Carriage House Co-op. v. City of Utica

• Decision Date: 23 November 1988
• Docket Number: Docket No. 90206
• Citation: 172 Mich.App. 144,431 N.W.2d 406
• Parties: CARRIAGE HOUSE COOPERATIVE v. CITY OF UTICA.
• Court: Court of Appeal of Michigan — District of US

Page 406

431 N.W.2d 406

172 Mich.App. 144

CARRIAGE HOUSE COOPERATIVE v. CITY OF UTICA.

Docket No. 90206.

Court of Appeals of Michigan.

Submitted December 1, 1987.

Decided July 8, 1988.

Released for Publication Nov. 23, 1988.

Michaelene K. Young, Ypsilanti, for petitioner-appellee.

William J. McGrail, Jr., Utica, for respondent-appellant.

Before SULLIVAN, P.J., and CYNAR and TAYLOR, ^* JJ.

PER CURIAM.

Respondent, City of Utica, appeals as of right from an opinion and judgment of the Michigan Tax Tribunal in a dispute over assessments for the years 1980, 1981, and 1982 on a nonprofit, federally subsidized cooperative, Carriage House Cooperative. Carriage House was built in 1971 to provide housing for low and moderate income families pursuant to the provisions of Sec. 221(d)(3) of the National Housing Act of 1959, 12 U.S.C. Sec. 1715l (d)(3).

The housing project consists of 138 townhouse units located on 10.74 acres in the City of Utica and is subject to two mortgages. Because of federal interest subsidies, the mortgages carry a below-market interest rate of three percent. The mortgage payments are spread over a forty-year period and, under HUD regulations and the terms of the mortgage agreements, the mortgage obligation binds future purchasers of the property and cannot be prepaid or cancelled without prior approval of the Federal Housing Commissioner.

The members of the cooperative may negotiate the selling price of their interest but are not permitted to sell their interest for more than the maximum transfer price prescribed in the cooperative's by-laws.

Since Carriage House is a Sec. 221(d)(3) housing project, it is not permitted to earn a profit. However, members have substantial tax benefits from their ownership in the cooperative. They receive deductions on their federal income tax for their share of the property's mortgage interest payments, property taxes, and depreciation.

A hearing on this matter was held before a Tax Tribunal hearing officer in January and February, 1983, in which expert appraisers testified on behalf of both parties. In an opinion dated February 13, 1985, the hearing officer adopted an income approach to valuation. Both parties filed objections and exceptions to the proposed opinion.

The Tax Tribunal accepted the hearing officer's factual findings but rejected her conclusions. In an opinion dated January 16, 1986, the Tax Tribunal adopted petitioner's "cooperative sales" market approach. The City of Utica appeals. We affirm.

Utica argues first that the Tax Tribunal erred by failing to retroactively apply recent amendments to M.C.L. Sec. 211.27(4); M.S.A. Sec. 7.27(4), regarding the use of economic versus actual income in determining the true cash value of property for tax purposes.

We initially note that notwithstanding the fact that Utica raises this question for the first time on appeal, such a question dealing with construction of pertinent statutory provisions warrants our full review for alleged "error of law."

Real property is assessed for taxation purposes according to its "true cash value." Const. 1963, art. 9, Sec. 3. During the times applicable in this case, M.C.L. Sec. 211.27(1); M.S.A. Sec. 7.27(1) defined "true cash value" as follows:

"As used in this act, 'cash value' means the usual selling price at the place where the property to which the term is applied is at the time of assessment, being the price which could be obtained for the property at private sale, and not at forced or auction sale. A sale or other disposition by the state or an agency or political subdivision of the state of land acquired for delinquent taxes or an appraisal made in connection with the sale or other disposition or the value attributed to the property of regulated public utilities by a governmental regulatory agency for ratemaking purposes shall not be considered controlling evidence of true cash value for assessment purposes. In determining the value the assessor shall also consider the advantages and disadvantages of location; quality of soil; zoning; existing use; present economic income of structures, including farm structures; present economic income of land if the land is being farmed or otherwise put to income producing use; quantity and value of standing timber; water power and privileges; and mines, minerals, quarries, or other valuable deposits known to be available in the land and their value." (Emphasis added.)

Prior to March 30, 1983, M.C.L. Sec. 211.27(4) and (5); M.S.A. Sec. 7.27(4) and (5) provided:

"(4) Except as provided in subsection (5), property shall be assessed at 50% of its true cash value in accordance with section 3 of article 9 of the state constitution of 1963.

"(5) Assessment of property, as required in this section, shall be inapplicable to the assessment of property subject to the levy of ad valorem taxes within voted tax limitation increases to pay principal and interest on limited tax bonds issued by any governmental unit, including a county, township, community college district, or school district before January 1, 1964, if the assessment required to be made under this act would be less than the assessment as state equalized prevailing on the property at the time of the issuance of the bonds. This inapplicability shall continue until levy of taxes to pay principal and interest on the bonds is no longer required. The assessment of property required by this act shall be applicable for all other purposes."

Pursuant to 1982 P.A. 539, effective March 30, 1983, both of these subsections were deleted and replaced by the following version of subsection (4):

"(4) As used in subsection (1), 'present economic income' means in the case of leased or rented property the ordinary, general, and usual economic return realized from the lease or rental of property negotiated under current, contemporary conditions between parties equally knowledgeable and familiar with real estate values. The actual income generated by the lease or rental of property shall not be the controlling indicator of its cash value in all cases."

As noted by Utica, this amendment was an apparent attempt by the Legislature to overrule CAF Investment Co. v. State Tax Comm., 392 Mich. 442, 221 N.W.2d 588 (1974) (CAF I ), and CAF Investment Co. v. Saginaw Twp., 410 Mich. 428, 302 N.W.2d 164 (1981) (CAF II ), in which the Supreme Court held that "economic income" as used in M.C.L. Sec. 211.27; M.S.A. Sec. 7.27 means actual income. The Court concluded that when the income approach to valuation was used for property tax purposes in the case of property encumbered by a long term unfavorable lease, the statute requires the actual income of the property to be used. Uniroyal, Inc. v. City of Allen Park, 138 Mich.App. 156, 162, 360 N.W.2d 156 (1984).

In 1983, the following three sentences were added to M.C.L. Sec. 211.27(4); M.S.A. Sec. 7.27(4):

"This subsection shall not apply to property when subject to a lease entered into prior to January 1, 1984 for which the terms of the lease governing the rental rate or tax liability have not been renegotiated after December 31, 1983. This subsection shall not apply to a nonprofit housing cooperative when subject to regulatory agreements between the state or federal government entered into prior to January 1, 1984. As used in this subsection, 'nonprofit cooperative housing corporation' means a nonprofit cooperative housing corporation which is engaged in providing housing services to its stockholders and members and which does not pay dividends or interest upon stock or membership investment but which does distribute all earnings to its stockholders or members." (Emphasis added.) 1983 P.A. 254, effective December 29, 1983.

In the instant case, the 1982 and 1983 amendments did not go into effect until after the tax years in question. However, both were in effect during the interim period between the hearing and the time the tribunal issued its decision on February 13, 1985. Although acknowledging these facts and law to the contrary, Utica nonetheless argues that the Tax Tribunal erred by not applying the March 30, 1983, amendment ¹ retroactively.

In a somewhat similar situation, this Court refused to apply these amendments in the case before it, simply stating:

"While we realize that the Michigan Legislature has recently amended the General Property Tax Act in response to the Supreme Court's decisions in CAF I and CAF II, these amendments were not in effect for the tax years involved in the instant case and we thus do not consider the effect of such legislation on the tribunal's valuation of the true cash value of petitioner's office parcel." Uniroyal, supra at 162, 360 N.W.2d 153.

Likewise, we also decline to apply the amendments in this instance. Moreover, we are unpersuaded by Utica's argument that these amendments were remedial in nature and thus required retroactive application. Selk v. Detroit Plastic Products, 419 Mich. 1, 9-10, 345 N.W.2d 184 (1984). Finally, the Legislative intent is that this subsection shall not apply to property when subject to a lease entered into prior to January 1, 1984, for which the terms of the lease governing the rental rate or tax liability have not been renegotiated after December 31, 1983, and to a nonprofit housing cooperative when subject to regulatory agreements between the state or federal government entered into prior to January 1, 1984.

We are next asked to decide whether the Tax Tribunal committed an error of law or adopted a wrong principle by using petitioner's market approach to valuation.

As a general rule, there are three methods of valuation which are acceptable to the Michigan Tax Tribunal and the courts. They are the cost-less-depreciation approach, the capitalization-of-income approach, and the market approach. Antisdale v. City of Galesburg, 420 Mich. 265, 276, 362 N.W.2d 632 (1984). However, other valid variations of each method are not precluded. Id. at 276-277 n. 1, 362...