Preserve the Sandhills, LLC v. Cherry County, Nebraska

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Preserve the Sandhills, LLC v. Cherry County, Nebraska

Case Number
S-21-0888
Call Date
November 4, 2022
Case Time
9:00 AM
Court Number
Cherry
Case Location
Lincoln
Court Type
District Court
Case Summary

S-21-0888 Preserve the Sandhills, LLC, Charlene Reiser-McCormick (Appellants) v. Cherry County, Nebraska, Cherry County Board of Commissioners, James Ward, Martin DeNaeyer, Tanya Storer, and Attorney General Doug Peterson (Appellees)

Appeal from the District Court for Cherry County, Judge Mark D. Kozisek

Attorneys: Jason M. Bruno, Diana J. Vogt, Thomas G. Schumacher (Sherrets, Bruno, & Vogt for Appellant), Eric Scott (Cherry County Attorney for Appellee Cherry County), and David Houghton and Justin Eichmann (Houghton Bradford Whitted for Appellees Cherry County Board of Commissioners). 

Civil:  Standing and Summary Judgment

Proceedings Below: Appellants appealed the Cherry County Board’s decision to approve a Conditional Use Permit [CUP] to the District Court for Cherry County.  The trial court found that Appellants lacked standing and sustained Appellees’ Motion for Summary Judgment.  On appeal and on its own motion, the Nebraska Supreme Court ordered that this case be removed from the docket of the Nebraska Court of Appeals and transferred to its docket. 

Issues: On appeal, Appellant makes the following assignments of error:  1) The district court erred in failing to determine Commissioners Storer and DeNaeyer abused their official positions under Neb. Rev. Stat. § 49-1499.05; 2) The district court erred in failing to determine Commissioners Storer and DeNaeyer had conflicts of interest which precluded them from lawfully participating and voting on the Conditional Use Permit; 3) To the extent Neb. Rev. Stat. §§ 49-1425 and 49-1499.03 do not cover the blatant and obvious conflicts of Storer and DeNaeyer, those statutes are unconstitutional and void under Nebraska Public Policy; and 4) The district court erred when it determined PTS and Reiser lacked any standing to challenge the unlawful actions of Storer and DeNaeyer:  A) Reiser has standing to challenge the Board’s actions as a taxpayer and as someone who suffered unique harm; B) PTS has standing to challenge the Board’s actions as it participated in the proceedings, was acknowledged as a party, and was impacted by the outcome; and C) To the extent it did so, the district court erred in Declining to admit the unrefuted testimony of a real estate expert showing that Reiser suffered unique and direct injury upon the passage of the Conditional Use Permit.

Schedule Code
SC