Universal Right to De Novo District Court Review of Conditional Use Permit Decisions Under Neb. Rev. Stat. § 23-114.01(5)

Introduction

Amorak, Inc. and Edwin Brown (collectively, Amorak), neighboring landowners, challenged the Cherry County Board of Commissioners’ issuance of a conditional use permit to Danielski Harvesting & Farming, LLC for a commercial hog facility. The Board had granted the permit under Cherry County’s zoning regulations. Amorak appealed directly to the district court under Neb. Rev. Stat. §§ 23-114.01(5) and 25-1937, seeking de novo review of odor and water‐contamination requirements. The Board cross‐appealed, arguing that only an applicant who is denied a permit may appeal de novo. After trial, the district court affirmed the permit. Amorak then appealed to the Nebraska Supreme Court, and the Board cross‐appealed the jurisdictional issue.

Key issues:

Does § 23-114.01(5) permit any aggrieved party—not just the permit applicant—to appeal a conditional use decision to the district court for de novo trial?
Did the owner of the property (Danielski), as opposed to the operator (Sandy Pine), bear the burden of proving compliance with zoning regulations on odor mitigation and water contamination?
Were the factual findings that the permit application satisfied the relevant zoning regulations clearly erroneous?

Summary of the Judgment

The Nebraska Supreme Court unanimously affirmed. On the cross‐appeal, it held that the plain language of Neb. Rev. Stat. § 23-114.01(5) authorizes any aggrieved party to appeal a decision “regarding a conditional use” to the district court for de novo review, without restriction to applicants. Neither legislative history nor pre-amendment cases (Mogensen, Niewohner) overrode the unambiguous statute. On the main appeal, the Court found no error in the district court’s ruling that Danielski, as owner of the land, carried the burden to show compliance with odor and water‐contamination requirements. The Court applied the “clearly erroneous” standard and concluded the evidence—engineered manure pits, nutrient management plan, floor‐washing regimes, monitoring wells, land‐application acreage—supported the permit conditions and complied with Cherry County’s zoning regulations (§§ 501.05(15)(D), (E), (F), (G), (J) and 1008.08). The Supreme Court therefore affirmed the district court judgment in all respects.

Analysis

Precedents Cited

In re Application of Olmer (275 Neb. 852, 752 N.W.2d 124 (2008)) – Recognized that appeals under § 23-114.01(5) proceed de novo under § 25-1937 when the Legislature grants a right of appeal without prescribing procedure.
Mogensen v. Board of Supervisors (268 Neb. 26, 679 N.W.2d 413 (2004)) and Niewohner v. Antelope County Bd. of Adjustment (12 Neb. App. 132, 668 N.W.2d 258 (2003)) – Pre-amendment cases requiring appeals to boards of adjustment, later superseded by legislative amendment.
Egan v. County of Lancaster (308 Neb. 48, 952 N.W.2d 664 (2020)) – Clarified that district court findings on conditional use appeals have the effect of a jury verdict and will not be set aside unless clearly erroneous or law misapplied.
Preserve the Sandhills v. Cherry County (313 Neb. 668, 986 N.W.2d 265 (2023)) – Affirmed that § 23-114.01(5) grants a statutory right to appeal without limiting the class of appellants; recognized two distinct remedies for challenging conditional‐use decisions.
Mullins v. Box Butte County (317 Neb. 937, 13 N.W.3d 67 (2024)) and Dirt Road Development v. Hirschman (316 Neb. 757, 7 N.W.3d 438 (2024)) – Reiterated that statutory and zoning‐regulation interpretation are questions of law reviewed de novo.

Legal Reasoning

1. Statutory Interpretation and Jurisdiction

The Court began with the text of § 23-114.01(5): “An appeal of a decision by the county board of commissioners . . . regarding a conditional use . . . shall be made to the district court.”
It found the language “plain and unambiguous,” imposing no restriction on the type of decision or the identity of the appellant. The law grants de novo appellate review to any aggrieved party, not just the permit applicant.
No legislative history was necessary because the statute’s meaning was clear. The 2004 amendment adding district‐court review did not explicitly limit appeals to applicants.
Pre-amendment cases (Mogensen, Niewohner) addressed a different review path and could not override the unambiguous amended statute.

2. Zoning Regulation Interpretation

Under Neb. Rev. Stat. § 23-114.01(4), conditional use permits are “granted . . . to property owners for the use of their property.” Cherry County regulations echo this: the applicant must be the property owner or authorized agent.
The Court held that the property owner carries the burden to show compliance with odor and water‐contamination standards; the operator’s separate assurances are not required at the permit stage.
The term “owner/operator” in post‐permit compliance provisions demonstrates the owner’s primary obligation upfront and operator liability afterward, but does not shift the initial burden.
Class AN facilities use anaerobic manure storage processes and are not precluded from meeting odor standards; references to “no effective provisions” for dust/odor in defining Class AN apply only to minimum‐distance rules, not to assurance requirements under §§ 501.05(15)(D) and 1008.08.

3. Application of the “Clearly Erroneous” Standard

The Court reviewed factual findings in the light most favorable to the successful party (Danielski) and refused to reweigh conflicting testimony.
The record showed odor‐control measures—ventilation, floor maintenance, manure‐storage capacity, buffer distances, injection methods, and monitoring—satisfied the “acceptable to the Board” and “inappropriate levels” criteria.
Engineering plans, nutrient management permits, acreage for spreading manure, concrete floors, manure pits, monitoring wells, geological data on caprock and water table, and state‐agency approvals demonstrated compliance with water‐ pollution controls (§ 501.05(15)(E), (F), (G), (J) and § 1008.08).
Isolated challenges to crop rotation assumptions, acreage counts, engineer qualifications, and lease provisions did not render the district court’s findings “clearly erroneous.”

Potential Impact

Clarifies that any party aggrieved by a zoning board’s conditional use or special exception decision—including neighbors and intervenors—may appeal de novo to the district court under § 23-114.01(5).
Confirms that courts must honor the statutory appeal route chosen by litigants (de novo appeal vs. petition in error), and cannot narrow it by reading restrictions into the statute.
Reaffirms that property owners, not operators, bear the burden of proving compliance with zoning conditions to obtain a permit, while operators can be held liable post-permit under enforcement statutes.
Provides guidance on interpreting “Class AN” and other zoning categories, ensuring that definitions do not create automatic permit denials but rather modify distance and design requirements.
Strengthens the role of the appellate court in zoning appeals: defer to de novo factual findings unless clearly erroneous and independently resolve questions of law.

Complex Concepts Simplified

De Novo Trial: A brand-new trial in the district court that does not rely on the zoning board’s record but instead lets the court make fresh factual findings, akin to a jury verdict.
Conditional Use Permit: A permission granted by a county board to landowners to conduct specified activities—such as a hog facility—that otherwise might be restricted by zoning rules, subject to conditions that protect neighbors and the environment.
“Confined Animal Feeding Use” / Class AN: Legal categories defining how manure is handled (e.g., anaerobic pits for Class AN), which affect separation distances from schools and homes, but not the ability to meet odor-control rules.
“Clearly Erroneous” Standard: On appeal, factual findings stand unless the appellate court is “left with the definite and firm conviction” that a mistake was made, after viewing all evidence in favor of the prevailing party.
Statutory Appeal vs. Petition in Error: Appealing under § 23-114.01(5) yields a de novo trial, while a petition in error (§ 25-1901) yields an appellate review of the record, similar to asking a higher court to correct legal errors only.

Conclusion

In Amorak v. Cherry County Board of Commissioners, the Nebraska Supreme Court established two important principles:

Any aggrieved party may appeal a county board’s conditional use permit decision de novo to the district court under Neb. Rev. Stat. § 23-114.01(5). The statute’s plain language imposes no limit on the type of decision or appellant.
The property owner who holds the permit application carries the burden of showing compliance with zoning requirements (odor, water pollution, distance, design), while the operator’s liability and “owner/operator” obligations primarily govern post-permit enforcement.

These holdings broaden access to trial‐level review of land‐use decisions, reinforce clear statutory interpretation, clarify the division of responsibilities between owners and operators, and underscore the deference owed to fact-findings in zoning appeals. Future challenges to conditional use permits will be guided by this framework, ensuring consistency and predictability in Nebraska’s land‐use law.