VALENTINE, Neb. - The developers of a proposed wind farm near Kilgore have 30 days to respond to a zoning investigation that found their permit expired and that all required conditions had not been met.

As News Channel Nebraska previously reported, BSH Kilgore received a conditional use permit (CUP) in 2019 for a wind energy project about 25 miles west of Valentine. The project has since faced legal challenges and, more recently, a formal zoning complaint.

Cherry County Zoning Administrator Jane Stolzenburg presented her investigation findings during Tuesday’s commissioner meeting. She concluded that the CUP expired on Oct. 15, 2024, and that BSH Kilgore had not met all 12 conditions required under the permit.

County Attorney Eric Scott recommended giving the company 30 days to formally respond.

“Then you may want to consider the response. After consideration, then if you think some of the conditions have been violated, you issue an order to show cause, and we have a hearing,” said Scott.

All three commissioners voted in favor of that plan, but Commissioner Mike McConaughey questioned whether 30 days was too generous.

“We owe it to taxpayers and the other party to do it in a timely fashion,” McConaughey said.

McConaughey and Commissioner Nina Nelson also raised concerns about advice they received at an October meeting, when they were told the CUP would expire if no action was taken.

“I was tasked as a commissioner to uphold the regulations,” McConaughey said.

Scott responded, “You also took an oath to uphold the constitution.”

Nelson added, “We are here to uphold the regulations and listen to the public that has brought several complaints.”

A key part of the investigation focused on an email from 2020, in which then-Zoning Administrator Jessica Coyle and Marvin Planning Consultants confirmed the permit’s expiration date as Oct. 15, 2024.

Scott questioned whether that was sufficient.

“A non-lawyer, Keith Marvin, gave that opinion,” Scott said, noting that the email was sent around the same time litigation over the wind farm began.

Scott argued that the permit timeline could be extended due to a legal concept known as “tolling,” which he says allows extra time when a project is tied up in court.

“If you sue them, tie them up in court, and then deprive them of that time, that becomes a question of the Supreme Court of whether that’s fundamentally fair,” said Scott. “I think the Nebraska Supreme Court will acknowledge that you get a time out.”

McConaughey questioned whether Scott would be able to represent the board effectively if commissioners disagreed with his tolling interpretation.

Stolzenburg said she did make one update to her report: she located a copy of a check from BSH Kilgore, which had initially been cited as one of the unmet conditions.

The board is expected to revisit the matter after BSH Kilgore submits its response within the 30-day window.