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Nebraska Supreme Court: Conditional Use Permit Appeals Limited to County Board Decisions to Approve or Deny

on Thursday, 7 October 2021 in Dirt Alert: David C. Levy, Editor

Preserve the Sandhills v. Cherry County, 310 Neb. 184 (2021).

Preserve the Sandhills, LLC (“PTS”), an opponent of a wind energy project in Cherry County, Nebraska, appealed the decision of the Cherry County Board of Commissioners (the “Board”) granting a conditional use permit (“CUP”) for the project.  During the pendency of the appeal, the permittee sought and obtained from the Board a four-year extension of time to complete the project.  PTS appealed the Board’s granting of the extension. 

The Cherry County District Court dismissed PTS’s appeal for lack of jurisdiction.  PTS appealed to the Nebraska Supreme Court.  PTS contended that section 23-114.01 confers a right of appeal from any action regarding a CUP, no matter how incidental or preliminary.[1]

The primary issue was whether the Board’s extension was an appealable “decision” under section 23‑114.01(5).  This is a question of statutory interpretation.  Nebraska law requires courts to give statutory language its plain and ordinary meaning when it is plain, direct, and unambiguous.  In construing a statute, a court must also determine and give effect to the purpose and intent of the Legislature in the context of the statute.

The Court held that the plain meaning of the term “decision” in section 23-114.01(5), in the context of the statute, is a decision to grant, deny, partially grant, or partially deny a CUP.  The Court noted that section 23‑114.01 repeatedly and exclusively discussed a county board’s decision-making powers in terms of its grant or denial of a CUP.  A CUP extension is not an appealable “decision” under section 23‑114.01(5).  Accordingly, the Court affirmed the District Court and dismissed the appeal.

[1] All references are to the Nebraska Revised Statutes.

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