Turner v. City of North Platte, 42283

Decision Date12 June 1979
Docket NumberNo. 42283,42283
Citation203 Neb. 706,279 N.W.2d 868
PartiesJohn R. TURNER et al., Appellants, v. CITY OF NORTH PLATTE, Lincoln County, Nebraska, et al., Appellees.
CourtNebraska Supreme Court

Syllabus by the Court

1. Taxation. In the execution of the power to tax, the taxing officers must be able to show legislative authority for every levy of taxes.

2. Taxation: Property: Constitutional Law. It is constitutionally required that there be notice to the property owners of a special assessment and an opportunity to contest the amount and validity of the assessment before it becomes a charge on the property.

3. Taxation: Municipal Corporations: Appeal and Error: Streets and Alleys. Validity of special assessment for street improvement was properly challenged by petition in error timely filed after appearance before city council sitting as board of equalization.

4. Taxation: Municipal Corporations: Statutes: Streets and Alleys. The authorization for special assessment for street improvements found at sections 18-2001 to 18-2003, R.R.S.1943, does not extend to a street section already paved.

5. Taxation: Municipal Corporations: Streets and Alleys. The legislative power and authority delegated to a city to construct local improvements and levy assessments for payments thereof is to be strictly construed and every reasonable doubt as to the extent or limitation of such power and authority is resolved against the city and in favor of the taxpayer.

6. Taxation: Municipal Corporations: Property: Streets and Alleys. Where special assessments against property to pay the cost of paving are void, knowledge of the proceedings and of the construction of the improvement will not estop the owner from avoiding liability therefor, and they cannot be enforced solely on the ground of the benefits of the improvements to the owners of abutting lots or lands.

Murphy, Pederson & Piccolo and LeRoy Anderson, North Platte, for appellants.

Maupin, Dent, Kay & Satterfield, North Platte, for appellees.

Heard before BOSLAUGH, WHITE, and HASTINGS, JJ., and GRANT and SPRAGUE, District Judges.

C. THOMAS WHITE, Justice.

This is an appeal from the dismissal by the District Court of plaintiffs' petition in error. The plaintiffs-appellants are the owners of property abutting West "E" Street in the defendant City of North Platte. The petition in error was filed after the city council, sitting as a board of equalization, levied special assessments for improvements to West "E" Street. The special assessments were levied pursuant to Nebraska's "gap and extend" law, sections 18-2001 to 18-2005, R.R.S.1943. Briefly stated, it is the position of the plaintiffs that the "gap and extend" procedure may be used only in the case of previously unimproved street sections, that the street abutting their property was already paved, and that the special assessments are therefore void. Before addressing that argument, however, we are faced with the City's contention that the question is not properly raised. This contention is based both on the claim that this petition in error was not timely filed, and that there is no support in the record for the plaintiffs' claim that West "E" was already paved.

On March 7, 1972, the city council passed a resolution creating street improvements Nos. 125 thru 132 and finding that "it is necessary and advisable that the City, under the authority granted by Sections 18-2001 to 18-2003 inclusive, Reissue Revised Statutes of Nebraska, 1943 as amended, cause the following unpaved streets * * * to be improved by grading, curbing, guttering and paving, together with necessary appurtenances, to-wit: * * * West 'E' Street from the existing pavement at Buffalo Bill Avenue extending west to Bay Tree Avenue which improvement shall be known as Street Improvement No. 131."

No notice was given to the affected property owners at this time and none was required by the statute. In the months following, bids on the project were let, one was accepted, and some time prior to May 15, 1973, the work on West "E" Street was completed. On that date, the city council accepted the work and, pursuant to section 16-707, R.R.S.1943, published notice that the council would sit as a board of equalization on June 5, 1973. Counsel for the plaintiffs appeared at the June 5, 1973, meeting and protested the proposed special assessments. Because of the protest, the council (quoting from the council's minutes) voted "to hold the matter of the assessment of Street Improvement District No. 131 and return it to the Public Works Committee for a report back at the next regular Council meeting." On August 7, 1973, the council voted that "Street Improvement District No. 131 be assessed as presented to the Council on June 5, 1973." This petition in error was filed on September 6, 1973.

Error proceedings must be commenced within 1 month from rendition of the judgment or final order. § 25-1931, R.R.S.1943. The City concedes that this action was commenced within 1 month of the order by the city council, sitting as a board of equalization, levying the assessments complained of. It contends, however, that the board of equalization order is not the "judgment or final order" of which plaintiffs are actually complaining. The factual finding that West "E" Street could be improved under the "gap and extend" law was made, so the argument goes, when the council first ordered the improvements on March 7, 1972. The board of equalization did not have the authority to determine whether West "E" Street was a paved street or a continuation of a paved street. In other words, the alleged errors complained of in this suit were made at that 1972 council meeting and this petition was filed 11/2 years too late. For two reasons, we think this argument cannot be sustained.

First, we are cited no cases and, after extensive search, find none which say the power of a board of equalization is so limited. Instead, we find the familiar rule that, in the execution of the power to tax, the taxing officers must be able to show legislative authority for every levy of taxes. See Loup County v. Rumbaugh, 151 Neb. 563, 38 N.W.2d 745.

Second we doubt that the "gap and extend" law would pass constitutional muster if the City's interpretation was followed. It is constitutionally required that there be notice to the property owners of a special assessment and an opportunity to contest not only its amount but also its validity before the assessment becomes a charge on the property. First Assembly of God Church v. City of Scottsbluff, 203 Neb. 452, 279 N.W.2d 126. On the other hand, "a notice of proceedings merely to determine whether the contemplated improvement should be made is not required by due process of law, provided a hearing upon the assessment itself is afforded." 14 McQuillin, Municipal Corporations, § 38.98, p. 247. Thus, no problem of constitutionality is encountered if, as plaintiffs argue, the petition in error may be filed after appearance before the board of equalization. For the reasons stated, we believe that plaintiffs' petition in error was timely filed to raise the issues presented by this appeal.

The other element of defendants' argument that the issues are not properly raised is their claim that the plaintiffs did not appear before the board of equalization and present evidence in support of their contentions. We find the record quite clear on the matter. The minutes of the June 5, 1973, meeting of the city council sitting as a board of equalization state: "Attorney Donald Pederson representing the property owners in Street Improvement District No. 131 appeared regarding the matter.

"He stated he had written a letter regarding Street Improvement No. 131 dated November 27, 1972, to Mayor Phares. Said letter to be filed and made a part of Street Improvement No. 131 file."

The defendant City of North Platte argues that the letter referred to, which appears in the transcript, should not be considered. Without accepting that argument, we merely note the record is abundantly clear, without the letter, for the minutes go on to state: "He (Mr. Pederson, attorney for the property owners) stated the paving was allowed by resolution and the property owners were not notified until the paving was begun. They felt the action should be in keeping with a regular paving district. Also The existing paving was torn up and grade of the street lowered. He stated State law says once the street grade is established it cannot be changed without the consent of the landowner.

"He felt the people had not received special benefit and that the Council has failed to meet the conditions precedent, that the Council should not levy an assessment against this property involved and the paving district should be abandoned.

"City Engineer Jack Carlson stated the reason for Replacing the paving was that the existing paving did not meet city standards such as grade, not wide enough or safe enough. It was part of the city's street improvement program.

"Mayor Phares stated following Mr. Pederson's letter of November 17, 1972, the City Attorney reviewed the letter and the fiscal agent and bond counsel also reviewed the matter. The Engineering Committee, City Attorney, Mr. Pederson and City Engineer also met on the matter.

"Mr. Claude Faulkner of 420 Buffalo Bill spoke regarding the notification of property owners in the district." (...

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