Iverson v. City of North Platte

Decision Date28 May 1993
Docket NumberNo. S-91-219,S-91-219
Citation243 Neb. 506,500 N.W.2d 574
PartiesMargaret M. IVERSON, Appellee, v. CITY OF NORTH PLATTE, Nebraska, A Municipal Corporation, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Special Assessments: Proof: Appeal and Error. In an appeal from a levy of special assessments, the party contesting the assessment has the burden of showing invalidity.

2. Special Assessments: Appeal and Error. In an appeal from a levy of special assessments, the appellate court must, upon review de novo on the record, retry the issues of fact involved and reach an independent conclusion as to the findings required under the pleadings and all the evidence, without reference to the conclusion reached by the district court or the fact that there may be some evidence in support thereof.

3. Special Assessments: Statutes: Legislature. Both the language of Neb.Rev.Stat. § 18-2001 et seq. (Reissue 1991) and its legislative history indicate that although the gap and extend law is an exception to the rule that property owners must consent to special paving assessments, the exception is a limited one.

4. Special Assessments: Municipal Corporations: Appeal and Error. The power and authority delegated to municipalities to construct improvements and to levy special assessments for their payment is strictly construed, and every reasonable doubt as to the extent or limitation of such power and authority and the manner of exercise thereof is resolved in favor of the taxpayer.

5. Special Assessments: Estoppel: Liability. Where special assessments against property to pay the cost of paving are void, knowledge of the improvement will not estop the owner from avoiding liability therefor, and such assessments cannot be enforced solely on the ground of the benefits of the improvements to the owners of abutting lots or lands.

6. Ordinances: Taxation: Parties. All taxpayers who might be affected in some way by the decision in a suit to declare an ordinance creating a paving district void are not indispensable parties to the suit.

Douglas L. Stack, of Girard and Stack, P.C., North Platte, for appellant.

Jess C. Nielsen, of Nielsen & Birch, North Platte, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

WHITE, Justice.

This is an appeal from the district court for Lincoln County's granting of appellee Margaret M. Iverson's motion for summary judgment. Appellee filed a combined petition in error and petition on appeal challenging the creation of a gap paving district by the City of North Platte (City). She contended that the City exceeded its statutory authority to create gap paving districts under Neb.Rev.Stat. § 18-2001 et seq. (Reissue 1991) when it "stacked" multiple districts. Accordingly, appellee claimed, the City was without authority to assess her property for the resulting paving project. The district court granted appellee's motion for summary judgment, whereupon the City timely appealed to this court. We affirm.

The appellee is the owner of a hayfield adjacent to Pacific Street in North Platte, Nebraska. Prior to 1989, Pacific Street was an unpaved road. On February 7, 1989, the mayor and city council of North Platte passed a resolution creating gap paving districts Nos. 140 and 141 in order to pave two one-block sections of Pacific Street:

The Mayor and Council hereby find and determine that it is necessary and advisable that the City, under the authority granted by §§ 18-2001 to 18-2003 inclusive, R.R.S. Neb., 1943 as amended, cause the following unpaved streets within the City to be improved by grading, curbing, guttering and paving, together with necessary appurtenances, to-wit: Pacific Street from Second Street to Third Street [and] Pacific Street from Front Street to Sixth Street....

Also on February 7, the mayor and council passed an ordinance "For the Creation of Paving District No. 744 in the City of North Platte ... Ordering the Construction of Street Improvement Therein," to pave Pacific Street from 3d Street to 4th Street. Additionally, on August 1, the mayor and council passed a resolution creating gap paving district No. 143 (No. 143) in order to pave Pacific Street from 4th Street to 6th Street.

Through the creation of these regular and gap paving districts, the City paved Pacific Street for a total of five blocks, including that part of the street which was adjacent to appellee's property. On December 5, counsel for appellee appeared at the city council meeting to object "to the creation of Gap Paving District No. 143 and the assessment of any of the cost of paving to" appellee's property. Thereafter, on December 19, appellee's property was assessed $12,146 for her share of the paving done pursuant to No. 143. The property, according to the county's valuation, was worth $10,465.

On January 3, 1990, appellee, in compliance with Neb.Rev.Stat. § 25-1931 (Reissue 1989), filed a combined petition in error and petition on appeal in the district court for Lincoln County. The petition contended that the City erred in attempting to create No. 143 and in attempting to assess part of the costs resulting therefrom against appellee's property. The district court found that the City had improperly used the gap paving provisions of § 18-2001 et seq. to "circumvent the necessity of creating a paving district which would require consent of the landowners prior to its initiation," and it granted appellee's motion for summary judgment. The City appeals.

Before we address the City's assignments of error concerning the district court's holding, we first dispose of appellee's argument concerning the City's authority to initiate improvements on property outside of its corporate limits. The appellee contends that the City was without authority to assess her property because, although it is situated along North Platte's corporate limits, it lies outside those limits and could not be improved by the City. However, Neb.Rev.Stat. § 16-617 (Reissue 1991) provides that the mayor and council of a city of the first class such as North Platte "shall have power to make improvements of any street ... which divides the city corporate area and the area adjoining the city...." The record shows that appellee's land lies next to Pacific Street where it divides the city corporate area from the area adjoining the city. Accordingly, under § 16-617, the City acted within its authority when it made the disputed improvements on Pacific Street.

The appellee further contends that although § 18-2003 authorizes the mayor and council to "levy and collect special taxes and assessments upon the lots and parcels of real estate adjacent to or abutting upon the portion of the street or alley thus improved," the City could not assess appellee's property because it is not "adjacent to or abutting upon" Pacific Street. Appellee argues that because the City purchased a 20-foot-wide strip of her property along Pacific Street in 1985 to be dedicated for a right-of-way for Pacific Street, her land is no longer "adjacent to or abutting upon" the improved Pacific Street, but instead is separated from it by the 20-foot buffer. Accordingly, appellee argues that she cannot be assessed for improvements thereon. Such an argument ignores the meaning of "adjacent," however. This court defined the term in Freeman v. City of Neligh, 155 Neb. 651, 659-60, 53 N.W.2d 67, 72 (1952), where we stated:

In Hoopes v. City of Omaha, 99 Neb. 460, 156 N.W. 1047, this court said: "The word 'adjacent,' in the popular sense thus used, obviously means something in addition to, or different from, 'abutting.' * * * In construing the word 'adjacent,' it was said in Dunker v. City of Des Moines, 156 Ia. 292 ; 'The word "adjacent" is, at least, somewhat indefinite. Ordinarily, it means "to lie near, close, or contiguous." Webster. Even in its strictest sense it means no more than lying near, close, or contiguous, but not actually touching.' This definition is approved in Hennessy v. Douglas County, 99 Wis. 129 ; Northern P.R. Co. v. Douglas County, 145 Wis. 288 ."

Under the above definition, appellee's land is clearly adjacent to Pacific Street as required under § 18-2003. Accordingly, ignoring for the moment the considerations addressed below, the City did have the authority to assess appellee's property for adjacent street improvements. We turn, then, to the City's assignments of error.

The City contends that the district court erred in (1) finding that any and all assessments arising from No. 143 are void, (2) finding that the City exceeded the limitations imposed on it by § 18-2001 et seq., and (3) misapplying the law to the facts.

In an appeal from the levy of special assessments, the party contesting the assessment has the burden of showing invalidity. Brown v. City of York, 227 Neb. 183, 416 N.W.2d 574 (1987). In all appeals of such actions, the appellate court must, upon review de novo on the record, retry the issues of fact involved and reach an independent conclusion as to the findings required under the pleadings and all the evidence, without reference to the conclusion reached by the district court or the fact that there may be some evidence in support thereof. Garden Dev. Co. v. City of Hastings, 231 Neb. 477, 436 N.W.2d 832 (1989); Equitable Life v. Lincoln Cty. Bd. of Equal., 229 Neb. 60, 425 N.W.2d 320 (1988); Neb.Rev.Stat. § 19-2422 (Reissue 1991); Neb.Rev.Stat. § 25-1925 (Reissue 1989).

A municipality desiring to specially assess property owners for the cost of street improvements must rely on one of three methods to do so. The first two of these, the "objection method" and the "petition method," involve creating formal street improvement districts. Under the objection method, a street improvement district is created by ordinance of the mayor and city council. Notice of the created district must be published, and if written objections to the district are filed by owners of more than 50...

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