J.C. Penney Co. v. Lancaster County Board of Equalization

578 N.W.2d 465, 6 Neb. Ct. App. 838, 1998 Neb. App. LEXIS 63
CourtNebraska Court of Appeals
DecidedApril 21, 1998
DocketNo. A-97-778
StatusPublished
Cited by9 cases

This text of 578 N.W.2d 465 (J.C. Penney Co. v. Lancaster County Board of Equalization) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.C. Penney Co. v. Lancaster County Board of Equalization, 578 N.W.2d 465, 6 Neb. Ct. App. 838, 1998 Neb. App. LEXIS 63 (Neb. Ct. App. 1998).

Opinion

Sievers, Judge.

INTRODUCTION

J.C. Penney Co., Inc., appeals the order of the Nebraska Tax Equalization and Review Commission (Commission) which upheld the valuation of the Lancaster County Board of Equalization (Board) of $8,685,000 for property tax purposes of the J.C. Penney department store in Lincoln’s Gateway Shopping Center.

BACKGROUND

J.C. Penney, a nationally known retail department store chain, owns commercial real property located in the city of Lincoln, Lancaster County, Nebraska. Construction on this property of a 125,870-square-foot anchor department store at the Gateway Shopping Center began in 1994 and was completed on March 6,1995. The land upon which the store sits was purchased by J.C. Penney in 1994 for $2,267,000.

For the 1996 tax year, the county assessor proposed to value the subject property at $9,007,973. This figure was calculated using the cost method of valuation. The cost method involves using a computer program which first takes into consideration the characteristics of the subject property, such as the perimeter of the building, its area, and its height. After this data is compiled, the computer “uses electronic modeling and tables that estimate the cost of construction of a building with those [features].” Based on this figure, the computer estimates a sug[840]*840gested value for the subject property, which is called the “replacement cost.” The computer then adds the value of the land to the replacement cost to get the final appraised value. Using this method, the subject property was valued at $9,007,973. As a method of confirming this value, the county assessor’s office used another method — the income valuation approach. This method also uses a computer program which estimates the income value of the property based upon averages for retail rental rates, less the estimated average for expenses that would be expected to be charged against a building. Using the income valuation approach, the subject property was valued higher, at $10,315,500.

On June 16, 1996, J.C. Penney filed a protest with the Board pursuant to Neb. Rev. Stat. § 77-1502 (Reissue 1996). J.C. Penney claimed that the county assessor’s figure of $9,007,973 was not the true market value of the property and requested a valuation of $5,285,910. Pursuant to Neb. Rev. Stat. § 77-1502.1 (Reissue 1996) (Board may direct referees to conduct hearings on any protests filed pursuant to § 77-1502), Richard Keith, a Nebraska licensed real estate appraiser, was assigned to review the valuation of J.C. Penney’s property. Wayne Kubert was designated referee coordinator, and a hearing was set for July 2.

At the hearing on July 2, 1996, no one appeared on behalf of J.C. Penney. Despite that fact, Keith’s pro forma analysis was introduced. Keith’s report recommended that the value of the subject property be reduced to $6,815,860. This value was based upon (1) the property record data provided by the county assessor, (2) market sales data used by the assessor, (3) income data used by the assessor, and (4) the referee’s personal inspection of the interior and exterior of the subject property. No information was provided to Keith by J.C. Penney for preparation of the appraisal.

Initially, Kubert concurred with Keith’s recommendation and signed the referee report valuing the subject property at $6,815,860. Subsequently, however, Kubert began valuing other properties in the Gateway Shopping Center, and he became concerned about the lack of equalization among these properties. As a result, Kubert changed his mind and decided to override Keith’s recommendation. With respect to Keith’s report, a hand[841]*841written note was made on the front page which stated, “BOE - Reviewed market rents - & sales - Dillards - also cost of cons, of Penney’s est. 9-10 mil Adjust value to $69 or $8.25 rent 125,870 sq. ft. x $69. $8,685,000.” Although this figure is the Board’s final assessment and there was testimony that this handwriting looked like Kubert’s, the notation was never directly proved to be his — nor did he testify and claim it as his.

In the meantime, Keith’s original report, containing the recommendation of $6,815,860 and Kubert’s signature, was sent to J.C. Penney by mail and received at its Dallas, Texas, offices on July 22, 1996. The report also gave notice to J.C. Penney that the Board was scheduled to take final action on the recommendation on July 23 at 9:30 a.m. Due to the short notice, no representative of J.C. Penney was able to personally appear at the hearing; however, George Rawlings, an appraiser employed by J.C. Penney, did participate by telephone. The hearing was recorded, and a transcript is part of our record.

Only minutes before the hearing formally began did Rawlings learn that Keith’s recommendation had been overridden and that the property was now appraised at $8,685,000 rather than $6,815,860. Kubert explained to Rawlings the change in value by stating:

We’re reviewing all the shopping center. The shopping center itself, obviously, has been rebuilt and redone. It has a new value going out very shortly .. . and that value is in the range of $80 a square foot. [We note that the county’s original valuation of $9,007,973 resulted in an assessment of $72 per square foot and that Kubert’s revised recommended value of $8,685,000 resulted in an assessment of about $69 per square foot.] And in equalizing all the buildings within the shopping center . . .
... we decided we’d better take a look at the whole picture as opposed to dropping down to something that is probably premature at this point.
... [W]e’ve all read the paper up here in which ... we had heard that you were spending close to $10,000,000 out there or something ... would you share with us the cost of this facility?

[842]*842Rawlings responded that he would “be more than happy to supply any information in regards [sic] to cost” and requested additional time to assemble the necessary information. The conversation continued:

[Kandra Hahn, Lancaster County Clerk]: He doesn’t think he can get that to you this morning. When . . .
[Darlene Tussing, Board member]: When’s our final date?
HAHN: The 25th.
[Kathy Campbell, Board member]: Thursday is the final ... we haven’t scheduled any meetings for Thursday.
[Kubert]: Just get... it up as soon as you can. It’s going to have to come out anyway. We’re going to have to deal with it. That’s the best we can do.

Rawlings then faxed a letter objecting to the short notice. That same day, the Board took final action on the protest and accepted Kubert’s recommendation of $8,685,000 as the final valuation of the property.

J.C. Penney then appealed to the Commission, pursuant to Neb. Rev. Stat. § 77-1510 (Reissue 1996). In preparation for the hearing before the Commission, the Board requested commercial appraiser Court Monroe of the county assessor’s office, who had prepared the original appraisal of $9,007,973, to prepare yet another appraisal of the subject property.

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Bluebook (online)
578 N.W.2d 465, 6 Neb. Ct. App. 838, 1998 Neb. App. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jc-penney-co-v-lancaster-county-board-of-equalization-nebctapp-1998.