Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/01/2018 09:08 AM CDT




                                                       - 422 -
                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                        BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                                          Cite as 299 Neb. 422




                                  Butler County Landfill, Inc., appellee,
                                       v. Butler County Board of
                                          Supervisors, appellant.
                                                   __ N.W.2d ___

                                        Filed March 23, 2018.    No. S-17-276.

                1.	 Judgments: 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 from the lower court’s decision.
                2.	 Jurisdiction: Appeal and Error. Before reaching the legal issues
                    presented for review, it is the duty of an appellate court to determine
                    whether it has jurisdiction over the matter before it.
                3.	 ____: ____. 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 ques-
                    tion presented to the lower court.
                4.	 Political Subdivisions: Final Orders: Appeal and Error. A district
                    court order setting aside, annulling, vacating, or reversing a siting
                    approval decision in a review pursuant to Neb. Rev. Stat. § 13-1712
                    (Reissue 2012) is a final order.
                5.	 Jurisdiction: Appeal and Error. An appellate court and the tribu-
                    nal appealed from do not have jurisdiction over the same case at the
                    same time.
                6.	 Political Subdivisions: Jurisdiction: Time: Appeal and Error. A
                    failure to comply with the requirement under Neb. Rev. Stat. § 13-1712
                    (Reissue 2012) to petition for a hearing before the district court within
                    60 days after notice of the siting body’s decision deprives the district
                    court of jurisdiction to review a siting approval decision.

                 Appeal from the District Court for Butler County: M ary C.
               Gilbride, Judge. Appeal dismissed.
                             - 423 -
          Nebraska Supreme Court A dvance Sheets
                  299 Nebraska R eports
     BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                       Cite as 299 Neb. 422

  Kristopher J. Covi and Steven P. Case, of McGrath, North,
Mullin & Kratz, P.C., L.L.O., and Julie L. Reiter, Butler
County Attorney, for appellant.
   Robert H. Epstein and Ryan C. Hardy, of Spencer Fane,
L.L.P., and Stephen D. Mossman, of Mattson Ricketts Law
Firm, for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
  Miller-Lerman, J.
                      NATURE OF CASE
   The Butler County Board of Supervisors (the Board)
appeals from the order of the district court for Butler County
which reversed the Board’s decision to deny an application by
Butler County Landfill, Inc. (BCL), to expand its solid waste
disposal landfill area located in Butler County, Nebraska. We
conclude that the district court lacked jurisdiction to enter
the February 7, 2017, order from which this appeal is taken
and that, consequently, we lack jurisdiction over this appeal.
We therefore vacate the district court’s order and dismiss
this appeal.
                  STATEMENT OF FACTS
   BCL, a wholly owned subsidiary of Waste Connections
of Nebraska, Inc., operates a solid waste landfill located in
Butler County near David City, Nebraska. The landfill has
been in existence since 1986, and an expansion of the landfill
was approved in 1992 which allowed it to accept solid waste
from other counties. The record indicates that by 2015, BCL
was accepting solid waste from 15 to 20 counties in eastern
Nebraska and some additional counties outside Nebraska.
   BCL determined that it needed to expand the solid waste
landfill area in Butler County. Neb. Rev. Stat. §§ 13-1701
to 13-1714 (Reissue 2012) are the statutes that govern sit-
ing approval procedures for solid waste disposal areas and
                              - 424 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
     BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                       Cite as 299 Neb. 422

solid waste processing facilities. These statutes indicate that if
denied, an applicant for siting approval can reapply after the
passage of 2 years. See § 13-1711.
   As required by § 13-1702, BCL filed a request for siting
approval with the Board on July 6, 2015. In its request, BCL
asserted, inter alia, that as the scope of the area it served has
expanded, the amount of solid waste it accepted had increased.
BCL asserted that in the mid-1990’s, it had accepted approxi-
mately 100,000 tons of solid waste per year; that by 2015, it
accepted approximately 550,000 tons of solid waste per year;
and that it projected that by 2020, it would receive 800,000
tons of solid waste per year. The size of the expanded landfill
approved in 1992 was 144.79 acres. In the July 6 request, BCL
sought approval to further expand into a 160-acre parcel of
land it had purchased that was contiguous to the south side of
its existing landfill.
   As required by § 13-1706, the Board, on October 28, 2015,
held a public hearing on BCL’s request. Part of the purpose of
a public hearing under § 13-1706 is to “develop a record suf-
ficient to form the basis of an appeal of the decision.” At the
public hearing, the Board heard testimony by representatives
of BCL and by members of the public, including those who
favored and those who opposed BCL’s request.
   Following the public hearing and a written comment period
which served to supplement the record of the public hearing,
the Board met on December 14, 2015, to deliberate BCL’s
request. At that meeting, the Board considered, inter alia, the
statutory criteria for siting approval set forth in § 13-1703,
which provides that “[s]iting approval shall be granted only
if the proposed area or facility meets all of” six specified
criteria. The record of the deliberations shows that the Board
considered in turn whether each criterion had been shown.
At the end of the Board’s discussion of each criterion, a poll
was taken of the seven supervisors as to whether each super-
visor thought that specific criterion had been met. Based on
the polling of supervisors during the meeting, all supervisors
                              - 425 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
     BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                       Cite as 299 Neb. 422

agreed that three of the six criteria had been met, and all
supervisors agreed that one criterion had not been met. With
respect to the two remaining criteria, the votes were split,
with a majority voting in each case that the criteria had not
been met.
   At the end of the discussion, based on the polling as to
each criterion, a supervisor moved to deny the application,
another supervisor seconded the motion, and the Board unani-
mously voted to deny the application. The supervisors there-
after signed a document titled “Decision Regarding Siting
Approval,” which set forth the procedures that had been fol-
lowed with regard to BCL’s application and which concluded
that “[b]ased upon the finding that [BCL] has failed to meet
all criteria required to be met under [§] 13-1703 it was moved
. . . and seconded . . . that the [BCL application] be denied.
Upon roll call vote, the motion was unanimously passed.” This
December 14, 2015, written decision did not specify which
criteria were not met and did not further set forth reasons for
the decision.
   On February 10, 2016, BCL filed a petition in the district
court for Butler County seeking judicial review, pursuant to
§ 13-1712, of the Board’s denial of its siting application. At
a hearing on the petition held on March 21, the district court
received into evidence a transcript of the public hearing held
October 28, 2015; the exhibits received at the public hearing; a
transcript of the Board’s December 14, 2015, meeting; and the
Board’s decision dated December 14, 2015.
   After an additional hearing, the district court on June 17,
2016, filed a journal entry in which it referred to § 13-1712,
which requires that “the district court shall consider the writ-
ten decision and reasons for the decision of the . . . county
board and the transcribed record of the hearing held pursu-
ant to [§] 13-1706.” The court concluded that in addition to
a written decision and a transcript of the public hearing, the
statute required the Board to “make a written statement of the
reasons for its decision.” The court stated that in this case, the
                             - 426 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
     BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                       Cite as 299 Neb. 422

Board “simply found that [BCL] had failed to demonstrate the
statutory requirements but did not specify any of its reasons
for reaching that conclusion.” Although the district court’s
jurisdiction was conferred under § 13-1712, rather than under
the Administrative Procedure Act, the court cited cases under
the Administrative Procedure Act regarding a failure “to make
findings of fact and conclusions of law.” The court concluded
its June 17 journal entry with the following paragraph, which
was titled “Remand”:
         The failure of the [B]oard to make specific fact find-
      ings as required by statute, necessitates that the order
      entered December 14, 2015 be set aside and the matter
      remanded to the . . . Board . . . with directions to make
      findings of fact supporting the order which they shall
      issue within thirty days of this remand.
For completeness, we note that because we lack jurisdiction
over this appeal, we make no comment regarding the cor-
rectness of the district court’s reading of the requirements of
§ 13-1712.
   On July 14, 2016, the Board filed in the district court a
“Notice of Compliance” stating that it had complied with
the court’s order. The Board attached to the filing a certi-
fied copy of a resolution passed by the Board on July 13
in which it stated that it had denied BCL’s application by
a unanimous vote and that it was adopting findings of fact
“in further support of its denial” of BCL’s application. In a
document attached to the resolution, the Board stated that
the supervisors unanimously determined that BCL satisfied
three criteria, that the supervisors unanimously determined
that BCL failed to satisfy one criterion, and that a majority of
the supervisors determined that BCL failed to satisfy the two
remaining criteria. The Board set forth its reasons for each of
these determinations.
   After the Board adopted the resolution on July 13, 2016,
BCL did not file a new petition for judicial review pursuant
to § 13-1712. Nevertheless, after the Board filed its notice of
                             - 427 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
     BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                       Cite as 299 Neb. 422

compliance, the district court held a hearing on October 25 and
received briefing. At the conclusion of the hearing, the court
stated that it was taking the matter under advisement.
   On February 7, 2017, the district court filed an order in
which it reversed the Board’s decision to deny the application
and remanded the matter to the Board with directions for the
Board to approve BCL’s application. In the February 7 order,
the court specifically addressed each of the three criteria that
the Board or a majority of the Board had determined BCL
had not met. The court cited evidence from the record and
determined as to each criterion that the Board’s finding that
the criterion was not met was in error. The court concluded
that the Board’s denial of BCL’s application “was not based
on competent evidence in the record, was contrary to law and
was arbitrary and capricious.” The court further concluded that
based on the application, the record, and the relevant evidence,
the Board should have approved BCL’s application. The court
therefore reversed the Board’s order denying BCL’s applica-
tion and remanded the matter to the Board with directions to
approve the application.
   The Board appeals the February 7, 2017, order.
                ASSIGNMENT OF ERROR
  The Board claims that the district court erred when it deter-
mined that the Board acted arbitrarily and capriciously when it
denied BCL’s application.
                   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 from the lower court’s decision. Campbell v.
Hansen, 298 Neb. 669, 905 N.W.2d 519 (2018).
                           ANALYSIS
    [2,3] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
                              - 428 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
     BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                       Cite as 299 Neb. 422

jurisdiction over the matter before it. Rafert v. Meyer, 298 Neb.
461, 905 N.W.2d 30 (2017). 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. Kozal v. Nebraska Liquor Control Comm., 297
Neb. 938, 902 N.W.2d 147 (2017).
   Prior to our moving this case to our docket, the Nebraska
Court of Appeals conducted a jurisdictional review. Following
that review, the Court of Appeals issued an order to show
cause in which it stated that a question existed “as to how BCL
came back before the District Court following the court’s June
17[, 2016,] order vacating the December 14, 2015 decision and
remand back to the Board.” The Court of Appeals stated that
there was no indication in the record on appeal that BCL had
filed a new petition in the district court after the Board issued
its findings of fact and restated its decision to deny BCL’s
application. The Court of Appeals further stated that there was
a question whether a second petition was necessary given the
nature of the district court’s remand. In its response to the
order to show cause, BCL conceded that no second petition
had been filed, but BCL asserted that a second petition was
not necessary. Based on BCL’s response, the Court of Appeals
directed the parties “to include and address in their briefs the
issue of whether a second petition was required following
the District Court’s order requiring the Board to make find-
ings of facts and the Board’s subsequent compliance with the
Court’s order.”
   The parties briefed the jurisdictional issue, and we granted
BCL’s petition to bypass the Court of Appeals. We now con-
sider the jurisdictional issue. As explained below, we conclude
that we do not have jurisdiction over this appeal, because the
district court did not have jurisdiction when it entered the
February 7, 2017, order, from which the Board appeals. The
district court’s June 17, 2016, order returned jurisdiction to
the Board, and the district court was divested of jurisdiction.
                              - 429 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
     BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                       Cite as 299 Neb. 422

After the Board acted on the district court’s order, BCL took
no action to again vest jurisdiction in the district court, and
as a consequence, the district court’s rulings after its June 17
remand were issued without authority.
   As noted above, BCL filed a timely petition under § 13-1712
for the district court to review the Board’s December 14, 2015,
order denying BCL’s application. The district court took action
on that petition on June 17, 2016, when it determined that
the Board had failed to make specific written findings of fact
which the court believed were required by statute. The court
thereby effectively concluded that the Board’s order did not
conform to the law. The court therefore ordered the Board’s
December 14, 2015, order to be “set aside and the matter
remanded to the . . . Board . . . with directions to make findings
of fact supporting the order which they shall issue within thirty
days of this remand.” In the order, the district court “set aside”
the Board’s order and remanded the matter to the Board for
further action, but the district court did not explicitly purport
to reserve jurisdiction in itself.
   After the Board complied with the order and filed its notice
of compliance in the district court, the parties and the district
court proceeded upon the apparent assumption that the district
court had acquired jurisdiction at the time BCL had filed its
petition for review of the December 14, 2015, order and that
the district court continued to exercise jurisdiction. Given
certain inferences in the language of the June 17, 2016, order,
this assumption might have seemed reasonable; on remand, the
Board acted within the timeframe set forth by the court in the
June 17 order, and the court promptly continued with proceed-
ings in the case after the Board gave notice of its compliance.
However, the assumption does not comport with the facts or
applicable law, and we must therefore determine in this case
which body—the district court or the Board—had jurisdiction
at what time.
   [4] We note first that the court in the June 17, 2016,
order stated that the Board’s failure to make findings of fact
                             - 430 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
     BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                       Cite as 299 Neb. 422

“necessitate[d] that the order entered December 14, 2015 be
set aside and the matter remanded” to the Board. Black’s Law
Dictionary 1580 (10th ed. 2014) defines “set aside” as “to
annul or vacate (a judgment, order, etc.).” It has been stated
that in an appeal to the district court by petition in error
pursuant to Neb. Rev. Stat. §§ 25-1901 to 25-1908 (Reissue
2016), a judgment of the district court reversing an inferior
tribunal is a final order. See County of Douglas v. Burts, 2
Neb. App. 90, 507 N.W.2d 310 (1993) (citing Tootle, Hosea
& Co. v. Jones, 19 Neb. 588, 27 N.W. 635 (1886)). We simi-
larly conclude that a district court order setting aside, annul-
ling, vacating, or reversing a siting approval decision in a
review pursuant to § 13-1712 is a final order. In Tri-County
Landfill v. Board of Cty. Comrs., 247 Neb. 350, 526 N.W.2d
668 (1995), we held that in conformity with Neb. Rev. Stat.
§ 25-1911 (Reissue 2016), in an appeal of a siting approval
case under §§ 13-1701 to 13-1714, a judgment rendered
or final order made by the district court may be reversed,
vacated, or modified for errors appearing on the record.
Applying the foregoing principles of law, the district court’s
June 17, 2016, order, which vacated the Board’s decision,
was a judgment under § 13-1712, and when it was not timely
appealed, it became final.
   In further support of our jurisdictional analysis, we note
that the district court remanded the matter to the Board, and
when the Board entered an order in compliance with the order
of remand, the district court lost its power to further modify
its order and, by extension, lost its power to act on this case.
We have said:
         The jurisdiction of the supreme court over its own
      judgments and orders is, in general, the same as that
      of any other court of record, and hence it may alter or
      modify such judgments or orders and correct its mandates
      accordingly at any time during the term at which they
      are rendered, unless its mandate has been filed and acted
      upon in the lower court prior to the end of the term.
                             - 431 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
     BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                       Cite as 299 Neb. 422

Horton v. State, 63 Neb. 34, 38, 88 N.W. 146, 147 (1901).
Likewise, when the district court remands a matter and the
body to which the matter was remanded acts on that order, the
district court’s power to modify its order ceases. See County of
Douglas v. Burts, supra.
   [5] Finally, we observe that it would be inconsistent with
our jurisprudence for the Board and the district court to have
jurisdiction over the matter at the same time. As a general
proposition, an appellate court and the tribunal appealed from
do not have jurisdiction over the same case at the same time.
Currie v. Chief School Bus Serv., 250 Neb. 872, 553 N.W.2d
469 (1996). See State Bank of Beaver Crossing v. Mackley,
118 Neb. 734, 735, 226 N.W. 318, 318 (1929) (“[i]t is not
conceivable that both the supreme court and the district court
could at the same time have jurisdiction of this cause”). See,
also, County of Douglas v. Burts, supra. We find this concept
to be applicable as between the tribunal that tries a matter
and the court that reviews or hears appeals from that tribu-
nal’s decisions. In this case, the Board acted like a tribunal
with regard to the siting approval decision under §§ 13-1701
to 13-1714.
   [6] Returning to the facts in this case, the Board filed its
decision to deny BCL’s application on December 14, 2015,
and BCL vested jurisdiction in the district court when it filed
its petition for review pursuant to § 13-1712. The district
court lost jurisdiction when it set aside the Board’s order
and remanded the matter to the Board on June 17, 2016.
The Board necessarily had jurisdiction on July 13, when it
adopted the resolution of that date. The record shows, and
BCL concedes, that after the Board adopted the resolution
on July 13, BCL did not within 60 days after notice of the
decision file a new petition for a hearing before the district
court, as required under § 13-1712. We hold that a failure to
comply with the requirement under § 13-1712 to petition for
a hearing before the district court within 60 days after notice
of the siting body’s decision deprives the district court of
                              - 432 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
     BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                       Cite as 299 Neb. 422

jurisdiction to review a siting approval decision. See, simi-
larly, Schaffer v. Cass County, 290 Neb. 892, 863 N.W.2d 143
(2015) (determining that failure to file appeal within 30 days
of judgment or final order as required for review on petition in
error under § 25-1901 deprives district court of jurisdiction to
hear appeal). We note that § 13-1712 specifically requires “the
applicant” to file a petition; hence, the Board’s act of filing its
notice of compliance in the district court on July 14 could not
satisfy the requirement under § 13-1712 that “the applicant
. . . petition for a hearing.” We reject any suggestion that the
Board’s filing of its notice of compliance in the district court
caused the district court to reacquire jurisdiction after it had
remanded the matter to the Board.
    As noted above, in Tri-County Landfill v. Board of Cty.
Comrs., 247 Neb. 350, 526 N.W.2d 668 (1995), we held that
pursuant to § 25-1911, in an appeal siting approval case under
§§ 13-1701 to 13-1714, a judgment rendered or final order
made by the district court may be reversed, vacated, or modi-
fied for errors appearing on the record. In an appeal authorized
by § 25-1911, a party must follow the procedural requirements
of Neb. Rev. Stat. § 25-1912 (Reissue 2016), including the
requirement to file a notice of appeal within 30 days of the
district court’s decision, in order to vest jurisdiction in the
appellate courts. The notice of appeal in this case was filed in
the district court on March 3, 2017. Such notice was obviously
not timely to give this court jurisdiction to review the June 17,
2016, order. Instead, the notice of appeal purports to appeal
from the district court’s February 7, 2017, order. However,
because the district court did not have jurisdiction to enter
that order, we consequently do not have jurisdiction to hear
this appeal.
    When an appellate court is without jurisdiction to act, the
appeal must be dismissed. Kozal v. Nebraska Liquor Control
Comm., 297 Neb. 938, 902 N.W.2d 147 (2017). However, an
appellate court has the power to determine whether it lacks
jurisdiction over an appeal because the lower court lacked
                             - 433 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
     BUTLER CTY. LANDFILL v. BUTLER CTY. BD. OF SUPERVISORS
                       Cite as 299 Neb. 422

jurisdiction to enter the order; to vacate a void order; and, if
necessary, to remand the cause with appropriate directions. Id.
Having determined that we lack jurisdiction over this appeal,
we vacate the district court’s February 7, 2017, order, which
the district court was without jurisdiction to enter, and we
remand the cause to the district court with directions to dismiss
for lack of jurisdiction.
                          CONCLUSION
   On June 17, 2016, the district court “set aside” the Board’s
December 14, 2015, decision denying BCL’s siting application
and remanded the matter to the Board to make findings of
fact. As a result of this order, jurisdiction was returned to the
Board. After the Board acted on the remand, no petition was
filed that would have again vested the district court with juris-
diction. We therefore conclude that the district court lacked
jurisdiction to enter the February 7, 2017, order appealed in
this case, and consequently, we lack jurisdiction over this
appeal. As a result, we vacate the district court’s February 7,
2017, order and dismiss this appeal.
                                               A ppeal dismissed.
   K elch, J., not participating in the decision.
   Wright, J., not participating.
