Nonapplicant Appeals and De Novo Review in Conditional Use Permit Decisions

Introduction

In Amorak, Inc., and Edwin Brown v. Cherry County Board of Commissioners (318 Neb. 723, decided April 4, 2025), the Nebraska Supreme Court addressed two core questions: (1) who may appeal decisions on conditional use permits under Neb. Rev. Stat. § 23-114.01(5), and (2) what showing must an applicant make to satisfy zoning regulations governing odor and water-contamination mitigation for confined animal feeding operations. The dispute arose when neighboring landowners (Amorak) challenged a Board decision granting Danielski Harvesting & Farming, LLC a permit to build a commercial hog facility. The Board cross-appealed, contending that Amorak, as a nonapplicant, lacked jurisdiction to pursue a de novo trial in district court.

Summary of the Judgment

The Supreme Court affirmed the district court on both jurisdictional and merits grounds:

Jurisdiction: § 23-114.01(5) plainly authorizes appeals “of a decision … regarding a conditional use” by any aggrieved party—applicant or neighbor. The Court held this right is not cabined to applicants who are denied permits.
Standard of Review: Appeals under § 23-114.01(5) invoke a de novo trial in district court under § 25-1937; factual findings there carry the weight of a jury verdict and will not be set aside unless clearly erroneous, while statutory and zoning‐regulation interpretation is reviewed independently.
Merits: The Court confirmed that the property owner (not a separate operator) bears the burden to show compliance with zoning regulations when applying for a conditional use permit. It found that Danielski’s application—including engineered manure pits, an 18,000–20,000-acre land base, nutrient management permits, and an odor‐control plan—met the requirements for odor mitigation (§ 501.05(15)(D) and § 1008.08) and water-contamination safeguards (§ 501.05(15)(E), (F), (G), (J)).

Analysis

1. Precedents Cited

Mogensen v. Board of Supervisors and Niewohner v. Antelope County Board of Adjustment—pre-2004 cases that limited appeals to boards of adjustment. The Legislature responded by amending § 23-114.01(5) to permit direct appeals to district court.
In re Application of Olmer (275 Neb. 852, 2008)—recognized that § 23-114.01(5) grants a right to appeal but is procedurally silent, thus importing the de novo trial procedure of § 25-1937.
Preserve the Sandhills v. Cherry County—confirmed that § 23-114.01(5) applies to appeals “regarding a conditional use” without restricting litigant status.
Egan v. County of Lancaster—explained the standard of review for de novo bench trials on conditional use permit appeals.
Dirt Road Development v. Hirschman—held that zoning‐regulation interpretation is a question of law subject to independent review.

2. Legal Reasoning

Textual Reading of § 23-114.01(5): The Court gave effect to the statute’s plain language, which authorizes an appeal “of a decision … regarding a conditional use” by any party aggrieved. There is no textual limitation to applicants or to particular types of decisions (e.g., denials only).

Procedural Import of § 25-1937: Because § 23-114.01(5) does not specify appellate procedure, the de novo trial process for county-court civil appeals applies.

Merits—Owner Versus Operator: Under § 23-114.01(4) and Cherry County regulations, conditional use permits are “granted to property owners for the use of their property.” The property owner (or its agent) must demonstrate compliance with zoning provisions. Although the regulations mention “owner/operator” in post‐permit compliance contexts, they do not require separate application showings by an operator entity.

Odor Mitigation (§ 501.05(15)(D) & § 1008.08):

Class AN facilities use anaerobic manure digestion; the definition does not preclude odor controls.
“Assurances acceptable to the Board” must show that neighbors will not suffer unreasonable odor. Danielski’s plan included regular power‐washing, ventilated buildings, large underground manure pits with ≥180-day capacity, and timing/application practices.
The Court held that the zoning text does not mandate hyper-specific or engineering‐stamp assurances; the documented practices and expert testimony sufficed.

Water-Contamination Safeguards (§ 501.05(15)(E), (F), (G), (J)):

Engineered pit designs, nutrient management permits, a vast acreage base for manure application, and concrete flooring for stockpiling minimize pollution.
Manure injection sites are not “confined animal feeding use” locations under § 303.23, so § 501.05(15)(J)’s site-location rules do not apply there.
Hydrogeological testimony supported that caprock and monitoring wells protect groundwater.
The Court found no clear error in these factual findings or in their application to the regulations.

3. Impact

Confirms that any aggrieved party—not just permit applicants—can obtain de novo review of county board decisions on conditional use permits.
Reinforces a text‐based approach to statutory interpretation and underscores that legislative amendments must govern over prior case law when language is clear.
Clarifies that in zoning permit proceedings, compliance showings rest with the property owner, even if operations are conducted by a separate entity.
Provides guidance on the level of detail necessary for odor and water-contamination assurances—good‐faith plans and professional testimony are generally sufficient unless regulations demand specific metrics.
May encourage neighboring landowners to engage more actively at the permit-application stage, knowing they can secure a full de novo trial in district court.

Complex Concepts Simplified

De Novo Trial: A “new” trial in district court that does not defer to the county board’s findings; factual findings carry the weight of a jury verdict, but legal questions are decided afresh.
Conditional Use Permit: A zoning authorization allowing certain specified uses (e.g., confined animal feeding) if the applicant shows compliance with special conditions.
Class AN Facility: A confined animal feeding operation that uses anaerobic manure digestion; the regulations distinguish it primarily by required set-back distances.
Owner vs. Operator: The property owner applies for and secures the permit; the operator (which may be a separate entity) implements the permitted activity.
“Acceptable Assurances”: Plans, engineering designs, and professional testimony that show the proposed use will not create unlawful odor or pollution.

Conclusion

The Amorak decision establishes that Nebraska’s zoning‐permit appeals process under § 23-114.01(5) extends to nonapplicant, aggrieved landowners, who may secure a de novo trial in district court under § 25-1937. It underscores a plain‐language approach to statutory and regulatory interpretation, confirms that property owners carry the burden of demonstrating compliance (regardless of separate operators), and delineates the sufficiency of professional plans and testimony to satisfy odor and water-quality assurances. This precedent will shape future challenges to conditional use permits and bolster procedural access for neighboring stakeholders in land‐use disputes.