Nebraska Revised Statute 79-458

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Chapter 79

79-458.

School district; tract of land set off from district; petition; conditions; procedure; appeal.

(1) Any freeholder or freeholders, person in possession or constructive possession as vendee pursuant to a contract of sale of the fee, holder of a school land lease under section 72-232, or entrant upon government land who has not yet received a patent therefor may file a petition on or before June 1 for all other years with a board consisting of the county assessor, county clerk, and county treasurer, asking to have any tract or tracts of land described in the petition set off from an existing school district in which the land is situated and attached to a different school district which is contiguous to such tract or tracts of land if:

(a)(i) The school district in which the land is situated is a Class I, II, or III school district which has had an average daily membership in grades nine through twelve of less than sixty for the two consecutive school fiscal years immediately preceding the filing of the petition;

(ii) Such Class I, II, or III school district has voted pursuant to section 77-3444 to exceed the maximum levy established pursuant to subdivision (2)(a) of section 77-3442, which vote is effective for the school fiscal year in which the petition is filed or for the following school fiscal year;

(iii) The high school in such Class I, II, or III school district is within fifteen miles on a maintained public highway or maintained public road of another public high school; and

(iv) Neither school district is a member of a learning community; or

(b) Except as provided in subsection (7) of this section, the school district in which the land is situated, regardless of the class of school district, has approved a budget for the school fiscal year in which the petition is filed that will cause the combined levies for such school fiscal year, except levies for bonded indebtedness approved by the voters of such school district and levies for the refinancing of such bonded indebtedness, to exceed the greater of (i) one dollar and twenty cents per one hundred dollars of taxable valuation of property subject to the levy or (ii) the maximum levy authorized by a vote pursuant to section 77-3444.

For purposes of determining whether a tract of land is contiguous, all petitions currently being considered by the board shall be considered together as a whole.

(2) The petition shall state the reasons for the proposed change and shall show with reference to the land of each petitioner: (a) That (i) the land described in the petition is either owned by the petitioner or petitioners or that he, she, or they hold a school land lease under section 72-232, are in possession or constructive possession as vendee under a contract of sale of the fee simple interest, or have made an entry on government land but have not yet received a patent therefor and (ii) such tract of land includes all such contiguous land owned or controlled by each petitioner; (b) that the conditions of subdivision (1)(a) or (1)(b) of this section have been met; and (c) that such petition is approved by a majority of the members of the school board of the district to which such land is sought to be attached.

(3) The petition shall be verified by the oath of each petitioner. Notice of the filing of the petition and of the hearing on such petition before the board constituted as prescribed in subsection (1) or (4) of this section shall be given at least ten days prior to the date of such hearing by one publication in a legal newspaper of general circulation in each district and by posting a notice on the outer door of the schoolhouse in each district affected thereby, and such notice shall designate the territory to be transferred. Following the filing of a petition pursuant to this section, such board shall hold a public hearing on the petition and shall approve or disapprove the petition on or before July 15 following the filing of the petition based on a determination of whether the petitioner has complied with all requirements of this section. If such board approves the petition, such board shall change the boundaries of the school districts so as to set off the land described in the petition and attach it to such district pursuant to the petition with an effective date of August 15 following the filing of the petition, which actions shall cause such transfer to be in effect for levies set for the year in which such transfer takes effect.

(4) Petitions requesting transfers of property across county lines shall be addressed jointly to the county clerks of the counties concerned, and the petitions shall be acted upon by the county assessors, county clerks, and county treasurers of the counties involved as one board, with the county clerk of the county from which the land is sought to be transferred acting as chairperson of the board.

(5) Appeals may be taken from the action of such board or, when such board fails to act on the petition, on or before August 1 following the filing of the petition, to the district court of the county in which the land is located on or before August 10 following the filing of the petition, in the same manner as appeals are now taken from the action of the county board in the allowance or disallowance of claims against the county. If an appeal is taken from the action of the board approving the petition or failing to act on the petition, the transfer shall occur effective August 15 following the filing of the petition, which actions shall cause such transfer to be in effect for levies set for the year in which such transfer takes effect, unless action by the district court prevents such transfer.

(6) This section does not apply to any school district located on an Indian reservation and substantially or totally financed by the federal government.

(7) For school districts that have approved a budget for school fiscal year 2007-08 that will cause the combined levies, except levies for bonded indebtedness approved by the voters of the school district and levies for the refinancing of such bonded indebtedness, to exceed the greater of (a) one dollar and twenty cents per one hundred dollars of taxable valuation of property subject to the levy or (b) the maximum levy authorized by a vote pursuant to section 77-3444, the school boards of such school districts may adopt a binding resolution stating that the combined levies, except levies for bonded indebtedness approved by the voters of the school district and levies for the refinancing of such bonded indebtedness, for school fiscal year 2008-09 shall not exceed the greater of (i) one dollar and twenty cents per one hundred dollars of taxable valuation of property subject to the levy or (ii) the maximum levy authorized by a vote pursuant to section 77-3444. On or before May 9, 2008, such binding resolutions shall be filed with the Auditor of Public Accounts and the county assessors, county clerks, and county treasurers for all counties in which the school district has territory. If such binding resolution is filed on or before May 9, 2008, land shall not be set off and attached to another district pursuant to subdivision (2)(b) of this section in 2008.

(8) Nothing in this section shall be construed to detach obligations for voter-approved bonds from any tract of land.

Cross References

  • For appeal from action of county board on claim, see section 23-135.

Annotations

  • 1. Appeal

  • 2. Procedure

  • 3. Miscellaneous

  • 1. Appeal

  • A party filing a petition under this section has a direct and legal interest in an appeal filed with the district court objecting to the granting of that petition. Koch v. Cedar Cty. Freeholder Bd., 276 Neb. 1009, 759 N.W.2d 464 (2009).

  • The action of the statutory board under this section (repealed section 79-456) is an exercise of quasi-judicial power, equitable in character, and upon appeal therefrom to the district court, the cause is triable de novo as though it had been originally instituted in such court, and upon appeal from the district court to this court, it is triable de novo as in any other equitable action. In re Plummer Freeholder Petition, 229 Neb. 520, 428 N.W.2d 163 (1988).

  • An appeal taken from action of the State Board of Education pursuant to subsection (1) of this section (repealed section 79-456) must be taken within twenty days from the date that the board votes to transfer the land, rather than from the time it approves a formal memorandum. Such appeals are filed in the district court where the land is located rather than where the action is taken by the board. In re Covault Freeholder Petition, 218 Neb. 763, 359 N.W.2d 349 (1984).

  • The action of the statutory board created under subsection (2) of this section (repealed section 79-456) is an exercise of quasi-judicial power, equitable in character, and on appeal therefrom to the district court the cause is triable de novo as though it had originally been instituted in such court. A trial de novo is conducted as though the earlier trial had not been held in the first place, and evidence is taken anew as such evidence is available at the time of the trial on appeal. In re Covault Freeholder Petition, 218 Neb. 763, 359 N.W.2d 349 (1984).

  • A school district has no standing to appeal in cases of transfers by freehold petitioners which involve only the property of the petitioners, nor can an intervenor entering after the time for appeal has lapsed be substituted as an appellant. In re Hilbers Property Freehold Transfer, 211 Neb. 268, 318 N.W.2d 265 (1982).

  • An appeal from action taken under this section is tried de novo in the Supreme Court. The establishment of the amount of tuition required to be paid by the parents or guardians under subsection (1) of this section (repealed section 79-456) is left to the sole discretion of the local board of education of the adjoining district under former section 79-445. In re Freeholder's Petition, 210 Neb. 839, 317 N.W.2d 91 (1982).

  • Matters to be considered in determining whether or not a requested transfer of land from one school district to another should be permitted are set out and upon appeal trial is de novo as in equity. Klecan v. Schmal, 196 Neb. 100, 241 N.W.2d 529 (1976).

  • A freeholder's petition hereunder to transfer land from one school district to another must be supported by adequate showing that best educative rather than noneducative interest of petitioner will be served and, after hearing by board, trial and appeal are conducted as in any other equitable action. Friesen v. Clark, 192 Neb. 227, 220 N.W.2d 12 (1974).

  • Method of giving notice of appeal in this particular case from freeholders' board, in a county where by law county clerk is ex officio clerk of the district court, held sufficient. Elson v. Harbert, 190 Neb. 437, 208 N.W.2d 703 (1973).

  • Provisions for appealing from order of justice of the peace or county court not applicable to appeals under this section. Clark v. Sweet, 183 Neb. 723, 163 N.W.2d 881 (1969).

  • Appeal from action of freeholders' board may be taken to district court in same manner as an appeal from the allowance of claims against a county. Reiber v. Harris, 179 Neb. 582, 139 N.W.2d 353 (1966).

  • In conferring right of appeal, procedure was prescribed. McDonald v. Rentfrow, 171 Neb. 479, 106 N.W.2d 682 (1960).

  • Where no final order by board was made, appeal therefrom should be dismissed. School Dist. No. 98 of Cedar County v. Elliott, 90 Neb. 89, 132 N.W. 922 (1911).

  • 2. Procedure

  • Under subsection (5) of this section, appeals from a freeholder board must be filed by August 10 when the board either acted or failed to act on a petition by August 1. Butler Cty. Sch. Dist. v. Freeholder Petitioners, 283 Neb. 903, 814 N.W.2d 724 (2012).

  • Deficiencies in a petition filed under this section do not necessarily defeat the jurisdiction of a freeholder board. Koch v. Cedar Cty. Freeholder Bd., 276 Neb. 1009, 759 N.W.2d 464 (2009).

  • In determining whether land is contiguous under this section, a freeholder board shall consider all petitions together in order to find that otherwise noncontiguous land is nevertheless contiguous. Koch v. Cedar Cty. Freeholder Bd., 276 Neb. 1009, 759 N.W.2d 464 (2009).

  • The petitioners for the transfer of land from one school district to another school district have the burden of proving by a preponderance of the evidence each of the statutory requirements for such transfer provided in this section (repealed section 79-456). Roelfs v. Specht, 203 Neb. 448, 279 N.W.2d 124 (1979).

  • Petition hereunder to detach land from school district is not a pending action preserved by general savings clause. Clark v. Sweet, 187 Neb. 232, 188 N.W.2d 889 (1971).

  • Sufficiency of petition being first attacked at time of filing motion for new trial, it will be liberally construed; allegation that land involved is in nonaccredited school district and is to be attached to an accredited school district is sufficient to state a cause of action. Bader v. Hodwalker, 187 Neb. 138, 187 N.W.2d 645 (1971).

  • Unless proof of giving notice as required by this section (repealed section 79-456) appears in the bill of exceptions, action of the board granting request for change of boundaries will be held void for want of jurisdiction. Endorf v. School Dist. No. 303 of Thayer County, 186 Neb. 167, 181 N.W.2d 445 (1970).

  • This section (repealed section 79-456) provides for the transfer of land between school districts upon the petition of a freeholder. Pribil v. French, 179 Neb. 602, 139 N.W.2d 356 (1966).

  • Subsection (2) of this section (repealed section 79-456) prescribes the standards necessary to permit the transfer of land from a nonaccredited to an accredited high school district. De Jonge v. School Dist. of Bloomington, 179 Neb. 539, 139 N.W.2d 296 (1966).

  • Giving of notice of hearing on petition for change of boundaries is essential to validity of proceedings. Everts v. School Dist. No. 16 of Fillmore County, 175 Neb. 310, 121 N.W.2d 487 (1963).

  • In order to give board jurisdiction, petition must be filed and notice given. State ex rel. School Dist. No. 1 of Sioux County v. School Dist. No. 19 of Sioux County, 42 Neb. 499, 60 N.W. 912 (1894).

  • Petition is required, and oral request is not sufficient. State ex rel. McLane v. Compton, 28 Neb. 485, 44 N.W. 660 (1890).

  • 3. Miscellaneous

  • Where all of the acts necessary to effect accreditation of a school district have been met prior to the statutory board's ordering the transfer, and, in fact, formal accreditation is granted prior to the time the children begin school and prior to the time the district court acts on the appeal, the issue of accreditation must be considered to have become moot. In re Covault Freeholder Petition, 218 Neb. 763, 359 N.W.2d 349 (1984).

  • An error in the description contained in a petition to alter a school district boundary under this section will not invalidate the petition where it is clear from a reading of the entire petition what land is intended. Schilke v. School Dist. No. 107 of Saunders County, 207 Neb. 448, 299 N.W.2d 527 (1980).

  • Former section 79-801.02 is limited to provisions of former section 79-801, and is not applicable to school district boundary changes under other statutes. Corcoran v. Boone County Board of Equalization, 196 Neb. 363, 243 N.W.2d 60 (1976).

  • Amendment by L.B. 1378 (1969) in effect when board acted held constitutional and applicable rather than L.B. 798 (1969) which became effective after board acted. Kaup v. Sweet, 187 Neb. 226, 188 N.W.2d 891 (1971).

  • School district maintaining nonaccredited high school grades is a nonaccredited high school district. Schwanebeck v. Brunken, 183 Neb. 519, 162 N.W.2d 225 (1968).

  • Proviso in this section did not provide an independent and sole ground for transfer. Johnson v. School Dist. of Wakefield, 181 Neb. 372, 148 N.W.2d 592 (1967).

  • Deputy county officer cannot serve as a member of the board. Monson v. Neidig, 180 Neb. 818, 146 N.W.2d 198 (1966).

  • Subsection (2) of this section (repealed section 79-456) sustained as constitutional. Ebberson v. School Dist. No. 64 of Cedar County, 180 Neb. 119, 141 N.W.2d 452 (1966).

  • This section did not unconstitutionally delegate legislative powers to the courts. McDonald v. Rentfrow, 176 Neb. 796, 127 N.W.2d 480 (1964).

  • Contention that wrong section (repealed section 79-456) was attempted to be amended raised but not decided. State ex rel. Bottolfson v. School Board of School Dist. No. R1 of Cedar and Dixon Counties, 170 Neb. 417, 103 N.W.2d 146 (1960).

  • Action of board is quasi-judicial in nature. Roy v. Bladen School Dist. No. R-31, 165 Neb. 170, 84 N.W.2d 119 (1957).

  • Reasonably improved highway means sufficiently improved to meet normal demands of children of school age. School Dist. No. 228 of Holt County v. State Board of Education, 164 Neb. 148, 82 N.W.2d 8 (1957).

  • This section was not applicable to supply standards in cases arising before its enactment. School Dist. No. 39 of Washington County v. Decker, 159 Neb. 693, 68 N.W.2d 354 (1955).

  • Courts have no power to enforce public policy by attaching territory to school district without affirmative action required by statute and cannot assume that territory which might or should have been added to school district was added where record shows it was not. Sioux City Bridge Co. v. Miller, 12 F.2d 41 (8th Cir. 1926).