Lincoln Cty. Bd. of Equal v. Western Tabor Ranch Apts. , 314 Neb. 582 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/23/2023 09:07 AM CDT
- 582 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 582Lincoln County Board of Equalization,
appellant, v. Western Tabor Ranch
Apartments, LLC, appellee.
___ N.W.2d ___
Filed June 23, 2023. Nos. S-22-665 through S-22-667.
1. 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.
2. 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.
3. Taxation: Real Estate: Valuation: Appeal and Error. Under Neb. Rev.
Stat. § 77-1502 (Cum. Supp. 2016 & Reissue 2018), property owners
may protest a county assessor’s determination of actual value to the
county board of equalization.
4. Taxation: Real Estate: Appeal and Error. Decisions of the county
board of equalization may be appealed to the Tax Equalization and
Review Commission.
5. 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 mak-
ing an assessment and has acted upon sufficient competent evidence to
justify its action.
6. Taxation: Real Estate: Evidence: Proof: Appeal and Error. Once
competent evidence is adduced to show that the order, decision, determi-
nation, or action of the county board of equalization is incorrect, a prop-
erty owner retains the burden to show by clear and convincing evidence
that the county board’s decision was arbitrary or unreasonable.
- 583 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 5827. 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.
8. Judgments: Evidence: Words and Phrases. A decision is unreasonable
only if the evidence presented leaves no room for differences of opinion
among reasonable minds.
9. 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.
10. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
11. 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.
12. 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 of 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.
13. ____: ____: ____: ____. When utilizing the income-approach method-
ology, 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).
14. ____: ____: ____: ____. Nowhere in Neb. Rev. Stat. § 77-1333 (Reissue
2018) is it contemplated that a county assessor may use multiple years
of data in determining the actual value of property when using the
income approach.
15. 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.
16. Statutes: Words and Phrases. The general rule is that in the construc-
tion of statutes, the word “shall” is considered mandatory and inconsist­
ent with the idea of discretion.
- 584 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 58217. Taxation: Real Estate: Valuation: Time. In calculating the actual value
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.
18. ____: ____: ____: ____. 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.
19. Taxation: Real Estate: Valuation: Appeal and Error. Under Neb. Rev.
Stat. §§ 77-201(1), 77-5007(14), and 77-5016(8) (Reissue 2018), the
Tax Equalization and Review Commission has the power and duty to
determine on appeal whether the income approach would result in actual
value and to substitute whatever method it deems suitable to determine
actual value.
20. 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.
21. Appeal and Error. To be considered by an appellate 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.
- 585 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 582Freudenberg, J.
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 Neb. Rev. Stat.
§ 77-1333 (Reissue 2018) required the county assessor to use
the income approach valuation method and that TERC was not
allowed to consider a private appraisal to determine the actual
value of the property. The property owner responds that TERC
correctly determined that the county assessor failed to comply
with § 77-1333. We affirm.
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 Code 1 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 property.
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 § 77-1333. The
County Assessor received two different income and expense
reports for the property for 2016 that resulted in signifi-
cantly different valuations under the income-approach cal-
culation. Using the data from the first report, the County
Assessor valued the property at $1,040,800. Using the data
from the second report, the County Assessor valued the prop-
erty at $1,546,500. The County Assessor determined that the
1
See I.R.C. § 42 (2018).
- 586 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 582second report more closely matched the data provided for
previous years and the data used in the 2017 appraisal.
However, the County Assessor’s practice for all rent-restricted
properties was to average the last three available income
and expense reports from the 3 prior tax years. The County
Assessor used the average from the first 2016 report and the
income and expense data from 2014 and 2015 and determined
the fee simple interest in the property to have a market value
of $1,519,000.
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 valua-
tion of $1,519,000 for 2019 and 2020.
Western Tabor protested the 2018, 2019, and 2020 valua-
tions. The Board affirmed the County Assessor’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 § 77-1333. He argued that the $1,340,000 pur-
chase price and the $1,350,600 private valuation were evidence
that the property’s actual value was lower than the county’s
$1,519,000 assessment. He also testified about a larger rental
property in North Platte that was valued at about 50 percent
less per rental unit.
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 income-approach valua-
tion of $1,546,500.
- 587 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 582TERC determined that the 2017 appraisal rebutted the pre-
sumption that the Board acted upon sufficient competent evi-
dence to justify its action and satisfied Western Tabor’s burden
to demonstrate by clear and convincing evidence that the
Board’s decision was arbitrary or unreasonable. TERC rea-
soned that § 77-1333 does not change the overall requirement
that all non-agricultural real property be valued at its full mar-
ket value, and there was nothing in the record to show that the
County Assessor verified that its valuation was the actual fair
market value. TERC also determined that the County Assessor
failed to use any of the statutory methods of valuation in
Neb. Rev. Stat. § 77-112 (Reissue 2018) when carrying over
the 2018 valuation for tax years 2019 and 2020; it concluded
there was clear and convincing evidence that the Board’s deci-
sions for those years were arbitrary and unreasonable. TERC
reversed the decisions of the Board and accepted the 2017
appraisal’s valuation of $1,350,600 for tax years 2018, 2019,
and 2020.
III. ASSIGNMENTS OF ERROR
The Board assigns that TERC erred in not finding for the
Board and in failing to follow § 77-1333 when it considered
and accepted the valuation provided in the 2017 appraisal.
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
2
Betty L. Green Living Trust v. Morrill Cty. Bd. of Equal., 299 Neb. 933,
911 N.W.2d 551 (2018).
3
Id.- 588 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 582Questions of law arising during appellate review of TERC’s
decisions are reviewed de novo on the record. 4
Whether an agency decision conforms to the law is by defi-
nition 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 § 77-1333 required TERC to use the income approach to
calculate actual value and that TERC was not permitted to con-
sider the 2017 private valuation as evidence of the property’s
actual value. We hold that TERC correctly determined the
property’s assessed value was arbitrary and unreasonable for
each year. We also hold that TERC was permitted to consider
all evidence of actual value on appeal and was not limited to
the income approach.
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 matter
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 agri-
cultural and horticultural land, Neb. Rev. Stat. § 77-201(1)
(Reissue 2018) states that all real property “shall be valued
at its actual value.” Section 77-112 defines actual value as
“the market value of real property in the ordinary course of
4
Id.5
Id.6
Overbeck v. Estate of Bock, 198 Neb. 121, 124, 251 N.W.2d 872, 874
(1977).
7
Cain v. Custer Cty. Bd. of Equal., 298 Neb. 834, 851, 906 N.W.2d 285,
298 (2018).
- 589 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 582trade.” 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[].” 8
2. Protests and Appeals
of Appraisals
[3-5] Property owners may protest a county assessor’s deter-
mination 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 equalization. 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 evidence is adduced establish-
ing that the order, decision, determination, or action was
unreasonable or arbitrary.
We have interpreted this language to create “a presump-
tion 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
8
§ 77-112.
9
Neb. Rev. Stat. § 77-1502 (Cum. Supp. 2016 & Reissue 2018).
10
Neb. Rev. Stat. § 77-1504 (Reissue 2018).
11
See, Neb. Rev. Stat. § 77-5016(9) (Reissue 2018); JQH La Vista Conf. Ctr.
v. Sarpy Cty. Bd. of Equal., 285 Neb. 120, 825 N.W.2d 447 (2013).
12
JQH La Vista Conf. Ctr., supra note 11, 285 Neb. at 124, 825 N.W.2d at
451 (internal quotation marks omitted).
- 590 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 582presumption disappears “when there is competent evidence
adduced on appeal to the contrary.” 13
[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 evidence
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 § 77-1333. The
Legislature found in subsection (2)(d) of § 77-1333 that “[o]f
all the professionally accepted mass appraisal methodologies,
which include the sales comparison approach, the income
13
Id. (internal quotation marks omitted).
14
See Brenner v. Banner Cty. Bd. of Equal., 276 Neb. 275, 753 N.W.2d 802(2008).
15
Bethesda Found. v. Buffalo Cty. Bd. of Equal., 263 Neb. 454, 640 N.W.2d
398 (2002).
16
Pittman v. Sarpy Cty. Bd. of Equal., 258 Neb. 390, 402, 603 N.W.2d 447,
456 (1999).
17
See Betty L. Green Living Trust, supra note 2.
18
Id.
- 591 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 582approach, and the cost approach, the utilization of the income-
approach methodology results in the most accurate determina-
tion of the actual value of such projects.” Accordingly, sub-
section (3) of § 77-1333 requires that “[e]xcept as otherwise
provided in this section, the county assessor shall utilize an
income-approach calculation to determine the actual value
of a rent-restricted housing project when determining the
assessed valuation to place on the property for each assess-
ment year.”
[12] To facilitate this income-approach calculation,
§ 77-1333(5) provides in relevant part that “[t]he owner of a
rent-restricted housing project shall file a statement electroni-
cally 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 . . . .” And subsection (8) states
that “[e]xcept as provided in subsections (9) through (11) of
this section, each county assessor shall use . . . the actual
income and expense data filed by owners of rent-restricted
housing projects under subsection (5) of this section in the
county assessor’s income-approach calculation.”
The exception set forth in § 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,” if the owner fails to
timely file, in accordance with subsection (5), the statement
of actual income and actual expense data on or before July
1 of each year. The exception found in § 77-1333(10) pro-
vides a procedure for circumstances where “a county asses-
sor, based on the facts and circumstances, believes that the
income-approach calculation does not result in a valuation of
a rent-restricted housing project at actual value.” This pro-
cedure involves petitioning TERC “to consider the county
assessor’s utilization of another professionally accepted mass
- 592 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 582appraisal technique.” 19 Section 77-1333(11) provides for a
similar procedure for TERC to consider adjusting the capi-
talization rate set annually by the Rent-Restricted Housing
Projects Valuation Committee, which rate is also part of the
income-approach calculation.
[13,14] Thus, § 77-1333(9) through (11) contemplate sce-
narios where the capitalization rate should be adjusted or
where, because of unique circumstances, the income-approach
methodology will not result in the most accurate determination
of actual value of the rent-restricted project. But when utiliz-
ing the income-approach methodology, nothing in § 77-1333
permits the use of actual income and actual expense data from
years other than the prior year as specified in subsection (5).
Nowhere in § 77-1333 is it contemplated that a county asses-
sor may use multiple years of data in determining the actual
value of property when using the income approach. Instead,
under § 77-1333(8), when the exceptions of subsections (9)
through (11) do not apply, “each county assessor shall use . . .
the actual income and actual expense data filed by owners of
rent-restricted housing projects under subsection (5) of this
section in the county assessor’s income-approach calculation.”
(Emphasis supplied.)
[15-17] In construing a statute, a court must determine and
give effect to the purpose and intent of the Legislature as ascer-
tained 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
19
§ 77-1333(10).
20
Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d 730(2008).
21
State ex rel. Shepherd v. Neb. Equal Opp. Comm., 251 Neb. 517, 557
N.W.2d 684 (1997).
- 593 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 582public officials. 22 Reading § 77-1333 in its entirety, we con-
clude that in calculating the actual value of rent-restricted
housing projects for each assessment year using the income
approach, § 77-1333 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.
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 January
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 § 77-1333(9) was not at
issue. Neither was the exception set forth in § 77-1333(10)
applicable, as TERC was not petitioned for permission to use
a valuation methodology different from the income approach.
The income and expense data from 2016, then, was the only
data permitted by statute to be used in the income approach
calculation. The County Assessor improperly used 3 years
of income and expense data when assessing the property
for 2018.
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 the 2018 assess-
ment year, to deviate from the mandate of the statute that
it utilize the actual income and actual expense data from
22
Id.
- 594 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 5822016 to determine actual value under the income-approach
methodology. Section 77-1333 did not allow the County
Assessor to average the 2016 data with data from 2015 and
2014 when calculating the actual value of the property using
the income approach. If the two data sets caused the County
Assessor to doubt the accuracy of the income-approach valu-
ation, it should have petitioned to use a different valuation
method under § 77-1333(10) rather than substituting its own
modified income approach.
(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 actual 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 § 77-112.
[18] We reject the Board’s argument that because no actual
income 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 § 77-1333. It would be nonsensical to conclude
that reusing an income-approach valuation from a prior year,
calculated in violation of the mandates of § 77-1333, is an
otherwise “professionally accepted mass appraisal method” as
contemplated in subsection (9).
- 595 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 5825. TERC’s Assessment on Appeal
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 tax-
able 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 Neb. Rev. Stat. § 77-5007 (Reissue 2018) grants
TERC the “power and duty to hear and determine appeals
of . . . (14) . . . the requirement under [§ 77-1333] that an
income-approach calculation be used by county assessors to
value rent-restricted housing projects.” We read these statutes
together with § 77-201(1) to grant TERC the power and duty to
determine on appeal whether the income approach would result
in actual value and to substitute whatever method TERC deems
suitable to determine actual value.
[20] Given the conflicting income reports and the diffi-
culty in determining which was most accurate, it was reason-
able for TERC to conclude that the income approach would
not result in actual value. Additionally, we have held that
when an independent appraiser using professionally approved
methods of mass appraisal certifies that an appraisal was per-
formed 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
23
See, Upper Republican NRD v. Dundy Cty. Bd. of Equal., 300 Neb. 256,
912 N.W.2d 796 (2018); Brenner, supra note 14.
24
See, JQH La Vista Conf. Ctr., supra note 11; US Ecology v. Boyd Cty. Bd.
of Equal., 256 Neb. 7, 588 N.W.2d 575 (1999).
- 596 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
LINCOLN CTY. BD. OF EQUAL. V. WESTERN TABOR RANCH APTS.
Cite as 314 Neb. 582of the property’s actual value in 2018. And although TERC
ultimately adopted the 2017 valuation, it also considered the
sale price, which is also competent evidence of actual value. 25
Given the similarity between the sale price, $1,340,000, and
the private valuation, $1,350,600, accepting the private valua-
tion as the actual value of the property in 2018 was supported
by competent evidence and was neither arbitrary, capricious,
nor unreasonable. Thus, TERC did not err on the record in
calculating the actual value of the property.
[21] The Board does not argue that TERC erred in carrying
over its 2018 assessment 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.
VI. CONCLUSION
We affirm TERC’s determination that the assessed value of
the property for 2018, 2019, and 2020 was arbitrary and unrea-
sonable and affirm its determination, on appeal, of the actual
value of the property.
Affirmed.
Funke, J., not participating.
25
See In re Estate of Craven, 281 Neb. 122, 794 N.W.2d 406 (2011).
26
State v. Denton, 307 Neb. 400, 949 N.W.2d 344 (2020).