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309 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 309 Neb. 738

Main St Properties LLC, appellant, v. 

City of Bellevue, Nebraska, 

et al., appellees.

___ N.W.2d ___

Filed July 16, 2021. No. S-20-802.

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, which requires the appellate court to reach a conclusion independent of the lower court’s decision.

2. Special Assessments: Municipal Corporations. Neb. Rev. Stat. 

§ 19-2422 (Cum. Supp. 2020) applies to and authorizes an appeal 

from a special assessment levied under the authority of Neb. Rev. Stat. 

§ 18-1722(1) (Reissue 2012).

Appeal from the District Court for Sarpy County: Stefanie 

A. Martinez, Judge. Reversed and remanded for further 

proceedings.

Thomas G. Schumacher, Jason M. Bruno, and Robert S. 

Sherrets, of Sherrets, Bruno & Vogt, L.L.C., for appellant.

Heather B. Veik, of Erickson & Sederstrom, P.C., for 

appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Main St Properties LLC (MSP) appeals the order of the 

district court for Sarpy County which dismissed MSP’s 

Nebraska Supreme Court Online Library

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

10/01/2021 09:10 AM CDT
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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 309 Neb. 738

“Petition to Appeal Assessment of Bellevue Board of 

Equalization” for lack of jurisdiction. MSP wished to appeal a 

resolution of the City of Bellevue (City) which placed liens on 

property owned by MSP in order to collect costs that had been 

assessed for the demolition and removal of a structure on the 

property. MSP contends that the resolution levied a “special 

assessment” pursuant to Neb. Rev. Stat. § 18-1722 (Reissue 

2012), and it sought appeal under Neb. Rev. Stat. § 19-2422 

(Cum. Supp. 2020), which authorizes an appeal to the district 

court for “[a]ny owner of real property who feels aggrieved 

by the levy of any special assessment . . . .” The court determined that no special assessment was imposed and that therefore, § 19-2422 did not apply. The court sustained the City’s 

motion to dismiss. In connection with its reasoning, the court 

concluded that MSP had failed to seek review as a petition in 

error under Neb. Rev. Stat. § 25-1901 et seq. (Reissue 2016 & 

Cum. Supp. 2020) and that the court therefore lacked subject 

matter jurisdiction.

We conclude that § 19-2422 authorized MSP’s appeal of the 

resolution which levied a special assessment and placed a lien 

on the property. We therefore reverse the district court’s dismissal based on lack of jurisdiction and remand the cause for 

further proceedings.

STATEMENT OF FACTS

MSP owns real property located in Bellevue, Nebraska. In 

February 2020, the city council passed a resolution condemning a structure on MSP’s property as being a public nuisance, 

unsafe for human occupancy, unsanitary, and in a dangerous 

condition. The resolution directed MSP to cause the structure 

to be torn down, the debris removed, and the premises placed 

in safe condition by March 4. When MSP failed to comply with 

the resolution, the City hired a contractor and had the structure demolished.

In June 2020, a building official for the City sent notice 

to MSP stating that MSP owed the City $25,320 for costs 
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MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 309 Neb. 738

the City incurred to demolish the structure. The notice stated 

that failure to reimburse the City would result in a lien being 

placed on the property. When MSP failed to pay the costs, 

the City set a hearing before the city council sitting as the 

Bellevue Board of Equalization (Board of Equalization). MSP 

appeared at the hearing held July 21 and generally argued that 

the contractor hired by the City failed to adequately perform 

the work and that additional work would be required to complete the demolition.

At the end of the hearing, the Board of Equalization passed 

a resolution dated July 21, 2020. The resolution of July 21 

forms the basis of this appeal and, as explained below, levied a 

special assessment and placed a lien on the property. The resolution was signed by the mayor on behalf of the City, approved 

as to form by the city attorney, and attested to by the city clerk. 

The resolution stated that MSP had been billed by the City 

for costs of $25,320 associated with demolition and removal 

of the structure, that such costs had not been paid to the City, 

that MSP had been given notice of the hearing at which MSP 

“would have an opportunity to show cause why these costs 

should not be placed as liens against the properties,” and that 

prior to the hearing, MSP had filed “written objections to the 

assessment of the costs” and “protest[ed] the City’s lien against 

the property.” (Emphasis supplied.) In the resolution, it was 

resolved that “the amounts as shown above for costs associated 

with the demolition and removal of a structure and associated 

clean-up costs at the locations identified above, be placed as 

liens against the properties so listed and that said liens shall 

draw interest.” It was further resolved that

notice of such lien shall be forwarded to the County 

Treasurer of Sarpy County, Nebraska with instructions 

to place upon the records in the office of the County 

Treasurer the imposition of these liens upon the properties listed and said County Treasurer shall be authorized 

to collect the payment of these liens, including interest, 

for the City.
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MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 309 Neb. 738

On August 12, 2020, MSP filed a petition in the district 

court seeking review of the resolution. MSP titled the petition as “Petition to Appeal Assessment of Bellevue Board of 

Equalization” and named the City, the Board of Equalization, 

and the city clerk, Susan Kluthe, as defendants. MSP alleged 

that the court had jurisdiction of the appeal pursuant to 

§ 19-2422, which provides for appeal of “any special assessment.” MSP alleged that the July 21, 2020, resolution was a 

special assessment under § 19-2422 and that it “wrongfully and 

arbitrarily lev[ied] a lien in the amount of $25,320.00 against 

[MSP’s] property.”

Regarding the substance of its appeal, MSP alleged that the 

contractor hired by the City failed to complete its work on the 

property in various respects. MSP alleged that it had notified 

the City of the contractor’s failures but that the City nevertheless sent MSP a notice that it was required to reimburse the 

City in full for costs the City had paid to the contractor. MSP 

alleged that it would cost at least $18,000 to correct the work 

performed by the City’s contractor and to complete the demolition and removal. MSP alleged that it presented evidence of 

these allegations to the Board of Equalization at the July 21, 

2020, hearing but that the Board of Equalization “wholly disregarded” the evidence.

With regard to procedural aspects of the appeal, MSP noted 

that pursuant to Neb. Rev. Stat. § 19-2423 (Cum. Supp. 2020), 

an owner appealing a special assessment pursuant to § 19-2422 

must, within 10 days from the levy of the special assessment, 

file a notice of appeal with the city clerk and post a bond in 

the amount of $200. MSP further noted that pursuant to Neb. 

Rev. Stat. § 19-2424 (Cum. Supp. 2020), it was required to 

request and pay the estimated cost for preparation of a transcript, and that upon such request and payment, the city clerk 

was required to cause a complete transcript of the proceedings 

before the City to be prepared. MSP finally noted that pursuant to Neb. Rev. Stat. § 19-2425 (Cum. Supp. 2020), within 

30 days of the special assessment being appealed pursuant to 
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MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 309 Neb. 738

§ 19-2422, it was required to file in the district court a petition 

on appeal together with a transcript of the proceedings before 

the City.

Regarding compliance with these requirements, MSP alleged 

that on July 29, 2020, its counsel attempted to hand deliver 

and file a notice of appeal, a request for transcript, and a $200 

cash bond with the city clerk, Kluthe. MSP alleged that Kluthe 

“arbitrarily refused to accept” the filings, but that it nevertheless left the filings in the city clerk’s office. MSP alleged that it 

followed up with Kluthe on August 3 to inquire when the transcript would be ready for MSP to pick up and that on August 

7, Kluthe furnished MSP an audio file, but no formal transcript, 

of the hearing. MSP attached a copy of the audio file to its 

petition. MSP alleged that it had not received confirmation that 

Kluthe planned to prepare a transcript of the proceedings. MSP 

alleged that the City and Kluthe were “actively and purposely 

obstructing and interfering with MSP’s rights to have its appeal 

heard and tried” by the district court.

MSP set forth two causes of action. In the first cause of 

action, MSP sought reversal of the July 21, 2020, resolution 

assessing costs of $25,320 and placing a lien on MSP’s property. In the second cause of action, MSP sought a writ of mandamus to compel Kluthe to furnish a transcript of the hearing.

The defendants filed a motion to dismiss pursuant to Neb. 

Ct. R. Pldg. § 6-1112(b)(1) (lack of subject matter jurisdiction) and § 6-1112(b)(6) (failure to state a claim). With regard 

to jurisdiction, the City alleged that MSP’s attempt to appeal 

pursuant to § 19-2422 was erroneous because the City did 

not impose a special assessment against MSP’s property. The 

defendants contended instead that the Board of Equalization 

acted in the exercise of its judicial functions. The defendants 

asserted that because the Board of Equalization was acting 

as a tribunal and exercising judicial functions, MSP’s only 

remedy was to file a petition in error pursuant to § 25-1901 et 

seq. The defendants contended that because MSP had not filed 

a “Petition in Error,” the district court lacked subject matter 
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MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 309 Neb. 738

jurisdiction. In their motion to dismiss, the defendants also 

asserted that MSP had failed to state a claim against Kluthe, 

that Kluthe was not a proper party to the action, and that MSP 

failed to allege the elements required for a writ of mandamus 

against Kluthe.

After a hearing, the district court sustained the defendants’ 

motion to dismiss. In an order filed October 15, 2020, the 

court determined that it lacked jurisdiction. The court stated 

that MSP was challenging a decision made by the Board of 

Equalization “following a hearing during which MSP presented 

evidence and made arguments” and that in making the decision, 

“the City, through the [Board of Equalization], was exercising 

a judicial function.” The court reasoned that because the Board 

of Equalization was acting in a judicial capacity, the petition 

in error statutes, § 25-1901 et seq., applied. The court stated 

that MSP’s claims were “not properly pursued via a petition in 

error” and that, instead, MSP brought its claims “by way of a 

Petition to Appeal Assessment of the . . . Board of Equalization 

which is not a proper action and does not confer jurisdiction 

in this Court.” The court found that § 19-2422 did not apply, 

“because there was no special assessment imposed.” The court 

cited case law defining “special assessment” and determined 

that MSP had made no factual allegations to show that the 

resolution it sought to appeal was a “special assessment.” The 

court concluded that “it [had] no jurisdiction and [was] without 

authority to grant any of the relief that MSP request[ed] in its 

appeal.” The court therefore dismissed MSP’s petition.

MSP appeals the order that dismissed its petition for lack 

of jurisdiction.

ASSIGNMENTS OF ERROR

MSP claims that the district court erred when it determined 

that it lacked subject matter jurisdiction. MSP first claims that 

the City’s action placing a lien on its property was a “special 

assessment” under § 18-1722 and that therefore, an appeal of 

special assessments authorized by § 19-2422 was proper. In 
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MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 309 Neb. 738

the alternative, MSP claims that if § 19-2422 was not applicable, MSP followed the requirements necessary to perfect an 

appeal by a petition in error.

STANDARD OF REVIEW

[1] A jurisdictional question that does not involve a factual 

dispute is determined by an appellate court as a matter of 

law, which requires the appellate court to reach a conclusion 

independent of the lower court’s decision. Champion v. Hall 

County, ante p. 55, 958 N.W.2d 396 (2021).

ANALYSIS

MSP claims that the resolution of July 21, 2020, it sought 

to appeal levied a special assessment under the authority of 

§ 18-1722 and that therefore, the district court had subject matter jurisdiction of its appeal of that special assessment pursuant 

to § 19-2422. We agree with MSP and conclude as a matter of 

law that the district court erred when it dismissed MSP’s petition in its entirety.

Section 19-2422 provides as follows:

Any owner of real property who feels aggrieved by the 

levy of any special assessment by any city of the first class, 

city of the second class, or village may appeal from such 

assessment, both as to the validity and amount thereof, to 

the district court of the county where such assessed real 

property is located. The issues on such appeal shall be 

tried de novo. The district court may affirm, modify, or 

vacate the special assessment or may remand the case to 

the local board of equalization for rehearing.

(Emphasis supplied.) As emphasized above, § 19-2422 refers 

broadly to the levy of “any” special assessment.

MSP argues on appeal that the City, through the Board of 

Equalization, levied a special assessment in the July 21, 2020, 

resolution. MSP notes that under Neb. Rev. Stat. § 16-707 

(Cum. Supp. 2020), the “mayor and city council of a city of 

the first class . . . meet[ing] as a board of equalization” have 

the power to “equalize all special assessments” and that “at 
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MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 309 Neb. 738

such meeting the assessments shall be finally levied by them.” 

MSP contends that the event of July 21 was such a meeting 

and had as its objective the levying of a special assessment 

against MSP. In this regard, MSP next cites § 18-1722, which 

provides:

If any owner of any building or structure fails, neglects, 

or refuses to comply with notice by or on behalf of any 

city or village to repair, rehabilitate, or demolish and 

remove a building or structure which is an unsafe building or structure and a public nuisance, the city or village 

may proceed with the work specified in the notice to the 

property owner. A statement of the cost of such work 

shall be transmitted to the governing body. The governing 

body may:

(1) Levy the cost as a special assessment against the 

lot or real estate upon which the building or structure is 

located. Such special assessment shall be a lien on the 

real estate and shall be collected in the manner provided 

for special assessments; or

(2) Collect the cost from the owner of the building or 

structure and enforce the collection by civil action in any 

court of competent jurisdiction.

(Emphasis supplied.)

In summary, MSP notes that a board of equalization has 

authority under § 16-707 to levy “special assessments” and 

asserts that it is clear the action taken by the City and the Board 

of Equalization in the July 21, 2020, resolution was the action 

defined in § 18-1722(1) for the purpose of levying a “special 

assessment” against the property (which special assessment 

serves as a lien on the property) and that appeals from “any 

special assessment” are authorized under § 19-2422.

We agree that the apparent authority for the action taken 

by the Board of Equalization in the July 21, 2020, resolution 

was § 18-1722. Based on allegations in MSP’s petition and 

statements in the resolution itself, it is clear that (1) MSP had 

failed, neglected, or refused to comply with the City’s notice 
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309 Nebraska Reports

MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 309 Neb. 738

requiring MSP to demolish and remove a structure the City had 

deemed to be an unsafe structure and a public nuisance and 

(2) therefore the City proceeded with the work specified in the 

notice. Under § 18-1722, the City thereafter had the authority 

to collect the cost of such work and had two options for how to 

proceed. Although the City had the option under § 18-1722(2) 

to collect the cost “by civil action in any court of competent 

jurisdiction,” it is clear the City chose instead to collect the 

cost by the option set forth under § 18-1722(1), which involves 

“[l]evy[ing] the cost as a special assessment against the . . . 

real estate upon which the . . . structure is located.” Section 

18-1722(1) further provides that the “special assessment” is 

“a lien on the real estate” to be “collected in the manner provided for special assessments.” In the resolution, the City and 

the Board of Equalization noted that MSP had filed “written 

objections to the assessment,” and the City and the Board of 

Equalization rejected the objections and resolved that the costs 

were to be a lien on MSP’s property with payments to be collected by the county treasurer.

In their response, the defendants do not explicitly deny that 

the July 21, 2020, resolution was made under the authority 

of § 18-1722 and do not identify any other authority pursuant to which the resolution was made. Instead, the defendants 

argue that there is “no legal authority that the special assessment referenced in § 18-1722 is the same as that referenced 

in § 19-2422.” Brief for appellees at 16. The defendants argue 

that § 19-2422 “does not by its plain language or otherwise 

indicate that it applies” to a special assessment imposed under 

§ 18-1722, brief for appellees at 16, and they note that the 

two statutes are in different statutory sections. The defendants 

instead agree with the district court’s reasoning that “special 

assessment” under § 19-2422 has the definition set forth in 

case law such as Bennett v. Board of Equal. of City of Lincoln, 

245 Neb. 838, 841, 515 N.W.2d 776, 779 (1994), which 

provides that “[s]pecial assessments are charges imposed by 

law on land to defray the expense of a local municipal 
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MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 309 Neb. 738

improvement on the theory that the property has received special benefits from the improvements in excess of the benefits 

accruing to property or people in general.” The defendants 

argue that the district court correctly determined that MSP 

did not show that the resolution in the case levied a “special 

assessment” under this definition.

[2] We reject this argument. Contrary to the defendants’ 

assertion that the language of § 19-2422 does not indicate 

that it includes a special assessment under § 18-1722, we note 

that § 19-2422 broadly applies to “any special assessment.” 

Because it used such broad language, § 19-2422 did not need 

to explicitly refer to or specifically incorporate § 18-1722 

within its ambit; instead, if the statute had as its objective the 

exclusion of specific assessments, it would have been obliged 

to explicitly exclude any such “special assessment.” We further note that while § 19-2422 and § 18-1722 are in different 

chapters of the revised statutes, both chapters apply to cities 

and villages, the difference being that § 18-1722 is in a chapter applicable to all cities and villages, while § 19-2422 is in 

a chapter and article applicable to cities of the first or second 

class and villages. The City qualifies under both chapters. The 

defendants do not cite, and we do not find, a provision setting 

forth a special definition for “special assessment” for either 

statutory section. We therefore read “any special assessment” 

under § 19-2422 to include and to apply to a “special assessment” levied under the authority of § 18-1722(1).

We conclude therefore that § 19-2422, which authorizes 

an appeal from a special assessment, was the proper authority for MSP to appeal the July 21, 2020, resolution, and as a 

consequence, the district court had subject matter jurisdiction 

over MSP’s appeal. We express no opinion as to whether a 

petition in error would be appropriate but do observe that 

where there is an explicit statute authorizing an appeal, the 

explicit statute is generally the preferred appellate path. See, 

e.g., Abboud v. Lakeview, Inc., 237 Neb. 326, 466 N.W.2d 

442 (1991). Because we conclude that the district court had 
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MAIN ST PROPERTIES v. CITY OF BELLEVUE

Cite as 309 Neb. 738

subject matter jurisdiction under § 19-2422, we need not consider MSP’s alternative argument that it also complied with 

requirements to file a petition in error under § 25-1901 et seq. 

We also note that at oral argument, the defendants acknowledged that if § 19-2422 was the proper authority for an appeal 

to the district court, then MSP had complied with the relevant 

procedural requirements, including timely filing a notice of 

appeal and posting a bond with the city clerk as required by 

§ 19-2423.

Because we conclude that the district court has subject matter jurisdiction, we reverse the dismissal of the petition in its 

entirety for lack of jurisdiction, and we remand the cause for 

further proceedings. We note that because the district court 

erroneously dismissed the petition for lack of subject matter 

jurisdiction, it did not address other assertions set forth in the 

defendants’ motion to dismiss. Therefore, the district court 

should consider those assertions on remand.

CONCLUSION

We conclude that the City’s July 21, 2020, resolution levied a special assessment against MSP under the authority of 

§ 18-1722 and that therefore, § 19-2422 authorized MSP’s 

appeal of the resolution. The district court therefore erred when 

it dismissed the petition for lack of subject matter jurisdiction. 

We reverse the dismissal of MSP’s petition in its entirety, and 

we remand the cause for further proceedings.

Reversed and remanded for 

further proceedings.