STATE OF MICHIGAN
COURT OF APPEALS
LEWIS R. HARDENBERGH, JOHN T. UNPUBLISHED
HARDENBERGH, THOMAS R. November 24, 2015
HARDENBERGH and DOROTHY R.
WILLIAMSON,
Petitioners-Appellants,
v No. 322605
Tax Tribunal
COUNTY OF MANISTEE, LC No. 00-461514
Respondent-Appellee.
Before: METER, P.J., and BORRELLO and BECKERING, JJ.
PER CURIAM.
This case involves a dispute regarding the taxation of petitioners’ lake-front property.
The Michigan Tax Tribunal (MTT) issued a final opinion and judgment denying petitioners a
principle residence exemption (PRE), MCL 211.7cc(1), and rejecting petitioners’ equitable-
estoppel defense. Petitioners appeal as of right. We affirm.
The property at issue (subject parcel) is owned by petitioners—four siblings—and is
classified as residential. Built on the subject parcel is a cottage occupied by a caretaker of the
“Hardenbergh properties,” a “house” occupied by family members between May and November,
and other structures, such as garages and sheds. The subject parcel is contiguous to another
parcel (dwelling parcel), which has been owned by petitioner Lewis Hardenbergh since at least
2005.
Petitioners received the subject parcel as a result of their mother’s death in 2006. When
petitioners received the subject parcel, they applied to Onekama Township for a PRE.
According to the hearing referee’s proposed opinion and judgment, there was “no question”
petitioners consulted with David Meister, the Township Supervisor and Assessor, in connection
with the application for the PRE. According to the proposed opinion and judgment, Meister
consulted with “the officials at Respondent” and told petitioners that they could claim an 85%
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PRE for the subject parcel.1 The Township granted a partial 85% PRE for the subject parcel, as
it considered a portion of the land occupied within the meaning of the PRE statute, but granted
the exemption for the remaining land. However, after an audit was conducted under MCL
211.7cc(10), respondent, Manistee County, denied the subject parcel’s PRE for the years 2010 to
2013 because, while the subject parcel was contiguous to a qualifying home, the subject parcel
“has habitable dwellings on it.” As a result, respondent issued a tax bill for the years 2010 to
2012 plus interest in the amount of $80,384.94, which petitioners paid in full, and increased the
2013 tax bill by $19,415.00. Petitioners alleged that without the exemption, they would have
divided the subject property into different taxable parcels, separating the vacant portions from
the occupied portions of the property.
Petitioners filed an appeal in the MTT, arguing that respondent’s denial of the PRE was
erroneous because the buildings on the subject parcel were “unoccupied” for purposes of the
definition of a “principle residence” under MCL 211.7dd(c). Alternatively, petitioners argued
that the denial was erroneous because Assessor Meister properly applied a partial 85% PRE
pursuant to MCL 211.7cc(16) and respondent should be estopped from asserting a contrary
interpretation of the statutes. Before this matter went to hearing, petitioners also asserted that
due to “qualified error,” MCL 211.7cc(32)(c); MCL 211.53b(10), they were eligible for a waiver
of the interest under MCL 211.7cc(21) and (8), and that the “local assessor” has agreed with the
waiver. The hearing referee rejected petitioners’ arguments in its proposed opinion and
judgment, concluding that the subject parcel was “occupied” pursuant to MCL 211.77dd(c) and
that the MTT lacked equitable powers sufficient to consider petitioners’ equitable estoppel claim.
Regarding whether the interest was properly charged for the tax years 2010 to 2012, the hearing
referee concluded in a footnote that the issue was one for the Department of the Treasury and
was not ripe for consideration.
Petitioners filed exceptions to the proposed opinion and judgment. Assuming for
purposes of argument that buildings on the subject parcel were “occupied,” petitioners argued
that the hearing referee failed to consider whether MCL 211.7dd(c) and MCL 211.7cc(16)
allowed for a partial PRE with respect to a parcel contiguous to a principal residence parcel, and
that Assessor Meister’s conclusion in that regard is entitled to deference. Petitioners also argued
that the MTT has the authority to consider petitioners’ equitable estoppel claim. The MTT
rejected petitioners’ claims.
I. MCL 211.7dd(c) AND MCL 211.7cc(16)
Petitioners argue that MCL 211.7cc(16) allows a partial PRE to be applied to the portion
of the contiguous parcel that is “unoccupied” pursuant to MCL 211.7dd(c).
1
In their exceptions to the referee’s proposed opinion and judgment, petitioners claimed that
Meister met with other township officials, including the County Equalization Director, Peggy
Falk. The MTT never expressly ruled on this exception. On appeal, the parties dispute whether
Falk gave any advice. We are not as concerned with this discrepancy as are the parties, because
the precise individuals with whom petitioners spoke are not pertinent to our resolution of any of
the issues.
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Petitioners argue that the MTT misapplied the law. Review of decisions by the Tax
Tribunal is limited. Mt Pleasant v State Tax Comm, 477 Mich 50, 53; 729 NW2d 833 (2007);
Drew v Cass Co, 299 Mich App 495, 498-499; 830 NW2d 832 (2013). “When fraud is not
alleged, appellate courts are limited in their review of MTT decisions to determining whether the
tribunal made an error of law or adopted a wrong principle.” Wayne Co v Michigan State Tax
Com’n, 261 Mich App 174, 186; 682 NW2d 100 (2004). See also Const 1963, art 6, § 28. In
Drew, 299 Mich App at 499, we stated that while we afford “the most respectful consideration”
to the MTT’s interpretation of statutes the agency is charged with executing, “an agency’s
construction of a statute is not binding on the courts and cannot conflict with the Legislature’s
intent as expressed in clear statutory language.” Questions of law, including the proper
application and interpretation of tax statutes, are reviewed de novo. Ford Motor Co v City of
Woodhaven, 475 Mich 425, 438; 716 NW2d 247 (2006).
“The primary goal of statutory interpretation is to give effect to the intent of the
Legislature.” Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 76; 780 NW2d 753 (2010).
Legislative intent “to grant an exemption from the taxing power of the State will never be
implied from language which will admit of any other reasonable construction.” Menard, Inc v
Dep’t of Treasury, 302 Mich App 467, 474; 838 NW2d 736 (2013) (citations and quotation
marks omitted). In light of the “well-settled principle that, when a specific privilege or
exemption is claimed under a statute, . . . it is to be construed strictly against the property owner
and in favor of the public,” an intention to grant an exemption must be expressed in “clear and
unmistakable terms, or must appear by necessary implication from the language used[.]” Id.
(citations and quotation marks omitted). This is particularly true in the context of tax
exemptions, which “will be strictly construed” and must be determined “beyond reasonable
doubt.” Id. (citations and quotation marks omitted).
Michigan’s PRE, which is also referred to as the “homestead exemption,” is governed by
MCL 211.7cc and MCL 211.7dd of the General Property Tax Act (GPTA), MCL 211.1, et seq.
Drew, 299 Mich App at 500. “The Legislature has declared that ‘[a] principal residence is
exempt from the tax levied by a local school district for school operating purposes to the extent
provided under . . . the revised school code . . . if an owner of that principal residence claims an
exemption as provided in this section.’ ” EldenBrady v Albion, 294 Mich App 251, 256; 816
NW2d 449 (2011), quoting MCL 211.7cc(1) (emphasis added by the EldenBrady Court).
“Principle residence” is defined under MCL 211.7dd(c), which states in relevant part:
“Principal residence” means the 1 place where an owner of the property
has his or her true, fixed, and permanent home to which, whenever absent, he or
she intends to return and that shall continue as a principal residence until another
principal residence is established. Except as otherwise provided in this
subdivision, principal residence includes only that portion of a dwelling or unit in
a multiple-unit dwelling that is subject to ad valorem taxes and that is owned and
occupied by an owner of the dwelling or unit. Principal residence also includes
all of an owner’s unoccupied property classified as residential that is adjoining or
contiguous to the dwelling subject to ad valorem taxes and that is owned and
occupied by the owner. [Emphasis added.]
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EldenBrady concluded from the text of that provision that in order to receive the PRE, petitioners
are “required to prove by a preponderance of the evidence that their . . . parcel (1) was classified
as residential, (2) was adjoining or contiguous to their dwelling, and (3) was “unoccupied.’ ”
294 Mich App at 557, citing MCL 211.7dd(c).2
Petitioners contend that MCL 211.7cc(16) provides for a partial PRE with respect to the
subject parcel that is contiguous to the dwelling parcel. That statute states:
Except as otherwise provided in subsection (30), if the principal residence is part
of a unit in a multiple-unit dwelling or a dwelling unit in a multiple-purpose
structure, an owner shall claim an exemption for only that portion of the total
taxable value of the property used as the principal residence of that owner in a
manner prescribed by the department of treasury. If a portion of a parcel for
which the owner claims an exemption is used for a purpose other than as a
principal residence, the owner shall claim an exemption for only that portion of
the taxable value of the property used as the principal residence of that owner in
a manner prescribed by the department of treasury. [Emphasis added.]
The parties agree that these statutes must be read together. See Robinson v City of
Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010). Petitioners view MCL 211.7dd(c) as defining
“principal residence” as an owned and occupied “dwelling” and the dwelling owner’s
unoccupied, residential, and contiguous “property.” Stated differently, petitioners conclude that
“principal residence” becomes one blended category of property that may include the
“dwelling,” i.e., “the 1 place where an owner of the property has his or her true, fixed, and
permanent home,” and “all of an owner’s unoccupied property . . . contiguous to the dwelling . .
. .” MCL 211.7dd(c). Based on the inclusion of the contiguous parcel within the category of
“principal residence,” petitioners then conclude that MCL 211.7cc(16) provides a PRE for the
“portion of the taxable value of the property used as the principal residence of that owner.”
We appreciate that our Legislature has defined “principle residence” as both “the 1 place
where an owner of the property has his or her true, fixed, and permanent home” and the “owner’s
unoccupied property . . . contiguous to the dwelling.” MCL 211.7dd(c). See Tryc v Mich
Veterans’ Facility, 451 Mich 129, 136; 545 NW2d 642 (1996) (citations omitted) (stating that a
term’s statutory definition controls). However, as respondent argues, under MCL 211.7cc(16),
the exemption only applies where a portion of a parcel is actually “used as a principle residence”
by “that owner” claiming the PRE. It follows that, with respect to contiguous parcels, the owner
must “use” the contiguous parcel, pursuant to MCL 211.7cc(16), as “unoccupied property,”
pursuant to MCL 211.7dd(c). In other words, respondent does not too narrowly read the
definition of “principal residence” under MCL 211.7dd(c). Instead, in order to conclude that a
2
The parties stipulated to the fact that the subject parcel is classified as residential and is
contiguous to petitioner Lewis’ dwelling parcel. Thus, those elements of petitioners’ claim are
not in dispute. See People v Metamora Water Serv, Inc, 276 Mich App 376, 385; 741 NW2d
61(2007) (stating that “[w]hen the parties stipulate a set of facts, the stipulated facts are binding
on the court. . . .”).
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parcel contiguous to a principal residence parcel is part of the “principal residence” entitled to
the PRE, the contiguous parcel has to be “unoccupied” in the first instance pursuant to MCL
211.7dd(c). As a result, where contiguous, but separate, parcels are at issue, the apportionment
provision under MCL 211.7cc(16) will not apply such that there will be possible “partial PREs”
based on occupied and unoccupied portions of the contiguous parcel.3
“Given that our ability to review decisions of the MTT is very limited and that statutes
exempting persons or property from taxation must be narrowly construed in favor of the taxing
authority,” Drew, 299 Mich App at 503, the MTT did not err in concluding that MCL 211.7dd(c)
and MCL 211.7cc(16) do not allow a partial PRE in this case where the contiguous subject
parcel was not wholly “unoccupied.” In short, MCL 211.7dd(c) contemplates that property is
either occupied or unoccupied; the plain language of the statute does not lend itself to a
construction where there can be a middle ground of a partial PRE. Indeed, this conclusion is
consistent with the long-held principle that tax exemptions must not be found where “any other
reasonable construction” is possible. Menard, Inc, 302 Mich App at 474 (citations and quotation
marks omitted).4
II. MTT’S EQUITABLE POWERS
Petitioners argue that the MTT erred in failing to address the equitable estoppel claim on
the basis that the MTT lacks equitable power to consider such a claim.
This issue involves questions regarding the MTT’s jurisdiction and the application of
equitable estoppel. Jurisdiction is a legal question that is reviewed de novo. See WA Foote Mem
Hosp v Dep’t of Pub Health, 210 Mich App 516, 522; 534 NW2d 206 (1995). “When reviewing
equitable actions, this Court employs review de novo of the decision and review for clear error of
the findings of fact in support of the equitable decision rendered.” Webb v Smith, 204 Mich App
564, 568; 516 NW2d 124 (1994).
3
Contrary to petitioners’ assertions, this construction does not leave the last sentence of MCL
211.7cc(16) without meaning. See Johnson v Recca, 492 Mich 169, 177; 821 NW2d 520 (2012)
(stating that courts must “avoid an interpretation that would render any part of the statute
surplusage or nugatory”) (citation and quotation marks omitted). Where only one parcel is at
issue, the statutes, read together, could allow a partial PRE where there are multiple buildings on
the parcel. The exemption would apply to the portion of the parcel that included the “1 place
where an owner of the property has his or her true, fixed, and permanent home” and to any
unoccupied property on that parcel adjoining the dwelling, MCL 211.7dd(c), but not to portions
of the property that are used for purposes other than a “permanent home.”
4
In light of our conclusion that MCL 211.7dd(c) and MCL 211.7cc(16) do not allow a partial
PRE in this case where the contiguous subject parcel was not wholly “unoccupied,” we need not
address respondent’s alternate ground for affirmance, which is that petitioners’ joint ownership
of the contiguous subject parcel defeats a partial PRE because only petitioner Lewis owns the
dwelling parcel.
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Petitioners assert the principle that “the State as well as individuals may be estopped by
its acts, conduct, silence, and acquiescence is established by a line of well adjudicated cases . . .
.” Oliphant v State of Mich, 381 Mich 630, 638; 167 NW2d 280 (1969) (holding in favor of the
plaintiffs that they were “innocent purchasers” regarding a conveyance of land due to the state’s
representations of good title). See also Spoon-Shacket Co v Oakland Co, 356 Mich 151, 154-
156; 97 NW2d 25 (1959) (holding that an assessor’s actions constituted constructive fraud in
assessing vacant lots at the same value as lots improved with new homes, granting the tax payers
relief, even though they failed to seek prior review of their claim by the Board of Review);
Fisher v Muller, 53 Mich App 110, 126-127; 218 NW2d 821 (1974) (holding that the county and
“tax assessing authorities” were equitably estopped from enforcing a tax lien by a sale where the
landowner received a negative response to his inquiry regarding tax liability and the assessing
officers did not notify the landowners that a statement listing their real property holdings was
required).
However, those cases did not address the precise question at issue, which is whether the
MTT has sufficient equitable powers to entertain petitioners’ defense. Indeed, the cases
mentioned above involve claims initially filed in trial courts, not administrative agencies, such as
the MTT. Further, in Marie De Lamielleure Trust v Dep’t of Treasury, 305 Mich App 282, 287-
288; 853 NW2d 708 (2014), this Court recently made clear that the line of cases upon which
petitioners in this case rely, see id. at 288 n 3 (observing the petitioner’s reliance on Spoon-
Shacket Co and Oliphant), does not support the conclusion that the MTT has equitable authority.
Specifically, this Court opined:
Petitioner cites three cases for the proposition that respondent should be
estopped from assessing taxes that were not previously assessed because of
respondent’s errors. However, these cases do not deal with the statutory scheme
set forth in MCL 211.7cc, which addresses the procedures for claiming and
rescinding a PRE. Also, the express powers of the Tax Tribunal are those
authorized by statute, and the Tribunal has not been invested with equitable
powers. [Id.]
Accordingly, based on the fact that petitioners’ argument seems to be based on an
application of caselaw found to be inapplicable to a similar situation in Marie De Lamielleure
Trust, the MTT correctly concluded that it lacked equitable power to pass on petitioners’
argument that respondent is estopped from arriving at an interpretation of MCL 211.7dd(c) and
MCL 211.7cc(16) that is different from Assessor Meister’s guidance. This Court need not
address this issue further.
III. WHETHER THE SUBJECT PARCEL WAS “UNOCCUPIED”
Petitioners argue that the subject parcel was “unoccupied” in accordance with MCL
211.7dd(c) because the human inhabitance of the subject parcel was merely incidental. While
petitioners may have raised this issue in their petition, in filing their exceptions to the hearing
referee’s proposed opinion and judgment, petitioners did not directly refute the hearing referee’s
conclusion the subject parcel when considered as a whole did not qualify as unoccupied for
purposes of MCL 211.7dd(c). As such, the MTT did not expressly decide the matter.
Accordingly, it does not appear that this issue was fully preserved. See Forest Hills Co-
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operative v Ann Arbor, 305 Mich App 572, 586; 854 NW2d 172 (2014). Review of an
unpreserved error “is limited to determining whether a plain error occurred that affected
substantial rights.” Rivette v Rose-Molina, 278 Mich App 327, 328; 750 NW2d 603 (2008)
(citation omitted). However, “this Court may consider an unpreserved issue if the question is
one of law and all the facts necessary for its resolution have been presented . . . .” Wells Fargo
Bank, NA v Null, 304 Mich App 508, 518; 847 NW2d 657 (2014) (citation and quotation marks
omitted).
“In order to qualify for a principal residence exemption under the third sentence of MCL
211.7dd(c), property need only be ‘unoccupied’—not ‘vacant.’ ” EldenBrady, 294 Mich App at
257. “[T]he statutory language merely requires that the contiguous property be unoccupied, i.e.,
without human occupants,” and “an occupant is a tenant or a resident.” Id. at 259 (emphasis
added by the EldenBrady Court). Accordingly, the hearing referee aptly concluded that more is
required than the mere presence of the buildings on the subject parcel in order to conclude that it
is “occupied” for the purposes of MCL 211.7dd(c). Here, we believe that the question of
whether the apparent vacation-use of the subject parcel by petitioners’ relatives would mean that
the parcel was “occupied” is debatable. However, the parties’ stipulated facts expressly provided
that the subject parcel “includes a cottage occupied by a person who serves as a caretaker of the
Hardenbergh properties” and there is no basis in the record for anything other than the
conclusion that caretaker occupied the cottage at issue. In fact, petitioners make no argument
that the cottage inhabited by the caretaker is not fit for habitation or is not used as the caretaker’s
residence. Based on the caretaker’s stipulated occupation of the subject parcel, there is no merit
to any argument that the subject parcel was not “occupied” under EldenBrady, 294 Mich App at
259.
Rather than contesting whether the caretaker “occupied” the cottage in the traditional
sense of the word, petitioners assert that the caretaker’s use of the subject parcel was “incidental”
and thus cannot destroy the claimed exemption. Essentially, petitioners attempt to inject an
“incidental use” exception into MCL 211.7dd(c) and argue that this alleged “incidental use” by
the caretaker should defeat any finding that the caretaker occupied the subject parcel. In support
of this proposition, petitioners cite Berlin v Gaines Twp, 130 Mich App 337, 341; 343 NW2d
544 (1983), a case in which this Court considered a tax exemption for burial grounds. Berlin
held that, based on the applicable statutory language and intent of the statute, a parcel of land
made available for future grave sites is “either exempt in its entirety or not exempt at all[.]”5 Id.
5
Berlin acknowledged that “charitable-use exemption cases allow apportionment based on
language that buildings and other property located on the real property are exempt if they are
occupied ‘solely for the purposes for which they were incorporated,’ ” but pointed out that the
text of the burial exemption and its purpose differs. Id. at 343-344, quoting Hosp Purchasing
Serv of Mich v City of Hastings, 11 Mich App 500, 508; 161 NW2d 759 (1968). See also Gull
Lake Bible Conference Ass’n v Ross Twp, 351 Mich 269, 273-274; 88 NW2d 264 (1958)
(addressing the charitable-use tax exemption). Berlin noted that courts are “[i]nclined toward
liberality in construing this exemption because of the expressed policy we have in common with
the universal sentiment of mankind, to preserve and maintain the burial places of the dead.” Id.
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at 343. Ultimately, Berlin determined that the caretaker’s use of a house on the subject property
was “not incidental,” because the caretaker’s duties with respect to the seven old burial plots was
minimal and the house had long been used as a residence before the lot was designated a burial
ground, thus negating the parcel’s tax exempt status. Berlin, 130 Mich App at 344.
Petitioners also rely on Saginaw Co Agricultural Society v Saginaw, 142 Mich App 173,
175; 368 NW2d 878 (1984), which addressed an exemption for property owned by a state,
county, or district agricultural society and used “exclusively for fair purposes” under MCL
211.7w.6 This Court held that “tax exemption for property owned by agricultural societies is not
lost by virtue of occasional or incidental uses for other purposes.” Id. at 178.
The cases cited by petitioners are distinguishable in that they deal with subject-specific
rationale and different statutes. For instance, the line of cases addressing the exemption for
cemeteries includes an underlying theme that liberal construction is necessitated by the particular
need for burial grounds. That subject-specific rationale should not be applied in this case over
the general rule that exemptions should be narrowly construed. See Mernard, Inc, 302 Mich
App at 474. And, the cases petitioners cite still make clear that the focus is on the text of the
statute that provides the exemption that is at issue. In this case, the pertinent statute only
considers whether the property was “occupied.” MCL 211.7dd(c). Thus, petitioners’ “incidental
use” argument lacks merit.
In sum, in light of the parties’ stipulated facts regarding the caretaker’s occupancy of the
subject parcel and that petitioners’ “incidental use” argument lacks merit, holding that the
subject parcel was “occupied” pursuant to MCL 211.7dd(c) does not result in plain error
affecting substantial rights.
IV. “QUALIFIED ERROR” AND WAIVER OF INTEREST
Petitioners argue that a “qualified error” occurred, and interest was incorrectly assessed
on the amounts due as a result of the retroactive PRE denial for the years 2010 to 2012.
However, petitioners did not raise this issue in their petition or in filing exceptions to the
proposed opinion and judgment, and the MTT did not address this issue. Thus, this issue is not
preserved. See Forest Hills Co-operative, 305 Mich App at 586.
While not properly preserving this issue for our review, petitioners did raise the issue in a
pre-hearing memorandum. The hearing referee briefly noted that this issue was to be answered
by the Department of Treasury and was not ripe for consideration by the MTT. The hearing
referee apparently arrived at that conclusion by construing MCL 211.7cc(8), 211.7cc(21),
211.7cc(32)(c), and 211.53b(10). These statutes govern, in part, circumstances amounting to
“qualified error,” giving the Department of Treasury the ability to deny a PRE for the past three
years, and the process for waiving interest on retroactively-denied PRE claims. Several months
after filing their petition in this case, petitioners filed a subsequent petition in the MTT raising
(citations and quotation marks omitted). See also Petition of Gundry, 333 Mich 700, 703-704;
53 NW2d 586 (1952).
6
The statute has since been amended to exempt property used “primarily for fair purposes.”
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this same issue. Within that proceeding, petitioners presented a letter from the Department of
Treasury rejecting petitioners’ request that interest be waived.
Because this Court may not have all the facts and proofs necessary to resolve this issue,
see Wells Fargo Bank, 304 Mich App at 518 (stating that “this Court may consider an
unpreserved issue if the question is one of law and all the facts necessary for its resolution have
been presented”) (citation and quotation marks omitted), we decline to address this unpreserved
issue. See Attorney General v Pub Serv Comm, 136 Mich App 52, 56; 355 NW2d 640 (1984)
(stating that “[f]ailure by a party to file exceptions to the proposal for decision in a timely
manner constitutes a waiver of any objections not raised”) (citation and quotation marks
omitted).7
V. CONCLUSION
In sum, we affirm the MTT’s narrow interpretation of MCL 211.7dd(c) and MCL
211.7cc(16) and hold that the MTT correctly determined that it lacked sufficient equitable power
to consider petitioners’ claim of equitable estoppel. Further, while there is sufficient
development of the record to reject petitioners’ unpreserved claim that the subject parcel was not
“unoccupied” for purposes of MCL 211.7dd(c), we decline to address the additional unpreserved
argument relating to the waiver of interest based on “qualified error” under MCL 211.7cc(8),
211.7cc(21), 211.7cc(32)(c), and 211.53b(10).
Affirmed.
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
/s/ Jane M. Beckering
7
In addition, this attempt to litigate the interest issue against the Department of Treasury
appears, from the limited record available on this matter, improper, because it involves a separate
action and a party not named in the instant action.
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