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Nebraska Supreme Court Declines to Extend Standing Exception to “NIMBYs”

on Friday, 15 January 2021 in Dirt Alert: David C. Levy, Editor

On December 31, 2020, the Nebraska Supreme Court upheld the Lancaster County’s issuance of a special use permit for a chicken feedlot in Egan v. County of Lancaster. 308 Neb. 48 (2020).

In 2018, Randy Essink purchased property in Lancaster County to construct and operate a commercial feedlot for broiler chickens.  Essink’s property is in an agricultural zoning district, which requires a special use permit from Lancaster County (the “County”) to operate a commercial feedlot.  

Essink applied to Lancaster County for such a permit.  The County Planning Commission and County Board of Commissioners approved the special use permit.  Plaintiffs appealed.  

At trial, Egan, who lives approximately 13 miles away from Essink’s property, testified that she opposed the issuance of the permit because it encouraged similar feedlot operations close to her property.  Egan also alleged the feedlot would increase pollution in the area.  Howlett, who lived less than a mile from Essink’s property, testified that the County Board improperly granted the use permit because the feedlot would degrade air quality and depreciate property values.  The District Court held that:  (i) Plaintiff Egan did not have standing to sue, and (ii) the County Board properly issued the permit.  Plaintiffs appealed again.

On appeal, the Nebraska Supreme Court held that Egan did not have an “injury in fact” given the distance between her property and Essink’s property.  Egan argued she should have standing under Thompson v. Heineman.  In Thompson, the Court allowed an exception to the injury in fact rule for “matters of great public concern.”  The Court disagreed with Egan’s assertion, finding that the Court should only allow the exception when a plaintiff challenges the legal authority of a government decision, rather than the substance of the decision.  

Egan further alleged that she had standing under Nebraska Revised Statutes section 21-114.05.  The Court rejected this argument as well.  While section 21-114.05 allows “any owner of real estate within the district” to sue for zoning violations, the Court stated it does not apply to lawful use of property.  Because Essink had a valid special use permit, he was not in violation of the Zoning Regulations.  Thus, Egan did not have standing under this section.  

The Court also rejected Plaintiffs’ allegation that the district court did not consider the relevant factors in determining the use permit’s validity.  The Court found that the record supported the lower court’s findings, and there was no error of law or clearly erroneous finding of fact. 

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