Preserve the Sandhills v. Cherry County

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/17/2021 01:08 AM CST
- 184 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 184Preserve the Sandhills, LLC, et al., appellants
and cross-appellees, v. Cherry County,
Nebraska, et al., appellees, and BSH
Kilgore, LLC, and Bluestem
Sandhills, LLC, appellees
and cross-appellants.
___ N.W.2d ___
Filed September 24, 2021. No. S-20-726.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclusion indepen-
dent of the lower court’s decision.
2. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
4. ____: ____. Where a lower court lacks subject matter jurisdiction to
adjudicate the merits of a claim, issue, or question, an appellate court
also lacks the power to determine the merits of the claim, issue, or ques-
tion presented to the lower court.
5. Statutes: Appeal and Error. The right of appeal in this state is purely
statutory; unless a statute provides for an appeal from the decision of a
quasi-judicial tribunal, such right does not exist.
6. ____: ____. Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation to
ascertain the meaning of statutory words which are plain, direct, and
unambiguous.
7. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
- 185 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 1848. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
9. Statutes: Legislature: Intent: Appeal and Error. An appellate court
can examine an act’s legislative history if a statute is ambiguous or
requires interpretation.
10. Governmental Subdivisions: Counties: Statutes: Words and Phrases:
Appeal and Error. The plain meaning of the term “decision” in Neb.
Rev. Stat. § 23-114.01(5) (Reissue 2012), in the context of the entire
statute, is a decision to grant, deny, or partially grant and partially deny
a conditional use permit.
11. Governmental Subdivisions: Counties: Appeal and Error. On appeal,
a court may look through form to substance to determine whether a
county board granted, denied, or partially granted and partially denied a
conditional use permit.
12. Appeal and Error. A lower court cannot commit error in resolving an
issue never presented and submitted to it for disposition.
13. ____. An appellate court is not obligated to engage in an analysis that is
not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Cherry County: Mark D.
Kozisek, Judge. Appeal dismissed.
Jason M. Bruno, Diana J. Vogt, Robert S. Sherrets, 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 Cherry County and Cherry
County Board of Commissioners.
Steven G. Ranum and Richard A. DeWitt, of Croker, Huck,
Kasher, DeWitt, Anderson & Gonderinger, L.L.C., for appellee
Cherry County Wind, L.L.C.
Steven D. Davidson and Spencer R. Murphy, of Baird
Holm, L.L.P., for appellees BSH Kilgore, L.L.C., and Bluestem
Sandhills, L.L.C.
- 186 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 184Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Weimer, District Judge.
Cassel, J.
I. INTRODUCTION
After the opponents of a wind turbine project appealed a
county board’s grant of a conditional use permit (CUP) and
while the appeal was pending, a proponent sought and obtained
from the board an extension of time to complete the project.
The opponents then attempted to appeal from the extension.
The district court dismissed the second appeal for lack of
jurisdiction. The opponents appeal that dismissal, contending
that Neb. Rev. Stat. § 23-114.01 (Reissue 2012) confers a right
of appeal from any action regarding a CUP, no matter how
incidental or preliminary. Because it does not, we lack jurisdic-
tion and dismiss their appeal and do not reach a proponent’s
cross-appeal.
II. BACKGROUND
In 2019, the Cherry County Board of Commissioners (the
Board) granted BSH Kilgore, LLC (BSH), a CUP for the
development of a commercial wind turbine operation in Cherry
County, Nebraska. Less than a year later and while an appeal
from the Board’s action granting the CUP was pending in the
district court, the Board granted BSH a 4-year extension to
build the operation.
Preserve the Sandhills, LLC, and a number of individual
Cherry County citizens opposing the project (collectively PTS)
filed a “Complaint and Petition on Appeal” in the district court,
challenging the Board’s action granting BSH’s extension. In
addition to Cherry County, the Board, and BSH, the complaint
named Cherry County Wind, LLC, and Bluestem Sandhills,
LLC (Bluestem), as defendants. According to the complaint,
Cherry County Wind and Bluestem were “involved in the
applications to the Board for the CUP.”
In the complaint, PTS asked for a trial de novo pursuant to
§ 23-114.01 and Neb. Rev. Stat. § 25-1937 (Reissue 2016),
- 187 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 184a statute which provides an appeal procedure applicable where
a statute confers a right of appeal without specifying a proce-
dure. PTS never filed a petition in error in the district court
or requested that the court convert its appeal into a petition
in error.
Cherry County Wind filed a motion to dismiss for lack of
standing and failure to state a claim, and it asserted that it was
improperly joined. BSH and Bluestem filed a similar motion.
This was followed by a motion to dismiss filed by Cherry
County and the Board.
After holding a telephonic hearing regarding the motions
and soliciting the parties’ briefs on the issue of jurisdiction,
the court dismissed PTS’ appeal on the basis that it lacked
jurisdiction. The court found that an appeal for a trial de novo
in that court is limited to the grant or denial of a CUP and that
any other decisions regarding a CUP are subject to review only
through petition in error.
The court explained that ruling otherwise would allow every
tangential decision, such as continuations of hearings, limita-
tions on the number of persons testifying, and limits on the
time and scope of testimony, to be afforded de novo review.
The court emphasized that it was not making a finding that the
grant of an extension of the CUP was a final order but only that
an appeal under § 25-1937 was strictly limited to orders grant-
ing or denying a CUP.
PTS filed a timely appeal. BSH and Bluestem filed a cross-
appeal. Although the extent of Bluestem’s participation in the
cross-appeal is not entirely clear, we need not resolve the ambi-
guity. We moved the case to our docket. 1 We later ordered the
parties to file supplemental briefs, which we have considered,
regarding two aspects of jurisdiction.
III. ASSIGNMENTS OF ERROR
PTS’ appeal assigns that the district court erred in (1) con-
cluding that “PTS was not entitled to a de novo review of
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
- 188 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 184the county board’s decision to extend the time to perform a
conditional use” and (2) dismissing the case “because it did
not agree that the standard of review requested by PTS was
appropriate.”
The cross-appeal assigns that the district court erred in fail-
ing to dismiss PTS’ appeal “for the separate and independent
reason that [PTS] failed to state a plausible claim upon which
relief can be granted.”
IV. STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law,
which requires the appellate court to reach a conclusion inde-
pendent of the lower court’s decision. 2
[2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. 3
V. ANALYSIS
1. Appeal
(a) Jurisdiction
[3-5] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. 4 Where a lower court
lacks subject matter jurisdiction to adjudicate the merits of
a claim, issue, or question, an appellate court also lacks the
power to determine the merits of the claim, issue, or question
presented to the lower court. 5 The right of appeal in this state
is purely statutory; unless a statute provides for an appeal
from the decision of a quasi-judicial tribunal, such right does
not exist. 6
2
Champion v. Hall County, 309 Neb. 55, 958 N.W.2d 396 (2021).
3
In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021).
4
Butler Cty. Landfill v. Butler Cty. Bd. of Supervisors, 299 Neb. 422, 908
N.W.2d 661 (2018).
5
Id.6
Champion v. Hall County, supra note 2.
- 189 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 184Relying upon the third sentence of § 23-114.01(5), PTS
argues that the Legislature has conferred a right to appeal
“a decision by the . . . county board of commissioners . . .
regarding a [CUP]” to the district court. PTS contends that the
Board’s extension constitutes an appealable “decision” under
§ 23-114.01. Further, it argues, § 25-1937 allows for a party
appealing under § 23-114.01(5) to receive a trial de novo in the
district court. 7
BSH and Bluestem argue that the plain language of the
statute does not extend its subject matter beyond granting or
denying a CUP. It follows, they argue, that the corresponding
appeal right provided in the statute is of equal scope. Cherry
County, the Board, and Cherry County Wind make similar
arguments.
Thus, to decide whether we have jurisdiction of this appeal,
we must determine whether, under the circumstances pre-
sented here, the extension qualified as a “decision” under
§ 23-114.01(5). This requires statutory interpretation.
[6-9] Rules regarding statutory interpretation are well
known. 8 Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. 9 In construing a statute, a court
must determine and give effect to the purpose and intent of
the Legislature as ascertained from the entire language of the
statute considered in its plain, ordinary, and popular sense. 10
It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and
plain out of a statute. 11 An appellate court can examine an
act’s ­legislative history if a statute is ambiguous or requires
7
See In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).
8
In re Adoption of Yasmin S., supra note 3.
9
Id.
10
Id.
11
Id.
- 190 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 184interpretation. 12 With these principles in mind, we turn to
the language of § 23-114.01(5), viewed in the context of the
entire statute.
We now quote § 23-114.01 at length, striving to retain the
meaning of the entire statute without losing sight of the most
pertinent parts. We have italicized key language for emphasis.
Section 23-114.01 provides:
(1) In order to avail itself of the powers conferred by
section 23-114, the county board shall appoint a plan-
ning commission to be known as the county planning
commission. [Membership requirements, terms of office,
removal of members, filling vacancies, and compensa-
tion provisions.]
(2) [Duties of commission and requirement of receipt
of commission recommendations before certain county
board actions.]
(3) [Powers conferred upon planning commissions.]
(4) In all counties in the state, the county planning
commission may grant conditional uses . . . to property
owners for the use of their property if the county board of
commissioners . . . has officially and generally authorized
the commission to exercise such powers and has approved
the standards and procedures the commission adopted for
equitably and judiciously granting such conditional uses
. . . . The granting of a [CUP is limited to uses identified
in county zoning regulations].
(5) The power to grant conditional uses . . . as set forth
in subsection (4) of this section shall be the exclusive
authority of the commission, except that the county board
of commissioners . . . may choose to retain for itself the
power to grant conditional uses . . . for those classifica-
tions of uses specified in the county zoning regulations.
The county board of commissioners . . . may exercise
such power if it has formally adopted standards and
12
State v. McColery, 301 Neb. 516, 919 N.W.2d 153 (2018).
- 191 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 184procedures for granting such conditional uses . . . in a
manner that is equitable and which will promote the pub-
lic interest. In any county other than a county in which is
located a city of the primary class, an appeal of a deci-
sion by the county planning commission or county board
of commissioners . . . regarding a conditional use . . .
shall be made to the district court. [Appeal specified for
county in which is located a city of the primary class.]
(6) Whenever a . . . county board is authorized to grant
conditional uses . . . pursuant to subsection . . . (5) of this
section, the . . . county board shall, with its decision to
grant or deny a [CUP], issue a statement of factual find-
ings arising from the record of proceedings that support
the granting or denial of the [CUP]. If a county plan-
ning commission’s role is advisory to the county board,
the county planning commission shall submit such state-
ment with its recommendation to the county board as to
whether to approve or deny a [CUP]. 13
[10] The plain meaning of the term “decision” in
§ 23-114.01(5), in the context of the entire statute, is a deci-
sion to grant, deny, or partially grant and partially deny a
CUP. Section 23-114.01 repeatedly and exclusively discusses
a county board of commissioners’ decisionmaking powers in
terms of the grant or denial of a CUP. Section 23-114.01(5)
begins by authorizing a county board “to retain for itself the
power to grant conditional uses . . . for those classifications
of uses specified in the county zoning regulations.” (Emphasis
supplied.) This authorization is preceded in subsection (4) by
the specific power conferred upon a planning commission
to “grant conditional uses.” 14 Subsection (6) imposes on a
county board, “with its decision to grant or deny a [CUP],”
the obligation to establish a record for any potential appeals
by “issu[ing] a statement of factual findings arising from the
13
§ 23-114.01 (emphasis supplied).
14
See § 23-114.01(4) (emphasis supplied).
- 192 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 184record of proceedings that support the granting or denial of
the [CUP].” 15
PTS would have us read the word “decision” in the third
sentence of subsection (5) in isolation. But that invites us to
ignore the multiple references to “grant,” “granting,” “deny,”
and “denial.” We are required to read and construe the entire
statute, and we decline PTS’ invitation to do otherwise.
To the extent that any hint of ambiguity remains, it is
dispelled by the legislative history. The disputed word—
“decision”—was added to § 23-114.01(5) in 2004. 16 The lan-
guage was a last-minute amendment to a much larger com-
prehensive bill focusing on an overhaul of chapter 77 of the
Nebraska Revised Statutes. 17 The senator who offered the
amendment explained that the language originated in a separate
bill—L.B. 1008—that had not yet been brought to the floor for
a vote. 18
The committee statement for L.B. 1008 explained that a
Nebraska Court of Appeals’ decision 19 prompted the bill. 20
The Court of Appeals had determined that under the then-
existing statutes, a county board of adjustment was the body
empowered to decide an appeal from the denial of a CUP by
a county board of supervisors. 21 The bill, as amended into the
adopted legislation, expressly removed a board of adjustment’s
authority to “hear and decide appeals regarding conditional
use permits . . . which may be granted pursuant to section
15
See § 23-114.01(6) (emphasis supplied).
16
See 2004 Neb. Laws, L.B. 973, § 3.
17
See id.
18
Floor Debate, L.B. 973, 98th Leg., 2d Sess. 12302-04 (Mar. 24, 2004).
19
See Niewohner v. Antelope Cty. Bd. of Adjustment, 12 Neb. App. 132, 668
N.W.2d 258 (2003) (superseded by statute as stated in In re Application of
Olmer, supra note 7).
20
See Committee Statement, L.B. 1008, Urban Affairs Committee, 98th
Leg., 2d Sess. 1-2 (Jan. 20, 2004).
21
See Niewohner v. Antelope Cty. Bd. of Adjustment, supra note 19.
- 193 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 18423-114.01.” 22 This legislative history confirms our understand-
ing of the term “decision” in § 23-114.01(5).
[11] We have concluded that the right to appeal conferred
by § 23-114.01(5) applies only to decisions granting, denying,
or partially granting and partially denying a CUP. However,
a county board cannot circumvent an appeal by labeling or
recasting an action’s form contrary to its substance. On appeal,
a court may look through form to substance to determine
whether a county board granted, denied, or partially granted
and partially denied a CUP. 23
In the unusual circumstances presented in this appeal, where
the Board’s earlier decision to grant a CUP was appealed to
the district court and remained undisposed by that court, the
Board’s decision to extend the time for performance cannot be
said to grant or deny a CUP. The extension had no effect upon
the substance of the use of the real estate—if the appeal now
pending in the district court overturns the CUP, the use will not
be permitted; if that appeal upholds the CUP, the use of the real
estate will not be affected.
Under these circumstances, the district court lacked jur­
isdiction of the second appeal. Because that court lacked juris­
diction, we also lack jurisdiction. 24 We express no opinion
regarding the power of the Board to grant an extension of a
CUP while an appeal of its initial decision to grant the CUP
was pending in the district court.
(b) Petition in Error
PTS also assigns that “[i]t was an error for the district court
to dismiss the case because it did not agree that the standard
of review requested by PTS was appropriate.” PTS uses this
22
See 2004 Neb. Laws, L.B. 973, § 4 (emphasis supplied).
23
See, generally, Prigge v. Johns, 186 Neb. 761, 186 N.W.2d 497 (1971);
Loskill v. Board of Equalization, 186 Neb. 707, 185 N.W.2d 852 (1971).
24
See Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 854 N.W.2d
774 (2014).
- 194 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 184artful articulation to argue that the court erred by not convert-
ing its “Complaint and Petition on Appeal,” which sought de
novo review under §§ 23-114.01 and 25-1937, into a petition
in error under Neb. Rev. Stat. § 25-1901 (Reissue 2016).
But PTS chose to seek review using §§ 23-114.01 and
25-1937, and two principles defeat its attempt to “change
horses” on appeal.
First, as we explained in In re Application of Olmer, 25 a court
must respect an appellant’s chosen method of appeal. There,
we concluded that the district court erred in converting an
appeal from a denial of a CUP, taken pursuant to §§ 23-114.01
and 25-1937, into a petition in error. Here, PTS, having made
the choice of its route using §§ 23-114.01 and 25-1937, must
live with the consequences that follow.
[12] Second, a lower court cannot commit error in resolv-
ing an issue never presented and submitted to it for disposi-
tion. 26 PTS never filed a petition in error in the district court.
It never requested the court to treat its complaint as a petition
in error. Only on appeal to this court does it attempt to make
this change. Because the district court lacked jurisdiction of
PTS’ chosen route, we lack jurisdiction to consider whether a
petition in error was available, and we express no opinion on
that question.
We recognize that the provision of § 25-1937 requiring
a trial de novo in the district court is a historical anomaly.
Section 25-1937 was first adopted in 1963. 27 Then, as now,
it specified that “the procedure for appeal to the district court
shall be the same as for appeals from the county court to the
district court in civil actions.” 28 At that time, all appeals from
county court in civil cases were taken to the district court
25
In re Application of Olmer, supra note 7.
26
Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015).
27
See 1963 Neb. Laws, ch. 138, § 1, p. 515.
28
See § 25-1937 (Reissue 1964).
- 195 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
PRESERVE THE SANDHILLS v. CHERRY COUNTY
Cite as 310 Neb. 184for a true trial de novo. 29 Thus, at that time, the second sentence
of § 25-1937 was entirely consistent with appeals from county
court to district court. Now, as a consequence of changes made
over the last 40 years, on appeal from the county court in a
civil case, a district court reviews the case for “error appearing
on the record made in the county court.” 30 Nevertheless, the
provision in § 25-1937 for trial de novo continues. Whether it
should do so is a matter for the Legislature.
2. Cross-Appeal
[13] The cross-appeal was conditioned upon this court find-
ing that it has jurisdiction of the appeal. Because we do not, it
is unnecessary for us to address the cross-appeal. An appellate
court is not obligated to engage in an analysis that is not neces-
sary to adjudicate the case and controversy before it. 31
VI. CONCLUSION
We lack jurisdiction to hear this appeal. Therefore, we dis-
miss it.
Appeal dismissed.
Miller-Lerman, J., not participating.
29
See, Neb. Rev. Stat. § 24-544 (Reissue 1956) (in county courts, appeals
in civil actions are taken “in the manner as provided by law in cases tried
and determined by [justice courts]”); Neb. Rev. Stat. § 27-1305 (Reissue
1956) (in justice courts, appeals “shall proceed, in all respects, in the same
manner as though the action had been originally instituted” in district
court); Guaranty Fund Commission v. Teichmeier, 119 Neb. 387, 229
N.W. 121 (1930) (explaining distinction between appeals from county and
justice courts to district court and appeals from district court to Nebraska
Supreme Court).
30
See Neb. Rev. Stat. § 25-2733 (Reissue 2016).
31
Guenther v. Walnut Grove Hillside Condo. Regime No. 3, 309 Neb. 655,
961 N.W.2d 825 (2021).