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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

PRESERVE THE SANDHILLS V. CHERRY COUNT

Cite as 313 Neb. 590

Preserve the Sandhills, LLC, and Charlene 

Reiser-McCormick, appellants, v. Cherry 

County, Nebraska, et al., appellees.

___ N.W.2d ___

Filed February 24, 2023. No. S-21-888.

1. Jurisdiction: Pleadings: Evidence: Words and Phrases. If a motion 

challenging a court’s subject matter jurisdiction is filed after the pleadings stage, and the court holds an evidentiary hearing and reviews evidence outside the pleadings, it is considered a “factual challenge.”

2. Jurisdiction: Pleadings: Appeal and Error. Where the trial court’s 

decision to dismiss for lack of subject matter jurisdiction is based on 

a factual challenge, the court’s factual findings are reviewed under the 

clearly erroneous standard. But aside from any factual findings, the 

trial court’s ruling on subject matter jurisdiction is reviewed de novo, 

because it presents a question of law.

3. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews 

a trial court’s decision to admit or exclude expert testimony for an abuse 

of discretion.

4. Standing: Jurisdiction: Parties. Standing is a jurisdictional component 

of a party’s case because only a party who has standing may invoke the 

jurisdiction of a court.

5. Standing: Jurisdiction: Appeal and Error. Because standing is a 

jurisdictional component, an appellate court must address it as a threshold matter.

6. Standing: Jurisdiction: Parties. Standing refers to whether a party had, 

at the commencement of the litigation, a personal stake in the outcome 

of the litigation that would warrant a court’s exercise of its subject matter jurisdiction and remedial powers on that party’s behalf.

7. 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.

Nebraska Supreme Court Online Library

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

02/24/2023 09:06 AM CST
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8. ____. 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.

9. ____. To have standing, the plaintiff must have some legal or equitable 

right, title, or interest in the subject matter of the controversy.

10. ____. Generally, a party has standing only if he or she has suffered or 

will suffer an injury in fact. Such an injury must be concrete in both a 

qualitative and temporal sense, and it must be distinct and palpable, as 

opposed to merely abstract. And the alleged harm from such an injury 

must be actual or imminent, not conjectural or hypothetical.

11. Standing: Proof. To show standing, it is generally insufficient for a 

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

the public.

12. Municipal Corporations: Injunction: Proof: Taxation. A person seeking to restrain the action of a governmental body must show some special injury peculiar to himself or herself aside from, and independent of, 

the general injury to the public unless it involves an illegal expenditure 

of public funds or an increase in the burden of taxation.

13. Trial: Witnesses: Real Estate. For the testimony of an expert or lay 

witness to be admissible on the question of market value of real estate, 

the witness must be familiar with the property in question and the state 

of the market.

14. Jurisdiction. Subject matter jurisdiction cannot be created by waiver, 

estoppel, consent, or conduct of the parties.

Appeal from the District Court for Cherry County: Mark D. 

Kozisek, Judge. Affirmed.

Jason M. Bruno, Diana J. Vogt, 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., for appellees.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Carson, District Judge.

Stacy, J.

This is an appeal from an order dismissing an action seeking to enjoin two members of a county board of commissioners from voting on an application for a conditional use 
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permit (CUP). The district court dismissed the action for lack 

of standing. Because we agree the plaintiffs lack standing to 

bring the action, we affirm.

I. BACKGROUND

In 2019, BSH Kilgore, LLC (BSH), applied for a CUP to 

erect and maintain 19 commercial grade wind turbines and 

related facilities in Cherry County, near the village of Kilgore, 

Nebraska. The application was set for a public hearing before 

the Cherry County Board of Commissioners (the Board) on 

July 16.

1. Complaint and 

Amended Complaint

About 2 weeks before the scheduled hearing, opponents 

of the CUP application filed a complaint in the district court 

for Cherry County seeking an injunction. More specifically, 

Preserve the Sandhills, LLC (PTS), and Charlene ReiserMcCormick filed a complaint against several defendants, 

including the Board and commissioners Martin DeNaeyer 

and Tanya Storer (collectively the defendants), alleging that 

DeNaeyer and Storer had conflicts of interest and should be 

enjoined from considering or voting on the CUP application.

After the defendants successfully moved to dismiss the 

original complaint for lack of standing, PTS and ReiserMcCormick filed an amended complaint with additional standing allegations. The operative amended complaint was styled 

as five causes of action, all premised on the Nebraska Political 

Accountability and Disclosure Act (NPADA). 1 It alleged that 

commissioners DeNaeyer and Storer had conflicts of interests 

under the NPADA that should preclude them from considering BSH’s CUP application, but had refused to disqualify 

themselves from voting on the CUP. The amended complaint 

sought an injunction precluding DeNaeyer and Storer from 

considering or voting on the CUP application. Alternatively, 

1 Neb. Rev. Stat. §§ 49-1401 to 49-14,142 (Reissue 2021).
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in the event the court determined that DeNaeyer and Storer 

did not have a conflict of interest as defined in the NPADA, 

the amended complaint requested a declaratory judgment 

finding the conflict of interest provisions in the NPADA 

were unconstitutional.

The amended complaint also contained allegations related 

to the legal standing of PTS and Reiser-McCormick. It alleged 

Reiser-McCormick was a “concerned citizen, landowner, and 

taxpayer of Cherry County [who] will suffer harm and detriment 

if the CUP is approved.” And it alleged PTS was a Nebraska 

limited liability company “organized for and dedicated to the 

education and preservation of the Nebraska Sandhills [and 

consisting] of approximately 500 ranchers, taxpayers, property 

owners, business owners, residents, and concerned citizens 

of Counties located within the Sandhills, including Cherry 

County.” The amended complaint also affirmatively alleged 

that both PTS and Reiser-McCormick had standing to bring 

the action under “Cherry County Zoning Regulations” and “by 

law and equity.”

The defendants filed an answer expressly denying that 

DeNaeyer and Storer had conflicts of interest under the 

NPADA. The answer also denied the various standing allegations of PTS and Reiser-McCormick, and it affirmatively 

alleged both PTS and Reiser-McCormick lacked standing to 

bring the action and the court therefore lacked subject matter 

jurisdiction over the action.

2. District Court Order 

and Appeal

A hearing was held on the issue of standing, and evidence 

was adduced by all parties. In an order entered October 6, 

2021, the district court agreed with the defendants that both 

PTS and Reiser-McCormick lacked legal standing to bring the 

action seeking to enjoin a vote on the CUP. The court’s order 

addressed, and rejected, each of the standing theories of PTS 

and Reiser-McCormick.
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First, it concluded that neither PTS nor Reiser-McCormick 

had shown common-law or injury-in-fact standing. Based on 

the evidence, the court found that PTS owned no property in 

Cherry County, and there was no evidence that PTS would suffer any direct injury as a result of the CUP. 2 The court emphasized that PTS is “a separate legal entity, having an existence 

separate and apart from its members,” and concluded “PTS 

cannot bootstrap the injuries of its members into the injuries of 

its own. PTS suffers no separate and distinct injury; it has no 

common-law standing.”

As to Reiser-McCormick, the court found she owned property in Cherry County, but it was located approximately 40 

miles from the wind turbine project that was the subject 

of the CUP. Given this geographic distance, the court concluded Reiser-McCormick had not shown she would suffer any 

injury different than that suffered by the general public if the 

Board approved the CUP. The court acknowledged that ReiserMcCormick had offered the affidavit of a real estate broker 

who opined that the value and marketability of her property 

would be impaired if the CUP was approved, but the court sustained the defendants’ foundational objections to the broker’s 

affidavit, so it was not received into evidence.

The district court also considered and rejected arguments 

that the plaintiffs had standing to bring the action under certain 

Cherry County zoning regulations, finding that none of the 

zoning regulations relied on by PTS and Reiser-McCormick 

were applicable to the facts of this case. And finally, the court 

rejected arguments that PTS and Reiser-McCormick had standing to challenge issuance of the CUP under Neb. Rev. Stat. 

§ 23-114.05 (Reissue 2022), reasoning that a similar standing 

argument had already been expressly rejected by this court in 

Egan v. County of Lancaster. 3

2 See, e.g., Egan v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 664 

(2020) (finding party has standing only if it will suffer injury in fact 

different from injury to general public).

3 See id.
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Cite as 313 Neb. 590

After considering and rejecting each of the standing theories 

of PTS and Reiser-McCormick, the district court concluded it 

lacked subject matter jurisdiction over the action and dismissed 

it on that basis. PTS and Reiser-McCormick filed this appeal, 

which we moved to our docket on our own motion.

II. ASSIGNMENTS OF ERROR

PTS and Reiser-McCormick assign, consolidated and 

restated, that the district court erred in (1) finding they lacked 

standing to bring this action, (2) excluding the affidavit of the 

real estate broker, and (3) failing to reach the merits of their 

various claims.

III. STANDARD OF REVIEW

[1,2] If a motion challenging a court’s subject matter jurisdiction is filed after the pleadings stage, and the court holds 

an evidentiary hearing and reviews evidence outside the pleadings, it is considered a “factual challenge.” 4 Where the trial 

court’s decision to dismiss for lack of subject matter jurisdiction is based on a factual challenge, the court’s factual findings 

are reviewed under the clearly erroneous standard. 5 But aside 

from any factual findings, the trial court’s ruling on subject 

matter jurisdiction is reviewed de novo, because it presents a 

question of law. 6

[3] An appellate court reviews a trial court’s decision to 

admit or exclude expert testimony for an abuse of discretion. 7

IV. ANALYSIS

The district court dismissed this action for lack of subject matter jurisdiction after holding an evidentiary hearing 

4 Great Plains Livestock v. Midwest Ins. Exch., 312 Neb. 367, 979 N.W.2d 

113 (2022).

5 Id.

6 Id.

7 See Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d 59 (2018).
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and concluding that PTS and Reiser-McCormick had failed 

to prove standing under any of the theories they advanced. 

PTS and Reiser-McCormick contend this was error, and argue 

the evidence showed they have common-law or injury-in-fact 

standing to bring this action seeking to enjoin members of 

the Board from voting on the CUP. Alternatively, they argue 

they have standing to bring the action (1) under certain Cherry 

County zoning regulations, (2) under § 23-114.05, or (3) 

because they were allowed to participate in proceedings before 

the Board related to the CUP application. We address each of 

these standing arguments in turn. But first, we review the general principles that govern our standing analysis.

[4,5] Standing is a jurisdictional component of a party’s 

case because only a party who has standing may invoke the 

jurisdiction of a court. 8 Because standing is a jurisdictional 

component, an appellate court must address it as a threshold matter. 9

[6-8] Standing refers to whether a party had, at the commencement of the litigation, a personal stake in the outcome 

of the litigation that would warrant a court’s exercise of its 

subject matter jurisdiction and remedial powers on that party’s 

behalf. 10 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. 11 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. 12

8 Continental Resources v. Fair, 311 Neb. 184, 971 N.W.2d 313 (2022).

9 See In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 

(2021).

10 Equestrian Ridge v. Equestrian Ridge Estates II, 308 Neb. 128, 953 

N.W.2d 16 (2021).

11 Egan, supra note 2.

12 Id.
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[9-12] To have standing, the plaintiff must have some legal 

or equitable right, title, or interest in the subject matter of the 

controversy. 13 Generally, a party has standing only if he or she 

has suffered or will suffer an injury in fact. 14 Such an injury 

must be “‘concrete in both a qualitative and temporal sense,’” 

and it must be “‘distinct and palpable, as opposed to merely 

abstract,’” and the alleged harm from such an injury must be 

“‘actual or imminent, not conjectural or hypothetical.’” 15 We 

have emphasized that to show standing, it is generally insufficient for a plaintiff to have “‘merely a general interest common to all members of the public.’” 16 And we have said that 

a person seeking to restrain the action of a governmental body 

must show some special injury peculiar to himself or herself 

aside from and independent of the general injury to the public 

unless it involves an illegal expenditure of public funds or an 

increase in the burden of taxation. 17

1. Reiser-McCormick Did Not Show 

Common-Law Standing

As noted, our common-law standing inquiry generally 

focuses on whether the party bringing suit has suffered or will 

suffer an injury in fact. 18 The district court found that neither 

PTS nor Reiser-McCormick demonstrated an injury in fact. 

On appeal, PTS and Reiser-McCormick confine their injuryin-fact arguments to Reiser-McCormick; we limit our analysis accordingly.

13 Equestrian Ridge, supra note 10.

14 Egan, supra note 2.

15 Id. at 53, 952 N.W.2d at 669, quoting Central Neb. Pub. Power Dist. v. 

North Platte NRD, 280 Neb. 533, 788 N.W.2d 252 (2010).

16 Id. at 54, 952 N.W.2d at 669, quoting Ritchhart v. Daub, 256 Neb. 801, 

594 N.W.2d 288 (1999).

17 West Fort Residents Assn. v. Housing Auth. of City of Omaha, 205 Neb. 

397, 288 N.W.2d 27 (1980).

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

(2019).
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(a) No Injury in Fact Due to 

Geographic Distance

The record shows that Reiser-McCormick owns land in 

Cherry County, but the district court found that her land is 

located approximately 40 miles southeast of where the 19 wind 

turbines would be erected if the Board approved the CUP. Our 

review of the record supports this finding.

In Egan, a taxpayer sought to challenge a special use permit involving a poultry production facility located 13 miles 

from her property, arguing her ownership of land in the county 

demonstrated her injury in fact. 19 We concluded the taxpayer 

in Egan lacked injury-in-fact standing, reasoning in part that 

the taxpayer’s geographic distance from the poultry facility 

prevented her from suffering an injury different from that of 

the general public.

Our reasoning in Egan applies here too. Because of the 

significant geographic distance between Reiser-McCormick’s 

property and the location of the 19 proposed wind turbines 

in the CUP application, we agree with the district court that 

Reiser-McCormick’s ownership of property in Cherry County 

is not sufficient to demonstrate she would suffer an injury in 

fact if the CUP was granted.

(b) No Injury in Fact From 

Neighbor’s Lease Agreement

Reiser-McCormick argues that even though her property is 

40 miles from the wind turbine project for which BSH sought 

a CUP, she suffered an injury in fact because her property is 

“located within one mile of property identified in the CUP 

[a]pplication as a location where wind turbines and related 

facilities might be placed” 20 in the future. We understand this 

argument to be based on two items of evidence. First, the 

300-plus page CUP application submitted by BSH refers to 

19 See Egan, supra note 2.

20 Brief for appellants at 31.
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a lease/easement agreement between Cherry County Wind, 

LLC, an affiliate of BSH, and the owner of property located 

1 to 2 miles from Reiser-McCormick’s property. And second, 

Reiser-McCormick offered the affidavit of a real estate broker 

who opined that reference to the neighbor’s lease/easement 

agreement in the CUP application resulted in an immediate 

dimunition in the value of Reiser-McCormick’s property. As 

we will explain, this evidence does not support injury-in-fact 

standing to enjoin issuance of the CUP.

(i) CUP Application Does 

Not Establish Standing

Reiser-McCormick relies on the CUP application’s reference 

to a lease agreement found in a section of the CUP application titled “Project Lease Memoranda.” This section contains, 

among other agreements, a lease/easement agreement between 

Cherry County Wind and Bluestem Sandhills, LLC. While it is 

not entirely clear from our record, other portions of the CUP 

application suggest this lease agreement pertains to property 

located 1 to 2 miles from Reiser-McCormick’s property.

But it is undisputed that despite the existence of this lease 

agreement, no entity is currently authorized to construct or 

operate wind turbines on the neighbor’s property, and the CUP 

application at issue did not request such authority. Instead, 

such authority would require issuance of an entirely new and 

separate CUP. As such, evidence showing the existence of 

the lease agreement did not establish injury-in-fact standing 

to challenge the CUP at issue here, and Reiser-McCormick’s 

arguments to the contrary are meritless.

(ii) Broker’s Affidavit Does 

Not Establish Standing

Reiser-McCormick argues that the affidavit of the real estate 

broker was erroneously excluded by the district court and that 

if it had been received into evidence, it would have established 

her injury-in-fact standing. We disagree.
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As we have explained, the lease agreement referred to in the 

CUP application (and on which the broker’s affidavit relied) 

was not directly related to the specific wind turbine project 

for which BSH was seeking a CUP. Yet, the broker relied on 

reference to the lease in the CUP application to opine that 

Reiser-McCormick’s property suffered an “immediate stigma, 

an impairment to marketability and desirability, and a significant material reduction in value.” According to the broker, this 

was so because “any prospective purchaser” will “factor into 

its decision that wind-related facilities, including large wind 

turbines . . . have the potential to be erected on the neighboring” property. (Emphasis in original.)

The district court sustained the defendants’ foundational 

objection to the broker’s opinion, finding the broker’s experience related only to the Omaha, Nebraska, area and his affidavit disclosed no familiarity with rural Nebraska agricultural 

values and no particular experience in Cherry County. It further found the broker’s affidavit did not identify what materials 

he reviewed when forming his opinion, did not tie his opinions 

to historical market data for agricultural real estate sold or 

offered for sale near wind farm projects, and referenced no 

comparable sales or market studies.

Reiser-McCormick argues the broker’s opinion was nevertheless admissible, relying on the general proposition that an 

expert is qualified to offer a valuation opinion pertaining to 

real property so long as foundation is laid showing an acquaint

ance with the property and the state of the market. 21 An appellate court reviews a trial court’s decision to admit or exclude 

expert testimony for an abuse of discretion, 22 and we find no 

abuse of discretion in the district court’s conclusion that the 

broker’s opinion was inadmissible because it lacked necessary foundation.

21 See Iske v. Metropolitan Utilities Dist., 183 Neb. 34, 157 N.W.2d 887 

(1968).

22 See Hemsley, supra note 7.
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[13] For the testimony of an expert or lay witness to be 

admissible on the question of market value of real estate, the 

witness must be familiar with the property in question and 

the state of the market. 23 Here, the broker’s affidavit did not 

show any familiarity with the valuation of property in Cherry 

County or the state of the market there, particularly as it related 

to the presence of wind farms. The district court did not abuse 

its discretion in sustaining the foundational objection to the 

broker’s opinion.

And for the sake of completeness, we note that even if the 

district court had admitted the broker’s affidavit, the record 

would still fail to show that Reiser-McCormick suffered an 

injury-in-fact sufficient to establish standing to challenge the 

CUP at issue in this case. The subject CUP requested authority for BSH to construct 19 wind turbines on property located 

40 miles from Reiser-McCormick’s property. The broker’s 

opinion was based on speculation that because the CUP application referenced a lease agreement with Reiser-McCormick’s 

neighbor, there was “the potential” in the future that a wind 

turbine project might “be erected on the neighboring” property. (Emphasis omitted.) But as stated earlier, injury-in-fact 

standing requires an injury that is “‘concrete in both a qualitative and temporal sense,’” and not “‘merely abstract,’” 

and the alleged harm from such an injury must be “‘actual 

or imminent, not conjectural or hypothetical.’” 24 Here, the 

broker’s opinion did not show any actual or imminent harm 

from the neighbor’s lease agreement, and at best, it relied 

on conjecture about the hypothetical possibility that a future 

wind turbine project might one day be approved closer to 

Reiser-McCormick’s property. But our case law demonstrates 

that property owners do not show injury-in-fact standing 

23 Liberty Dev. Corp. v. Metropolitan Util. Dist., 276 Neb. 23, 751 N.W.2d 

608 (2008).

24 Egan, supra note 2, 308 Neb. at 53, 952 N.W.2d at 669, quoting Central 

Neb. Pub. Power Dist., supra note 15.
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just because they are concerned that approval of a project 

many miles from their property today might lead to the future 

approval of similar projects nearby. 25

2. No Standing Under 

Zoning Regulations

PTS and Reiser-McCormick argue they have standing to 

challenge issuance of the CUP under either § 1202 or § 910 of 

the Cherry County zoning regulations. We note the operative 

amended complaint in this CUP appeal alleged that PTS and 

Reiser-McCormick had standing under “§ 1202 of the Cherry 

County Zoning Regulations” but made no mention of § 910. 

Regardless, it appears that both of these zoning regulations 

were argued by the parties and considered by the district court 

during the evidentiary hearing on standing, so we are satisfied 

that the applicability of both zoning regulations has been sufficiently preserved for appellate review.

We have recognized that the Legislature may confer standing by statute in situations that do not necessarily meet the 

common-law injury-in-fact test, 26 but we have not directly 

addressed whether such standing can be conferred by county 

zoning regulations. We need not resolve that issue here, however, because even assuming without deciding that a county 

zoning regulation can confer standing to challenge issuance 

of a CUP, the regulations relied upon by PTS and ReiserMcCormick are inapplicable to the facts of this case.

Section 1202 addresses complaints based upon violations of 

the zoning regulations, and provides in relevant part:

In addition to other remedies, the County Board or other 

proper local authority of the County, as well as any 

owner(s) of property within the district affected by the 

25 See Egan, supra note 2 (holding taxpayer does not show injury-in-fact 

standing based on fear that approval of special use permit for poultry 

operation 13 miles from her property might lead to approval of similar 

operations closer to her property).

26 See, Egan, supra note 2; Griffith, supra note 18.
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regulations, may institute any appropriate action or proceedings to prevent such unlawful construction, erection, reconstruction, alteration, repair, conversion, maintenance, business or use in or about the premises. Any 

taxpayer or taxpayers in the County may institute proceedings to compel specific performance by the proper 

official or officials . . . pursuant to such sections of 

this Resolution.

This zoning regulation does not confer standing on either 

PTS or Reiser-McCormick to challenge issuance of the CUP. 

Their amended complaint did not allege the violation of any 

zoning regulations, but instead alleged that two of the commissioners had conflicts of interest under the NPADA and should 

not be allowed to vote on the CUP application. Nor do we see 

anything in the record establishing that PTS is a “taxpayer[] in 

the County” within the meaning of § 1202.

The alternative standing argument of PTS and ReiserMcCormick is based on § 910 of the Cherry County zoning 

regulations. Article 9 of the zoning regulations, specifically 

§ 907.01, creates the Cherry County Board of Adjustment 

authorized to “hear and decide appeals where it is alleged by 

the appellant that there is an error in order, requirement, decision or refusal made by the Zoning Administrator or official 

based on or made in the enforcement of this Resolution or any 

regulation relating to the location of structures.” According to 

§§ 907.02 and 907.03, the board of adjustment also interprets 

the zoning map and considers requests for variances. Section 

910 grants a right to appeal from decisions of the board 

of adjustment, and provides that “[a]ny person or persons, 

jointly or severally, aggrieved by any decision of the Board 

of Adjustment, or any officer, department, board or bureau 

of the County,” may appeal, “setting forth that such decision 

is illegal.”

PTS and Reiser-McCormick argue that the Board should 

be considered a “board or bureau of the County” within the 

meaning of § 910, and they further argue they have been 
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“aggrieved” because they claim any decision to issue the CUP 

would be illegal. But they do not explain how their action to 

enjoin issuance of the CUP pertains to anything governed by 

article 9 of the zoning regulations or how it relates in any way 

to a decision by the board of adjustment.

Instead, this action sought to prevent the Board from issuing a CUP, which is governed under article 10 of the Cherry 

County zoning regulations, not article 9. We agree with the 

district court that the provisions of § 910 do not pertain to a 

CUP and are inapplicable here.

3. No Standing Under 

§ 23-114.05

PTS and Reiser-McCormick also argue they have standing 

to challenge the CUP by virtue of § 23-114.05, which provides 

in relevant part:

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, 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. Any taxpayer or taxpayers of the 

county may institute proceedings to compel specific performance by the proper official or officials of any duty 

imposed by such sections or in resolutions adopted pursuant to such sections.

We addressed and rejected a similar standing argument in 

Egan.

 27 As already discussed, Egan held the landowner did 

not have injury-in-fact standing to challenge a special use 

permit allowing construction of a poultry production facility 

that was located approximately 13 miles from her property. 

27 Egan, supra note 2.
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But the landowner in Egan also argued that she had standing to challenge the special use permit under § 23-114.05. 

We disagreed.

Egan recognized that the Legislature can confer standing 

that is broader than common-law injury-in-fact standing, but 

we concluded that § 23-114.05 confers standing to challenge an 

alleged zoning violation, not to challenge the issuance of a special use permit. 28 Because the action in Egan did not involve an 

alleged zoning violation, we held that any standing conferred 

by § 23-114.05 was inapplicable.

The rationale from Egan applies here as well. Neither PTS 

nor Reiser-McCormick have alleged or argued there has been 

a violation of any zoning regulation. And during oral argument before this court, they candidly admitted their standing 

argument under § 23-114.05 is directly contrary to our holding in Egan. Section 23-114.05 does not confer standing on 

either PTS or Reiser-McCormick to challenge the CUP at 

issue here.

4. Standing Not Created by 

Waiver or Estoppel

[14] Finally, PTS and Reiser-McCormick argue we should 

find they have standing to bring an action challenging issuance 

of the CUP because they were allowed to appear before the 

Board during the CUP application process, and no one objected 

to them doing so. As framed, they seem to be relying on principles of waiver or estoppel to establish legal standing. But 

standing is a matter of subject matter jurisdiction, 29 and it is 

well established that subject matter jurisdiction cannot be created by waiver, estoppel, consent, or conduct of the parties. 30

This standing argument has no merit.

28 Id.

29 See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).

30 Id.
- 606 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

PRESERVE THE SANDHILLS V. CHERRY COUNT

Cite as 313 Neb. 590

V. CONCLUSION

For the foregoing reasons, neither PTS nor ReiserMcCormick has standing to challenge issuance of the CUP 

and the district court correctly dismissed the action for lack of 

subject matter jurisdiction. We therefore affirm the judgment 

of dismissal and do not reach any of the remaining assignments of error or arguments on appeal.

Affirmed.

Miller-Lerman, J., not participating.