Krings v. Garfield Cty. Bd. of Equal. ( 2013 )

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determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
imposed.35 The sentences imposed in this case were within the
statutory limits, and there was no abuse of discretion by the
trial court.
[13] Dixon also argues that the robbery sentence should
have been ordered to be served concurrently to the sexual
assault sentence, for the reasons that both relied on the same
fact pattern and the robbery was ancillary to the sexual assault
because the items stolen were taken to conceal the sexual
assault offense. It is within the discretion of the trial court
to impose consecutive rather than concurrent sentences for
separate crimes.36 The crimes arose from the same incident, but
they were completely different crimes with different elements.
There was no abuse of discretion in the trial court’s order of
consecutive sentences.
V. CONCLUSION
Finding no merit in any of Dixon’s assignments of error, we
affirm the judgment of the district court.
Affirmed.
Cassel, J., not participating.
35
State v. Erickson, supra note 3.
36
State v. Start, 239 Neb. 571, 477 N.W.2d 20 (1991).
Ladd D. K rings, appellee, v. Garfield County Board of
Equalization, appellee, and Douglas A. Ewald, Tax
Commissioner, and Ruth A. Sorensen, P roperty
Tax Administrator, appellants.
___ N.W.2d ___
Filed July 26, 2013. No. S-12-623.
1. Taxation: Judgments: Appeal and Error. Appellate courts review decisions
rendered by the Tax Equalization and Review Commission for errors appearing
on the record.
Nebraska Advance Sheets
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Cite as 286 Neb. 3522. 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.
3. Constitutional Law. Constitutional interpretation presents a question of law.
4. Taxation: Appeal and Error. Questions of law arising during appellate review
of the Tax Equalization and Review Commission decisions are reviewed de novo
on the record.
5. Taxation: Valuation: Words and Phrases. Equalization is the process of ensur-
ing that all taxable property is placed on the assessment rolls at a uniform per-
centage of its actual value.
6. Taxation: Valuation. The purpose of equalization of assessments is to bring the
assessment of different parts of a taxing district to the same relative standard,
so that no one of the parts may be compelled to pay a disproportionate part of
the tax.
7. Constitutional Law: Taxation: Appeal and Error. The need for equalization
by a county board of equalization, and by the Tax Equalization and Review
Commission when reviewing the decision of a county board of equalization,
stems from the constitutional requirement of uniformity contained in Neb. Const.
art. VIII, § 1.
8. Constitutional Law: Taxation: Valuation: Property: Agriculture. Because
Neb. Const. art. VIII, § 1(4), allows for agricultural and horticultural property
to be valued in a way that is not uniform and proportionate with all other real
property and because statutes have been enacted effectuating this difference, it is
unnecessary and improper to equalize the value of nonagricultural, nonhorticul-
tural property with the value of agricultural and horticultural property.
Appeal from the Tax Equalization and Review Commission.
Affirmed in part, and in part reversed and remanded with
directions.
Jonathan D. Cannon, Special Assistant Attorney General,
and Mihdi Vahedi, Senior Certified Law Student, for appellants.
No appearance for appellees.
Heavican, C.J., Wright, Stephan, McCormack, and
Cassel, JJ.
P er Curiam.
NATURE OF CASE
Douglas A. Ewald, Tax Commissioner, and Ruth A.
Sorensen, Property Tax Administrator, of the Department of
Revenue (collectively the Department), appeal a decision of
the Tax Equalization and Review Commission (TERC). TERC
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concluded that the Garfield County Board of Equalization (the
Board) correctly determined that land owned by taxpayer Ladd
D. Krings was not agricultural or horticultural land. TERC
further concluded, however, that the value of Krings’ nonagri-
cultural, nonhorticultural property should be equalized with the
value of agricultural and horticultural land and, because TERC
viewed the assessor’s assessments of agricultural and horticul-
tural land to be impermissibly low, equalized Krings’ property
by reducing its assessed value.
The Department agrees with TERC’s conclusion that Krings’
land was not agricultural or horticultural, but disagrees with
TERC’s conclusions that (1) the assessed value of Krings’ non-
agricultural, nonhorticultural land should be equalized with the
assessed value of agricultural and horticultural land and (2) the
county assessor’s assessments of agricultural and horticultural
land were improper.
There is no challenge before us relative to the finding
that Krings’ property is nonagricultural and nonhorticultural,
and we affirm that decision. There is no challenge before us
relative to a small portion of property deemed agricultural and
horticultural, and we do not consider this decision by TERC.
We conclude that when TERC determined that it needed to
equalize the value of Krings’ nonagricultural, nonhorticultural
land with the value of agricultural and horticultural land in the
county, such decision did not conform to the law. We therefore
reverse that portion of the order wherein TERC performed such
equalization. Because of this disposition, we need not consider
whether the county assessor properly assessed agricultural and
horticultural land.
STATEMENT OF FACTS
Krings owns two contiguous parcels of land in Garfield
County, Nebraska, which total 480 acres. One parcel is
improved with a single-family dwelling. A combined 448.21
acres of the two parcels is subject to a warranty easement deed
that Krings granted to the U.S. Commodity Credit Corporation
as part of the Wetlands Reserve Program. In exchange for
a one-time payment of $242,034, Krings granted the ease-
ment which placed restrictions on the use of the land for the
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Cite as 286 Neb. 352purpose of preserving the land as wetlands and a wildlife hab­
itat. Krings was allowed certain compatible uses of the land,
including managed timber harvesting and occasional haying
or grazing.
The parcels were assessed for property tax purposes for the
2010 tax assessment year at $39,895 and $258,845. Krings
protested such valuations to the Garfield County assessor and
requested values of $18,000 and $152,320. The assessor rec-
ommended no changes, and the Board adopted the assessor’s
recommendations and original valuations. Krings appealed the
Board’s determinations regarding the parcels to TERC.
Krings asserted to TERC that the nonresidential portion
of the parcels should have been assessed as agricultural or
horticultural land as defined in Neb. Rev. Stat. § 77-1359(Reissue 2009). If considered agricultural or horticultural
land, pursuant to Neb. Rev. Stat. § 77-201(2) (Reissue 2009),
the land would be assessed at 75 percent of its actual value.
After a hearing, TERC concluded that the land was primarily
used for the conservation purposes of the Wetlands Reserve
Program, rather than for agricultural or horticultural purposes,
that it therefore was not agricultural or horticultural land
under § 77-1359, and that it therefore should be assessed at
its actual value.
However, TERC went on to consider whether the assessed
value of Krings’ land should have been equalized with other
property in Garfield County. TERC determined that for the
2010 tax assessment year at issue, the Garfield County asses-
sor had improperly valued agricultural and horticultural land
in the county at 70 percent of its actual value rather than 75
percent as provided in § 77-201(2). TERC concluded that in
order for Krings’ nonagricultural, nonhorticultural land to be
equalized with the agricultural and horticultural land in the
county, it must be assessed at 93.33 percent (70 percent divided
by 75 percent) of its actual value. TERC therefore ordered
lower equalized values for Krings’ nonagricultural, nonhorti-
cultural property.
Under Neb. Rev. Stat. § 77-701(4) (Cum. Supp. 2012),
“[t]he Tax Commissioner or Property Tax Administrator may
appeal any final decision of [TERC] relating to the granting
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356 286 NEBRASKA REPORTS
or denying of an exemption of real or personal property or
relating to the valuation or equalization of real property.” The
Department has appealed TERC’s decision in this case.
ASSIGNMENTS OF ERROR
The Department claims that TERC erred when it (1) con-
cluded that the value of Krings’ nonagricultural, nonhorti-
cultural land must be equalized with the value of agricultural
and horticultural land in the county and (2) concluded that the
Garfield County assessor improperly assessed agricultural and
horticultural land at 70 percent of its actual value.
STANDARDS OF REVIEW
[1,2] Appellate courts review decisions rendered by TERC
for errors appearing on the record. See, Neb. Rev. Stat.
§ 77-5019(5) (Cum. Supp. 2012); Republic Bank v. Lincoln
Cty. Bd. of Equal., 283 Neb. 721, 811 N.W.2d 682 (2012).
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 nei-
ther arbitrary, capricious, nor unreasonable. Republic Bank v.
Lincoln Cty. Bd. of Equal., supra.
[3,4] Constitutional interpretation presents a question of law.
City of North Platte v. Tilgner, 282 Neb. 328, 803 N.W.2d 469(2011). Questions of law arising during appellate review of
TERC decisions are reviewed de novo on the record. Republic
Bank v. Lincoln Cty. Bd. of Equal., supra.
ANALYSIS
As an initial matter, we note that the Department agrees
with TERC’s determination that Krings’ property was not
agricultural or horticultural land. We further note that Krings
did not appeal from TERC’s decision and does not challenge
TERC’s decision that his land was not agricultural or horti-
cultural land. Although the Department devotes a section of
its brief supporting TERC’s conclusion that Krings’ land was
not agricultural or horticultural land, the issue whether Krings’
property is agricultural or horticultural land was not assigned
as error and is not reviewed by this court in this appeal.
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Cite as 286 Neb. 352TERC’s determination that Krings’ property is nonagricultural
and nonhorticultural is therefore affirmed. For completeness,
we note that we are aware that TERC found a small portion
of Krings’ property to be properly characterized as agricultural
and horticultural, and the Department does not challenge this
determination, or that it was appropriate to equalize the value
of this property with the value of other agricultural and horti-
cultural land in the county. There is not an explicit assignment
of error regarding this parcel, and we therefore do not discuss
the correctness of its equalized value.
The Department first contends that TERC erred when it
concluded that the value of Krings’ nonagricultural, nonhor-
ticultural land must be equalized with the value of agricul-
tural and horticultural land in the county. We agree with the
Department’s argument that the Nebraska Constitution allows
agricultural and horticultural land to be assessed at values that
are not uniform with other types of land and that therefore,
it was improper for TERC to equalize the value of Krings’
nonagricultural, nonhorticultural land with the value of agri-
cultural and horticultural land in the county.
[5-7] At issue in this case is Neb. Const. art. VIII, § 1, as it
relates to the valuation of real property for purposes of taxa-
tion. Article VIII, § 1(1), provides in relevant part that “[t]axes
shall be levied by valuation uniformly and proportionately
upon all real property . . . except as otherwise provided in or
permitted by this Constitution.” Our prior case law indicates
that the need for equalization stems from the constitutional
requirement that real property be taxed using uniform and
proportionate valuations. See Brenner v. Banner Cty. Bd. of
Equal., 276 Neb. 275, 753 N.W.2d 802 (2008). In Brenner, we
noted the constitutional requirement of uniform and propor-
tionate valuation and stated:
Equalization is the process of ensuring that all taxable
property is placed on the assessment rolls at a uniform
percentage of its actual value. The purpose of equaliza-
tion of assessments is to bring the assessment of different
parts of a taxing district to the same relative standard, so
that no one of the parts may be compelled to pay a dispro-
portionate part of the tax.
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276 Neb. at 294, 753 N.W.2d at 818. We further tied the
process of equalization to the constitutional requirement of
uniformity when we stated that in carrying out its “duty to
correct and equalize individual discrepancies and inequalities
in assessments within the county,” a county board of equaliza-
tion “must give effect to the constitutional requirement that
taxes be levied uniformly and proportionately upon all taxable
property in the county.” Bartlett v. Dawes Cty. Bd. of Equal.,
259 Neb. 954, 965, 613 N.W.2d 810, 818 (2000). The need for
equalization by a county board, and by TERC when reviewing
the decision of a county board of equalization, stems from the
constitutional requirement of uniformity contained in article
VIII, § 1.
However, while article VIII, § 1(1), requires uniform valu-
ation of real property, as noted, such requirement is qualified
by the phrase “except as otherwise provided in or permitted by
this Constitution.” Additional constitutional language pertain-
ing to agricultural and horticultural land is relevant to the pres-
ent case. Article VIII, § 1(4), provides as follows:
[T]he Legislature may provide that agricultural land and
horticultural land, as defined by the Legislature, shall
constitute a separate and distinct class of property for pur-
poses of taxation and may provide for a different method
of taxing agricultural land and horticultural land which
results in values that are not uniform and proportion-
ate with all other real property and franchises but which
results in values that are uniform and proportionate upon
all property within the class of agricultural and horticul-
tural land[.]
Acting on the authority of article VIII, § 1(4), the Legislature
enacted § 77-1359, which defines “agricultural land and horti-
cultural land” and which states in part:
The Legislature finds and declares that agricultural
land and horticultural land shall be a separate and dis-
tinct class of real property for purposes of assessment.
The assessed value of agricultural land and horticultural
land shall not be uniform and proportionate with all other
real property, but the assessed value shall be uniform and
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Cite as 286 Neb. 352proportionate within the class of agricultural land and
horticultural land.
The Legislature also enacted § 77-201(2), which currently
provides, “Agricultural land and horticultural land as defined
in section 77-1359 shall constitute a separate and distinct class
of property for purposes of property taxation, shall be sub-
ject to taxation, unless expressly exempt from taxation, and
shall be valued at seventy-five percent of its actual value.”
Thus, the framework for deciding this case is embodied in
article VIII, § 1(1) and 1(4), of the Nebraska Constitution,
as informed by the enabling legislation found at §§ 77-1359
and 77-201(2).
[8] The Department argues, and we agree, that because
article VIII, § 1(4), allows for agricultural and horticultural
property to be valued in a way that is not uniform and pro-
portionate with all other real property and because statutes
have been enacted effectuating this difference, it was unneces-
sary and improper for TERC to equalize the value of Krings’
nonagricultural, nonhorticultural property with the value of
agricultural and horticultural property in the county. Upon
our appellate review, we conclude that the decision of TERC
in this regard did not conform to the law. See Republic Bank
v. Lincoln Cty. Bd. of Equal., 283 Neb. 721, 811 N.W.2d
682 (2012).
In reaching its decision, TERC relied in part on Kearney
Convention Center v. Board of Equal., 216 Neb. 292, 344
N.W.2d 620 (1984), and determined that the value of Krings’
nonagricultural, nonhorticultural land needed to be equalized
with the value of agricultural and horticultural land in the
county. TERC’s reliance on Kearney Convention Center was
misplaced. In Kearney Convention Center, this court concluded
that for the year 1981, a taxpayer’s improved nonagricultural,
nonhorticultural real property referred to as an “urban conven-
tion center” “was not assessed uniformly and proportionately
with other property, to wit, farmland” and that the assessment
of the taxpayer’s property should be reduced to equalize its
value with such other property. 216 Neb. at 303, 344 N.W.2d at
626. We note, however, that when Kearney Convention Center
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was decided on January 27, 1984, article VIII, § 1, did not con-
tain the provisions quoted above relating to agricultural land
and horticultural land and that article VIII, § 1, was amended
twice after Kearney Convention Center was decided in order
to include the language presently contained in article VIII,
§ 1(4), pertaining to the different treatment of agricultural and
horticultural land.
The first of the two amendments was described by this court
as follows:
In 1984 the Legislature proposed an amendment to
Neb. Const. art. VIII, § 1. This amendment . . . was
adopted by the voters at the November 6, 1984, election. .
. . The proposition on the ballot stated, “A constitutional
amendment authorizing the Legislature to separately clas-
sify agricultural and horticultural land.” L. Res. 7, 88th
Leg., 1st Spec. Sess. (1984). The amendment added the
following language to art. VIII, § 1: “The Legislature
may provide that agricultural land and horticultural land
used solely for agricultural or horticultural purposes shall
constitute a separate and distinct class of property for
purposes of taxation.”
Banner County v. State Bd. of Equal., 226 Neb. 236, 244, 411
N.W.2d 35, 41 (1987). This court noted in Banner County
that the 1984 amendment did not repeal the uniformity clause
of article VIII, § 1. This court therefore read the amendment
in connection with the uniformity clause and concluded that
“the Legislature can divide the class of tangible property into
different classifications, but these classifications remain sub-
divisions of the overall class of ‘all tangible property,’ and
there must be a correlation between them to show uniformity.”
Banner County v. State Bd. of Equal., 226 Neb. at 254, 411
N.W.2d at 46.
After this court filed the decision in Banner County, the
Legislature in 1989 proposed another amendment to Neb.
Const. art. VIII, § 1. See 1989 Neb. Laws, L.R. 2. The
amendment was approved by voters in 1990. This second
amendment did not repeal the uniformity clause but added
language now found at article VIII, § 1(4), stating that in
addition to providing that agricultural land and horticultural
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Cite as 286 Neb. 352land constitute a separate and distinct class of property,
the Legislature
may provide for a different method of taxing agricultural
land and horticultural land which results in values that are
not uniform and proportionate with all other real property
and franchises but which results in values that are uni-
form and proportionate upon all property within the class
of agricultural land and horticultural land.
The Introducer’s Statement of Intent for L.R. 2 stated that it
was a response to “the doubt the Nebraska Supreme Court has
cast on the validity of” the 1984 amendment and legislation
enacted pursuant thereto and that the intent was “to resolve
this legal uncertainty by providing a clear exception to the
uniformity requirement of the Nebraska Constitution for agri-
cultural land.” Revenue Committee, 91st Leg., 1st Sess. (Feb.
2, 1989).
The amendment proposed by the Legislature in 1989
addressed this court’s decision in Banner County. The amend-
ment clearly provided that although values of agricultural and
horticultural land were to be uniform and proportionate within
the class, they were not required to be uniform and proportion-
ate with the value of other real property. Because the language
of this provision, article VIII, § 1(4), is clear, it is not open to
construction. See State ex rel. Johnson v. Gale, 273 Neb. 889,
734 N.W.2d 290 (2007).
As discussed above, the equalization process has the pur-
pose of giving effect to the constitutional requirement of
uniformity. However, after the amendments to article VIII,
§ 1, and the enactment of statutes pursuant to such authority
providing for a different method of taxing agricultural and
horticultural land, the constitution does not require uniformity
between the class of agricultural and horticultural land and
other types of real estate. Therefore, it is no longer required
or proper to equalize the value of nonagricultural, nonhorti-
cultural land with the value of agricultural and horticultural
land. Equalization is still required within the class of agri-
cultural and horticultural land, because the constitution still
requires uniformity within that class. Therefore, when TERC
undertook the task of equalizing the portion of Krings’ land
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which is agricultural and horticultural with agricultural and
horticultural land in the county, the approach was authorized.
Equalization is also required to give effect to the uniformity
clause with respect to property generally, except to the extent
that article VIII, § 1, makes certain exceptions to the uniform­
ity requirement, including the exception for agricultural and
horticultural land.
We conclude that TERC erred in this case when it endeav-
ored to equalize the value of Krings’ nonagricultural, nonhor-
ticultural property with the value of agricultural and horticul-
tural land in the county. There is no longer a constitutional
requirement for the value of agricultural and horticultural land
to be uniform and proportionate with the value of other real
property; therefore, the equalization between Krings’ non-
agricultural, nonhorticultural land and the agricultural and
horticultural land in the county was improper. We therefore
reverse the portion of TERC’s order in paragraph 2 in which
it equalized the value of Krings’ nonagricultural, nonhorticul-
tural property with the value of agricultural and horticultural
property. We further reverse that portion of TERC’s order
in paragraph 1 in which it vacated and reversed the value
of nonagricultural, nonhorticultural property as decided by
the Board.
The Department also assigns error to TERC’s determina-
tion and discussion regarding the assessor’s assessment of
agricultural and horticultural land at 70 percent rather than 75
percent of its actual value. Krings’ land is nonagricultural and
nonhorticultural, and, as we have determined, there was no
basis for equalization of Krings’ nonagricultural, nonhorticul-
tural land with agricultural and horticultural land in the county.
TERC’s comments regarding the assessor’s actions exceeded
the proper scope of the appeal before TERC. It was unneces-
sary in this case for TERC to consider or to explore whether
the assessment of agricultural and horticultural land had been
appropriately performed, and regardless of the substance of
its analysis, we need not consider whether TERC erred in its
conclusions regarding the assessment of agricultural and hor-
ticultural land.
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Cite as 286 Neb. 363CONCLUSION
Because no error was assigned to TERC’s determination
that Krings’ land was nonagricultural and nonhorticultural, we
affirm that portion of TERC’s order in which it so concluded.
There is also no challenge to the correctness of the determina-
tion that a small portion of the property was agricultural and
horticultural and that it was subject to equalization with other
agricultural and horticultural land in the county, and we enter
no order affecting this decision. We conclude that TERC erred
when it equalized the value of Krings’ nonagricultural, nonhor-
ticultural land with the value of agricultural and horticultural
land in the county. TERC’s decision to equalize in this fashion
did not conform to the law. We therefore reverse those portions
of the order in which TERC reversed the Board’s valuation
regarding Krings’ nonagricultural, nonhorticultural property
and performed such equalization. We remand the cause to
TERC with directions to enter an order ruling on the Board’s
determinations, consistent with this opinion.
Affirmed in part, and in part reversed
and remanded with directions.
Connolly and Miller-Lerman, JJ., participating on briefs.
State of Nebraska, appellee, v.
Matthew L. Pangborn, appellant.
___ N.W.2d ___
Filed July 26, 2013. No. S-12-941.
1. Trial: Evidence: Appeal and Error. The admission of demonstrative evidence
is within the discretion of the trial court, and a judgment will not be reversed on
account of the admission or rejection of such evidence unless there has been a
clear abuse of discretion.
2. Trial: Juries: Evidence. Demonstrative exhibits are defined by the purpose for
which they are offered at trial—to aid or assist the jury in understanding the evi-
dence or issues in a case.
3. Trial: Evidence. Exhibits admitted only for demonstrative purposes do not con-
stitute substantive evidence.
4. Rules of Evidence. Where a Nebraska Evidence Rule is substantially similar to
a corresponding federal rule of evidence, Nebraska courts will look to federal