Walmart Real Estate Business Trust v. City of Bad Axe ( 2022 )

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
WALMART REAL ESTATE BUSINESS TRUST, UNPUBLISHED
October 20, 2022
Petitioner-Appellee,
v No. 358930
Tax Tribunal
CITY OF BAD AXE, LC No. 19-001078
Respondent-Appellant.
Before: K. F. KELLY, P.J., and BORRELLO and CAMERON, JJ.
PER CURIAM.
Respondent, City of Bad Axe, appeals as of right the judgment of the Michigan Tax
Tribunal (MTT) determining the true cash value (TCV), state equalized value (SEV), and taxable
value (TV) for the tax year 2019 for purposes of the ad valorem property tax assessment levied
against a parcel of real property owned by petitioner, Walmart Real Estate Business Trust. For the
reasons set forth in this opinion, we affirm.
I. BACKGROUND
The subject property is a parcel of land improved with an approximately 184,000 square-
foot “big box” store. Petitioner owns the land and improvements, and petitioner is the owner-
occupant of the big box store. Petitioner challenged respondent’s determination that the TV of the
subject property for the tax year 2019 was $4,329,500.
Following an evidentiary hearing at which each party presented expert witness testimony
regarding valuation of the subject property, the MTT issued a written opinion and judgment
concluding that for 2019, the TCV of the subject property was $4,270,000, the SEV of the property
was $2,135,000, and the TV of the property was $2,135,000. The MTT found that the market
analysis and methodology of petitioner’s valuation expert would be “given weight and credibility”
in the MTT’s independent determination of the subject property’s market value. The MTT found
the analysis of respondent’s valuation expert to not be credible. The MTT further found that the
independent determination of the subject property’s market value was based on the property’s
status as “an owner-occupied commercial property with fee simple property rights” that was not
encumbered by a lease. The MTT stated that a “fee simple estate is defined as ‘Absolute ownership
-1-
unencumbered by any other interest or estate, subject only to the limitations imposed by the
governmental powers of taxation, eminent domain, police power and escheat.’ ”1 The MTT
rejected respondent’s method of valuation that was based on assuming a hypothetical lease for the
subject property. The MTT stated in its opinion, “The subject’s fee simple property rights in the
context of market value does not contemplate the non-existent lease as prescribed by Respondent’s
appraiser.”
Respondent now appeals.
II. STANDARD OF REVIEW
This Court has limited authority to review a decision of the Tax Tribunal. Mich Milk
Producers Ass’n v Dep’t of Treasury, 242 Mich App 486, 490; 618 NW2d 917 (2000). “In the
absence of an allegation of fraud, this Court’s review of a Tax Tribunal decision is limited to
determining whether the tribunal committed an error of law or adopted a wrong legal principle.”
Id. This Court will not disturb the tribunal’s factual findings “as long as they are supported by
competent, material, and substantial evidence on the whole record.” Id. at 490-491. “Substantial
evidence must be more than a scintilla of evidence, although it may be substantially less than a
preponderance of the evidence.” Meijer, Inc v Midland, 240 Mich App 1, 5; 610 NW2d 242(2000). “Failure to base a decision on competent, material, and substantial evidence constitutes
an error of law requiring reversal.” Id. “The appellant bears the burden of proof in an appeal from
an assessment, decision, or order of the Tax Tribunal.” Drew v Cass Co, 299 Mich App 495, 499;
830 NW2d 832 (2013) (quotation marks and citation omitted).
III. BACKGROUND LAW
Under the General Property Tax Act (GPTA), MCL 211.1 et seq., assessments are “based
on the property’s true cash value.” Meijer, 240 Mich App at 3; see also Const 1963, art 9, § 3;
MCL 211.27a(1). “True cash value” means the “usual selling price at the place where the property
to which the term is applied is at the time of assessment, being the price that could be obtained for
the property at private sale, and not at auction sale except as otherwise provided in this section, or
at forced sale.” MCL 211.27(1). “True cash value is synonymous with fair market value.” Great
Lakes Div of Nat’l Steel Corp v City of Ecorse, 227 Mich App 379, 389; 576 NW2d 667 (1998).
“Therefore, the assessment must reflect the probable price that a willing buyer and a willing seller
would arrive at through arm’s length negotiation.” Huron Ridge LP v Ypsilanti Twp, 275 Mich
App 23, 28; 737 NW2d 187 (2007). “[T]o determine true cash value, the property must be assessed
at its highest and best use . . . . Highest and best use is defined as the most profitable and
advantageous use the owner may make of the property even if the property is presently used for a
different purpose or is vacant, so long as there is a market demand for such use.” Menard, Inc v
Escanaba, 315 Mich App 512, 522; 891 NW2d 1 (2016) (alteration in original; emphasis,
quotation marks, and citations omitted).
1
The MTT quoted Appraisal Institute, The Appraisal of Real Estate (Chicago, 15th ed, 2020), pp
60-61.
-2-
While the petitioner has the burden of establishing the TCV of the property, Tax Tribunal
proceedings are de novo and “the Tax Tribunal has a duty to make an independent determination
of true cash value.” President Inn Props LLC v Grand Rapids, 291 Mich App 625, 631; 806 NW2d
342 (2011). In particular, the “Tax Tribunal is under a duty to apply its expertise to the facts of a
case in order to determine the appropriate method of arriving at the true cash value of property,
utilizing an approach that provides the most accurate valuation under the circumstances.” Menard,
315 Mich App at 521-522 (quotation marks and citation omitted). “The three most common
approaches for determining true cash value are the capitalization-of-income approach, the sales-
comparison or market approach, and the cost-less-depreciation approach.” Great Lakes, 227 Mich
App at 390. The “final value determination must represent the usual price for which the subject
property would sell irrespective of the specific method employed.” Menard, 315 Mich App at 523
(quotation marks and citation omitted).
IV. ANALYSIS
Respondent first argues that the MTT committed an error of law or adopted a wrong legal
principle by relying on an improper definition of the term “fee simple.” Respondent argues that
fee simple ownership includes the right to lease the property. However, respondent
misunderstands the nature of the question at issue. The question is not whether petitioner, as owner
of the property, has a right to lease the property to some other entity. Rather, the question is how
to properly appraise the fair market value of the subject property owned by petitioner for purposes
of property tax assessment.
Here, it is undisputed that the subject property consists of an owner-occupied big-box retail
store. In this context, this Court has stated that a fee simple interest is “ ‘absolute ownership
unencumbered by any other interest or estate, subject only to the limitations imposed by the
governmental powers of taxation, eminent domain, police power, and escheat.’ ” Autozone Stores
Inc/Auto Zone, No 2137 v City of Warren, unpublished per curiam opinion of the Court of Appeals,
issued June 23, 2015 (Docket No. 320213), p 3, quoting The Appraisal of Real Estate (11th ed, p
137).2 See also Lowe’s Home Centers, Inc v City of Grandville, unpublished per curiam opinion
of the Court of Appeals, issued December 30, 2014 (Docket No. 317986), p 2 n 1; Lowes Home
Centers, Inc v Marquette Twp, unpublished per curiam opinion of the Court of Appeals, issued
April 22, 2014 (Docket Nos. 314111, 314301), p 11 n 4. Hence, the definition used by the MTT
in this case is the same as the definition this Court has previously employed in this specific context
of real property appraisals of owner-occupied commercial retail store property for purposes of tax
assessment. Respondent thus has not shown that the MTT committed an error of law or adopted
a wrong legal principle with respect to its definition of the term “fee simple.” Mich Milk Producers
Ass’n, 242 Mich App at 490.
Respondent next argues that the MTT erred by rejecting respondent’s valuation
methodology that appeared to value the subject property as if it would be sold subject to an existing
lease. This Court has held that for purposes of determining the TCV, “what must be valued is
what would actually be sold.” Menard, 315 Mich App at 526 n 5. Respondent does not contest
2
Although not binding precedent, a court may consider unpublished opinions for their instructive
or persuasive value. Cox v Hartman, 322 Mich App 292, 307; 911 NW2d 219 (2017).
-3-
the MTT’s factual finding that the subject property was an owner-occupied big box store that was
not encumbered by a lease. This Court has explained that under such circumstances, “the sale[]
would be of the property without an existing lessee or operating retail business” and that the subject
property must therefore “be valued as if vacant and available.” Id. Respondent essentially
contends, contrary to this Court’s holding in Menard, that the subject property should have been
valued as if it would be sold along with an existing lessee operating a retail business. Accordingly,
this argument advanced by respondent does not demonstrate that the MTT committed an error of
law or adopted a wrong legal principle; the MTT’s approach was consistent with Menard. Id.;
Mich Milk Producers Ass’n, 242 Mich App at 490.
Furthermore, to the extent respondent contends that the MTT’s approach prohibited any
consideration of leased properties as comparable properties in the valuation analysis, respondent
again misunderstands the issue. Respondent potentially could have used sales of leased properties
as a comparables if appropriate adjustments had been made. See Autozone Stores, unpub op at 4
(“By definition, a property that is subject to one or more leases is no longer a fee simple estate.
Thus, if the sale of a leased property is to be used as a comparable sale in the valuation of the fee
simple estate for another property, the sale can only be used if reasonable and supportable market
adjustments for the difference in rights can be made.”) (quotation marks and citation omitted).
However, respondent does not recognize the need for such adjustments since respondent
apparently believes that the subject property should be valued as if an inherent feature of the
property is the existence of an allegedly successful business tenant that would transfer to a new
owner along with the real property. The “MTT may not determine a property’s true cash value
solely on the basis of its current use where such use bears no relationship to what a likely buyer
would pay for the property[.]” Detroit Lions, Inc v City of Dearborn, 302 Mich App 676, 698;
840 NW2d 168 (2013) (quotation marks and citation omitted; alteration in original). At issue in
this case is the valuation of petitioner’s real property, not petitioner’s business. Respondent’s
attempt to improperly conflate these two distinct concepts does not demonstrate that the MTT
committed an error of law or adopted a wrong legal principle. Mich Milk Producers Ass’n, 242
Mich App at 490.
Next, respondent argues that the MTT failed to value the subject property at its highest and
best use because the MTT’s improper definition of fee simple led it to conclude that the subject
property had to be treated as “vacant.” This argument is essentially a reprise of respondent’s
position about the applicable definition of fee simple in this context. As we have already
explained, the MTT did not commit an error of law or adopt a wrong legal principle in this respect.
Under the circumstances presented in this case, the subject property was to be valued “as if vacant
and available.” Menard, 315 Mich App at 526 n 5.
Finally, respondent argues that the MTT erred by not determining the subject property’s
highest and best use to be continued retail operation and by rejecting the valuation methodology
employed by respondent’s expert. The MTT specifically found that the highest and best use of the
subject property as improved was “its current retail building use.” Respondent’s appellate
argument is unresponsive to the MTT’s actual ruling in this respect. Furthermore, the MTT also
found that the methodology of respondent’s expert was not credible. The weighing of evidence
and determinations of witness credibility are within the discretion of the MTT. Great Lakes, 227
Mich App at 404, 407. “We do not disturb the MTT’s findings regarding the credibility of the
-4-
witnesses.” Detroit Lions, 302 Mich App at 703. Respondent fails to address the deference
accorded to the MTT as fact finder and instead seems to treat this appeal as an opportunity to
relitigate its case, contrary to the limited scope of our appellate review. Mich Milk Producers
Ass’n, 242 Mich App at 490. Respondent does not argue that the MTT’s determination was not
supported by competent, material, and substantial evidence, instead simply arguing for a different
view of that evidence despite the limited scope of our appellate review. Id. Respondent cannot
obtain appellate relief from the MTT’s judgment on such a basis. Detroit Lions, 302 Mich App at
701-702 (“This Court may not substitute its judgment for that of the MTT, even if we would have
reached a different result than the tribunal.”). Respondent’s argument does not demonstrate that
the MTT committed an error of law or adopted a wrong legal principle. Mich Milk Producers
Ass’n, 242 Mich App at 490.
Although respondent has purported to challenge the MTT’s ruling on several grounds,
respondent’s arguments essentially boil down to an argument this Court has already rejected
through the following analysis that we also find to be persuasive in the instant case:
Respondent’s argument on appeal that the exiting use of the subject property as
improved should be as a “continuously-occupied, successful home improvement
store” attempts to include in the property’s TCV a measure of value attributable
solely to the owner and the owner’s use of the property.
As our Supreme Court explained, “[t]he Constitution requires assessments
to be made on property at its cash value. This means not only what may be put to
valuable uses, but what has a recognizable pecuniary value inherent in itself, and
not enhanced or diminished according to the person who owns or uses it.”
Therefore, even if the subject property is in fact continuously-occupied and
successful, these characteristics of the property are not relevant for determining the
property’s TCV. They are accidents of ownership, not measures of value inherent
to the property itself, and the tribunal did not misapply the law nor adopt a wrong
principle by categorizing the existing use of the subject property as improved as
commercial retail.
For the same reasons, the tribunal did not err when it categorized the subject
property’s highest and best use (HBU) as improved as commercial retail rather than
as a continuously-occupied, successful home improvement store. Highest and best
use “recognizes that the use to which a prospective buyer would put the property
will influence the price which the buyer would be willing to pay.” Respondent’s
contention that the property’s HBU is to continue its existing use as an operating
home improvement store is another attempt to incorporate value-in-use, or use-
value, into the calculation of the subject property’s value, contrary to Michigan law.
The HBU is informed by the existing use, but not by the specific use of a particular
existing user.
With respect to “present economic income,” the tribunal concluded that the
owner-occupied subject property was not an income-producing property and had
no history of an income stream. However, respondent contends that the tribunal
should have included the property’s “actual income,” i.e., customer sales receipts,
-5-
into its consideration of present economic income. This argument is irrelevant
because, in the sales-comparison approach to valuing the fee simple interest of a
subject property, TCV is based on the sale price of the property sold unencumbered
by a lease or a tenant; i.e., as if the property were vacant and available. Vacant and
available properties do not generate customer sales receipts. Therefore, the tribunal
did not misapply the law or adopt a wrong principle when, in the context of the
sale-approach valuation of the property, it did not consider the store’s customer
sales receipts. [Grandville, unpub op at 6-7 (citations and emphasis omitted).]
In the present case, respondent has not demonstrated that the MTT committed an error of
law or adopted a wrong legal principle, and we therefore affirm.
Affirmed. Petitioner having prevailed is entitled to costs. MCR 7.219.
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
/s/ Thomas C. Cameron
-6-