LARRY L AUGE V TOWNSHIP OF DELTA
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STATE OF MICHIGAN
COURT OF APPEALS
LARRY L. AUGE,
UNPUBLISHED
July 26, 2011
Petitioner-Appellant,
v
No. 297241
Tax Tribunal
LC Nos. 00-355238; 00-355241;
00-355243; 00-355245
00-355249; 00-355255;
00-355287; 00-355292;
00-355294; 00-355297
TOWNSHIP OF DELTA,
Respondent-Appellee.
Before: WHITBECK, P.J., and MARKEY and K. F. KELLY, JJ.
PER CURIAM.
Petitioner Larry Auge appeals as of right from a final judgment of the Tax Tribunal,
which adopted a hearing referee’s determinations of the true cash values and taxable values of
Auge’s properties for tax years 2008 and 2009. We affirm.
I. FACTS
Auge owns several vacant lots that are intended for development. In 2004, public-service
improvements were made to the parcels, and the value of those improvements was used to
increase the taxable values of the properties, as MCL 211.34d(1)(b)(viii) then permitted.
However, in 2008, the Michigan Supreme Court held in Toll Northville, Ltd v Northville Twp1
that MCL 211.34d(1)(b)(viii) was unconstitutional because public-service improvements do not
constitute “additions” to property within the meaning of Const 1963, art 9, § 3, as amended by
Proposal A. Auge thereafter challenged his tax assessments for tax years 2008 and 2009. The
Tax Tribunal ruled that it did not have jurisdiction to review the 2004 taxable values and that the
taxable values for 2008 and 2009 could not be changed based on the allegedly improper
adjustments made in 2004. Auge now appeals.
1
Toll Northville, Ltd v Northville Twp, 480 Mich 6, 8-9; 743 NW2d 902 (2008).
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II. TAX TRIBUNAL DECISION
A. STANDARD OF REVIEW
The standard of review of Tax Tribunal cases in multifaceted. If fraud is
not claimed, this Court reviews the Tax Tribunal’s decision for misapplication of
the law or adoption of a wrong principle. We deem the Tax Tribunal’s factual
findings conclusive if they are supported by “competent, material, and substantial
evidence on the whole record.” But when statutory interpretation is involved, this
Court reviews the Tax Tribunal’s decision de novo.[2]
B. JURISDICTION
We agree that the Tax Tribunal did not have jurisdiction to change the 2008 and 2009
taxable values where those values were initially reflected in adjustments made in 2004, and the
time for filing an appeal of the 2004 taxable values had passed.3 This Court has recently made
clear that the Tax Tribunal “lacks jurisdiction to indirectly review the accuracy of a property’s
taxable value in a year not under appeal notwithstanding that such value is used as a starting
point to calculate the property’s taxable value in a year properly under appeal.”4
Although respondent Delta Township contends that Toll Northville should not be applied
retroactively, it is unnecessary for us to determine the retroactive effect of Toll Northville in this
appeal. Even if we were to hold that Toll Northville should be given retroactive effect, given that
the Tax Tribunal did not have jurisdiction to review the 2004 taxable values, Toll Northville
cannot be used to provide relief in this appeal of the 2008 and 2009 property tax assessments
based on an adjustment in the taxable values of the properties in 2004.
C. LOSS OF PROPERTY
Auge argues that the decision in Toll Northville resulted in the public-service
improvements constituting a loss of property, which can be removed from the taxable values
pursuant to MCL 211.34d(1)(h)(i) for tax years 2008 and 2009. Again, without deciding the
retroactive effect of Toll Northville, we conclude that Auge has not shown that the public-service
improvements were actually parts of his properties that were “removed.” Auge does not cite any
2
Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 75; 780 NW2d 753 (2010) (citations
omitted).
3
MCL 205.735(2); Leahy v Orion Twp, 269 Mich App 527, 530-531; 711 NW2d 438 (2006).
4
MJC/Lotus Group v Township of Brownstown, ___Mich App ___; ___ NW2d ___ (Docket
Nos. 295732, 296499 & 301043, issued May 31, 2011).
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authority to support his proposition5 that when a statute allowing certain improvements to qualify
as “additions” to increase the taxable value of property is subsequently determined to be
unconstitutional, those additions can be removed from taxable value as a loss pursuant to MCL
211.34d(1)(h)(i). Accordingly, Auge’s argument—that the value attributable to the publicservice improvements could be removed from the taxable values as a loss pursuant to MCL
211.34d(1)(h)(i)—is without merit.
D. UNIFORM TAXATION
Auge further attacks his property assessments on the ground that Delta Township failed
to adhere to the principle of uniform taxation, contrary to Const 1963, art 9, § 3. Initially, we
disagree with Delta Township’s argument that this issue is beyond the Tax Tribunal’s
jurisdiction because it involves a constitutional claim. The Tax Tribunal has “exclusive and
original jurisdiction” over proceedings involving “direct review of a final decision, finding,
ruling, determination, or order of an agency relating to assessment, valuation, rates, special
assessments, allocation, or equalization, under the property tax laws of this state.”6 As Delta
Township correctly observes, the tribunal does not have jurisdiction to determine constitutional
questions or to hold statutes unconstitutional.7 But this limitation on review does not prevent the
tribunal from considering claims (although couched in constitutional terms) regarding whether
an assessment was arbitrary or without foundation.8 Here, Auge’s argument does not involve the
validity of a statute, but rather whether Delta Township acted in accordance with the law
requiring uniform taxation when assessing property. Such a claim is not beyond the Tax
Tribunal’s jurisdiction.9 Nevertheless, we find no merit to Auge’s argument.
Const 1963, art 9 § 3, requires “uniform general ad valorem taxation of real and personal
property[.]” The controlling principle is that similarly situated taxpayers must be treated
equally.10 Auge argues that Delta Township violated this principle because it admitted that, after
the decision in Toll-Northville, it no longer included public-service improvements as additions
for purposes of determining taxable value, as it had done before. This alleged admission does
not establish that similarly situated taxpayers were treated differently. When Auge’s properties
were assessed in 2004, MCL 211.34d(1)(b)(viii) mandated that “additions” include publicservice improvements. In contrast, after Toll Northville was decided, Delta Township was bound
5
See Davenport v Grosse Pointe Farms Bd of Zoning Appeals, 210 Mich App 400, 405; 534
NW2d 143 (1995) (stating that this Court will not search for authority to sustain or reject a
party’s position).
6
MCL 205.731(a).
7
Wikman v City of Novi, 413 Mich 617, 646-647; 322 Mich 103 (1982).
8
Id. at 647; Meadowbrook Village Assoc v City of Auburn Hills, 226 Mich App 594, 597 (1997).
9
See Wikman, 413 Mich at 647.
10
Edward Rose Bldg Co v Independence Twp, 436 Mich 620, 640; 462 NW2d 325 (1990).
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to follow that decision, which held that MCL 211.34d(1)(b)(viii) was unconstitutional. Thus,
public-service improvements could no longer be considered “additions” for the purpose of
adjusting the taxable value of property. Because the legal status of taxpayers before and after the
Toll Northville decision was different, they were not similarly situated. Accordingly, there is no
merit to this issue.
E. TRUE CASH VALUE AND TAXABLE VALUE DETERMINATIONS
Auge challenges the determinations of the true cash values and taxable values for his
properties for 2008 and 2009. The burden was on Auge to establish the true cash value of his
properties.11 The Tax Tribunal adopted the true cash values and taxable values that the hearing
referee determined, who in turn relied on the parties’ testimony and documentary evidence that
included a market analysis of the properties and an appraisal report of nearby property. Auge
does not directly challenge any of this evidence, nor does he contend that the true cash values of
the parcels are actually different from the assessed values. Instead, he merely again argues that it
was improper for the Tax Tribunal to consider the earlier public-service improvements in
determining the taxable values of his properties for 2008 and 2009.
As Auge recognizes, Proposal A limits tax increases on property as long as the same
party continues to own it, even if the market value of the property increases at a greater rate,
subject to permitted adjustments for “additions” without regard to this cap.12 Auge’s challenge
to his property tax assessments for 2008 and 2009 is based solely on the argument that it was
improper to consider the public-service improvements in 2004 as “additions” for purposes of
adjusting the taxable values of his properties. As previously explained, however, MCL
211.34d(1)(b)(viii) permitted the adjustments to the taxable values of the properties for the
public-service improvements in 2004, and Auge is not entitled to challenge those adjustments in
this appeal involving tax years 2008 and 2009. Auge does not otherwise challenge the
competency of the evidence on which the Tax Tribunal relied to determine the true cash values
and taxable values of his properties for tax years 2008 and 2009. Accordingly, Auge has shown
no error.
We affirm.
/s/ William C. Whitbeck
/s/ Jane E. Markey
/s/ Kirsten Frank Kelly
11
MCL 205.737(3).
12
Klooster v City of Charlevoix, 488 Mich 289, 296-297; 795 NW2d 578 (2011); WPW
Acquisition Co v City of Troy, 466 Mich 117, 119; 643 NW2d 564 (2002).
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