Alhi Development Co. v. Orion Township , 110 Mich. App. 764 ( 1981 )

110 Mich. App. 764 (1981) 314 N.W.2d 479

ALHI DEVELOPMENT COMPANY
v.
ORION TOWNSHIP.

Docket Nos. 47084, 47085, 47086.

Michigan Court of Appeals.

Decided November 2, 1981.

Barry K. Branch, for petitioner.

Beier, Howlett, McConnell, Googasian & McCann, for respondent.

Before: N.J. KAUFMAN, P.J., and CYNAR and J.E. TOWNSEND,^[*] JJ.

J.E. TOWNSEND, J.

Petitioner, Alhi Development Company, appeals an order of the Michigan Tax Tribunal affirming assessments made by respondent, Orion Township, on 42 parcels of land owned by petitioner.

Thirty-seven parcels were vacant platted lots. The remaining 5 parcels were larger, ranging in size from 13 to 70 acres. Respondent assessed the 37 platted lots at $1,000 each during the tax years 1976 to 1979, both inclusive. For tax years 1978 and 1979 respondent assessed parcel XX-XX-XXX-XXX at $35,000, parcel XX-XX-XXX-XXX at $71,500 and parcel XX-XX-XXX-XXX at $87,500. For tax year 1979 respondent assessed parcel XX-XX-XXX-XXX at $12,000. For tax years 1978 and 1979 respondent assessed parcel XX-XX-XXX-XXX at $79,600 and $83,200, respectively.

This Court's power to review decisions of the Tax Tribunal is limited by MCL 205.753(1); MSA 7.650(53)(1) to the circumstances specified in Const 1963, art 6, § 28 as follows:

"In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation."

Thus, our Court is bound by the factual determinations of the Tax Tribunal and may consider only questions of law. Consolidated Aluminum Corp, Inc v Richmond Twp, 88 Mich App 229; 276 NW2d 566 (1979), and cases cited therein.

By the provisions of MCL 205.737(3); MSA 7.650(37)(3), the burden of proof is on petitioner to establish the true cash value of the property in question.

A proceeding before the Tax Tribunal is original and independent and is de novo. MCL 205.735(1); MSA 7.650(35)(1). By provisions of MCL 205.737(1); MSA 7.650(37)(1), the Legislature requires the Tax Tribunal to make a finding of true cash value in arriving at its determination of a lawful property assessment.

Like the factual situation in the case of Consolidated Aluminum, supra, the Tax Tribunal majority in this case made no specific "finding of true cash value" as is required by the above statute.

Furthermore, we must address apparent errors of law and the application of wrong principles as disclosed by the opinion and judgment of the Tax Tribunal.

First, the Tax Tribunal in its opinion and judgment referred to a presumption of validity, apparently relying for such principle upon the language of MCL 211.31; MSA 7.31, which provides that upon completion of an assessment roll it shall be conclusively presumed to be valid. Such statutory language by its terms is subject to an exception for "causes hereinafter mentioned".

We determine that the conclusive presumption of validity as to an individual assessment arises only after an appeal is decided or the time for appeal has expired with respect to such parcel. Recognition of a conclusive presumption of validity as being applicable to an assessment appeal would preclude meaningful review of an assessment. A conclusive presumption of validity is diametrically opposed to the concept of an original, independent, de novo proceeding at which the petitioner simply bears the burden of proof. Rather, appeals to the Tax Tribunal are governed by the terms of the Tax Tribunal Act, MCL 205.701 et seq.; MSA 7.650(1) et seq. Eyde v Lansing Twp, 79 Mich App 358; 261 NW2d 321 (1977), State Treasurer v Eaton, 92 Mich App 327, 333; 284 NW2d 801 (1979). The Tax Tribunal Act does not adopt a presumption of validity as a standard for review. Rather, the standard of review to be applied is whether in the proceeding before the Tax Tribunal, petitioner has proved, by the greater weight of evidence, that one or more of the assessments in question were too high based upon the Tax Tribunal's findings as to the true cash value.

The language of the Tax Tribunal opinion and judgment indicates that it has applied a different and incorrect standard for review in this case.

The tribunal majority also states in its opinion and judgment:

"An assessment of $1,000 per lot by [r]espondent has not been shown to be in flagrant error * * *."

The taxpayer is not obliged to prove that the assessment is "in flagrant error". To succeed, it need only prove, by the greater weight of the evidence, that the assessment is too high.

The tribunal majority further states in its opinion and judgment:

"An assessment of $1,000 per lot by [r]espondent has not been shown to be * * * based on any value other than what we construe to be ``nominal' given the circumstances and evidence before us."

Thus, the tribunal construed a $1,000 assessment and the value it represented to be "nominal". We agree with dissenting Judge Don D. Kramer that a $1,000 assessment cannot be defined as reflecting a "nominal" value. "Nominal" has been defined as trivial, token, having no appreciable value. Sums of one cent, six cents and one dollar have been held to be "nominal".

If the Tax Tribunal, upon remand, determines that the platted lots in question have no "true cash value" (equated by case law to fair market value) or only a nominal value, the assessment for each such lot shall not exceed the $100 amount agreed to by petitioner.

Upon remand, the Tax Tribunal shall determine the fair market value of the parcels in question as of the time of the assessment, assuming a willing seller and a willing buyer, giving full weight to the effect that the sewage disposal problem and all other relevant conditions had on the then market value of such parcels. CAF Investment Co v Saginaw Twp, 410 Mich 428, 464; 302 NW2d 164 (1981).

Following remand, the Tax Tribunal should determine whether each of the five larger parcels were suitable for "development" purposes, as urged by respondent, and, if so, their fair market value for such purpose as of the date of the assessment. If the Tax Tribunal decides that the development of all or some of said parcels was not feasible at the time of assessment and that, as a result, their market value was reduced below their market value for some other purpose, the tribunal should determine the highest and best use of such parcel as of the time of assessment and the fair market value for such highest and best use at the time of the assessments in question.

We reverse and remand for further proceedings in accordance with this opinion.

CYNAR, J., concurs in the result only.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.