirming receipt | No — record contains no file‑stamped notice or other evidence showing possession by county clerk/board within 30 days; presumption of timely filing not available |
| Whether appellants timely deposited the required district‑court docket fee within 30 days | Appellants’ counsel claimed he delivered an $83 check to the county clerk on Nov 12, 2019 | Defendants noted absence of evidence the fee was deposited with the county clerk/board within 30 days | No — appellate record does not establish the docket fee was deposited within the 30‑day period; strict compliance is jurisdictional |
| Whether counsel’s affidavit and proof of mailing suffice to establish possession/filing | Counsel argued hand delivery and certified/regular mail on Nov 12, plus acceptance by the clerk’s office, satisfy the requirements | Defendants argued mailing and unsigned/undated documents do not prove receipt or possession by the clerk/board | No — mailing does not prove possession on a date and the affidavit lacks specifics (who delivered/accepted, file stamps, county‑official affidavits), so it fails to meet appellant’s burden |
| Whether the district court acquired jurisdiction over the CUP appeal | Appellants contended jurisdiction existed because they pursued the Olmer/§23‑114.01(5) route and attempted to comply | Defendants contended the statutory/Olmer prerequisites were not shown, so district court lacked jurisdiction | Court held district court never obtained jurisdiction because the appeal was not timely perfected; Supreme Court affirms dismissal for lack of jurisdiction |
Key Cases Cited
- In re Application of Olmer, 275 Neb. 852 (Neb. 2008) (adopts analogy to §25‑2729 for CUP appeals: notice to decisionmaker/clerk within 30 days and de novo trial)
- Kowalewski v. Madison Cty. Bd. of Comrs., 310 Neb. 812 (Neb. 2022) (requires strict, timely payment/deposit of district‑court docket fee to perfect CUP appeal)
- Preserve the Sandhills v. Cherry County, 310 Neb. 184 (Neb. 2021) (earlier opinion recognizing consequences of chosen appellate method)
- Douglas County v. Archie, 295 Neb. 674 (Neb. 2017) (distinguishes petition in error review — limited to the administrative record — from de novo review)
- In re App. No. C‑4973 of Skrdlant, 305 Neb. 635 (Neb. 2020) (file‑stamp presumption of regularity; mailing alone does not prove possession on a given date)