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Decision in Hog Finishing Case
The Nebraska State Supreme Court overturned a District Court ruling that upheld
the denial of an application for a conditional use permit for a hog finishing
operation by the Madison County Board of Commissioners in a decision release
June 6, 2008.
The case centered around an application by Mark Olmer to site
a hog finishing facility on the Madison County side of the Madison County/Platte
County line filed in 2005. The Madison County Joint Planning Commission
recommended approval after a public hearing. Included in the recommendation was
a Statement of Finding of Facts that had 37 separate facts that were established
during the public hearing.
The Board of Commissioners held a separate hearing and after a
long deliberation voted against siting the facility citing facts listed in the
Statement of Finding of Facts. These facts described a neighbor living just
inside Platte County, but outside of the one-quarter mile setback area, had
proved she had a severe case of asthma that could be triggered and possibly
result in her death by hogs. High nitrates in area water supplies were also
cited. The Commissioners were following the County Zoning Regulations by
recognizing special circumstances that threatened the health, safety and welfare
of neighboring property owners. The applicant had met all of the other
requirements of the Zoning Regulations including passing the Madison County
Livestock Feeding Operation Siting Matrix designed to make the application
process easier, but not give automatic approval.
Olmer appealed to District Court as outlined in state
statutes. In his appeal he had asked for a new trial to be held in front of the
District Court Judge. The judge ruled the appeal should be heard as a "Petition
in Error" case and then reviewed the county's procedures for errors. Judge
Patrick Rogers ruled the county had followed their own regulations and the state
statutes in denying the application and also said no new trial would be held.
Olmer appealed Judge Rogers decision to the State Court of
Appeals and it was picked up by the Supreme Court. In overturning Judge Rogers,
the supreme court made two rulings:
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Political Subdivisions: Appeal and Error. A party may seek review of a decision
regarding a conditional use or special exception permit either by appealing to the
district court under Neb. Rev. S tat. § 23-114.01(5) (Cum. Supp. 2006) or by filing
a petition in error under Neb. Rev. S tat. § 25-1901 (Supp. 2007).
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Political Subdivisions: Judgments: Appeal and Error. When a decision regarding
a conditional use or special exception permit is appealed under Neb. Rev.
Stat. § 23-114.01(5) (Cum. Supp. 2006) and a trial is held de novo under Neb.
Rev. S tat. § 25-1937 (Reissue 1995), the findings of the district court shall have
the effect of a jury verdict and the court’s judgment will not be set aside by an
appellate court unless the court’s factual findings are clearly erroneous or the
court erred in its application of the law.
The rulings didn't decide whether or not the Madison County
Board of Commissioners were correct or not in denying the permit. Rather the
ruling centered on the way Judge Rogers handled the appeal as a "Petition in
Error." So the case was sent back to Judge Rogers to hold a trial. The Supreme
Court Opinion also said once a trial is held on an appeal of Conditional Use
Permit or Special Exception the judges decision will be treated the same as a
jury verdict and therefore can only be appealed based on errors in the factual
findings of the court.
The court finished its opinion by saying, "We acknowledge, and in fact encourage, that in most instances, a trial de
novo(new trial) in the district court may be had by way of a stipulated record, as sensibly
occurred in the present case. We also recognize the potential burden that may be
placed on district courts, and we do not comment on the wisdom or efficacy of
having a trial de novo on an appeal from a decision of the county board regarding a conditional use or special exception
permit. Nonetheless, we are not at liberty to ignore the clear
mandate of § 23-114.01(5). If more efficient and effective procedures
for review are to be implemented, the Legislature is the
body that must make such a policy determination.
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