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EGAN v. COUNTY OF LANCASTER

Cite as 308 Neb. 48

E. Jane Egan and Janis Howlett, appellants, 

v. County of Lancaster, Nebraska, 

et al., appellees.

___ N.W.2d ___

Filed December 31, 2020. No. S-19-1048.

1. Standing: Jurisdiction: Judgments: Appeal and Error. Standing is 

a jurisdictional component of a party’s case, because only a party who 

has standing may invoke the jurisdiction of a court; determination of a 

jurisdictional issue which does not involve a factual dispute is a matter 

of law which requires an appellate court to reach its conclusions independent from those of a trial court.

2. Statutes: Appeal and Error. Statutory interpretation is a question of 

law, which an appellate court resolves independently of the trial court.

3. 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) (Reissue 2012) and a trial is held 

de novo under Neb. Rev. Stat. § 25-1937 (Reissue 2016), 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.

4. Standing. Standing relates to a court’s power to address the issues 

presented and serves to identify those disputes which are appropriately 

resolved through the judicial process.

5. ____. The focus of the standing inquiry is not on whether the claim the 

plaintiff advances has merit; it is on whether the plaintiff is the proper 

party to assert the claim.

Appeal from the District Court for Lancaster County: Jodi 

L. Nelson, Judge. Affirmed.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/12/2021 09:11 AM CST
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Cite as 308 Neb. 48

Gregory D. Barton, of Barton Law, P.C., L.L.O., for 

appellants.

Patrick Condon, Lancaster County Attorney, Jenifer T. 

Holloway, and Daniel J. Zieg for appellees County of Lancaster, 

Board of Commissioners of Lancaster County, and Planning 

Commission of Lancaster County.

Stephen D. Mossman and Joseph A. Wilkins, of Mattson 

Ricketts Law Firm, for appellee Randy Essink.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

The Lancaster County Board of Commissioners (the Board) 

granted Randy Essink a special use permit allowing him to 

construct and operate a poultry production facility on land 

within the county’s agricultural zoning district. E. Jane Egan 

and Janis Howlett challenged that decision in district court, 

arguing that the proposed facility would lead to adverse effects 

on the environment, public health, local infrastructure, and 

property values. The district court found that Egan lacked 

standing to challenge the issuance of the special use permit 

and found that the permit was appropriately issued. Egan and 

Howlett now appeal. Finding no error in the district court’s 

decision, we affirm.

BACKGROUND

Essink’s Proposed Facility and 

Applicable Zoning Regulations.

Essink began contemplating a new business venture when 

he learned that Lincoln Premium Poultry (LPP) was recruiting 

individuals to raise broiler chickens that would be processed 

by LPP for sale to Costco. After obtaining more information, Essink identified and purchased a piece of property 

in Lancaster County that he believed would meet LPP’s 
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requirements. On May 14, 2018, Essink submitted an application to Lancaster County’s planning department for a special 

use permit that would allow him to operate a commercial 

feedlot on his farm.

Essink’s application for a special use permit was necessary 

under the 1979 Zoning Resolution of Lancaster County (the 

zoning regulations). The zoning regulations designate zoning 

districts, including an agricultural district in which Essink’s 

property is located. Article 4 of the zoning regulations states 

that the agricultural district “is designated for agricultural use 

and is intended to encourage a vigorous agricultural industry 

throughout the county and to preserve and protect agricultural 

production by limiting urban sprawl as typified by urban or 

acreage development.” With a special use permit, buildings 

within the agricultural district may be used as commercial 

feedlots. The parties do not dispute that Essink’s proposed 

operation qualifies as a commercial feedlot.

Under the zoning regulations, an application for a special use 

permit is initially submitted to the Lancaster County Planning 

Commission (the Commission). The Commission is required to 

then hold a public hearing. Article 13, section 13.002, of the 

zoning regulations directs that in considering the application, 

the Commission is to “consider the effect of such proposed 

building or uses upon the character of the neighborhood, traffic conditions, public utility facilities, the Comprehensive Plan 

and any other matters relating to the public health, safety and 

general welfare.” The zoning regulations allow decisions of the 

Commission regarding special use permits to be appealed to 

the Board.

Planning Commission.

After Essink submitted his application, the Commission 

scheduled a public hearing. At the hearing, county officials 

provided testimony, as did witnesses called by Essink and 

community members opposed to the issuance of the special use permit. The Commission also received documentary 
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evidence. At the conclusion of the hearing, the Commission 

approved the special permit subject to certain conditions on a 

6-3 vote.

The Commission’s decision was appealed to the Board.

County Board.

The Board held a public hearing regarding the application for a special use permit. At the hearing, Essink and other 

proponents of the special use permit provided testimony as 

did community members who opposed issuance of the special 

use permit.

The Board approved the special use permit subject to certain 

conditions to which Essink agreed on a 3-2 vote. Egan and 

Howlett appealed the Board’s decision to the district court.

District Court.

The district court held a bench trial. The records of the 

public hearings before the Commission and the Board were 

received as evidence.

Egan lives on an acreage 12.7 miles from Essink’s property. 

Egan testified that she was concerned that Essink’s proposed 

operation would result in pollution and depreciation of the 

value of surrounding property. She also testified that she was 

concerned that if Essink’s proposed operation was approved, 

a similar operation might be approved near her property. 

Howlett lives 0.6 miles from Essink’s property. She testified that she was concerned that the proposed facility would 

result in reduced air quality and depreciation of the value of 

her property.

The district court also received evidence regarding Essink’s 

proposed facility. That evidence included testimony from a 

representative of LPP who testified regarding the training LPP 

provides to its growers and the standards it requires them to 

follow. He explained that LPP service technicians monitor 

growers’ compliance with those standards. LPP requires that 

its growers work with a nutrient management company. A 

representative from a nutrient management company testified 
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that the company had been retained to develop a nutrient management plan for Essink’s operation and explained the details 

of that plan.

The county planner testified that the application for a special 

permit met the criteria for approval under the zoning regulations. Evidence in the record also indicated that the application 

was reviewed by the Lower Platte South Natural Resources 

District, the Nebraska Department of Environmental Quality, 

and the Lincoln-Lancaster County Health Department and that 

none of these entities objected to the application. Additional 

evidence in the record will be discussed as necessary in the 

analysis section below.

The district court affirmed the issuance of the special use 

permit in a written order. The district court concluded that 

Egan did not have standing. It went on to consider whether the 

special use permit was appropriately issued. After summarizing 

the evidence, the district court concluded that the application 

exceeded the criteria for approval as set forth in the zoning 

regulations. It approved the special use permit subject to certain conditions to which Essink agreed.

Egan and Howlett appealed.

ASSIGNMENTS OF ERROR

Egan and Howlett assign, condensed and restated, that the 

district court erred by (1) failing to find that Egan had standing and (2) finding that the special use permit was properly approved.

STANDARD OF REVIEW

[1] Standing is a jurisdictional component of a party’s case, 

because only a party who has standing may invoke the jurisdiction of a court; determination of a jurisdictional issue which 

does not involve a factual dispute is a matter of law which 

requires an appellate court to reach its conclusions independent 

from those of a trial court. Griffith v. Nebraska Dept. of Corr. 

Servs., 304 Neb. 287, 934 N.W.2d 169 (2019).
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[2] Statutory interpretation is a question of law, which 

an appellate court resolves independently of the trial court. 

DeLima v. Tsevi, 301 Neb. 933, 921 N.W.2d 89 (2018).

[3] When a decision regarding a conditional use or special exception permit is appealed under Neb. Rev. Stat. 

§ 23-114.01(5) (Reissue 2012) and a trial is held de novo 

under Neb. Rev. Stat. § 25-1937 (Reissue 2016), 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. In re Application of 

Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).

ANALYSIS

Standing.

The district court concluded that Egan lacked standing to 

challenge the issuance of the special use permit. Because 

standing is a jurisdictional issue, we address it first. See 

Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 

533, 788 N.W.2d 252 (2010).

[4,5] Standing relates to a court’s power to address the 

issues presented and serves to identify those disputes which are 

appropriately resolved through the judicial process. Griffith, 

supra. The focus of the standing inquiry is not on whether 

the claim the plaintiff advances has merit; it is on whether the 

plaintiff is the proper party to assert the claim. See Heiden v. 

Norris, 300 Neb. 171, 912 N.W.2d 758 (2018).

The district court found that Egan was not a proper party 

to object to the special use permit because she lives nearly 

13 miles from the proposed operation and had not shown that 

she would be injured by its issuance. Generally, a party has 

standing only if he or she has suffered or will suffer an injury 

in fact. See Central Neb. Pub Power Dist., supra. We have 

said that such an injury must be “concrete in both a qualitative 

and temporal sense,” that it must be “distinct and palpable, 

as opposed to merely abstract,” and that the alleged harm 

must be “actual or imminent, not conjectural or hypothetical.” 
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Id. at 542, 788 N.W.2d at 260. We have also emphasized that 

it is generally insufficient for standing purposes for a plaintiff 

to have “merely a general interest common to all members of 

the public.” Ritchhart v. Daub, 256 Neb. 801, 806, 594 N.W.2d 

288, 292 (1999).

Egan does not quarrel with the district court’s conclusion 

that she could not demonstrate an injury in fact. We do not see 

how she could. Egan testified that she opposed the special use 

permit as a member of the public and a taxpayer. She expressed 

concerns that Essink’s proposed operation would result in 

pollution and depreciate the value of surrounding properties 

owned by others. While Egan also testified that she feared that 

approval of this special use permit might lead to the approval 

of similar operations near her property, she did not identify any 

way in which her legal interests would be injured as a result 

of the approval of a permit for operation of a feedlot approximately 13 miles from her home. Because Egan did not identify 

any injury peculiar to herself, we agree with the district court 

that she did not demonstrate she has suffered or will suffer an 

injury in fact.

Though Egan cannot demonstrate an injury in fact, she maintains that she nonetheless has standing. She argues that she 

has standing under an exception to the general injury-in-fact 

requirement and under a specific statute. As we will explain, 

we disagree with both arguments.

Our cases have recognized some exceptions to the usual 

requirement that a plaintiff demonstrate an injury in fact. 

See Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 

934 N.W.2d 169 (2019). According to Egan, she has standing 

under one such exception. In support of this argument, Egan 

relies on Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 

731 (2015).

In Thompson, parties opposed to the construction of an 

oil pipeline brought an action against state officials, seeking 

a declaratory judgment that a statute allowing pipeline carriers to bypass the regulatory procedures of the Public Service 

Commission and obtain approval to exercise the power of 
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eminent domain for the building of the pipeline from the 

Governor was unconstitutional. While plaintiffs did not establish traditional injury-in-fact standing, four members of the 

court found that plaintiffs had standing under an exception 

to the injury-in-fact requirement for matters of “great public 

concern” first recognized in Cunningham v. Exon, 202 Neb. 

563, 276 N.W.2d 213 (1979). The four members of the court 

who found that the great public concern exception applied in 

Thompson did so because the claims at issue were analogous to 

“claims involving the election of representatives and the way 

the constitution can be changed” in that they involved “the citizens’ interest in their form of government.” 289 Neb. at 822, 

857 N.W.2d at 751.

Three members of the court disagreed that plaintiffs had 

standing. See Thompson, supra (Heavican, C.J., and Stephan 

and Cassel, JJ., dissenting in part, and in part concurring in 

the result). Because those three members of the court believed 

jurisdiction was lacking, they expressed no opinion as to 

whether the statute at issue was unconstitutional. And because 

five judges did not find the statute unconstitutional, the district court’s decision finding the statute unconstitutional was 

vacated pursuant to the supermajority requirement of article V, 

§ 2, of the Nebraska Constitution.

The parties in this case have assumed that the opinion of 

four judges finding that the Thompson plaintiffs had standing 

under the great public concern exception is controlling precedent. We need not address the accuracy of that assumption, 

because, even if Thompson is controlling, it does not assist 

Egan here. While Egan asserts that this case is a matter of 

great public concern, she makes no attempt to show that the 

issuance of a special use permit for a specific location, as in 

Thompson, involved “the citizens’ interest in their form of government.” 289 Neb. at 822, 857 N.W.2d at 751. Indeed, Egan’s 

challenge is aimed entirely at the substance of a governmental 

decision rather than challenging the legal authority of those 

who made it.
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At oral argument, Egan’s counsel acknowledged that Egan 

“does not fall within the same circumstances” as the plaintiffs in Thompson, but requested that we “extend” the great 

public concern exception to Egan’s challenge in this case. We 

decline Egan’s invitation. We have previously emphasized that 

“[e]xceptions to the rule of standing must be carefully applied 

in order to prevent the exceptions from swallowing the rule.” 

State ex rel. Reed v. State, 278 Neb. 564, 571, 773 N.W.2d 349, 

355 (2009). Consistent with that principle, we have rejected 

the argument that a plaintiff has standing under the great 

public concern exception merely because he or she is alleging that public officials are not acting within statutory limits. 

See, e.g., Neb. Against Exp. Gmblg. v. Neb. Horsemen’s Assn., 

258 Neb. 690, 605 N.W.2d 803 (2000) (holding that plaintiffs 

challenging state commission’s issuance of licenses to conduct simulcast horseracing as contrary to statutory authority 

lacked standing under great public concern exception). Given 

this precedent, we see no principled basis by which we could 

find that the challenge made here—that the officials given the 

authority to issue special use permits erred in doing so—is one 

that can be raised by a taxpayer under the great public concern exception.

This leaves Egan’s argument that she has standing under a 

statute, Neb. Rev. Stat. § 23-114.05 (Reissue 2012). Section 

23-114.05 provides in relevant part: “The erection, construction, reconstruction, alteration, repair, conversion, maintenance, 

or use of any building, structure, automobile trailer, or land in 

violation of sections 23-114 to 23-114.04 . . . or any regulation made by the county board under such sections shall be a 

misdemeanor.” The referenced regulations encompass county 

zoning regulations. Section 23-114.05 further provides:

In addition to other remedies, the county board or the 

proper local authorities of the county, as well as any 

owner or owners of real estate within the district affected 

by the regulations, may institute any appropriate action 

or proceedings to prevent such unlawful construction, 
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erection, reconstruction, alteration, repair, conversion, 

maintenance, or use, to restrain, correct or abate such 

violation, or to prevent the illegal act, conduct, business, 

or use in or about such premises.

Egan argues that because she is an owner of real estate 

within the agricultural zoning district, she has standing under 

§ 23-114.05 to challenge the issuance of the special use permit 

even if she cannot demonstrate an injury in fact.

Although the Legislature may, so long as it acts within 

the bounds of other constitutional provisions, confer standing 

that is broader than the common-law baseline, see Griffith v. 

Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 

(2019), § 23-114.05 does not confer standing on Egan in this 

case. Section 23-114.05 allows “owners of real estate within 

the district affected by the regulations” to bring an action to 

prevent the use of property in violation of, among other things, 

zoning regulations, which violation is made a misdemeanor by 

the statute. But there is no suggestion in this case that Essink 

committed a criminal offense by, for example, constructing a 

building in violation of zoning regulations. Instead, this case 

arose because Essink, pursuant to zoning regulations, sought 

and obtained a special use permit before constructing a commercial feedlot. A different statute, § 23-114.01(5), authorizes 

appeals of decisions regarding special use permits to the district court, but that statute does not contain similar expansive 

language allowing all “owners of real estate within the district 

affected by the regulations” to bring such appeals. Egan does 

not have standing under § 23-114.05.

While the district court correctly concluded that Egan lacked 

standing, it apparently concluded that Howlett had standing, as 

it went on to consider the merits of her challenge to the issuance of the special use permit. We agree that Howlett, who 

testified that her home was just 0.6 miles from the site of the 

proposed facility, satisfied the injury-in-fact requirement and 

had standing. We will thus go on to consider her assignment of 

error challenging the district court’s order affirming the issuance of the special use permit.
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Merits.

Howlett’s argument that the district court committed reversible error by affirming the issuance of the special use permit 

hinges on article 13.002 of the zoning regulations. Section 

13.002 states in relevant part:

Before the issuance of any special permit of any buildings or uses, the County Board shall refer the proposed 

application to the Planning Commission. The Planning 

Commission shall hold a public hearing and shall consider the effect of such proposed building or uses upon 

the character of the neighborhood, traffic conditions, public utility facilities, the Comprehensive Plan and other 

matters relating to the public health, safety and general welfare.

Howlett argues that the district court, in its review of the 

decision of the Board, was also required to consider the factors enumerated above. She argues the district court failed to 

consider the effect Essink’s proposed facility would have on 

the character of the neighborhood, traffic conditions, and the 

public health, safety, and general welfare.

Howlett’s argument, however, immediately encounters a formidable obstacle. In its order affirming the issuance of the special use permit, the district court stated that it had considered 

the very factors Howlett contends it did not. The order states 

that the district court had considered Essink’s application, the 

applicable zoning regulations, and “the evidence presented 

relating to the effect of the proposed buildings and use upon 

the character of the neighborhood, traffic conditions . . . and 

other matters relating to the public health, safety and general welfare.”

According to Howlett, the district court cannot be taken at 

its word as to the factors it considered in affirming the issuance 

of the special use permit. Instead, she contends that, given the 

evidence in the record, the district court could not possibly 

have considered the effect Essink’s proposed operation would 

have on the character of the neighborhood, traffic conditions, 

and the public health, safety, and general welfare and still 
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affirmed the issuance of the special use permit. We discuss 

the evidence to which Howlett points and the arguments she 

makes below.

In support of her argument that the district court could not 

have considered the effect Essink’s proposed operation would 

have on the character of the neighborhood, Howlett points to 

her own testimony that the number of residences in the area of 

Essink’s proposed operation had substantially increased from 

the time Howlett moved to the area in 1973. Howlett testified 

that there were currently 70 residences in an area depicted on a 

map received as an exhibit at trial.

In support of her argument that the district court could 

not have considered the effect Essink’s proposed operation 

would have on traffic conditions, Howlett points to testimony of a licensed civil engineer. This engineer testified that 

because there would be increased use of the adjacent road, the 

county would be required to make improvements to allow for 

that usage.

Howlett also argues that the district court could not have 

considered the effect the proposed facility would have on the 

public health, safety, and general welfare and affirmed the issuance of the special use permit. Here, Howlett argues that the 

proposed facility would reduce air quality and produce odor. 

She also argues that the facility would result in the reduction 

of property values of neighboring landowners. Finally, she 

emphasizes Essink’s lack of experience in operating a poultry 

facility and suggests that this lack of experience is a risk to the 

public health, safety, and general welfare.

We disagree with Howlett that the district court could 

not possibly have considered the factors she identifies and 

affirmed the issuance of the special use permit. In reaching 

this conclusion, we are mindful that the applicable standard of 

review requires that we treat the findings of the district court 

in the same way we would treat a jury verdict, not setting 

aside the district court’s judgment unless its factual findings 

are clearly erroneous or the court erred in its application of 
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the law. See In re Application of Olmer, 275 Neb. 852, 752 

N.W.2d 124 (2008). As we will explain, the evidence on each 

of the factors Howlett identifies was not as one-sided as she 

suggests and certainly did not preclude the district court from 

finding the special use permit was appropriately issued.

With respect to the character of the neighborhood, Howlett 

attempts to portray the surrounding area as residential. In her 

testimony, however, she acknowledged that some of the 70 

nearby residences she referenced were not in Lancaster County. 

The county planner also testified that while there were some 

acreage lots in the surrounding area, it was “mostly still in 

agricultural use.” He also testified that a residential acreage 

development Howlett identified was over a mile away from 

the proposed site of Essink’s facility. Further, while section 

13.002 of the zoning regulations calls for consideration of the 

character of the neighborhood, the district court could also 

consider that Essink’s property was located in the agricultural 

district and that article 4 of the zoning regulations provides 

that the agricultural district “is designated for agricultural use 

and is intended to encourage a vigorous agricultural industry 

throughout the county and to preserve and protect agricultural 

production by limiting urban sprawl as typified by urban or 

acreage development.”

Howlett’s argument regarding the effect of Essink’s proposed facility on traffic also takes a selective view of the 

evidence in the record. While she highlights testimony from a 

witness who believed that the increased traffic from the proposed facility would require the county to improve the adjacent road, the record also contains evidence that the county 

engineer did not believe, based on the anticipated increased 

traffic of 1.4 trucks per day, that the road would require 

improvement.

Howlett fares no better with her argument that the district 

court could not have considered the effect the proposed facility 

would have on the public health, safety, and general welfare. 

Although she asserts that the facility will reduce air quality 
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and lead to offensive odor, she does not point to concrete evidence supporting this assertion. In contrast, there is evidence in 

the record that a tool developed by the University of Nebraska 

Institute of Agriculture and Natural Resources estimated that 

even the immediate vicinity of the proposed facility would 

be free of odor 94 percent of the time. An official from the 

Lincoln-Lancaster County Health Department also testified that 

the proposed operation would be subject to the department’s 

enforcement of county air pollution regulations and that the 

department has the authority to, if necessary, ensure Essink is 

using reasonable odor control techniques.

Howlett also asserts that the proposed facility will cause 

the value of surrounding property to decrease, but again does 

not point to nonspeculative evidence supporting this assertion. Instead, Howlett argues the district court was required 

to find the proposed facility would lead to decreased property 

values even in the absence of such evidence. She argues the 

district court was compelled to do so by Darnall Ranch v. 

Banner Cty. Bd. of Equal., 276 Neb. 296, 753 N.W.2d 819 

(2008). In that case, a property owner appealed a county 

board of equalization’s determination of his property value 

to the Tax Equalization and Review Commission. The property at issue was near a 20,000-head cattle feedlot, and there 

was unrefuted evidence that there were problems with dust 

and flies, that trucks traveling to and from the feedlot caused 

the home on the property to vibrate, and that the well for 

the home was connected to the cattle-watering facility. We 

held, under those circumstances, that the Tax Equalization and 

Review Commission’s failure to consider the effect the proximity of the feedlot would have on the property was arbitrary 

and unreasonable.

We disagree that Darnall Ranch has any application here. 

This is not a challenge to the valuation of property. And, even 

setting that major difference aside, we relied on unrefuted evidence of the adverse effects of the feedlot in Darnall Ranch 

before concluding that it was unreasonable to fail to take the 
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feedlot into account when determining the property’s value. 

Howlett has not identified any similar evidence here.

Finally, we disagree that evidence of Essink’s inexperience in 

running a poultry operation demonstrates that the district court 

did not consider the effect his facility would have on the public 

health, safety, and general welfare. Essink acknowledged his 

lack of experience, but Howlett cannot point to any evidence 

that a lack of experience will lead to detrimental effects on the 

public health, safety, and general welfare. Moreover, a representative of LPP testified that experience raising poultry is not 

necessary to be an LPP supplier and, in fact, may be preferable 

because LPP provides training and support and new suppliers 

have “no bad habits.”

To this, Howlett argues that there is no assurance that LPP 

will provide the referenced training and support because there 

was no evidence in the record that Essink and LPP had entered 

into a contractual relationship. We disagree that this evidences 

a lack of commitment to Essink on the part of LPP. The record 

shows Essink has already received guidance and support from 

LPP. In addition to the evidence presented at trial, the fact that 

a representative of LPP testified at the district court in favor of 

Essink’s application demonstrates a commitment to assisting 

Essink with his proposed operation.

In sum, the district court stated that it considered the factors identified in section 13.002 of the zoning regulations, 

and we see no basis to question that assertion. Neither has 

Howlett identified any other error of law or clearly erroneous 

finding of fact. There is thus no basis to reverse the district 

court’s decision.

CONCLUSION

Because the district court did not err in affirming the county 

board’s issuance of the special use permit, we affirm.

Affirmed.