Evangelos Gianakos v. Independence Township ( 2023 )

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
EVANGELOS GIANAKOS, UNPUBLISHED
October 19, 2023
Petitioner-Appellee,
v No. 363619
Tax Tribunal
INDEPENDENCE TOWNSHIP, LC No. 21-003819
Respondent-Appellant.
Before: BOONSTRA, P.J., and BORRELLO and FEENEY, JJ.
PER CURIAM.
Respondent Independence Township appeals as of right the final opinion and judgment of
the Michigan Tax Tribunal Small Claims Division finding that the special assessment levied
against petitioner’s property for snow removal was “void.” For the reasons set forth in this opinion,
we reverse the Tax Tribunal’s ruling and remand this matter for further proceedings.
I. BACKGROUND
In 2021, the Township established the Thendara Special Assessment District 1 for Winter
Road Maintenance and levied a special assessment intended to defray the cost of hiring a contractor
to perform regular and extraordinary winter road maintenance within the district. Petitioner’s
property was included in the special assessment district.
On November 4, 2021, petitioner filed a petition with the Tax Tribunal to appeal the special
assessment. Petitioner claimed that the special assessment was not necessary for his property and
did not benefit his property. Specifically, petitioner argued that it was not necessary to levy a
special assessment for snow plow service of the street adjacent to petitioner’s property because
that street was plowed and maintained by the Oakland County Road Commission. Petitioner also
argued that there was no benefit to petitioner’s property because the maintenance funded by the
special assessment district did not measurably increase the value of petitioner’s property.
Petitioner included the following two paragraphs of argument, which aptly summarize the nature
of his dispute with the special assessment:
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We should not be forced to pay a special assessment on a county road maintained
by the County. The Township resolution is demanding regular and extraordinary
winter road maintenance of certain Thendara subdivision roads that benefits
properties other than ours. The benefits provided by the SAD [special assessment
district] do nothing to enhance our property value because the County maintains
the road.
. . . The necessity is really a conveni[e]nce to someone else[‘]s property, to
get the road plowed early!! Before the county can get to it. This is redundant and
forces us to pay for it twice. Once with our taxes and once again with this special
assessment.
Petitioner, who represented himself in the tax tribunal, attached pictures and documents to
his petition as evidence to support his claim, but he did not include much explanation connecting
his evidence to his claim that the special assessment was not necessary or beneficial for his
property. Nonetheless, it is possible to glean the gist of petitioner’s theory from the record
evidence.
Petitioner’s house is in the Sunny Beach Subdivision and is located on the corner of
Woodlawn Avenue and Algonquin Boulevard, with a Woodlawn Avenue address. Woodlawn
Avenue is a private road in the Sunny Beach Subdivision. The Thendara Park Subdivision and the
Sunny Beach Subdivision adjoin each other along a common boundary line. Algonquin Boulevard
runs east-west, and it enters the Thendara Park Subdivision a short distance west of petitioner’s
house and continues through part of the Thendara Park Subdivision. It appears that Algonquin
Boulevard, including the section running along petitioner’s property, is one of the roads included
in the snow plow maintenance funded by the special assessment, while Woodlawn Avenue is not
one of the included roads.
Petitioner’s attachments to the petition included the following undated email from the
Oakland County Road Commission’s Assistant General Counsel, which provides some clarity
about the winter maintenance of Algonquin Boulevard:
Good Morning [petitioner]:
As stated in our telephone conversation, Algonquin Blvd. (from Michigamme to
Eston) is a public road under the RCOC’s [Road Commission for Oakland County]
jurisdiction. The RCOC maintains the road according to our Winter Maintenance
Guidelines. However, since a private contractor also maintains the road, the road
is usually plowed and salted before the RCOC trucks get to it. If the road was not
maintained by a private contractor, then we would still maintain the road according
to our Winter Maintenance Guidelines. As this is a sub-local road, it is not a priority
and we would not perform winter maintenance on the road until all primary and
state trunk-line roads were completed.
The township submitted an appraisal demonstrating that petitioner’s property value was
approximately $60,000 higher with the winter road maintenance special assessment than without
the special assessment. The township also submitted pictures of petitioner’s property
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demonstrating that the driveway for his house was on Algonquin Boulevard. The township argued
that petitioner had not met his burden of establishing that there was a substantial or unreasonable
disproportionality between the amount assessed and the value that accrued to the subject property
as a result of the assessment and that petitioner therefore had not shown that the special assessment
was invalid.
Following a hearing, the Tax Tribunal issued a written final opinion and judgment finding
that the special assessment levied against petitioner’s property could not be collected because it
was “void.” The Tax Tribunal stated that the “legal issue in this matter is whether the benefit from
the special assessment is proportional to the cost of the improvement.” However, the tribunal
failed to address this legal issue. Instead, the Tax Tribunal found that Algonquin Boulevard and
the roads in the Thendara Park Subdivision were public roads maintained by the Oakland County
Road Commission and that the special assessment was “void” because the Township did not get
prior written approval from the Oakland County Board of Road Commissioners for the winter
maintenance of those roads as “required” by MCL 41.722(2). The tribunal noted that the Township
imposed the special assessment pursuant to MCL 41.721, et seq., and that MCL 41.721 authorized
township boards to make certain improvements and to defray the costs of those improvements
through special assessments levied against the benefitted property. The tribunal then quoted MCL
41.722(2), which provides in relevant part that a “road under the jurisdiction of . . . the board of
county road commissioners shall not be improved under this act without the written approval of . . .
the board of county road commissioners.” Relying on a dictionary, the Tax Tribunal defined
“improvement” as an enhancement of value or excellence. The Tax Tribunal concluded by
explaining its reasoning as follows:
Applying the plain language of the statute, it is clear that Respondent was
required to get written approval from the Oakland Board of County Road
Commissioners before Respondent’s board could establish the Thendara - District
1 Public Road Special Assessment for Winter Road Maintenance, and there is no
evidence before the Tribunal that Respondent did so. Therefore, the Tribunal finds
that the special assessment levied against Petitioner’s property is void.
The Township’s motion for reconsideration was denied. This appeal followed.
II. STANDARD OF REVIEW
“In the absence of fraud, this Court’s review of a decision of the Tax Tribunal is limited to
determining whether the tribunal erred in applying the law or adopted a wrong principle.” Blaser
v East Bay Twp, 242 Mich App 249, 252; 617 NW2d 742 (2000). “The tribunal’s factual findings
are upheld unless they are not supported by competent, material, and substantial evidence.”
Menard, Inc v City of Escanaba, 315 Mich App 512, 520; 891 NW2d 1 (2016) (quotation marks
and citation omitted). Questions of law, including issues of statutory interpretation, are reviewed
de novo. Blaser, 242 Mich App at 252; Michigan's Adventure, Inc v Dalton Twp, 287 Mich App
151, 153; 782 NW2d 806 (2010).
III. ANALYSIS
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“A special assessment is a pecuniary exaction[ ] made by the government for a special
purpose or local improvement, apportioned according to the benefits received.” Ashley Ann Arbor,
LLC v Pittsfield Charter Twp, 299 Mich App 138, 148; 829 NW2d 299 (2012) (quotation marks
and citation omitted; alteration in original). “Although it resembles a tax, a special assessment is
not a tax.” Niles Twp v Berrien Co Bd of Comm’rs, 261 Mich App 308, 323; 683 NW2d 148(2004) (quotation marks and citation omitted). “A special assessment is a levy upon property
within a specified district. . . . [and] [i]n contrast to a tax, a special assessment is imposed to defray
the costs of specific local improvements, rather than to raise revenue for general governmental
purposes.” Michigan’s Adventure, 287 Mich App at 155 (quotation marks and citation omitted).
Special assessments “are sustained upon the theory that the value of the property in the special
assessment district is enhanced by the improvement for which the assessment is made.” Kadzban
v City of Grandville, 442 Mich 495, 500; 502 NW2d 299 (1993) (quotation marks and citations
omitted).
“For a special assessment to be valid, ‘there must be some proportionality between the
amount of the special assessment and the benefits derived therefrom.’ ” Kadzban, 442 Mich at
501-502, quoting Dixon Rd, 426 Mich at 401. “[S]pecial assessments are presumed to be valid,”
and a plaintiff challenging a special assessment must at least “present credible evidence to rebut
the presumption [of validity].” Kadzban, 442 Mich at 505. “Without such evidence, a tax tribunal
has no basis to strike down special assessments.” Id.; accord Storm v City of Wyoming, 208 Mich
App 45, 46; 526 NW2d 605 (1994). Once the plaintiff presents “evidence effectively rebutting
the presumption of validity,” the burden shifts to the governmental entity, which must prove that
“the assessments are reasonably proportionate in order to sustain the assessments.” Kadzban, 442
Mich at 505 n 5.
Here, the Tax Tribunal concluded that the special assessment was “void” because there
was no evidence that the Township obtained prior written approval from the Oakland County
Board of Road Commissioners for the winter maintenance as “required” by MCL 41.722(2).
MCL 41.721 provides:
The township board has the power to make an improvement named in this
act, to provide for the payment of an improvement by the issuance of bonds as
provided in section 15, and to determine that the whole or any part of the cost of an
improvement shall be defrayed by special assessments against the property
especially benefited by the improvement. The cost of engineering services and all
expenses incident to the proceedings for the making and financing of the
improvement shall be deemed to be a part of the cost of the improvement.
Accordingly, the act “grants townships the authority to make improvements and to
establish special assessment districts to pay for the improvements:” Blaser, 242 Mich App at 252.
Furthermore, MCL 41.722 provides in relevant part as follows:
(1) The following improvements may be made under this act:
* * *
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(c) The construction, improvement, and maintenance of public roads.
* * *
(2) A road under the jurisdiction of either the state transportation department
or the board of county road commissioners shall not be improved under this act
without the written approval of the state transportation department or the board of
county road commissioners. As a condition to the granting of approval, the state
transportation department or the board of county road commissioners may require
1 or more of the following:
(a) That all engineering with respect to the improvement be performed by
the state transportation department or the board of county road commissioners.
(b) That all construction, including the awarding of contracts for
construction, in connection with the improvement be pursuant to the specifications
of the state transportation department or the board of county road commissioners.
(c) That the cost of the engineering and supervision be paid to the state
transportation department or the board of county road commissioners from the
funds of the special assessment district.
Here, petitioner did not present any evidence that the Township did not have written
approval from the county board of road commissioners pursuant to MCL 41.722(2). Without such
evidence, the Tax Tribunal erred as a matter of law by ignoring the application of the presumption
of validity and instead invalidating the special assessment on the ground that the Township did not
produce evidence that it had obtained the necessary written approval. Kadzban, 442 Mich at 505(stating that without evidence from the petitioner rebutting the presumption of validity, “a tax
tribunal has no basis to strike down special assessments”); Storm, 208 Mich App at 46-47 (“If a
petitioner fails to meet the burden of proving the special assessments invalid, the tax tribunal may
not make a determination de novo of the benefit and substitute its judgment for that of the
municipality.”).
Moreover, there is no language in MCL 41.722(2) requiring that proof of the requisite
written approval must be submitted to the Tax Tribunal in order to sustain a special assessment
against a challenge by an assessed property owner. “The primary goal of judicial interpretation of
statutes is to discern and give effect to the intent of the Legislature,” and “[i]t is a fundamental
principle that a clear and unambiguous statute leaves no room for judicial construction or
interpretation.” Niles Twp, 261 Mich App at 313.
It is worth noting that the act provides procedures authorizing a township to complete
certain improvements and maintenance, as well as funding those activities through mechanisms
such as special assessments. See Blaser, 242 Mich App at 252; MCL 41.721. The plain language
of MCL 41.722(2) requires a township to obtain written approval before making certain
improvements, but there is no language in the statute indicating that such written approval is a
precondition for establishing a special assessment district or that a special assessment district must
be invalidated if that written approval has not been obtained at the time that a special assessment
district has been challenged. The language of the MCL 41.722(2) may indicate that the Township
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had an obligation to the Oakland County Board of Road Commissioners to obtain written approval
for the winter maintenance1 at issue. However, there is nothing in the statute providing an assessed
property owner with a right to enforce that obligation through a challenge to the special assessment
in the Tax Tribunal. Moreover, in light of the record evidence suggesting that this winter
maintenance is not a new practice and that it was sanctioned by the Oakland County Board of Road
Commissioners, it is unclear how petitioner could demonstrate that he was harmed by any apparent
failure to strictly comply with the approval requirement in MCL 41.722(2). Thus, the alleged
failure in this regard is not a ground for invalidating the special assessment. See MCL 247.467;2
MCL 247.351;3 MCL 247.353;4 see also Cass Farm Co v City of Detroit, 124 Mich 433, 438; 83
1
Under MCL 41.722(1)(c), “maintenance” of public roads is one of the “improvements” that are
authorized.
2
MCL 247.467 provides in part:
A tax assessed under this act upon any property or sale of the property shall
not be held invalid by any court of this state on account of any irregularity in any
assessment, or on account of any tax roll not having been made, or proceeding had
within the time required by law, or on account of the property having been assessed
without the name of the owner, or in the name of any person other than the owner,
or on account of any other irregularity, informality, omission, or want of any matter
or form or substance in any proceeding that does not prejudice the property rights
of the person whose property is taxed. . . .
3
MCL 247.351 provides:
The township board of any township and the board of county road
commissioners in which said township is located are hereby authorized and shall
have power to enter into a contract to provide for the acquisition, construction,
establishment, opening, altering, improving and maintaining of any highways
within the township. Said highways shall be deemed to include such bridges,
culverts, storm sewers and other drainage structures, and traffic control and
regulatory devices, as may be necessary to provide a complete highway.
4
MCL 247.353 provides:
For the purpose of obtaining funds to carry out the provisions of this act the
township board of any township which is a party to such a contract is hereby
authorized to pay its allocable share of the cost of any such highway improvements
from any, all, or any combination of, the following methods of raising money
therefor: (a) From the contingent fund of the township; (b) from the proceeds of
special assessments levied on property benefited by the highway improvement, the
procedures relative to making and collecting said special assessments to conform
to the procedures provided by Act No. 188 of the Public Acts of 1954, being
sections 41.721 to 41.737, inclusive, of the Compiled Laws of 1948: Provided, That
when a contract has been duly executed as authorized by this act no petition shall
be required to authorize the levy and collection of special assessments; (c) from
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NW 108 (1900) (stating in a challenge to an assessment for road paving that “[w]hether there was
a compliance with the ordinance [concerning advertising for bids for the project] or not, no one
being harmed, the proceedings will not be set aside for that reason.”).
Nonetheless, this Court need not resolve these specific questions at this juncture because
we conclude that the Tax Tribunal erred as a matter of law based on its improper treatment of the
evidentiary burden and the presumption of validity applicable to special assessments.
In light of this conclusion, it is also unnecessary to address the Township’s additional
argument that a challenge to the formation of the special assessment district in this case could only
be brought within the time frame provided in MCL 41.725(1)(c), which provides that after a
township board approves the sufficiency of a petition for an improvement if one is required, “the
sufficiency of the petition is not subject to attack except in an action brought in a court of
competent jurisdiction within 30 days after the adoption of the resolution determining the
sufficiency of the petition.” The logic of the Township’s argument is not exactly clear, but this
statutory provision is inapplicable under the circumstances presented on appeal because the Tax
Tribunal did not base its decision on a determination regarding the sufficiency of a petition.
Finally, petitioner argues that the Tax Tribunal’s ruling may be affirmed on the alternate
ground that petitioner’s property was improperly included in the special assessment district
because his property is outside the Thendara Park Subdivision and receives no benefit from the
winter maintenance. The improvement funded by a special assessment must confer a benefit on
the assessed property for the special assessment to be valid. Michigan’s Adventure, 290 Mich App
at 335 (“A special assessment will be deemed valid if it meets two requirements: (1) the
improvement subject to the special assessment must confer a benefit on the assessed property and
not just the community as a whole and (2) the amount of the special assessment must be reasonably
proportionate to the benefit derived from the improvement.”).
Petitioner appears to essentially ignore any potential benefit from providing winter
maintenance to the portion of Algonquin Boulevard running along petitioner’s property and that
petitioner’s parcel was expressly included in the special assessment district by reference to the
Parcel I.D. Number. Petitioner has not cited any authority to support his contention that a special
assessment district is solely defined by the general title designated by a township for a special
assessment district such that his parcel would be excluded because it is in a subdivision that does
not match that title. Petitioner also does not cite any authority for the proposition that
proceeds of sale of bonds or short term notes which the township is hereby
authorized to issue in anticipation of sales tax moneys to be returned to the township
pursuant to section 23 of article 10 of the state constitution; or (d) from the proceeds
of sale of general obligation bonds of the township which the township is hereby
authorized to issue.
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improvements to the road on which a corner lot’s street address is located benefits the property
while improvements to the road running alongside another side of the property do not.5
Nonetheless, the Tax Tribunal did not actually rule on this issue, instead basing its ruling
solely on its determination regarding the Township’s alleged failure to comply with MCL
41.722(2). We decline to resolve issues that were not ruled on by the Tax Tribunal and will instead
allow the tribunal on remand to address these issues in the first instance. Ashley Ann Arbor, 299
Mich App at 158.
The Tax Tribunal erred as a matter of law by invalidating the special assessment on the
ground that the Township did not provide proof of the written approval from the Oakland County
Board of Road Commissioners contemplated by MCL 41.722(2) because (1) there is no language
in MCL 41.722(2) requiring that proof of the requisite written approval must be submitted to the
Tax Tribunal in order to sustain a special assessment against a challenge by an assessed property
owner and (2) the Tax Tribunal ignored the presumption of validity and evidentiary burdens
applicable in this context.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Mark T. Boonstra
/s/ Stephen L. Borrello
/s/ Kathleen A. Feeney
5
Petitioner’s reliance on Carmichael v Village of Beverly Hills, 30 Mich App 176; 186 NW2d 29(1971), is misplaced because that case involved street paving, not snow plowing, and did not
discuss the corner-lot problem. This Court stated in Carmichael, “The benefits conferred by initial
paving really are less dirt, noise, mud, etc., which results from the new pavement In front of an
owner’s property, not from pavement down the street.” Id. at 182. However, that is not the issue
in the present case, where the portion of the road actually abutting petitioner’s property will be
plowed during the winter.
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