Bitter v. City of Lincoln
| Decision Date | 04 October 1957 |
| Docket Number | No. 34195,34195 |
| Citation | 165 Neb. 201,85 N.W.2d 302 |
| Parties | Peter BITTER, Amalia Bitter and John Koehler, Appellants, v. CITY OF LINCOLN, Nebraska, a municipal corporation, Appellee, George H. Brasier, Amicus Curiae. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A finding by a board of equalization, levying special assessments, that the lands were specially benefited to the full amount of the assessment is tantamount to a finding that such benefits are equal and uniform, permitting the adoption and use of a zone formula.
2. In the absence of a showing that special benefits found by a board of equalization to have accrued to property in an improvement district in which an alley has been paved are excessive or unreasonable in amount, all things considered, a finding by the board on the basis that the paving has added to the value of the property a sum equal to the proportionate cost of the improvement is not so unreasonable as to render the assessment void.
3. In the absence of legislation defining a method for ascertaining benefits to property accruing from a public improvement made by a municipality, any method of reaching a substantially just determination of the special benefits is permissible.
4. The basis for a special assessment is benefit to the property affected by the public improvement made. An assessment may not be arbitrary or unreasonable but the law does not require that it correspond exactly to the benefit conferred on the property. Substantial and not precise accuracy is contemplated in the determination of special benefits.
5. In making special assessments for benefits received it is presumed that authorities arrived at the amounts thereof with reference alone to the benefits accruing to the property assessed and that the owners are required to contribute to the cost of the improvement only in proportion as their property is specially benefited thereby.
6. There is a presumption of law that all real estate within an improvement district receives some degree of benefit from the paving of an alley therein.
7. A property owner who attacks a special assessment as void has the burden of establishing its invalidity.
8. In error proceedings the findings and conclusions of the board of equalization, which acts judicially, have the weight and conclusiveness of the verdict of a jury.
Max Kier, Lincoln, for appellants.
Jack Pace, City Atty., Norma VerMaas, Lincoln, for appellee.
George H. Brasier, Lincoln, amicus curiae.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
The city of Lincoln, a city of the primary class with a home rule charter, created an alley paving district consisting of the part of the east-and-west alley north of and adjacent to Lot 15 in Block 1, Cahn, Metcalf, and Farwell's Subdivision between the east curb line of Twelfth Street and the east line of Eva Place extended south and including Lots 1, 2, and 3 in Block 18, Riverside Addition, and the west 210 feet of Lot 15, Block 1, Cahn, Metcalf, and Farwell's Subdivision in said city. The work contemplated to be and which was accomplished in the district was the grading, curbing, guttering, and paving of a 16-foot roadway in the alley.
The north 45 feet of Lot 1, Block 18, Riverside Addition, was owned by John Koehler, subject to an executory contract for the sale of the west half thereof. The south 5 feet of Lot 1 and the north half of Lot 2 in said Block 18, adjoining and south of the John Koehler property, was owned by Peter Bitter and Amalia Bitter. Between that property and the north line of the alley which was paved was the south half of Lot 2 and all of Lot 3 in Block 18 of Riverside Addition.
Appellants filed with the city objections to any special assessments against the property within the district on account of the construction made in the alley. A hearing was held by the city council. The objections were overruled. Assessment was made against the real estate in the district benefited on account of the cost of the paving and thereafter the board of equalization of the city equalized the assessment and distributed the tax upon the several tracts of property within the paving district. A petition in error was filed by appellants in the district court to test the validity of the special assessments made on their real estate by the city of Lincoln on account of the paving of the alley. The district court heard the matters presented by the petition in error, concluded that there was no error in the proceedings had by the city council, and dismissed the petition in error. This appeal is from the action of the district court dismissing the error proceeding and denying a new trial.
Appellants challenge the legality of the special assessments made on their real estate by the assertion that it is an established principle that a blanket formula for the imposition of special assessments upon an area, zone, or frontage basis is illegal and cannot be sustained without a previous finding by the municipal authorities that the property within the area or zone is equally and uniformly benefited.
An engineer of the city, who was familiar with matters concerning the district and who had performed the engineering work in reference to the improvement made, supervised the computation of proposed assessments on account of the cost thereof. A report of proposed assessments was prepared and submitted to the city council by him. The cost of the paving was divided over all the property in the district. The property was divided into six zones with a decrease of percentage of the cost assigned to each of the zones as the distance increased away from the improvement. The zone nearest the improvement was assigned 33 1/3 percent of the total amount assessed, the second zone 20 percent, the third zone 16 2/3 percent, and the last three zones 10 percent each. This is the formula used by engineers generally and used by the city of Lincoln in distributing the benefits to property from an improvement made in such a district as the one concerned in this case. The engineer knew the facts important in the matter. He knew that the amount assessed to any property should not exceed the benefit accruing to the property by virtue of the improvement made in the district. He acted to comply with that limitation. It was his judgment that the assessments proposed by him and set out in his report against any tract of the property did not exceed the benefit to the property by reason of the improvement made. The resolution of the city council assessing the cost of the improvement on the property in the district contains the following: 'That the cost of the improvements in Alley Paving District No. 252 * * * be and the same is hereby assessed upon the property in said district described in the proposed distribution of Assessment attached to this resolution * * *; that each piece and parcel of property described is specially benefited in the amount set forth therein, and no property is taxed more than the special benefits accruing thereto by reason of said improvements; * * *.'
The resolution of the board of equalization recites in part: '* * * that said Board of Equalization, after reviewing said assessments and after hearing evidence with respect thereto found and determined that each separate piece of property in said district was specially benefited on account of said alley paving to the extent and in the amount of the assessment therefor so made by the Council * * *; that said assessment and schedule so made by the Council were approved and adopted by the Board of Equalization as the equalized assessments in said district; * * *.' An appropriate report of the conclusions and action of the board of equalization was made to and it was approved and adopted by the city council.
Appellants confidently rely, to sustain their contention that the special assessments made on their property are illegal because appellee did not find that the benefits were equal and uniform, upon Morse v. City of Omaha, 67 Neb. 426, 93 N.W. 734, 739. Appellants have misconceived the purport of that decision. The opinion in that case shows that all the property in the improvement district involved in that case was assessed a uniform rate per front-foot. There was nothing to show any finding by the city that the benefits accruing to the abutting property were equal and uniform throughout the district. The statute applicable in that instance, referred to in the...
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