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Dwyer Arce Wins Property Tax Relief for Farm Land Before the Nebraska Supreme Court

News | January 16, 2024

Dwyer Arce, a litigation partner in Kutak Rock’s Omaha office, successfully obtained property tax relief for a farming property in Douglas County, Nebraska. The appeal, captioned Fountain II v. Douglas County Board of Equalization, 315 Neb. 633, was decided by the Nebraska Supreme Court on January 5, 2024, restoring special agricultural valuation (known as “greenbelt status”) after it was revoked by county authorities.

County authorities had revoked greenbelt status for the property after it was purchased by a commercial developer. Although the developer intended to develop in later years, the property was maintained as a farm property planted in row crops, and later alfalfa, for several years while the developer worked to secure the required permits from the City of Omaha. Despite being informed that the property would remain farmland while permits were obtained, county authorities denied greenbelt status, claiming that the land did not qualify because it was being prepared for development as opposed to being maintained as farmland. The denial of greenbelt status resulted in a tenfold property tax increase. County authorities later claimed that the property did not qualify because a successful cash crop was not growing on it for a majority of the year and no income was generated from the sale of the crop in that tax year.

Dwyer argued in the Nebraska Supreme Court that this action was arbitrary and capricious because Nebraska law did not require that a property be farmed in a successful cash crop for a majority of the year as county authorities claimed. Dwyer insisted that, if affirmed, the case would stand as a negative precedent for farmers statewide. If county authorities were permitted to invent this new requirement for greenbelt status, the greenbelt status of farms across the state would be in jeopardy when farming could not occur in a particular year. This can happen for several reasons, including because of a natural disaster, crop loss, or the standard farming practice of fallowing where property goes unfarmed for a year or more to prepare it for farming in later years.

The Nebraska Supreme Court ultimately restored greenbelt status and agreed that county authorities had acted arbitrarily when imposing this requirement. The Nebraska Supreme Court explained that Nebraska law requires that a property’s status be determined as of January 1 of each year. On January 1, there had been no development on the property and the developer had renewed its farm lease, so county authorities acted contrary to law in considering activities on the property later in the year.

An audio recording of Dwyer’s oral argument, and additional information about the case can be found on the Nebraska Supreme Court website.

Dwyer’s win before the Nebraska Supreme Court comes as one in a series of appellate wins, including successfully arguing before the full United States Court of Appeals for the Third Circuit sitting en banc. In that case, Dwyer appeared on behalf of the Virgin Islands Bar Association and successfully urged the Third Circuit to recognize it no longer had jurisdiction to review decisions of the Supreme Court of the Virgin Islands and that all future appeals from the Supreme Court of the Virgin Islands must go directly to the United States Supreme Court in the same manner as the highest court in any of the 50 states. As a result of this win, the Chief Justice of the Virgin Islands awarded Dwyer the Chief Justice Award for Distinguished Service.

Dwyer also recently oversaw the organization and editing of the 2023 update to the Nebraska Appellate Practice Handbook published by the Nebraska State Bar Association (NSBA). Dwyer serves on the Nebraska Supreme Court Committee on Practice & Procedure and as chair of the NSBA Practice & Procedure Committee. Dwyer recently completed a term as President of the Virgin Islands Bar Association and serves as the State Chair for the Virgin Islands on the American Bar Association Council of Appellate Lawyers.

Dwyer’s practice focuses on appellate proceedings in state and federal courts nationwide, in addition to commercial trial litigation primarily in state and federal courts in Nebraska, Iowa, and the Virgin Islands. Dwyer was recognized as a “Lawyer of the Year” for appellate practice in the 2023 edition of The Best Lawyers in America® and has consistently been recognized for his appellate practice and commercial litigation practice by Best Lawyers®. Before entering private practice, Dwyer served for several years as the senior law clerk to Justice Maria M. Cabret of the Supreme Court of the Virgin Islands.