Karen Spranger v. City of Warren ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
KAREN SPRANGER, UNPUBLISHED
March 12, 2015
Petitioner-Appellant,
v No. 319273
Michigan Tax Tribunal
CITY OF WARREN, LC No. 00-449782
Respondent-Appellee.
Before: JANSEN, P.J., and METER and BECKERING, JJ.
PER CURIAM.
Plaintiff appeals as of right an order denying her a Principal Residence Exemption (PRE)
for the 2012 tax year in this residential property tax action. We affirm.
Petitioner owns residential property located at 7520 Hudson, in respondent City of
Warren. Petitioner filed a PRE affidavit on December 16, 2011, claiming that she had lived at
the subject address since 2001, and respondent initially granted her an exemption for the 2012
tax year. However, on February 6, 2013, respondent ultimately denied petitioner’s request for a
PRE for 2012, finding that she did not occupy the property. Petitioner timely appealed that
denial to the Michigan Tax Tribunal (MTT).
After a hearing, the MTT referee issued a proposed opinion and judgment dated
September 13, 2013, which recommended that the subject property not be entitled to a PRE
under MCL 211.7cc. The referee found that water usage is considered a reliable and reasonable
indicator for determining occupancy of a residence and noted that water records for the property
showed that the minimum chargeable amount of water was never exceeded from January 2008
through June 2012. The referee found petitioner’s explanation that she conserves water and uses
alternative water sources to be unpersuasive. The referee also found that petitioner failed to
submit utility bills or other reliable evidence to support her contention that she had occupied the
subject property as her principal residence.
Petitioner filed exceptions to the referee’s proposed opinion, arguing that there was
evidence that neighbors saw her residing in the home, that all of her personal property was in the
residence, that the absence of water usage was due to a dispute concerning the city’s metering
protocol, and that she had provided corroborative testimony of other utilities used in the home.
The tribunal judge considered petitioner’s exceptions but noted that exceptions are limited to
evidence submitted before or at the hearing and that he would not consider new evidence. On
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November 6, 2013, the tribunal judge adopted the referee’s proposed opinion and entered a final
opinion and judgment finding that petitioner had failed to prove by a preponderance of the
evidence that she was entitled to an exemption. Petitioner now appeals that final opinion and
judgment.
As stated in Briggs Tax Serv, LLC v Detroit Pub Sch, 485 Mich 69, 75; 780 NW2d 753
(2010):
The standard of review of Tax Tribunal cases is 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. [Citations omitted.]
A petitioner must establish entitlement to a statutory exemption by a preponderance of the
evidence. ProMed Healthcare v City of Kalamazoo, 249 Mich App 490, 495; 644 NW2d 47
(2002).
The entitlement to a PRE is governed by statute. MCL 211.7cc(1) provides that “[a]
principal residence is exempt from the tax levied by a local school district for school operating
purposes . . . .” MCL 211.7dd(c) defines a “[p]rincipal residence” as “the 1 place where an
owner of the property has his or her true, fixed, and permanent home to which, whenever absent,
he or she intends to return and that shall continue as a principal residence until another principal
residence is established. . . .” A property owner claiming a PRE is required to file an affidavit
with the local taxing authority attesting that the property is owned and occupied as a principal
residence. MCL 211.7cc(2).
Petitioner argues that the record supported a finding that 7520 Hudson was her primary
residence and thus she was entitled to a PRE. However, petitioner failed to provide competent,
material, and substantial evidence to prove by a preponderance of the evidence that she actually
occupied 7520 Hudson as her one true, fixed, and permanent home for the period at issue as
required to receive a PRE.
In James F Roberts v Twp of West Bloomfield, unpublished opinion per curiam of the
Court of Appeals, issued May 10, 2012 (Docket No. 303098), slip op at 1, the petitioner, James
Roberts, owned residential property that he used as rental property. After his tenants vacated the
subject property, Roberts sought to claim the property as his principal residence and sought a
PRE. Id. In arguing against a PRE, the respondent township relied on photographic evidence
that showed that the residence’s yard had not been cleaned, that the residence lacked window
treatments, and that there was a “paucity of furnishings.” Id. at 2. “Most importantly, the
respondent established that Roberts did not utilize water or sewage services from September
2007 through May 2009.” Id. at 4. The Court reasoned:
On appeal, Roberts contends that “[t]here are a myriad number of reasons why
someone occupying a residence may not use water, including, but not limited to,
bottled drinking water, showering at a health club, not watering grass, not
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cooking, etc.” We find Roberts’ claim patently ridiculous. It is incredible that a
person could live in a home for 20 months without using the bathroom facilities or
turning on the kitchen sink, let alone the myriad other reasons a residential
customer must utilize water and sewage services. [Id. at 5.]
Finally, while the Court acknowledged that Roberts presented documents that usually help to
indicate residency (such as his driver’s license, voter registration card, and tax returns listing the
subject property as his address), those documents were deemed inadequate in light of the other
evidence presented that indicated that no one, including Roberts, occupied the subject property.
Id.
The Roberts ruling is instructive here. While an unpublished opinion does not provide
binding precedent, it can be used as persuasive analysis. See In re Application of Indiana
Michigan Power Co, 275 Mich App 369, 380; 738 NW2d 289 (2007); see also Tomiak v
Hamtramck School District, 426 Mich 678, 698-699; 397 NW2d 770 (1986). Petitioner attempts
to distinguish Roberts from her case because her property was never rented to tenants and had
indications of occupancy such as the presence of personal possessions and lawn maintenance.
However, the “most important[]” determining factor of occupancy set forth in Roberts was water
and sewer usage, Roberts, unpub op at 4, and petitioner here had extremely little water usage at
the subject property and no proof of an alternative water source or a reasonable explanation
about the lack of water usage. Petitioner’s claim that she “live[s] a spartan existence” and her
arguments relating to the installation of a “smart meter”1 failed to counter the inference of a lack
of occupancy due to lack of water usage.
We note that, although respondent did primarily rely on petitioner’s lack of water usage
in denying the PRE, it also presented evidence that petitioner only registered to vote in
respondent city on July 6, 2011, and the registration showed her as having moved to the city
from an address in Clinton Township. This information was pertinent to petitioner’s credibility
because petitioner had previously claimed to have lived at the subject property during the period
she was registered to vote in Clinton Township. With regard to petitioner’s “rewards” cards
purportedly listing the subject property as her address, we note that copies of the cards were not
made part of the record, the criteria for supplying an address were not submitted, and the dates of
issuance were not supplied. Thus, those cards did nothing to establish petitioner’s occupancy of
the subject property, and none of petitioner’s remaining evidence proved by a preponderance of
the evidence that she actually occupied 7520 Hudson as her one true, fixed, and permanent home
for the period at issue as required to receive a PRE.
The MTT’s decision was based on competent, material, and substantial record evidence,
and thus the MTT acted within its authority when denying the PRE.
1
Petitioner’s water was turned off because she objected to the installation of a “smart water
meter” by respondent. We note that this shutoff did not occur until the autumn of 2012, after the
observed usage of very small amounts of water.
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Affirmed.
/s/ Kathleen Jansen
/s/ Patrick M. Meter
/s/ Jane M. Beckering
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