Nicola Binns v. City of Detroit

Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  December 11, 2020                                                              Bridget M. McCormack,
                                                                                               Chief Justice

  158856                                                                              David F. Viviano,
                                                                                      Chief Justice Pro Tem

                                                                                    Stephen J. Markman
                                                                                         Brian K. Zahra
                                                                                   Richard H. Bernstein
  NICOLA BINNS, JAYNE CARVER, SUSAN                                                Elizabeth T. Clement
  McDONALD, GOAT YARD, LLC, and END                                                Megan K. Cavanagh,
  OF THE ROAD MINISTRIES, LLC,                                                                      Justices
            Plaintiffs-Appellants,
  v                                                      SC: 158856
                                                         COA: 337609
  CITY OF DETROIT, CITY OF DETROIT
  WATER AND SEWERAGE DEPARTMENT,
  DETROIT BOARD OF WATER
  COMMISSIONERS, and GREAT LAKES
  WATER AUTHORITY,
            Defendants-Appellees.

  _________________________________________/

         By order of January 24, 2020, the application for leave to appeal the judgment of
  the Court of Appeals was held in abeyance pending the decision in DAART v City of
  Detroit (Docket No. 158852). On the Court’s own motion, the application for leave to
  appeal the November 6, 2018 judgment of the Court of Appeals is again considered.
  Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the
  judgment of the Court of Appeals and REMAND this case to that court, which, while
  retaining jurisdiction, shall refer the case to a judicial circuit for proceedings under
  MCR 7.206(E)(3)(d).

        We do not retain jurisdiction.

        ZAHRA, J. (concurring).

         I concurred in the Court’s order vacating and remanding Detroit Alliance Against
  the Rain Tax v Detroit (Docket No. 158852) (DAART) to the Court of Appeals for
  reconsideration in light of our decision in this case, Binns v Detroit (Docket No. 158856).
  I write separately, however, to observe that the fact-finding process under MCR
  7.206(E)(3)(d) that will take place in this case and which will subsequently be applied in
                                                                                                                 2

DAART is critical to reaching a sound result under Bolt v City of Lansing, 459 Mich 152
(1998). Bolt set out a three-factor test for distinguishing a fee from a tax under Const
1963, art 9, § 31. See Bolt, 459 Mich at 161-162. Of particular importance to this case is
the second factor, the proportionality analysis, especially in light of the following
statement of fact from amicus Kickham Hanley PLLC’s late-filed brief in DAART:

         The City [of Detroit (the City)] inexplicably does not collect Drainage
         Charges from the City’s largest landowner, the Detroit Land Bank
         Authority (“DLBA”), a component unit of the City that owns and controls
         approximately 25% of the parcel-based acres in the City, a land area the
         size of the City of Royal Oak. As a result, the lost revenues attributable to
         the City’s failure to collect from the DLBA must be made up through
         higher Drainage Charge rates imposed on other landowners[.]1
Given the foregoing, it is at best unclear to me how the City’s drainage charge is best
classified as a user fee rather than as a tax where: (1) “user fees must be proportionate to
the necessary costs of the service,” Bolt, 459 Mich at 161-162; (2) a subunit of the City is
exempted from paying the drainage charge that other impervious-acreage landowners
must pay, see Kickham Hanley amicus brief at 3; and (3) that results in the imposition of
“higher Drainage Charge rates” on other, non-DLBA landowners, see id.—all of which
applies to plaintiffs in these cases.




1
    Kickham Hanley amicus brief at 3 (emphasis omitted).




                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           December 11, 2020
         t1208
                                                                               Clerk