Oak Park Crown Pointe LLC v. City of Oak Park ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
OAK PARK CROWN POINTE, LLC, UNPUBLISHED
December 12, 2019
Petitioner-Appellant,
v No. 345819
Tax Tribunal
CITY OF OAK PARK, LC No. 2018-003490
Respondent-Appellee.
Before: SWARTZLE, P.J., and MARKEY and REDFORD, JJ.
PER CURIAM.
Petitioner Oak Park Crown Pointe, LLC, appeals as of right the Michigan Tax Tribunal’s
(MTT) opinion and order granting respondent summary disposition of petitioner’s appeal of
respondent’s 2018 property tax assessment of petitioner’s commercial property. We reverse.
I. FACTS
During 2017, petitioner purchased commercial property including an office building in
Oak Park. Before the purchase, for the 2017 tax year, the subject property had a true cash value
(TCV) of $3,932,000 and a taxable value (TV) of $1,966,000. After the purchase, in July 2018,
petitioner received a summer tax bill stating that the property had a TCV of $9,851,800 and an
assessed value (AV) of $4,925,900. Consequently, on July 25, 2018, petitioner filed a petition
with the MTT alleging that the 2018 summer tax bill represented an increase of more than 150%
in the property’s TCV and that the valuation method respondent used for its property differed
from the valuation method used for all other commercial properties within the city. Petitioner
alleged that the 2018 assessment and the taxes levied and collected were invalid and unlawful
under MCL 211.27, and that the 2018 assessment violated petitioner’s “constitutional rights to
uniformity, equal protection, and due process of law.” Petition requested that the MTT enter an
order reducing the TCV to $4,128,600, reducing the state equalized value (SEV) and the TV to
$2,064,300, and requiring a refund “attributable to such reductions, plus interest and costs.”
Petitioner asserted that it never received a 2018 notice of assessment for the property and
did not learn of the increase in valuation until it received the summer tax bill after July 1, 2018.
Petitioner argued that it timely appealed to the MTT because it filed its petition within 35 days of
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receipt of its summer tax bill. It also argued that the MTT had jurisdiction under state and
federal constitutional due process and equal protection principles.
Respondent answered the petition by admitting that it increased the subject property’s
value but denied the allegations that the valuation method differed from the method employed to
value other properties having the same classification and it denied that the valuation method
violated directives of the State Tax Commission. Respondent asserted that it sent petitioner
notice of the 2018 assessment on February 18, 2018, making petitioner’s appeal untimely
warranting dismissal.
Respondent also moved for summary disposition under MCR 2.116(C)(4) and MCR
2.116(C)(10). It asserted that petitioner failed to submit documentation to the MTT showing that
it did not receive notice of the 2018 assessment. Respondent claimed that it provided petitioner
notice on February 26, 2018, and attached as an exhibit a copy of an undated Amended Notice of
Assessment, Taxable Valuation, and Property Classification that specified March 13, 2018 as the
date by which petitioner had to contact the assessor’s office to appeal. The exhibit included one
United States Postal Service mailing group summary USPS Form 3600-R that indicated that a
company named Kent Communications, Inc. (KCI) did a bulk mailing of approximately 118,658
pieces. The document had a handwritten note stating that it served as proof of mailing of “Real”
and identified several municipalities including respondent. The exhibit also included another
mailing group summary USPS Form 3600-R that indicated that KCI bulk mailed another 15,000
pieces. The document had a handwritten note stating that it served as proof of mailing
“Personal: All Communities Except Kazoo, NV.” The unsigned summaries did not specify any
addresses to which any of the pieces were mailed.
Respondent also attached as an exhibit to its motion an affidavit of Joseph Wujkowski,
the CEO of KCI, in which he averred that the company performed mailing services for 300
municipalities in Michigan to mail among other things tax bills and assessments. He stated that
KCI worked with WCA Assessing to print and mail assessment change notices for municipalities
including respondent. Wujkowski attested that KCI printed and mailed 10,316 real property
assessment notices for respondent on February 23, 2018, and declared that it had a proof of
mailing that included mailing items for respondent in a USPS 3602 Form document.
Wujkowski’s affidavit did not attach a copy of such document.
Respondent asserted in its motion that, under MCL 205.735a(6), to invoke the
jurisdiction of the MTT respecting an assessment dispute, a party had to file its petition by May
31 of the tax year involved. Respondent stated that petitioner failed to timely file its petition and
thereby failed to timely invoke the MTT’s jurisdiction, and no genuine issue of fact existed in
that regard. In its supporting brief, respondent argued that MCL 205.735a(6) specified the
deadline by which a petitioner could file an assessment dispute and failure to comply with the
deadline resulted in the MTT lacking jurisdiction to consider the petition. Respondent asserted
that petitioner filed its petition five months after the deadline, requiring dismissal of the petition.
Petitioner opposed respondent’s motion and relied on affidavits of three individuals:
Kelly Ross, a financial administrator for Commercial Financial Management (CFM), the
company that managed the subject property; Garrett Middlekauf, CFM’s Vice President of
Operations; and Karen Cubba, another financial administrator for CFM. Petitioner asserted that
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it timely filed its appeal on July 25, 2018, because it filed within 35 days of receiving notice of
the 2018 assessment which the summer tax bill first provided.
Ross attested in her affidavit that CFM managed the subject property located at 25900
Greenfield Road, Oak Park, Michigan. She stated that she worked at CFM’s offices located at
320 Martin St, Suite 200, Birmingham, Michigan, and had the sole responsibility for the subject
property, including receiving and opening all mail regarding it. She attested that during the last
two weeks of February 2018 and the month of March 2018, she worked in the office during
business days and she did not receive a notice of assessment for the 2018 tax year for the subject
property. She averred that she first learned of respondent’s 2018 assessment for the subject
property in July 2018 when the summer tax bill arrived, which caused her to immediately inform
Middlekauf of the amount and together they determined that the subject property’s SEV and TV
had been increased to $4,925,900, resulting in additional annual taxes of over $200,000.
Middlekauf similarly attested in his affidavit that he worked at CFM’s offices during
February and March 2018 and he did not receive a notice of assessment for the subject property.
He averred that he only learned of the assessment when Ross showed him the July 2018 summer
property tax bill for the subject property. Cubba attested in her affidavit that she worked in
CFM’s office and that Ross had responsibility to receive and open mail regarding the subject
property. She averred that she did not recall the CFM office receiving a notice of assessment for
the 2018 tax year, and if she had, she would have immediately given it to Ross.
Petitioner asserted in its opposition brief that it never received the notice respondent
claimed that it sent and that respondent failed to prove that it mailed the notice. Petitioner
contended that, even if a taxpayer fails to file by the statutory deadline, our Supreme Court and
this Court have held that a taxpayer remains entitled to have its appeal heard to afford due
process and not deprive the taxpayer of its constitutional right. Petitioner argued that MCL
205.735a is not a jurisdictional statute, and even if it is, due process required respondent to
provide petitioner notice. Petitioner asserted that the affidavits on which it relied rebutted the
presumption that it received notice of the assessment. It argued that Wujkowski’s affidavit failed
to affirmatively state that KCI included and mailed the notice of assessment for the subject
property with the bulk mailing, and Wujkowski could not establish that he had personal
knowledge that the notice had been mailed to petitioner. Petitioner contended that, when a
petitioner is denied due process because the taxing authority failed to provide notice of an
assessment, the MTT may hear the petitioner’s claims even if not timely filed under MCL
204.735a(6).
The MTT treated respondent’s MCR 2.116(C)(4) motion as one brought under (C)(7)
stating a statute of limitations defense and granted the motion. The MTT stated that
Wujkowski’s affidavit established that the notice of assessment had been mailed as prescribed
under MCL 211.24c. The MTT concluded that petitioner failed to establish an issue of fact that:
(1) Respondent had knowledge that the first mailing was not received and failed
to take reasonable steps to notify Petitioners, (2) the notice was undeliverable or
untimely mailed, (3) Respondent used an inadequate substitute to provide notice
when personal notice by mail was possible, or (4) Respondent failed to use
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Petitioners’ last known address when said address existed in Respondent’s
records.
The MTT found that no dispute of fact existed whether respondent sent the notice and that
petitioner failed to timely file its petition as required under MCL 205.735a.
II. STANDARDS OF REVIEW
This Court generally limits its appellate review of MTT decisions. Columbia Assoc, LP v
Dep’t of Treasury, 250 Mich. App. 656, 665; 649 NW2d 760 (2002). In Briggs Tax Serv, LLC v
Detroit Pub Sch, 485 Mich. 69, 75; 780 NW2d 753 (2010) (quotation marks and citations
omitted), our Supreme Court explained the standards applicable to review of MTT decisions:
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.
We also review de novo the grant or denial of a motion for summary disposition.
Proper statutory interpretation requires giving effect to the intent of the Legislature. Id. at
76. If the language is clear and unambiguous, the plain meaning of the statute reflects the
legislative intent and judicial construction is not permitted. Univ’l Underwriters Ins Group v
Auto Club Ins Ass’n, 256 Mich. App. 541, 544; 666 NW2d 294 (2003). Clear and unambiguous
language in a statute establishes the intent of the Legislature, which this Court then effectuates as
written. Lash v Traverse City, 479 Mich. 180, 187; 735 NW2d 628 (2007). “Terms used in a
statute must be given their plain and ordinary meaning, and it is appropriate to consult a
dictionary for definitions.” EldenBrady v Albion, 294 Mich. App. 251, 254-255; 816 NW2d 449
(2011). “Judicial construction of a statute is only permitted when statutory language is
ambiguous,” and ambiguity exists “only if it creates an irreconcilable conflict with another
provision or it is equally susceptible to more than one meaning.” Noll v Ritzer (On Remand),
317 Mich. App. 506, 511; 895 NW2d 192 (2016). Courts “may read nothing into an unambiguous
statute that is not within the manifest intent of the Legislature as derived from the words of the
statute itself.” Snead v John Carlo, Inc, 294 Mich. App. 343, 355; 813 NW2d 294 (2011).
“In reviewing a motion for summary disposition under MCR 2.116(C)(7), a court
considers the affidavits, pleadings, and other documentary evidence presented by the parties and
accepts the plaintiff’s well-pleaded allegations as true, except those contradicted by documentary
evidence.” McLean v City of Dearborn, 302 Mich. App. 68, 72-73; 836 NW2d 916 (2013).
Documentary evidence must be viewed in a light most favorable to the nonmoving party.
Moraccini v City of Sterling Hts, 296 Mich. App. 387; 822 NW2d 799 (2012). When the motion
is premised on a statute of limitations, if affidavits and other documentary evidence show that
there is no genuine issue of material fact concerning the running of the statutory period, the issue
is a matter of law for the court. Adams v Adams, 276 Mich. App. 704, 720; 742 NW2d 399
(2007).
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We review de novo a motion for summary disposition pursuant to MCR 2.116(C)(4).
Weishuhn v Catholic Diocese of Lansing, 279 Mich. App. 150, 155; 756 NW2d 483 (2008). We
also review de novo whether the MTT had jurisdiction to hear an appeal. Kasberg v Ypsilanti
Twp, 287 Mich. App. 563, 566; 792 NW2d 1 (2010). “In reviewing a motion under MCR
2.116(C)(4), it is proper to consider the pleadings and any affidavits or other documentary
evidence submitted by the parties to determine if there is a genuine issue of material fact” that
demonstrates “a lack of subject matter jurisdiction.” Toaz v Dep’t of Treasury, 280 Mich. App.
457, 459; 760 NW2d 325 (2008) (quotation marks and citations omitted). We review de novo
constitutional issues. Kampf v Kampf, 237 Mich. App. 377, 381; 603 NW2d 295 (1999).
III. ANALYSIS
Pursuant to MCL 205.731(a), the Tax Tribunal has exclusive and original jurisdiction
over “[a] proceeding for 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.” As explained in Hillsdale Co Senior
Servs, Inc v Hillsdale County, 494 Mich. 46, 53; 832 NW2d 728 (2013),
for the tribunal to have jurisdiction pursuant to MCL 205.731(a), four elements
must be present: (1) a proceeding for direct review of a final decision, finding,
ruling, determination, or order; (2) of an agency; (3) relating to an assessment,
valuation, rate, special assessment, allocation, or equalization; (4) under the
property tax laws. Where all such elements are present, the tribunal’s jurisdiction
is both original and exclusive.
In MCL 205.735a, the Legislature defined the MTT’s authority respecting, among other
things, commercial real property assessment disputes and provided in relevant part as follows:
(2) A proceeding before the tribunal is original and independent and is
considered de novo.
* * *
(4) In the 2007 tax year and each tax year after 2007, all of the following
apply:
(a) For an assessment dispute as to the valuation or exemption of property
classified under section 34c of the general property tax act, 1893 PA 206, MCL
211.34c, as commercial real property, industrial real property, or developmental
real property, the assessment may be protested before the board of review or
appealed directly to the tribunal without protest before the board of review as
provided in 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
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211.34c, as commercial real property . . . is invoked by a party in interest, as
petitioner, filing a written petition on or before May 31 of the tax year involved.
* * *
In all other matters, the jurisdiction of the tribunal is invoked by a party in
interest, as petitioner, filing a written petition within 35 days after the final
decision, ruling, or determination. An appeal of a contested tax bill shall be made
within 60 days after mailing by the assessment district treasurer and the appeal is
limited solely to correcting arithmetic errors or mistakes and is not a basis of
appeal as to disputes of valuation of the property, the property’s exempt status, or
the property’s equalized value resulting from equalization of its assessment by the
county board of commissioners or the state tax commission.
* * *
(7) A petition is considered filed on or before the expiration of the time
period provided in this section or by law if 1 or more of the following occur:
(a) The petition is postmarked by the United States postal service on or
before the expiration of that time period.
(b) The petition is delivered in person on or before the expiration of that
time period.
(c) The petition is given to a designated delivery service for delivery on or
before the expiration of that time period and the petition is delivered by that
designated delivery service or, if the petition is not delivered by that designated
delivery service, the petitioner establishes that the petition was given to that
designated delivery service for delivery on or before the expiration of that time
period.
Petitioner argues that the May 31 statutory deadline for filing an appeal of a commercial
property tax assessment does not bar its appeal because the affidavits it submitted to the MTT
established that petitioner never received notice of the assessment required under MCL 211.24c
and respondent failed to establish that it mailed the assessment to petitioner. Petitioner contends
that, at the very least, a genuine issue of material fact exists whether respondent provided notice
by mailing the assessment to petitioner or failed to fulfill its statutory obligation depriving
petitioner its constitutional right to due process. We agree.
Petitioner claims that respondent violated its right to due process by not giving notice of
respondent’s 2018 tax assessment that substantially increased the TCV, AV, and SEV of the
subject property. This case involves an issue of statutory interpretation and involves the
interplay between respondent’s statutory obligation to provide petitioner notice of the assessment
and petitioner’s obligation to meet the statutory requirements under MCL 205.735a for disputing
respondent’s change in the subject property’s tax assessment.
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“Due process is satisfied when a taxpayer has a fair opportunity to challenge the accuracy
and legal validity of their tax obligation and a clear and certain remedy for any erroneous or
unlawful tax collection to ensure that the opportunity to contest the tax is a meaningful one.” By
Lo Oil Co v Dep’t of Treasury, 267 Mich. App. 19, 29; 703 NW2d 822 (2005) (quotation marks
and citation omitted). In Cummings, 210 Mich. App. at 253, this Court explained that
constitutional sufficiency requires
notice of the nature of the proceedings, an opportunity to be heard in a meaningful
time and manner, and an impartial decisionmaker. The opportunity to be heard
does not mean a full trial-like proceeding, but it does require a hearing to allow a
party the chance to know and respond to the evidence.
Under MCL 211.24(1) of Michigan’s General Property Tax Act (GPTA), MCL 211.1a et
seq., by the first Monday in March each year, an assessor must make and complete an
assessment roll that specifies the name and address of every person liable to be taxed in the local
tax collecting unit, whether or not the owner is known, and state in the assessment roll an
estimate of the TCV and AV of the real property. The assessor must “give to each owner or
person or persons listed on the assessment roll of the property a notice by first-class mail of an
increase in the tentative state equalized valuation or the tentative taxable value for the year.”
MCL 211.24c(1). Among other things, the notice must specify the parcel, the taxable values for
the current and preceding year, and the time and place of the meeting of the board of review. Id.
The notice must be mailed to the owner of the property “not less than 14 days before the meeting
of the board of review.” MCL 211.24c(4). However, “[t]he failure to send or receive an
assessment notice does not invalidate an assessment roll or an assessment on that property.” Id.
In this case, petitioner sought review of respondent’s assessment of the subject property
because respondent allegedly unlawfully increased substantially the subject property’s TCV,
SEV, and TV. Petitioner asserted that respondent failed to fulfill its statutory duty to provide
notice of the changed assessment by mail as required under MCL 211.24c(1). Respondent
sought summary dismissal of the petition on the ground that petitioner received notice via first-
class mail but failed to timely file its petition resulting in the MTT’s lack of jurisdiction to even
consider the petition. Respondent relied on Wujkowski’s affidavit as proof that it provided
petitioner notice via first-class mail. Petitioner argued to the MTT, and again argues on appeal,
that Wujkowski’s affidavit failed to establish that respondent provided it notice of the
assessment. The MTT relied on the copy of the assessment, the documentation that KCI mailed
118,658 pieces of mail, and Wujkowski’s affidavit for its finding that respondent gave petitioner
notice and that petitioner failed to timely appeal the assessment, requiring dismissal of the
petition on statute of limitations grounds.
In this case, respondent relied on a copy of the notice, the USPS proof of bulk mailing of
a large quantity of items by KCI, and Wujkowski’s affidavit. These items merely provided
vague and speculative evidence regarding whether a notice may have been mailed to petitioner.
In response to respondent’s summary disposition motion, petitioner presented to the MTT
the sworn testimony of three affiants who attested to facts that directly controverted respondent’s
assertions that it provided petitioner notice. They averred that petitioner never received notice of
the assessment and only became aware of the assessment increase upon receipt of the summer
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tax bill. Viewing the evidence in this case in the light most favorable to petitioner, competent,
material, and substantial evidence on the whole record did not support the MTT’s finding that
respondent gave petitioner notice as unambiguously required under MCL 211.24c(1). At the
very least, petitioner established the existence of a genuine issue of material fact regarding
whether respondent provided petitioner the requisite notice or failed to do so and thereby
deprived petitioner of due process. Because a genuine issue of fact existed, the MTT erred by
granting respondent summary disposition. Therefore, we reverse and remand for further
proceedings.
On remand, the MTT should develop the record fully so that it may make a determination
supported by competent, material, and substantial evidence on the whole record regarding
whether respondent provided petitioner the requisite notice. We are cognizant that evidence may
establish that respondent met its statutory duty, but the record before us reveals only that an issue
of fact exists in that regard.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Jane E. Markey
/s/ James Robert Redford
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