Kern v. Pontiac Tp.
| Decision Date | 19 November 1979 |
| Docket Number | Docket No. 77-4350 |
| Parties | Paul A. KERN, Jr., Plaintiff-Appellant, v. TOWNSHIP OF PONTIAC, Defendant-Appellee. 93 Mich.App. 612, 287 N.W.2d 603 |
| Court | Court of Appeal of Michigan — District of US |
[93 MICHAPP 615] Stanley E. Wise, Southfield, for plaintiff-appellant.
James P. Sheehy, Rochester, for defendant-appellee.
Before CYNAR, P. J., and MacKENZIE and CORKIN, JJ.
[93 MICHAPP 616] MacKENZIE, Judge.
Petitioner's property, Bryn Blaen Farm, is located in the Township of Pontiac, County of Oakland. The property, consisting of two contiguous parcels of land totalling 92.78 acres, is situated on the north side of Lake Angelus Road, east of Joslyn Road and west of Giddings Road. The property is suitable for agricultural use and has been zoned residential-agricultural (R4). Petitioner has utilized the land consistently with the zoning restrictions, maintaining the property as a stock pasturage.
The property was purchased by petitioner Paul A. Kern, Jr., via land contract for $100,000 in 1966. He subsequently assigned the contract to Yvonne Kern, his wife, the present land contract vendee, but remained the representative for taxation purposes.
The true cash value of the property alleged by each of the parties varies considerably in amount. The petitioner, while admitting in testimony that the purchase price of the property was $100,000 in 1966, argued that the true cash value of the property for each of the contested years was $75,000. This figure was alleged as the correct value because the property, having been offered for sale, elicited an offer of that amount only.
Respondent contended that the true cash value of the property had increased since it was purchased by petitioner in 1966. The following true cash value figures were set forth:
1972--$243,150
1973-- 243,150
1974-- 208,400 (Board of Review amount)
1975-- 272,800
1976-- 160,950
The average level of assessments in this district, as indicated by the State Tax Commission, and the [93 MICHAPP 617] State Equalization Factor employed in each of the tax years in question are 50% And 1.00, respectively.
The proofs presented at the hearing consisted of two appraisals of the property conducted by or for the respondent, accompanied by supporting testimony. Testimony was also given by petitioner, who stated that he had been in the real estate and appraisal business. Petitioner did not present an appraisal in support of his contended true cash value, nor did he offer witnesses in his behalf.
An appraisal of the property was conducted by Laurence T. Murray, Assessor and Building Department Manager for respondent township. Murray used comparable properties from Orion Township and made downward adjustments to those figures, as it was concluded that such property sold at a premium to Pontiac Township property on both an equivalent front footage basis and on a per acre basis. This appraisal resulted in an estimated true cash value of the property in the amount of $160,950 for the 1976 tax year. While this appeal also covers previous tax years, no appraisals were offered by either side to substantiate their contentions as to the earlier years.
The other appraisal of petitioner's property admitted by the respondent was in two parts. Respondent's exhibit 1 was an appraisal of Parcel A and exhibit 2 was an appraisal of Parcel B, both parcels being appraised by Robert H. Scott, a real estate appraiser since 1954. The resulting estimates of true cash value from Scott's appraisal are in the amounts of $108,900 for Parcel A and $54,900 for Parcel B, resulting in a total cash value of petitioner's property in the amount of $163,800. This appraisal is an update of an original appraisal conducted on May 15, 1975, and [93 MICHAPP 618] purports to estimate true cash value as of July 23, 1976.
The hearing before the Michigan Tax Tribunal was held on July 29, 1976. The Tribunal issued an opinion and judgment dated October 12, 1976, which set the true cash value of the property at $160,950 for each of the tax years in question. On August 25, 1977, this Court, in a memorandum opinion, remanded the entire cause to the Tribunal with an order to substantiate a conclusion with stated findings of fact and conduct a new hearing if necessary and receive additional evidence. The Tribunal did not conduct a new hearing or receive any additional evidence, but instead issued an order vacating the judgment of October 12, 1976. A revised opinion and judgment on remand was issued on October 17, 1977, setting the true cash value of the property at $160,950 for each of the tax years in question. Petitioner appeals as of right from the Tribunal's revised opinion.
Petitioner first contends that tax years 1970 and 1971 were erroneously omitted from consideration by the Tax Tribunal.
The record reveals that in 1972 petitioner filed an Oakland County Circuit Court action, bearing Docket No. 75-112168, petitioning the court to review the assessments of his property for tax years 1970, 1971, and 1972. The action was transferred to the Tax Tribunal and assigned Michigan Tax Tribunal (MTT) Docket [93 MICHAPP 619] No. 3663. This action was later consolidated along with other actions covering other years into MTT Docket No. 4174. Initially, at the hearing, the Tribunal accepted Circuit Court Docket No. 75-112168, MTT Docket No. 3663, as representing petitioner's appeal of tax years 1970, 1971, and 1972.
However, there also existed a circuit court case bearing Docket No. 75-121841, which was an action initiated by the State Treasurer for judgment authorizing the sale of the petitioner's property for the recovery of delinquent taxes for the years 1970 and 1971. The Tax Tribunal noted that the Oakland County Circuit Court had issued a judgment as to No. 75-121841, based on § 67 of the General Property Tax Law, to sell the lands for failure to pay 1970 and 1971 taxes. This action was dropped from the proceedings by the Tribunal because of a lack of jurisdiction to review a circuit court judgment. In refusing to hear Docket No. 75-121841, the Tribunal denied petitioner's request to hear tax years 1970 and 1971 and withdrew these years from the consolidated proceedings bearing Docket No. 4174.
We agree with petitioner that the Tribunal erred in failing to consider tax years 1970 and 1971 in its proceedings. As initially noted by Judge Gallas, petitioner had asked that years 1970 and 1971 be considered along with 1972 in the circuit court action bearing Docket No. 75-112168. This action was properly consolidated into MTT Docket No. 4174 along with other actions concerning later tax years. The dropping of Docket No. 75-121841 from the Tribunal proceedings did not serve to withdraw years 1970 and 1971 from No. 75-112168. Thus, these years were still subject to review. A remand to the Tribunal for findings concerning tax years 1970 and 1971 is therefore required.
Defendant next argues that the Tribunal did not have competent, material, and substantial evidence[93 MICHAPP 620] on the whole record to sustain its conclusion as to the true cash value.
On appeal from a ruling of the Michigan Tax Tribunal, the reviewing court is bound by the Tribunal's factual determinations and may properly consider only questions of law. See Const.1963, art. 6, § 28, Consolidated Aluminum Corporation, Inc. v. Richmond Twp., 88 Mich.App. 229, 231-232, 276 N.W.2d 566 (1979). It is an error of law within the meaning of the Michigan Constitution if a decision of the Tax Tribunal is not supported by competent, material, and substantial evidence on the whole record. See Fisher-New Center Co. v. State Tax Comm., 381 Mich. 713, 715, 167 N.W.2d 263 (1969).
The burden of proof is on the taxpayer to establish the true cash value of its property. M.C.L. § 205.737(3); M.S.A. § 7.650(37)(3). The Tribunal is obliged, however, to make its own finding of true cash value and cannot merely affirm the assessment as placed upon the rolls by the assessing authority. See Consolidated Aluminum Corporation, Inc. v. Richmond Twp., supra, 88 Mich.App. at 232, 276 N.W.2d 566. The definition of "true cash value" is set forth in M.C.L. § 211.27; M.S.A. § 7.27:
Our review of the record leads us to the conclusion that the Tribunal's decision was based on competent, material, and substantial evidence. The Tribunal noted that although data of sales of truly comparative properties were unavailable, the Murray appraisal was based upon all relevant information that was available. Comparable properties from neighboring Orion Township were employed. Murray made downward adjustments on these figures after concluding that this property sold at a premium to Pontiac Township property.
We do not find error in the fact that Scott considered the "highest and best use" of the land in determining an appraisal figure for petitioner's property. Since the land was zoned residential-agricultural, it was not error to consider that the topography was suitable for housing. This is not a case where property zoned for a certain use is assessed on the assumption that it will ultimately be zoned for a different use. See Gannon v. Cohoctah Twp., 92 Mich.App. 445, 285 N.W.2d...
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