Brittany Park Apartments v. Harrison Tp., Docket Nos. 45521-45523

• Decision Date: 03 March 1981
• Docket Number: Docket Nos. 45521-45523
• Citation: 104 Mich.App. 81,304 N.W.2d 488
• Parties: BRITTANY PARK APARTMENTS, Petitioner-Appellant, v. TOWNSHIP OF HARRISON, Respondent-Appellee. BRITTANY PARK APARTMENTS # 2, Petitioner-Appellant, v. TOWNSHIP OF HARRISON, Respondent-Appellee. Morton L. SCHOLNICK, Robert Brody, Norman Gallant et al., Petitioners-Appellants, v. TOWNSHIP OF HARRISON, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 488

304 N.W.2d 488

104 Mich.App. 81

BRITTANY PARK APARTMENTS, Petitioner-Appellant, v. TOWNSHIP OF HARRISON, Respondent-Appellee.

BRITTANY PARK APARTMENTS # 2, Petitioner-Appellant, v. TOWNSHIP OF HARRISON, Respondent-Appellee.

Morton L. SCHOLNICK, Robert Brody, Norman Gallant et al., Petitioners-Appellants, v. TOWNSHIP OF HARRISON, Respondent-Appellee.

Docket Nos. 45521-45523.

Court of Appeals of Michigan.

March 3, 1981.

Released for Publication April 30, 1981.

Thomas J. Beale, Southfield, for petitioners-appellants.

John B. Bruff, Mount Clemens, for respondent-appellee.

Before BEASLEY, P. J., and CAVANAGH and PORTER, ^* JJ.

PORTER, Judge.

Petitioners appeal as of right from an order of the Michigan Tax Tribunal granting accelerated judgment and dismissing their petitions.

Three properties are involved in this property tax dispute. Brittany Park Apartments and Brittany Park Apartments # 2 are apartment developments in Harrison Township. Morton L. Scholnick, Robert Brody, Norman Gallant, et al., own a vacant parcel of land within that township's boundaries. On March 1, 1975, all petitioners were notified of their 1975 tax assessments and all subsequently inquired and learned the tentative equalization factor for Harrison Township would be 1.0. Each of these taxpayers filed timely protests of their assessments with their local board of review, which denied relief. No further appeals were taken at that time.

In May of 1975, the State Board of Equalization, pursuant to M.C.L. § 209.4; M.S.A. § 7.604, increased the state equalization factor for Macomb County from 1.0 to 1.28254. Macomb County proceeded to levy taxes based on the tentative equalization factor of 1.0 but filed a petition for review, apparently erroneously, in the tax tribunal. See Emmet County v. State Tax Comm., 397 Mich. 550, 556, 244 N.W.2d 909 (1976). Petitioners paid the 1975 tax based on the 1.0 equalization factor.

On October 8, 1976, the tax tribunal dismissed Macomb County's appeal, thereby affirming the increase in the state's equalization factor. After the dismissal, the Macomb County Board of Commissioners, acting pursuant to the General Property Tax Act, § 39a(3) ¹ determined not to levy any additional 1975 taxes. A number of school districts within the county brought suits to compel the levy of the additional taxes. On May 17, 1978, the Macomb County Circuit Court ordered the township, as statutory agent for the school districts, to levy the school district taxes in accordance with the state equalized value.

In July of 1978, the township sent an additional tax bill to all taxpayers, including petitioners. These petitioners then filed protests with the tax tribunal, contending that: (1) the equalized value exceeded 50% of the true cash value, contrary to Const.1963, art. 9, § 3, and the General Property Tax Act (hereinafter GPTA), § 27 ²; and (2) the tax levy in 1978 for the 1975 tax year violated the GPTA, § 34, as amended by 1975 P.A. 243. ³ The township filed a motion to dismiss and/or for accelerated judgment. The motion was granted, and the petition dismissed on two bases. First, the tax tribunal held that the individual taxpayers lacked standing to appeal with regard to state equalized value pursuant to M.C.L. § 209.7; M.S.A. § 7.607. The tax tribunal apparently viewed the taxpayers' petitions as appeals of the state equalization process rather than appeals of disputed assessments. Second, the tax tribunal held that the instant matter involved the 1975 tax year and therefore the 1975 amendment to GPTA, § 34, which for the first time prevented an increase in equalization from increasing total taxes levied, was not applicable. ⁴

Petitioners now appeal, raising two issues: First, they contend the present statutory scheme, as interpreted by the tax tribunal, denies them due process of law when it effectively obviates their opportunity to show that their assessments exceed the constitutional limitation that assessments shall not exceed 50% of the property's actual cash value as a result of state equalization, because such scheme requires a taxpayer to appeal his assessment before he has notice of the effect of state equalization. Second, the petitioners argue that the three-year delay in the 1975 levy rendered their additional assessment void.

In examining petitioners' claims, it is necessary to examine the statutorily established timetable for assessment and a taxpayer's rights relative thereto. GPTA, § 24 ⁵ requires an assessor to prepare a township's annual assessment rolls by the first Monday in March. The supervisor or assessor shall give notice of an increase in assessment to the owners of property that has been assessed at a higher value than in the previous year. This notice must be mailed not less than 10 days before the meeting of the local board of review. GPTA, § 24c. ⁶ The local board of review meets on the Tuesday following the first Monday in March, at which time the roll is submitted and additions, deletions, and technical corrections are made. GPTA, § 29. ⁷ On the second Monday in March, the local board of review meets to hear protests from individual taxpayers disputing assessments. GPTA, § 30. ⁸ Time in which appeals may be brought will be described later.

The equalization process begins with the county equalization of the assessments of the political subdivisions within the county. The county boards of commissioners meet in April to determine each county's equalization value. GPTA, § 34. ⁹ If a county board of commissioners finds the property within one township or city has been assessed relatively unequally vis-a-vis property in other townships or cities, the board shall add to or subtract from the value of the property in the city or township an amount that shall bring the proportion of true cash value to that required by law. GPTA, § 34. ¹⁰ Only a township, city or school district may appeal the determination of the county board of commissioners and such appeals are directed to the Michigan Tax Tribunal. GPTA, § 34, ¹¹ Cooper Twp. v. State Tax Comm., 393 Mich. 58, 222 N.W.2d 900 (1974).

The State Board of Equalization meets annually on the fourth Monday in May to hear the representatives of the several counties. M.C.L. § 209.4; M.S.A. § 7.604. The state board adjusts the assessed values of property by county so that property in each county is assessed at the same percentage of true cash value. Counties aggrieved by the determination of the state board may obtain judicial review of that decision. See Emmet County v. State Tax Comm., supra.

The Michigan Constitution suggests that there are two circumstances in which a taxpayer may claim his assessment is illegal. Const.1963, art. 9, § 3, requires that property assessments be uniform and not be in excess of 50% of true cash value:

"The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt by law. The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 per cent; and for a system of equalization of assessments."

GPTA, § 27 ¹² also requires assessment of 50% of true cash value.

The Supreme Court has recognized a taxpayer's right to complain that his assessment was not made in uniformity with other assessments. In re Appeal of General Motors Corp., 376 Mich. 373, 137 N.W.2d 161 (1965), Titus v. State Tax Comm., 374 Mich. 476, 132 N.W.2d 647 (1965). If the claim is based on lack of uniformity, the taxpayer must show that the ratio of assessed value to fair market value of his property is greater than the ratio of average assessed value to the average fair market value in the taxing district. A taxpayer also may claim that his assessment is in excess of 50% of the true cash value, in which case he need show only that his assessed value is greater than 50% of the fair market value. Such assessment may not be in excess of 50% of the true cash value either before or after the state equalization. Consumers Power Co. v. Muskegon, 13 Mich.App. 334, 164 N.W.2d 398 (1968); DeWitt Twp. v. State Tax Comm., 397 Mich. 576, 579-580, 244 N.W.2d 920 (1976).

The Tax Tribunal Act, § 35, ¹³ effective July 1, 1974, required a taxpayer to appeal the final decision of a board of review within 30 days.

GPTA, § 34a ¹⁴ was amended by 1975 P.A. 188. That amendment gave a taxpayer disputing his assessment a direct appeal to the tax tribunal before the third Monday in August if the final equalization ratio exceeded the tentative equalization ratio and the taxpayer's assessment, after state equalization, was in excess of 50% of the true cash value.

The Michigan Supreme Court on August 27, 1976, decided DeWitt Twp. v. State Tax Comm., supra. DeWitt Township had filed an appeal based upon the county's applying back to it a state equalization factor of 1.10. The township had not appealed from the original county equalization factor of 1.0. GPTA, § 34, ¹⁵ which governs appeals by townships aggrieved by the intracounty equalization action of the board of commissioners, provided for an appeal within five days after adoption of the equalization report. The Court held:

"Plaintiff township was not aggrieved by the action of the board of commissioners in initially equalizing the valuations of the several townships. Therefore, plaintiff had no basis for appeal within the five-day period provided by statute.

"When the equalization factor was raised by the State Tax Commission to 1.10, after plaintiff already had been assessed at 50% of true market value, the township became aggrieved.

"We cannot conclude that the Legislature intended to deprive a governmental unit in this situation of any right to appeal.

"Instead we consider Clinton County's action after the STC determination to be a new equalization within the meaning of the statute....