Nebraska Supreme Court Upholds Conditional Use Permit for Hog Facility

Amorak, Inc. v. Cherry Cnty. Bd. of Comm’rs, 318 Neb. 723 (2025)

Danielski Harvesting & Farming, LLC (“Danielski”), owns land in Cherry County, Nebraska.  A different entity agreed to operate a hog facility on the land.  Danielski applied for a conditional use permit (“CUP”) for the hog facility from the Cherry County Board of Commissioners (the “County Board”).

The County Board approved the CUP.  Neighboring landowners appealed to district court.  They filed what Nebraska courts term “an Olmer appeal” under sections 23‑114.01(5) and 25-1937 of the Nebraska Revised Statutes. 

An Olmer appeal allows the appellant to initiate a trial de novo.  In a trial de novo, the parties may present new evidence and the district court must make an independent review of the county’s CUP decision.  Appellate courts then review the district court’s determination for clear error.  In re Application of Olmer, 275 Neb. 852 (2008).

After a trial de novo, the district court upheld the CUP.  The neighbors again appealed.  The Nebraska Supreme Court affirmed the decision upholding the CUP.

First, the Nebraska Supreme Court considered whether the neighbors were proper appellants.  On cross-appeal, the County Board had argued only CUP applicants could file Olmer appeals. 

But the court rejected that limitation.  Both “nonapplicants and applicants” who have standing may bring an Olmer appeal.  The neighbors had standing, so the court upheld their right to appeal.

Second, the court analyzed whether Danielski, as landowner, was the proper CUP applicant.  The neighbors claimed the hog facility’s operator should have joined in the application in the first instance. 

The court, however, disagreed.  Section 23-114.01(4) permits “property owners” to apply for CUPs “for the use of their property.”  The Cherry County Zoning Regulations also permit landowners to apply.  Neither require operators to join in a CUP application.  The court declined to infer such a requirement.

Third, the court evaluated if Danielski met its burden for issuance of the CUP.  Danielski’s CUP application complied with all applicable zoning provisions and did not request any variances.  Danielski’s expert witnesses buttressed that compliance at trial. 

With this evidence, “Danielski demonstrated compliance with the zoning regulations to support the issuance of the [CUP].”  The court thus found no error in the decision below and affirmed issuance of the CUP.  The CUP stands.

Attorneys at Baird Holm specialize in various subject matter areas including land use and real estate development and litigation.  Please contact us with any questions.