Order Michigan Supreme Court
Lansing, Michigan
June 29, 2007 Clifford W. Taylor,
Chief Justice
130698 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
HIGHLAND-HOWELL DEVELOPMENT Robert P. Young, Jr.
COMPANY, LLC, Stephen J. Markman,
Justices
Petitioner-Appellant,
v SC: 130698
COA: 262437
MTT: 00-307906
TOWNSHIP OF MARION,
Respondent-Appellee.
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On order of the Court, leave to appeal having been granted, and the briefs and oral
argument of the parties having been considered by the Court, we hereby REVERSE the
judgment of the Court of Appeals and REMAND this case to the Michigan Tax Tribunal
for it to determine whether the special assessment levied against petitioner’s property is
proportionate to the benefit to the property.
In 1996, respondent township levied a special assessment against petitioner’s
property in the amount of $3.25 million for a sanitary sewer project that included a trunk
line across petitioner’s property. In 1998, petitioner discovered that the township had
unofficially eliminated the trunk line across petitioner’s property from the project
sometime after the time for challenging the special assessment roll had passed. The tax
tribunal dismissed petitioner’s petition to challenge the special assessment on the basis
that it lacked jurisdiction because petitioner had not objected at the public hearing or
commenced an appeal within 30 days after the 1996 resolution confirming the special
assessment roll as required by MCL 205.735(1) and MCL 41.726(3).
Also in 1998, petitioner filed a separate complaint in the circuit court alleging
breach of contract and challenging the proportionality of the special assessment. The
circuit court granted respondent’s motion for summary disposition on the basis that the
tribunal has exclusive jurisdiction over petitioner’s claims. However, on appeal, this
Court held that the circuit court has jurisdiction over the breach of contract claim and the
tribunal has jurisdiction over the proportionality claim. Highland-Howell Dev Co, LLC v
Marion Twp, 469 Mich 673, 676, 676 n 4 (2004). Presumably because this Court held
that the tribunal has exclusive jurisdiction over the proportionality claim, petitioner filed
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an amended complaint that excluded the proportionality claim. On remand, the circuit
court granted respondent’s motion for summary disposition on the basis that there was no
contract.
In 2004, the township passed a formal resolution ratifying changes in the sewer
plan, including elimination of the trunk line across petitioner’s property. Petitioner
timely filed a petition with the tax tribunal within 30 days of that resolution. The tribunal
dismissed petitioner’s challenge of the 2004 resolution on the basis of res judicata, and
the Court of Appeals affirmed on the basis of collateral estoppel. Unpublished opinion
per curiam, issued January 31, 2006 (Docket No. 262437).
There must be a proportionate relationship between a special assessment and the
benefit to property from a special assessment. MCL 41.725(1)(d); Dixon Road Group v
City of Novi, 426 Mich 390, 403 (1986) (“a failure by this Court to require a reasonable
relationship between the [amount of the special assessment and the amount of the benefit]
would be akin to the taking of property without due process of law”). Further, before an
assessment is levied, the property owner is entitled to notice and an opportunity to be
heard. Thomas v Gain, 35 Mich 155, 164-165 (1876). Therefore, in this case, in which
petitioner argues that the special assessment is no longer proportionate to the benefit to
his property due to the change that the township made to the improvement plan,
petitioner must be afforded an opportunity to be heard.
Because “[s]tatutes must be construed in a constitutional manner if possible,” In re
Trejo, 462 Mich 341, 355 (2000), the statutes at issue here cannot be construed in a
manner that would deny petitioner due process of law. See W & E Burnside, Inc v
Bangor Twp, 402 Mich 950l (1978), in which this Court remanded the case to the tribunal
to determine whether the petitioner was entitled to notice even though the protest
requirement of § 735(1) was not satisfied. That is, § 735(1) cannot be construed to
require petitioner to have objected to the removal of the trunk line across its property at
the hearing since that removal had not yet taken place at the time of the hearing. In
addition, § 726(3) cannot be construed to require petitioner to have objected within 30
days after the date of confirmation of the special assessment roll because when the
special assessment roll was confirmed, petitioner had no basis to object because the plan
included the trunk line through petitioner’s property. MCL 205.735(2) grants the tribunal
jurisdiction over petitioner’s 2004 petition because the 2004 resolution is a “final
decision” and petitioner filed a written petition within 30 days after that “final decision.”
Finally, petitioner’s 2004 claim cannot be barred by res judicata or collateral
estoppel. In dismissing petitioner’s 2004 claim, the tribunal stated, “[t]he Tribunal’s
March 19, 2004 final Opinion and Judgment that dismissed Docket No. 261431 fully
considered and rendered legal conclusions with regard to all issues pertaining to official
or unofficial changes to the plans in relation to the jurisdiction of the Tribunal.” No
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official changes existed at that time, however, as respondent did not pass the 2004
resolution until May 13, 2004. Accordingly, the tribunal’s March 19, 2004 opinion could
not have fully considered and rendered legal conclusions regarding official plan changes
that had not yet occurred, and, thus, neither res judicata nor collateral estoppel apply.
I, Corbin R. Davis, 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.
June 29, 2007 _________________________________________
t0620 Clerk