Amorak v. Cherry Cty. Bd. of Comrs.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
Amorak, Inc., and Edwin Brown, appellants, and
cross-appellees, v. Cherry County Board of
Commissioners, appellee and cross-appellant,
and Danielski Harvesting & Farming,
LLC, intervenor-appellee.
___ N.W.3d ___
Filed April 4, 2025. 	No. S-23-1040.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law, which requires the appellate court to reach a conclusion
independent of the lower court’s decision.
2. Political Subdivisions: Judgments: Appeal and Error. When a deci-
sion regarding a conditional use or special exception permit is appealed
under Neb. Rev. Stat. § 23-114.01(5) (Reissue 2022) 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.
3. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
4. Zoning: Appeal and Error. The interpretation of a zoning regulation is
a question of law that an appellate court reviews independently of the
lower court.
5. Jurisdiction: Appeal and Error. Where a lower court lacks subject
matter jurisdiction to adjudicate the merits of a claim, issue, or question,
an appellate court also lacks the power to determine the merits of the
claim, issue, or question presented to the lower court.
6. Statutes: Appeal and Error. The right of appeal in this state is purely
statutory; unless a statute provides for an appeal from the decision of a
quasi-judicial tribunal, such right does not exist.
7. Statutes. Statutory interpretation begins with the text.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:17 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
8. Statutes: Legislature: Intent. In order for a court to inquire into a
statute’s legislative history, that statute in question must be open to
construction, and a statute is open to construction when its terms require
interpretation or may reasonably be considered ambiguous.
9. Political Subdivisions: Judgments: Appeal and Error. The plain and
unambiguous language of Neb Rev. Stat. § 23-114.01(5) (Reissue 2022)
authorizes appeals of decisions regarding conditional use permits; it
does not cabin such appeals to a particular type of decision or litigant.
10. Zoning: Words and Phrases. Zoning is the process that a community
employs to legally control the use which may be made of property and
the physical configuration of development upon tracts of land located
within its jurisdiction.
11. Judgments: Appeal and Error. In a bench trial of a law action, a trial
court’s factual findings have the effect of a jury verdict and will not be
set aside on appeal unless clearly erroneous. The appellate court does
not reweigh the evidence but considers the judgment in a light most
favorable to the successful party and resolves evidentiary conflicts in
favor of the successful party, who is entitled to every reasonable infer-
ence deducible from the evidence.
Appeal from the District Court for Cherry County, Karin L.
Noakes, Judge. Affirmed.
Brian T. McKernan and Alexander K. Shaner, of McGrath,
North, Mullin & Kratz, P.C., L.L.O., 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 appellee Cherry County Board of
Commissioners.
Stephen D. Mossman and Andrew R. Spader, of Mattson
Ricketts Law Firm, L.L.P., for intervenor-appellee Danielski
Harvesting & Farming, LLC.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Papik, J.
The 	Cherry 	County 	Board 	of 	Commissioners 	(Board)
issued Danielski Harvesting & Farming, LLC (Danielski), a

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
conditional use permit to build a commercial hog facility on its
property. Neighboring landowners, Amorak, Inc., and Edwin
Brown (collectively Amorak), appealed to the district court
pursuant to Neb. Rev. Stat. §§ 23-114.01(5) (Reissue 2022)
and 25-1937 (Reissue 2016) and In re Application of Olmer,
275 Neb. 852, 752 N.W.2d 124 (2008). After a trial de novo,
the district court determined that Danielski’s application for
the conditional use permit complied with the pertinent zoning
statute and regulations, and it therefore affirmed the issuance
of the permit.
Amorak appeals, claiming that because Danielski was the
owner of the property and not the facility’s operator, it alone
could not establish a right to a conditional use permit under
zoning regulations regarding odor mitigation and water con-
tamination, and that, even if it could, it had not done so. The
Board cross-appeals, raising a jurisdictional argument. The
Board asserts that Amorak, as a nonapplicant, was not entitled
to a trial de novo before the district court. We find no merit to
the parties’ arguments and affirm.
I. BACKGROUND
1. Board Issues Conditional
Use Permit to Danielski
Danielski applied for a conditional use permit to build a
commercial hog facility on property it owned in rural Cherry
County, Nebraska. The facility was partly intended to provide
manure to fertilize Danielski’s crops. After an initial review
by the Cherry County Planning and Zoning Commission, the
Board held a public hearing on the application. Neighboring
landowners, including Amorak, appeared at the hearing to
object to the issuance of the permit. After the hearing, the
Board issued the conditional use permit to Danielski.
2. Amorak Pursues Appeal in District Court
Amorak appealed the Board’s decision to the district court,
seeking a trial de novo. Its notice of appeal stated that
Amorak was appealing the Board’s order “pursuant to . . .

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
§§ 23-114.01 and 25-1937 and In re [Application of] Olmer.”
Amorak subsequently filed a complaint and petition on appeal
with the district court. Relevant here, Amorak claimed that the
conditional use permit did not comply with applicable zoning
regulations that, according to Amorak, required the operator
of the facility to show compliance regarding odor mitigation
and water contamination.
In its answer, the Board generally denied Amorak’s claims.
It also asserted affirmative defenses, including failure to state
a claim and lack of jurisdiction.
Danielski filed a petition in intervention, which was later
granted by the district court.
3. District Court Rejects Board’s
Jurisdictional Challenge
The Board sought to have the proceeding dismissed for
lack of jurisdiction. The Board argued that §§ 23-114.01 and
25-1937 and In re Application of Olmer, supra, did not allow
a trial de novo for anyone other than an applicant for a condi-
tional use permit who was aggrieved by a rejected application.
According to the Board, anyone other than the applicant was
entitled to review only by a petition in error.
The 	district 	court 	rejected 	the 	Board’s 	jurisdictional
argument.
4. District Court Conducts Trial de Novo
The matter proceeded to a trial de novo on Amorak’s appeal
of the issuance of the conditional use permit. The district court
received the Cherry County zoning regulations as an exhibit.
Amorak, the Board, and Danielski presented testimony and
other exhibits to support their respective positions.
In support of its argument that the applicable regulations
required a plan for compliance from the operator of the pro-
posed facility and not merely from the owner of the land,
Amorak presented evidence that although Danielski owned
the land upon which the proposed hog confinement facility
would be located, it did not plan to operate the facility itself,

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
and that, instead, an entity called Sandy Pine would operate
the hog confinement facility on land leased from Danielski.
There was testimony that both Danielski and Sandy Pine
financed the construction of the facility. Danielski presented
evidence that it owned the land and would own the buildings
in which the hog confinement facility would operate, although
the equipment within the buildings would be owned by Sandy
Pine and the hog confinement operations would be conducted
by Sandy Pine. Danielski would then apply to its fields the
manure produced by the operation.
The parties also presented testimony and exhibits regarding
plans related to odor and dust elimination and water contami-
nation. We summarize relevant portions of that evidence below
in our analysis.
5. District Court Affirms
Conditional Use Permit
Following a trial de novo, the district court entered its judg-
ment, which we discuss in more detail in our analysis. The
district court determined that the relevant statute and zoning
regulations did not support Amorak’s argument that the regu-
lations required the operator of the facility to provide certain
required assurances for odor mitigation. The district court then
explained how the assurances provided by Danielski satisfied
the applicable zoning regulations. The district court also found
that Danielski’s application for the conditional use permit
was consistent with the zoning regulations addressing water
contamination. Having determined that Danielski’s application
complied with the relevant zoning regulations, the district court
affirmed the Board’s issuance of the conditional use permit.
Amorak now appeals, and the Board cross-appeals.
II. ASSIGNMENTS OF ERROR
On appeal, Amorak assigns, consolidated, that the district
court erred in (1) finding that the owner and operator of the
confined animal feeding use were “irrelevant” for purposes of
demonstrating compliance with the zoning regulations and (2)

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
determining the applicable zoning regulations concerning odor
and water contamination had been satisfied.
On cross-appeal, the Board assigns, consolidated, that the
district court erred in determining that Amorak, as a mere
neighboring landowner, was entitled to a trial de novo pursu-
ant to § 23-114.01(5) and In re Application of Olmer, 275
Neb. 852, 752 N.W.2d 124 (2008).
III. STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclu-
sion independent of the lower court’s decision. State ex rel.
Rhiley v. Nebraska State Patrol, 301 Neb. 241, 917 N.W.2d
903 (2018).
[2] When a decision regarding a conditional use or special
exception permit is appealed under § 23-114.01(5) and a trial
is held de novo under § 25-1937, 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. Egan v. County of Lancaster, 308
Neb. 48, 952 N.W.2d 664 (2020).
[3] Statutory interpretation is a question of law that an appel-
late court resolves independently of the trial court. Mullins v.
Box Butte County, 317 Neb. 937, 13 N.W.3d 67 (2024).
[4] The interpretation of a zoning regulation is a question of
law that an appellate court reviews independently of the lower
court. Dirt Road Development v. Hirschman, 316 Neb. 757, 7
N.W.3d 438 (2024).
IV. ANALYSIS
1. Jurisdictional Issue on Cross-Appeal
[5] Before reaching the merits, it is our duty to determine
whether we have jurisdiction over an appeal. See Main St
Properties v. City of Bellevue, ante p. 116, 13 N.W.3d 911

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Nebraska Supreme Court Advance Sheets
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AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
(2024). Where a lower court lacks subject matter jurisdic-
tion to adjudicate the merits of a claim, issue, or question, an
appellate court also lacks the power to determine the merits
of the claim, issue, or question presented to the lower court.
Lancaster County v. Slezak, 317 Neb. 157, 9 N.W.3d 414
(2024). Because the Board’s cross-appeal challenges the dis-
trict court’s subject matter jurisdiction over Amorak’s direct
appeal, we begin there.
On cross-appeal, as it did before the district court, the Board
contends that the district court lacked subject matter jurisdic-
tion because Amorak selected an avenue of review that was
not available to it. As we will now explain, we disagree.
[6] The right of appeal in this state is purely statutory;
unless a statute provides for an appeal from the decision of
a quasi-judicial tribunal, such right does not exist. Preserve
the Sandhills v. Cherry County, 313 Neb. 668, 986 N.W.2d
265 (2023). We have held that one who seeks review of a
decision granting or denying a conditional use permit has
two statutory options: (1) filing a petition in error under
Neb. Rev. Stat. § 25-1901 (Reissue 2016) or (2) filing an
appeal under § 23-114.01(5) and the procedure discussed in
In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124
(2008). See Preserve the Sandhills v. Cherry County, supra.
The nature and scope of the district court’s review depends
on which of these options a litigant selects; and courts will
respect such litigant’s chosen method of challenging a condi-
tional use permit decision, regardless of the consequences for
the litigant. See id. Here, Amorak, a neighboring landowner
of the applicant, Danielski, opted to appeal the issuance of
the conditional use permit under § 23-114.01(5), rather than
pursue a petition in error. The Board’s core premise is that
the district court lacked jurisdiction over Amorak’s appeal
because only an applicant who has been denied a conditional
use permit can pursue an appeal to the district court for de
novo review. But such a limitation on appellate jurisdiction
has no support in our statutes.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
Two statutes are relevant here, §§ 23-114.01 and 25-1937.
The current version of § 23-114.01(5) states that, subject to
one exception not applicable here, “an appeal of a decision
by the county board of commissioners or supervisors regard-
ing a conditional use . . . shall be made to the district court.”
In In re Application of Olmer, we observed, Ҥ 23-114.01(5)
clearly provides for a right of appeal to the district court from
[a decision of the county board of commissioners], without
setting forth any procedure for prosecuting the appeal.” 275
Neb. at 859, 752 N.W.2d at 130. In the absence of such pro-
cedure, we held that the appeal procedure in § 25-1937 was
implicated. See In re Application of Olmer, supra. Section
25-1937 provides in part:
When the Legislature enacts a law providing for an
appeal without providing the procedure therefor, the
procedure for appeal to the district court shall be the
same as for appeals from the county court to the district
court in civil actions. Trial in the district court shall be
de novo upon the issues made up by the pleadings in the
district court.
Giving the language of § 23-114.01(5) its plain and ordi-
nary meaning, we see nothing that limits the district court’s
jurisdiction as to the type of decision to be reviewed or the
litigant who seeks that review. See Precision Castparts Corp.
v. Nebraska Dept. of Rev., 317 Neb. 481, 10 N.W.3d 707
(2024) (statutory language is to be given its plain and ordinary
meaning). Looking first at the type of decision, § 23-114.01(5)
authorizes the filing in the district court of an appeal of “a
decision . . . regarding a conditional use.” We have specifi-
cally held that “[t]he plain meaning of the term ‘decision’ in
§ 23-114.01(5), in the context of the entire statute, is a deci-
sion to grant, deny, or partially grant and partially deny a [con-
ditional use permit].” Preserve the Sandhills v. Cherry County,
310 Neb. 184, 191, 964 N.W.2d 721, 726-27 (2021). As to the
type of litigant, § 23-114.01(5) similarly includes no provision
limiting who may appeal. Contrary to the Board’s position

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
that only an applicant can appeal the denial of a conditional
use permit, § 23-114.01(5) does not restrict such an appeal
to a particular type of decision or litigant. We have held that
a party objecting to the issuance of a conditional use permit
must establish that they have standing, see Egan v. County of
Lancaster, 308 Neb. 48, 952 N.W.2d 664 (2020), but that is
not a barrier to Amorak’s challenge in this case.
To oppose this reading of the relevant statutes, the Board
formulates an argument using case law and § 23-114.01(5)’s
legislative history. The Board first calls our attention to
Mogensen v. Board of Supervisors, 268 Neb. 26, 679 N.W.2d
413 (2004) (superseded by statute on other grounds as stated
in In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124
(2008)), and Niewohner v. Antelope Cty. Bd. of Adjustment, 12
Neb. App. 132, 668 N.W.2d 258 (2003) (superseded by stat-
ute on other grounds as stated in In re Application of Olmer,
supra). Those cases, which predate the current version of
§ 23-114.01(5), held that appeals from a planning commission,
county board, or board of supervisors must only be made to
the board of adjustment. In 2004, in response to Mogensen and
Niewohner, the Legislature amended § 23-114.01(5) to add the
following language: “An appeal of a decision by the county
planning commission or county board of commissioners or
supervisors regarding a conditional use . . . shall be made to
the district court.” See 2004 Neb. Laws, L.B. 973, § 3. See,
also, Preserve the Sandhills v. Cherry County, 310 Neb. 184,
964 N.W.2d 721 (2021); In re Application of Olmer, supra.
The Board proffers that this language must pertain only to
an applicant appealing the denial of a conditional use permit
because Mogensen and Niewohner involved such appeals.
The Board goes on to claim that In re Application of Olmer
confirmed this interpretation when it applied the amended
statutory language to an applicant’s appeal from the denial of
a conditional use permit and did not expressly expand review
to any other litigant or decision of the Board. Therefore, the

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AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
Board submits, review pursuant to § 23-114.01(5) can only be
initiated by disappointed applicants.
[7-9] We find no merit to this attempt by the Board to
circumvent the plain meaning of § 23-114.01(5). We see no
reason to resort to legislative history. Statutory interpretation
begins with the text. In re Estate of McCormick, 317 Neb.
960, 12 N.W.3d 802 (2024). In order for a court to inquire
into a statute’s legislative history, the statute in question must
be open to construction, and a statute is open to construction
when its terms require interpretation or may reasonably be
considered ambiguous. Nebraska Journalism Trust v. Dept.
of Envt. & Energy, 316 Neb. 174, 3 N.W.3d 361 (2024).
As we have explained, however, the plain and unambiguous
language of § 23-114.01(5) authorizes appeals of decisions
regarding conditional use permits; it does not cabin such
appeals to a particular type of decision or litigant. Thus, we
need not refer to the statute’s legislative history to ascertain
its meaning. Moreover, even if Mogensen and Niewohner
involved frustrated applicants and prompted the amendment
to § 23-114.01(5), the Legislature did not choose language
to limit review to applicants. And while In re Application
of Olmer involved an applicant seeking review of a denial
of a conditional use permit, we did not pronounce that the
procedure recognized there was available only to frustrated
applicants. The Board’s reliance on these cases cannot prevail
over plain and unambiguous statutory language.
The Board also claims that under the procedure put forth
in In re Application of Olmer, Amorak could not appeal the
issuance of the conditional use permit because, as a nonap-
plicant, it was not a “party.” Brief for cross-appellant at 38.
The Board notes that because § 23-114.01(5) provides a right
to appeal but does not specify a corresponding procedure, the
procedure in § 25-1937 is implicated. See In re Application of
Olmer, supra. Section 25-1937 provides that “the procedure
for [an] appeal to the district court shall be the same as for
appeals from the county court to the district court in civil

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AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
actions.” The Board asserts that the procedure for appeals
from a county court to a district court in a civil action is
outlined in Neb. Rev. Stat. § 25-2728(1) (Cum. Supp. 2024),
which allows “[a]ny party in a civil case [to] appeal from the
final judgment or final order of the county court to the dis-
trict court of the county where the county court is located.”
(Emphasis supplied.) According to the Board, Amorak cannot
appeal under this procedure because it was not a party before
the Board. The Board likens an appeal by Amorak, which pro-
vided testimony at a public hearing opposing the conditional
use permit, to an appeal by a mere witness in a civil case. We
are not convinced.
As we have explained, the text of § 23-114.01(5) grants a
right of appeal from a conditional use permit decision and does
not limit that appeal to any particular litigant. The Legislature
has given nonapplicants and applicants the right to appeal
through the same statutory provisions. The Legislature could
have limited such appeals to applicants explicitly and directly,
rather than through the series of inferences the Board suggests,
but it did not. See, e.g., State v. A.D., 305 Neb. 154, 162, 939
N.W.2d 484, 489 (2020) (“[o]ne would expect such significant
expansions of county court authority [suggested by appellant]
to be stated [by the Legislature] in much clearer terms”). And,
in any event, the Board’s argument on this point proves too
much: Under the Board’s logic, even an applicant could not
appeal a decision regarding a conditional use permit because
an applicant before a county board is not a party in a civil
case. Proceedings before a county board to obtain a condi-
tional use permit are not a civil case, something we recognized
in In re Application of Olmer, when we imported appellate
procedure for civil cases by analogy. Again, the Board’s argu-
ment cannot overcome the plain and unambiguous language
of § 23-114.01(5).
Having resolved the jurisdictional issue raised in the Board’s
cross-appeal, we now proceed to the merits of Amorak’s direct
appeal.

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AMORAK v. CHERRY CTY. BD. OF COMRS.
Cite as 318 Neb. 723
2. Who Must Demonstrate Compliance
With Zoning Regulations?
The district court found that Danielski, as the owner of the
property, was the only entity allowed to apply for a conditional
use permit and was required to show compliance with the zon-
ing regulations; the district court found that the operator of the
facility was not required to do so. On appeal, Amorak assigns
that the district court erred in finding that the owner and
operator of the confined animal feeding use were “irrelevant”
for purposes of demonstrating compliance with the zoning
regulations. Amorak broadly argues that the applicable zoning
regulations required assurances or other evidence from Sandy
Pine and that the district court erroneously found that evidence
provided solely by Danielski satisfied those requirements.
Based on our analysis of the relevant statutory provisions and
zoning regulations, we conclude that the district court did not
err in applying the law in this manner. See Egan v. County of
Lancaster, 308 Neb. 48, 952 N.W.2d 664 (2020) (appellate
court will not set aside findings of district court unless district
court erred in application of law). See, also, Mullins v. Box
Butte County, 317 Neb. 937, 13 N.W.3d 67 (2024) (statutory
interpretation is question of law); Dirt Road Development v.
Hirschman, 316 Neb. 757, 7 N.W.3d 438 (2024) (interpretation
of zoning regulation is question of law).
For starters, we do not believe it is accurate to say that the
district court found that “the owner and operator . . . were
irrelevant,” as Amorak assigns. In affirming the issuance of
the conditional use permit, the district court observed that
under the pertinent statutory provisions and zoning regula-
tions, conditional uses are granted to property owners for the
specified property. Therefore, the district court found that it
was the owner, Danielski, not the operator, Sandy Pine, that
was obligated to meet all requirements outlined in the regula-
tions, including the requirement to provide assurances. We do
not read the district court’s order to find that the owner and

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AMORAK v. CHERRY CTY. BD. OF COMRS.
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operator were irrelevant; we read it as focusing on the use of
the property by the property owner. We conclude that this was
a correct application of the relevant statute and regulations.
We begin with the relevant statute. Section 23-114.01(4)
allows the Board to “grant conditional uses . . . to property
owners for the use of their property.” See, also, § 23-114.01(5)
(giving Board, rather than planning commission, authority to
grant conditional uses under certain circumstances). Section
23-114.01(4) continues:
The granting of a conditional use permit . . . shall only
allow property owners to put their property to a special
use if it is among those uses specifically identified in the
county zoning regulations as classifications of uses which
may require special conditions or requirements to be met
by the owners before a use permit . . . is authorized.
(Emphasis supplied.)
In this case, the operative zoning regulations are the Cherry
County zoning regulations. See Cherry County, Nebraska,
Zoning Regulations, art. 1 to art. 14, §§ 101 to 1404 (2008 &
rev. 2016). Those regulations define a “use” as “[t]he purpose
or activity for which land and buildings thereon is designed,
arranged, intended, or for which it is occupied or maintained.”
See § 303.86. According to § 303.22 of the zoning regula-
tions, a conditional use permit gives permission to the appli-
cant “to develop the specified conditional use” and “shall
specify the conditions of approval.” Under § 1001 of the
zoning regulations, the Board “may grant conditional uses to
property owners for the use of their property in conformance
and compliance with the limitations . . . set forth [in the zon-
ing regulations].” Accordingly, it is the “property owner or
authorized agent of such owner(s)” who initiates and submits
the application for a conditional use, which shall include a
detailed description of the proposed use and the activities
involved in it and, for confined animal feeding uses, a descrip-
tion of how the use will address odor, dust, and potential air,

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water, and soil pollution, among other things. See §§ 1002,
1002.03, and 1002.10. See, also, § 303.23 (defining confined
animal feeding use). The zoning regulations go on to provide
that confined animal feeding uses must comply with certain
requirements. See § 501.05(15).
[10] Both § 23-114.01 and the zoning regulations above
illustrate that the zoning regulations govern land use. As we
have said, “[z]oning is the process that a community employs
to legally control the use which may be made of property and
the physical configuration of development upon the tracts of
land located within its jurisdiction.” Enterprise Partners v.
County of Perkins, 260 Neb. 650, 656, 619 N.W.2d 464, 468
(2000) (internal quotation marks omitted) (emphasis supplied).
The onus is on the property owner or its authorized agent to
apply for the conditional use permit and to show that the pro-
posed use complies with pertinent zoning regulations. The fact
some other party may do certain things on the property may
matter insofar as its activities are relevant to what the prop-
erty owner is required to show to obtain the conditional use
permit, but the property owner carries the burden of making
that showing. Here, Danielski owns the property for which it
sought a conditional use permit; Danielski is the entity charged
with supporting that application for the proposed land use.
We are not persuaded by Amorak’s suggestions that the
regulations required some showing by Sandy Pine, as operator.
Take, for example, Amorak’s assertion that Sandy Pine should
have provided assurances or evidence as to its role because
in two instances the zoning regulations mention the “owner/
operator.” See § 501.05(15)(F) and (I). Each of those instances
refers to demonstrations of compliance after the conditional
use permit is granted—soil testing, consent to unannounced
inspections, notification of noncompliance, and agreement to
comply with the Board’s postconditional use permit orders.
Id. These references to “owner/operator” do nothing to change
the property owner’s initial obligation to show compliance
with the regulations to obtain a conditional use permit, nor

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do the references require separate showings by Sandy Pine at
this stage.
And to the extent Amorak asserts that Sandy Pine, because
it will operate the hog facility, is the “owner of the proposed
confined feeding use” for purposes of § 501.05(15)(D), a
regulation that requires such person or entity to provide assur-
ances regarding the odor the facility will produce, we also
are unswayed. As we have just noted, the zoning regulations
make separate references to the “owner/operator.” These refer-
ences, in our view, demonstrate that the zoning regulations
contemplate that someone other than the owner may conduct
operations on the real estate at issue but do not recognize such
persons as the “owner of the proposed confined feeding use.”
We do not understand the “owner of the proposed confined
feeding use” to refer to an entity that will merely conduct
activities on the real estate at issue.
Finally, Amorak suggests that to secure a conditional use
permit, Danielski was required to show that it had a legal
right to control the operations of the confined animal feeding
use. We see no basis in the zoning regulations for this argu-
ment. Once a property owner has obtained a conditional use
permit, other provisions incentivize both owners and operators
to comply with zoning regulations: It is a misdemeanor for
owners and operators to violate zoning regulations or condi-
tional use permits, and they are also subject to other remedies,
such as injunctions. See Neb. Rev. Stat. § 23-114.05 (Reissue
2022). See, also, §§ 1202 and 1203. See, also, Egan v. County
of Lancaster, 308 Neb. 48, 952 N.W.2d 664 (2020) (not-
ing distinction between obtaining special use permit pursuant
to zoning regulations and suit alleging violation of special
use permit or zoning regulations pursuant to § 23-114.05);
Johnson v. Knox Cty. Partnership, 273 Neb. 123, 728 N.W.2d
101 (2007) (involving suit against owner and operator seek-
ing remedies for violation of zoning regulations pursuant to
§ 23-114.05); Thieman v. Cedar Valley Feeding Co., 18 Neb.
App. 302, 789 N.W.2d 714 (2010) (same).

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Perhaps most notably, Amorak does not specify what assur-
ances or other information Sandy Pine, as the operator of the
confined animal feeding use, ought to have provided. And as
we are about to explain, we are unpersuaded by Amorak’s
contentions that the district court erred in finding the evidence
provided by Danielski to be sufficient to satisfy the zoning
regulations’ requirements.
3. Sufficiency of Danielski’s Showing
Amorak challenges the district court’s determination that
Danielski satisfied zoning regulations concerning odor and
water contamination and was entitled to a conditional use
permit. Upon a trial de novo, the district court found that
Danielski had made the required showing. Amorak now chal-
lenges that finding.
[11] In a bench trial of a law action, a trial court’s factual
findings have the effect of a jury verdict and will not be set
aside on appeal unless clearly erroneous. The appellate court
does not reweigh the evidence but considers the judgment in
a light most favorable to the successful party and resolves
evidentiary conflicts in favor of the successful party, who is
entitled to every reasonable inference deducible from the evi-
dence. See McGill Restoration v. Lion Place Condo. Assn.,
309 Neb. 202, 959 N.W.2d 251 (2021). Viewing the disputed
factual findings through this lens, we discern no error, nor do
we find that the district court erred in its application of the law.
See Egan, supra.
(a) Owner, Not Operator
Before addressing Amorak’s specific arguments regarding
odor and water contamination, we dispose of one claim com-
mon to both: Again, Amorak asserts that the showing sup-
plied by Danielski was insufficient because Danielski is not
the operator of the confined animal feeding use. As we have
already explained, this position lacks merit, and we will not
discuss it further.

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(b) Odor Assurances
Regarding odor mitigation, there are two relevant zon-
ing 	regulations: 	§§ 	501.05(15)(D) 	and 	1008.08. 	Section
501.05(15)(D) allows the Board to authorize a hog operation
to exceed 2,000 feeding units per section of land if there are
assurances, “acceptable to the . . . Board,” that more proper-
ties will not be subjected to “unreasonable levels of odor for
unreasonable duration periods.” Section 1008 provides that in
reviewing “any conditional use application,” the Board shall
consider certain aspects of the proposed use and, in authoriz-
ing “any conditional use,” shall attach specific requirements
to assure continued acceptability. Section 1008 goes on to list
the specific aspects required at a minimum and the required
assurances of continued acceptability. Among them, § 1008.08
requires that the hog operation will not result in “inappro-
priate levels of . . . dust, odor, or undue potentials for air
. . . hazards.”
Following 	the 	trial 	de 	novo, 	the 	district 	court 	found
Danielski’s conditional use permit application sufficient under
these regulations. The district court observed that Danielski’s
application contained a plan that detailed several ways odor
would be managed. The district court recounted:
The assurances include keeping the floors clean and dry,
avoiding manure buildup, ensuring adequate ventilation,
weekly power washing of interior building surfaces, uti-
lizing a feed delivery system that minimizes dust, utilizing
a large manure storage pit, and regular maintenance and
inspection of the storage pit. All facilities will be power-
ventilated, greatly reducing gas and moisture buildup
which will reduce the intensity of the odor.
In addition, the manure pit is designed to accommodate
180 days of underground manure storage and to hold twice
as much as needed. The Operations and Maintenance Plan
requires routine maintenance and inspections to avoid
excess sludge build-up.

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Other assurances include the actual distance between
the facility and residences, schools, churches, or public
use areas, the vast number of acres available to spread the
manure, injecting instead of spreading the manure topi-
cally, and applying the manure during times when air is
rising and not on hot, humid days.
Now on appeal, Amorak posits that the district court commit-
ted legal and factual errors in finding the assurances Danielski
provided were sufficient for purposes of both §§ 501.05(15)(D)
and 1008.08. As we will explain, however, Amorak miscon-
strues the zoning regulations and relies on a one-sided view of
the evidence. Upon our review, we determine that Amorak has
identified no legal errors related to odor assurances. And con-
sidering the judgment in the light most favorable to Danielski,
and giving it the benefit of every reasonable inference deduc-
ible from the evidence, we are not convinced by Amorak’s
arguments that the district court’s factual findings regarding
odor assurances were clearly erroneous.
We first dispose of the legal error Amorak alleges. Amorak
asserts that if an applicant seeks the class of permit Danielski
sought, that applicant, by definition, cannot have effective
provisions to collect or eliminate odors.
Some background is necessary to understand Amorak’s con-
tention. The zoning regulations allow the Board to issue three
different classes of conditional use permits for confined ani-
mal feeding operations. The classes of permits differ as to the
ways manure is “collected and digested.” See § 303.23. The
distinctions between classes of permits are significant primar-
ily in terms of how close the regulations permit the different
classes of confined animal feeding operations to be located to
churches, schools, and other identified public facilities.
Danielski sought a conditional use permit for a “Class AN”
confined animal feeding use. See § 501.05(15)(C). The zon-
ing regulations define a Class AN confined animal feeding use
as one that uses anaerobic processes for the “collect[ion] and
digest[ion]” of manure. See § 303.23. Under the regulations,

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more distance is required between Class AN facilities and
churches, schools, and other identified areas than is required
for other classes of facilities and such areas. See § 501.05(15).
And while the zoning regulations require that other classes
of confined animal feeding operations employ certain mecha-
nisms to control dust generated within any buildings to prevent
the blowing of dust and odor onto adjoining properties, the
regulations state that in a Class AN facility, “there are no effec-
tive provisions made for the collection and elimination of dust
and odor from any buildings associated with such use.” See
§ 303.23. Amorak suggests that by definition, then, a Class AN
confined animal feeding use cannot meet the odor mitigation
requirements of §§ 501.05(15)(D) and 1008.08.
The zoning regulations do not support Amorak’s position
that a Class AN confined animal feeding use cannot satisfy
§§ 501.05(15)(D) and 1008.08 as a matter of law. To begin,
the section of the regulations that lists the rules governing
Class AN facilities itself undermines any notion that in a Class
AN facility, steps could never be taken to minimize odor. That
section provides that exceptions to the minimum distance
requirements governing Class AN facilities can be approved
where there are “special provisions for odor and dust control.”
§ 501.05(15)(C).
On top of that, if Amorak’s argument were carried to its log-
ical conclusion, no Class AN facility could ever be approved.
As we have observed, § 1008 requires the minimization of odor
for “any conditional use application.” But as Amorak under-
stands Class AN conditional use applications, they can never
be accompanied with plans to minimize dust or odor. Reading
the regulations to create a class of confined animal feeding
operations that could never be granted a conditional use permit
would run afoul of rules of interpretation that compel us to
strive to avoid rendering any section of the regulations super-
fluous. See Dirt Road Development v. Hirschman, 316 Neb.
757, 7 N.W.3d 438 (2024).

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We find that the regulation defining Class AN facilities is
more naturally read to provide that a Class AN facility may be
approved without the applicant demonstrating the same dust
control measures required for the other classes of confined
animal feeding operations. We conclude that the district court
did not err in rejecting Amorak’s argument that a Class AN
facility could never satisfy regulations concerning odor.
In numerous ways, Amorak also takes issue with the district
court’s factual findings concerning odor assurances. Amorak
argues that the “Operation and Maintenance Plan” and “Best
Management Practices” Danielski submitted with its application
fell short of the odor assurances required by §§ 501.05(15)(D)
and 1008.08. Applying our standard of review to Amorak’s
arguments, we perceive no clear error.
In part, Amorak contends that the district court clearly erred
in finding that Danielski’s odor assurances satisfied the zoning
regulations because the assurances offered “no specific details
to guide the District Court . . . for how, when, where, and who
will be performing [the specific odor mitigation] tasks nor any
objective measurement or feedback to ensure such practices
are actually identifying, controlling and/or reducing odor.”
Brief for appellants at 28. We do not believe this alleged
deficit amounts to a failure to fulfill the zoning regulations’
requirements for odor assurances because §§ 501.05(15)(D)
and 1008.08 do not call for the specificity that Amorak envi-
sions. Section 501.05(15)(D) requires that the odor assur-
ances be “acceptable to the . . . Board.” Similarly, § 1008.08
requires assurances that the confined animal feeding use “will
not result in inappropriate levels of . . . dust, odor, or undue
potentials for air . . . hazards.” Upon our review for clear
error, we conclude that the odor mitigation measures identi-
fied by the district court are supported by the record and are
sufficient to satisfy the requirements as articulated by the zon-
ing regulations.
Amorak also claims that the district court’s factual find-
ings regarding odor assurances were clearly erroneous in part

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because Danielski did not call a “qualified or licensed engi-
neer” to testify about the facility’s design. Brief for appellants
at 27. Instead, Danielski presented documentation by an agri-
services and engineering firm Danielski had engaged to ensure
the confined animal feeding use complied with the applicable
rules and regulations, and it elicited the related testimony of
the firm’s founder. According to Amorak, the firm’s founder
was unqualified to provide expert testimony. Amorak makes
no claim that the testimony was inadmissible for purposes of
odor assurances but contends, in essence, that the district court
gave the testimony undue weight. It is not our role, however,
to reweigh the evidence, and Amorak offers no other rea-
son why the testimony rendered the district court’s judgment
clearly wrong.
Amorak next asserts that Danielski’s odor assurances were
inadequate under the zoning regulations because there was
testimony that the odor assurances Danielski submitted were
designed for a confined animal feeding use that would hold
fewer animals than Danielski’s proposed use. Amorak cites
testimony (1) that some of the practices outlined in the assur-
ances were almost identical to those designed for facilities
with fewer animals and (2) that the practices were not spe-
cifically designed to satisfy the zoning regulations. Even if
accurate, neither of these examples support the proposition
that Danielski’s odor assurances did not satisfy the zoning
regulations. Amorak’s argument assumes that odor assurances
designed for smaller facilities could not also fulfill zoning
regulations for larger facilities and that odor mitigation prac-
tices that were not designed with the zoning regulations spe-
cifically in mind could not satisfy the zoning regulations. This
reasoning does not demonstrate that the district court commit-
ted clear error in finding otherwise.
Finally, Amorak contends that the district court’s factual
findings 	concerning 	odor 	assurances 	were 	clearly 	errone-
ous because the judgment did not address the testimony of
Amorak’s odor expert. That witness reviewed the assurances

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and testified that they were not specific enough or based on
objective measurements. As noted above, the zoning regula-
tions do not require specific, objective assurances related to
odor. Moreover, Amorak essentially asks us to juxtapose the
odor expert’s testimony with other testimony that the assur-
ances were sufficient and conclude that the odor assurances
were wanting. But it is not our role to reweigh the evidence,
and we resolve evidentiary conflicts in favor of the successful
party, here Danielski. See McGill Restoration v. Lion Place
Condo. Assn., 309 Neb. 202, 959 N.W.2d 251 (2021). Under
this standard of review, we cannot conclude that the district
court clearly erred in finding the odor assurances adequate
under the zoning regulations, even when the odor expert’s tes-
timony suggested otherwise.
(c) Compliance With Water
Contamination Regulations
We now turn to Amorak’s challenge to the district court’s
findings that Danielski demonstrated compliance with zoning
regulations regarding water contamination.
The district court concluded that Danielski’s application
satisfied a number of regulations regarding water contamina-
tion. The district court found that the engineered plans for
manure pits and manure disposal that Danielski submitted
with its application, as well as the permit it obtained using a
nutrient management plan, satisfied § 501.05(15)(E). Section
501.05(15)(E) requires all methods of manure disposal and
related facilities and operational activities, among other things,
to be engineered and developed to minimize water pollution.
The district court determined that the 18,000 to 20,000 acres
leased by Danielski, along with Danielski’s intent to follow the
nutrient management plan and best practices submitted with
the application, satisfied § 501.05(15)(F), which requires an
“adequate amount of such land . . . based on the nutrient needs
of the crops to be produced” to avoid water contamination
from manure application.

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Section § 501.05(15)(G) addresses stockpiling or compost-
ing manure, bedding, and other waste; the district court found
that Danielski had met this subsection’s requirements with its
plans for concrete floors and manure pits to minimize water
pollution. As for § 501.05(15)(J), which pertains to the natural
environment characteristics of the confined animal feeding
use’s location, the district court determined that it was satis-
fied by testimony that the confined animal feeding use would
not be located in an area subject to flooding on a 100-year
basis; moreover, the water table would be 170 to 180 feet
below the facility, beneath a hardened layer of caprock, and
the facility would be equipped with monitoring wells. Given
the evidence described above, the district court further found
that Danielski had satisfied § 1008.08, which requires that the
confined animal feeding use will not result in “undue poten-
tials for . . . water pollution.”
Amorak opposes the district court’s findings as to the loca-
tion of the confined animal feeding use, manure management,
and the facility’s design. None of Amorak’s arguments estab-
lish reversible error.
(i) Location of Confined Animal Feeding Use
Amorak contends that the district court committed a legal
error in finding that the location requirements for a confined
animal feeding use set forth in § 501.05(15)(J) did not apply to
the manure application sites planned by Danielski because the
manure would be injected into the soil. Amorak cites policies
and zoning regulations aimed at preventing water contamina-
tion to argue that the location requirements in § 501.05(15)(J)
should apply to Danielski’s proposed application to cropland.
We disagree.
The plain and unambiguous language of the zoning regula-
tions demonstrates that § 501.05(15)(J) does not apply to land
where manure is injected into the soil. Section 501.05(15)(J)
provides that “[a]ny confined animal feeding use” shall be
located only in areas that have certain characteristics, such

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as not being subject to flooding on a 100-year basis and hav-
ing other environment characteristics that will “minimize the
potential for surface and ground water contamination.” Section
303.23 defines confined animal feeding use as the raising,
feeding, or management of more than 300 animal units under
certain conditions and “shall include any land where untreated
or partially treated manure is applied to the surface of the
land, but not where such manure is spread on the surface of
the land as a solid or injected into the soil as a liquid.” There
is no dispute that Danielski planned to inject manure into the
soil as a liquid. Therefore, the site of such application is not a
confined animal feeding use under the zoning regulations and
is not subject to the requirements set forth in § 501.05(15)(J)
for “[a]ny confined animal feeding use.”
(ii) Manure Application to Cropland
Amorak argues that the district court clearly erred in rely-
ing on the nutrient management plan that Danielski submitted
with its application for the conditional use permit. Danielski
commissioned the nutrient management plan to obtain a permit
from the relevant state agency and to show compliance with
state and federal regulations. The plan described methods and
procedures Danielski would use to apply manure to cropland
in a manner that would preserve natural resources and was
among several compilations of information Danielski submit-
ted in applying for the conditional use permit. Other documen-
tation and testimony also addressed the application of manure
to cropland.
In its attempt to demonstrate clear error by the district court,
Amorak isolates numerous details in the nutrient management
plan that it claims were inaccurate or based on flawed assump-
tions. We understand Amorak to claim that because some
aspects of the nutrient management plan were inconsistent with
the zoning regulations or other evidence, Danielski’s applica-
tion for a conditional use permit ought to have failed.

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But the district court did not rely on the nutrient manage-
ment plan alone. Danielski presented other evidence to support
its application for the conditional use permit. Based on our
reading of the evidence as a whole, in conjunction with the
zoning regulations, we see no clear error in the district court’s
findings above that Danielski’s showings regarding manure
application and the potential for water contamination were
sufficient.
Amorak argues that the district court erred in relying on
the plan because it inaccurately identified the crop rotation
for all manure application sites as “continuous corn,” con-
trary to undisputed historical crop practices on those sites
of rotating corn and soybeans. This was significant, Amorak
asserts, because there was testimony at trial that different
crop rotation practices would affect how much nitrogen from
the manure—with corn using more nitrogen than soybeans—
would be absorbed by the crops, as opposed to contaminating
water sources, and at what rate. “[U]nless the application sites
abandon their traditional crop rotation,” Amorak submits that
they would not require as much manure as was set forth in
Danielski’s plan. Brief for appellants at 36. Relatedly, Amorak
claims error in the district court’s reliance on the nutrient
management plan due to the distinction between organic and
nonorganic corn. Amorak cites testimony that Danielski had
planted both types but that the plan did not account for the
fact that organic corn absorbs less nitrogen than nonorganic
corn. However, Amorak fails to acknowledge testimony that
Danielski farms two to three times the acres needed to dispose
of the manure and that even if the crop rotation was not “con-
tinuous corn,” Danielski farmed enough acres of corn to use
the manure. We conclude that the district court’s findings were
consistent with this evidence.
On the topic of the land on which Danielski planned to
apply the manure, Amorak finds fault with the district court’s
determination that Danielski owns and leases 18,000 to 20,000

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acres. Amorak admits that there is testimony to support this
finding but argues the nutrient management plan did not reflect
that this number of acres was available to show sufficient
application sites for the manure produced by the confined
animal feeding use. We conclude that by acknowledging there
was testimony to support the district court’s finding as to the
number of acres owned and leased, Amorak refutes its own
argument. Because there is evidence to support the district
court’s finding, Amorak has not demonstrated clear error.
Amorak also claims the district court committed error in
finding that Danielski’s plan provided sufficient safeguards
to minimize the risks of overapplication of manure and in
observing that “overapplication [of manure] is always a con-
cern, that risk exists with organic as well as commercial or
synthetic fertilizers.” Amorak characterizes the reference to
commercial or synthetic fertilizers as an irrelevant statement,
unsupported by the record, that rises to the level of clear
error. But we read the district court’s judgment as noting that
anything can be applied to the soil too liberally and that here,
Danielski had provided sufficient assurances that overapplica-
tion of manure would not occur. Amorak has not identified
clear error in this regard.
Finally, Amorak claims that the district court erred in relying
on the nutrient management plan because the lease agreements
between Danielski and third-party landowners do not contain
any requirement as to how much manure the third-party land-
owners must accept and when. Amorak asserts that according
to testimony at trial, this creates the potential for applying
manure to unsuitable sites. But again, there was evidence that
Danielski farmed many more acres than were actually required
for manure application. And there was testimony that future
leases may contain provisions for manure requirements. We do
not see how the absence of lease agreements providing for the
acceptance of manure application renders the district court’s
judgment clearly erroneous.

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(iii) Confined Animal Feeding Use; Natural
Environment Characteristics and Design
Amorak opposes the district court’s findings concerning the
potential for water contamination in the area of the confined
animal feeding use. But these arguments, too, fail to identify
clear error.
Amorak submits that the district court erred in relying on a
well driller’s testimony that hardened caprock he had observed
while drilling on the site of the confined animal feeding use
would slow the progress of nitrates leaching into the ground
water. According to Amorak, the district court erred in not
crediting the “unrefuted” testimony to the contrary by its
geologist and hydrogeologist expert. Brief for appellants at 42.
Again, we refuse Amorak’s invitation to reweigh contradictory
testimony. As Amorak acknowledges, the district court credited
the testimony that the caprock would slow the progression of
contaminants toward ground water. This does not amount to
clear error.
Amorak also asserts that the district court clearly erred in
“crediting the design and engineering” of the confined animal
feeding use as evidence of compliance with zoning regula-
tions related to water contamination. Id. at 38. As it did con-
cerning odor mitigation, Amorak again urges that Danielski
did not call an engineer to testify, but, rather, the founder of
the agri-services and engineering firm Danielski engaged to
attain compliance with the regulations. Amorak further argues
that the district court erred in receiving the documentation
presented in conjunction with this testimony, over its hear-
say objections. As we explained above, in essence, Amorak
asks us to reweigh the evidence, but that is not our role. See
McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202,
959 N.W.2d 251 (2021). And we will not consider Amorak’s
claims that the district court erred in receiving the documenta-
tion presented because Amorak failed to assign admission of
evidence as error. Nebraska Republican Party v. Shively, 311

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Neb. 160, 971 N.W.2d 128 (2022) (appellate court does not
consider errors which are argued but not assigned).
V. CONCLUSION
We find the district court had jurisdiction over Amorak’s
appeal pursuant to §§ 23-114.01(5) and 25-1937 and In re
Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).
We further conclude that the district court did not err in finding
that Danielski demonstrated compliance with the zoning regu-
lations to support the issuance of the conditional use permit.
We therefore affirm.
Affirmed.