14-547. Special assessments; board of equalization; meetings; notice; procedure; appointment of referee; ordinance; finality.

In all cases when special assessments are authorized by this act, except as otherwise provided, before any special tax or assessment is levied, it shall be the duty of the city council to sit as a board of equalization for one or more days each month as the city council shall elect. The council shall by rule provide for the day or days on which such meetings shall be held and for the opening and closing hours of such meetings. Notice of the date, time, and place of such meeting or meetings shall be published in the official newspaper for at least three days, the first publication to be at least seven days prior to the first session of the board. A majority of all members elected to the council shall constitute a quorum for the transaction of any business properly brought before them, but a less number may adjourn from time to time and compel the attendance of absent members. The proceedings of such board shall not be invalidated by the absence of a quorum during the advertised hours of sitting but the city clerk or some member of the board shall be present to receive complaints and applications and to give information. No final action shall be taken by the board except by a quorum in open session. When sitting as a board of equalization, the council may adopt such reasonable rules as to the manner of presenting complaints and applying for remedy and relief as shall seem just.

The council may appoint one or more suitable persons to act as a referee. The council may direct that any protest filed shall be heard in the first instance by the referee in the manner provided for the hearing of protests by the board of equalization. Upon the conclusion of the hearing in each case, the referee shall transmit to the board of equalization all papers relating to the case, together with his or her findings and recommendations in writing. The board of equalization, after considering all papers relating to the protest and the findings and recommendations of the referee, may make the order recommended by the referee or any other order in the judgment of the board of equalization required by the findings of the referee, may hear additional testimony, or may set aside such findings and hear the protest anew. If a referee is not appointed, the board shall hear and determine all such complaints and shall equalize and correct such assessment. After final deliberation and after all corrections and equalization of assessments have been made, the council may levy such special assessments by ordinance at a regular meeting thereafter. The ordinance levying a special assessment shall be final and binding as the final order or judgment of a court of general jurisdiction. After the passage of such ordinance no court shall entertain any action for relief against such special assessment, except upon appeal from such final order, which remedy shall be deemed exclusive.

Source

Cross References

Annotations

1. Authority to levy

2. Notice to property owners

3. Protest

4. Meetings of council

5. Effect of action taken

6. Review

7. Miscellaneous

1. Authority to levy

Above section was adopted and incorporated by reference into Laws 1921, Chapter 110 (sections 18-401 to 18-411). Murphy v. Metropolitan Utilities Dist., 126 Neb. 663, 255 N.W. 20 (1934).

2. Notice to property owners

Effect of failure to publish notice raised but not decided. Chicago & N.W. Ry. Co. v. City of Omaha, 156 Neb. 705, 57 N.W.2d 753 (1953).

Publication for specified time in three daily papers, one of them in German language in German newspaper, is sufficient. John v. Connell, 71 Neb. 10, 98 N.W. 457 (1904).

Notice is sufficient if it describes lots to be assessed without giving name of owners. Morse v. City of Omaha, 67 Neb. 426, 93 N.W. 734 (1903).

3. Protest

A protest filed before or during session of boards is an appearance and waiver of any defects in notice. Shannon v. City of Omaha, 73 Neb. 507, 103 N.W. 53 (1905), affirmed on rehearing, 73 Neb. 514, 106 N.W. 592 (1906); Eddy v. City of Omaha, 72 Neb. 550, 101 N.W. 25 (1904), modified on rehearing 72 Neb. 559, 102 N.W. 70 (1905), modified on rehearing, 72 Neb. 561, 103 N.W. 692 (1905).

4. Meetings of council

City council must meet at place and at time designated in notice. Portsmouth Savings Bank v. City of Omaha, 67 Neb. 50, 93 N.W. 231 (1903); Grant v. Bartholomew, 58 Neb. 839, 80 N.W. 45 (1899).

Council must remain in session all the time specified in notice or proceedings are invalid. Hutchinson v. City of Omaha, 52 Neb. 345, 72 N.W. 218 (1897).

5. Effect of action taken

Aggrieved property owner, failing to pursue statutory remedies, cannot attack validity of special assessments in collateral proceeding except for fraud or some fundamental defect or entire want of jurisdiction. Penn Mutual Life Ins. Co. v. City of Omaha, 129 Neb. 733, 262 N.W. 861 (1935).

City council, sitting as board of equalization, acts judicially, and its decisions are conclusive, unless reversed or modified in manner provided by law. Wead v. City of Omaha, 124 Neb. 474, 247 N.W. 24 (1933).

Board with notice given acts judicially, and its actions are not open to collateral attack except for fraud, gross injustice or mistake. Wead v. City of Omaha, 73 Neb. 321, 102 N.W. 675 (1905).

If council levies special assessment without jurisdiction, it is void, and may be collaterally attacked. Morse v. City of Omaha, 67 Neb. 426, 93 N.W. 734 (1903).

Where charter does not require notice and hearing as to sufficiency of petition, the determination reached at such hearing is not in nature of judgment and can be collaterally attacked. Portsmouth Savings Bank v. City of Omaha, 67 Neb. 50, 93 N.W. 231 (1903).

A void special assessment is not validated by voluntary payments made thereon. Wakeley v. City of Omaha, 58 Neb. 245, 78 N.W. 511 (1899).

Where special assessments are void, they cannot be enforced solely on ground of benefit of improvements to owners of abutting lands. Harmon v. City of Omaha, 53 Neb. 164, 73 N.W. 671 (1897).

6. Review

Review of proceeding for equalization and assessment of special taxes by metropolitan water district is by proceedings in error and not by appeal. McCague Inv. Co. v. Metropolitan Water District, 101 Neb. 820, 165 N.W. 158 (1917).

7. Miscellaneous

Where tax is not void but merely irregular and excessive the court should determine amount to be paid as condition of granting relief. Wead v. City of Omaha, 73 Neb. 321, 102 N.W. 675 (1905).

Where a purchaser assumes and agrees to pay special assessments as part of purchase price, or takes advantage of deduction of lien from appraised value of property sold at judicial sale, he is estopped to deny the validity of such assessments. Eddy v. City of Omaha, 72 Neb. 550, 101 N.W. 25 (1904), modified on rehearing 72 Neb. 559, 102 N.W. 70 (1905), modified on rehearing, 72 Neb. 561, 103 N.W. 692 (1905).

Where amount of tax has been deducted from appraised value and purchaser takes for less than two-thirds of appraised value upon assumption that such taxes are valid, he is estopped to deny validity. Omaha Savings Bank v. City of Omaha, 4 Neb. Unof. 563, 95 N.W. 593 (1903).

Covenants in deed, excepting taxes and assessments which the grantee assumed and agreed to pay, will not estop grantee from defending against the payment of illegal and void assessments. Orr v. City of Omaha, 2 Neb. Unof. 771, 90 N.W. 301 (1902).