NE Supreme Court Upholds Special Use Permit for Chicken Feedlot

This post was authored by Zoe Ferguson, JD (admission pending)

The Supreme Court of Nebraska rejected a bid to reverse the grant of a special use permit for a chicken feedlot, holding that the district court did not commit clear error in affirming that local authorities’ evidence to approve the permit was sufficient.

In 2018, Randy Essink obtained a special use permit from Lancaster County to build and operate a commercial poultry feedlot on his farm in an agricultural district, “designated for agricultural use and…intended to encourage a vigorous agricultural industry.” The permit process included a public hearing with testimony from witnesses for Essink and the county. Two nearby property owners, E. Jane Egan and Janis Howlett, appealed the decision to the Board of Commissioners, which approved the permit after another public hearing. The property owners then appealed the decision to the district court, which affirmed the permit at a bench trial, using the testimony from the public hearings as part of the evidence. The district court also held that Egan lacked standing. Egan and Howlett appealed.

The Supreme Court affirmed, holding that the lower court did not clearly err in its findings that Egan lacked standing and the permit was proper.

Egan, who lives 12.7 miles away from Essink’s property, testified that she feared the poultry operation would result in pollution and depreciation of surrounding property values, and if the operation was approved, another one might be approved near her property. Howlett, who lives 0.6 miles from Essink’s property, testified she feared the facility would pollute the air quality and reduce her property value.

Even Egan could not identify an injury in fact to establish standing, and the court rejected her arguments that she still had standing either under a specific statute or under the “great public concern” exception to the injury-in-fact standing requirement. Declining to extend the “great public concern” exception from situations involving “the citizens’ interest in the government” to this set of facts, the court also rejected Egan’s claim of standing under a statute permitting property owners to institute an action to prevent unlawful construction, pointing to the fact that this action was, in fact, about a legally granted permit.

Because Howlett did show injury-in-fact standing, the court proceeded to examine and reject the arguments regarding insufficient evidence to support the permit. Howlett argued that the district court could not possibly have considered the effect of the proposed operation on the character of the neighborhood, traffic conditions, and other public health, safety and general welfare concerns, as required by zoning regulations. The court made swift work of these arguments, explaining that the district court’s finding held the weight of a jury verdict and Howlett pointed to no concrete evidence to support her assertions of adverse effects of the proposed poultry operation.

Egan v. Cnty of Lancaster, 308 Neb. 48 (12/31/2020)