23-114.01 County planning commission; appointment; qualifications; terms; vacancies; compensation; expenses; powers; duties; appeal. - Nebraska Statutes

23-114.01. County planning commission; appointment;qualifications; terms; vacancies; compensation; expenses; powers; duties;appeal.(1) In order to avail itself of the powers conferredby section 23-114, the county board shall appoint a planning commission tobe known as the county planning commission. The members of the commissionshall be residents of the county to be planned and shall be appointed withdue consideration to geographical and population factors. Since the primaryfocus of concern and control in county planning and land-use regulatory programsis the unincorporated area, a majority of the members of the commission shallbe residents of unincorporated areas, except that this requirement shall notapply to joint planning commissions. Members of the commission shall holdno county or municipal office, except that a member may also be a member ofa city, village, or other type of planning commission. The term of each membershall be three years, except that approximately one-third of the members ofthe first commission shall serve for terms of one year, one-third for termsof two years, and one-third for terms of three years. All members shall holdoffice until their successors are appointed. Members of the commission maybe removed by a majority vote of the county board for inefficiency, neglectof duty, or malfeasance in office or other good and sufficient cause uponwritten charges being filed with the county board and after a public hearinghas been held regarding such charges. Vacancies occurring otherwise than throughthe expiration of terms shall be filled for the unexpired terms by individualsappointed by the county board. Members of the commission shall be compensatedfor their actual and necessary expenses incurred in connection with theirduties in an amount to be fixed by the county board. Reimbursement for mileageshall be made at the rate provided in section 81-1176. Each county board mayprovide a per diem payment for members of the commission of not to exceedfifteen dollars for each day that each such member attends meetings of thecommission or is engaged in matters concerning the commission, but no membershall receive more than one thousand dollars in any one year. Such per diempayments shall be in addition to and separate from compensation for expenses.(2) The commission: (a) Shall prepare and adopt as its policy statementa comprehensive development plan and such implemental means as a capital improvementprogram, subdivision regulations, building codes, and a zoning resolution;(b) shall consult with and advise public officials and agencies, public utilities,civic organizations, educational institutions, and citizens relating to thepromulgation of implemental programs; (c) may delegate authority to any ofthe groups named in subdivision (b) of this subsection to conduct studiesand make surveys for the commission; and (d) shall make preliminary reportson its findings and hold public hearings before submitting its final reports.The county board shall not hold its public meetings or take action on mattersrelating to the comprehensive development plan, capital improvements, buildingcodes, subdivision development, or zoning until it has received the recommendationsof the commission.(3) The commission may, with the consent of the governing body, in itsown name: Make and enter into contracts with public or private bodies; receivecontributions, bequests, gifts, or grants of funds from public or privatesources; expend the funds appropriated to it by the county board; employ agentsand employees; and acquire, hold, and dispose of property. The commissionmay, on its own authority: Make arrangements consistent with its program;conduct or sponsor special studies or planning work for any public body orappropriate agency; receive grants, remuneration, or reimbursement for suchstudies or work; and at its public hearings, summon witnesses, administeroaths, and compel the giving of testimony.(4) In all counties in the state, the county planning commission maygrant conditional uses or special exceptions to property owners for the useof their property if the county board of commissioners or supervisors hasofficially and generally authorized the commission to exercise such powersand has approved the standards and procedures the commission adopted for equitablyand judiciously granting such conditional uses or special exceptions. Thegranting of a conditional use permit or special exception shall only allowproperty owners to put their property to a special use if it is among thoseuses specifically identified in the county zoning regulations as classificationsof uses which may require special conditions or requirements to be met bythe owners before a use permit or building permit is authorized. The applicantfor a conditional use permit or special exception for a livestock operationspecifically identified in the county zoning regulations as a classificationof use which may require special conditions or requirements to be met withinan area of a county zoned for agricultural use may request a determinationof the special conditions or requirements to be imposed by the county planningcommission or by the county board of commissioners or supervisors if the boardhas not authorized the commission to exercise such authority. Upon requestthe commission or board shall issue such determination of the special conditionsor requirements to be imposed in a timely manner. Such special conditionsor requirements to be imposed may include, but are not limited to, the submissionof information that may be separately provided to state or federal agenciesin applying to obtain the applicable state and federal permits. The commissionor the board may request and review, prior to making a determination of thespecial conditions or requirements to be imposed, reasonable information relevantto the conditional use or special exception. If a determination of the specialconditions or requirements to be imposed has been made, final permit approvalmay be withheld subject only to a final review by the commission or countyboard to determine whether there is a substantial change in the applicant'sproposed use of the property upon which the determination was based and thatthe applicant has met, or will meet, the special conditions or requirementsimposed in the determination. For purposes of this section, substantial changeshall include any significant alteration in the original application includinga significant change in the design or location of buildings or facilities,in waste disposal methods or facilities, or in capacity.(5) The power to grant conditional uses or special exceptions as setforth in subsection (4) of this section shall be the exclusive authority ofthe commission, except that the county board of commissioners or supervisorsmay choose to retain for itself the power to grant conditional uses or specialexceptions for those classifications of uses specified in the county zoningregulations. The county board of commissioners or supervisors may exercisesuch power if it has formally adopted standards and procedures for grantingsuch conditional uses or special exceptions in a manner that is equitableand which will promote the public interest. In any county other than a county in whichis located a city of the primary class, an appeal of a decisionby the county planning commission or county board of commissioners or supervisorsregarding a conditional use or special exception shall be made to the districtcourt. In any county in whichis located a city of the primary class, an appeal of a decision by the countyplanning commission regarding a conditional use or special exception shallbe made to the county board of commissioners or supervisors, and an appealof a decision by the county board of commissioners or supervisors regardinga conditional use or special exception shall be made to the district court.(6) Whenever a county planning commission or county board is authorizedto grant conditional uses or special exceptions pursuant to subsection (4)or (5) of this section, the planning commission or county board shall, withits decision to grant or deny a conditional use permit or special exception,issue a statement of factual findings arising from the record of proceedingsthat support the granting or denial of the conditional use permit or specialexception. If a county planning commission's role is advisory to the countyboard, the county planning commission shall submit such statement with itsrecommendation to the county board as to whether to approve or deny a conditionaluse permit or special exception. SourceLaws 1967, c. 117, § 2, p. 366; Laws 1975, LB 410, § 22; Laws 1978, LB 186, § 8; Laws 1981, LB 204, § 21; Laws 1982, LB 601, § 1; Laws 1991, LB 259, § 1; Laws 1996, LB 1011, § 6; Laws 2003, LB 754, § 3; Laws 2004, LB 973, § 3; Laws 2010, LB970, § 1.Effective Date: July 15, 2010AnnotationsSubsection (5) of this section provides for a right of appeal to the district court from a decision by the county planning commission or county board of commissioners or supervisors, without setting forth any procedure for prosecuting the appeal. Therefore, the appeal procedure in section 25-1937 is also implicated. In re Application of Olmer, 275 Neb. 852, 752 N.W.2d 124 (2008).If there is a conflict between a comprehensive plan and a zoning ordinance, the latter is controlling when questions of a citizen's property rights are at issue. Stones v. Plattsmouth Airport Authority, 193 Neb. 552, 228 N.W.2d 129 (1975).