Legal Memorandum: County's Permit Decision Standard of Review

Issue: Under Nebraska law, what is the standard of review in an action seeking to enjoin a county board’s permit?

The district court may review the County Board’s permitting decision and potentially grant the requested injunction because the Board essentially made a quasi-judicial decision as an administrative body.  A more stringent standard of review and greater deference to a municipal board’s discretion apply when a board engages in the legislative duties of enacting ordinances.  Court review is also allowed under Neb. Rev. Stat. § 23-114.05, which empowers a court to enjoin zoning violations and to compel officials’ specific performance of their duties.

The court will overturn a county board’s decision only if it is illegal or unsupported by the evidence before the Board, and thus is arbitrary, unreasonable or clearly wrong.  The County Board’s decision is not entitled to any presumption that it was made to promote the public good. 

The district court’s authority require county officials to comply with the proper permitting process based on alleged errors in issuance of the permit stems from Neb. Rev. Stat. § 23-114.05 (2000), which states:

[T]he county board or the proper local authorities of the county, as well as any owner . . .  of real estate within the district affected by the regulations, may institute any appropriate action . . . to prevent such unlawful construction . . . or use, to restrain . . . or to prevent the illegal act . . . 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 . . .

Municipal […]