Johnson v. City of Kearney

ConClusion
We again decline the state’s invitation to overrule our deci-
sions in Gibbs15 and Jacques.16 But the district court did not
clearly err in overruling Wells’ motion to discharge, and its
order is affirmed.
A ffirmed.
15 Gibbs, supra note 2.
16 Jacques, supra note 3.
mArlo Johnson And Jennifer Johnson, AppellAnts , v.
C ity of K eArney, nebrAsKA, Appellee .
763 n.W.2d 103
Filed April 3, 2009. 	no. s-07-1194.
1. Statutes: Appeal and Error. statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
2. Special Assessments: Appeal and Error. in an appeal from the levy of spe-
cial assessments, the party contesting the assessment has the burden of show-
ing invalidity.
3. Taxation: Appeal and Error. An appeal from a board of equalization is tried by
the district court de novo.
4. Special Assessments: Evidence: Appeal and Error. on appeal from an action
brought pursuant to neb. Rev. stat. § 19-2422 (Reissue 2007), an appellate court
tries factual questions de novo on the record and reaches a conclusion indepen-
dent of the findings of the trial court, provided, where credible evidence is in con-
flict on a material issue of fact, the appellate court considers and may give weight
to the fact that the trial judge heard and observed the witnesses and accepted one
version of the facts rather than another.
5. Municipal Corporations: Ordinances: Improvements. A city council’s deter-
mination whether or not there are a sufficient number of objections to challenge
an ordinance, and prevent a city from going forward with a paving district, is an
exercise of a city council’s judicial function.
6. Municipal Corporations: Appeal and Error. When an entity such as a city
council is exercising its judicial functions, the petition in error statute is the
proper method for challenging such actions.
7. ____: ____. A city council is a tribunal whose decision can be reversed, vacated,
or modified through the petition in error process set forth in neb. Rev. stat.
§ 25-1901 (Reissue 2008).
8. Special Assessments: Improvements: Words and Phrases. special assessments
are charges imposed by law on land to defray the expense of a local municipal
johnson v. City oF keARney 	481
Cite as 277 neb. 481
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

improvement on the theory that the property has received special benefits from
the improvements in excess of the benefits accruing to property or people
in general.
9. Special Assessments. the amount of a special assessment cannot exceed the
amount of benefit conferred on the property assessed.
10. Special Assessments: Improvements: Valuation. the board of equalization’s
valuation of the benefits conferred is not limited to the present use made of the
improvement, but extends to the use which might reasonably be made of the
improvement in the future.
11. Special Assessments: Presumptions. Absent evidence to the contrary, it will be
presumed that the amount of the special assessment was arrived at with reference
only to the benefits which accrued to the property affected.
Appeal from the District Court for Buffalo County: John p.
iCenogle, judge. Affirmed.
Arthur R. langvardt for appellants.
justin R. herrmann and jeffrey h. jacobsen, of jacobsen, orr,
nelson, lindstrom & holbrook, P.C., l.l.o., for appellee.
heAviCAn, 	C.J., 	Wright, 	C onnolly, 	gerrArd, 	stephAn,
mCC ormACK, and miller-lermAn, JJ.
miller-lermAn, J.
nAtuRe oF the CAse
Appellants, Marlo johnson and jennifer johnson, challenged
the creation of a paving and improvement district in general
and the validity of a special assessment levied against their
property in particular. After trial, the district court for Buffalo
County concluded that the paving and improvement district was
properly created, affirmed the special assessment, and entered
judgment in favor of appellee, City of kearney. Appellants
appeal from this judgment, claiming both that the ordinance
creating the district is void due to objections filed against the
creation of the district pursuant to neb. Rev. stat. § 16-620
(Reissue 2007) and that the special assessment levied against
appellants’ property was excessive. Although we conclude that
the district court did not have authority to consider the valid-
ity of the ordinance, we nevertheless conclude that the special
assessment was proper and, therefore, affirm.
482 	277 neBRAskA RePoRts

stAteMent oF FACts
Appellants are the owners of real estate abutting the east
side of south Central Avenue in kearney, nebraska, described
as “[t]he westerly 250 feet of tax lot 12, in Government lot
8, in section 12, township 9 north, Range 16 West of the
6th P.M., Buffalo County, nebraska, lying north of the north
line of talmadge street, if extended.” in this action, appel-
lants are challenging the passage of the ordinance creating
paving and improvement district no. 2000-822 along Central
Avenue and the special assessment levied on their property
described above.
Central Avenue is a north-south street. Appellants’ property
runs approximately from interstate 80 on the south to a channel
of the Platte River on the north. At the time the special assess-
ment was levied on the property, appellants conducted various
businesses on the property, including a fish hatchery, a “Fort
kearney Museum” tourist attraction, glass-bottom boat rides, a
taxidermy studio, house rentals, and a commercial game farm.
Appellants contend that most of their property at issue in this
case consists of ponds or lakes.
on February 8, 2000, the kearney City Council adopted
ordinance no. 6621, which created paving and improvement
district no. 2000-822. District no. 2000-822 called for the
widening of a section of Central Avenue from a 24-foot-wide
street to a 36-foot-wide street and also called for curbs, gutters,
and new storm sewers.
Appellants prepared a written petition objecting to the pro-
posed district and circulated the petition among the landowners
abutting the affected portion of Central Avenue. Consistent
with § 16-620, discussed below, the objections were filed with
the kearney city clerk within 20 days of the first publication
of ordinance no. 6621. the parties stipulated at trial that the
objections contained the signatures of more than 50 percent of
the landowners subject to the special assessment.
the objections were filed pursuant to § 16-620 in an
attempt to prevent the district from being constructed. section
16-620 states:
johnson v. City oF keARney 	483
Cite as 277 neb. 481

if the owners of the record title representing more than
fifty percent of the front footage of the property abutting
or adjoining any continuous or extended street, cul de
sac, or alley of the district, or portion thereof which is
closed at one end, and who were such owners at the
time the ordinance creating the district was published,
shall file with the city clerk, within twenty days from
the first publication of said notice, written objections
to the improvement of a district, said work shall not
be done in said district under said ordinance, but said
ordinance shall be repealed. if objections are not filed
against any district in the time and manner aforesaid, the
mayor and council shall forthwith proceed to construct
such improvement.
the 20-day period for filing objections to the ordinance
creating the paving and improvement district ended on March
2, 2000. Following the filing of the objections, for reasons
not clearly identified in the record, individuals requested that
their names be withdrawn from the objections. on March
14, the city council met and accepted a report from the clerk
to the effect that after the filing of the withdrawal letters,
only 47.01 percent of the landowners were still objecting
to the ordinance. Based on this recommendation, the city
found that there were insufficient objections to the ordinance.
Construction followed.
two and a half years later and after construction of improve-
ments, on november 12, 2002, the city council, sitting as a
board of equalization, heard objections to a proposed special
assessment to pay for the construction. Appellants appeared
at the hearing and objected to the amount and validity of the
proposed special assessment levied against their property. the
council voted in favor of the special assessment and levied
an assessment in the amount of $30,686.04 against appel-
lants’ property.
in their brief filed with this court, and at oral argument,
appellants stated that they filed a notice of appeal in the district
court for Buffalo County pursuant to neb. Rev. stat. §§ 19-2422
and 19-2423 (Reissue 2007), which permit a property owner to
appeal the validity and the amount of a special assessment,
484 	277 neBRAskA RePoRts

and appellants paid the requisite $200. see § 19-2423. in their
petition on appeal filed with the district court on December
11, 2002, appellants alleged that the ordinance creating the
district should be repealed based on the objections filed under
§ 16-620 and further that the special assessment levied against
their property was excessive.
A trial was held on july 23, 2007. the director of pub-
lic works for the city and the city engineer testified as to
the condition of the district prior to the paving project and
stated that there was a 24-foot-wide asphalt road surface; the
area was considered a rural section in the city; and much of
Central Avenue in the district had ditches and grass, soil, and
gravel shoulders. the director of public works testified that
before the creation of the district, he had received a number
of complaints from businesses concerned with mud, ponding
of water, and the lack of drainage. the city officials testi-
fied that the district widened Central Avenue, eliminated the
ditches, and replaced them with a new drainage system con-
sisting of the widened concrete paved surface of the roadway
itself and curbing and inlets facilitating drainage to the storm
sewers. Appellants’ property also received four concrete drive-
way approaches.
the city engineer testified as to the method for determin-
ing front footage in order to make the assessment. the city
engineer prepared the original map for the district, which
showed the front footage of various lots to be assessed within
the district. he then eliminated from the measurements front
footage of property that had been assessed for a state project
completed 2 years earlier, in an effort not to assess property
for improvements already made, and eliminated other front
footage that was not assessable for various reasons. Appellants
were assessed $30,686.04 for 691 feet of assessable front foot-
age. the city engineer testified that this amounted to “$40.20
. . . per foot” and that in his opinion, the nature of the benefits
received by all landowners was equal.
through their evidence, appellants attempted to show that
prior to the creation of the district, there was essentially
a newly paved 24-foot road. Appellants contested the city’s
assertion that there was ponding of water in the area where the
johnson v. City oF keARney 	485
Cite as 277 neb. 481

district was built and challenged the need for new storm sew-
ers. in argument, appellants challenged the ordinance and the
creation of the district.
on october 26, 2007, the district court entered judgment
in favor of the city. With respect to the propriety of the ordi-
nance creating the district, the court concluded that objectors
may properly withdraw their objections until such time as the
city repeals the newly created ordinance. the court thereby
approved of the ordinance and the creation of the district. the
court next found that the paving project did in fact enhance
appellants’ property. specifically, the district court noted that
the road was widened; temporary asphalt was replaced with
permanent concrete; roadside ditches were replaced with curb-
ing, gutters, and additional drainage; soil and gravel were
removed; and modern lighting was installed. the assessment
was affirmed. Appellants appeal.
AssiGnMents oF eRRoR
Appellants contend that the district court erred by (1) con-
cluding that the city council could consider withdrawals of
previously filed written objections until such time as the city,
should it choose, repeals the newly created ordinance and
(2) finding that appellants’ property received special benefit
by reason of the work done under the paving and improve-
ment district.
stAnDARDs oF ReVieW
[1] statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
McClellan v. Board of Equal. of Douglas Cty., 275 neb. 581,
748 n.W.2d 66 (2008).
[2-4] in an appeal from the levy of special assessments, the
party contesting the assessment has the burden of showing inva-
lidity. see NEBCO, Inc. v. Board of Equal. of City of Lincoln,
250 neb. 81, 547 n.W.2d 499 (1996). An appeal from a board
of equalization is tried by the district court de novo. § 19-2422.
on appeal from an action brought pursuant to § 19-2422, an
appellate court tries factual questions de novo on the record
and reaches a conclusion independent of the findings of the
486 	277 neBRAskA RePoRts

trial court, provided, where credible evidence is in conflict on
a material issue of fact, the appellate court considers and may
give weight to the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than
another. see Purdy v. City of York, 243 neb. 593, 500 n.W.2d
841 (1993). see, also, NEBCO, Inc., supra.
AnAlysis
on appeal, appellants claim in general that the ordinance
creating the paving and improvement district should have
been repealed based on the number of objections initially
filed pursuant to § 16-620 and, in particular, that the special
assessment levied against appellants’ property by the district
created by the ordinance was excessive. the district court
found that no procedural defect occurred in the creation of the
paving and improvement district and that because the paving
and improvement project did in fact enhance appellants’ prop-
erty, the special assessment levied on appellants’ property was
not excessive.
The District Court Had No Authority to Address
the Validity of the Ordinance Creating the
Paving and Improvement District.
in their brief to this court, and at oral argument, appellants
state that their appeal to the district court was taken pursu-
ant to §§ 19-2422 and 19-2423. section 19-2422 states in
part that
[a]ny owner of real property who feels aggrieved by the
levy of any special assessment by any city of the first or
second class or village may appeal from such assessment,
both as to the validity and amount thereof, to the district
court of the county where such assessed real property
is located.
the city questions the authority of the district court to
determine the validity of the ordinance creating the district
in this case, which was filed under § 19-2422. We agree
with the city that the district court did not have authority to
rule on the propriety of the ordinance in this case brought
under § 19-2422.
johnson v. City oF keARney 	487
Cite as 277 neb. 481

Appellants appear to believe that the language in § 19-2422,
which allowed them as owners of real property to challenge in
district court the validity and amount of a special assessment
levied against them, also gave the district court jurisdiction
over their challenge to the city council’s underlying finding
that there were an insufficient number of objections under
§ 16-620 to repeal the new ordinance and inhibit the creation
of the paving and improvement district. Appellants’ belief is
in error.
By its terms, § 19-2422 gives the owner of real property the
authority to challenge the validity and the amount of the levy
assessed. nowhere in the language of § 19-2422 does the stat-
ute give an owner of real property the authority to challenge a
city council’s determination as to the sufficiency of the objec-
tions filed under § 16-620 or the propriety of the ordinance and
the creation of the district.
[5-7] this court has held that a city council’s determination
whether or not there are a sufficient number of objections to
challenge an ordinance, and prevent a city from going forward
with a paving district, is an exercise of the city council’s
judicial function. see Hiddleson v. City of Grand Island, 115
neb. 287, 212 n.W. 619 (1927). When an entity such as a city
council is exercising its judicial functions, the petition in error
statute is the proper method for challenging such actions. neb.
Rev. stat. § 25-1901 (Reissue 2008) states that “[a] judgment
rendered or final order made by any tribunal, board, or officer
exercising judicial functions and inferior in jurisdiction to the
district court may be reversed, vacated, or modified by the
district court . . . .” A city council is a tribunal whose deci-
sion can be reversed, vacated, or modified through the peti-
tion in error process set forth in § 25-1901. see, e.g., Abboud
v. Lakeview, Inc., 237 neb. 326, 466 n.W.2d 442 (1991).
A petition in error must be brought within 30 days of the
decision sought to be challenged. neb. Rev. stat. § 25-1931
(Reissue 2008).
in this case, appellants should have challenged the city
council’s determination as to the sufficiency of the objections
through the petition in error statute and should have done
so within 30 days. Appellants’ petition filed in December
488 	277 neBRAskA RePoRts

2002 challenging the city council’s March 2000 decision
regarding the propriety of the newly enacted ordinance was
out of time.
For completeness, we note that appellants refer us to Foote
Clinic, Inc. v. City of Hastings, 254 neb. 792, 580 n.W.2d
81 (1998), and suggest that their appeal is timely. however,
in Foote Clinic, Inc. the appellants’ challenge was brought
as a declaratory judgment action, and appellants in this case
acknowledged that they did not bring a declaratory judgment
action. Foote Clinic, Inc. is therefore inapposite. Because the
aspect of appellants’ case challenging the validity of the ordi-
nance was not timely, the district court was without authority
to rule on the propriety of the city council’s decision regarding
the sufficiency of the objections under § 16-620. Appellants’
challenge to this portion of the district court’s decision is with-
out merit.
The Special Assessment Levied Against Appellants’
Property Was Not Excessive.
[8,9] special assessments are charges imposed by law on
land to defray the expense of a local municipal improvement on
the theory that the property has received special benefits from
the improvements in excess of the benefits accruing to prop-
erty or people in general. Bennett v. Board of Equal. of City of
Lincoln, 245 neb. 838, 515 n.W.2d 776 (1994). the amount of
a special assessment cannot exceed the amount of benefit con-
ferred on the property assessed. Id.; Brown v. City of York, 227
neb. 183, 416 n.W.2d 574 (1987). We have observed:
“‘An assessment may not be arbitrary, capricious, or
unreasonable but the law does not require that a special
assessment correspond exactly to the benefits received. . . .
the most any officer or any tribunal can do in this regard
is to estimate the benefits to each tract of real estate upon
as uniform a plan as may be in the light afforded by avail-
able information.’”
NEBCO, Inc. v. Board of Equal. of City of Lincoln, 250 neb.
81, 86, 547 n.W.2d 499, 503 (1996) (quoting Bennett, supra).
[10,11] the board of equalization’s valuation of the bene-
fits conferred is not limited to the present use made of the
johnson v. City oF keARney 	489
Cite as 277 neb. 481

improvement, but extends to the use which might reasonably
be made of the improvement in the future. Brown, supra.
Absent evidence to the contrary, it will be presumed that the
amount of the special assessment was arrived at with reference
only to the benefits which accrued to the property affected. Id.
it is the property owner who challenges the special assessment
who has the burden of establishing its invalidity. Id.
After our de novo review of the record, we cannot say the
board’s decision to approve the special assessment was arbi-
trary, capricious, or unreasonable. At trial, the city established
that the paving and improvement district was essentially a rural
section within the city limits and that much of Central Avenue
in the district had ditches and grass, soil, and gravel shoulders.
the city officials testified that there had been complaints about
the ponding of water in ditches, the poor road conditions, and
improper drainage in the district. the officials testified that the
ponding of water created a problem with insects and debris
gathering in the ditches and created icy conditions in the winter
and that the poor road conditions created problems with dust
and dirt.
the city then set forth evidence that the paving and improve-
ment district made improvements to the property by widening
the street, updating the sewage system, modernizing the light-
ing, and replacing dirt and soil with curbing. the officials testi-
fied that these improvements addressed many of the problems
complained of by the residents and business owners. the city
engineer also testified as to the method used in determining
the amount of the assessment and the steps taken to ensure
that the assessment was fair and uniform among all landown-
ers assessed.
in response to the city’s evidence, appellants claimed that
the road the city replaced met their needs and did not need to
be replaced, and challenged the city’s contention that prior to
the creation of the district, there was “ponding” on some of the
land in the district. Appellants do not, however, argue that the
city did not improve the road, and this court has held that there
is a presumption at law that all real estate is benefitted to some
degree from the improvement of a street or alley on which it
490 	277 neBRAskA RePoRts

abuts. see Bitter v. City of Lincoln, 165 neb. 201, 85 n.W.2d
302 (1957).
the bulk of the evidence presented by appellants at trial
was testimony by appellant Marlo johnson that he had not
experienced any drainage problems prior to the creation of the
district, but had noticed standing water at some of his rental
properties since the creation of the district. however, Marlo
johnson admitted that he was not aware whether individuals
complained to the city of ponding. it is appellants’ burden to
rebut the presumption in favor of the assessment, and based
on this record, appellants did not set forth sufficient evidence
refuting the benefits of the improvement, as described by the
city officials, or show that the assessment was arbitrary, capri-
cious, or unreasonable. see NEBCO, Inc. v. Board of Equal.
of City of Lincoln, 250 neb. 81, 547 n.W.2d 499 (1996).
therefore, we conclude that appellants did not rebut the pre-
sumption that the assessment levied pursuant to the creation
of paving and improvement district no. 2000-822 benefited
appellants’ property.
ConClusion
Although we conclude that the district court was without
authority to determine the issue of the validity of the ordinance,
we, nevertheless, affirm the decision of the district court which
found that appellants did receive a benefit to their property and
which affirmed the special assessment.
A ffirmed.
johnson v. City oF keARney 	491
Cite as 277 neb. 481