Szymanski v. City of Westland

Levin, J.

(dissenting). Plaintiffs filed a petition in the Tax Tribunal alleging that a special street paving assessment levied on their properties was unconstitutional because the paving would not confer a special benefit. Because the plaintiffs filed the petition more than 30 days after the "confirmation of the assessment rolls,” the Tax Tribunal held, on the basis of MCL 205.735(2); MSA 7.650(35)(2), that it did not have jurisdiction. The Court of Appeals affirmed.

This Court affirms stating that because the plaintiffs can point to "no other applicable provision granting them a longer period of time,” the 30-day deadline bars the proceeding.

We conclude that the content of the notice given to plaintiffs was not reasonably calculated to inform them of the need to act, and did not comport with the requirements of the Due Process Clause. The city did not notify the plaintiffs personally of the estimated amounts of their assessments, and the published notice of confirmation did not inform the plaintiffs that they had only 30 days to appeal.

*306Due process is a flexible concept. The "timing and content” of required notice "depend on appropriate accommodation of the competing interests involved.”1 Because special assessments are, as the term implies, exceptional, a high standard of notice is required. The notice should fairly apprise the property owner of readily available information that might influence his decision whether to contest the assessment. Here, although the city had available cost estimates on a frontage basis, the notices did not inform the plaintiffs of the estimated amounts of the proposed special assessments. Property owners who might have been energized to act had they known of the amounts of the potential liabilities, may have ignored the somewhat uninformative letter they received. As the court stated in Atkins v Kessler, 97 Cal App 3d 784; 159 Cal Rptr 231, 236 (1979):

"Not all of the property owners affected by the street improvement are necessarily familiar with the method of assessment and financing for such improvements. It is not reasonable to expect that all of the property owners will understand notices of special assessment * * * the forms of notice are such that they can be easily misunderstood or perhaps carelessly but in good faith ignored. * * * This warrants a more adequate form of notice.” (Emphasis supplied.)

In Atkins, the court found that notice of foreclosure was inadequate because it did not state the amount involved.

The notice to the plaintiff property owners was not reasonably calculated to inform them of the exposure they faced and was not much more than a "mere gesture.”2 Because the city could have *307provided estimated cost information with little or no additional effort, and because such information might have influenced the decision of property owners whether to protest or not, the absence of such information renders the notice violative of the Due Process Clause.

The city did not mail to property owners notice of the final confirmation of the assessment rolls. Notice was published once in a local newspaper, under the heading "City of Westland; Meeting No. 35 - 7/7/80.” The notice stated: "487 thru 491: Adopted Resolution No. 6 for paving districts 80-P-26, 27, 29, 30 & 32.” This "notice” did not state the effect of the adoption of the resolution. Property owners were not informed that they had less than 30 days3 to protest the assessment.4

We conclude that the procedures followed by the City of Westland did not comport with the requirements of the Due Process Clause, and that the plaintiffs acted with adequate promptness in filing their petition.5

Kavanagh, J., concurred with Levin, J._

Goss v Lopez, 419 US 565, 579; 95 S Ct 729; 42 L Ed 2d 725 (1975).

Mullane v Central Hanover Bank & Trust Co, 339 US 306, 315; 70 S Ct 652; 94 L Ed 865 (1950).

The rolls were confirmed, thus commencing the 30-day period, on July 7, 1980, but publication apparently did not occur until July 17, 1980.

For reasons stated in dissent in Wikman v Novi, 413 Mich 617, 696, fn 88; 322 NW2d 103 (1982) (Levin, J.), the Tax Tribunal Act, providing that proceedings shall be commenced within 30 days after the final decision, ruling, determination or order, MCL 205.735; MSA 7.650(35), conferred on the Tax Tribunal authority to review the levy of state taxes and was not meant to confer authority to review a special assessment by a city.

Plaintiffs filed their petition on March 19, 1981.