S-25-0409 Park ‘N Go of Nebraska, LLC (Appellee) v. Airport Authority of the City of Omaha (Appellant)
Appeal from the District Court for Douglas County, Judge Tressa M. Alioth
Attorneys: J. Scott Paul, Patrick D. Pepper, and Alexander K. Shaner (McGrath North Mullin & Kratz, PC LLO for Appellant) and Matthew B. Reilly and Thomas J. Culhane (Erickson ׀ Sederstrom, P.C., LLO for Appellee)
Civil: Political subdivisions and constitutionality of user fees
Proceedings below: Appellant enacted a resolution that charged qualifying off-airport parking companies a user fee. Appellee asserted that the Appellant lacked authority to enact the resolution and sought a declaratory judgment and injunctive relief. The district court determined that the user fee was an impermissible tax. Appellant petitioned to bypass the Nebraska Court of Appeals, which the Nebraska Supreme Court granted and ordered this case to be transferred to its docket.
Issues: Appellant assigns the following errors: 1) The district court erred in determining the off-airport parking company user fee (the “user fee”) was an unconstitutional tax and not a permissible “fee” or “charge” under Nebraska law (including the CAA) because the user fee is authorized by Nebraska law (including the CAA) and does not operate as a tax; 2) The district court erred as a matter of law by adopting a “three-part test” to determine whether the user fee charged by the Off-Airport Parking Company User Fee Resolution (“Resolution”) was an unconstitutional tax because (1) the CAA is the governing legal authority relating to the Airport Authority’s fee-charging powers, (2) the district court misapplied the CAA, (3) the three-part test conflicts with the CAA, (4) the CAA is consistent with the Airport Authority’s federal grant assurances and three-part test, and (5) the three-part test is inconsistent with analogous authority supporting similar user fees throughout the United States; 3) The district court failed to provide the resolution with the presumption of validity under Nebraska law; 4) The district court misapplied the burden of proof at the bench trial through its application of three-part test, which constituted impermissible burden shifting; 5) The district court erred by failing to enter judgment in favor of the Airport Authority because Park ‘N Go failed to meet its burden to prove the user fee was an unconstitutional tax and not a permissible “fee” or “charge” under Nebraska law; and 6) The district court erred by improperly granting Park ‘N Go permanent injunctive relief.