Nebraska Supreme Court Upholds Injunction Requiring Feedlot Owner to Obtain Conditional Use Permit

Dirt Rd. Dev. LLC v. Hirschman, 316 Neb. 757 (2024)

Howard County required a landowner to obtain a conditional use permit (“CUP”) for a feedlot expansion.  The landowner challenged that decision.  The lower court upheld Howard County’s interpretation of its zoning regulations.  The Nebraska Supreme Court affirmed.  The court’s holding analogized zoning regulations to statutes as to interpretation, confirming their force and effect as law.

Robert and Kathryn Hirschman own several large feedlots.  They planned a new feedlot on a nearby parcel.  A neighbor, Dirt Road Development LLC (“Dirt Road”), sued, asserting the new feedlot required a CUP. 

The Howard County Zoning Regulations do not require a CUP for small “Farm Feedlots.”  The Regulations do require a CUP for the “[e]xpansion of existing and [the] development of new Commercial Feedlots,” which are larger.  A new feedlot “adjacent” to an existing Commercial Feedlot is an expansion of the existing Commercial Feedlot and thus requires a CUP.

The Hirschmans asserted the new feedlot was a Farm Feedlot and “separate” from their existing operations because the two parcels were not adjacent.  The district court granted summary judgment for Dirt Road and enjoined the Hirschmans from further construction or operation of the new feedlot until they obtained a CUP.  

The Nebraska Supreme Court affirmed.  The court held it is proper to apply the rules of statutory interpretation “informed by general property law” when interpreting zoning regulations.  Where legislative intent is unclear, courts interpret regulations in favor of the property owner and against property restrictions.  However, courts interpret unambiguous provisions according to their plain and ordinary meaning.

The court held Howard County’s regulations unambiguously defined “adjacent” as “near to or in the vicinity.”  The court recognized “adjacent” ordinarily means close or nearby, but does not require physical contact, as “adjoining” might.  Because the Hirschmans’ new feedlot was “near” their existing Commercial Feedlot, the new feedlot was an expansion and required a CUP.  According to the court, the regulation could not elicit any other plausible interpretation.

The Nebraska Supreme Court made clear that flexible standards are not ambiguous.  The court also found that it must interpret a regulation subject to more than one reasonable interpretation “in favor of the property owner and against any implied extension of the restriction.” 

Hannes D. Zetzsche
Joel R. J. Myers, Summer Associate