LINCOLN COUNTY BOARD OF EQUALIZATION, APPELLANT, V. WESTERN TABOR RANCH APARTMENTS, LLC, APPELLEE.
Nos. S-22-665 through S-22-667
Nebraska Supreme Court
June 23, 2023
314 Neb. 582
FREUDENBERG, J.
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 06/23/2023 09:07 AM CDT
Real Estate: Valuation. The appraisal of real estate is not an exact science and is largely a matter of opinion without a precise yardstick for determination. - Taxation: Real Estate: Valuation. Generally, a county assessor may determine actual value using (1) the sales comparison approach under
Neb. Rev. Stat. § 77-1371 (Reissue 2018) , (2) the income approach, (3) the cost approach, or (4) any professionally accepted mass appraisal method. - Taxation: Real Estate: Valuation: Appeal and Error. Under
Neb. Rev. Stat. § 77-1502 (Cum. Supp. 2016 & Reissue 2018) , рroperty owners may protest a county assessor‘s determination of actual value to the county board of equalization. - Taxation: Real Estate: Appeal and Error. Decisions of the county board of equalization may be appealed to the Tax Equalization and Review Commission.
- Taxation: Real Estate: Presumptions: Appeal and Error. On appeal from the county board of equalization, there is a presumption that a board of equalization has faithfully performed its official duties in making an assessment and has acted upon sufficient competent evidence to justify its aсtion.
- Taxation: Real Estate: Evidence: Proof: Appeal and Error. Once competent evidence is adduced to show that the order, decision, determination, or action of the county board of equalization is incorrect, a property owner retains the burden to show by clear and convincing evidence that the county board‘s decision was arbitrary or unreasonable.
Judgments: Words and Phrases. A decision is arbitrary when it is made in disregard of the facts or circumstances and without some basis which would lead a reasonable person to the same conclusion. - Judgments: Evidence: Words and Phrases. A decision is unreasonable only if the evidence presented leaves no room for differences of opinion among reasonable minds.
- Taxation: Judgments: Appeal and Error. On appeal from a decision of the Tax Equalization and Review Commission, an appellate court reviews for errors appearing on the record.
- Judgments: Appeal and Error. 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 neither arbitrary, capricious, nor unreasonable.
- Taxation: Real Estate: Valuation: Legislature. The Legislature found in
Neb. Rev. Stat. § 77-1333(2)(d) (Reissue 2018) that of all the professionally accepted mass appraisal methodologies, which include the sales comparison approach, the income approach, and the cost approach, the utilization of the income-approach methodology results in the most accurate determination of the actual value of rent-restricted housing projects. - Taxation: Real Estate: Valuation: Time. To facilitate the income-approach calculation under
Neb. Rev. Stat. § 77-1333 (Reissue 2018) ,§ 77-1333(5) provides in relevant part that the owner оf a rent-restricted housing project shall file a statement electronically on a form prescribed by the Tax Commissioner with the Rent-Restricted Housing Projects Valuation Committee on or before July 1 of each year that details actual income and actual expense data for the prior year. - _____: _____: _____: _____. When utilizing the income-approach methodology, nothing in
Neb. Rev. Stat. § 77-1333 (Reissue 2018) permits the use of actual income and actual expense data from years other than the prior year as specified in§ 77-1333(5) . - _____: _____: _____: _____. Nowhere in
Neb. Rev. Stat. § 77-1333 (Reissue 2018) is it contemplated that a county assessor may usе multiple years of data in determining the actual value of property when using the income approach. - Statutes: Legislature: Intent. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.
- Statutes: Words and Phrases. The general rule is that in the construction of statutes, the word “shall” is considered mandatory and inconsistent with the idea of discretion.
Taxation: Real Estate: Valuation: Time. In calculating the actual valuе of rent-restricted housing projects for each assessment year using the income approach, Neb. Rev. Stat. § 77-1333 (Reissue 2018) requires a county assessor to use income and expense data from the prior year only, which is timely filed as described in subsection (5), and to use no income or expense data from other years.- _____: _____: _____: _____. Reusing an income approach valuation from a prior year, calculated in violation of the mandates of
Neb. Rev. Stat. § 77-1333 (Reissue 2018) , is not a professionally accepted mass appraisal method. - Taxation: Real Estate: Valuation: Appeal and Error. Under
Neb. Rev. Stat. §§ 77-201(1) ,77-5007(14) , and77-5016(8) (Reissue 2018) , the Tax Equalization and Review Commission has the power and duty to dеtermine on appeal whether the income approach would result in actual value and to substitute whatever method it deems suitable to determine actual value. - Taxation: Valuation: Evidence. When an independent appraiser using professionally approved methods of mass appraisal certifies that an appraisal was performed according to professional standards, the appraisal is considered competent evidence under Nebraska law.
- Appeal and Error. To be considered by an аppellate court, an alleged error must be both specifically assigned and specifically argued in the brief.
Appeals from the Tax Equalization and Review Commission. Affirmed.
Carly L. Bahramzad and John P. Weis, of O‘Neill, Heinrich, Damkroger, Bergmeyer & Shultz, P.C., L.L.O., for appellant.
Stephen B. King, Deputy Lincoln County Attorney, for appellee.
Patrick F. Condon, Lancaster County Attorney, and Daniel J. Zieg for amicus curiae Lancaster County, Nebraska.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, PAPIK, and FREUDENBERG, JJ., and LEE, District Judge.
I. INTRODUCTION
The Nebraska Tax Equalization and Review Commission (TERC) reversed three decisions of the Lincoln County Board of Equalization (the Board) upholding the assessed value of a rent-restricted housing property for the 2018, 2019, and 2020 tax years. The Board appeals, arguing that
II. BACKGROUND
In 2017, Western Tabor Ranch Apartments, LLC (Western Tabor), acquired a 49-unit apartment complex in North Platte, Lincoln County, Nebraska, for $1,340,000. Under a land use restriction agreement with the Nebraska Investment Finance Authority, the property was subject to rent restrictions under the Internal Revenue Code1 until 2046. Before Western Tabor acquired the property, a private appraisal determined the leased fee interest in the property to have a market value of $1,350,600, excluding $29,400 in personal рroperty.
For the 2018 tax year, the Lincoln County assessor‘s office (County Assessor) attempted to appraise the property using the income approach, as contemplated by
For the 2019 and 2020 tax years, Western Tabor did not submit the required income and expense reports, so the County Assessor determined that any valuation method could be used. Nevertheless, the County Assessor carried over the income-approach calculation from 2018, resulting in the same valuation of $1,519,000 for 2019 and 2020.
Western Tabor protested the 2018, 2019, and 2020 valuations. The Board affirmed the County Assessоr‘s valuation of $1,519,000 for each year.
Western Tabor appealed the Board‘s 2018, 2019 and 2020 decisions to TERC. At a hearing, the owner of Western Tabor testified that he was unaware the property was rent restricted and subject to
The Lincoln County lead appraiser testified to not having had enough information to determine which 2016 income report to use in the 2018 income-approach calculation but that she now believed the second report should have been used instead of the first report. She testified that the County Assessor stopped using an average of 3 years’ income and expense reports in 2019 and that using the single-year data from the second 2016 report would have resulted in a higher inсome-approach valuation of $1,546,500.
III. ASSIGNMENTS OF ERROR
The Board assigns that TERC erred in not finding for the Board and in failing to follow
IV. STANDARD OF REVIEW
Appellate courts review decisions rendered by TERC for errors appearing on the record.2
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 neither arbitrary, capricious, nor unreasonable.3
Whether an agency decision conforms to the law is by definition a question of law.5
V. ANALYSIS
The Board argues that TERC erred in determining that its decision to uphold the County Assessor‘s valuation of the property was arbitrary and unreasonable. The Board claims that
1. GENERAL ACTUAL VALUE FRAMEWORK FOR APPRAISALS
[1,2] Although we have recognized that the appraisal of real estate “is not an exact science”6 and “is largely a mattеr of opinion without a precise yardstick for determination,”7 our statutes provide a framework for assessing real property and appealing those assessments. With exceptions for agricultural and horticultural land,
2. PROTESTS AND APPEALS OF APPRAISALS
[3-5] Property owners may protest a county assessor‘s determination of actual value under these methods to the county board of equalization.9 The county board of equalization‘s decision may then be appealed to TERC.10 On appeal, there is a presumption in favor of the county board of equalizаtion.11 Section 77-5016(9) states:
In all appeals, excepting those arising under section 77-1606, if the appellant presents no evidence to show that the order, decision, determination, or action appealed from is incorrect, the commission shall deny the appeal. If the appellant presents any evidence to show that the order, decision, determination, or action appealed from is incorrect, such order, decision, determination, or action shall be affirmed unless evidencе is adduced establishing that the order, decision, determination, or action was unreasonable or arbitrary.
We have interpreted this language to create “a presumption that a board of equalization has faithfully performed its official duties in making an assessment and has acted upon sufficient competent evidence to justify its action.”12 The
[6-8] Once competent evidence is adduced to show that the order, decision, determination, or action appealed from is incorrect, the property owner retains the burden to show by clear and convincing evidence that the county board‘s decision was arbitrary or unreasonable.14 A decision is arbitrary when it is made in disregard of the facts or circumstances and without some basis which would lead a reasonable person to the same conclusion.15 A decision is unreasonable ““only if the evidencе presented leaves no room for differences of opinion among reasonable minds.”16
[9,10] On appeal from TERC‘s decision, we review for errors appearing on the record.17 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 neither arbitrary, capricious, nor unreasonable.18
3. INCOME APPROACH FOR RENT-RESTRICTED HOUSING
[11] Because this case involves a rent-restricted housing project, it is specifically governed by
[12] To facilitate this income-approach calculation,
The exception set forth in
[13,14] Thus,
[15-17] In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.20 The general rule is that in the construction of statutes, the word “shall” is considered mandatory and inconsistent with the idea of discretion.21 It is particularly so considered when the statute is addressed to
4. TERC‘S DETERMINATION THAT BOARD‘S DECISION WAS ARBITRARY AND UNREASONABLE
(a) 2018 Valuation
TERC correctly determined that the Board‘s decision to uphold the County Assessor‘s 2018 valuation of the property was arbitrary and unreasonable. For a valuation as of Jаnuary 1, 2018, an income and expense report was required by July 1, 2017, for the previous year, 2016. Two reports showing actual income and actual expense data were timely provided. Therefore, the exception set forth by The Board points out that two conflicting reports were submitted for 2016, which complicated the County Assessor‘s determination of the actual income and actual expenses for 2016. Nevertheless, this did not permit the County Assessor, in determining the valuation of the property for thе 2018 assessment year, to deviate from the mandate of the statute that it utilize the actual income and actual expense data from (b) 2019 and 2020 Assessments TERC also correctly determined that the Board‘s decision to uphold the County Assessor‘s valuations for 2019 and 2020 was arbitrary and unreasonable. Section 77-1333(9) allows a county assessor to use “any method for determining actual value . . . that is consistent with professionally accepted mass appraisal methods described in section 77-112” when the owner fails to timely file the statement of actual income and аctual expense data for the prior year. It is undisputed that there were no actual income and actual expense reports for the years prior to the 2019 and 2020 assessment years. However, there is no evidence that the County Assessor determined the actual value of the property for 2019 and 2020 based on any method that is consistent with professionally accepted mass appraisal methods described in [18] We reject the Board‘s argument that because no actual incоme and actual expense reports were filed for the 2019 and 2020 assessments, the County Assessor was free to carry over the 2018 valuation that the County Assessor was required to calculate under the income approach. Carrying over the income-approach calculation from 2018 only compounded the violation of Having decided TERC did not err in finding the Board‘s decision to uphold the 2018, 2019, and 2020 valuations was arbitrary and unreasonable, we turn to the Board‘s assertion that TERC erred in its independent determination of the taxable value of the property for those assessment years. The Board argues that in determining on appeal the actual value of the property, TERC was limited to the income approach and could not consider the 2017 private valuation as evidence of the actual value of the property. We disagree. [19] Section 77-5016(8) authorizes TERC to “consider all questions necessary to determine taxable value of property as it hears an appeal,” regardless of whether the question was raised below.23 [20] Given the conflicting income reports and the difficulty in determining which was most accurate, it was reasonable for TERC to conclude that the income approach would not result in actuаl value. Additionally, we have held that when an independent appraiser using professionally approved methods of mass appraisal certifies that an appraisal was performed according to professional standards, the appraisal is considered competent evidence under Nebraska law.24 Thus, TERC was free to consider the 2017 valuation as evidence [21] The Board does not argue that TERC erred in carrying over its 2018 аssessment as the actual value of the property for the 2019 and 2020 assessments. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief.26 We do not address whether TERC erred in adopting the appraised value from the 2017 valuation as the actual value of the property in 2019 and 2020. We affirm TERC‘s determination that the assessed value of the property for 2018, 2019, and 2020 was arbitrary and unreasonable and affirm its determination, on appeal, of the actual value of the property. FUNKE, J., not participating. AFFIRMED.VI. CONCLUSION
