Plymouth Tp. v. Wayne County Bd. of Com'rs

• Decision Date: 06 December 1984
• Docket Number: Docket Nos. 68634,68733
• Citation: 359 N.W.2d 547,137 Mich.App. 738
• Parties: PLYMOUTH TOWNSHIP, Petitioners-Appellants, v. WAYNE COUNTY BOARD OF COMMISSIONERS, Respondent-Appellee. CITY OF DEARBORN, a Michigan municipal corporation, Petitioners-Appellants, v. WAYNE COUNTY BOARD OF COMMISSIONERS, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 547

359 N.W.2d 547

137 Mich.App. 738

PLYMOUTH TOWNSHIP, Petitioners-Appellants, v. WAYNE COUNTY BOARD OF COMMISSIONERS, Respondent-Appellee.

CITY OF DEARBORN, a Michigan municipal corporation, Petitioners-Appellants, v. WAYNE COUNTY BOARD OF COMMISSIONERS, Respondent-Appellee.

Docket Nos. 68634, 68733.

Court of Appeals of Michigan.

Submitted June 18, 1984.

Decided Oct. 1, 1984.

Released for Publication Dec. 6, 1984.

James E. McCarthy, Plymouth, for Plymouth Tp.

Van Til, Kasiborski & Ronayne by Chester E. Kasiborski, Jr., and Lawrence R. Van Til, Detroit, for City of Dearborn.

John D. O'Hair, Corp. Counsel, and Robert G. Schuch, Asst. Corp. Counsel, Detroit, for respondent-appellee.

Before ALLEN, P.J., and WAHLS and WARSHAWSKY, ^* JJ.

ALLEN, Presiding Judge.

In this consolidated appeal the Township of Plymouth and the City of Dearborn appeal as of right from an order of dismissal issued by the Michigan Tax Tribunal December 3, 1982, pursuant to GCR 1963, 504.2. Each appeal involves the 1982 county equalization by the Wayne County Board of Commissioners. ¹ Centrally involved in each appeal is the propriety of the 1982 county equalization of the residential class of real property.

CASE NO. 68634

In late 1981 Plymouth Township was notified that its residential property was underassessed. Therefore, a factor of 2.2212 was used to raise the assessment to 50 percent of true cash value. At first, Plymouth Township acquiesced. However, of the approximately 3,800 petitions filed soon thereafter with the Board of Review, relief was granted in about 3,200. Apparently even though the residential property as a class was properly equalized, within the class, the sub-classes were not. Whereas single family residential properties were on the whole overassessed, condominiums were on the whole underassessed. Consequently petitioner Township filed its claim against respondent with the Tax Tribunal.

Generally, Plymouth Township argues that Const. 1963, art. 9, Sec. 3, was violated because the single family residential property (about 80 percent of the residential class) was overassessed. Residential property as a class was not only not assessed uniformly, some of it was assessed at over 50 percent of true cash value.

In essence, petitioner ² contends that county equalization must take into account discrepancies between sub-classes of property or, in the alternative, that intra-county equalization must rectify certain individual overassessments. We agree with neither contention. The Legislature provided for equalization by class, M.C.L. Sec. 211.34(2); M.S.A. Sec. 7.52(2). There is no authority requiring equalization by sub-class, viz., by condominium and single dwelling residences. Time is of the essence in the equalization process. Until the Legislature provides that equalization is to be performed by sub-class (which would require that far more time be expended), equalization by sub-class is not required.

Equalization proceedings are not the proper forum to protest individual assessments. Ypsilanti Twp. Supervisor v. State Tax Comm., 386 Mich. 343, 355, 192 N.W.2d 227 (1971). Therefore, when reviewing county equalization, the Tax Tribunal does not have the authority to rectify individual assessments. Because the particular problem raised by petitioner on appeal concerns individual assessments, we believe that the local board of review is the proper forum for correcting the problem. M.C.L. Sec. 211.29; M.S.A. Sec. 7.29 states: "The board shall do whatever * * * is necessary to make the roll comply with this act." M.C.L. Sec. 211.30; M.S.A. Sec. 7.30 states: "The board of review shall have full authority, upon its own motion, to change assessments or to add to the roll property omitted therefrom which is liable to assessment in the township." Hence, in the present case, the Plymouth Township Board of Review had the authority to raise the condominiums' assessments to their proper level even though none of the condominium owners had appealed his own assessment.

Relying strongly on Negaunee v. State Tax Comm., 337 Mich. 169, 175-176, 59 N.W.2d 136 (1953), petitioner next argues that correcting the discrepancy between condominiums and single family residences by an across-the-board adjustment by the Board of Review would be arbitrary and capricious. It is true that under Negaunee a percentage reduction by the Board of Review would be impermissible. But Negaunee involved a general reduction across-the-board on all assessments, including properties previously adjusted. The instant case does not involve a general reduction. Just as the Board permissibly made 3,200 individual adjustments downward to single dwelling residences, so too could the Board have adjusted upward all condominiums. But, whether or not the Board may raise all condominiums on a percentage basis is not presently before this Court because the Board never attempted any such action. ³ As it stands, M.C.L. Sec. 211.29; M.S.A. Sec. 7.29 and M.C.L. Sec. 211.30; M.S.A. Sec. 7.30 empower the Board to at least make individual reassessments of each condominium property and thus rectify the inequity.

Petitioner also argues that because members of the Wayne County Bureau of Taxation were present at the Board of Review hearings and thus knew that downward adjustments were being made, respondent is estopped from "factoring" petitioner because this factoring effectively raised the assessments adjusted by the Board. However, respondent in fact did not reject the Board's findings. It merely equalized them with the other governmental units as it is required to do by law. Furthermore, respondent had no authority to contest these matters at the Board hearings with individual assessment disputes. The relevant statute for intra-county equalization appeals is M.C.L. Sec. 211.34(4); M.S.A. Sec. 7.52(4), which requires the Tax Tribunal to determine whether or not "there is a showing that the equalization complained of is unfair, unjust, inequitable, or discriminatory". That showing must be made by the appealing district and the Tribunal found here that petitioner had not met its burden. The evidence showed that respondent was aware of the discrepancies between condominiums and other residential properties and attempted to equalize the Township assessments with an eye toward this discrepancy. We do not believe that the Tax Tribunal committed an error of law in finding that the equalization of petitioner's residential real property as a whole was not improper.

Finally, we must reject petitioner's allegations of fraud. We find no evidence of fraud as that term is defined in Turner v. Lansing Twp., 108 Mich.App. 103, 111, 310 N.W.2d 287 (1981). The township assessor, knowing that condominiums were underassessed, attempted to relieve the situation by assessing new construction at a uniform level and basically sought to rectify an acknowledged discrepancy. Consequently, we are unable to find "a reckless disregard of duty" or the "adoption of a rule which is designed to operate unequally upon a class".

For the foregoing reasons, the order of dismissal issued by the Tax Tribunal against petitioner is affirmed.

CASE NO. 68733

The City of Dearborn's amended petition, filed with the Tax Tribunal August 3, 1982, contains five counts, three of which claim that three named statutes are unconstitutional. ⁴ All three counts were dismissed by the Tax Tribunal on grounds that it did not have jurisdiction to decide them. We agree.

In Wikman v. Novi, 413 Mich. 617, 646-647, 322 N.W.2d 103 (1982), the Supreme Court declared:

"Generally speaking, an agency exercising quasi-judicial power does not undertake the determination of constitutional questions or possess the power to hold statutes unconstitutional, Dation v Ford Motor Co, 314 Mich 152; 22 NW2d 252 (1946). However, the constitutional claims in this case do not involve the validity of a statute. Rather, plaintiffs' claim is merely an assertion, in constitutional terms, that the assessment was arbitrary and without foundation.

"The law requires that special assessments be made according to the benefits received, see Dix-Ferndale Taxpayers Ass'n v Detroit, 258 Mich 390, 395; 242 NW 732 (1932). Plaintiffs' claim is that these special assessments were not made according to the benefits received as required by law. The resolution of this claim involves many fact determinations. The membership of the Tax Tribunal is structured to provide it with experience in resolving these fact issues. The tribunal's de novo review gives it the opportunity to rectify any errors in the agency's determination. This review is sufficient to resolve any of the claims raised by the plaintiffs. Since the issues raised by plaintiffs do not involve the validity of the tribunal's action or a statute, they do not remove this proceeding from the exclusive jurisdiction of the Tax Tribunal." (Emphasis added.) (Footnote omitted.)

Because petitioner's claims do involve the validity of statutes, the Tax Tribunal correctly concluded it did not have authority to resolve the issues raised. See, Sessa v. State Tax Comm., 134 Mich.App. 767, 351 N.W.2d 863 (1984). But, as both parties point out, where no questions of fact exist and the interests of justice and judicial economy so dictate, this Court may elect to address the constitutional questions that were not addressed below. Dewitt Twp. v. Clinton County, 113 Mich.App. 709, 713, 319 N.W.2d 2 (1982), Henshaw v. State Tax Comm. (On Remand), 126 Mich.App. 806, 810, 338 N.W.2d 224 (1983). Because the constitutional challenges merit a response, and have been raised in other equalization proceedings by respondent, we next address the three constitutional issues raised.

Petitioner first challenges M.C.L. Sec. 211.34(2); M.S.A. Sec. 7.52(2) on grounds that it violates the uniformity clause, Const. 1963, art. 9, Sec. 3, and the Headlee Amendment, Const. 1963, art. 9, Secs. 25-31. It is petitioner's theory that the...