Madison County News

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 released 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:

1. 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).
   
2. 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.

The District Court has scheduled a trial for this case on September 16 and 17 at the Madison County Courthouse in Madison.

Scheer NACO County Official of the Year

McCallum Recognizes NACO Affiliate President
NACO President, Jerry McCallum recognized affiliate presidents with Certificates of Appreciation at the 113th Annual Conference. Pictured to the right, Planning and Zoning Affiliate President, John A. Johnson (right) of Madison and Pierce counties received his service award from McCallum.