April 15, 2025
A recent decision from the Nebraska Supreme Court could carry significant implications for property owners and community members involved in conditional use permit (“CUP”) proceedings. In Amorak v. Cherry County Board of Commissioners, the Court unanimously clarified two legal principles:
The case arose when a property owner in Cherry County applied for a CUP to develop a hog feeding facility. Although the property owner would not operate the facility itself, intending instead to lease the site to a third-party operator, the CUP was nonetheless approved by the county. A neighboring landowner, who had opposed the permit at a public hearing, filed an appeal in district court under Neb. Rev. Stat. § 23-114.01(5).
The district court conducted a trial de novo—meaning it accepted new evidence and made an independent determination, rather than simply reviewing the county’s decision for error—and ultimately upheld the permit. The neighbor then appealed to the Nebraska Supreme Court, arguing that the party responsible for operating the facility should have been the one to prove compliance with all zoning requirements. In the alternative, the neighbor contended that the property owner had failed to provide sufficient evidence that the operator would meet those requirements.
Meanwhile, the county cross-appealed, asserting that the neighbor was not entitled to a de novo appeal at all. According to the county, the appeal should have proceeded under a more limited “petition in error” standard, which would have restricted the court to reviewing the county’s decision without considering new evidence.
The Nebraska Supreme Court first addressed the county’s challenge and rejected it. While prior cases had recognized an applicant’s right to appeal a CUP denial de novo, they had not stated whether third parties, such as neighbors or other affected individuals, had the same right. The Court concluded that Neb. Rev. Stat. § 23-114.01(5) contains no language limiting who may appeal a CUP decision under the de novo standard. The only requirement is that the appealing party must have “standing”—in other words, they must be personally affected by the county’s decision. The Court’s holding confirms that any interested and affected party may appeal a CUP decision and obtain a full rehearing in district court.
Turning to the question of who bears the burden of demonstrating compliance with zoning regulations, the Court reiterated that a CUP is a property right. As such, it is the responsibility of the property owner—not the prospective operator of the use—to both apply for the permit and show that the proposed use will comply with all applicable regulations.
In this case, the Court found that the property owner had met its burden by presenting evidence of compliance. The operator was not separately required to appear or provide its own evidence. This aspect of the decision reinforces the principle that zoning compliance is a land use obligation tied to ownership, not operation.
Taken together, the Court’s rulings in Amorak provide important clarification related to county CUPs. First, that CUPs must be considered property rights, and that counties must look to property owners for compliance, and next that any proper party may appeal a county determination and receive a full trial on the matter.
This article is provided for general information purposes only and should not be construed as legal advice. Those requiring legal advice are encouraged to consult with their attorney.
