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Glasson v. Board of Equalization of City of Omaha

Supreme Court of Nebraska

April 12, 2019

Robert E. Glasson, appellant,
v.
Board of Equalization of the City of Omaha and the City of Omaha, appellees.

          1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decision made by the lower court.

         2. Special Assessments: Municipal Corporations: Appeal and Error. An appeal from a special assessment by a metropolitan-class city taken as specified in Neb. Rev. Stat. § 14-813 (Reissue 2012) means that proceedings from a district court shall be the same as an appeal from a county board, and under this section, that means an appeal is taken by a petition in error and the review is solely of the record made before the tribunal whose action is being reviewed.

         3. Statutes: Special Assessments: Words and Phrases: Appeal and Error. As a general rule, the word "shall" in a statute is considered mandatory and is inconsistent with the idea of discretion. Therefore, based on a plain reading of the statute, unless, as contemplated by Neb. Rev. Stat. § 14-101 (Reissue 2012), the Legislature or a city of the metropolitan class alters the procedure for a claimant or appellant to challenge a decision regarding an assessment, the procedure shall follow that which is specified in Neb. Rev. Stat. § 14-813 (Reissue 2012).

         4. Statutes: Appeal and Error. When a provision of a statute is plain and unambiguous on its face, an appellate court must apply the provision as written.

          Appeals from the District Court for Douglas County: W. Russell Bowie III, Judge. Affirmed.

          Jason E. Troia, of Doman, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant.

          Ryan J. Wiesen, Assistant Omaha City Attorney, for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

         [302 Neb. 870] HEAVICAN, C.J.

         INTRODUCTION

         This case involves a consolidated appeal in which Robert E. Glasson challenges the decision of the Douglas County District Court. The district court found that it lacked jurisdiction over the assessment decision made by the Board of Equalization of the City of Omaha exercising a quasi-judicial function pursuant to Neb. Rev. Stat. § 14-547 (Reissue 2012). The district court found that as a result of Glasson's failure to file an appeal bond with the city clerk within 20 days as required by Neb. Rev. Stat. § 14-813 (Reissue 2012), the court lacked jurisdiction over the appeal. We affirm.

         BACKGROUND

         On December 5, 2017, the city council for the City of Omaha sat as a board of equalization pursuant to § 14-547 to hear and determine complaints, to equalize assessments, and to correct special assessments as the law authorizes. The city council, while sitting as a board of equalization zoning board of appeals, approved special ordinance No. 10224. The special ordinance approved funding for the removal of litter from various parcels of real property located within the City of Omaha, Nebraska, including one parcel owned by Glasson involving two separate assessments: (1) "Item L-20 (Dump Fee)-Case No. CI 18-51 and CI 18-1316" (No. 428773) and (2) "Item L-21 (Litter-Structure)-Case No. CI 18-52 and CI 18-1318" (No. 392788).

         Glasson personally appeared before the board of equalization on December 5, 2017, to protest the proposed special [302 Neb. 871] assessment to be levied on his property. The board denied Glasson's protest. Following the board's denial, Glasson filed an appeal on January 3, 2018, regarding proposed assessments Nos. 428773 and 392788, under cases Nos. CI 18-51 and CI 18-52, before the city council had enacted the ordinance regarding the assessment.

         On January 23, 2018, the city council for the City of Omaha, pursuant to its authority under § 14-547, levied the special assessment, by ordinance, on Glasson's property.

         In addition to the public hearing held December 5, 2017, at which Glasson was present, the Douglas County treasurer sent Glasson a letter dated February 6, 2018. The letter was entitled "Special Assessment Levy Notification" and informed Glasson that he had until March 15 to remit payment of $978.

         Upon receipt of the Douglas County treasurer's "Special Assessment Levy Notification" letter, Glasson attempted to file an appeal at the Omaha city clerk's office on February 13, 2018, 21 days after the ordinance levying the property had passed. Glasson's filing was denied by the city clerk as untimely. On February 20, Glasson filed a petition in error and notice of appeal with the district court under cases Nos. CI 18-1316 and CI 18-1318.

         In reviewing Glasson's appeal, the district court found that there was one assessment of $978 for a dump fee (No. 428773) and one assessment of $1, 305 for litter removal (No. 392788), but that Glasson had filed four separate appeals regarding the two assessments. The court noted that assessments Nos. 428773 and 392788 were each assessed on January 23, 2018. Upon motion by the City of Omaha, the district court consolidated the four cases (cases Nos. CI 18-51, CI 18-52, CI 18-1316, and CI 18-1318) into one appeal. However, it does not appear that the court designated a specific docket number under which the cases were to continue.

         The district court noted that with regard to Glasson's January 3, 2018, appeals, docketed as cases Nos. CI 18-51 and CI 18-52, those appeals were filed before the ordinance [302 Neb. 872] assessing the levy was enacted. Because the ordinance had not been passed at the time of the January 3 filing, there was no final, appealable order upon which the ...


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