A & P II, LLC v. Lancaster Cnty. Bd. of Equalization

1

316 Neb. 216

A & P II, LLC, et al., appellants, v. Lancaster County Board of Equalization, appellee.

No. S-23-296

Supreme Court of Nebraska

March 15, 2024

1. Jurisdiction: Appeal and Error. A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law.

2. ___ ____. It is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.

3. Statutes: Appeal and Error. The right of appeal in this state is clearly statutory, and unless the statute provides for an appeal from the decision of a quasi-judicial tribunal, such right does not exist.

4. Actions: Final Orders. Quasi-judicial actions that are interlocutory, incomplete, provisional, or not yet effective are not final.

5. Judgments: Words and Phrases. Every direction of a court or judge, made or entered in writing and not included in a judgment, is an order.

6. Actions: Words and Phrases. An action is any proceeding in a court by which a party prosecutes another for enforcement, protection, or determination of a right or the redress or prevention of a wrong involving and requiring the pleadings, process, and procedure provided by statute and ending in a judgment.

7. ___ ___. Every other legal proceeding other than an action, by which a remedy is sought by original application to a court is a special proceeding.

8. Taxation: Final Orders. Neb. Rev. Stat §§ 77-5018 and 77-5019 (Reissue 2018) incorporate the definition of "final order" set forth in Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2022).

9. Statutes. Statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together.

10. Statutes: Legislature: Presumptions. The Legislature must be presumed to have had in mind all previous legislation upon the subject, so that in the construction of a statute, courts must consider the preexisting law and any other acts relating to the same subject.

11. ___: ___: ___. Where words in a statute have received a settled construction, the Legislature, in using the same words in a subsequent statute on the same subject matter, must be presumed to have intended to employ them in the same sense.

12. Statutes: Words and Phrases. A statutory definition of a term found in one statute may be considered when interpreting that same term as used in a different statute.

13. Final Orders: Words and Phrases. A substantial right is an essential legal right, not a mere technical right.

14. Final Orders. It is not enough that the right itself be substantial; the effect of the order on that right must also be substantial.

15. Final Orders: Appeal and Error. Whether the effect of an order is substantial depends on whether it affects with finality the rights of the parties in the subject matter.

16. Moot Question: Final Orders. A relevant consideration in determining if an order is immediately appealable as a final order is whether it may be mooted by subsequent developments in the litigation.

17. Moot Question. Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the dispute's resolution that existed at the beginning of the litigation.

18. Actions: Moot Question. An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action.

Appeal from the Tax Equalization and Review Commission. Appeal dismissed.

Nathan D. Clark, Andrew R. Willis, and Kimberly A. Duggan, of Cline, Williams, Wright, Johnson &Oldfather, L.L.P., for appellants.

Patrick F. Condon, Lancaster County Attorney, Daniel J. Zieg, and Delaney A. Baumgartner, Senior Certified Law Student, for appellee.

Michael T. Hilgers, Attorney General, Eric J. Hamilton, and Zachary B. Pohlman for State of Nebraska.

Kari A.F. Scheer, Audrey R. Svane, and Michael D. Matejka, of Woods Aitken, L.L.P., for amici curiae Community Development Resources et al.

Cathy S. Trent-Vilim, of Lamson, Dugan & Murray, L.L.P., for amicus curiae Nebraska Investment Finance Authority.

Sydney L. Hayes and Daniel J. Gutman, of Law Office of Daniel Gutman, L.L.C., for amicus curiae Midwest Housing Equity Group.

Scott Mertz, Jennifer Gaughan, and Mark T. Bestul for amicus curiae Legal Aid of Nebraska.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

The developers of rent-restricted housing projects appeal a decision of the Tax Equalization and Review Commission (Commission) granting 21 petitions by the Lancaster County Board of Equalization (Board) to determine the assessed values of rent-restricted housing projects named in the petitions by using a professionally accepted mass appraisal method that is different from the income approach mandated by Neb. Rev. Stat. § 77-1333 (Reissue 2018). The Board had not yet fully developed the professionally accepted mass appraisal method it sought permission to use and did not present final valuations of the subject properties. The Commission found that pursuant to the exception set forth in § 77-1333(10), the Board had proved that failing to determine that a different methodology should be used would result in a value that is not equitable and in accordance with the law. However, the Commission stated its decision was not "an approval of the final valuation methodology utilized by the Lancaster County Assessor's office when determining assessed values for low-income properties for tax year 2023." We dismiss the appeal for lack of appellate jurisdiction.

BACKGROUND

Petitions

In January 2023, the Board filed 21 petitions with the Commission "pursuant to Neb.Rev.Stat §77-1333(10)," asking the Commission "to consider the Lancaster County Assessor's alternate methodology of rent restricted housing."

Section 77-1333 governs taxation of rent-restricted housing projects and is intended to "further the provision of safe, decent, and affordable housing to all residents of Nebraska." Section 77-1333(3) states in part, "Except as otherwise provided in this section, the county assessor shall utilize an income-approach calculation to determine the actual value of a rent-restricted housing project when determining the assessed valuation to place on the property for each assessment year." Section 77-1333(8) elaborates that, with certain exceptions, each county assessor, in the county assessor's income-approach calculation, shall use the capitalization rate or rates provided annually by the Rent-Restricted Housing Projects Valuation Committee to the Property Tax Administrator to each county assessor and the "actual income and actual expense data filed by owners of rent-restricted housing projects." However, § 77-1333(10) sets forth an exception to the mandate of using the statutory income approach where the county assessor believes the "income-approach calculation does not result in a valuation of a rent-restricted housing project at actual value"; the Board petitions the Commission "to consider the county assessor's utilization of another professionally accepted mass appraisal technique that, based on the facts and circumstances presented by a county board of equalization, would result in a substantially different determination of actual value of the rent-restricted housing project"; and the Board proves that "failure to make a determination that a different methodology should be used would result in a value that is not equitable and in accordance with the law."

The respondents are owners of rent-restricted housing projects in Lincoln, Lancaster County, Nebraska. Petitions were brought against the following: (1) A &P II, LLC; (2) Affordable Housing West, L.P.; (3) Pedcor Investments-2010-CXXVI, L.P.; (4) Pedcor Investments-2011-CXXXVII, L.P.; (5) Centennial &O, LLC; (6) City Impact Homes, LLC; (7) Creekside Village, Ltd.; (8) Cyrilla Crown, LLC; (9) Glenbrook Townhouses Associates LP; (10) Liberty Estates, LLC; (11) Lincoln Action Program Housing Development Corporation; (12) The Lincoln ALF, Ltd.; (13) The Lodge Apartments Holdings, LLC; (14) New Heights Community Development Corporation; (15) Old Mill Crown, Ltd.; (16) The People's City Mission Home; (17) Prairie Crossing Limited Partnership; (18) Progress for People II, L.L.C.; (19) Reese Estates, L.P.; (20) Scotts Creek Crown, LLC; and (21) Victory Park, LLC (collectively Respondents). All 21 properties had timely provided annual statements detailing their actual income and actual expense data for the prior year and a description of their land-use restrictions as required by § 77-1333(5).

The petitions alleged that "[u]sing professionally accepted mass appraisal methods, the Lancaster County Assessor has determined that the actual value is substantially different than value derived under the unique method created by §77-1333(8)." The petitions generally set forth that using actual income and actual expenses, as required under § 77-1333(8), results in land values significantly less than using "professionally accepted mass appraisal methods." The petitions did not specify the nature of the professionally accepted mass appraisal method utilized to reach these conclusions. The Board asked the Commission to "determine the actual value of the subject parcels, and other such relief as deemed necessary."

Evidence Before Commission

An informal evidentiary hearing was held before the Commission.

Respondents' witnesses testified that to qualify for low-income housing tax credits under the Internal Revenue Code,^[1]each rent-controlled property is bound by a land use restriction agreement (LURA).^[2] A LURA...