VALENTINE, Neb. — A proposed wind farm near Kilgore will be back in court as Cherry County officials ask a judge to dismiss a lawsuit tied to the project.

Cherry County, the Cherry County Board of Commissioners, the Cherry County Board of Adjustment and the county’s former zoning administrator are asking District Judge Mark Kozisek to dismiss the case filed by BSH Kilgore, the company behind the proposed wind farm.

As News Channel Nebraska has previously reported, BSH Kilgore is suing the county after officials determined the project’s conditional use permit had expired and that the company failed to meet all 12 conditions required for the wind farm.

Cherry County granted the permit in 2019 for a wind energy project about 25 miles west of Valentine. The project has since faced multiple legal challenges and a zoning complaint. Following an investigation, the county zoning administrator determined the permit expired Oct. 15, 2024, and that BSH Kilgore had not satisfied all permit requirements.

BSH Kilgore appealed that decision, but the Cherry County Board of Adjustment voted to uphold the zoning administrator’s findings.

In its motion to dismiss, the county argues that Nebraska law does not give boards of adjustment the authority to hear or decide appeals involving conditional use permits.

“Nebraska law strictly limits the authority of Boards of Adjustment regarding conditional use permits,” the county wrote in its brief, citing Nebraska Revised Statute § 23-168.03. The county argues the statute removes conditional use permit matters entirely from the board’s jurisdiction.

BSH Kilgore disputes that interpretation, arguing the Board of Adjustment acted within its statutory role by reviewing an enforcement decision made by a zoning official.

“Defendants challenge the Court’s jurisdiction by isolating a half sentence in § 23-168.03(1)(a) they claim disempowers the BOA any time a conditional use permit is involved. Defendants’ theory is incorrect. First, the full sentence in § 23-168.03(1)(a) only limits the BOA from reviewing initial decisions “grant[ing]” a conditional use permit “pursuant to section 23-114.01” (emphasis supplied). It does not restrict the BOA’s broad authority to review enforcement actions involving previously granted permits, as here. Second, legislative history confirms that reading: the Legislature only intended to protect the county board’s role in granting decisions, not to eliminate administrative review of subsequent enforcement. Third, Defendants’ theory would lead to absurd consequences, depriving landowners throughout the state of any remedy when officials misinterpret existing permits,” BSH Kilgore wrote in its brief.