C A KIME INC V VAN BUREN TOWNSHIP
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STATE OF MICHIGAN
COURT OF APPEALS
C.A. KIME, INC.,
UNPUBLISHED
March 3, 2011
Plaintiff-Appellant,
v
TOWNSHIP OF VAN BUREN and COUNTY OF
WAYNE,
No. 295323
Tax Tribunal
LC No. 00-357829
Defendants-Appellees.
Before: MURPHY, P.J., and MURRAY and SHAPIRO, JJ.
PER CURIAM.
Plaintiff appeals as of right an order of the Michigan Tax Tribunal that dismissed
plaintiff’s request to correct the taxable value of certain parcels it owned because the Tribunal
determined that it lacked jurisdiction. Because we hold that the Tax Tribunal properly dismissed
the petition, we affirm.
I. FACTS AND PROCEEDINGS
Plaintiff is a developer of residential subdivisions that purchased several parent parcels in
Van Buren Township over ten years ago. The parcels were subdivided afterwards, which formed
a development known as “Cobblestone Creek.” The subdivision resulted in 104 townhouse lots
and 154 lots for single family homes. The splitting of these parcels began in 2003 and was
completed on May 11, 2005. Before December 31, 2005, plaintiff also completed the installation
of public service improvements, which included access roads, sidewalks, curbs, street lighting,
storm sewer, water, electric, gas, and underground utilities.
On December 31, 2005, defendants determined the 2006 Estimated True Cash Value
(“TCV”) for each of these parcels. The assessments included $13,400 in “additions” for each of
the townhouse lots, and $20,700 in “additions” for each of the single family home lots. At the
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time, defendants relied on MCL 211.34d(1)(b)(viii),1 which allowed for the installation of public
services to count as “additions,” which went towards a property’s taxable value.
On October 3, 2006, this Court, in an unrelated case, determined that MCL
211.34d(1)(b)(viii) was unconstitutional because it was “inconsistent with the meaning of the
term ‘additions’ as established by Proposal A,” which amended the Michigan Constitution. Toll
Northville v Northville Twp, 272 Mich App 352, 376; 726 NW2d 57 (2006), aff’d in part and
vac’d in part 480 Mich 6 (2008).
Plaintiff did not appeal these assessments to the 2006 or 2007 March Boards of Review2,
but instead filed a petition in the Small Claims Division on June 28, 2007, MTT Docket No.
339650, appealing the true cash and taxable values of certain parcels3 for the 2007 tax year.
Plaintiff then appeared at the 2008 July Board of Review, raising for the first time that the 2007
and 2008 assessments were contrary to the Toll Northville holding. Plaintiff claimed that the
July board could hear the matter because assessing under an unconstitutional statute was a
“qualified error” under MCL 211.53b(8). However, the board declined to review the matter
because it viewed the protest as a dispute regarding the assessment, which is not a proper
consideration for the July board.
After the July Board of Review did not act, plaintiff filed its appeal with the Michigan
Tax Tribunal. This petition included all 231 parcels constituting Cobblestone Creek, in addition
to the ones initially enumerated in the small claims petition. The parties entered into settlement
discussions, resulting in a proposed Stipulation for Consent Judgment. However, the Tribunal
denied entry of the proposed consent judgment and dismissed plaintiff’s claim because it
determined that it lacked jurisdiction, holding in part:
1
MCL 211.34d(1)(b): “For taxes levied after 1994, ‘additions’ means . . . all of the following:
***
(viii) Public Services. As used in this subparagraph, ‘public services’ means
water service, sewer service, a primary access road, natural gas service, electrical
service, telephone service, sidewalks, or street lighting. For purposes of
determine the taxable value of real property under section 27a, the value of public
services is the amount of increase in true cash value of the property attributable to
the available public services multiplied by 0.50 and shall be added in the calendar
year following the calendar year when those public services are initially available.
2
The July Board of Review corrects undisputed mistakes of a clerical or typographical nature,
unlike the March Board of Review, which considers the validity of assessments. MCL
211.53b(1), (3); MCL 211.30(1), (4).
3
The parcels included were Nos. 83-114-01-0023-000 through 83-114-01-0092-000.
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The Tribunal also lacks jurisdiction over parcel numbers other than 83-114-010023-000 through 83-114-01-0092-000 for the 2007 and 2008 tax years under
MCL 211.53a, as the facts alleged by petitioner do not establish a prima facie
case that the assessment was the result of a clerical error (i.e., “an error of a
transpositional, typographical, or mathematical nature”) or a mutual mistake of
fact (i.e., “an erroneous belief, which is shared and relied on by both parties”).
See International Place Apartment — IV v Ypsilanti Township, 216 Mich App
104, 109; 548 NW2d 668 (1996); Ford Motor Co v City of Woodhaven, 475 Mich
425, 442; 716 NW2d 247, 256 (2006); Eltel Associates, LLC v City of Pontiac,
278 Mich App 588; 752 NW2d 492 (2008); and Briggs Tax Service, LLC v
Detroit Public Schools, et al, 282 Mich App 29; 761 NW2d 816 (2008) [rev’d 485
Mich 69 (2010)]. Rather, the facts alleged indicate that the subject property’s
2007 and 2008 taxable values were increased as a result of public improvement
additions to the property, pursuant to MCL 211.34d(1)(b)(viii). However, the
increase in the subject properties’ taxable values was not the result of an error of a
transpositional, typographical, or mathematical nature or an erroneous belief
which was shared and relied on by both parties. The facts of this case do not
reveal a mutual mistake as to any material fact in the assessments of parcels 83114-01-0023-000 through 83-114-01-0092-000.
Instead, petitioner and
respondents relied on the authority of MCL 211.34d(1)(b)(viii), which was later
held unconstitutional.
In a follow-up to the last point made in the above quote, the Tribunal noted that prior to “the
Supreme Court’s decision in Toll-Northville, supra, respondent was required by law to add
public service improvements to a property’s taxable value under MCL 211.34d(1)(b)(viii).”
II. ANALYSIS
While recognizing that the “traditional” means of appealing residential property
assessments is to protest before the local board of review in March, and to appeal to the Tribunal
by July 31 if the initial protest was unsuccessful, plaintiff argues that the “traditional” way is not
the only way to invoke the Tribunal’s jurisdiction. Instead, plaintiff argues that the Tribunal
erred in not acknowledging plaintiff’s ability to appeal the 2007 and 2008 assessments under
MCL 211.53b, and by analyzing a statutory provision irrelevant to this case, MCL 211.53a.
The subject-matter jurisdiction of the Tax Tribunal is set by statute, Nicholson v
Birmingham Bd of Review, 191 Mich App 237, 239-240; 477 NW2d 492 (1991), and so raises a
question of law, which is reviewed de novo. See Trostel, Ltd v Dep’t of Treasury, 269 Mich App
433, 440; 713 NW2d 279 (2006); Calabrese v Tendercare of Mich, Inc, 262 Mich App 256, 259;
685 NW2d 313 (2004).
Pursuant to the Tax Tribunal Act, MCL 205.701 et seq., the Tax Tribunal has exclusive
jurisdiction to decide various property-tax matters based either on the subject matter of the
proceeding or the type of relief requested. In re Petition of Wayne Co Treasurer for
Foreclosure, 286 Mich App 108, 110-111; 777 NW2d 507 (2009), citing Wikman v City of Novi,
413 Mich 617, 631; 322 NW2d 103 (1982). The general statutory timeframe for challenging
assessments after December 31, 2006, is MCL 205.735a. That provision states, in relevant part,
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that the taxpayer must first protest to the local board of review before the Tribunal can acquire
jurisdiction from the filing of a petition on or before July 31 of the tax year involved:
(1) The provisions of this section apply to a proceeding before the tribunal that is
commenced after December 31, 2006.
***
(3) Except as otherwise provided in this section or by law, for an assessment
dispute as to the valuation or exemption of property, the assessment must be
protested before the board of review before the tribunal acquires jurisdiction of
the dispute under subsection (6).
***
(6) The jurisdiction of the tribunal in an assessment dispute as to property
classified under section 34c of the general property tax act, 1893 PA 206, MCL
211.34c, as commercial real property, industrial real property, developmental real
property, commercial personal property, industrial personal property, or utility
personal property is invoked by a party in interest, as petitioner, filing a written
petition on or before May 31 of the tax year involved. The jurisdiction of the
tribunal in an assessment dispute as to property classified under section 34c of
the general property tax act, 1893 PA 206, MCL 211.34c, as agricultural real
property, residential real property, timber-cutover real property, or agricultural
personal property is invoked by a party in interest, as petitioner, filing a written
petition on or before July 31 of the tax year involved. [Emphasis added.]
The time periods set forth in this statute are jurisdictional, so the failure to meet them usually
deprives the Tribunal from taking any action, other than entry of an order of dismissal, on a
petition. See W A Foote Mem Hosp v City of Jackson, 262 Mich App 333, 338; 686 NW2d 9
(2004). We say “usually” because there are two statutory exceptions that allow the Tribunal to
hear a petition that is otherwise barred by MCL 205.735a, those being MCL 211.53a and MCL
211.53b.
Here, there is no dispute that plaintiff did not file a petition with the Tribunal by either
July 31 of 2007 or July 31 of 2008, and therefore the Tribunal had no jurisdiction under MCL
205.735a(3) and (6). Recognizing this, plaintiff argues that MCL 211.53b4 gave the Tax
4
Although the Tribunal discussed MCL 211.53a in its order dismissing the petition, plaintiff
argues that it never invoked MCL 211.53a in the Tribunal, and makes no argument to this Court
that it applies. Hence, we only need address MCL 211.53b.
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Tribunal the authority to hear its appeal of the July Board of Review’s actions. MCL 211.53b
stated at the time,5 in relevant part:
(1) If there has been a qualified error, the qualified error shall be verified by the
local assessing officer and approved by the board of review . . . . [A] correction
under this subsection may be made in the year in which the qualified error was
made or in the following year only.
***
(8) As used in this section, “qualified error” means 1 or more of the following:
(a) A clerical error relative to the correct assessment figures, the rate of
taxation, or the mathematical computation relating to the assessing of taxes.
(b) A mutual mistake of fact.
(c) An adjustment under section 27a(4) or an exemption under section
7hh(3)(b).
(d) For board of review determinations in 2006 through 2009, 1 or more of the
following:
(i) An error of measurement or calculation of the physical dimensions or
components of the real property being assessed.
(ii) An error of omission or inclusion of part of the real property being
assessed.
(iii) An error regarding the correct taxable status of the real property being
assessed.
(iv) An error made by the taxpayer in preparing the statement of
assessable personal property under section 19. [Emphasis added.]
Plaintiff invokes MCL 211.53b(8)(d)(ii) as the sole basis6 for granting jurisdiction to the
Tax Tribunal, arguing that since the entire dispute revolves around defendants erroneously
5
MCL 211.53b was amended in 2010, but this is the version that existed at the time.
6
The briefs filed with this Court confirm the fact that plaintiff has only argued to this Court that
the “qualified error” applicable to this case is that found within MCL 211.53b(8)(d)(ii).
Allegations of an error regarding the correct taxable status of the real property and “other
qualified errors” were made in the petition to the entire tribunal, though without citation to MCL
211.53b(8)(d)(i) and (iii).
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assessing the property based on unconstitutional measures, it is necessarily an “error of . . .
inclusion.”
When interpreting a statute, the primary concern is to discern and give effect to the intent
of the Legislature. Shinholster v Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d 275
(2004). In ascertaining legislative intent, this Court must consider both the plain meaning of the
critical words or phrases, as well as their placement and purpose in the statutory scheme. Green
v Ziegelman, 282 Mich App 292, 302; 767 NW2d 660 (2009). Additionally, the subsections of a
statute “are not to be read discretely, but as part of a whole.” In re Sprint Communications Co,
LP, 277 Mich App 311, 313; 745 NW2d 520 (2007).
There are two obstacles prohibiting us from accepting plaintiff’s argument. First, the
assessing bodies did not err when they assessed the property on December 31, 2005, as having a
higher value because of the presence of public improvements.
At the time, MCL
211.34d(1)(b)(viii) was a valid statute, and it permitted taxing authorities to increase the taxable
value of real property because of the installation of public service improvements on or near the
property. This particular section was not declared unconstitutional until October 3, 2006, in Toll
Northville, Ltd, 272 Mich App at 352.7 Thus, there can be no dispute that there was no “error”
when the public service improvements were factored into the taxable value of plaintiff’s
properties in 2006. Since there was no “error,” let alone a “qualified error,” the Tax Tribunal
lacked jurisdiction under MCL 211.53b.
Second, we also reject plaintiff’s argument that including the public improvements under
MCL 211.34d(1)(b)(viii) constituted “an error of … inclusion of part of the real property being
assessed.” MCL 211.53b(8)(d)(ii). This plain statutory language requires that the error relate to
the inclusion of a part of the real property that would occur, for instance, when the taxing
authority accidentally omitted or included a part of the real property being assessed. Yet, in Toll
Northville the Court recognized that in the context of Proposal A, “public-service improvements
are not physically located on the residential property to be taxed.” Toll Northville, 480 Mich at
15. Consequently, the public service improvements were not an error of “inclusion” of part of
the real property because they are not, and never were, erroneously made a part of the real
property being taxed. Because any error that occurred was not described by MCL 211.53b(8),
the Tax Tribunal lacked jurisdiction, and plaintiff’s argument fails.
Accordingly, the Tax Tribunal’s dismissal of the case was appropriate, and we need not
consider plaintiff’s other issues since they are moot. We note that the Tribunal’s declarations
outside of its jurisdictional analysis, including its analysis of the retroactive-prospective
application of the cases holding MCL 211.34d(1)(b)(viii) unconstitutional, was void since such
7
The Tribunal did err, however, in failing to recognize this Court’s 2006 Toll Northville decision
as the time from which such assessments were unconstitutional. Even if an application is filed
with the Supreme Court, a published opinion of this Court is binding on the Tribunal unless and
until the Supreme Court reversed the decision or otherwise rules to the contrary. See MCR
7.215(C)(2); Straman v Lewis, 220 Mich App 448, 451; 559 NW2d 405 (1996).
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analysis was unnecessary to any that was needed for resolving the jurisdictional question. See
Kasberg v Ypsilanti Twp, 287 Mich App 563, 566; 792 NW2d 1 (2010) (“[A]ny actions of a
court regarding a matter over which it lacks jurisdiction are void.”).8
Affirmed.
/s/ William B. Murphy
/s/ Christopher M. Murray
/s/ Douglas B. Shapiro
8
In its reply brief plaintiff argues that the result of the Tribunal’s holding, and defendants’
argument in support of that holding, deprived it of several constitutional rights. However, we do
not entertain new arguments raised for the first time in a reply brief. Curry v Meijer, 286 Mich
App 586, 596 n 5; 780 NW2d 603 (2009). Plaintiff had ample opportunity to raise these
constitutional issues in its principal brief of appeal.
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