Brenner v. Banner Cty. Bd. of Equal.

occupants claimed its ownership. Petersen’s testimony was not
hearsay because it was not offered to prove the truth of the
ownership of the mask. Petersen testified to his observations
and not to any statement or nonverbal conduct by any of
the parties involved. The trial court did not err in overruling
Poe’s objections.
ConCluSion
in reviewing a criminal conviction, an appellate court does
not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence. Such matters are for
the finder of fact, and a conviction will be affirmed, in the
absence of prejudicial error, if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support the conviction. State v. Archie, 273 neb. 612, 733
n.W.2d 513 (2007). The evidence was sufficient to support the
conviction. We find no prejudicial error and no merit to any
of Poe’s assigned errors. The judgment of the district court
is affirmed.
A ffirmed .
heAvicAN, C.J., not participating.
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	275
Cite as 276 neb. 275
robert m. breNNer ANd liSA d. breNNer , AppellANtS, v .
bANNer couNty boArd of equAlizAtioN, Appellee .
753 n.W.2d 802
Filed August 1, 2008. 	no. S-07-810.
1. Taxation: Judgments: Appeal and Error. Decisions rendered by the Tax
Equalization and Review Commission shall be reviewed by an appellate court for
errors appearing on the record of the commission.
2. Judgments: Appeal and Error. 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. Taxation: Appeal and Error. Questions of law arising during appellate review
of Tax Equalization and Review Commission decisions are reviewed de novo on
the record.
4. Statutes: Judicial Construction: Legislature: Presumptions: Intent. Where
a statute has been judicially construed and that construction has not evoked an
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

amendment, it will be presumed that the legislature has acquiesced in the court’s
determination of the legislature’s intent.
5. Taxation: Due Process: Evidence: Appeal and Error. The Tax Equalization
and Review Commission must be afforded some discretion in determining the
probative value and admissibility of evidence in an informal appeal hearing,
and a proper exercise of such discretion cannot constitute a denial of procedural
due process.
6. Taxation: Valuation. in tax valuation cases, actual value is largely a mat-
ter of opinion and without a precise yardstick for determination with com-
plete accuracy.
7. ____: ____. An assessor may reasonably rely on physical measurements made by
an appraiser as part of a mass appraisal.
8. ____: ____. Physical depreciation results from deterioration of improvements
over time.
9. Property: Valuation: Witnesses. A resident owner who is familiar with his or
her property and knows its worth is permitted to testify as to its value without
further foundation.
10. Taxation: Valuation: Proof. When a county board of equalization has determined
the value of the property, uniformly and impartially assessed through a formula in
substantial compliance with statutes governing taxation, for reversal of the board’s
action, a taxpayer must show more than a difference of opinion concerning the
assessed value of the taxpayer’s real estate.
11. Taxation: Valuation: Words and Phrases. Equalization is the process of ensuring
that all taxable property is placed on the assessment rolls at a uniform percentage
of its actual value.
12. Taxation: Valuation. The purpose of equalization of assessments is to bring the
assessment of different parts of a taxing district to the same relative standard,
so that no one of the parts may be compelled to pay a disproportionate part of
the tax.
Appeal from the Tax Equalization and Review Commission.
Affirmed.
Robert M. brenner, of Robert M. brenner law office,
for appellants.
James l. Zimmerman, banner County Attorney, for appellee.
heAvicAN, 	c.J., 	W right , 	coNNolly , 	gerrArd , 	S tephAN,
mccormAck , and miller -lermAN, JJ.
S tephAN, J.
Robert M. brenner and lisa D. brenner appeal from an order
of the Tax Equalization and Review Commission (TERC) which
affirmed a decision of the banner County board of Equalization
276 	276 nEbRASkA REPoRTS

(board) denying the brenners’ protest of the 2004 valuation of
their residence. We conclude that the TERC decision and order
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. We therefore affirm.
bACkGRounD
breNNer property
The brenners are the owners of the property in question,
which is a single-family residence located in rural banner
County, nebraska. Construction of the home was completed in
late 1998, and the brenners occupied the home at that time. The
cost of construction was between $200,000 and $204,000. The
one-story, wood frame home has a brick veneer exterior and
a wood shake roof. The main floor area is 2,544 square feet,
which includes two bedrooms, 11⁄2 bathrooms, and other living
space. There is an attached garage with an area of 1,020 square
feet and a slab porch. There is 2,023 square feet of finished
space in the basement, including two bedrooms and a bathroom.
The county assessor determined the 2004 actual value of the
structure alone, based upon replacement cost less depreciation,
to be $220,374.
boArd of equAlizAtioN proceediNgS
The brenners filed a protest of the 2004 valuation with the
board. After hearing the testimony of the brenners, the board
accepted the assessor’s 2004 valuation of the brenner home.
terc proceediNgS
The brenners filed an appeal to TERC, challenging the valu-
ation of their property for specific reasons. The board filed an
answer in which it alleged that the valuation was in accordance
with applicable nebraska law and TERC regulations, and was
neither arbitrary, capricious, nor unreasonable. Robert, an attor-
ney, represented himself and lisa in the TERC proceedings.
At the commencement of the appeal hearing on June 13, 2007,
the TERC chairman advised counsel that TERC would consider
certain materials not included in the record, as permitted by law.1
1 See neb. Rev. Stat. § 77-5016(3) (Cum. Supp. 2006).
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	277
Cite as 276 neb. 275

Those materials considered and utilized by TERC in this case are
reflected in a supplement to the official record. This supplement
was filed in this appeal by TERC at the brenners’ request.
TERC received certain exhibits offered by the parties and
rejected others. in particular, TERC sustained objections to two
documents offered by the brenners. The TERC chair deter-
mined that a report of an audit of the banner County assessor’s
office conducted by the Department of Property Assessment and
Taxation, covering the period october 2001 through January
2002, was irrelevant. TERC also excluded an exhibit as hear-
say, which exhibit was the affidavit of betty Holliday and an
attached report, dated January 1, 2003, of a countywide property
reappraisal for banner conducted by Holliday on behalf of High
Plains Appraisal Service (High Plains).
Five witnesses testified at the hearing, including Sharon
Sandberg, the banner County clerk and ex officio assessor.
She testified that she requested the audit conducted by the
Department of Property Assessment and Taxation in 2001-02
and that the audit disclosed certain deficiencies in her office,
which she corrected. At least partially as a result of the audit,
banner County retained High Plains to conduct a countywide
reappraisal for 2003. in determining property valuations for
2004, the assessor utilized data collected by High Plains for the
2003 reappraisal, including data for the brenner property.
in June 2003, the nebraska Real Property Appraiser board
(nRPAb) commenced an investigation which concluded that
High Plains and appraiser Holliday had committed various
errors during the countywide reappraisal for banner County.
nRPAb filed a complaint against Holliday. The complaint does
not make specific reference to the brenner property. nRPAb and
Holliday reached a settlement in May 2006, in which settlement
Holliday recognized that the allegations in the complaint were
valid and that the allegations would be violations of nebraska
statutes and the nRPAb rules and regulations.2 Holliday agreed
in the 2006 settlement that she would no longer perform mass
appraisals for any board of equalization in nebraska.
2 neb. Rev. Stat. §§ 76-2237 and 76-2238 (Reissue 2003); 298 neb. Admin.
Code, ch. 2, § 001 (2005).
278 	276 nEbRASkA REPoRTS

The county assessor was aware of the complaint against
Holliday and the settlement, but testified that she had no basis
for concluding that there was any flaw in the actual data col-
lected by High Plains in the countywide reappraisal for the 2003
tax year.
in determining the 2004 valuations, the assessor also utilized
depreciation schedules previously developed by High Plains.
She acknowledged that these differed from those provided in the
Residential Cost Handbook, published by Marshall & Swift, lP,
a reference manual commonly used in the valuation of real prop-
erty. However, the assessor conducted a “depreciation study”
and concluded that the depreciation tables developed by High
Plains were appropriate.
The assessor testified that she used a computer program
called TerraScan to determine property valuations for the 2004
tax season. She testified that an unspecified number of other
nebraska counties also utilized the TerraScan program. Data
from the 2003 mass reappraisal was used by the TerraScan pro-
gram in determining property valuations for 2004. The record
card produced by the TerraScan program showing the 2004 valu-
ation for the brenner property states, “DATA uSED FoR CoST
CAlCulATionS SuPPliED bY MARSHAll & SWiFT.”
The heading above the final calculation of assessment value is
titled “Cost Approach From Marshall & Swift.” The assessor
testified that TerraScan “provided [her] with the costing tables
and they called their date as of June of 2001.” An entry on the
2004 brenner record card states “Replacement cost new less
depreciation was used in improvement valuation. Marshall Swift
tables dated June 2001 were used for costing. Depreciation
information is on file.” The assessor admitted that she had never
compared the base cost found in the Marshall & Swift handbook
to the TerraScan results for any property in banner County. She
also testified that TerraScan was used to determine all property
values in banner County in the same manner.
The assessor acknowledged that she did not personally inspect
the brenner property prior to the 2004 valuation, asserting that
she was denied access by the brenners. When she personally
inspected the property in December 2006, she confirmed that the
data previously entered in the TerraScan program was generally
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	279
Cite as 276 neb. 275

correct. The inspection revealed nothing which caused the asses-
sor to change her determination of value.
The assessor testified that in arriving at the 2004 valuation of
the brenner residence, she considered its condition to be “aver-
age” and its quality to be “average plus.” She explained that
the home had certain features which would not be expected in
a home of “average” quality, so she rated the quality “between
average and good.” The TerraScan program uses a value of 30
for average quality and 40 for good quality. To indicate the
“average plus” quality of the brenner property, the assessor
entered a value of 35.
Three members of the brenner family testified at the hear-
ing. Co-owner lisa has a bachelor’s degree in accounting and
has experience in both private and public accounting. She holds
an assessor’s certificate and has attended “over 60 hours of
appraisal education.” She testified regarding various aspects of
the construction and features of the home, which in her opin-
ion is “average” in both quality and condition. utilizing the
Marshall & Swift Residential Cost Handbook, she concluded
that the value of the home in 2004 was approximately $186,000.
The only comparable property she could identify was a 3,175-
square foot, one-story home which was built in 1976 and valued
at $126,072 in 2004. Robert also testified about the quality and
condition of the home and agreed with lisa’s opinion that its
actual value in 2004 was $186,000. Maddie lapaseotes, lisa’s
daughter and Robert’s stepdaughter, testified that the assessor
and the county sheriff came to the home unexpectedly in July
2004, when the brenners were away, and she did not allow them
to enter.
Sheila newell testified as a witness for the brenners. newell
is licensed in nebraska as a real estate broker and is also a
certified general real property appraiser. At the time of the
TERC hearing, she served as chair of the nRPAb. She person-
ally inspected the brenner home on several occasions between
1999 and 2006. using the criteria of the Marshall & Swift
Residential Cost Handbook, newell testified that in her opinion,
the quality of the home in 2004 was “average.” in making this
assessment, she considered the various characteristics of con-
struction, including material, workmanship, design, and utility.
280 	276 nEbRASkA REPoRTS

newell also testified that in her opinion, the condition of the
home was “average” in 2004, based upon her observations. in
response to questions from members of the TERC panel, newell
acknowledged that the determination of quality and condition
of real estate was subjective, at least to some degree, and that
qualified appraisers could reach slightly differing conclusions.
newell also acknowledged that the home had certain features
indicative of better than average quality which would support
the assessor’s determination of “average plus” quality. newell
did not express an opinion as to the actual value of the brenner
home in 2004.
in its written decision and order, TERC found that the board’s
valuation of the residence as of the assessment date for the tax
year 2004 was $220,374. it noted that the value was deter-
mined by the TerraScan program which implemented the cost
approach, first calculating the replacement cost of the structure
using tables developed by Marshall & Swift, and then deducting
depreciation as determined on the basis of tables or schedules
developed by the county assessor. The data used in the analysis
was obtained in 2002 and used for the first time in 2003. TERC
noted that while the brenners argued generally that the data was
so poor that any valuation based upon it would be unreasonable
and arbitrary, “[n]o evidence was presented . . . concerning vari-
ances between data collected as shown on a valuation printout
and actual characteristics” of the property. TERC noted that the
only specific discrepancy claimed by the brenners involved the
quality of the home, which they claimed to be “average” and
the assessor evaluated as “average plus.” Exercising its statutory
authority to utilize its own experience and technical competence
in evaluating the evidence on this issue,3 TERC concluded that
the residence was “not of average quality as proposed by the
[brenners] and their appraiser.” TERC also determined that
lisa’s calculation of value using a cost approach was flawed
and that the evidence was insufficient to allow a deduction for
economic depreciation.
With respect to the brenners’ claim that their property was not
“equalized” with the value of other parcels, TERC determined
3 See § 77-5016(5).
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	281
Cite as 276 neb. 275

that the single property claimed by the brenners to be compa-
rable to theirs was not in fact comparable and that there was “no
evidence before [it] that taxable value of the subject property is
not the same proportion of actual value as is the taxable value
of comparable property.” TERC concluded that the evidence did
not support a finding that the decision of the board was unrea-
sonable or arbitrary and that there was no evidence upon which
it could grant relief, because the brenners’ “only evidence of
actual value for the subject property is a flawed application of
the cost approach and there is no evidence of ‘equalized’ tax-
able value.”
The brenners filed a timely notice of appeal from this decision,
and we moved the appeal to our docket on our own motion.
ASSiGnMEnTS oF ERRoR
The brenners assign, restated, renumbered, and consolidated,
that TERC erred in (1) applying an incorrect legal standard as to
their burden of persuasion, (2) conducting the hearing in a man-
ner that deprived them of procedural due process, (3) failing to
conclude on the basis of the evidence that the 2004 valuation by
the board was arbitrary and capricious, (4) failing to find that
the board did not properly equalize their property, and (5) fail-
ing to consider and make findings on all issues presented.
STAnDARD oF REViEW
[1-3] Decisions rendered by TERC shall be reviewed by an
appellate court for errors appearing on the record of the com-
mission.4 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.5 Questions of law
arising during appellate review of TERC decisions are reviewed
de novo on the record.6
4 neb. Rev. Stat. § 77-5019(5) (Cum. Supp. 2006); Marshall v. Dawes Cty.
Bd. of Equal., 265 neb. 33, 654 n.W.2d 184 (2002).
5 See Marshall v. Dawes Cty. Bd. of Equal., supra note 4.
6 City of York v. York Cty. Bd. of Equal., 266 neb. 297, 664 n.W.2d 445
(2003); City of Alliance v. Box Butte Cty. Bd. of Equal., 265 neb. 262, 656
n.W.2d 439 (2003).
282 	276 nEbRASkA REPoRTS

AnAlYSiS
tAxpAyer ’S burdeN of perSuASioN
The first assignment of error presents an issue of law as to a
taxpayer’s burden of persuasion before TERC. Citing statutory
authority and an opinion of the nebraska Court of Appeals,7
the TERC order in this case recited the legal principle that
TERC “can grant relief only if there is clear and convincing
evidence that the action of the . . . board was unreasonable
or arbitrary.” The brenners argue that because of amendments
to the TERC statutes in 2004 and 2007, this principle is no
longer correct.
Some background is necessary to resolve this issue. Prior
to the 1995 enactment of the Tax Equalization and Review
Commission Act (TERCA),8 appeals from actions taken by a
county board of commissioners were taken to the district courts.9
Section 77-1511, as it was written at that time, provided that the
district court
shall hear appeals and cross appeals [from a county board
of equalization] as in equity and without a jury, and deter-
mine anew all questions raised before the county board of
equalization which relate to the liability of the property to
assessment, or the amount thereof. The court shall affirm
the action taken by the board unless evidence is adduced
establishing that the action of the board was unreasonable
or arbitrary, or unless evidence is adduced establishing that
the property of the appellant is assessed too low.
Construing this statute, this court held that in such appeals,
[t]here is a presumption that a board of equalization
has faithfully performed its official duties in making an
assessment and has acted upon sufficient competent evi-
dence to justify its action. That presumption remains until
there is competent evidence to the contrary presented, and
7 See, § 77-5016(8); Omaha Country Club v. Douglas Cty. Bd. of Equal., 11
neb. App. 171, 645 n.W.2d 821 (2002).
8 See 1995 neb. laws, l.b. 490, § 153.
9 neb. Rev. Stat. §§ 77-1510 and 77-1511 (Reissue 1990). See US Ecology v.
Boyd Cty. Bd. of Equal., 256 neb. 7, 588 n.W.2d 575 (1999).
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	283
Cite as 276 neb. 275

the presumption disappears when there is competent evi-
dence adduced on appeal to the contrary. From that point
forward, the reasonableness of the valuation fixed by the
board of equalization becomes one of fact based upon all
the evidence presented. The burden of showing such valu-
ation to be unreasonable rests upon the taxpayer on appeal
from the action of the board.10
This court further held that in order to rebut this presumption,
the burden of persuasion imposed on the complaining tax-
payer is not met by showing a mere difference of opinion
unless it is established by clear and convincing evidence
that the valuation placed upon his property when com-
pared with valuations placed on other similar property is
grossly excessive and is the result of a systematic exercise
of intentional will or failure of plain duty, and not mere
errors of judgment.11
TERCA amended § 77-1511 by substituting TERC for the
district court as the intermediate appellate tribunal, but it did not
change the remaining provisions of the statute.12 in early appeals
under the amended statute, the nebraska Court of Appeals applied
our pre-TERCA case law construing the taxpayer’s burden of
persuasion under § 77-1511, noting that “the principles which
were articulated from this statutory language when the district
court heard these matters maintain viability now that [TERC]
has taken over the district court’s role.”13 in this court’s first
opportunity to consider an appeal from TERC, we agreed that
these principles defined the taxpayer’s burden of persuasion.14
10 Ideal Basic Indus. v. Nuckolls Cty. Bd. of Equal., 231 neb. 653, 654-55, 437
n.W.2d 501, 502 (1989).
11 Bumgarner v. County of Valley, 208 neb. 361, 366, 303 n.W.2d 307, 310
(1981).
12 1995 neb. laws, l.b. 490, § 153.
13 J.C. Penney Co. v. Lancaster Cty. Bd. of Equal., 6 neb. App. 838, 850, 578
n.W.2d 465, 473 (1998). See, Forney v. Box Butte Cty. Bd. of Equal., 7 neb.
App. 417, 582 n.W.2d 631 (1998); Lancaster Cty. Bd. of Equal. v. Condev
West, Inc., 7 neb. App. 319, 581 n.W.2d 452 (1998).
14 US Ecology v. Boyd Cty. Bd. of Equal., supra note 9. See Garvey Elevators
v. Adams Cty. Bd. of Equal., 261 neb. 130, 621 n.W.2d 518 (2001).
284 	276 nEbRASkA REPoRTS

Section 77-1511 was repealed in 2001; at the same time,
§ 77-5016(7) (Reissue 2003) was amended to read:
if the appellant presents no evidence to show that the action
taken by the board or the Property Tax Administrator is
incorrect, the commission shall affirm such action. if the
appellant presents any evidence to show that the action
taken by the board or the Property Tax Administrator
is incorrect, such action shall still be affirmed unless
evidence is adduced establishing that the action of the
board or the Property Tax Administrator was unreasonable
or arbitrary.15
At the time of the 2001 amendment, § 77-5016 already provided
that TERC “shall hear appeals and cross appeals . . . as in equity
and without a jury and determine de novo all questions raised
before the county board of equalization.”16 Thus, as a result of
the 2001 amendment, § 77-5016(7) included essentially the
same provisions previously codified at § 77-1511.
The brenners argue that because of a 2004 amendment to
§ 77-5016, they should not have been required to present clear
and convincing evidence to rebut the presumption that the board
faithfully performed its valuation duties. As a result of that
amendment, § 77-5016(8) (Cum. Supp. 2004) provided:
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 determi-
nation, or action appealed from is incorrect, such order,
decision, determination, or action shall be affirmed unless
evidence is adduced establishing that the order, decision,
determination, or action was unreasonable or arbitrary.17
[4] The 2004 amendment to § 77-5016(8) simply recod-
ifies with minor changes the language previously found in
§ 77-5016(7). That language, in turn, is traceable to § 77-1511
15 2001 neb. laws, l.b. 465, §§ 7, 12.
16 Id. at § 7.
17 2004 neb. laws, l.b. 973, § 51.
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	285
Cite as 276 neb. 275

prior to its repeal. The taxpayer’s burden of persuasion by “clear
and convincing evidence” results from long-established judicial
construction of this statutory language. We find no language in
the 2004 amendment that would reasonably call into question
our construction of the language which originated in the former
§ 77-1511. Where a statute has been judicially construed and that
construction has not evoked an amendment, it will be presumed
that the legislature has acquiesced in the court’s determination
of the legislature’s intent.18
For the sake of completeness, we note the brenners’ argument
that a 2007 amendment19 to § 77-5016(7) modified the burden of
persuasion. That amendment, which became effective February
10, 2007, eliminated language requiring TERC to hear appeals
“as in equity and without a jury and determine de novo all ques-
tions raised in the proceedings” and substituted a provision that
TERC “may determine any question raised in the proceeding
upon which an order, decision, determination, or action appealed
from is based” and “may consider all questions necessary to
determine taxable value of property as it hears an appeal or
cross appeal.”20 We do not read this amendment to have any
effect on the taxpayer’s burden of persuasion in a TERC appeal.
it simply restates the concept of de novo review in a manner
more appropriate for a nonjudicial tribunal, and specifically
authorizes TERC to consider any issues it deems pertinent to
a valuation determination, whether or not the issue was raised
before a board of equalization. We conclude that TERC did not
err in its articulation and application of the brenners’ burden
of persuasion.
procedurAl due proceSS
The brenners argue that TERC conducted the appeal hearing
in a manner which deprived them of their due process rights to
18 Semler v. Sears, Roebuck & Co., 268 neb. 857, 689 n.W.2d 327 (2004);
Chapin v. Neuhoff Broad.-Grand Island, Inc., 268 neb. 520, 684 n.W.2d
588 (2004).
19 See 2007 neb. laws, l.b. 167, § 6.
20 Id.
286 	276 nEbRASkA REPoRTS

present evidence and be heard before an impartial board.21 They
contend that formal rules of evidence were applied despite the
fact that the hearing was to be informal and that the chairman
of the TERC panel frequently interrupted their presentation and
excluded certain evidence.
TERCA 	specifies 	the 	procedures 	applicable 	to 	taxpayer
appeal hearings.22 Such hearings are to be informal “unless a
formal hearing is granted” upon the request of a party.23 in this
case, the order for hearing specified that it was to be informal.
Thus, TERC was required to “give probative effect to evidence
which possesses probative value commonly accepted by rea-
sonably prudent persons in the conduct of their affairs exclud-
ing incompetent, irrelevant, immaterial, and unduly repetitious
evidence” and to honor statutory privilege rules, but was “not
otherwise . . . bound by the usual common-law or statutory rules
of evidence.”24
[5] These statutory procedures clearly do not require TERC
to receive any and all evidence offered during an informal
hearing. Rather, TERC is specifically empowered to assess the
probative value of proffered evidence and exclude that which
it determines to be “incompetent, irrelevant, immaterial, and
unduly repetitious.”25 in a judicial proceeding, a trial court has
the discretion to determine the relevancy and admissibility of
evidence.26 likewise, TERC must be afforded some discretion
in determining the probative value and admissibility of evidence
in an informal appeal hearing, and it follows that a proper exer-
cise of such discretion cannot constitute a denial of procedural
due process.
in their brief, the brenners list various rulings rejecting evi-
dence they offered without explaining why they contend the
21 See Krusemark v. Thurston Cty. Bd. of Equal., 10 neb. App. 35, 624 n.W.2d
328 (2001).
22 neb. Rev. Stat. §§ 77-5015 to 77-5019 (Cum. Supp. 2006 & Supp. 2007).
23 § 77-5016 (Supp. 2007).
24 § 77-5016(1).
25 Id.
26 Karel v. Nebraska Health Sys., 274 neb. 175, 738 n.W.2d 831 (2007).
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	287
Cite as 276 neb. 275

rulings were erroneous. in several of these instances, TERC
properly rejected evidence offered by the brenners, because it
duplicated materials which were already included in the case
file or which TERC had indicated it would consider without
inclusion in the record pursuant to § 77-5016(3). These included
regulations and other public records pertaining to assessment
and taxation and the brenners’ notice of appeal filed with TERC,
which they offered twice. The brenners also complain that
TERC sustained a foundational objection to their initial offer of
two unidentified photographs. in rejecting the initial offer, the
TERC chairman explained that it would be “material for [TERC]
to know what, when and under what conditions and under what
circumstances and by whom the photographs . . . were taken.”
When lisa subsequently testified about the subject matter of the
photographs, they were reoffered and received. Thus there was
no error by TERC.
The TERC chairman sustained hearsay objections by the
board to evidence offered by the brenners but also sustained
hearsay objections made by the brenners with respect to evidence
offered by the board. The TERC chairman properly explained
that TERC could not consider hearsay evidence, because the
applicable provision of TERCA gives parties the right to cross-
examine all witnesses.27
The 	brenners 	separately 	argue 	that 	TERC 	erroneously
refused to receive and consider the report of the audit of the
banner County assessor’s office by the Department of Property
Assessment and Taxation, which pertained to the period of
october 2001 to January 2002. TERC sustained a relevance
objection to this audit, because there was no apparent connection
between the events described in it and the manner in which the
2004 valuation of the brenners’ property was conducted. The
brenners made an offer of proof, stating that the audit report
noted various irregularities in data collection and “establishe[d]
a pattern to which in the year 2004 would indicate . . . continued
arbitrary and capricious, unreasonable actions.” We conclude
that TERC did not abuse its discretion in excluding this and
other evidence which it found lacking in probative value as to
27 § 77-5016(4).
288 	276 nEbRASkA REPoRTS

the determination of the actual value for the brenner property
for the 2004 tax year.
The brenners also argue that the TERC chairman interrupted
their presentation in a manner which demonstrated bias. While
interruptions did occur, we cannot conclude from the record
that they were indicative of bias. in one instance, the chairman
noted that little could be gained from what he deemed imprecise
questions and answers with respect to dates and terminology.
The chairman specifically noted that he was not prejudging the
case, but, rather, encouraging counsel to focus on presenting
substantive information relevant to valuation of the property for
the 2004 tax year. From our review of the record as a whole, we
find no basis for concluding that the chairman or any member
of the TERC panel was biased against the brenners. The record
reflects that TERC afforded the brenners an opportunity to be
heard and present their case before an impartial tribunal. They
were not denied procedural due process.
vAluAtioN
[6] The “actual value” of real property is defined by nebraska
law as
the most probable price expressed in terms of money that
a property will bring if exposed for sale in the open mar-
ket, or in an arm’s length transaction, between a willing
buyer and willing seller, both of whom are knowledge-
able concerning all the uses to which the real property
is adapted and for which the real property is capable of
being used.28
in tax valuation cases, actual value is largely a matter of opinion
and without a precise yardstick for determination with complete
accuracy.29 As we have noted, the brenners had the burden of
persuading TERC that the board’s valuation of their property
was arbitrary or unreasonable. An administrative agency’s deci-
sion is “arbitrary” when it is made in disregard of the facts or
circumstances without some basis which would lead a reasonable
28 neb. Rev. Stat. § 77-112 (Reissue 2003).
29 US Ecology v. Boyd Cty. Bd. of Equal., supra note 9; Cabela’s, Inc. v.
Cheyenne Cty. Bd. of Equal., 8 neb. App. 582, 597 n.W.2d 623 (1999).
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	289
Cite as 276 neb. 275

person to the same conclusion.30 Here, both the board and the
brenners utilized the cost approach, which is an accepted method
of determining the actual value of real property. There was no
other evidence of value. The brenners challenge the assessor’s
application of the cost approach to arrive at the valuation which
was accepted by the board.
[7] The brenners contend that no meaningful valuation could
have occurred, because the assessor did not personally inspect
the property before arriving at the 2004 valuation. The record
reflects that the assessor’s office had basic information about
the interior of the home obtained by data collectors during and
after construction. Generally, an assessor may reasonably rely
on physical measurements made by an appraiser as part of a
mass appraisal.31 There is conflicting evidence as to whether
the brenners thwarted her efforts to personally inspect the
property prior to the 2004 valuation. of greater significance is
the assessor’s testimony that when she did inspect the property
in 2006, she found nothing which would change her opinion
regarding the 2004 valuation. under similar circumstances pre-
sented in Kohl’s Dept. Stores v. Douglas Cty. Bd. of Equal.,32 the
Court of Appeals determined that the presumption of validity
was properly applied to the valuation as determined by a board
of equalization.
The brenners also argue that the assessor’s use of the TerraScan
computer program to perform the actual computations used for
the 2004 valuation was arbitrary and unreasonable. They claim
that the program used flawed data obtained from the 2003
countywide reappraisal, but they could not identify any specific
errors in the data. They also argue that the TerraScan program
utilized an allegedly nonexistent “June 2001” Marshall & Swift
costing table to perform the computations. The record on this
point is somewhat unclear. The assessor testified that she did not
verify the costing tables used by TerraScan, and lisa testified
that she utilized a Marshall & Swift costing table dated June
30 Phelps Cty. Bd. of Equal. v. Graf, 258 neb. 810, 606 n.W.2d 736 (2000).
31 See Cabela’s, Inc. v. Cheyenne Cty. Bd. of Equal., supra note 29.
32 Kohl’s Dept. Stores v. Douglas Cty. Bd. of Equal., 10 neb. App. 809, 638
n.W.2d 877 (2002).
290 	276 nEbRASkA REPoRTS

2000, which was the most recent one she could find dated prior
to June 2001. TERC noted that a “[s]pecific cost table for June
2001 may not exist. The practice of Marshall & Swift is to issue
quarterly adjustment factors,” and “[t]he adjustment factors have
to be applied to a base cost to derive a cost as of a given quar-
terly date.” We note that the documents which TERC was autho-
rized by § 77-5016(3) to consider and utilize without including
in the record included a list of quarterly multipliers dated June
2001 published in conjunction with the Marshall Valuation
Service manual, published by Marshall & Swift, lP, to be used
“to trend the costs published on the preceding pages to a current
date and to adjust the costs by location.” We cannot determine
from this record that the TerraScan program utilized incorrect
costing information. While we acknowledge that this raises
some questions regarding the costing methodology employed
by the assessor, we cannot conclude that the valuations derived
from the TerraScan program utilizing Marshall & Swift costing
information was arbitrary or unreasonable.
The record reflects one significant difference between the
data utilized by TerraScan and that used by the brenners in
calculating the actual 2004 value of the residence: the evalu-
ation of the quality of the structure. lisa and newell testified
that the home was of average quality, based upon the factors
listed in the Marshall & Swift Residential Cost Handbook.
However, both conceded that the home had some desirable fea-
tures which would not ordinarily be found in a home of average
quality, including ceramic tile, wood shake shingle roofing, and
a vaulted ceiling. The assessor testified that based upon these
features, she rated the home as being of “average plus” quality,
meaning that the quality of the home was “between average and
good.” newell conceded that determination of the quality of a
home for purposes of appraisal is somewhat subjective and that
different qualified appraisers evaluating the same property could
reach different conclusions within a reasonable range. utilizing
its own experience and technical expertise, as the law permits,33
TERC determined that “the residence on the subject property is
not of average quality as proposed by the [brenners] and their
33 § 77-5016(5).
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	291
Cite as 276 neb. 275

appraiser.” This conclusion is supported by competent evidence,
including the aforementioned testimony of lisa, newell, and
the assessor.
[8] The brenners also contend that the assessor’s valuation
process did not include a sufficient adjustment for depreciation.
Physical depreciation results from deterioration of improve-
ments over time.34 The assessor testified that she used a 70-year
“average life” in determining the depreciation allowance, which
differed from the 55- to 60-year average life used by Marshall
& Swift. This resulted in an 8-percent deduction for physi-
cal depreciation. in her computations, lisa utilized a 60-year
average life, resulting in a 10-percent deduction for physical
depreciation. She also included a 5-percent allowance for “loca-
tional depreciation.”
The brenners cite no authority for their argument that the
assessor was legally required to use the 55- to 60-year average
life utilized in the Marshall & Swift depreciation schedules.
Regulations issued by the nebraska Department of Property
Assessment and Taxation require an assessor, as a part of
the analysis of valuation based on the cost approach, to use
the Marshall Valuation Service “as published and updated by
Marshall and Swift Publishing Company . . . for uniform iden-
tification of the physical characteristics of real property.”35 The
regulations do not specifically mention Marshall & Swift depre-
ciation tables, but require an assessor, in the analysis of the cost
approach, to develop and substantiate “various forms of depre-
ciation which can be shown to exist through a study of the local
market.”36 The assessor testified that she conducted such a study
and determined that a 70-year average life was acceptable. We
agree with TERC that the record does not support the “locational
depreciation” adjustment claimed by the brenners.
The brenners argue that TERC ignored competent evidence
presented by them and “failed to address” their assertion of qual-
ity, condition, opinion, and calculation of value, made as owners
34 First Nat. Bank v. Otoe Cty., 233 neb. 412, 445 n.W.2d 880 (1989);
Cabela’s, Inc. v. Cheyenne Cty. Bd. of Equal., supra note 29.
35 350 neb. Admin. Code, ch. 10, § 003.04 (2003).
36 350 neb. Admin. Code, ch. 50, § 002.03b(2) (2001).
292 	276 nEbRASkA REPoRTS

of the property. After discussing the evidence presented, TERC
concluded that
even if all of the allegations of the [brenners] are believed,
there is no evidence on which [TERC] could grant relief.
The [brenners’] only evidence of actual value for the sub-
ject property is a flawed application of the cost approach
and there is no evidence of “equalized” taxable value.
The decision and order clearly reflects that TERC did consider
and address these issues, but that TERC simply was not per-
suaded the brenners had met their burden of showing that the
board acted arbitrarily or unreasonably in determining the value
of their property.
[9,10] lisa and Robert both gave opinions as to the value
of their home and assign error to TERC’s rejection of their
opinions of value. A resident owner who is familiar with his or
her property and knows its worth is permitted to testify as to
its value without further foundation.37 This principle rests upon
the owner’s familiarity with the property’s characteristics, its
actual and potential uses, and the owner’s experience in dealing
with it.38 When a county board of equalization has determined
the value of the property, uniformly and impartially assessed
through a formula in substantial compliance with statutes gov-
erning taxation, for reversal of the board’s action, a taxpayer
must show more than a difference of opinion concerning the
assessed value of the taxpayer’s real estate.39 Here, the brenners
have not shown more than a difference of opinion between their
valuations of the residence and those of the county. The TERC
order shows that it considered the brenners’ opinions, including
lisa’s calculation using the Marshall & Swift costing tables, and
rejected their evidence concerning the value of the residence as
“not persuasive.” TERC’s decision to accept the opinion of the
37 See, US Ecology v. Boyd Cty. Bd. of Equal., supra note 9; Livingston v.
Jefferson Cty. Bd. of Equal., 10 neb. App. 934, 640 n.W.2d 426 (2002);
Schmidt v. Thayer Cty. Bd. of Equal., 10 neb. App. 10, 624 n.W.2d 63
(2001).
38 Schmidt v. Thayer Cty. Bd. of Equal., supra note 37.
39 Livingston v. Jefferson Cty. Bd. of Equal., supra note 37, citing Cabela’s,
Inc. v. Cheyenne Cty. Bd. of Equal., supra note 29.
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	293
Cite as 276 neb. 275

county assessor over those of the taxpayers was neither arbitrary
nor unreasonable.
We have considered the brenners’ other arguments with
respect to valuation and conclude they are without merit. As
we view the record, there is some ambiguity and lack of clarity
in both the brenners’ and the assessor’s valuation determina-
tions. However, we agree with TERC that in the end, the record
reflects nothing more than a difference of opinion between
the board and the brenners regarding the actual value of the
residence for purposes of 2004 taxation, and does not establish
that the board acted arbitrarily or unreasonably in arriving at
its valuation.
equAlizAtioN
in their appeal to TERC, the brenners claimed that the taxable
value of their property as of January 1, 2004, was not equalized
with the value of other real property in the county. The brenners
assign error to the determination by TERC that the record did
not support this assertion.
[11,12] The nebraska Constitution requires that real prop-
erty be taxed “by valuation uniformly and proportionately.”40
Equalization is the process of ensuring that all taxable property
is placed on the assessment rolls at a uniform percentage of its
actual value.41 The purpose of equalization of assessments is to
bring the assessment of different parts of a taxing district to the
same relative standard, so that no one of the parts may be com-
pelled to pay a disproportionate part of the tax.42
The brenners attempted to prove their allegation that the
board failed to properly equalize assessments through the county
assessor’s records pertaining to a single residential property built
in 1976, which the brenners claimed to be comparable to theirs.
TERC concluded that the property was not comparable to the
brenners’ residence and that there was no other evidence in
the record demonstrating that the taxable value of the brenner
40 neb. Const. art. Viii, § 1.
41 MAPCO Ammonia Pipeline v. State Bd. of Equal., 238 neb. 565, 471
n.W.2d 734 (1991).
42 Id.; Cabela’s, Inc. v. Cheyenne Cty. Bd. of Equal., supra note 29.
294 	276 nEbRASkA REPoRTS

property was “not the same proportion of actual value as is the
taxable value of comparable property.” We agree and conclude
that this assignment of error is without merit.
coNSiderAtioN of A ll iSSueS
The brenners argue that TERC erred in failing to make spe-
cific findings on each of their arguments. They contend that
such findings are required by § 77-5016(7) as amended and
effective on February 10, 2007, which provides that TERC
“may determine any question raised in the proceeding upon
which an order, decision, determination, or action appealed
from is based” and “may consider all questions necessary to
determine taxable value of property as it hears an appeal or
cross appeal.” The statute enables TERC to address all issues it
considers pertinent in a valuation appeal, but it does not require
TERC to make specific findings with respect to arguments
or issues which it does not deem significant or necessary to
its determination.
in their notice of appeal, the brenners listed eight specific
reasons for appealing the determination of the board. in its
decision and order, TERC summarized these reasons as pertain-
ing to valuation and equalization, and addressed those issues.
We conclude that TERC addressed and decided all issues which
were properly before it.
ConCluSion
For the reasons discussed, we affirm the decision and order
of TERC, based upon our determination that it is supported
by competent evidence and is neither arbitrary, capricious,
nor unreasonable.
A ffirmed .
bREnnER v. bAnnER CTY. bD. oF EQuAl. 	295
Cite as 276 neb. 275