Preserve the Sandhills v. Cherry County

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/24/2023 09:06 AM CST
- 590 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590Preserve the Sandhills, LLC, and Charlene
Reiser-McCormick, appellants, v. Cherry
County, Nebraska, et al., appellees.
___ N.W.2d ___
Filed February 24, 2023. No. S-21-888.
1. Jurisdiction: Pleadings: Evidence: Words and Phrases. If a motion
challenging a court’s subject matter jurisdiction is filed after the plead-
ings stage, and the court holds an evidentiary hearing and reviews evi-
dence outside the pleadings, it is considered a “factual challenge.”
2. Jurisdiction: Pleadings: Appeal and Error. Where the trial court’s
decision to dismiss for lack of subject matter jurisdiction is based on
a factual challenge, the court’s factual findings are reviewed under the
clearly erroneous standard. But aside from any factual findings, the
trial court’s ruling on subject matter jurisdiction is reviewed de novo,
because it presents a question of law.
3. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
a trial court’s decision to admit or exclude expert testimony for an abuse
of discretion.
4. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case because only a party who has standing may invoke the
jurisdiction of a court.
5. Standing: Jurisdiction: Appeal and Error. Because standing is a
jurisdictional component, an appellate court must address it as a thresh-
old matter.
6. Standing: Jurisdiction: Parties. Standing refers to whether a party had,
at the commencement of the litigation, a personal stake in the outcome
of the litigation that would warrant a court’s exercise of its subject mat-
ter jurisdiction and remedial powers on that party’s behalf.
7. Standing. Standing relates to a court’s power to address the issues
presented and serves to identify those disputes which are appropriately
resolved through the judicial process.
- 591 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 5908. ____. The focus of the standing inquiry is not on whether the claim the
plaintiff advances has merit; it is on whether the plaintiff is the proper
party to assert the claim.
9. ____. To have standing, the plaintiff must have some legal or equitable
right, title, or interest in the subject matter of the controversy.
10. ____. Generally, a party has standing only if he or she has suffered or
will suffer an injury in fact. Such an injury must be concrete in both a
qualitative and temporal sense, and it must be distinct and palpable, as
opposed to merely abstract. And the alleged harm from such an injury
must be actual or imminent, not conjectural or hypothetical.
11. Standing: Proof. To show standing, it is generally insufficient for a
plaintiff to have merely a general interest common to all members of
the public.
12. Municipal Corporations: Injunction: Proof: Taxation. A person seek-
ing to restrain the action of a governmental body must show some spe-
cial injury peculiar to himself or herself aside from, and independent of,
the general injury to the public unless it involves an illegal expenditure
of public funds or an increase in the burden of taxation.
13. Trial: Witnesses: Real Estate. For the testimony of an expert or lay
witness to be admissible on the question of market value of real estate,
the witness must be familiar with the property in question and the state
of the market.
14. Jurisdiction. Subject matter jurisdiction cannot be created by waiver,
estoppel, consent, or conduct of the parties.
Appeal from the District Court for Cherry County: Mark D.
Kozisek, Judge. Affirmed.
Jason M. Bruno, Diana J. Vogt, and Thomas G. Schumacher,
of Sherrets, Bruno & Vogt, L.L.C., for appellants.
Eric A. Scott, Cherry County Attorney, and David S.
Houghton and Justin D. Eichmann, of Houghton, Bradford, &
Whitted, P.C., L.L.O., for appellees.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Carson, District Judge.
Stacy, J.
This is an appeal from an order dismissing an action seek-
ing to enjoin two members of a county board of commis-
sioners from voting on an application for a conditional use
- 592 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590permit (CUP). The district court dismissed the action for lack
of standing. Because we agree the plaintiffs lack standing to
bring the action, we affirm.
I. BACKGROUND
In 2019, BSH Kilgore, LLC (BSH), applied for a CUP to
erect and maintain 19 commercial grade wind turbines and
related facilities in Cherry County, near the village of Kilgore,
Nebraska. The application was set for a public hearing before
the Cherry County Board of Commissioners (the Board) on
July 16.
1. Complaint and
Amended Complaint
About 2 weeks before the scheduled hearing, opponents
of the CUP application filed a complaint in the district court
for Cherry County seeking an injunction. More specifically,
Preserve the Sandhills, LLC (PTS), and Charlene Reiser-
McCormick filed a complaint against several defendants,
including the Board and commissioners Martin DeNaeyer
and Tanya Storer (collectively the defendants), alleging that
DeNaeyer and Storer had conflicts of interest and should be
enjoined from considering or voting on the CUP application.
After the defendants successfully moved to dismiss the
original complaint for lack of standing, PTS and Reiser-
McCormick filed an amended complaint with additional stand-
ing allegations. The operative amended complaint was styled
as five causes of action, all premised on the Nebraska Political
Accountability and Disclosure Act (NPADA). 1 It alleged that
commissioners DeNaeyer and Storer had conflicts of interests
under the NPADA that should preclude them from consider-
ing BSH’s CUP application, but had refused to disqualify
themselves from voting on the CUP. The amended complaint
sought an injunction precluding DeNaeyer and Storer from
considering or voting on the CUP application. Alternatively,
1
Neb. Rev. Stat. §§ 49-1401 to 49-14,142 (Reissue 2021).
- 593 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590in the event the court determined that DeNaeyer and Storer
did not have a conflict of interest as defined in the NPADA,
the amended complaint requested a declaratory judgment
finding the conflict of interest provisions in the NPADA
were unconstitutional.
The amended complaint also contained allegations related
to the legal standing of PTS and Reiser-McCormick. It alleged
Reiser-McCormick was a “concerned citizen, landowner, and
taxpayer of Cherry County [who] will suffer harm and detriment
if the CUP is approved.” And it alleged PTS was a Nebraska
limited liability company “organized for and dedicated to the
education and preservation of the Nebraska Sandhills [and
consisting] of approximately 500 ranchers, taxpayers, property
owners, business owners, residents, and concerned citizens
of Counties located within the Sandhills, including Cherry
County.” The amended complaint also affirmatively alleged
that both PTS and Reiser-McCormick had standing to bring
the action under “Cherry County Zoning Regulations” and “by
law and equity.”
The defendants filed an answer expressly denying that
DeNaeyer and Storer had conflicts of interest under the
NPADA. The answer also denied the various standing alle-
gations of PTS and Reiser-McCormick, and it affirmatively
alleged both PTS and Reiser-McCormick lacked standing to
bring the action and the court therefore lacked subject matter
jurisdiction over the action.
2. District Court Order
and Appeal
A hearing was held on the issue of standing, and evidence
was adduced by all parties. In an order entered October 6,
2021, the district court agreed with the defendants that both
PTS and Reiser-McCormick lacked legal standing to bring the
action seeking to enjoin a vote on the CUP. The court’s order
addressed, and rejected, each of the standing theories of PTS
and Reiser-McCormick.
- 594 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590First, it concluded that neither PTS nor Reiser-McCormick
had shown common-law or injury-in-fact standing. Based on
the evidence, the court found that PTS owned no property in
Cherry County, and there was no evidence that PTS would suf-
fer any direct injury as a result of the CUP. 2 The court empha-
sized that PTS is “a separate legal entity, having an existence
separate and apart from its members,” and concluded “PTS
cannot bootstrap the injuries of its members into the injuries of
its own. PTS suffers no separate and distinct injury; it has no
common-law standing.”
As to Reiser-McCormick, the court found she owned prop-
erty in Cherry County, but it was located approximately 40
miles from the wind turbine project that was the subject
of the CUP. Given this geographic distance, the court con-
cluded Reiser-McCormick had not shown she would suffer any
injury different than that suffered by the general public if the
Board approved the CUP. The court acknowledged that Reiser-
McCormick had offered the affidavit of a real estate broker
who opined that the value and marketability of her property
would be impaired if the CUP was approved, but the court sus-
tained the defendants’ foundational objections to the broker’s
affidavit, so it was not received into evidence.
The district court also considered and rejected arguments
that the plaintiffs had standing to bring the action under certain
Cherry County zoning regulations, finding that none of the
zoning regulations relied on by PTS and Reiser-McCormick
were applicable to the facts of this case. And finally, the court
rejected arguments that PTS and Reiser-McCormick had stand-
ing to challenge issuance of the CUP under Neb. Rev. Stat.
§ 23-114.05 (Reissue 2022), reasoning that a similar standing
argument had already been expressly rejected by this court in
Egan v. County of Lancaster. 3
2
See, e.g., Egan v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 664(2020) (finding party has standing only if it will suffer injury in fact
different from injury to general public).
3
See id.- 595 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590After considering and rejecting each of the standing theories
of PTS and Reiser-McCormick, the district court concluded it
lacked subject matter jurisdiction over the action and dismissed
it on that basis. PTS and Reiser-McCormick filed this appeal,
which we moved to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
PTS and Reiser-McCormick assign, consolidated and
restated, that the district court erred in (1) finding they lacked
standing to bring this action, (2) excluding the affidavit of the
real estate broker, and (3) failing to reach the merits of their
various claims.
III. STANDARD OF REVIEW
[1,2] If a motion challenging a court’s subject matter juris-
diction is filed after the pleadings stage, and the court holds
an evidentiary hearing and reviews evidence outside the plead-
ings, it is considered a “factual challenge.” 4 Where the trial
court’s decision to dismiss for lack of subject matter jurisdic-
tion is based on a factual challenge, the court’s factual findings
are reviewed under the clearly erroneous standard. 5 But aside
from any factual findings, the trial court’s ruling on subject
matter jurisdiction is reviewed de novo, because it presents a
question of law. 6
[3] An appellate court reviews a trial court’s decision to
admit or exclude expert testimony for an abuse of discretion. 7
IV. ANALYSIS
The district court dismissed this action for lack of sub-
ject matter jurisdiction after holding an evidentiary hearing
4
Great Plains Livestock v. Midwest Ins. Exch., 312 Neb. 367, 979 N.W.2d
113 (2022).
5
Id.6
Id.7
See Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d 59 (2018).
- 596 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590and concluding that PTS and Reiser-McCormick had failed
to prove standing under any of the theories they advanced.
PTS and Reiser-McCormick contend this was error, and argue
the evidence showed they have common-law or injury-in-fact
standing to bring this action seeking to enjoin members of
the Board from voting on the CUP. Alternatively, they argue
they have standing to bring the action (1) under certain Cherry
County zoning regulations, (2) under § 23-114.05, or (3)
because they were allowed to participate in proceedings before
the Board related to the CUP application. We address each of
these standing arguments in turn. But first, we review the gen-
eral principles that govern our standing analysis.
[4,5] Standing is a jurisdictional component of a party’s
case because only a party who has standing may invoke the
jurisdiction of a court. 8 Because standing is a jurisdictional
component, an appellate court must address it as a thresh-
old matter. 9
[6-8] Standing refers to whether a party had, at the com-
mencement of the litigation, a personal stake in the outcome
of the litigation that would warrant a court’s exercise of its
subject matter jurisdiction and remedial powers on that party’s
behalf. 10 Standing relates to a court’s power to address the
issues presented and serves to identify those disputes which are
appropriately resolved through the judicial process. 11 The focus
of the standing inquiry is not on whether the claim the plaintiff
advances has merit; it is on whether the plaintiff is the proper
party to assert the claim. 12
8
Continental Resources v. Fair, 311 Neb. 184, 971 N.W.2d 313 (2022).
9
See In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661(2021).
10
Equestrian Ridge v. Equestrian Ridge Estates II, 308 Neb. 128, 953
N.W.2d 16 (2021).
11
Egan, supra note 2.
12
Id.
- 597 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590[9-12] To have standing, the plaintiff must have some legal
or equitable right, title, or interest in the subject matter of the
controversy. 13 Generally, a party has standing only if he or she
has suffered or will suffer an injury in fact. 14 Such an injury
must be “‘concrete in both a qualitative and temporal sense,’”
and it must be “‘distinct and palpable, as opposed to merely
abstract,’” and the alleged harm from such an injury must be
“‘actual or imminent, not conjectural or hypothetical.’” 15 We
have emphasized that to show standing, it is generally insuf-
ficient for a plaintiff to have “‘merely a general interest com-
mon to all members of the public.’” 16 And we have said that
a person seeking to restrain the action of a governmental body
must show some special injury peculiar to himself or herself
aside from and independent of the general injury to the public
unless it involves an illegal expenditure of public funds or an
increase in the burden of taxation. 17
1. Reiser-McCormick Did Not Show
Common-Law Standing
As noted, our common-law standing inquiry generally
focuses on whether the party bringing suit has suffered or will
suffer an injury in fact. 18 The district court found that neither
PTS nor Reiser-McCormick demonstrated an injury in fact.
On appeal, PTS and Reiser-McCormick confine their injury-
in-fact arguments to Reiser-McCormick; we limit our analy-
sis accordingly.
13
Equestrian Ridge, supra note 10.
14
Egan, supra note 2.
15
Id. at 53, 952 N.W.2d at 669, quoting Central Neb. Pub. Power Dist. v.
North Platte NRD, 280 Neb. 533, 788 N.W.2d 252 (2010).
16
Id. at 54, 952 N.W.2d at 669, quoting Ritchhart v. Daub, 256 Neb. 801,
594 N.W.2d 288 (1999).
17
West Fort Residents Assn. v. Housing Auth. of City of Omaha, 205 Neb.
397, 288 N.W.2d 27 (1980).
18
Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169(2019).
- 598 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590(a) No Injury in Fact Due to
Geographic Distance
The record shows that Reiser-McCormick owns land in
Cherry County, but the district court found that her land is
located approximately 40 miles southeast of where the 19 wind
turbines would be erected if the Board approved the CUP. Our
review of the record supports this finding.
In Egan, a taxpayer sought to challenge a special use per-
mit involving a poultry production facility located 13 miles
from her property, arguing her ownership of land in the county
demonstrated her injury in fact. 19 We concluded the taxpayer
in Egan lacked injury-in-fact standing, reasoning in part that
the taxpayer’s geographic distance from the poultry facility
prevented her from suffering an injury different from that of
the general public.
Our reasoning in Egan applies here too. Because of the
significant geographic distance between Reiser-McCormick’s
property and the location of the 19 proposed wind turbines
in the CUP application, we agree with the district court that
Reiser-McCormick’s ownership of property in Cherry County
is not sufficient to demonstrate she would suffer an injury in
fact if the CUP was granted.
(b) No Injury in Fact From
Neighbor’s Lease Agreement
Reiser-McCormick argues that even though her property is
40 miles from the wind turbine project for which BSH sought
a CUP, she suffered an injury in fact because her property is
“located within one mile of property identified in the CUP
[a]pplication as a location where wind turbines and related
facilities might be placed” 20 in the future. We understand this
argument to be based on two items of evidence. First, the
300-plus page CUP application submitted by BSH refers to
19
See Egan, supra note 2.
20
Brief for appellants at 31.
- 599 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590a lease/easement agreement between Cherry County Wind,
LLC, an affiliate of BSH, and the owner of property located
1 to 2 miles from Reiser-McCormick’s property. And second,
Reiser-McCormick offered the affidavit of a real estate broker
who opined that reference to the neighbor’s lease/easement
agreement in the CUP application resulted in an immediate
dimunition in the value of Reiser-McCormick’s property. As
we will explain, this evidence does not support injury-in-fact
standing to enjoin issuance of the CUP.
(i) CUP Application Does
Not Establish Standing
Reiser-McCormick relies on the CUP application’s reference
to a lease agreement found in a section of the CUP applica-
tion titled “Project Lease Memoranda.” This section contains,
among other agreements, a lease/easement agreement between
Cherry County Wind and Bluestem Sandhills, LLC. While it is
not entirely clear from our record, other portions of the CUP
application suggest this lease agreement pertains to property
located 1 to 2 miles from Reiser-McCormick’s property.
But it is undisputed that despite the existence of this lease
agreement, no entity is currently authorized to construct or
operate wind turbines on the neighbor’s property, and the CUP
application at issue did not request such authority. Instead,
such authority would require issuance of an entirely new and
separate CUP. As such, evidence showing the existence of
the lease agreement did not establish injury-in-fact standing
to challenge the CUP at issue here, and Reiser-McCormick’s
arguments to the contrary are meritless.
(ii) Broker’s Affidavit Does
Not Establish Standing
Reiser-McCormick argues that the affidavit of the real estate
broker was erroneously excluded by the district court and that
if it had been received into evidence, it would have established
her injury-in-fact standing. We disagree.
- 600 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590As we have explained, the lease agreement referred to in the
CUP application (and on which the broker’s affidavit relied)
was not directly related to the specific wind turbine project
for which BSH was seeking a CUP. Yet, the broker relied on
reference to the lease in the CUP application to opine that
Reiser-McCormick’s property suffered an “immediate stigma,
an impairment to marketability and desirability, and a signifi-
cant material reduction in value.” According to the broker, this
was so because “any prospective purchaser” will “factor into
its decision that wind-related facilities, including large wind
turbines . . . have the potential to be erected on the neighbor-
ing” property. (Emphasis in original.)
The district court sustained the defendants’ foundational
objection to the broker’s opinion, finding the broker’s experi-
ence related only to the Omaha, Nebraska, area and his affi-
davit disclosed no familiarity with rural Nebraska agricultural
values and no particular experience in Cherry County. It fur-
ther found the broker’s affidavit did not identify what materials
he reviewed when forming his opinion, did not tie his opinions
to historical market data for agricultural real estate sold or
offered for sale near wind farm projects, and referenced no
comparable sales or market studies.
Reiser-McCormick argues the broker’s opinion was never-
theless admissible, relying on the general proposition that an
expert is qualified to offer a valuation opinion pertaining to
real property so long as foundation is laid showing an acquaint­
ance with the property and the state of the market. 21 An appel-
late court reviews a trial court’s decision to admit or exclude
expert testimony for an abuse of discretion, 22 and we find no
abuse of discretion in the district court’s conclusion that the
broker’s opinion was inadmissible because it lacked neces-
sary foundation.
21
See Iske v. Metropolitan Utilities Dist., 183 Neb. 34, 157 N.W.2d 887(1968).
22
See Hemsley, supra note 7.
- 601 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590[13] For the testimony of an expert or lay witness to be
admissible on the question of market value of real estate, the
witness must be familiar with the property in question and
the state of the market. 23 Here, the broker’s affidavit did not
show any familiarity with the valuation of property in Cherry
County or the state of the market there, particularly as it related
to the presence of wind farms. The district court did not abuse
its discretion in sustaining the foundational objection to the
broker’s opinion.
And for the sake of completeness, we note that even if the
district court had admitted the broker’s affidavit, the record
would still fail to show that Reiser-McCormick suffered an
injury-in-fact sufficient to establish standing to challenge the
CUP at issue in this case. The subject CUP requested author-
ity for BSH to construct 19 wind turbines on property located
40 miles from Reiser-McCormick’s property. The broker’s
opinion was based on speculation that because the CUP appli-
cation referenced a lease agreement with Reiser-McCormick’s
neighbor, there was “the potential” in the future that a wind
turbine project might “be erected on the neighboring” prop-
erty. (Emphasis omitted.) But as stated earlier, injury-in-fact
standing requires an injury that is “‘concrete in both a qual-
itative and temporal sense,’” and not “‘merely abstract,’”
and the alleged harm from such an injury must be “‘actual
or imminent, not conjectural or hypothetical.’” 24 Here, the
broker’s opinion did not show any actual or imminent harm
from the neighbor’s lease agreement, and at best, it relied
on conjecture about the hypothetical possibility that a future
wind turbine project might one day be approved closer to
Reiser-McCormick’s property. But our case law demonstrates
that property owners do not show injury-in-fact standing
23
Liberty Dev. Corp. v. Metropolitan Util. Dist., 276 Neb. 23, 751 N.W.2d
608 (2008).
24
Egan, supra note 2, 308 Neb. at 53, 952 N.W.2d at 669, quoting Central
Neb. Pub. Power Dist., supra note 15.
- 602 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590just because they are concerned that approval of a project
many miles from their property today might lead to the future
approval of similar projects nearby. 25
2. No Standing Under
Zoning Regulations
PTS and Reiser-McCormick argue they have standing to
challenge issuance of the CUP under either § 1202 or § 910 of
the Cherry County zoning regulations. We note the operative
amended complaint in this CUP appeal alleged that PTS and
Reiser-McCormick had standing under Ҥ 1202 of the Cherry
County Zoning Regulations” but made no mention of § 910.
Regardless, it appears that both of these zoning regulations
were argued by the parties and considered by the district court
during the evidentiary hearing on standing, so we are satisfied
that the applicability of both zoning regulations has been suf-
ficiently preserved for appellate review.
We have recognized that the Legislature may confer stand-
ing by statute in situations that do not necessarily meet the
common-law injury-in-fact test, 26 but we have not directly
addressed whether such standing can be conferred by county
zoning regulations. We need not resolve that issue here, how-
ever, because even assuming without deciding that a county
zoning regulation can confer standing to challenge issuance
of a CUP, the regulations relied upon by PTS and Reiser-
McCormick are inapplicable to the facts of this case.
Section 1202 addresses complaints based upon violations of
the zoning regulations, and provides in relevant part:
In addition to other remedies, the County Board or other
proper local authority of the County, as well as any
owner(s) of property within the district affected by the
25
See Egan, supra note 2 (holding taxpayer does not show injury-in-fact
standing based on fear that approval of special use permit for poultry
operation 13 miles from her property might lead to approval of similar
operations closer to her property).
26
See, Egan, supra note 2; Griffith, supra note 18.
- 603 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590regulations, may institute any appropriate action or pro-
ceedings to prevent such unlawful construction, erec-
tion, reconstruction, alteration, repair, conversion, main-
tenance, business or use in or about the premises. Any
taxpayer or taxpayers in the County may institute pro-
ceedings to compel specific performance by the proper
official or officials . . . pursuant to such sections of
this Resolution.
This zoning regulation does not confer standing on either
PTS or Reiser-McCormick to challenge issuance of the CUP.
Their amended complaint did not allege the violation of any
zoning regulations, but instead alleged that two of the commis-
sioners had conflicts of interest under the NPADA and should
not be allowed to vote on the CUP application. Nor do we see
anything in the record establishing that PTS is a “taxpayer[] in
the County” within the meaning of § 1202.
The alternative standing argument of PTS and Reiser-
McCormick is based on § 910 of the Cherry County zoning
regulations. Article 9 of the zoning regulations, specifically
§ 907.01, creates the Cherry County Board of Adjustment
authorized to “hear and decide appeals where it is alleged by
the appellant that there is an error in order, requirement, deci-
sion or refusal made by the Zoning Administrator or official
based on or made in the enforcement of this Resolution or any
regulation relating to the location of structures.” According to
§§ 907.02 and 907.03, the board of adjustment also interprets
the zoning map and considers requests for variances. Section
910 grants a right to appeal from decisions of the board
of adjustment, and provides that “[a]ny person or persons,
jointly or severally, aggrieved by any decision of the Board
of Adjustment, or any officer, department, board or bureau
of the County,” may appeal, “setting forth that such decision
is illegal.”
PTS and Reiser-McCormick argue that the Board should
be considered a “board or bureau of the County” within the
meaning of § 910, and they further argue they have been
- 604 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590“aggrieved” because they claim any decision to issue the CUP
would be illegal. But they do not explain how their action to
enjoin issuance of the CUP pertains to anything governed by
article 9 of the zoning regulations or how it relates in any way
to a decision by the board of adjustment.
Instead, this action sought to prevent the Board from issu-
ing a CUP, which is governed under article 10 of the Cherry
County zoning regulations, not article 9. We agree with the
district court that the provisions of § 910 do not pertain to a
CUP and are inapplicable here.
3. No Standing Under
§ 23-114.05
PTS and Reiser-McCormick also argue they have standing
to challenge the CUP by virtue of § 23-114.05, which provides
in relevant part:
In addition to other remedies, the county board or the
proper local authorities of the county, as well as any
owner or owners of real estate within the district affected
by the regulations, may institute any appropriate action or
proceedings to prevent such unlawful construction, erec-
tion, reconstruction, alteration, repair, conversion, mainte-
nance, or use, to restrain, correct, or abate such violation,
or to prevent the illegal act, conduct, business, or use in
or about such premises. Any taxpayer or taxpayers of the
county may institute proceedings to compel specific per-
formance by the proper official or officials of any duty
imposed by such sections or in resolutions adopted pursu-
ant to such sections.
We addressed and rejected a similar standing argument in
Egan. 27 As already discussed, Egan held the landowner did
not have injury-in-fact standing to challenge a special use
permit allowing construction of a poultry production facility
that was located approximately 13 miles from her property.
27
Egan, supra note 2.
- 605 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590But the landowner in Egan also argued that she had stand-
ing to challenge the special use permit under § 23-114.05.
We disagreed.
Egan recognized that the Legislature can confer standing
that is broader than common-law injury-in-fact standing, but
we concluded that § 23-114.05 confers standing to challenge an
alleged zoning violation, not to challenge the issuance of a spe-
cial use permit. 28 Because the action in Egan did not involve an
alleged zoning violation, we held that any standing conferred
by § 23-114.05 was inapplicable.
The rationale from Egan applies here as well. Neither PTS
nor Reiser-McCormick have alleged or argued there has been
a violation of any zoning regulation. And during oral argu-
ment before this court, they candidly admitted their standing
argument under § 23-114.05 is directly contrary to our hold-
ing in Egan. Section 23-114.05 does not confer standing on
either PTS or Reiser-McCormick to challenge the CUP at
issue here.
4. Standing Not Created by
Waiver or Estoppel
[14] Finally, PTS and Reiser-McCormick argue we should
find they have standing to bring an action challenging issuance
of the CUP because they were allowed to appear before the
Board during the CUP application process, and no one objected
to them doing so. As framed, they seem to be relying on prin-
ciples of waiver or estoppel to establish legal standing. But
standing is a matter of subject matter jurisdiction, 29 and it is
well established that subject matter jurisdiction cannot be cre-
ated by waiver, estoppel, consent, or conduct of the parties. 30
This standing argument has no merit.
28
Id.
29
See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435(2018).
30
Id.- 606 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
PRESERVE THE SANDHILLS V. CHERRY COUNTY
Cite as 313 Neb. 590V. CONCLUSION
For the foregoing reasons, neither PTS nor Reiser-
McCormick has standing to challenge issuance of the CUP
and the district court correctly dismissed the action for lack of
subject matter jurisdiction. We therefore affirm the judgment
of dismissal and do not reach any of the remaining assign-
ments of error or arguments on appeal.
Affirmed.
Miller-Lerman, J., not participating.