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Nebraska Supreme Court: Wind Opponents’ Failure to Properly Appeal Prevents Review of Conditional Use Permit

on Monday, 13 March 2023 in Dirt Alert: David C. Levy, Editor

Preserve the Sandhills, LLC v. Cherry County, 313 Neb. 668 (2023).

Nebraska law provides two methods for appealing a county board’s approval or disapproval of a conditional use application.  The appellant may either (1) appeal under section 23-114.01(5) or (2) file a petition in error under section 25-1901.[1]  An appellant’s failure to strictly follow at least one of those appeal procedures deprives the appellate court of jurisdiction.

BSH Kilgore, LLC (“BSH”) obtained a conditional use permit for a commercial wind project near Kilgore, Nebraska.[2]  Several opponents of the project tried to appeal.

Appellants Preserve the Sandhills, LLC initially filed an appeal in district court under the first statute, section 23-114.01(5).  That statute permits such an appeal, but it does not prescribe a procedure.  Section 25‑1937, a catch-all statute, governs the procedure.  See In re Olmer, 275 Neb. 852 (2008).

At a hearing, Appellants moved to convert their appeal into a petition in error under the second statute.  Section 25-1911 permits petitions in error from the decisions of local administrative bodies, such as a county board.  The district court allowed Appellants to convert their appeal but then dismissed it because Appellants had failed to comply with the statute’s filing procedure.  Appellants challenged that decision to dismiss.

The Nebraska Supreme Court affirmed the dismissal but on different grounds than below.  Because Appellants had initially appealed under the first statute, section 23-114.01(5), it controlled, and section 25-1937 governed the procedure.  It requires an appellant to file, within 30 days of the decision below, a (1) notice of appeal and (2) docket fee with the County Court Clerk.  See § 25-2729(1).

The appellate record, however, showed no evidence of those filings, and the court ordered the appellants to show cause to avoid dismissal.  Appellants offered unstamped copies of a notice of appeal and check, alleging the County Court Clerk had timely received both. 

The court held those were inadequate.  Only a file-stamped notice of appeal receives any presumption of timely filing.  Appellants also could not show the County Court Clerk had actually received the docket fee.  The court thus dismissed the appeal because Appellants had failed to adequately appeal.  As a result, the conditional use permit remains valid, and it is now no longer subject to legal challenge.

The opinion reinforces the importance of strict compliance with procedure.  Justice Stacy recommended appellants seeking review of a conditional use decision should “consider taking affirmative steps to document their timely compliance with the jurisdictional requirements for perfecting such appeals.”  Justice Stacy also called on the Legislature to make this process clearer.


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

[2] Baird Holm represented the applicant before the Cherry County Board and in the litigation.

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