A & E Parking v. Detroit Airport Authority
| Decision Date | 25 July 2006 |
| Docket Number | Docket No. 261046. |
| Citation | 723 N.W.2d 223,271 Mich. App. 641 |
| Parties | A & E PARKING, d/b/a Airlines Parking, A & E Parking, d/b/a Express Parking, Airport Future Lodges, LLC, d/b/a La Quinta Inn, Airport Landing, d/b/a Qwik Park, Arrow Leasing, d/b/a Park-n-Go, Courtyard Management Corporation, d/b/a Courtyard Detroit Metro Airport, Future Lodging, LLC, d/b/a Comfort Inn, Future Lodging, Inc., d/b/a Quality Inn, Gateway Lodges, LLC, d/b/a Four Points by Sheraton, Detroit Metro Airport, Hampton Inn, Marriott Hotel Services, Inc., d/b/a Detroit Marriott Romulus at Detroit Airport, Park & Travel, Inc., d/b/a U.S. Park, Park n' Jet, Inc., Sage Management Resources III, LLC, d/b/a Fairfield Inn Detroit Metro Airport, Airtrans Chauffeured Transportation, LLC, Frank Berkowski, Sandy Milis, and Jeff Stroud, Plaintiffs-Appellants/Cross-Appellees, and Select Ride, Inc., Renthotel Detroit, LLC, d/b/a Doubletree Hotel Detroit Metropolitan Airport, Tecumseh Trolley Company, and Limousine Express, Inc., Appellants, and Future Parking, LLC, d/b/a Park 2 Fly, Airport Lodges, LLC, d/b/a Days Inn, Baymont Inns Hospitality, d/b/a Baymont Inn, Belleville Nights, Inc., d/b/a Holiday Inn Express, Detroit Airport Hotel, d/b/a Hilton Gardens, Interstate Management Company, d/b/a Hilton Suites Detroit, Romulus Nights, d/b/a Motel 6, Robert Henderson, and Fred S. Adams, Plaintiffs-Cross-Appellees, v. DETROIT METROPOLITAN WAYNE COUNTY AIRPORT AUTHORITY and County of Wayne, Defendants-Appellees/Cross-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
Cohen, Lerner & Rabinovitz, P.C. (by Steven Z. Cohen), Royal Oak, for the plaintiffs.
Barris, Sott, Denn & Driker, P.L.L.C. (by Matthew R. Millikin and Morley Witus), Detroit, for the defendants.
Before: KIRSTEN FRANK KELLY, P.J., and MARKEY and METER, JJ.
This case primarily deals with whether certain commercial access fees (CAFs) imposed by the Detroit Metropolitan Wayne County Airport Authority (AA) on hotels and parking and limousine companies providing shuttle services at the Detroit Metropolitan Wayne County Airport (airport) constitute taxes levied in violation of the Headlee Amendment, Const 1963, art 9, § 31.1 We find that the CAFs do not constitute illegal taxes. We also find no merit to appellants' additional arguments, and we therefore affirm the trial court's final order, from which appellants appeal as of right.
Many of the pertinent facts in this case are undisputed. The AA was created under MCL 259.110(2) to operate the airport. The AA is governed by a seven-member board. MCL 259.111(1). The board appointed a chief executive officer (CEO) under MCL 259.111(8). The CEO decided to institute the CAFs, effective March 16, 2003, that would require hotels and parking and limousine companies servicing the airport to pay for their use of airport roads to pick up and drop off customers. The fee was due on a monthly basis and, according to defendants, it was roughly equal to a $1 fee for each parking or hotel shuttle trip made by the various companies.
Many of these companies sued defendants, alleging, among other things, that the CAFs constituted taxes that violated the Headlee Amendment and that defendants, in imposing the CAFs, violated the Open Meetings Act (OMA), MCL 15.261 et seq. After the parties filed cross-motions for summary disposition, the court ruled that the CAFs were fees, not taxes. The court found, however, that the AA had violated the OMA, and it eventually ordered that the AA could not collect CAFs from September 9, 2004 (the date at which the court initially found an OMA violation) until November 12, 2004.2
On appeal, appellants argue that the trial court erred in concluding that the CAFs did not constitute illegal taxes and in granting summary disposition to defendants. We review summary disposition rulings de novo. Wheeler v. Shelby Charter Twp., 265 Mich.App. 657, 663, 697 N.W.2d 180 (2005).3 Here, the trial court did not indicate the subrule on which it relied in granting summary disposition to defendants. However, the parties cited MCR 2.116(C)(8), (C)(10), and (I)(2). A motion under MCR 2.116(C)(8) is properly granted if the complaint "fails to state a claim on which relief can be granted, and summary disposition under (C)(10) is proper where there is no genuine issue of material fact and a party is entitled to judgment as a matter of law." By Lo Oil Co. v. Dep't of Treasury, 267 Mich.App. 19, 25, 703 N.W.2d 822 (2005). Under MCR 2.116(I)(2), "[i]f it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party."
Appellants contend that the CAFs constitute taxes because the CAFs do not correspond to a regulatory purpose, they are not proportionate to the services obtained by the shuttle providers, and they are essentially mandatory charges, because many of the shuttle providers would go out of business if they did not pay the CAFs to gain access to the airport.
Appellants place great reliance on the Supreme Court's opinion in Bolt v. City of Lansing, 459 Mich. 152, 587 N.W.2d 264 (1998). In Bolt, supra at 154-155, 587 N.W.2d 264, the Court considered whether a particular storm water service charge "imposed on each parcel of real property" located in Lansing, was a "user fee" as opposed to a "tax" levied in violation of the Headlee Amendment, Const 1963, art 9, § 31. The Court stated that it had "articulated three primary criteria to be considered when distinguishing between a fee and a tax." Id. at 161, 587 N.W.2d 264. First, a user fee serves "a regulatory purpose rather than a revenue-raising purpose." Id. Second, "user fees must be proportionate to the necessary costs of the service." Id. at 161-162, 587 N.W.2d 264. Third, a user fee is voluntary, paid only by those who use the service in question. Id. at 162, 587 N.W.2d 264. Appellants contend that, under the Bolt test, the CAFs constitute taxes.
However, in Lapeer Co. Abstract & Title Co. v. Lapeer Co. Register of Deeds, 264 Mich.App. 167, 184-185, 691 N.W.2d 11 (2004), the Court, in analyzing whether a fee imposed by a county register of deeds for the provision of certain documents constituted a tax, stated:
[I]t is apparent that the Bolt test is only designed to distinguish between user fees and taxes on real property and has no applicability in the present context. In particular, Bolt involved an assessment against real property, a financial charge often viewed as a tax. In contrast, the present case involves a charge for the provision of a tangible service, i.e., providing a physical copy of a document. . . . Put simply, the Bolt test is designed to distinguish between assessments on real property that necessarily are either taxes or user fees. It has no application to a voluntary payment in a transaction, like the purchase of a copy of a record, that does not involve any mandatory assessment. [Emphasis added.]
The present case does not involve a charge imposed on real property. Therefore, under Lapeer Co, the Bolt test is not dispositive for purposes of this appeal.
The simple fact is that no Michigan case law is directly dispositive for purposes of this appeal. However, case law from other states, which admittedly is not binding on this Court, see People v. Brown, 239 Mich.App. 735, 740 n. 4, 610 N.W.2d 234 (2000), is highly instructive.
In Ace Rent-A-Car, Inc. v. Indianapolis Airport Auth., 612 N.E.2d 1104, 1106 (Ind.App., 1993), the defendant, a "municipal corporation created . . . for the purpose of operating the Indianapolis International Airport," began charging off-airport car rental companies such as the plaintiff a "fee of `7% of all sales for the rental of automobiles to customers originating at the airport.'" The plaintiff argued, in part, that the fee was improper because it should have been "limited to recoupment of costs related to repair and maintenance of airport roadways." Id. at 1107. The court disagreed, stating:
In the case before us, the airport's very existence provides a marketplace from which Ace Rent-A-Car derives an economic benefit. Thus, the fees imposed by [the defendant] are not limited to recoupment of costs related to repair and maintenance of airport roadways. Rather, a fee based on a percent of the rental sales of automobiles made to customers originating at the airport represents at least one fair, although imperfect, method of measuring "use." [Id. at 1107-1108.]
The plaintiff in Ace also argued that the fee represented "an unauthorized tax on income rather than a user fee." Id. at 1108. Again, the court disagreed with the plaintiff, stating:
A tax is compulsory and not optional; it entitles the taxpayer to receive nothing in return, other than the rights of government which are enjoyed by all citizens. On the other hand, a user fee is optional and represents a specific charge for the use of publicly-owned or publicly-provided facilities or services.
In the case before us, Ace Rent-A-Car must pay a fee to [the defendant] only it if uses and benefits from the airport facilities which the fee supports. We disagree with Ace Rent-A-Car that because the fee is based on revenue it is therefore transformed into a tax. [Id. (citations omitted).]
In Jacksonville Port Auth. v. Alamo Rent-A-Car, Inc., 600 So.2d 1159, 1160 (Fla.App., 1992), the plaintiff, which owned and operated the Jacksonville International Airport, imposed "on nontenant rental car companies [such as the defendant] a six percent gross receipts `user' or `privilege' fee for access by their vans to public airport roads and terminal ramps." The defendant argued that the fee constituted an unauthorized tax. Id. at 1161. The appeals court disagreed, stating:
The United States Supreme Court distinguished between a tax and a user fee, defining a tax as providing revenue for the general support of the...
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