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Burdess v. Washington County Board of Equalization

Supreme Court of Nebraska

November 3, 2017

William Burdess, appellant,
v.
Washington County Board of Equalization, appellee.

         1. 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.

         2. ___: ___: ___ . 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.

         Appeal from the Tax Equalization and Review Commission. Affirmed.

          Aaron F. Smeall, of Smith, Gardner & Slusky Law, L.L.P., for appellant.

          M. Scott Vander Schaaf, Washington County Attorney, and Emily A. Beamis for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          KELCH, J.

         I. NATURE OF CASE

         William 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.

         II. FACTS

         1. Valuation of Land and Protest

         This 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.

         Burdess 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.

         2. November 2016 Hearing

         (a) Value of Wasteland

         At the 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 significant value.

         On 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."[1] Accordingly, special value does not take into account urban development potential.

         The 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 ...


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