Filed Date: 1/25/1983
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Senator Jerome Warner Nebraska State Legislature State Capitol Lincoln, Nebraska 68509
Dear Senator Warner:
You have asked our opinion as to the constitutional validity of section 5 of LB 26. We have reservations about the validity of the amendment to be effected by that section, as it appears to involve unreasonable class legislation.
LB 26 amends Neb.Rev.Stat. §§
Sections 1 through 4 of the bill would further define what is meant by `agricultural use' and `agricultural use zone,' so that, presumably, some property which had previously qualified for the special assessment would no longer do so, and would, after the effective date of the act, be assessed at its actual value for other than agricultural uses.
Section
Section 5 of LB 26 amends §
Section
Now let us consider two pieces of real estate, across the road from each other, both of which have been receiving the special assessment for more than five years. A zoning boundary runs down the middle of the road, and tract A is in a zoning area which qualified it for the special assessment under the old law, but not under the law as amended by LB 26. Tract B is in a zoning area which qualified for such special assessment under the old law, and also under LB 26.
Now let us assume that one week after the effective date of LB 26 both tracts of land are sold, and are devoted to residential, industrial, or commercial purposes. As to tract B, the assessor clearly has the duty to go back five years, calculate the additional taxes which would have been due, and add such additional taxes, plus interest, to the taxes due on such land.
As to tract A, however, it became disqualified because of the operation of LB 26, not because of the sale or change of use. Therefore, under section 5 of LB 26, there would be no recovery of the additional taxes. This constitutes putting the owners of tract A in a different class from the owners of tract B, with tract A being in the more favorable position.
We are unable to discern any logical justification for such a result.
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Here we have one class, composed of tracts of land qualifying for the special assessment under the law in effect before the effective date of LB 26. Both tract A and tract B are in that class. Their utilization of that treatment carries with it the obligation to pay the tax saved during the five years preceding the termination of such special treatment, with interest, at the time of such termination. Now, suddenly, LB 26 would relieve the tract which was least qualified for such special treatment in the first place from the obligation to repay such additional taxes, while leaving the other tract saddled with the obligation. We fail to see the logic or justice of it.
Perhaps we could defend a provision that the passage of LB 26 would not, by itself, trigger an obligation to repay the additional taxes, so long as the actual use or ownership of the land had not changed. We might argue that in that situation, where the status of the land was changed solely by legislative action, it was not unreasonable to not require the immediate payment of the taxes saved during the preceding five years.
Where, however, after the effective date of LB 26 some event takes place, such as a change in the use of the property, which would require the payment of taxes saved during the preceding five years on property still receiving the special treatment, that event must also require the payment of taxes saved during the preceding five years on property disqualified by LB 26.
Very truly yours, PAUL L. DOUGLAS Attorney General Ralph H. Gillan Assistant Attorney General