BEACHCOMBER MOTEL V MACKINAW TWP
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STATE OF MICHIGAN
COURT OF APPEALS
BEACHCOMBER MOTEL,
UNPUBLISHED
January 14, 1997
Petitioner-Appellant,
v
No. 183672
Michigan Tax Tribunal
LC No. 173606
MACKINAW TOWNSHIP,
Respondent-Appellee.
Before: Saad, P.J., and Holbrook, Jr., and G.S. Buth,* JJ.
PER CURIAM.
Petitioner Beachcomber Motel appeals as of right from the opinion and judgment of the
Michigan Tax Tribunal, Small Claims Division, which upheld respondent Mackinaw Township’s
determination that the true cash value of petitioner’s commercial real property was $466,600 for tax
year 1992 and $478,800 for years 1993 and 1994. Petitioner’s request for rehearing was denied by
the tribunal. We affirm in part and remand for further proceedings.
This Court’s review of property tax assessment appeals is tempered by a constitutionally
mandated standard of review:
In the absence of fraud, error of law or the adoption of wrong principles, no
appeal may be taken to any court from any final agency provided for the administration
of property tax laws from any decision relating to valuation or allocation. [Const 1963,
art 6, § 28.]
It is the province of the Tax Tribunal to apply its expertise to the facts of each case to determine the
appropriate method of arriving at the cash value, or fair market value, of the subject property. The
factual findings of the tribunal are final, provided they are supported by competent, material, and
substantial evidence on the whole record. Edward Rose Bldg Co v Independence Twp, 436 Mich
* Circuit judge, sitting on the Court of Appeals by assignment.
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620, 632; 462 NW2d 325 (1990); Antisdale v City of Galesburg, 420 Mich 265, 277; 362 NW2d
632 (1984).
In this appeal, petitioner first argues that the hearing referee erred in relying on documentary
evidence that was submitted by respondent less than ten days before the hearing date in violation of
1981 AACS R 205.1642. On these facts, we find no error.
Tax Tribunal Rule 642(2) provides, in pertinent part: “A copy of an appraisal report or other
written evidence shall be submitted to the opposing party and the tribunal not less than 10 days before
the date of the hearing.” The obvious purpose of this small claims division rule is to prevent unfair
surprise, ensure that the parties have adequate time to investigate data and accumulate rebuttal
evidence, and expedite hearings. To establish error on the basis of a violation of a procedural rule, such
as TTR 642(2), the party alleging the error must show that it suffered prejudice as a result of the
violation. See Community Associates v Meridian Charter Twp, 110 Mich App 807, 812; 314
NW2d 490 (1981); Kern v Pontiac Twp, 93 Mich App 612, 622-624; 287 NW2d 603 (1979).
Here, it is apparent from the tribunal’s opinion and judgment that the hearing referee relied on the
documents, which were submitted by respondent seven days before the hearing date.1 At the hearing,
petitioner apparently objected to respondent’s untimely submission of its documentary evidence, but
failed to cite any instance of prejudice in its petition for rehearing. In its brief on appeal, petitioner
argues that violation of TTR 642(2) required exclusion of the evidence as a matter of law, and merely
states in conclusion that it had “inadequate time to examine and prepare to rebut” respondent’s
evidence. We find no error requiring reversal of the hearing referee’s decision.
First, we find petitioner’s conclusory and general allegation of surprise to be unconvincing.
Petitioner was aware of respondent’s valuation arguments in advance of the hearing and as far as we
can tell was able to address them adequately. Second, contrary to petitioner’s claim, violation of TTR
642(2) does not entail the exclusion per se of untimely documentary evidence. Because TTR 642(2)
lacks any specific penalty provision for its violation, the tribunal is accorded discretion to impose an
appropriate sanction, if any, considering the nature of the violation and the attendant circumstances.
Accord In re Jackson, 199 Mich App 22, 28-29; 501 NW2d 182 (1993 (declining to impose a
sanction for violation of time requirements in court rule that the legislature and the Supreme Court had
declined to impose). Third, in the absence of any specific sanction attaching to a violation of TTR
642(2), TTR 111(3) provides for application of the Michigan Court Rules and the contested case
procedures of the Administrative Procedures Act. See MCL 24.271-287; MSA 3.560(171)-(187).
Here, although there is no dispute that respondent violated the time requirements of TTR 642(2), we
would find any such violation to be harmless pursuant to MCR 2.613(A). See Kern, supra at 623.
For the reasons outlined above, we conclude that petitioner was not denied procedural due process of
law.
Petitioner next asserts that the referee’s findings regarding the cost of improvements was not
supported by competent, m
aterial, and substantial evidence, and that the valuation method used was
erroneous. In his written opinion, the referee made the following findings regarding the value of
petitioner’s property:
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Though Petitioner, through his agent, submitted an appraisal, this Hearing Referee elects
to give most weight to the actual purchase price paid for the subject plus approximate
costs of improvements and additions since the purchase in 1989. The total purchase
price of $457,000, less personal property of $17,000 ( er the personal property
p
statements filed by Petitioner) plus the additional four units, say $60,000, plus the
estimated costs to enlarge the residence and add a new office, say $30,000, for a total
investment of about $530,000 for the real property.
This matter was heard without a formal record being made, MCL 205.762(3); MSA
7.650(62)(3), and our review of the documentary evidence submitted by the parties does not
necessarily support the referee’s figures regarding improvement costs or value of personal property and
it does not fully explain its reasons for using a purchase price plus cost of improvements method to
arrive at true cash value. Accordingly, we remand this matter to the tribunal to make supplemental
findings of fact and conclusions of law so that this Court is able to review petitioner's claim adequately.
The tribunal is further directed to identify the evidence that was considered and to explain its reasons for
any factual findings underlying its determination of value.
Petitioner next argues that respondent failed to present evidence of uniform assessment as
required by MCL 205.737(3); MSA 7.650(37)(3). There are two bases on which to appeal an
assessment: (1) lack of uniformity in the taxing district for the subject property's class, and (2) the
assessment exceeds fifty percent of true cash value. Const 1963, art 9, § 3; Brittany Park Apts v
Harrison Twp, 104 Mich App 81, 87-88; 304 NW2d 488 (1981). Petitioner did not raise the issue of
uniformity below and, indeed, its petition for rehearing stated only that the “[p]roperty as assessed
exceeds 50% of true cash value.” Accordingly, we decline to review this issue on appeal.
Finally, petitioner contends that error occurred when its request for rehearing was decided by a
hearing referee rather than a tribunal member as required by MCL 205.762(3); MSA 7.650(62)(3).
Although this issue is moot in light of our decision to remand this matter to the tribunal for further
findings, we note that, in Shapiro Bag Co v City of Grand Rapids, 217 Mich App 560; ___ NW2d
___ (1996), a panel of this Court held that a request for rehearing must be decided by a tribunal
member, not a hearing officer or referee.
Affirmed in part and remanded to the tax tribunal for further proceedings consistent with this
opinion. We retain jurisdiction.
/s/ Henry W. Saad
/s/ Donald E. Holbrook, Jr.
/s/ George S. Buth
1
Respondent has not filed a brief in this appeal. According to petitioner, the late submitted documents
included “a 1993 equalization study with attachments, a real property statement, the 1991 commercial
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land value report, two maps, calculator cost computation sheets, the land contract by which the
property was purchased in 1989, and page 2 of an economic condition factor report.”
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