Pres. the Sandhills, LLC v. Cherry Cnty.

310 Neb. 184

964 N.W.2d 721

PRESERVE THE SANDHILLS, LLC, et al., appellants and cross-appellees,

v. CHERRY COUNTY, Nebraska, et al., appellees,andBSH Kilgore, LLC, and Bluestem Sandhills, LLC, appellees and cross-appellants.

No. S-20-726.

Supreme Court of Nebraska.

Filed September 24, 2021

Jason M. Bruno, Diana J. Vogt, Robert S. Sherrets, Omaha, 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., Omaha, 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., Omaha, for appellee Cherry County Wind, L.L.C.

Steven D. Davidson and Spencer R. Murphy, of Baird Holm, L.L.P., Omaha, for appellees BSH Kilgore, L.L.C., and Bluestem Sandhills, L.L.C.

Heavican, 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 jurisdiction 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), a statute which provides an appeal procedure applicable where a statute confers a right of appeal without specifying a procedure. 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, limitations 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 granting 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 ambiguity. 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) concluding that "PTS was not entitled to a de novo review of the 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 failing 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

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 independent of the lower court's decision.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

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

Relying 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 presented here, the extension qualified as a "decision" under § 23-114.01(5). This requires statutory interpretation.

Rules regarding statutory interpretation are well known.⁸ 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.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 interpretation.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 planning commission to be known as the county planning commission. [Membership requirements, terms of office, removal of members, filling vacancies, and compensation 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 classifications of uses specified in the county zoning regulations. The county board of commissioners ... may exercise such power if it has formally adopted standards and procedures for granting such conditional uses ... in a manner that is equitable and which will promote the public interest. In any county other than a county in which is located a city of the primary class, an appeal of a decision 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,

...