County of Douglas v. Nebraska Tax Equal. & Rev. Comm. , 296 Neb. 501 ( 2017 )

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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
COUNTY OF DOUGLAS v. NEBRASKA TAX EQUAL. & REV. COMM.
Cite as 296 Neb. 501
County of Douglas, appellant, v.
Nebraska Tax Equalization and
R eview Commission, appellee.
___ N.W.2d ___
Filed April 27, 2017. No. S-16-548.
1. Taxation: Appeal and Error. Under Neb. Rev. Stat. § 77-5019(5) (Cum.
Supp. 2016), appellate review of a decision by the Tax Equalization and
Review Commission on a petition for review is conducted for error on
the record of the commission.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
3. Administrative Law: Judgments: Evidence: Words and Phrases.
An agency decision is supported by competent evidence, sufficient
evidence, or substantial evidence if the agency could reasonably have
found the facts as it did on the basis of the testimony and exhibits con-
tained in the record before it.
4. Administrative Law: Judgments: Words and Phrases. Agency action
is arbitrary, capricious, and unreasonable if it is taken in disregard of the
facts or circumstances of the case, without some basis which would lead
a reasonable and honest person to the same conclusion. Agency action
taken in disregard of the agency’s own substantive rules is also arbitrary
and capricious.
5. Appeal and Error. When reviewing cases for error appearing on the
record, an appellate court reviews questions of law de novo.
6. Pleadings: Judgments: Appeal and Error. A trial court’s decision
to grant or deny a motion to reconsider is reviewed for an abuse
of discretion.
7. Pleadings: Judgments: Motions to Vacate: Appeal and Error. The
abuse of discretion standard applies to an appellate court’s review of a
trial court’s grant or denial of a motion to vacate or amend a judgment.
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COUNTY OF DOUGLAS v. NEBRASKA TAX EQUAL. & REV. COMM.
Cite as 296 Neb. 501
8. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
9. Administrative Law: Judgments. An administrative agency that is
authorized to exercise quasi-judicial power is impliedly authorized to
reconsider its own decisions.
Appeal from the Tax Equalization and Review Commission.
Affirmed in part, and in part reversed.
Shakil A. Malik, Deputy Douglas County Attorney, for
appellant.
Douglas J. Peterson, Attorney General, and L. Jay Bartel
for appellee.
H eavican, C.J., Wright, Cassel, Stacy, K elch, and
Funke, JJ.
Wright, J.
I. NATURE OF CASE
The Tax Equalization and Review Commission (TERC)
issued an order to Douglas County to show cause why TERC
should not order the adjustment of the valuation of three sub-
classes of residential real property in Douglas County. After a
show cause hearing at which Douglas County appeared, TERC
ordered the proposed adjustments. Douglas County filed a
motion to reconsider, which TERC overruled. Douglas County
petitioned for review with the Nebraska Court of Appeals. It
subsequently filed a petition to bypass, which we granted. We
affirm in part, and in part reverse.
II. BACKGROUND
In April 2016, TERC held its statewide equalization hear-
ing. The State of Nebraska’s Property Tax Administrator
(PTA) (the head of the property assessment division of the
Nebraska Department of Revenue1) submitted reports for each
1
Neb. Rev. Stat. § 77-701(1) (Cum. Supp. 2016).
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county to TERC. As required by Neb. Rev. Stat. § 77-5027
(Cum. Supp. 2016), the reports analyzed the level and quality
of assessment of the classes and subclasses of real property
within each Nebraska county and made nonbinding equaliza-
tion recommendations.
The report for Douglas County analyzed residential real
property by dividing it into six valuation area subclasses
(areas) based on geography and other common features of
each area. The report analyzed the assessment-to-sales ratios
within these areas. The assessment-to-sales ratio is the ratio of
assessed value to sales price, calculated for every property sold
in an arm’s-length transaction. These ratios are based on the
sales in the state “sales file.”2 The assessment of each class and
subclass of most kinds of real property is required by statute to
fall within 92 to 100 percent of actual value, as measured by
an indicator of “central tendency,” such as the median, mean
(average), or weighted mean ratio.3
Three of the areas in Douglas County had median
assessment-to-sales ratios outside the statutory range: “Area
­
2” had a median of 104.82 percent, “Area 3” had a median
of 89.77 percent, and “Area 4” had a median of 90.08 per-
cent. The overall median ratio for residential real property in
Douglas County was 92 percent.
The report recommended increasing the valuation of Areas 3
and 4 by 7 percent. It reached this conclusion on the basis of a
variety of statistics that showed that the true level of value for
both areas was 90 percent of market value, which is below the
statutory range.
The report also recommended that no change be made for
Area 2 because “[t]he quality statistics . . . suggest [that] val-
ues are not uniform and widely vary from the median ratio.”
The statistics in the PTA’s report indicated that there was a
high level of dispersion and lack of uniformity in the ratios in
2
Neb. Rev. Stat. § 77-1327(3) (Cum. Supp. 2016).
3
Neb. Rev. Stat. § 77-5023 (Reissue 2009).
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COUNTY OF DOUGLAS v. NEBRASKA TAX EQUAL. & REV. COMM.
Cite as 296 Neb. 501
Area 2. There was a lack of uniformity between higher- and
lower-value properties in the area. The higher-value prop-
erties were underassessed, and the lower-value properties
were overassessed.
The report indicated that the statistics for Area 2, such as
the median, were skewed by a significant number of low-value
sales. The median for Area 2 was 104.82 percent. But excluding
sales of properties under $15,000, the median ratio of Area 2
was 100.45 percent; excluding sales under $30,000, the median
ratio was 96.21 percent. The report concluded, “Considering
the ratio study statistics for the strata of sales above $30,000[,]
the valuations [of Area 2] are considered acceptable.”
TERC issued an order to show cause why it should not
increase the valuation of Areas 3 and 4 by 7 percent and
decrease that of Area 2 by 8 percent. At the show cause hear-
ing, Chief Field Deputy Jack Baines of the Douglas County
assessor’s office testified that there was a low-average sales
price in Area 2, which, when combined with a small number
of higher-price sales, tended to skew the data and skew the
median ratio. He explained that with lower value proper-
ties, smaller differences between the assessed value and sales
price would cause a greater difference in the assessment-to-
sales ratio.
As to Areas 3 and 4, Baines believed that the data underly-
ing the statistics in the PTA’s report was unreliable and that no
changes should be made. Baines was new to his position. He
testified that some of the assessment practices and procedures
that he observed upon his arrival, such as not validating sales
for the state sales file to make sure they qualified as arm’s-
length transactions, rendered the sales file data unreliable.
Because he believed the sales file data was unreliable, he con-
cluded that the statistics calculated from that data were unreli-
able. He argued that under generally accepted mass appraisal
techniques, no changes should be made, because the data was
unreliable. Baines stated that the correct course would be to
correct the appraisal model and reappraise properties going
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Cite as 296 Neb. 501
forward without making any blanket equalization adjustment.
Baines’ testimony and the details of the PTA’s report are dis-
cussed in more detail in our analysis.
The PTA was asked whether any of Baines’ testimony
affected her recommendations. She stood by her recommenda-
tions as contained within the report to increase the valuation
of Areas 3 and 4 by 7 percent and that no change be made for
Area 2. TERC voted to increase the valuation of Areas 3 and 4
by 7 percent and decrease that of Area 2 by 8 percent.
Prior to the issuance of TERC’s written order, Douglas
County filed a motion to reconsider and offered as additional
evidence an affidavit from Baines. The motion and affidavit
explained that Douglas County had compared the sales data
submitted to the state by the county in its annual “Assessed
Value Update” (AVU). The county discovered that many of the
sales that it categorized as nonusable non-arm’s-length transac-
tions in the AVU were included in the data for the PTA’s report.
But the state had not given the county notice that it disagreed
with the county’s categorization of those sales, as required in
regulation. The motion requested that TERC grant a hearing
and reconsider and vacate its prior order.
The TERC commissioners voted 2 to 1 to deny the motion to
reconsider and on the same day issued a written order adjust-
ing the valuation as it had voted to do at the hearing. Douglas
County appeals TERC’s order and the denial of its motion to
reconsider. We granted Douglas County’s petition to bypass the
Court of Appeals and moved this case to our docket.
III. ASSIGNMENTS OF ERROR
Douglas County claims that TERC’s decision to decrease the
valuation of Area 2 and increase the valuation of Areas 3 and
4 failed to conform with the law, was unsupported by compe-
tent evidence, and was arbitrary, capricious, and unreasonable.
It also claims that TERC’s denial of its motion to reconsider
was arbitrary, capricious, and unreasonable and constituted an
abuse of discretion.
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COUNTY OF DOUGLAS v. NEBRASKA TAX EQUAL. & REV. COMM.
Cite as 296 Neb. 501
IV. STANDARD OF REVIEW
[1-5] Under Neb. Rev. Stat. § 77-5019(5) (Cum. Supp.
2016), appellate review of a decision by TERC on a petition
for review is conducted for “error on the record of [TERC].”
When reviewing a judgment for errors appearing on the record,
the inquiry is whether the decision conforms to the law, is
supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.4 An agency decision is supported
by “‘competent evidence,’” “‘sufficient evidence,’” or “‘sub-
stantial evidence’” if the agency could reasonably have found
the facts as it did on the basis of the testimony and exhibits
contained in the record before it.5 Agency action is arbitrary,
capricious, and unreasonable if it is taken in disregard of the
facts or circumstances of the case, without some basis which
would lead a reasonable and honest person to the same con-
clusion.6 Agency action taken in disregard of the agency’s
own substantive rules is also arbitrary and capricious.7 When
reviewing cases for error appearing on the record, an appellate
court reviews questions of law de novo.8
V. ANALYSIS
1. Principles and Explanation of
Equalization, M ass A ppraisal,
and State Sales File
Before reviewing TERC’s order decreasing the valuation of
Area 2 and increasing the valuation of Areas 3 and 4 and its
denial of Douglas County’s motion to reconsider, it is neces-
sary to review the background principles and the legal frame-
work of equalization, mass appraisal, and the state sales file.
4
County of Douglas v. Nebraska Tax Equal. & Rev. Comm., 262 Neb. 578,
635 N.W.2d 413 (2001).
5
Douglas County v. Archie, 295 Neb. 674, 689-90, 891 N.W.2d 93, 104-05
(2017).
6
Douglas County v. Archie, supra note 5.
7
Id.
8
See id.
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Cite as 296 Neb. 501
(a) Equalization and
Mass Appraisal
The Nebraska Constitution mandates that “[t]axes shall be
levied by valuation uniformly and proportionately upon all real
property . . . .”9 To effectuate this mandate, the Constitution
establishes TERC, granting it the “power to review and equal-
ize assessments of property for taxation within the state.”10
TERC is required by statute to “annually equalize the
assessed value . . . of all real property as submitted by the
county assessors on the abstracts of assessments.”11 In the
exercise of this duty, TERC is granted “the power to increase
or decrease the value of a class or subclass of real property in
any county . . . so that all classes or subclasses of real property
in all counties fall within an acceptable range.”12
To assist TERC in its equalization responsibilities, the PTA
is mandated by statute to prepare “reports and opinions” for
each county; these reports must “contain statistical and nar-
rative reports informing [TERC] of the level of value and the
quality of assessment of the classes and subclasses of real
property within the county” and may include nonbinding equal-
ization recommendations.13
TERC may equalize classes and subclasses of real prop-
erty to ensure that they are within an “acceptable range”; an
acceptable range of property valuation is defined in statute
as “the percentage of variation from a standard for valua-
tion as measured by an established indicator of central tend­
ency of assessment.”14 For residential property, the acceptable
range of assessed valuation is 92 to 100 percent of actual
value. Whether a class or subclass of property falls within an
9
Neb. Const. art. VIII, § 1.
10
Neb. Const. art. IV, § 28.
11
Neb. Rev. Stat. § 77-5022 (Cum. Supp. 2016).
12
§ 77-5023(1).
13
§ 77-5027(3).
14
§ 77-5023(2).
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COUNTY OF DOUGLAS v. NEBRASKA TAX EQUAL. & REV. COMM.
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“­acceptable range” is to be determined by TERC “to a reason-
able degree of certainty relying upon generally accepted mass
appraisal techniques.”15 Generally accepted mass appraisal tech-
niques include the standards promulgated by the International
Association of Assessing Officers (IAAO).16
Whether a class or subclass of real property is within an
acceptable range is measured by an “Established Indicator of
Central Tendency.”17 An indicator of central tendency is “[t]he
result of measuring the tendency of most kinds of data to clus-
ter around some typical or central value . . . includ[ing] the
mean, median, and mode.”18 An established indicator of central
tendency of assessment is one that is “utilized in generally
accepted professional mass appraisal techniques.”19 Under both
TERC’s regulations and the IAAO standards, the preferred
indicator of central tendency is the median.20 Thus, TERC pre-
fers that valuation data “‘cluster’” around the median.21
When studying whether a class or subclass of real property
is within the acceptable range of assessed to actual value,
actual value (i.e., market value) is often determined by look-
ing to sales data. A “[s]ales ratio study” is one that uses sales
data as a proxy for determining market value.22 The PTA’s
reports use sales ratio studies to determine the value of resi-
dential property.23
15
§ 77-5023(5).
16
442 Neb. Admin. Code, ch. 2, § 001.45 (2011).
17
Id., ch. 9, § 002.08 (2011).
18
Id., § 002.10.
19
Id., § 002.08.
20
Id., § 004 (2011); International Association of Assessing Officers, Standard
on Ratio Studies (2013).
21
County of Franklin v. Tax Equal. & Rev. Comm., ante p. 193, 195, ___
N.W.2d ___, ___ (2017). Accord 442 Neb. Admin. Code, ch. 9, §§ 002.10
and 004; Standard on Ratio Studies, supra note 20.
22
442 Neb. Admin. Code, ch. 9, § 002.19 (2011).
23
§ 77-1327(3).
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COUNTY OF DOUGLAS v. NEBRASKA TAX EQUAL. & REV. COMM.
Cite as 296 Neb. 501
A primary tool for measuring the ratio of assessment to
actual value is the assessment-to-sales ratio.24 This ratio is
calculated by dividing a parcel of property’s assessed value by
the sales price of that parcel of property. For example, a house
with an assessed value of $95,000 that sells for $100,000 would
have an assessment-to-sales ratio of 95 percent. Conversely, a
house with an assessed value of $100,000 that sells for $95,000
would have an assessment-to-sales ratio of 105.26 percent.
Thus, using this ratio and using the median as the indicator of
central tendency for a class or subclass of property, the median
assessment-to-sales ratio would need to fall between 92 and
100 percent to be within the acceptable range.
The usefulness and accuracy of measures of “central tend­
ency” such as median and mean depend on the “quality”
or “reliability” of the assessments.25 Various tools are also
used under professionally accepted mass appraisal methods
to review the reliability of the measurements of central tend­
ency.26 The IAAO Standard on Ratio Studies27 explains the
importance of quality statistics:
The calculated measures of central tendency are point
estimates and provide only an indication, not proof, of
whether the level meets the appropriate goal. Confidence
intervals and statistical tests should be used to determine
whether the appraisal level differs from the established
goal in a particular instance.
A decision by an oversight agency to take some action
(direct equalization, indirect equalization, reappraisal) can
have profound consequences for taxpayers, taxing juris-
dictions, and other affected parties. This decision should
not be made without a high degree of certainty that the
action is warranted.
24
442 Neb. Admin. Code, ch. 9, § 002.02 (2011).
25
See Standard on Ratio Studies, supra note 20 at 33-34.
26
442 Neb. Admin. Code, ch. 9, § 002.17 (2011).
27
Standard on Ratio Studies, supra note 20 at 33.
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The “Coefficient of Dispersion” (COD) is used to measure
the uniformity of assessments.28 The COD is the average dif-
ference between each assessment-to-sales ratio and the median
assessment-to-sales ratio. To illustrate: Imagine a dataset with
three ratios, 50, 100, and 110 percent. The median ratio would
be 100 percent. The respective absolute differences between
the ratios and the median ratio (100 percent) would be 50,
0, and 10 percent. These ratios would average to produce a
COD of 20 percent. A lower COD indicates a higher level of
uniform­ity of assessment-to-sales ratios, while a higher COD
indicates less uniformity. Under TERC regulations and the
IAAO standards, the acceptable range of COD for residential
property is 15 percent or less29; that is, the ratios must be, on
average, within 15 percent of the median ratio.
The “Price Related Differential” (PRD) is a measure used
“to determine whether properties of differing values are treated
uniformly.”30 PRD is calculated by dividing the mean ratio by
the weighted mean ratio.31 Too high or low of a PRD indicates
“vertical inequity,” either regressivity (underassessed high-
value properties and overassessed low-value properties) or
progressivity (overassessed high-value properties and under­
assessed low-value properties). A PRD of under 1 indicates
progressivity, while a PRD of over 1 indicates regressivity.32
Vertical inequities of the regressive or progressive variety
are to be avoided.33 Under TERC regulations and the IAAO
28
442 Neb. Admin. Code, ch. 9, § 002.04 (2011).
29
Id., § 005.02 (2011); Standard on Ratio Studies, supra note 20 (5 to 15
percent).
30
442 Neb. Admin. Code, ch. 9, § 002.15 (2011).
31
Standard on Ratio Studies, supra note 20 (explaining that weighted mean
is calculated by dividing total assessed value of all selling properties by
total sales value of all selling properties, resulting in ratio that is weighted
for relative value of properties). See, also, 350 Neb. Admin. Code, ch. 17,
§ 002.19 (2013).
32
Id.
33
Standard on Ratio Studies, supra note 20.
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standards, the acceptable range for PRD is 0.98 to 1.03 (98
to 103 percent).34 Under the IAAO standards, “[u]nacceptable
vertical inequities should be addressed through reappraisal or
other corrective actions,”35 rather than through blanket equal-
ization changes.
The “confidence interval” measures the precision of the
sampling process, while the “confidence level” is the “degree
of probability associated with a statistical test or confidence
interval.”36 The confidence interval measures how reliably
the sold properties represent all of the other properties in the
class or subclass.37 Generally, a larger sample size and greater
uniformity of ratios result in a narrower confidence interval.38
A narrower range of confidence interval indicates a greater
reliability of a statistical measure (e.g., the median).39 For
example, Area 3 had a 95-percent median confidence interval
of 89.43 to 90.28 percent, meaning that the true median is
95-percent likely to fall within that range. Under the IAAO
standards, if any part of the confidence interval overlaps
with the acceptable range, equalization is not appropriate.40
The PTA’s reports are required by regulation to include a
95-percent confidence interval for each of the measures of
central tendency.41
(b) Sales File
The “sales file” is “a data base of sales of real prop-
erty, including arm’s length transactions, in the State of
34
442 Neb. Admin. Code, ch. 9, § 005.03 (2011); Standard on Ratio Studies,
supra note 20.
35
Standard on Ratio Studies, supra note 20 at 15.
36
442 Neb. Admin. Code, ch. 9, §§ 002.06 and 002.07 (2011).
37
Standard on Ratio Studies, supra note 20.
38
Id.
39
Id.
40
Id.
41
350 Neb. Admin. Code, ch. 17, § 004.01C(2)(k) (2013).
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Nebraska” and is developed and maintained by the state PTA.42
All sales in the sales file are deemed to be “arm’s length”
transactions unless determined otherwise.43 The sales file data
is used by the PTA as the basis for her annual assessment
ratio reports.44
Nearly every real estate transaction in Nebraska requires the
filing of a real estate transfer statement with a county register
of deeds.45 These statements require certain information about
the transaction and conveyance, such as the amount of consid-
eration paid.46 The statements must be sent by the register of
deeds to the county assessor.47
The county assessors must provide supplemental informa-
tion for each sale in the form of a sales worksheet.48 The sales
worksheet must indicate whether the sale is qualified as an
arm’s-length transaction for the sales file, providing an expla-
nation for any sales deemed to be non-arm’s-length transac-
tions.49 The transfer statements and the sales worksheets are
sent from the county assessors to the Department of Revenue
on a monthly basis.50
The assessor’s opinion as to whether a sale qualifies as
an arm’s-length transaction is presumed to be correct.51 The
Department of Revenue’s property assessment division may
42
Id., ch. 12, § 001.01 (2009).
43
§ 77-1327(2).
44
§ 77-1327(3).
45
Neb. Rev. Stat. § 76-214 (Cum. Supp. 2014). See, also, § 77-1327(2); 350
Neb. Admin. Code, ch. 12, § 003.01 (2009).
46
§§ 76-214 and 77-1327.
47
§ 76-214(1).
48
350 Neb. Admin. Code, ch. 12, §§ 003.03 and 003.03A (2009). See, also,
§ 76-214(1).
49
350 Neb. Admin. Code, ch. 12, § 003.03C (2009).
50
§ 76-214(1); 350 Neb. Admin. Code, ch. 12, §§ 003.01, 003.03, and
003.03A.
51
350 Neb. Admin. Code, ch. 12, § 003.04 (2009).
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override a county assessor’s determination of whether a sale
qualifies as an arm’s-length transaction, but must give notice
to the assessor of its decision in writing within 7 days.52 And
it may not overturn a county commissioner’s determination
that a sale qualifies or does not qualify as an arm’s length
transaction unless it reviews the sale and determines that the
assessor is incorrect.53 The process of disputing sales catego­
rizations between county assessors and the Department of
Revenue’s property assessment division is set forth in detail
in regulation.54
On an annual basis, county assessors must provide the
Department of Revenue and the PTA an “abstract of the
property assessment rolls.”55 According to the regulations, the
“County Abstract of Assessment Report” for real property con-
sists of, among other things, the AVU, characterized as “the
Report of [the] Current Year’s Assessed Value for Properties
Listed in the State’s Sales File.”56 Generating the AVU, accord-
ing to the state “Sales File Practice Manual,” is “the process of
populating current assessed values for the sales already located
in the state sales file” for use in the assessment-to-sales ratio
for the PTA’s report. That is, the AVU provides the state with
the assessment information to match the sales information the
state already has in its sales file through the real estate transfer
statements and sales worksheets.
The sales file is used as the basis for the PTA’s comprehen-
sive sales assessment ratio studies.57 The PTA’s sales assess-
ment ratio studies are used in their annual reports and opin-
ions for each county to aid TERC in its equalization duties.58
52
Id., § 003.04D (2009).
53
Id.
54
Id., §§ 003.04 to 003.04E (2009).
55
Neb. Rev. Stat. § 77-1514 (Cum. Supp. 2016).
56
350 Neb. Admin. Code, ch. 60, § 002.02A (2009).
57
§ 77-1327(3). See, also, § 77-5027.
58
§ 77-5027.
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The reports for each county “contain statistical and nar-
rative reports informing [TERC] of the level of value and
the quality of assessment of the classes and subclasses of
real property.”59
2. TERC’s Equalization Orders
(a) Area 2
TERC ordered an 8-percent decrease to the valuation of
Area 2. Both the PTA’s report and Baines in his testimony at
the show cause hearing explained that the lower-value sales
were skewing the data and that no change should be ordered
for Area 2. TERC nevertheless ordered the decrease. Douglas
County argues that this decision was unsupported by compe-
tent evidence; was arbitrary, capricious, and unreasonable; and
failed to conform to law. We agree.
The PTA’s report showed that the median assessment-to-
sales ratio for Area 2 was 104.82 percent. But whether a class
or subclass of property falls within the acceptable range is to
be “determined to a reasonable degree of certainty [by] relying
upon generally accepted mass appraisal techniques,”60 which
include the standards of the IAAO.61 As the IAAO standards
explain, measures of central tendency, such as the median, “are
point estimates and provide only an indication, not proof, of
whether the level meets the appropriate goal.”62 Other statistics
and factors must be considered to determine to a reasonable
degree of certainty whether the median is a reliable indicator
of central tendency.
One of these factors is the COD, which measures the uni-
formity or dispersion of assessments.63 The acceptable range
59
Id.
60
§ 77-5023(5).
61
442 Neb. Admin. Code, ch. 2, § 001.45.
62
Standard on Ratio Studies, supra note 20 at 33.
63
442 Neb. Admin. Code, ch. 9, § 002.04; Standard on Ratio Studies, supra
note 20.
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of COD under TERC’s regulations and the IAAO standards
for residential real property is under 15 percent.64 The COD
for Area 2 was 48.43 percent. This means that the average
­assessment-to-sales ratio of the sold properties is 48 percent
above or below the median of 104 percent. While the median
is at 104 percent, most properties in Area 2 are significantly
above or significantly below this median. TERC’s 8-percent
adjustment would not solve Area 2’s lack of assessment uni-
formity, but would only shift the problem. The proper method
for solving such problems of dispersion is “model recalibration
and/or reappraisal,”65 not blanket equalization orders.
The “acceptable range” of valuation must be determined
by an established “indicator of central tendency,”66 which is
defined as “[t]he result of measuring the tendency of most
kinds of data to cluster around some typical or central value.”67
If the assessment-to-sales ratios in a class or subclass of prop-
erty suffer from such a lack of uniformity that the ratios do not
“cluster around some typical or central value,” then there is
no “central tendency” to measure.68 With a COD in Area 2 of
48.43 percent, the data unquestionably does not cluster around
the median. Reappraisal, not equalization, is the proper remedy
for such a lack of uniformity.69
Not only does Area 2 suffer from a lack of overall uni­
formity of assessments, but there is a lack of uniformity
between higher-value and lower-value properties, referred to
as “regressive vertical inequity.” The PRD measures the uni-
formity of assessment between higher- and lower-value prop-
erties. The acceptable range of PRD under TERC’s regulations
64
442 Neb. Admin. Code, ch. 9, § 005.02; Standard on Ratio Studies, supra
note 20.
65
Standard on Ratio Studies, supra note 20 at 18.
66
§ 77-5023.
67
442 Neb. Admin. Code, ch. 9, § 002.10.
68
See, generally, id.
69
See Standard on Ratio Studies, supra note 20.
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and the IAAO standards for residential real property is 0.98
to 1.03 (98 to 103 percent). The PRD for Area 2 is 1.22 (122
percent). What this statistic shows is that lower-value proper-
ties in Area 2 are significantly overassessed while higher-value
properties are significantly underassessed. But like overall
uniformity problems, vertical inequities are not solved by
equalization orders, but, rather, “should be addressed through
reappraisal or other corrective actions.”70
The COD and the PRD show that there are significant prob-
lems with the assessments in Area 2, but not problems that
would be solved through the 8-percent decrease TERC ordered.
Prior to the decrease, the median ratio for all sales of $15,000
and over was 100.45 percent (which would round to 100 per-
cent and be within the acceptable range) and the median ratio
for all sales of $30,000 and over was 96.21 percent (right in the
middle of the acceptable range). The decrease would leave the
median ratio for all sales of $15,000 and over at 92.41 percent
(at the bottom of the acceptable range) and the median ratio for
all sales of $30,000 and over at 88.51 percent (well below the
acceptable range). The decrease would only reduce the median
for sales under $30,000 from 149 to 137 percent. Sales of
$15,000 and over represent 554 of the 632 sales (87 percent) in
the study for Area 2, while sales of $30,000 and over represent
393 of 632 sales (62 percent).
This data shows not only that the lower-price sales, as
Baines and the PTA explained, were skewing the data, but also
that an across-the-board equalization order would not solve
the valuation problems in Area 2. The decrease would leave a
large percentage of mid- to higher-value properties under the
acceptable range, while making only a small dent in the level
of overassessment of lower-value properties. It would leave the
median ratio of all properties sold for over $30,000—represent-
ing 62 percent of all the properties sold—below the statutory
range at 88.51 percent; the median ratio for properties sold for
70
Id. at 29.
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under $30,000 would still be well over the statutory range at
137 percent. The problems in Area 2 with a lack of uniformity
and regressive vertical inequity would not be solved by the
decrease ordered by TERC. As the IAAO standards explain:
States . . . that employ direct equalization techniques
should understand that such equalization is not a sub-
stitute for appraisal or reappraisal. . . . [E]qualization
cannot improve uniformity between properties within a
given [class or subclass of property]. For this reason,
reappraisal orders should be considered as the primary
corrective tool for uniformity problems . . . .71
Before voting to decrease the valuation of Area 2, and in
the course of questioning Baines, Commissioner Robert Hotz
discussed his concern about how lower-value properties in the
area were significantly overassessed, while mid- to higher-
value properties were correctly or underassessed. He explained
his reasoning for voting for the decrease:
I don’t think [TERC] has the authority to [adjust only
lower-value properties]. And so, to some degree, we
look at this — and we’ve read the correlation section
and we hear the [PTA’s] recommendation that we not
do an adjustment on this. I’m hearing you say the same
thing. And I’m looking at statistics that tell me these
low-dollar properties are over-assessed. It’s got to be
fixed. And I don’t think I have the authority to do it
unless I take the higher-dollar properties, they get to
kind of ride on the coattails of that adjustment, and then
be under-assessed —
....
. . . I don’t want that result either. Right now, the
low-dollar properties are carrying the freight and they
shouldn’t be. Now, it’s really hard to assess low-dollar
properties for the reasons that you’ve explained. I kind of
understand that.
71
Standard on Ratio Studies, supra note 20 at 21-22 (emphasis supplied).
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(Emphasis supplied.) Hotz went on to say to Baines, “It’s a
little frustrating to see what appears to be a significant area
of your county where it appears to be over-assessed.” He
explained that he thought ordering the decrease would be “the
lesser of two evils” because there were more lower-value prop-
erties than higher-value properties in the area, even though
it would put the higher-value properties out of the accept-
able range.
Hotz’ and TERC’s desire to remedy the problems in Area
2 is understandable. But across-the-board equalization orders
are not a cure-all for every valuation ailment. The proper
remedy for the lack of uniformity is reappraisal. Equalization
is a blunt tool and cannot cure uniformity problems. TERC
need not choose “the lesser of two evils”; its equalization
tool is capable of solving only one “evil”: assessment levels
that are out of range as determined to a reasonable degree of
certainty by a reliable indicator of central tendency. Fixing the
uni­formity problems is a task belonging to Douglas County.
Baines testified that he was working on resolving the prob-
lems in Area 2 (and across Douglas County) by doing things
such as developing an entirely new valuation model that
would bring the median ratio in Area 2 down to 97 per-
cent and redrawing the borders between valuation areas to
more accurately reflect market areas. These narrowly tailored
approaches are a more proper approach for resolving the val­
uation uniformity problems in Area 2.
Given the fact that neither the PTA nor Douglas County
presented evidence that would support TERC’s decision to
decrease the valuations of Area 2, we cannot conclude that
TERC’s decision was supported by competent evidence. As
such, its order decreasing the valuation of Area 2 by 8 percent
was therefore arbitrary, capricious, and unreasonable.
(b) Areas 3 and 4
TERC ordered a 7-percent increase to the valuation of
Areas 3 and 4. Douglas County argues that this order was
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unsupported by competent evidence; was arbitrary, capricious,
and unreasonable; and failed to conform to law. We disagree.
The PTA’s report shows that the median assessment-to-sales
ratios for Areas 3 and 4 were 89.77 and 90.08 percent, respec-
tively, falling outside the statutory range of 92 to 100 percent.
But unlike in Area 2, the quality statistics show that the median
is a reliable indicator of central tendency.
The COD for Areas 3 and 4 was 15.27 and 12.49 percent.
These are within or at the top of the acceptable range for the
COD, which shows that Areas 3 and 4 are reasonably uniform.
The PRD for Areas 3 and 4 was 1.0571 (105.71 percent) and
1.0347 (103.47 percent), at or slightly above the top of the
acceptable range of 0.98 to 1.03. While this shows some minor
regressive vertical inequity, it is minimal—standing in stark
contrast to the 1.22 (122 percent) PRD in Area 2.
Moreover, the median confidence interval for Areas 3 and
4 shows that the median ratios for these areas are accurate
indicators of central tendency. The median 95-percent confi-
dence interval for Area 3 is 89.43 to 90.28 percent. The median
95-percent confidence interval for Area 4 is 89.73 to 90.5
percent. Both of these ranges are entirely outside the accept-
able range of 92 to 100 percent. Moreover, these ranges are
very narrow, less than 1 percent, indicating a high degree of
sample reliability. That is, the median assessment-to-sales ratio
is likely to be a very reliable indicator of the ratio of assessed
to actual value of other properties in those areas.
There is very little in the PTA’s data that would show that
the median ratios of Areas 3 and 4, which are below the accept-
able range, are not accurate and reliable indicators of central
tendency. Instead, Douglas County relies heavily on the testi-
mony of Baines before TERC in the show cause hearing that
alleged that the sales data itself was unreliable.
Baines had been in the position of chief field deputy in
the Douglas County register of deeds and assessor’s office
since April 2015. Prior to taking that position, he worked as
an appraiser for 28 years in Kansas, including in the Kansas
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City area. When he began working as chief field deputy,
Baines noticed problems with the existing appraisal practices
in Douglas County. He stated that he “immediately started
uncovering inconsistencies.” He realized that his staff was
mostly not verifying sales to determine if they were qualified
arm’s-length transactions usable in the PTA’s sales ratio study.
Baines noticed that his predecessor had not completed any
“scope of work” documents outlining how the assessments had
been done each year. Vacant lots were “grossly undervalued” in
some areas and “grossly overvalued” in others. Baines worked
with the Department of Revenue’s property assessment divi-
sion to implement sales verification training for his staff. He
also sent out surveys to attempt to verify 2013 and 2014 sales
that were significantly out of range.
Baines said that after implementing changes in Douglas
County’s assessing practices, he was surprised when he received
the 2016 data from the state; many of the statistics had changed
significantly. He said, “[T]here has to be something drasti-
cally changing there to make that happen” and suspected that
the change in the statistics after he arrived may have been the
result of prior “sales chasing,” which is the improper practice
of “using the sale of a property to trigger a reappraisal of that
property at or near the selling price.”72 Sales chasing makes a
sales ratio study unreliable because the assessed values of sold
properties are no longer representative of the assessed values
of all the other properties in the study area.73 Baines explained
that if sales chasing had occurred, that meant that “the data
that was submitted to [the Department of Revenue’s property
assessment division] was manipulated to the point where it was
in range [which] told me I couldn’t rely on those sales to value
other properties.”
Baines’ primary reason why he believed no changes should
be made by TERC to the valuation of Areas 3 and 4 was
72
Id. at 43.
73
See Standard on Ratio Studies, supra note 20.
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that the sales data underlying the PTA’s statistics was unreli-
able. Because the underlying data was unreliable, Baines said,
according to generally accepted standards of mass appraisal, no
changes should be made.
While Baines’ testimony raises some questions about the
reliability of the data due to the practices of the Douglas
County assessor’s office prior to his arrival, we do not find that
TERC’s decision to order a 7-percent increase to the valuation
of Areas 3 and 4 was unsupported by competent evidence or
was arbitrary, capricious, and unreasonable. Baines testified
about problems he observed in Douglas County’s assessment
practices, such as not verifying sales. But his testimony that
there may have been sales chasing was simply offered as a
possible explanation for the surprising changes he observed
in the data from 2015 to 2016. While this explanation could
be correct, TERC was not unreasonable in failing to credit
this explanation and nonetheless relying on the statistics based
on the sales file data. Providing a few examples of improper
procedures or practices does not establish beyond dispute that
the sales file was unreliable. Our standard of review is a def-
erential one. It is not our task to determine de novo whether
the sales file data was so unreliable that no changes should be
made, but, rather, our task is to determine whether TERC acted
unreasonably in reaching its conclusion. We believe that TERC
did not act unreasonably here. Its decision was supported by
the evidence provided by the PTA. TERC’s decision to order
a 7-percent increase in valuation for Areas 3 and 4 was sup-
ported by competent evidence and was not arbitrary, capri-
cious, and unreasonable.
3. Motion to R econsider
After TERC voted to order the valuation adjustments to
Areas 2 through 4, but before it issued its written order,
Douglas County submitted a motion to reconsider, request-
ing a hearing and that TERC thereafter reconsider and vacate
its prior order. Included with the motion was an affidavit by
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Baines alleging that the PTA improperly included sales in her
report that Douglas County has designated as non-arm’s-length
transactions, without notifying the county as required by regu-
lation. TERC voted 2-to-1 to deny the motion to reconsider.
Douglas County argues that this was an abuse of discretion.
We disagree.
(a) Standard of Review
[6,7] We have yet to address the applicable standard of
review for a motion to reconsider in the administrative law
context. A trial court’s decision to grant or deny a motion to
reconsider is reviewed for an abuse of discretion.74 Similarly,
the abuse of discretion standard applies to our review of a
trial court’s grant or denial of a motion to vacate or amend
a judgment.75
[8] We conclude that the abuse of discretion standard should
also apply to our review of the grant or denial of a motion to
reconsider by an administrative body. An abuse of discretion
occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence.76
(b) Procedure
First, TERC argues, citing cases from other jurisdictions,77
that it is improper to use a motion to reconsider to raise evi-
dence that could have been raised in the earlier proceeding. It
also cites Nebraska case law in which we have held that grant-
ing a motion for new trial on the basis of newly discovered
74
State v. Bao, 269 Neb. 127, 690 N.W.2d 618 (2005); Frerichs v. Nebraska
Harvestore Sys., 226 Neb. 220, 410 N.W.2d 487 (1987); Gutchewsky v.
Ready Mixed Concrete Co., 219 Neb. 803, 366 N.W.2d 751 (1985). See
Ryder v. Ryder, 290 Neb. 648, 861 N.W.2d 449 (2015).
75
See Ryder v. Ryder, supra note 74.
76
State v. Cerritos-Valdez, 295 Neb. 563, 889 N.W.2d 605 (2017).
77
J.P. v. Smith, 444 N.J. Super. 507, 134 A.3d 977 (2016); Cho v. State, 115
Haw. 373, 168 P.3d 17 (2007).
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evidence is not proper when the evidence could have been
discovered before trial with diligent inquiry.78
But we have not previously considered whether new evi-
dence, or evidence available at the time of the prior proceed-
ing, may be now presented as the basis for a motion to recon-
sider. In both the civil and the criminal context, the grounds
upon which a motion for new trial may be granted are limited
by statute and include newly discovered evidence.79 But there
is no statute or court rule that limits a motion for reconsidera-
tion to newly discovered evidence. And in other contexts, we
have distinguished a motion for reconsideration from a motion
for new trial.80
[9] We have held that an administrative agency that is autho-
rized to exercise quasi-judicial power is impliedly authorized
to reconsider its own decisions.81 TERC’s regulations allow it
to reconsider any order it has issued during its statewide equal-
ization proceedings.82
We have explained that a motion for reconsideration is noth-
ing more than an invitation to the court to consider exercising
its inherent power to vacate or modify its own judgment.83
In some contexts, a motion for reconsideration may also be
treated as a motion to alter or amend a judgment for pur-
poses of terminating the appeal period under Neb. Rev. Stat.
§ 25-1329 (Reissue 2016).84
As to a motion to reconsider, it appears to be an open ques-
tion whether an administrative agency or commission acting
78
See Maddox v. First Westroads Bank, 199 Neb. 81, 256 N.W.2d 647
(1977).
79
See Neb. Rev. Stat. §§ 25-1142 and 29-2101 (Reissue 2016).
80
Kinsey v. Colfer, Lyons, 258 Neb. 832, 606 N.W.2d 78 (2000).
81
City of Lincoln v. Twin Platte NRD, 250 Neb. 452, 551 N.W.2d 6 (1996);
Ventura v. State, 246 Neb. 116, 517 N.W.2d 368 (1994).
82
442 Neb. Admin. Code, ch. 9, § 009.07 (2011).
83
Kinsey v. Colfer, Lyons, supra note 80.
84
State v. Bellamy, 264 Neb. 784, 652 N.W.2d 86 (2002).
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in an adjudicatory capacity can consider additional evidence
that does not constitute newly discovered evidence. But we
need not decide that issue here, because we conclude that
even if the evidence presented by Douglas County could be
considered, TERC did not abuse its discretion in denying
the motion.
4. Douglas County’s Motion
and A ffidavit
Douglas County’s motion and affidavit question whether the
state improperly included non-arm’s-length transactions in its
sales file and the PTA’s report. The county based its allegations
on a comparison between the county’s AVU and the state sales
file. It alleges that sales which it categorized as non-arm’s-
length transactions, thus not usable in a sales ratio study, were
included in the PTA’s assessment ratio study.
The county argues that this violates TERC’s regulations.
Those regulations require county assessors, when sending a
sales worksheet to the state, to “indicate numerically on the
sales worksheet their opinion as to whether the sale is quali-
fied or non-qualified for inclusion in the sales file as an arm’s
length transaction.”85 The Department of Revenue’s property
assessment division may verify a county assessor’s categori-
zation of a sale, but when doing so, “the assessor’s opinion
with respect to the inclusion, exclusion or adjustment of a
sale shall be presumed correct.”86 The property assessment
division may override a county assessor’s categorization of a
sale in some circumstances if it does not agree with it, but if
it does so, it “shall, within seven (7) days of such determina-
tion, notify the county assessor in writing that the sale will
not be included in or excluded from the sales file.”87 The
property assessment division did not provide Douglas County
85
350 Neb. Admin. Code, ch. 12, § 003.03C.
86
Id., § 003.04.
87
Id., § 003.04D.
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notice of its intent to recategorize and include in the sales
file and the PTA’s report the sales that the county had cat-
egorized as sales nonusable in the AVU. Therefore, Douglas
County argues, the PTA improperly included the sales in her
study and TERC should have granted the motion to dismiss
and vacate its ordered changes that were based on the PTA’s
report data.
But as TERC points out, the AVU is not the vehicle by
which county assessors inform the state about a sale’s usability
in the sales file. Rather, the AVU is the vehicle by which asses-
sors provide assessment information to match the sales that are
already in the state sales file. The information about whether a
transaction qualifies as an arm’s-length transaction usable in a
ratio study is sent from the county assessor to the state in the
sales worksheet for each sale, filed on a monthly basis.88 The
AVU is merely the vehicle for conveying the assessment infor-
mation to match those sales, sent on an annual basis.89
Critically, Douglas County has not alleged that the catego-
rization of sales used in the PTA’s report differs from that
of the sales data sent to the state by Douglas County in the
sales worksheets. If there is, in fact, a difference between
the categorization of sales in the AVU and that of sales in
the PTA’s report, it is not clear whether the difference results
from a discrepancy between the categorizations of sales in
the county’s sales worksheets and the PTA’s report or from
a discrepancy between the county’s sales worksheets and the
county’s AVU.
Douglas County’s motion and affidavit fail to allege that
the PTA improperly included sales that the county designated
in the sales worksheets as nonusable. The purpose of the AVU
is to send assessment information to match the sales informa-
tion (including categorization as to usability) already in the
sales file. Douglas County’s allegations are insufficient to
88
Id., §§ 003.01, 003.03, 003.03A, and 003.03C.
89
Id., ch. 60, § 002.02A. See, also, § 77-1514(1).
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establish that the PTA improperly included non-arm’s-length
sales in her report.
In its motion to reconsider and affidavit, Douglas County
also alleges that the PTA included sales in the wrong valuation
area in her sales ratio study. Specifically, it alleges that the
PTA included 327 sales from Area 6 in Area 3 and included
526 sales from Area 3 in Area 4. As in the alleged inclusion
of non-arm’s-length sales, Douglas County contends that this
renders the data underlying the PTA’s report unreliable and
an insufficient basis upon which to rely to order equaliza-
tion changes.
But these allegations could have been raised before TERC
at the show cause hearing. Douglas County had the ability to
access the state sales file at any time.90 We have declined to
conclude that Douglas County is procedurally barred from pre-
senting previously available evidence in support of its motion
to reconsider. But the fact remains that it could have presented
such evidence at the show cause hearing. This fact supports our
determination that TERC did not abuse its discretion by deny-
ing the motion. After the PTA produced her report for Douglas
County on April 8, 2016, that recommended that the value of
Areas 3 and 4 be increased, the county had ample time to com-
pare the sales file relied upon by the PTA with its own sales
information and present any discrepancies it found to TERC at
the show cause hearing on April 27. Instead, Douglas County
filed its motion to reconsider and its affidavit in support on
May 4.
Not only did Douglas County unnecessarily delay the pre-
sentation of these alleged discrepancies to TERC until after the
show cause hearing, but the allegations provide no information
as to the impact of the alleged errors. The motion and affi-
davit provide no information that would establish the impact
of the allegation that sales from other areas were improperly
included in Areas 3 and 4. There was no evidence showing
90
See, 350 Neb. Admin. Code, ch. 12, §§ 001.02 and 003.08 (2009).
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the sales that were alleged to have been improperly included
affected whether the ratios in Areas 3 and 4 fell within the
acceptable range. The allegations do not state whether these
sales would have increased or decreased the median ratio in
those areas or would have made no difference at all. Thus,
TERC was presented with allegations, but not proof of Douglas
County’s assertions.
While Douglas County’s allegations raised questions whether
there were problems with the sales information relied upon by
the PTA in producing the report for Douglas County, these
allegations did not provide any answers. Douglas County could
have raised these allegations at the show cause hearing, and
offered the evidence in support, but it failed to do so. TERC
did not abuse its discretion when it denied Douglas County’s
motion to reconsider, and we affirm.
VI. CONCLUSION
TERC’s order to decrease the valuation of Area 2 by 8 per-
cent was not supported by competent evidence and was arbi-
trary, capricious, and unreasonable. TERC’s order to increase
the valuation of Areas 3 and 4 was supported by competent
evidence and was not arbitrary, capricious, and unreasonable.
TERC did not abuse its discretion in denying Douglas County’s
motion to reconsider its order. We reverse TERC’s order as to
Area 2 and affirm in all other respects.
A ffirmed in part, and in part reversed.
Miller-Lerman, J., not participating.