Taxation: Judgments: Appeal and Error. An
appellate court reviews decisions rendered by the Tax
Equalization and Review Commission for errors appearing on
the record. When reviewing a judgment for errors appearing on
the record, an appellate court's inquiry is whether the
decision conforms to the law, is supported by competent
evidence, and is not arbitrary, capricious, or unreasonable.
___: ___ . An appellate court reviews questions of law
arising during appellate review of decisions by the Tax
Equalization and Review Commission de novo on the record.
from the Tax Equalization and Review Commission. Affirmed.
F. Smeall, of Smith, Gardner & Slusky Law, L.L.P., for
Scott Vander Schaaf, Washington County Attorney, and Emily A.
Beamis for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
Burdess filed a petition for review of an order made by the
Nebraska Tax Equalization and Review Commission (TERC), which
affirmed the valuation of the Washington [298 Neb. 167]
County Board of Equalization (Board) wasteland acres and
homesite acres owned by Burdess for tax years 2013 through
2016. On review, Burdess argues that Nebraska law requires
that wasteland acres be valued at $0 per acre and that the
valuation of his homesite acres is unreasonable because it is
not equalized with an allegedly comparable homesite property
located one-half mile away.
Valuation of Land and Protest
case involves two parcels of land owned by Burdess and
located in Washington County, Nebraska. Both parcels consist
of agricultural land, a homesite, a secondary building, and
wasteland. The first parcel contains 80 acres of land, 25.56
of which the parties have stipulated are wasteland. The
second parcel contains 60 acres of land, 29.12 of which the
parties have stipulated are wasteland. The wasteland on
Burdess' two properties, along with all other wasteland
in Washington County, was assessed at $290 per acre for tax
year 2013, $335 per acre for tax year 2014, and $450 per acre
for tax years 2015 and 2016. The homesite acres were assessed
at $41, 000.
protested the 2013 through 2016 assessed values of the two
parcels to the TERC, arguing that the wasteland should be
valued at $0 and that the homesite acres should be assessed
at a value no higher than another homesite (the "Sully
property") one-half mile away. A hearing was held in
November 2016, and evidence was received.
November 2016 Hearing
Value of Wasteland
hearing, Burdess testified that the wasteland was not
cultivatable or profitable, but was instead used for mushroom
hunting and walnut-tree harvesting. Burdess testified that he
permitted family members and friends to hunt and gather
mushrooms on the land, but did not charge anyone any money
[298 Neb. 168] to do so. Burdess also testified that he had
earned approximately $7, 500 over the past 50 years selling a
few walnut trees on the property, none of which was earned
during the tax years at issue. Burdess testified that he had
some immature walnut trees still on the property, but that it
takes 75 to 100 years for the trees to mature and have any
behalf of the Board, the Washington County assessor testified
at the hearing. He explained that because Burdess had elected
"special value, " Burdess' wasteland acres were
not valued according to their market value, but according to
their special value. "Special valu[e]" is the
"value that land would have for agricultural or
horticultural purposes or uses without regard to the actual
value the land would have for other purposes or
uses." Accordingly, special value does not
take into account urban development potential.
assessor testified that in order to determine the special
value for properties in Washington County, he looked to the
values of property in other counties, such as Burt County,
Nebraska, where there is less development potential. The
assessor testified that he assessed the wasteland acres based
upon actual sales of farmland containing wasteland acres in
Burt County and then increased the per acre ...