Nicholson v. Birmingham Bd. of Review

• Court: Court of Appeal of Michigan
• Writing for the Court: WAHLS
• Citation: Nicholson v. Birmingham Bd. of Review, 477 N.W.2d 492, 191 Mich.App. 237 (Mich. App. 1991)
• Decision Date: 16 September 1991
• Docket Number: Docket No. 119943
• Parties: Pamela A. NICHOLSON, Plaintiff-Appellant, v. BIRMINGHAM BOARD OF REVIEW, Birmingham Supervisor, and Michigan Tax Tribunal, Defendants-Appellees. 191 Mich.App. 237, 477 N.W.2d 492

Page 492

477 N.W.2d 492

Pamela A. NICHOLSON, Plaintiff-Appellant, v. BIRMINGHAM BOARD OF REVIEW, Birmingham Supervisor, and Michigan Tax Tribunal, Defendants-Appellees.

Docket No. 119943.

191 Mich.App. 237, 477 N.W.2d 492

Court of Appeals of Michigan.

Submitted Jan. 8, 1991, at Detroit.

Decided Sept. 16, 1991, at 9:05 a.m.

Released for Publication Dec. 16, 1991.

[191 MICHAPP 238] Paul Lieberman, Bloomfield Hills, for Pamela A. Nicholson.

Beier Howlett by John D. Staran, Bloomfield Hills, for Birmingham Bd. of Review and Birmingham Supervisor.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and Richard R. Roesch and Ross H. Bishop, Asst. Attys. Gen., for Michigan Tax Tribunal.

Marilyn Mullane, Detroit, for amicus curiae Michigan Legal Services.

Robert Gillett, Ann Arbor, for amicus curiae Legal Services of Southeastern Michigan.

Before JANSEN, P.J., and WAHLS and HOOD, JJ.

WAHLS, Judge.

Plaintiff is the co-owner of a parcel located in the City of Birmingham. Plaintiff appeals as of right from a circuit court order that dismissed her appeal of a denial of a property tax exemption by the Birmingham Board of Review. The circuit court held that it lacked jurisdiction to hear plaintiff's claim. We agree with the circuit court and remand this case to the Michigan Tax Tribunal for further proceedings.

Plaintiff had sought an exemption from real property taxes pursuant to Sec. 7u of the General Property Tax Act, M.C.L. Sec. 211.1 et seq.; M.S.A. Sec. 7.1 et seq. Section 7u allows the following exemption:

The real and personal property of persons who, [191 MICHAPP 239] in the judgment of the supervisor and board of review, by reason of poverty, are unable to contribute toward the public charges is exempt from taxation under this act. [M.C.L. Sec. 211.7u; M.S.A. Sec. 7.7(4r).]

Plaintiff's application for an exemption from her 1986 and 1987 property tax assessments was denied by the Birmingham Board of Review (Birmingham is a home rule city and the inclusion of its supervisor as a party is a misnomer). Plaintiff appealed the denial to the Tax Tribunal. In December 1987, the Tax Tribunal sua sponte dismissed plaintiff's appeal on the ground that it lacked jurisdiction. This is apparently a matter of standard practice for the Tax Tribunal when appeals claiming Sec. 7u exemptions are brought before it. Plaintiff did not claim an appeal to this Court from the decision of the Tax Tribunal.

Plaintiff later appealed her 1988 and 1989 tax assessments to the board of review and again requested a Sec. 7u exemption. The board denied her request, and plaintiff brought an action in the Oakland Circuit Court. The circuit court, although troubled by the equities of its ruling, held that the Tax Tribunal had exclusive jurisdiction to hear plaintiff's appeal and dismissed plaintiff's complaint on the city's motion. This appeal followed.

In this case of first impression, we hold that the plain language of the Tax Tribunal Act, MCL 205.701 et seq.; MSA 7.650(1) et seq., vests the Tax Tribunal with exclusive jurisdiction to hear claims for exemptions under Sec. 7u following a taxpayer's unsuccessful request for the exemption before a board of review.

The jurisdiction of the Tax Tribunal is granted by statute. When construing statutory provisions, this Court must discover and give effect to the [191 MICHAPP 240] intent of the Legislature. Storey v. Meijer, Inc., 431 Mich. 368, 376, 429 N.W.2d 169 (1988); Wills v. Iron Co. Bd. of Canvassers, 183 Mich.App. 797, 801, 455 N.W.2d 405 (1990). Where a statute is clear and unambiguous, however, judicial construction is not warranted and the law must be enforced as written. Storey, supra; Hiltz v. Phil's Quality Market, 417 Mich. 335, 343, 337 N.W.2d 237 (1983); Berry v. Belleville, 178 Mich.App. 541, 548, 444 N.W.2d 222 (1989). We also note that this Court will review decisions of the Tax Tribunal for errors of law or the adoption of a wrong principle. Const.1963, art. 6, Sec. 28; Dow Chemical Co. v. Dep't of Treasury, 185 Mich.App. 458, 462, 462 N.W.2d 765 (1990).

The jurisdiction of the Tax Tribunal is set forth in M.C.L. 205.731; M.S.A. Sec. 7.650(31):

The tribunal's exclusive and original jurisdiction shall be:

(a) A proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property tax laws.

(b) A proceeding for refund or redetermination of a tax under the property tax laws. [Emphasis added.]

The Tax Tribunal Act further defines "proceeding" as "an appeal." M.C.L. Sec. 205.703; M.S.A. Sec. 7.650(3). Here, plaintiff is clearly seeking a redetermination of the amount of tax assessed by the city. Any doubt that the Tax Tribunal has jurisdiction is removed by M.C.L. Sec. 205.735(1); M.S.A. Sec. 7.650(35)(1), which provides in relevant part:

A proceeding before the tribunal shall be original and independent and shall be considered de novo. In the case of an assessment dispute as to [191 MICHAPP 241] the valuation of the property or where an exemption is claimed, the assessment must be protested before the board of review before the tribunal may acquire jurisdiction of the dispute....

The defendant Tax Tribunal argues that Sec. 7u determinations by a board of review may not be appealed at all. This argument is contrary to its position below, where it claimed that jurisdiction lay with the circuit courts. Nonetheless, because this issue is jurisdictional, we have reviewed the Tax Tribunal's argument, In re Kus Estate, 136 Mich.App. 343, 356 N.W.2d 23 (1984), but find it without merit.

The Tax Tribunal provides no relevant authority to support a distinction between review of denial of Sec. 7u exemptions and review of denial of other exemptions allowed by the General Property Tax Act. Although Sec. 7u plainly grants local officials the discretion to approve or deny requests for that exemption, it does not necessarily follow that a taxpayer's right to review ends at that level. See, e.g., King v. Director of the Midland Co. Dep't of Social Services, 73 Mich.App. 253, 251 N.W.2d 270 (1977), where this Court held that statutory language that facially appeared to give county officials absolute discretion in the amount of funding necessary to maintain various welfare services under the Social Welfare Act, M.C.L. Sec. 400.1 et seq.; M.S.A. Sec. 16.401 et seq., must give way to other language requiring the county to appropriate funds in any amounts sufficient to maintain the program. Here, there is no question that Sec. 7u is an exemption to the general property tax; the Tax Tribunal has jurisdiction to hear claims of exemption following a protest to a board of review. M.C.L. Sec. 207.735(1); M.S.A. Sec. 7.650(35)(1). We conclude that this avenue of appeal is applicable to exemptions [191 MICHAPP 242] claimed under Sec. 7u. To hold otherwise would allow boards of review unfettered discretion in determining who, if anyone, is "unable to contribute to the public charges." M.C.L. Sec. 211.7u; M.S.A. Sec. 7.7(4r). We also note that the dangers of abuse of discretion by local officials are particularly apparent in this case, where the board of review's explanation of the denial (which apparently was not revealed until the case came before the circuit court) was inadequate.

The question that remains is the form of relief to be awarded plaintiff. Plaintiff did not pursue an appeal as of right to this Court from the Tax Tribunal's December 1987 decision that it lacked jurisdiction. M.C.L. Sec. 205.753; M.S.A. Sec. 7.650(53). An appeal from a final order or decision of the Tax Tribunal must be taken within twenty days after the entry of the order or within twenty days after a timely motion for rehearing is denied. M.C.L. Sec. 205.753(2); M.S.A. 7.650(53)(2). Because the Michigan Constitution...