Background
Airport Authority of the City of Omaha is a political subdivision of Nebraska responsible for operating Eppley Airfield. Park ‘N Go of Nebraska, LLC operates a private off-airport surface parking lot and runs a shuttle service transporting customers to and from the airport. Airport Authority grants Park ‘N Go and similar commercial operators access to dedicated pickup and dropoff lanes on airport property—the Commercial Vehicle Lanes. In June 2021, Airport Authority enacted a resolution imposing a monthly charge on off-airport parking companies equal to 10 percent of gross receipts as the price of continued access to those lanes. Airport Authority cited its obligation under FAA regulations to keep the airport as self-sustaining as possible and relied on Neb. Rev. Stat. § 3-504(11), which authorizes airport authorities to “charge fees, rentals, and other charges for the use of projects under the jurisdiction of such authority.”
Park ‘N Go challenged the charge in Douglas County District Court, alleging it was not a legitimate user fee but an unconstitutional tax imposed without authority under Neb. Const. art. VIII, § 1, which reserves taxation power to the legislature. After a bench trial in February 2025, the district court adopted a three-part test drawn from a legal treatise—asking whether the charge applied to the direct beneficiary, was allocated to defray the cost of the specific service, and was reasonably proportionate to the benefit received—and concluded that the charge failed all three prongs. The court found that the amount was untethered from Park ‘N Go’s actual lane usage, that revenue flowed into a general fund for airport-wide expenses rather than lane maintenance, and that the gross-receipts measure bore no rational relationship to frequency of shuttle use. The court declared the resolution void ab initio as an impermissible tax, permanently enjoined its enforcement, and ordered Airport Authority to refund all amounts collected.
Airport Authority appealed, contending that the district court erred in applying the three-part test, in refusing to presume the resolution’s validity, in shifting the burden of proof, and in granting permanent injunctive relief when the charge fell squarely within its statutory fee authority.
The Court’s Holding
The Nebraska Supreme Court reversed and remanded with directions to dismiss Park ‘N Go’s complaint. Reviewing the equity action de novo, the court held that the charge imposed by the resolution was not an unconstitutional tax. The court declined to adopt any single bright-line test for distinguishing fees from taxes, reasoning that no universal formula can capture the variety of circumstances in which the issue arises. Instead, the court reaffirmed the approach signaled in Schumacher v. Johanns, 272 Neb. 346 (2006): the characterization of a charge turns on the facts and circumstances surrounding its imposition, evaluated against the general purposes of taxes and fees and how analogous charges have been treated in comparable situations.
Applying that framework, and drawing on decisions from other jurisdictions involving airport authority charges on off-airport commercial operators—including Ace Rent-A-Car v. Airport Authority, 612 N.E.2d 1104 (Ind. App. 1993), and Jacksonville Port Auth. v. Alamo—the court emphasized that the charge was optional in a legally meaningful sense: Park ‘N Go was obligated to pay only because it chose to use and benefit from Airport Authority’s Commercial Vehicle Lanes. The charge was tied to a specific benefit conferred by a specific facility, not a compulsory contribution to the general public fisc. That the charge was measured as a percentage of gross receipts did not transform it into a tax; rather, gross receipts provided a reasonable proxy for the commercial benefit derived from airport access.
The court expressly declined to reach Park ‘N Go’s alternative argument—raised for the first time on appeal—that even if the charge were a valid fee rather than a tax, it still exceeded Airport Authority’s statutory authority under § 3-504(11) because it was unreasonable and not uniformly applied. Because that statutory-reasonableness claim had not been pleaded in the operative complaint or adjudicated below, the court left it for another day. The sole issue before the court was whether the charge was a constitutionally impermissible tax, and the court answered that question in Airport Authority’s favor.
Key Takeaways
- Nebraska’s highest court refused to adopt a rigid three-part test for distinguishing taxes from fees; the analysis is fact-specific and context-dependent, guided by the primary purpose of the charge and how comparable assessments have been characterized.
- A charge imposed by an airport authority on commercial operators for access to airport facilities is not a tax merely because it is measured as a percentage of gross receipts; what matters is that payment is tied to a specific benefit and required only of those who voluntarily use the facility.
- Airport authorities without taxing power may nonetheless impose percentage-of-revenue access charges on off-airport companies under § 3-504(11), so long as those charges are framed as the price of using airport “projects”—including roadways and designated vehicle lanes.
- An appellee seeking affirmance on an unpleaded alternative ground (e.g., statutory unreasonableness) that was never decided below cannot obtain relief on that theory in the Nebraska Supreme Court; the claim must be raised in the trial court first.
Why It Matters
This decision resolves a question of first impression in Nebraska—how to distinguish a permissible user fee from an unconstitutional tax imposed by a non-taxing authority—and rejects the mechanical three-part test that had been used in the trial courts. By anchoring the analysis in the primary purpose and voluntary nature of the charge rather than in rigid criteria such as strict cost-correlation or earmarking, the court aligns Nebraska with a broad national consensus that airport access fees on commercial ground-transportation and parking operators are not taxes even when structured as a percentage of revenues.
Practically, the ruling validates a widely used airport revenue model and removes a significant litigation risk for Nebraska’s airport authorities. It also signals, however, that the court left open whether such charges must satisfy any statutory requirement of reasonableness and uniformity under § 3-504(11)—an issue analogous to the one decided decades ago in City of Ord v. Biemond under a predecessor statute. Off-airport operators challenging similar fees in the future may need to plead and litigate that statutory question rather than relying solely on constitutional tax-versus-fee arguments.