Preserve the Sandhills, LLC v. Cherry County, Nebraska

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Preserve the Sandhills, LLC v. Cherry County, Nebraska

Case Number
Call Date
November 4, 2022
Case Time
9:00 AM
Court Number
Case Location
Court Type
District Court
Case Summary

S-22-0025 Preserve the Sandhills, LLC, Charlene Reiser-McCormick, William Schmitt, Danielle Robinson, Shaw and Kayte Robinson, Jim and Anita Robinson, John Hamilton, Kort Hamilton, Marion and Merrial Rhoades, Wayne Eatinger, Deborah Galloway (Appellants) v. Cherry County, Nebraska, Cherry County Board of Commissioners, BSH Kilgore, LLC, Cherry County Wind, LLC, and Bluestem Sandhills, LLC (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), David Houghton and Justin Eichmann (Houghton Bradford Whitted for Appellees Cherry County Board of Commissioners), Steven Ranum (Crocker Huck Law Firm for Appellee Cherry County Wind, LLC), and Steven D. Davidson and Spencer R. Murphy (Baird Holm for Appellee BSH Kilgore, LLC). 

Civil:  Jurisdiction and Standing.    

Proceedings Below: The District Court for Cherry County overruled Appellants’ Motion for Summary Judgment, sustained Appellees’ Motion for Summary Judgment, and dismissed Appellants’ lawsuit with prejudice.  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 invalidate the CUP because the Board undisputedly failed to issue the “statement of factual findings” required by Neb. Rev. Stat. § 23-144.01(6):  A. The Board did not make or issue the “statement of factual findings” required by State Law; and B. The failure to issue the statement of factual findings renders the Board’s decision arbitrary as a matter of law; 2) The district court erred when it prohibited Appellants from challenging the invalid CUP under their properly pled Amended Complaint; 3)  The district court erred in determining Appellant’s lacked standing to challenge the unlawful CUP:  A. The District Court erred when it determined that the Second Amended Complaint did not “relate back” to the time of filing the original complaint to name the additional Appellants as parties; B. Reiser has standing to challenge the CUP as a taxpayer, landowner, and an individual who suffered unique harm; C. PTS has standing to challenge the CUP as PTS participated in the proceedings, was acknowledged as a party, and was impacted by the CUP; and D. 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 CUP.

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