Harold Warp Pioneer Village Found. v. Ewald ( 2013 )

Nebraska Advance Sheets
HAROLD WARP PIONEER VILLAGE FOUND. v. EWALD 19
Cite as 287 Neb. 19
Harold Warp Pioneer Village Foundation, appellant,
v. Doug Ewald, Tax Commissioner,
et al., appellees.
___ N.W.2d ___
Filed December 13, 2013. Nos. S-13-129, S-13-165.
1. Taxation: Judgments: Appeal and Error. Appellate courts review decisions
rendered by the Tax Equalization and Review Commission for errors appearing
on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing 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, capri-
cious, nor unreasonable.
3. Taxation: Appeal and Error. An appellate court reviews questions of law aris-
ing during appellate review of decisions by the Tax Equalization and Review
Commission de novo on the record.
Appeals from the Tax Equalization and Review Commission.
Reversed and remanded with directions.
Daniel L. Aschwege, of Knapp, Fangmeyer, Aschwege,
Besse & Marsh, P.C., for appellant.
Jon Bruning, Attorney General, and Jonathan D. Cannon,
Special Assistant Attorney General, for appellees Doug Ewald
and Ruth Sorensen.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
The Harold Warp Pioneer Village Foundation (Foundation)
owns and operates the Pioneer Village Museum in Minden,
Nebraska. The Foundation also owns and operates a nearby
motel and campground; both are used primarily by museum
visitors. For many years, the museum, the motel, and the camp-
ground have all been granted property tax exemptions. When
the Kearney County Board of Equalization granted the exemp-
tions for 2011, state tax officials appealed to the Nebraska Tax
Equalization and Review Commission (TERC), contending
the motel and campground were not entitled to exemptions.
TERC agreed, and the Foundation has appealed from those
Nebraska Advance Sheets
20 287 NEBRASKA REPORTS
determinations. We conclude that the motel and campground
are beneficial to the museum and reasonably necessary to fur-
ther its educational mission and are therefore entitled to prop-
erty tax exemptions.
BACKGROUND
The Foundation is a Nebraska nonprofit corporation which
owns and operates the museum. The museum is an educational
institution designed to preserve history and technology for
future generations. The museum displays approximately 50,000
exhibits in 28 buildings on 20 acres of land. A museum patron
wishing to view every exhibit offered would need to visit the
museum every day for more than 1 week. Approximately 30
percent of museum patrons spend more than 1 day viewing
the exhibits.
The Foundation also owns and operates an 88-room motel
and a campground located near the museum. The campground
offers sites for recreational vehicles and tents. The motel and
campground are open to the public, but their primary purpose
is to lodge patrons of the museum. Of the 17,072 guests of the
motel and campground in 2010, only 4.2 percent did not attend
the museum. There are no other lodging facilities in Minden
or Kearney County suitable to accommodate museum patrons.
The closest campground is 12 miles away, and the closest
motel is approximately 20 miles away. Without the revenue
generated by the motel and campground, the museum would
not have sufficient funds to continue its operations.
The Foundation applied for and was granted property tax
exemptions for the museum, the motel, and the campground
every year from 1984 to 2010. In 2011, the Foundation again
applied for these property tax exemptions. The county assessor
recommended an exemption be granted for the museum but
denied exemptions for the motel and campground. However,
the board granted all three exemptions.
Doug Ewald, the Nebraska Tax Commissioner, and Ruth
Sorensen, the Nebraska Property Tax Administrator, perfected
appeals to TERC. One appeal challenged the exemptions for
the motel, and another appeal challenged the exemption for
the campground. TERC conducted a consolidated hearing and
Nebraska Advance Sheets
HAROLD WARP PIONEER VILLAGE FOUND. v. EWALD 21
Cite as 287 Neb. 19
ultimately determined that because the motel and campground
were not used exclusively for educational purposes, neither
was entitled to tax exemptions under Nebraska law.1 The
Foundation filed timely appeals, which we consolidated for
briefing and oral argument.
ASSIGNMENTS OF ERROR
The Foundation assigns that TERC erred in finding that
(1) the motel and campground were not used exclusively for
educational purposes, (2) competent evidence was presented
to rebut the presumption that the board faithfully performed
its duties and had sufficient competent evidence to make its
determinations, and (3) the board’s decision was arbitrary
or unreasonable.
STANDARD OF REVIEW
[1,2] Appellate courts review decisions rendered by TERC
for errors appearing on the record.2 When reviewing a judg-
ment for errors appearing on the record, an appellate court’s
inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable.3
[3] An appellate court reviews questions of law arising
during appellate review of decisions by TERC de novo on
the record.4
ANALYSIS
The property tax exemption at issue in these cases is gov-
erned by § 77-202. With certain exceptions not applicable
to this case, the statute provides that property in Nebraska
1
See Neb. Rev. Stat. § 77-202(1)(d) (Supp. 2011).
2
Neb. Rev. Stat. § 77-5019(5) (Cum. Supp. 2010); Krings v. Garfield
Cty. Bd. of Equal., 286 Neb. 352, 835 N.W.2d 750 (2013). See Bethesda
Found. v. Buffalo Cty. Bd. of Equal., 263 Neb. 454, 640 N.W.2d 398
(2002).
3
Lozier Corp. v. Douglas Cty. Bd. of Equal., 285 Neb. 705, 829 N.W.2d 652
(2013); Schuyler Apt. Partners v. Colfax Cty. Bd. of Equal., 279 Neb. 989,
783 N.W.2d 587 (2010).
4
Lozier Corp. v. Douglas Cty. Bd. of Equal., supra note 3.
Nebraska Advance Sheets
22 287 NEBRASKA REPORTS
“owned by” an educational organization “for the exclusive
benefit” of that organization is exempt from property tax if it
is “used exclusively for educational” purposes.5 An educational
organization includes “a museum or historical society oper-
ated exclusively for the benefit and education of the public.”6
“Exclusive use” means the predominant or primary use of the
property as opposed to incidental use.7
The relevant facts summarized above are not in dispute.
The parties agree that the museum is operated exclusively for
educational purposes. They also agree that the primary purpose
of both the motel and the campground is to provide lodging
for museum patrons. But the parties disagree as to whether the
motel and campground are “used exclusively” for educational
purposes so as to be entitled to property tax exemptions.
The Foundation argues that because approximately 95 per-
cent of the motel and campground guests are museum patrons,
the motel and campground are used exclusively to further the
educational purposes of the museum. In essence, the Foundation
concedes that the motel and campground are not educational
in and of themselves. But it argues that they should be con-
sidered to be used for educational purposes because they are
beneficial to the museum and reasonably necessary to support
its operation, which is an educational purpose. In other words,
the Foundation asks us to view the entire global structure of
its operation as one integrated body that exclusively promotes
educational purposes.
On the other hand, the Tax Commissioner and the Property
Tax Administrator ask us to focus more narrowly on the use
of the motel and campground. They contend that because
these facilities are used only for lodging, which itself is not
an educational use, any incidental benefit they may have
to the museum is not sufficient to exempt them from prop-
erty taxation.
5
§ 77-202(1)(d).
6
§ 77-202(1)(d)(B).
7
See, 350 Neb. Admin. Code, ch. 40, § 005.03 (2013); Fort Calhoun Bapt.
Ch. v. Washington Cty. Bd. of Eq., 277 Neb. 25, 759 N.W.2d 475 (2009);
Bethesda Found. v. Buffalo Cty. Bd. of Equal., supra note 2.
Nebraska Advance Sheets
HAROLD WARP PIONEER VILLAGE FOUND. v. EWALD 23
Cite as 287 Neb. 19
TERC concluded on the basis of the undisputed facts that
the Foundation was not entitled to exemptions for the motel
and campground. Under our standard of review, we must
decide whether this determination “conforms to the law.”8 In
the context of this case, we regard this as a question of law
which we review de novo on the record.9
TERC found our 1961 decision in Doane College v. County
of Saline10 to be “controlling.” In that case, Doane College
applied for tax-exempt status for two separate facilities located
on its campus. One was a residence reserved for the college
president, and the other was an apartment complex located on
campus and provided for the exclusive use of new faculty. The
county board determined that neither property was tax exempt.
Doane College appealed to the district court—this was prior
to the existence of TERC—and that court determined that the
president’s residence was exempt but the faculty apartments
were not.
Doane College then appealed to this court. We affirmed the
judgment of the district court. In doing so, we found various
factors supporting the exemption for the president’s residence,
including that the president was required to live in the resi-
dence; that the residence was used as a reception area for fac-
ulty, foreign visitors, and trustees; and that the residence was
used for various student gatherings. We also noted that one
room of the residence was used as the president’s library and
office. We held that this evidence demonstrated that the resi-
dence was used exclusively for educational purposes, because
the primary or dominant use of the property was for education,
and that thus, the president’s residence was exempt from prop-
erty taxation.
We concluded that the faculty apartments were not exempt,
reasoning they were located on the main campus and were
rented at fair market value to new faculty who were permit-
ted but not required to reside there. We noted that more than
8
Lozier Corp. v. Douglas Cty. Bd. of Equal., supra note 3; Schuyler Apt.
Partners v. Colfax Cty. Bd. of Equal., supra note 3.
9
Id.
10
Doane College v. County of Saline, 173 Neb. 8, 112 N.W.2d 248 (1961).
Nebraska Advance Sheets
24 287 NEBRASKA REPORTS
two-thirds of the faculty resided elsewhere. And we reasoned
that although faculty residing in the apartments sometimes met
with students there, any educational use of the faculty apart-
ments was remote, and that their primary or dominant use was
not for educational purposes. We also specifically noted that
the apartments were in direct competition with privately owned
property for renters.
As in Doane College, the issue in this case is not whether
the Foundation uses its property for an educational purpose,
but, rather, how much of its property is used for that purpose.
Two cases decided by this court after Doane College provide
the proper analytical framework for resolving this issue. Lariat
Boys Ranch v. Board of Equalization11 involved a contiguous
1,000-acre tract owned by a nonprofit corporation which oper-
ated it as a “ranch home” for “indigent and wayward boys.”
The property owner contended that the entire tract was used
for this purpose and was therefore exempt. The county, on the
other hand, contended that the exemption should be limited to
the 5 acres on which the boys’ residences and school build-
ing were located. The county argued that the remaining land,
most of which was used for grazing and farming, should not
be exempt. We held that the entire tract was exempt because it
was reasonably needed to promote the nonprofit’s educational
goals and was not excessive for that purpose. We noted that the
determination of which facilities were reasonably necessary to
carry out the educational goals of an entity should be under-
taken on a case-by-case basis.
We again addressed the issue of whether specific property
should be included within an exemption granted to a nonprofit
corporation in Immanuel, Inc. v. Board of Equal.12 In that
case, it was undisputed that the property owner was entitled to
tax exemptions for its hospital and hospital grounds because
they were used for charitable purposes. The hospital built a
childcare facility on its campus for the exclusive use of its
employees in order to promote recruitment and retention of
11
Lariat Boys Ranch v. Board of Equalization, 181 Neb. 198, 199, 147
N.W.2d 515, 516 (1966).
12
Immanuel, Inc. v. Board of Equal., 222 Neb. 405, 384 N.W.2d 266 (1986).
Nebraska Advance Sheets
HAROLD WARP PIONEER VILLAGE FOUND. v. EWALD 25
Cite as 287 Neb. 19
professional employees. The hospital appealed from a denial
of its application for tax exemption for the childcare facil-
ity. This court determined the childcare facility was entitled
to the requested exemption. Distinguishing Doane College,
upon which the county relied, we held that the childcare
facility directly benefited the hospital by alleviating staffing
problems and thus aided the primary nursing care to patients,
and was therefore “reasonably necessary for the operation of
the hospital.”13
Based upon the reasoning of Lariat Boys Ranch and
Immanuel, Inc., it is clear that our inquiry in this case cannot
be narrowly focused on whether the overnight lodging pro-
vided by the Foundation’s motel and campground is an edu-
cational purpose, as the Tax Commissioner and Property Tax
Administrator contend. Rather, we must undertake a broader
examination of whether those lodging facilities are reason-
ably necessary to the educational mission of the Foundation’s
museum, based upon the specific facts presented here.
The record reflects that the museum is unusual if not
unique because of the combination of two factors. First, the
museum houses an extensive public collection which cannot
be viewed in a single day, thus creating a demand for con-
venient, nearby lodging for those visitors who wish to spend
more than 1 day viewing the museum’s exhibits. Second, the
museum is situated in a relatively small community which
has no public lodging facilities other than those offered by
the Foundation.
The Tax Commissioner and Property Tax Administrator con-
cede in their brief that the primary purpose of the Foundation’s
motel and campground “is to lodge patrons of the Museum.”14
The record reflects that the properties are being used predomi-
nantly for that purpose. Although the motel and campground
are open to the public, they are utilized primarily by visitors
to the museum. In each of the years from 1990 through 2010,
at least 95.5 percent of the persons who stayed at the motel
and campground were museum visitors. A significant majority
13
Id. at 411, 384 N.W.2d at 270.
14
Brief for appellees at 6.
Nebraska Advance Sheets
26 287 NEBRASKA REPORTS
of these were persons who did not reside in Nebraska. In
2010, all of the campground guests and 99.9 percent of the
motel guests were from outside Kearney County. It was
estimated that 30 percent of these museum visitors viewed
exhibits for more than 1 day; those who did and wished to
stay overnight in Minden had to utilize the Foundation’s motel
or campground.
The record includes a letter from the Internal Revenue
Service dated August 18, 1983, granting the Foundation’s
request for exemption from federal income tax under
§ 501(c)(3) of the Internal Revenue Code. Although this docu-
ment is not controlling on any of the issues in this case, it is
instructive in its characterization of the relationship between
the Foundation’s museum, motel, and campground. In deter-
mining that the motel and campground were not an “unrelated
trade or business” that would be subject to income tax not-
withstanding the fact that they are owned by an exempt entity,
the Internal Revenue Service stated:
Your operation of the . . . motel [and] campground
. . . is for the purpose of enabling your visitors to remain
long enough to take in the full extent of your educational
exhibits, the purpose of your exemption. Because there
are not facilities of this type within a reasonable prox-
imity to your exhibit, the time a visitor could or would
spend would be sharply curtailed, i.e., to approximately
half a day, yet it takes a full day or more to appreciate
all your historical and educational presentations. Making
it possible for visitors to get a full measure of the educa-
tional aspects is substantially related to the accomplish-
ment of your exempt purposes.
(Emphasis supplied.) Although this characterization of the
relationship of the museum and the Foundation’s lodging
facilities was made more than 30 years ago, it reflects the
relationship that existed in 2011 as reflected in the record in
these cases.
On the basis of that record, we conclude that TERC erred
in determining that the Foundation was not entitled to exemp-
tions for its motel and campground properties. The issue is
not whether “lodging” is an educational use in an abstract
Nebraska Advance Sheets
IN RE INTEREST OF DANAISHA W. ET AL. 27
Cite as 287 Neb. 27
sense, but, rather, whether these specific lodging facilities
were reasonably necessary to accomplish the educational pur-
pose of the Foundation in the operation of its museum. Just as
the grazing and farming lands were reasonably necessary to
the charitable and educational purposes of the boys’ ranch in
Lariat Boys Ranch and the childcare facility was reasonably
necessary to accomplish the charitable purposes of the hospital
in Immanuel, Inc., the operation of the motel and campground
by the Foundation is reasonably necessary to the accomplish-
ment of its educational mission.
Because we conclude that TERC erred as a matter of law in
vacating and reversing the decisions of the board, we need not
consider the Foundation’s remaining assignments of error.
CONCLUSION
For the reasons discussed, we reverse TERC’s decisions
which vacated and reversed the decisions of the board, and
we remand each cause to TERC with directions to affirm
the board’s decision granting property tax exemptions to the
Foundation for its motel and campground properties for the tax
year 2011.
R eversed and remanded with directions.
In re I nterest of
Danaisha W. et al.,
children under18 years of age.
State of Nebraska, appellee, v.
Dennisca W., appellant.
___ N.W.2d ___
Filed December 13, 2013. No. S-13-218.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
3. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, as in any
other appeal, before reaching the legal issues presented for review, it is the duty
of an appellate court to determine whether it has jurisdiction over the matter
before it.