588 N.W.2d 575 (Neb. 1999), S-97-802, United States Ecology, Inc. v. Boyd County Bd. of Equalization

Docket Nº:S-97-802.
Citation:588 N.W.2d 575, 256 Neb. 7
Opinion Judge:STEPHAN, J.
Party Name:US ECOLOGY, INC., appellant, v. BOYD COUNTY BOARD OF EQUALIZATION, Boyd County, Nebraska, appellee.
Attorney:Steven G. Seglin, of Crosby, Guenzel, Davis, Kessner & Kuester, for appellant. Carl Schuman, Boyd County Attorney, for appellee.
Case Date:January 29, 1999
Court:Supreme Court of Nebraska

Page 575

588 N.W.2d 575 (Neb. 1999)

256 Neb. 7

US ECOLOGY, INC., appellant,


BOYD COUNTY BOARD OF EQUALIZATION, Boyd County, Nebraska, appellee.

No. S-97-802.

Supreme Court of Nebraska.

January 29, 1999

Page 576

Syllabus by the Court

1. Taxation: Judgments: Appeal and Error. Appellate review of a final decision of the Nebraska Tax Equalization and Review Commission shall be conducted for errors on the record of the commission. When reviewing an order 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.

2. Appeal and Error. The Supreme Court will not consider errors which are not properly assigned in a petition for further review and discussed in the supporting memorandum brief, unless plain error exists. In this context, plain error exists where there is an error in an opinion of the Court of Appeals

Page 577

concerning which no complaint is made in a petition for further review, but which is encompassed within the errors raised before the Court of Appeals and which, if uncorrected, would result in an erroneous direction for retrial of a cause.

3. Taxation: Valuation: Appeal and Error. The Tax Equalization and Review Commission shall affirm the action taken by a county board of equalization unless evidence is adduced establishing that the action taken by the board was unreasonable or arbitrary or unless evidence is adduced establishing that the property of the appellant is assessed too low.

4. Taxation: Valuation: Presumptions: Evidence: Proof: Appeal and Error. There is a presumption that a county board of equalization has faithfully performed its official duties in making an assessment and has acted upon sufficient competent evidence to justify its action. That presumption remains until there is competent evidence to the contrary presented, and the presumption disappears when there is competent evidence 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 valuation to be unreasonable rests upon the taxpayer on appeal from the action of the board.

5. Taxation: Valuation: Proof: Appeal and Error. In an appeal from a county board of equalization, the burden of persuasion imposed on the complaining taxpayer is not [256 Neb. 8] 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 compared 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.

6. Property: Valuation: Witnesses. An owner who is familiar with his property and knows its worth is permitted to testify as to its value.

7. Taxation: Valuation. In tax valuation cases, actual value is largely a matter of opinion and without a precise yardstick for determination with complete accuracy.

8. Taxation: Valuation. The purchase price of a property, standing alone, is not conclusive of the actual value of property for assessment purposes; it is only one factor to be considered in determining actual value.

9. Taxation: Valuation. Pursuant to Neb.Rev.Stat. § 77-112 (Reissue 1996), the statutory measure of actual value is not what an individual buyer may be willing to pay for property, but, rather, its market value in the ordinary course of trade.

Steven G. Seglin, of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellant.

Carl Schuman, Boyd County Attorney, for appellee.



This case involves a dispute with regard to the valuation for purposes of taxation of a tract of land in Boyd County which U.S. Ecology, Inc., purchased in July 1990 for $320,000 as a potential site for a low-level radioactive waste disposal facility. From 1990 through 1995, the assessed value of the land was never more than $113,875, but in 1996 the Boyd County Board of Equalization (Board) increased the valuation to $320,000. US Ecology appealed to the Nebraska Tax Equalization and Review Commission (TERC), which affirmed the Board's 1996 valuation based upon a 2-to-1 determination that U.S. Ecology failed to prove that the Board acted arbitrarily or capriciously in increasing the valuation for 1996. US Ecology sought review by [256 Neb. 9] the Nebraska Court of Appeals, which reversed, based upon its determination that there was sufficient evidence to establish that the Board had acted arbitrarily and capriciously in establishing the 1996 valuation. The Court of Appeals further determined that the property was agricultural land not being used for agricultural purposes and therefore should be valued

Page 578

at 100 percent of its actual value. It reversed, and remanded the cause to the TERC for further proceedings consistent with the Court of Appeals' opinion. US Ecology v. Boyd Cty. Bd. of Equal., 6 Neb.App. 956, 578 N.W.2d 877 (1998). We granted the Board's petition for further review and now affirm the judgment of the Court of Appeals.


We summarize the facts and procedural background of this case which are set forth in greater detail in the published opinion of the Court of Appeals. US Ecology is a California corporation engaged in radioactive and hazardous waste handling, processing, and disposal. In July 1990, it purchased the subject property in Boyd County because of its suitability as a site for a low-level radioactive waste disposal facility which U.S. Ecology intends to build and operate if it obtains the necessary license from the State of Nebraska. See Neb.Rev.Stat. § 81-1578 et seq. (Reissue 1994 & Cum.Supp.1998). The license application has been pending since 1990. The subject property consists of approximately 317.99 acres located 3 miles west of Butte, Nebraska. If the license is obtained, approximately 110 acres of the subject property will be used for construction of the actual facility and the remaining acres will be used for site-monitoring and testing. Since 1989, between $82 and $83 million has been spent on the project to develop the waste disposal facility in Boyd County. However, the only improvements on the proposed site include a small structure, several monitoring wells, and other technical improvements used for testing for the...

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