NILES TOWNSHIP V BERRIEN CO BD OF COMM
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STATE OF MICHIGAN
COURT OF APPEALS
NILES TOWNSHIP,
FOR PUBLICATION
March 23, 2004
9:00 a.m.
Plaintiff-CounterdefendantAppellee,
v
BERRIEN COUNTY BOARD OF
COMMISSIONERS and BERRIEN COUNTY,
Defendants-CounterplaintiffsAppellants.
No. 244138
Berrien Circuit Court
LC No. 01-003851-CK
Updated Copy
June 18, 2004
Before: Murray, P.J., and Murphy and Markey, JJ.
PER CURIAM.
Berrien County determined that Niles Township could not finance the operation of its fire
department by special assessment pursuant to MCL 41.801 et seq. Therefore, the county board
of commissioners refused to certify the township's special assessment roll under § 37 of the
General Property Tax Act, MCL 211.37. The township sought declaratory relief. The trial court
ruled that the township had properly followed statutory procedure and that the life of the
township's voter-approved special assessment was not limited to twenty years by Const 1963, art
9, § 6. Berrien County appeals by right. We affirm.
I. Factual Background
Niles Township is situated within Berrien County. In 1967, township voters approved
two special assessments, one for capital improvements for fire protection for up to three mills,
and one for operation and maintenance of fire protection for up to 2-1/2 mills. After that vote,
the township continued to annually assess these millages, holding hearings and submitting the
request to the county for certification each year under MCL 211.37.
In a letter dated February 26, 2001, counsel for the county raised concerns with the way
the township was funding its fire department and library, stating specifically that it was not
appropriate to use special assessments to fund fire department operations because special
assessments may only be used to recoup expenses of public improvements. The township's
counsel responded that special assessments were appropriate because fire protection directly
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benefits the property assessed. The parties' counsel continued to debate the legal question
through correspondence.
Despite the legal debate, the township prepared to have the special assessments certified
by the county. The township published notice it intended to address taxes to be levied for fire
operation and maintenance, library services, fire capital improvement, general fund, street
lighting, and drains. The township did not send individual notices to property owners. After
holding the tax hearing as scheduled, the township board approved all levies.
Days before the township's tax hearing, the Berrien County Board of Commissioners
voted twelve to zero not to certify the township's library or fire special assessments. On
September 27, 2001, Niles Township filed this action in the Berrien Circuit Court seeking a
declaratory judgment and determination that the fire special assessments, as well as a library
millage, were lawful. The township also sought a writ of mandamus and a preliminary
injunction directing the Berrien County Board of Commissioners to certify the tax roll, including
the fire special assessments. The county responded with counterclaims for a declaratory
judgment seeking a determination that the two fire assessments, the library millage, and a drain
millage, did not comply with authorizing statutes or Michigan's Constitution.
After conducting hearings, the trial court ruled that the township's library millage could
not exceed the twenty-year limit of Const 1963, art 9, § 6 and that the rollback provisions of the
so-called Headlee Amendment, Const 1963, art 9, § 31, also applied. The library millage issues
are not before this Court.
With regard to the fire protection special assessments, the trial court first examined the
statute that authorizes a township to levy a special assessment for the purchase and operation of
equipment for police and fire departments, MCL 41.801. Reading the statute as a whole, the trial
court concluded that the statute authorizes the township to specially assess for the operation and
maintenance of its fire department. Likewise, the trial court rejected the county's argument that
the township did not comply with statutory notice requirements. Specifically, the trial court
found that the notice requirements of MCL 41.801 controlled and that MCL 41.803, which
requires compliance with the notice requirements of MCL 41.724a, applied only if the township
issued bonds to raise funds. For the same reason, the court found that the fifteen-year limitation
of MCL 41.803 only applied when special assessments are used to retire issued bonds in annual
installments. Accordingly, the trial court ruled that the township had not exceeded its statutory
authority in levying its fire protection special assessment. Finally, the trial court determined that
this case is controlled by St Joseph Twp v Municipal Finance Comm, 351 Mich 524; 88 NW2d
543 (1958), which upheld a township-wide special assessment district and the use of the value of
the property assessed as the measure of benefit to that property when levying the special
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assessment. Accordingly, the trial court entered its order granting in part and denying in part the
township's complaint for declaratory relief and writ of mandamus.1
Berrien County now appeals by right the trial court's grant of declaratory relief regarding
the legality of Niles Township's fire protection special assessments.
II. Analysis
A. Standard of Review
This Court reviews de novo both questions of statutory interpretation and constitutional
issues. Havey v Michigan, 469 Mich 1, 6; 664 NW2d 767 (2003); Roberts v Mecosta Co Gen
Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002). The determination whether to grant declaratory
relief is within the sound discretion of the trial court. Allstate Ins Co v Hayes, 442 Mich 56, 74;
499 NW2d 743 (1993).
B. Statutory Issues
The first question we address is one of statutory interpretation and one of first
impression. Does MCL 41.801 authorize a township to fund capital improvements for a fire
department, the operation and maintenance of a fire department, both, or neither through a
special assessment?
The primary goal of judicial interpretation of statutes is to discern and give effect to the
intent of the Legislature; the rules of statutory construction merely serve as guides to assist in
determining that intent with a greater degree of certainty. Gladych v New Family Homes, Inc,
468 Mich 594, 597; 664 NW2d 705 (2003); In re Quintero Estate, 224 Mich App 682, 692-693;
569 NW2d 889 (1997). It is a fundamental principle that a clear and unambiguous statute leaves
no room for judicial construction or interpretation. Gladych, supra at 597; People v McIntire,
461 Mich 147, 152-153; 599 NW2d 102 (1999). "'When a legislature has unambiguously
conveyed its intent in a statute, the statute speaks for itself and there is no need for judicial
construction; the proper role of a court is simply to apply the terms of the statute to the
circumstances in a particular case.'" Id. at 153, quoting People v McIntire, 232 Mich App 71,
119; 591 NW2d 231 (1988) (Young, P.J., concurring in part and dissenting in part) (emphasis in
the original). Thus, this Court "may engage in judicial construction only if it determines that
statutory language is ambiguous." Gilbert v Second Injury Fund, 463 Mich 866, 867 (2000).
Where the language in a statute is ambiguous, a court may go beyond the statute's words
in order to ascertain legislative intent. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596
NW2d 119 (1999). "An ambiguity of statutory language does not exist merely because a
reviewing court questions whether the Legislature intended the consequences of the language
1
The portion of the trial court's orders denying relief pertained to the library issues.
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under review. An ambiguity can be found only where the language of a statute as used in its
particular context has more than one common and accepted meaning." Colucci v McMillin, 256
Mich App 88, 94; 662 NW2d 87 (2003). If reasonable minds can differ with respect to the
meaning of a statute, that statute may be considered ambiguous and judicial construction is
appropriate. Ross v Michigan, 255 Mich App 51, 55; 662 NW2d 36 (2003).
With these concepts in hand, we examine the language of MCL 41.801, which reads in
pertinent part:
(1) The township board of a township . . . may purchase police and fire
motor vehicles, apparatus, equipment, and housing and for that purpose may
provide by resolution for the appropriation of general or contingent funds. . . .
(2) The township board of a township . . . may provide annually by
resolution for the appropriation of general or contingent funds for maintenance
and operation of police and fire departments.
(3) The township board . . . may provide that the sums prescribed in
subsection (2) for purchasing and housing equipment, for the operation of the
equipment, or both, may be defrayed by special assessment on the lands and
premises in the township or townships to be benefited . . . .
(4) If a special assessment district is proposed under subsection (3), the
township board . . . shall estimate the cost and expenses of the police and fire
motor vehicles, apparatus, equipment, and housing and police and fire protection,
and fix a day for a hearing on the estimate and on the question of creating a
special assessment district and defraying the expenses of the special assessment
district by special assessment on the property to be especially benefited. . . .
This statutory language is ambiguous regarding what expenditures may be defrayed by
special assessment. Reasonable minds could differ on whether the statute authorizes special
assessments for the general operation of a fire department or is limited to the purchase, housing,
and operation of equipment. Indeed, the parties in this case, though both asserting that the
language of the statute is clear and unambiguous, arrive at opposite conclusions about what the
statute actually means. Therefore, judicial construction is warranted to ascertain the
Legislature's intent.
Although the statute is ambiguous, we may not ignore its text as we must "consider both
the plain meaning of the critical word or phrase as well as 'its placement and purpose in the
statutory scheme.'" Sun Valley, supra at 237, quoting Bailey v United States, 516 US 137, 145;
116 S Ct 501; 133 L Ed 2d 472 (1995). We must also presume every word is used for a purpose
and must give effect to every clause and sentence. Pohutski v City of Allen Park, 465 Mich 675,
683-684; 641 NW2d 219 (2002). "The Court may not assume that the Legislature inadvertently
made use of one word or phrase instead of another." Robinson v Detroit, 462 Mich 439, 459;
613 NW2d 307 (2000). Because the Legislature is presumed to know the rules of grammar,
Mayor of Lansing v Public Service Comm, 257 Mich App 1, 14; 666 NW2d 298 (2003), statutory
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language must be read within its grammatical context unless something else was clearly
intended, Sun Valley, supra at 237. Also, parts of a statute must be harmonized to discern and
carry out the intent of the Legislature. Macomb Co Prosecutor v Murphy, 464 Mich 149, 159;
627 NW2d 247 (2001).
Applying these principles to MCL 41.801, we find the basic foundation for the authority
of a township to provide for special assessment in subsection 3: "The township board . . . may
provide that sums prescribed in subsection (2) for purchasing and housing equipment, for the
operation of the equipment, or both, may be defrayed by special assessment . . . ." The
township's interpretation is that subsection 3 authorizes special assessments to defray the cost of
any of the expenditures provided for in subsection 2, including general operating expenses. The
county, on the other hand, argues that subsection 3 only authorizes special assessments for a very
limited part of the expenditures authorized by subsection 2, specifically the component of
maintenance and operation of the department dealing with "purchasing and housing equipment,
for operation of the equipment or both." The county further argues that "operation of
equipment" is not the general use of the equipment; it is the maintenance of the fire department's
equipment.
Although both parties present plausible interpretations of the statute when focusing solely
on subsection 3, the language of the statute as a whole indicates that the Legislature intended to
allow broad use of special assessments to finance township fire departments.
First, subsection 4, laying out the procedure for levying a special assessment, requires
that the township "estimate the cost and expenses of the police and fire motor vehicles,
apparatus, and equipment, and housing and police and fire protection . . . ." Giving the last
phrase, "police and fire protection," its ordinary meaning allows for a broad category of expenses
to be covered by the special assessment and supports the interpretation that special assessment
can cover general operating expenses of the township's fire department. Moreover, MCL 41.802
provides that after the creation of a special assessment district, "the township board . . . may
appropriate annually that sum necessary for the maintenance and operation of the police and fire
departments." The county argues that this provision simply allows a township to allocate funds
from its general budget and is not independent authority to create a special assessment for
ordinary operating expenses of a fire department. But when viewed as a part of the whole act,
this section provides evidence of the Legislature's intent to allow special assessment to support
the general operation of a fire department. Accordingly, with little evidence indicating a
contrary legislative intent, we conclude MCL 41.801 permits a township, with approval of the
electorate, to impose a special assessment to finance the general operation of its fire department.
Next, the county argues that even if the township may use a special assessment to finance
the general operation of its fire department, the levy here would still be void because the
township failed to comply with MCL 41.803, which in turn requires compliance with MCL
41.721 to 41.738. The county points to four procedural defects arising from the alleged failure
to comply with MCL 41.803 and MCL 41.721 to 41.738: (1) failing to assess the special benefit
conferred upon each parcel, (2) failing to provide sufficient notice to each property owner, (3)
failing to describe the proposed improvement for which the assessment is being sought with
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respect to capital improvement taxation, and (4) failing to limit its voter-approved special
assessment to fifteen years.
The township urges and the trial court determined that MCL 41.803 only applies when a
township issues bonds in anticipation of the collection of special assessments as provided in
MCL 41.735. The county argues, to the contrary, that MCL 41.803 incorporates the procedural
requirements of MCL 41.721 to 41.738 into the fire protection act without regard to whether the
township issues bonds. This question is also one of first impression.
Again, we look first to the language of MCL 41.803[1],2 which provides:
All proceedings relating to the making, levying and collection of special
assessments authorized by section 1 and the issuing of bonds, except as otherwise
provided in this act, shall conform as near as practicable to proceedings provided
for townships in Act No. 188 of the Public Acts of 1954, being sections 41.721 to
41.738 of the Michigan Compiled Laws, except that special assessments may be
paid in a number of equal annual installments not exceeding 15, as the board may
determine.
Because reasonable minds could differ about the meaning of this statute, we conclude
that this provision is also ambiguous. Specifically, whether the procedures of MCL 41.721 et
seq. apply to all special assessments under MCL 41.801, or simply those where improvements
are funded by bonds to be repaid by collection of special assessments. Important language here
is, "[a]ll proceedings relating to the making, levying and collection of special assessments
authorized by section 1 and the issuing of bonds." MCL 41.803 (emphasis added). Although the
word "and" denotes a conjunctive relationship between "assessments authorized by section 1"
and "the issuing of bonds," this Court has noted that the common use of the words "or" and
"and" is so frequently inaccurate that it has infected statutory enactments. Auto-Owners Ins Co v
Stenberg Bros, Inc, 227 Mich App 45, 50; 575 NW2d 79 (1997); see also People v Humphreys,
221 Mich App 443, 451-452; 561 NW2d 868 (1997) (the use of the word "or" in this case gave
rise to an ambiguity in the statute because it can be read as meaning either "and" or "or").
Nevertheless, because the words are not interchangeable, we should give them their strict
meaning when their accurate reading does not give the text a dubious meaning, and there is no
clear contrary legislative intent. Auto-Owners, supra at 50-51, citing Esperance v Chesterfield
Twp, 89 Mich App 456, 460-461; 280 NW2d 559 (1979).
While simply reading the word "and" as a conjunctive would dispose of this issue, other
evidence exists to support the conclusion that the Legislature intended the fifteen-year limit of
MCL 41.803 to apply only when a township issues bonds to be paid by special assessments.
2
MCL 41.803 has two paragraphs, the second, denominated as subsection 2, relates to a
township pledging its full faith and credit for the payment of special assessment bonds. The first
paragraph, quoted here, is not, however, denominated as subsection 1.
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First, MCL 41.803 itself provides that that the provisions of MCL 41.721 to 41.738 do not apply
where "otherwise provided in this act," being the fire protection act,3 1951 PA 33, as amended,
MCL 41.801 et seq. The Legislature has provided a separate notice procedure within the fire
protection act. Specifically, MCL 41.801(4) provides in part:
If a special assessment district is proposed under subsection (3), the
township board . . . shall estimate the cost and expenses of the police and fire
motor vehicles, apparatus, equipment, and housing and police and fire protection,
and fix a day for a hearing on the estimate and on the question of creating a
special assessment district and defraying the expenses of the special assessment
district by special assessment on the property to be especially benefited . . . . The
hearing shall be a public meeting held in compliance with the open meetings act,
1976 PA 267, MCL 15.261 to 15.275. Public notice of the time, date, and place
of the meeting shall be given in the manner required by the open meetings act . . .
. In addition the township board . . . shall publish in a newspaper of general
circulation in the proposed district a notice stating the time, place, and purpose of
the meeting. If there is not a newspaper of general circulation in the proposed
district, notices shall be posted in not less than 3 of the most public places in the
proposed district. This notice shall be published or posted not less than 5 days
before the hearing. . . .
If the Legislature intended in MCL 41.803 to incorporate the notice provisions of MCL
41.724a into all special assessments for fire protection, there would be no need to include this
different notice provision. We reach this conclusion because, in contrast to the notice provision
of MCL 41.801(4), MCL 41.724a requires individual notices to property owners delivered by
first class mail and two published notices in a circulating newspaper, one published at least ten
days before the hearing. The construction the county urges would render the notice provision of
MCL 41.801(4) entirely superfluous, violating the rules of construction that require that a court
should, as far as possible, give effect to every phrase, clause, and word in a statute, Sun Valley,
supra at 237, and avoid rendering any part of a statute surplusage or nugatory, Hoste v Shanty
Creek Management, Inc, 459 Mich 561, 574; 592 NW2d 360 (1999).
With regard to the county's argument that the township failed to comply with MCL
41.725 by not determining the special benefit conferred upon each parcel of land, here too, the
fire protection act has its own provision for determining the special benefit:
. . . [I]f the township board, or township boards acting jointly, determine
to create a special assessment district, they shall determine the boundaries by
resolution, determine the amount of the special assessment levy, and direct the
supervisor or supervisors to spread the assessment levy on the taxable value of all
of the lands and premises in the district that are to be especially benefited by the
3
The act applies equally to police protection.
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police and fire protection, according to benefits received . . . to defray the
expenses of police and fire protection. [MCL 41.801(4).]
If the county's construction were accepted, this provision also would be rendered surplusage.
We also find persuasive the fact that the Legislature chose to treat the issue of a township
providing fire protection separately from other township "improvements." The Legislature has,
in 1954 PA 188, as amended, MCL 41.721 to 41.738, authorized the financing by special
assessment the construction, improvement, and maintenance of numerous types of township
improvements. The improvements authorized include storm or sanitary sewers, water systems,
public and private roads, public parks, pedestrian bridges, garbage collection and disposal,
bicycle paths, erosion control structures or dikes, lighting systems, tree planting and removal,
sidewalks, aquatic weed and plant control, bodies of water, dams, and sound barriers. MCL
41.722. Although the Legislature could have added "fire protection" to the list of improvements
authorized in § 2 of the act, the Legislature chose to provide for police and fire protection in its
own separate act. This constitutes further evidence that the Legislature intended that procedures
to establish special assessments for police and fire protection be governed by MCL 41.801 et
seq., unless the township issues bonds, and that the procedures with regards to other township
improvements were not meant to be incorporated into the fire protection act.
Berrien County does not offer any authority or concrete argument in support of its
contention that MCL 41.803 applies to special assessments levied under MCL 41.801 regardless
of whether bonding is involved. Accordingly, for the reasons discussed above, we conclude that
the trial court did not err by construing MCL 41.803 as only requiring compliance with the
procedures of MCL 41.721 et seq. when the township issues bonds. Therefore, because Niles
Township issued no bonds, it was not required to comply with the provisions of MCL 41.803
and by incorporation, MCL 41.721 et seq. Accordingly, the county's arguments that the
township violated the law by failing to assess the special benefit conferred upon each parcel,
failing to provide notice to each property owner, failing to describe the proposed improvement
for which the assessment is being sought with respect to capital improvement taxation, and
failing to comply with the fifteen-year limitation must fail. We agree with the trial court that the
township properly complied with the procedures of the fire protection act and that the act permits
a township-wide special assessment based on taxable value of real property within the township
for the operation of a fire department. St Joseph Twp, supra.
C. Constitutional Issues
Article 9, § 6 of the Michigan Constitution prohibits the "total amount of general ad
valorem taxes imposed upon real and personal property" from exceeding fifteen mills on each
dollar of the assessed valuation of property for any one year, while at the same time authorizing
the increase of up to fifty mills for a period of not to exceed twenty years at any one time, if
approved by a majority of qualified electors in an election for that purpose. Berrien County
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argues that Niles Township's fire protection special assessments are "general ad valorem taxes"
within the meaning of Const 1963, art 9, § 6 and therefore are subject to its twenty-year limit.4
Niles Township argues that its fire protection levies are not "general ad valorem taxes," but
rather "special assessments" not subject to this constitutional provision. The parties do not
dispute that true special assessments are not taxes for the purposes of this constitutional
provision. See Wikman v Novi, 413 Mich 617, 633-634 (Coleman, C.J.), 682-683 n 59 (Levin,
J., dissenting); 322 NW2d 103 (1982), citing Graham v Saginaw, 317 Mich 427; 27 NW2d 42
(1947) (holding special assessments were not taxes within the meaning of tax limitations of
Const 1908, art 10, § 21 comparable to the millage limitations of Const 1963, art 9, § 6).
Therefore, the question before us is whether the fire protection levies here are truly special
assessments or are merely general ad valorem taxes.
"Although it resembles a tax, a special assessment is not a tax." Kadzban v Grandville,
442 Mich 495, 500; 502 NW2d 299 (1993), citing Knott v City of Flint, 363 Mich 483, 497; 109
NW2d 908 (1961). While the purpose of a tax is to raise revenue for general governmental
purposes, the purpose of a special assessment is to defray the costs of specific local
improvements. Kadzban, supra at 500. "'The differences between a special assessment and a tax
are that (1) a special assessment can be levied only on land; (2) a special assessment cannot . . .
be made a personal liability of the person assessed; (3) a special assessment is based wholly on
benefits; and (4) a special assessment is exceptional both as to time and locality.'" Blake v
Metropolitan Chain Stores, 247 Mich 73, 77; 225 NW 587 (1929), quoting 1 Cooley on Taxation
(4th ed), § 31. Also, in general, the amount of the special assessment must bear a reasonably
proportionate relationship to the benefit accruing to the property assessed. Dixon Rd Group v
Novi, 426 Mich 390, 402-403; 395 NW2d 211 (1986); St Joseph Twp, supra at 533.
Without providing authority, the county argues that the operation of a fire department is a
general governmental purpose and, as such, cannot be funded by special assessment. The
township responds by pointing out that because it is not mandatory that a township provide fire
protection, providing fire protection is not a general governmental purpose. Ann Arbor v
Michigan, 132 Mich App 132, 136; 347 NW2d 10 (1984). Moreover, MCL 41.801 specifically
provides for the financing of a fire department through special assessment. We agree that the
statute authorizes financing both capital improvements and the general operation of a township's
fire department by special assessment.
4
The county also vaguely argues the township's fire protection assessment violates the so-called
Headlee Amendment. That constitutional amendment added §§ 25 to 34 to article 9 of
Michigan's Constitution. See generally, Kennedy, The First Twenty Years of the Headlee
Amendment, 76 U Det Mercy L Rev 1031 (1999). We assume the county refers to the rollback
provisions of Const 1963, art 9, § 31, which would apply to general ad valorem taxes unless
approved by the electors for the payment of principal and interest on bonds. Const 1963, art 9, §
6. The parties agree that whether either constitutional provision applies to the township's fire
protection levy depends on whether it is a "tax" or a "special assessment."
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But the county contends that even if special assessments may finance general fire
department operations, the township's special assessments are faulty because there was no
determination regarding the benefit to any particular parcel of property assessed. Instead, the
township specially assessed all real property in the township according to its taxable value. This
argument was addressed and decided by our Supreme Court in St Joseph Twp. There, like the
case at hand, our Supreme Court was asked to determine whether a special assessment for fire
protection on all real property within the township was really a tax. Id. at 532. After noting the
differences between special assessments and taxes by citing Blake, supra at 77, quoting Cooley
on Taxation, the Court held that using the value of the property to determine the benefit was
proper and did not convert what otherwise was a special assessment into a tax. The Court stated,
"we deal here with a special assessment statutorily authorized to provide fire protection . . . [and]
it is difficult to conceive a fairer basis for determination of benefit from the creation of a fire
department than one based upon value." Id. at 533. The Court also held that the special
assessment for fire protection based on property valuation was not a tax because the special
assessment bore a reasonable relationship to value of to the improvement to the property
assessed. Id.
The county argues that St Joseph Twp is distinguishable from the case at bar because in
St Joseph Twp the special assessment was of a limited duration and was intended for the
construction of a building and the purchase of equipment. In light of our conclusion that the
Legislature intended that townships be authorized to finance fire department general operations
through special assessment, the county's attempt to draw a distinction is unavailing. The
difference in the specific length or reason for a special assessment for fire protection does not
affect the important holding in St Joseph Twp that a special assessment does not become a tax
simply because the value of the property assessed was used to determine benefit or because the
assessment was levied upon all real property within the township.
Although the county recognizes that our Supreme Court has not expressly overruled St
Joseph Twp, the county nevertheless argues that its application is limited because the decision
preceded both Michigan's Constitution of 1963 and the Headlee Amendment (1978),5 and the
recent decision of Bolt v City of Lansing, 459 Mich 152; 587 NW2d 264 (1998).
We conclude that the fact that St Joseph Twp predates this state's current Constitution or
the Headlee Amendment of that Constitution diminishes neither its relevance nor its authority.
The case turned not on a detailed analysis of the language of any provision in the Constitution as
it existed then, but simply on the general question of the difference between a special assessment
and a tax. Because nothing in the 1963 Constitution or the Headlee Amendment defines "special
5
See n 4, supra.
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assessment," we also conclude those constitutional changes do not disturb the holding of St
Joseph Twp.6
We also find the county's reliance on Bolt, supra, to be misplaced. In Bolt the city of
Lansing sought to limit pollution resulting when heavy precipitation caused combined storm
water and sanitary sewer systems to overflow. Although seventy-five percent of the city already
had separate systems for storm water runoff and sewage, the city sought to collect a "fee" over a
thirty-year period to pay for a $176 million combined sewer overflow control program. The
question before the Court, not dissimilar to the one at bar, was whether the cost imposed for the
overflow control program was a fee or a tax subject to constitutional limitations, in particular,
did it require approval by the electorate as required by Const 1963, art 9, § 31, part of the
Headlee Amendment. Bolt, supra at 154, 169. Our Supreme Court engaged in an analysis of the
difference between a tax and a fee, concluding that the city was actually imposing a tax;
therefore, approval by the electorate was required by Const 1963, art 9, § 31. The Bolt Court did
not address the difference between a tax and a special assessment. Accordingly, Bolt has little
bearing to the critical question here.
Without any other authority and because both cases are similar factually, we conclude,
like the trial court, that St Joseph Twp, supra, is binding precedent and answers the question
posed here. Soltis v First of America Bank-Muskegon, 203 Mich App 435, 441; 513 NW2d
148 (1994). Therefore, we hold that the levies Niles Township imposes for fire protection are
special assessments. Accordingly, the limitations of Const 1963, art 9, §§ 6 and 31 do not apply
to Niles Township's special assessments for fire protection.
We affirm.
/s/ William B. Murphy
/s/ Jane E. Markey
6
We note that the Headlee Blue Ribbon Commission recommended that the state Legislature
define the terms "tax," "fee," and "special assessment." Headlee Blue Ribbon Commission
Report to Governor John Engler, Executive Summary and § 5, pp 29-31 (1994), cited in Bolt v
City of Lansing, 221 Mich App 79, 90 n 3; 561 NW2d 423 (1997) (Markman J., dissenting).
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