VALENTINE, Neb. — The future of a proposed wind farm in the Nebraska Sandhills is uncertain after the Cherry County Board of Adjustment upheld the zoning administrator’s findings that BSH Kilgore’s conditional use permit has expired and that several conditions tied to the project have not been met.

After hearing from both supporters and opponents of the project, the board voted three to two to uphold the decision. A key question was whether BSH Kilgore needed to complete the wind farm by Oct. 15, 2024—or simply begin construction by that date. The majority of board members agreed the project was supposed to be finished.

BSH Kilgore’s attorney argued that lawsuits filed against the project extended the deadline.

“Equitable tolling provides that however many months or years the permit was in litigation need to be added on to the development deadlines. We had no choice. We couldn’t build the project during the pendency of the appeals. Nebraska law is very clear. If you build during the pendency of an appeal, you do so at your own risk. If you lose, you have to tear down what you built,” BSH Kilgore Attorney Brian Barmettler said.

Opponents countered that while equitable tolling may apply in other states, it does not in Nebraska. They also argued that other conditions were never met.

“There was no contract or training with the local fire departments or irrevocable letter that had to be approved by our commissioners,” said Cherry County resident Carolyn Semin.

Another condition stated that all requirements had to be completed and approved by the Cherry County Board of Commissioners before construction began.

“We sent a detailed letter last October prior to the commencement of dirt work at the project. If there was time to act on Condition 12, it was time to act then, not now,” said Barmettler. “We informed them that the conditions were satisfied, and we would proceed with construction.”

News Channel Nebraska was at that meeting last fall when BSH Kilgore updated the project. Since the agenda item was only an update, no action was taken. But two of the three commissioners were clear that they believed the permit was expiring.

“I feel very strongly that you don’t have a permit come October 15,” said Commissioner Nina Nelson.

“It’s moot because you don’t have a permit as of Tuesday,” said Commissioner Mike McConaughey.

The board’s decision could mark the end of the project, though BSH Kilgore has the option to appeal to Cherry County District Court.

Board members Shane Daniels, R.J. Luthy and Orrin Schaeffer voted in favor of upholding the zoning administrator’s findings, while Kerry Keys and Gary Swanson opposed the motion.