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Fountain II, LLC, appellant, v. Douglas County 

Board of Equalization, appellee.

___ N.W.2d ___

Filed January 5, 2024. No. S-22-888.

1. Taxation: Judgments: Appeal and Error. Appellate courts review 

decisions rendered by the Tax Equalization and Review Commission for 

errors appearing on the record.

2. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

3. Taxation: Appeal and Error. Questions of law arising during appellate review of Tax Equalization and Review Commission decisions are 

reviewed de novo.

4. Administrative Law: Judgments. Whether an agency decision conforms to the law is by definition a question of law. 

5. Statutes. Statutory interpretation presents a question of law.

6. Statutes: Legislature: Intent. The fundamental objective of statutory 

interpretation is to ascertain and carry out the Legislature’s intent.

7. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of words which are plain, direct, and 

unambiguous.

8. Statutes. Statutes pertaining to the same subject matter should be construed together; such statutes, being in pari materia, must be construed 

as if they were one law and effect given to every provision.

9. Statutes: Words and Phrases. The general rule is that in the construction of statutes, the word “shall” is considered mandatory and inconsistent with the idea of discretion.

10. Statutes: Legislature. It is a fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary 

meaning at the time the Legislature enacted the statute.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/05/2024 09:07 AM CST
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11. Appeal and Error: Words and Phrases. Appellate courts often turn to 

dictionaries to ascertain a word’s plain and ordinary meaning.

Appeal from the Tax Equalization and Review Commission. 

Reversed and remanded with directions.

Dwyer Arce, of Kutak Rock, L.L.P., for appellant.

Donald W. Kleine, Douglas County Attorney, Jennifer 

Chrystal-Clark, and Kinzie Randall, Senior Certified Law 

Student, for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Funke, J.

INTRODUCTION

A commercial real estate development company and a 

county board of equalization dispute whether a property was 

eligible for special valuation as agricultural or horticultural 

land under Neb. Rev. Stat. §§ 77-1343 to 77-1347.01 (Reissue 

2018) in tax year 2018. That particular special valuation is 

colloquially known as “‘greenbelt status.’” 1 Nebraska’s Tax 

Equalization and Review Commission (TERC) affirmed the 

decision of the county board, which denied the company’s 

application for greenbelt status for the property. We reverse 

the decision of TERC and remand the cause with directions to 

sustain the company’s protest.

BACKGROUND

Fountain II is a wholly owned subsidiary of R&R Realty 

Group. Those entities are collectively referred to as “R&R” in 

the parties’ briefs, and we adopt that usage in this opinion.

1 Agena v. Lancaster Cty. Bd. of Equal., 276 Neb. 851, 853, 758 N.W.2d 

363, 367 (2008).
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R&R purchased the 19.9-acre property in Douglas County, 

Nebraska, at issue here in 2016 with the ultimate intent of 

developing it. However, at the time the property was purchased and subsequently in 2017, it was farmed pursuant to 

a farm lease, and the acres not directly associated with buildings or structures had greenbelt status. R&R’s practice was to 

“maintain farm leases” on its property pending development 

“to preserve the agricultural classification until the time [was] 

right to develop it.”

Disqualification From Greenbelt 

Status in 2017

In December 2017, the Douglas County assessor (Assessor) 

notified R&R that effective January 1, 2018, the property 

no longer qualified for greenbelt status because it was not 

being primarily used for agricultural or horticultural purposes. 

That notice was sent after a real estate specialist with the 

Assessor’s office drove by the property and observed surveyors’ stakes, “neon flags,” and grading of the property that he 

viewed as “not consistent with agriculture.”

R&R contacted the Assessor’s office about the notice and 

spoke with the real estate specialist whose observations had 

led to the property’s disqualification. R&R explained that it 

was “going to start building on [the property], but . . . ran 

into problems with the planning board” and was no longer 

planning to build at that time. The real estate specialist told 

R&R that R&R could either protest the disqualification to 

the county board or “simply file a new application. [It had] 

either option.”

Application for Greenbelt 

Status in 2018

Subsequently, in May 2018, R&R filed an application seeking greenbelt status for the property. In its application, R&R 

stated that the property was scheduled to be graded starting 
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on June 1 and that once the grading was completed, a farmer 

“will plant alfalfa. [R&R] intend[s] to lease the land annually 

to plant, grow & harvest alfalfa until a building is developed.” Attached to the application was a copy of the farm 

lease, which stated that the lease was effective as of January 

1, 2018.

The Assessor denied R&R’s application on the ground that 

the property was not primarily used for agricultural or horticultural purposes. The denial came after the same real estate 

specialist who had previously inspected the property visited it 

again in late June 2018. At that time, the real estate specialist 

observed multiple pieces of “heavy equipment” parked on the 

property and about to begin grading. He viewed that type of 

equipment as “not consistent with agricultur[e].”

Protest to County Board 

of Equalization

R&R protested the denial of its application for greenbelt 

status to the Douglas County Board of Equalization (county 

board). The substance of R&R’s argument was that the property was entitled to greenbelt status because “[i]t will be 

planted in alfalfa after grading is completed; alfalfa seeding 

began in August pursuant to a Farm Lease dated January 1, 

2018. There is no final plat on this property and the owner 

cannot build, can only farm, for the remainder of 2018.” In 

support of the protest, R&R submitted an affidavit attesting 

that the farm lease remained in effect and that development 

could not proceed until 2019 at the earliest.

The Assessor countered by presenting a timeline of events 

occurring on or involving the property that highlighted the 

steps R&R had taken to develop the property. Those steps 

included the submission and approval of preliminary plats 

for development.

The county board denied R&R’s protest by a vote of 3 to 2, 

with two members absent.
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Appeal to TERC

R&R appealed the county board’s decision to TERC. At a 

hearing, TERC received evidence and heard testimony from 

witnesses. That testimony is summarized below. Additional 

facts will be noted later in the opinion as they relate to the parties’ arguments on appeal.

Witnesses for R&R testified that soybeans were grown 

on the property in 2017 pursuant to a farm lease. According 

to witnesses, after the soybeans were harvested, the property was “basically . . . a stubble field” at the start of 2018. 

R&R’s witnesses also testified that in early January 2018, R&R 

approached the farmer who had leased the property in 2017 

about a lease for 2018. The farmer agreed to R&R’s proposal 

in late January, but the lease was not executed until April. 

Those timeframes were “standard” for R&R’s farm leases, witnesses testified. The 2018 lease called for the farmer to plant 

alfalfa on the property once grading was completed, as was 

previously noted.

According to R&R’s witnesses, alfalfa is a perennial that 

should be planted in April or early May or in early September. 

The witnesses testified that alfalfa was planted on the property 

in September 2018 and that the property was subsequently 

granted greenbelt status in tax year 2019. R&R argued that 

this fact was relevant to the present appeal because the “same 

crop” was at issue in tax years 2018 and 2019. R&R’s witnesses further testified that the only revenue R&R received 

from the property in 2018 was rent from the farm lease; there 

was no commercial development. The witnesses also testified 

that the grading of the property in 2018 was partly to “level[] 

out the property to be more in line with . . . what future development might hold,” but also to “spread[] topsoil, black dirt, 

along the top of the surface for the farmer’s benefit.”

The county board’s sole witness was the real estate specialist who had inspected the property in December 2017 and 

June 2018. He testified that the property was disqualified 
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in December 2017 because “it appeared there was an actual 

change in the use.” He also testified that as of January 1, 

2018, the property differed from other properties in Douglas 

County that qualified for greenbelt status in 2018 because 

“[i]t was disqualified before December 31st. . . . It was no 

longer being used for ag[riculture], so it was disqualified.” 

However, the witness acknowledged that “[n]othing was being 

built on the property” on January 1.

The county board’s witness also testified that he visited the 

property multiple times in 2018, even after R&R’s application 

for greenbelt status was denied, and that he did not observe 

any agricultural activity until mid-September. At that time, 

the witness testified, R&R “got something into the ground,” 

although the witness questioned whether the crop planted in 

September 2018 was the same crop seen in photographs of the 

property taken in summer 2019. The witness explained that 

with an application for greenbelt status, the county assessor 

must “determine the use of the land no later than July 15th. . 

. . There has to be a crop there [by then] — it has to be in 

the ground.”

After the hearing, TERC affirmed the county board’s determination that the property was not eligible for greenbelt status 

for tax year 2018. TERC acknowledged R&R’s argument that 

the property was not put to any use other than agricultural 

use in 2018. However, TERC found that “the evidence [did] 

not support this contention.” TERC observed that there was 

evidence showing that alfalfa was planted in the first 2 weeks 

of September. However, according to TERC, this was after 

the January 1 “assessment date” and after the July 15 date 

by which the Assessor must approve or deny applications 

for greenbelt status. TERC further observed that prior to this 

fall planting, the property was not unused, as R&R claimed; 

rather, the work done on the property “for the majority of 

2018 was to prepare it for the future construction of commercial buildings.”
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R&R appeals TERC’s decision, and we moved the matter to our docket under Neb. Rev. Stat. § 24-1106(3) (Cum. 

Supp. 2022).

ASSIGNMENTS OF ERROR

R&R assigns, restated, that TERC erred in (1) holding 

that the property did not meet the statutory qualifications for 

greenbelt status in 2018 as a matter of law, (2) failing to apply 

the canon of construction that laws imposing taxes must be 

strictly construed against the taxing authority and in favor of 

the taxpayer, (3) deferring to the county board’s interpretation of the relevant statutes and regulations, (4) holding that 

R&R had not presented competent evidence to rebut the presumption that the county board faithfully performed its duties 

and had sufficient competent evidence to make its decision, 

(5) holding that R&R had not presented clear and convincing evidence that the county board’s decision was arbitrary 

or unreasonable, (6) dismissing R&R’s contention that the 

determination in this case would have wide-ranging impact on 

farmers holding land fallow or idle, (7) refusing to reverse the 

determination that the property did not qualify for greenbelt 

status in 2018, and (8) refusing to order the Assessor to refund 

excess 2018 property taxes that R&R paid under protest.

STANDARD OF REVIEW

[1,2] Appellate courts review decisions rendered by TERC 

for errors appearing on the record. 2 When reviewing a judgment for errors appearing on the record, an appellate court’s 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. 3 Competent evidence is evidence that 

is admissible and tends to establish a fact in issue. 4

2 Lincoln Cty. Bd. of Equal. v. Western Tabor Ranch Apts., 314 Neb. 582, 

991 N.W.2d 889 (2023).

3 Id.

4 Cain v. Custer Cty. Bd. of Equal., 298 Neb. 834, 906 N.W.2d 285 (2018).
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[3] Questions of law arising during appellate review of 

TERC decisions are reviewed de novo. 5

[4,5] Whether an agency decision conforms to the law is by 

definition a question of law. 6 Statutory interpretation also presents a question of law. 7

ANALYSIS

This appeal raises questions of first impression regarding the statutes governing greenbelt status. We address those 

questions below, but first we review our familiar principles of 

statutory interpretation. We also review the statutory framework governing greenbelt status.

Principles of Statutory Interpretation

[6-8] As we have previously explained, the fundamental 

objective of statutory interpretation is to ascertain and carry 

out the Legislature’s intent. 8 Statutory language is to be given 

its plain and ordinary meaning, and an appellate court will 

not resort to interpretation to ascertain the meaning of words 

which are plain, direct, and unambiguous. 9 A statute is ambiguous if it is susceptible of more than one reasonable interpretation, meaning that a court could reasonably interpret the 

statute either way. 10 Otherwise, the statute is unambiguous. 

Furthermore, statutes pertaining to the same subject matter 

should be construed together; such statutes, being in pari materia, must be construed as if they were one law and effect given 

to every provision. 11

5 Western Tabor Ranch Apts., supra note 2.

6 Id.

7 Hernandez v. Dorantes, 314 Neb. 905, 994 N.W.2d 46 (2023).

8 In re Interest of T.W., 314 Neb. 475, 991 N.W.2d 280 (2023).

9 Haynes v. Nebraska Dept. of Corr. Servs., 314 Neb. 771, 993 N.W.2d 97 

(2023).

10 State v. McColery, 301 Neb. 516, 919 N.W.2d 153 (2018).

11 In re Interest of T.W., supra note 8.
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Statutes Governing Greenbelt Status

The statutes at issue in this case, §§ 77-1343 to 77-1347.01, 

were enacted in 1974 12 to address the economic effects of 

urban and other nonagricultural development on neighboring 

agricultural land. 13 The statutes protect persons engaged in 

agricultural endeavors from tax burdens that might otherwise 

force them to discontinue those endeavors by allowing them 

to elect special valuation for their property, rather than having 

their property valued according to its actual value. 14

As is relevant to the present appeal, § 77-1344 sets forth the 

qualifications for greenbelt status. In particular, § 77-1344(3), 

now codified as § 77-1344(2), prescribes as follows:

The eligibility of land for the special valuation provisions of this section shall be determined each year as of 

January 1. If the land so qualified becomes disqualified 

on or before December 31 of that year, it shall continue 

to receive the special valuation until January 1 of the 

year following.

The following section, § 77-1345, requires that applicants for 

greenbelt status under § 77-1344 apply to the county assessor 

“on or before June 30 of the first year in which such valuation 

is requested.” 15 The county assessor is then required under 

§ 77-1345.01 to approve or deny the application on or before 

July 15 of the same year in which the application was made 

and issue a notice of approval or denial on or before July 22 of 

that year. Once greenbelt status is granted, it lasts until the land 

no longer qualifies as agricultural or horticultural land or other 

conditions not relevant to the present appeal are met. 16

12 1974 Neb. Laws, L.B. 359.

13 Burdess v. Washington Cty. Bd. of Equal., 298 Neb. 166, 903 N.W.2d 35 

(2017).

14 Id. See Neb. Rev. Stat. § 77-112 (Reissue 2018) (“[a]ctual value of real 

property for purposes of taxation means the market value of real property 

in the ordinary course of trade”).

15 § 77-1345(1).

16 § 77-1347.
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For purposes of these statutes, “[a]gricultural land and horticultural land” are defined in Neb. Rev. Stat. § 77-1359(1) 

(Reissue 2018) to mean “a parcel of land, excluding land 

associated with a building or enclosed structure located on 

the parcel, which is primarily used for agricultural or horticultural purposes.” “Agricultural or horticultural purposes” 

are similarly defined by statute to mean “used for the commercial production of any plant or animal product in a raw or 

unprocessed state that is derived from the science and art of 

agriculture, aquaculture, or horticulture.” 17 The statutes further prescribed:

Whether a parcel of land is primarily used for agricultural 

or horticultural purposes shall be determined without 

regard to whether some or all of the parcel is platted and 

subdivided into separate lots or developed with improvements consisting of streets, sidewalks, curbs, gutters, 

sewer lines, water lines, or utility lines. 18

TERC Erred in Considering Property’s 

Use as of July 15

In affirming the county board’s decision, TERC found that 

alfalfa was not planted on the property until mid-September 

2018. TERC observed that this date was after the January 1 

“assessment date” and after the July 15 date for the county 

assessor to approve or deny applications for greenbelt status. 

On appeal, R&R argues that TERC erred by considering the 

property’s use as of July 15. R&R observes that § 77-1344 

prescribes that property’s eligibility for greenbelt status 

“‘shall be determined each year as of January 1.’” 19 The 

county board counters that the county assessor “must decide 

if a parcel of land qualifies for [greenbelt] status on January 1 

17 § 77-1359(2)(a).

18 § 77-1359(2)(c).

19 Brief for appellant at 25 (quoting § 77-1344(3)).
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or July 15” under §§ 77-1344 and 77-1345.01, respectively. 20

We agree with R&R.

[9] The county board effectively reads § 77-1345.01(1) in 

isolation, construing it to mean that the county assessor is to 

consider the property’s use through July 15 because the statute grants the county assessor until July 15 to approve or deny 

an application for greenbelt status. However, such a reading 

fails to take into account the language of § 77-1344(3), which 

states, in relevant part, that “[t]he eligibility of land for the 

special valuation provisions of this section shall be determined 

each year as of January 1.” The general rule is that in the 

construction of statutes, the word “shall” is considered mandatory and inconsistent with the idea of discretion. 21 Hence, 

given this unambiguous command in § 77-1344, we find that 

property’s eligibility for greenbelt status must be determined 

as of January 1, even in cases where an application for greenbelt status is filed after that date. We also observe that the 

January 1 date, which has been part of § 77-1344 since its 

enactment in 1974, 22 is consistent with the statutory requirement that “[a]ll real property in this state subject to taxation 

shall be assessed as of January 1 at 12:01 a.m.” 23

The regulations implementing §§ 77-1343 to 77-1347.01 

take a similar view. The regulations regarding applications 

for greenbelt status prescribe, in relevant part, that “[i]f the 

land qualifies for the special valuation assessment pursuant 

to REG-11-003, the assessor shall approve the application.” 24

20 Brief for appellee at 19.

21 State v. Simons, ante p. 415, 996 N.W.2d 607 (2023).

22 1974 Neb. Laws, L.B. 359.

23 Neb. Rev. Stat. § 77-1301(1) (Reissue 2018).

24 350 Neb. Admin. Code § 11-004.01 (2009). See, also, 350 Neb. Admin. 

Code § 11-004.04 (2009) (assessor to review status of applicant and 

“eligibility of the land pursuant to the criteria in REG-11-003.01” and 

approve or deny application on or before July 15). Accord 350 Neb. 

Admin. Code § 11-004.05 (2009).
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The regulation cited regarding qualification for the special valuation assessment, in turn, states that in order to be eligible for 

greenbelt status, the land must, among other things, “be agricultural or horticultural land. Eligibility shall be determined 

annually as of January 1.” 25 Notably, there is no mention of 

the July 15 date in either of those two provisions.

Accordingly, we find that TERC’s decision did not conform 

to law insofar as it was based in part on the property’s use as 

of July 15, 2018.

TERC’s Decision Not Supported by 

Competent Evidence Regarding 

Use as of January 1

Having determined that eligibility for greenbelt status 

depends upon how a property is “primarily used” as of January 

1, we next consider what is meant by that term in § 77-1359(1) 

and what the evidence showed regarding the property’s use as 

of January 1, 2018.

The relevant statutes do not define what is meant by the 

term “primarily used.” However, our opinion in Agena v. 

Lancaster Cty. Bd. of Equal. 26 suggests that “‘primarily’” 

means “predominate[ly].” The dispute in Agena concerned the 

import of the word “parcel” in § 77-1359(1)’s definition of 

agricultural and horticulture land to mean “a parcel of land, 

excluding land associated with a building or enclosed structure 

located on the parcel, which is primarily used for agricultural 

or horticultural purposes.” The county assessor argued that 

the inclusion of the term “parcel” in that definition meant the 

use of the land as a whole, while the county board argued that 

it meant the use of a majority of the acres of a parcel. 27 We 

agreed with the county assessor. 28 In so doing, we discussed 

25 350 Neb. Admin. Code at § 11-003.01B (2009).

26 Agena, supra note 1, 276 Neb. at 862, 758 N.W.2d at 373.

27 Agena, supra note 1.

28 Id.
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legislative history materials which prompted us to conclude 

that “the addition of the term ‘parcel’ was intended to require 

a county assessor to consider the entire tract of land, including any homesite, to determine whether the predominate use 

of the parcel was for agricultural purposes.” 29 The Nebraska 

Court of Appeals took a similar approach in its unpublished 

opinion Aloi v. Lincoln Cty. Bd. of Equal.,

 30 finding that the 

“incidental use” of a property for grazing was insufficient for 

greenbelt status.

[10,11] Those approaches to the meaning of “primarily” are 

consistent with the plain and ordinary meaning of that term. 

It is a fundamental canon of statutory construction that words 

generally should be interpreted as taking their ordinary meaning at the time the Legislature enacted the statute. 31 Appellate 

courts often turn to dictionaries to ascertain a word’s plain and 

ordinary meaning. 32 Here, the word “primarily” was added to 

§ 77-1359(1) in 1997 in conjunction with other amendments 

to the definition of “[a]gricultural land and horticultural land” 

given there. 33 Dictionaries from that time define “primarily” to 

mean “essentially; mostly; chiefly; principally.” 34 The regulations implementing §§ 77-1343 to 77-1347.01 take a similar 

approach, prescribing that “[p]rimarily used shall mean that the 

use of the land is mainly agricultural or horticultural.” 35

With that definition in mind, we now consider the evidence regarding the property’s use as of January 1, 2018. The 

county board generally argues that there was no competent 

29 Id. at 862, 758 N.W.2d at 373.

30 Aloi v. Lincoln Cty. Bd. of Equal., No. A-08-059, 2008 WL 5413385 at *5 

(Neb. App. Dec. 23, 2008) (selected for posting to court website).

31 State v. Dailey, 314 Neb. 325, 990 N.W.2d 523 (2023).

32 Id.

33 Accord 1997 Neb. Laws, L.B. 270, § 77.

34 See, e.g., Webster’s Encyclopedic Unabridged Dictionary of the English 

Language 1142 (1989).

35 350 Neb. Admin. Code § 14-002.56 (2009).
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evidence to rebut the presumption that it faithfully performed 

its duties and no clear and convincing evidence that its decision 

denying greenbelt status was arbitrary and capricious. 36

However, that argument reflects the county board’s view that 

the county board and TERC properly considered evidence as 

to the property’s use as of July 15. Looking solely to the evidence of use as of January 1, the situation is different.

R&R points to testimony that on January 1, 2018, the 

property “appeared exactly the same as every other agricultural property in Nebraska after a fall harvest: it was ‘basically like a stubble field ... at the start of 2018.’” 37 In addition, R&R observes that after the property was disqualified 

from greenbelt status in December 2017, R&R informed the 

Assessor’s office that R&R was “‘not, at this time, going to 

be building on’” the property and that it “would be ‘used for 

agriculture[al purposes] in 2018.’” 38 R&R also observes that 

the property was subject to a farm lease effective January 1, 

the rent from which was R&R’s sole revenue from the property in 2018.

The county board counters that R&R’s failure to protest the 

property’s disqualification from greenbelt status in December 

2017 shows that the property “was not being used for agricultural use, but for commercial development,” on January 

1, 2018. 39 The county board also observes that R&R took 

multiple steps to develop the property starting in 2017 and 

36 See, e.g., Western Tabor Ranch Apts., supra note 2 (on appeal from county 

board of equalization, there is presumption that board has faithfully 

performed its official duties in making assessment and has acted upon 

sufficient competent evidence to justify its action; once competent 

evidence is adduced to show that board’s order, decision, determination, 

or action is incorrect, property owner retains burden to show by clear and 

convincing evidence that board’s decision was arbitrary or unreasonable).

37 Brief for appellant at 25.

38 Id. at 15.

39 Brief for appellee at 20.
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continuing into 2018, including the filing and approval of preliminary plats.

Neither of the factors cited by the county board proves, 

without more, that the property was not primarily used for 

agricultural purposes as of January 1, 2018. The relevant 

statutes separately provide for (1) protests of disqualification from greenbelt status and (2) applications for greenbelt status, without prohibiting persons whose property has 

been disqualified from subsequently filing an application for 

greenbelt status without having brought a protest. 40 As such, 

the Legislature contemplated that both alternatives would be 

available to persons seeking to retain greenbelt status. The 

county board’s own witness testified similarly, stating that 

when R&R contacted the Assessor’s office about the disqualification in December 2017, he told R&R that it could either 

protest the disqualification to the county board or “simply file 

a new application. [It had] either option.” Likewise, there is 

nothing in the relevant statutes that bars persons from seeking 

approval for development, so long as the property continues 

to be primarily used for agricultural or horticultural purposes. 

In fact, the statutes expressly provide that whether a parcel 

of land is primarily used for agricultural or horticultural purposes shall be determined without regard to whether some or 

all of the parcel is platted and subdivided into separate lots 

or developed. 41

Similarly to the county board, TERC observed that “[a]fter 

the fall 2017 harvest[,] [R&R] removed the existing farmhouse and outbuildings” from the property. The apparent 

implication of this statement is that those actions showed 

that the property was being used to prepare it for development. However, the testimony at the hearing was that R&R 

removed the buildings from the property in October 2017 

40 §§ 77-1345.01(3) and 77-1347.01.

41 § 77-1359(2)(c).
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because the city of Omaha, Nebraska, informed R&R that the 

fact that the property was “abandoned . . . was becoming a 

public nuisance and activities were happening on the site that 

[R&R] needed to get cleaned up.” At oral arguments, counsel 

for R&R agreed that the city had requested that the farmhouse 

and outbuildings be removed.

As we observed in Agena, TERC has the authority to reverse 

the county board’s decisions regarding property’s classification 

as agricultural and the grant or denial of greenbelt status if 

the county board’s decisions are unreasonable or arbitrary. 42 A 

decision is arbitrary when it is made in disregard of the facts 

or circumstances and without some basis which would lead a 

reasonable person to the same conclusion. 43 The term “unreasonable” can be applied to a decision only when the evidence 

presented leaves no room for differences of opinion among 

reasonable minds. 44

We, in turn, review TERC decisions for errors appearing 

on the record, an inquiry that includes whether the decision 

is supported by competent evidence, which is evidence that is 

admissible and tends to establish a fact in issue. 45

In light of the evidence in this case regarding the property’s 

use as of January 1, 2018, we find that the county board’s 

decision was arbitrary and unreasonable and that TERC’s 

decision that the property was not primarily used for agricultural purposes as of January 1 was not supported by competent evidence.

Remaining Assignments of Error

R&R also assigns that TERC erred in various other respects. 

However, we need not address those assignments of error, 

42 Agena, supra note 1. See, also, Neb. Rev. Stat. § 77-5016(9) (Reissue 

2018).

43 Acklie v. Nebraska Dept. of Rev., 313 Neb. 28, 982 N.W.2d 228 (2022).

44 Western Tabor Ranch Apts., supra note 2.

45 Cain, supra note 4.
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because we conclude that TERC erred in affirming the denial 

of R&R’s application for greenbelt status for the reasons 

stated above. 46

CONCLUSION

Because TERC erred in considering the property’s use as 

of July 15, 2018, and because the evidence did not support 

TERC’s determination that the property was not primarily 

used for agriculture as of January 1, we reverse the decision 

of TERC and remand the cause with directions to sustain 

R&R’s protest.

Reversed and remanded with directions.

Miller-Lerman, J., not participating.

46 State v. Reznicek, ante p. 272, 995 N.W.2d 204 (2023) (appellate court is 

not obligated to engage in analysis that is not necessary to adjudicate case 

and controversy before it).