City of Detroit v. Yellen

28 Mich. App. 529 (1970) 184 N.W.2d 563

CITY OF DETROIT
v.
YELLEN

Docket No. 8617.

Michigan Court of Appeals.

Decided December 7, 1970.

Michael M. Glusac, Corporation Counsel, and Darryl F. Alexander, Assistant Corporation Counsel, for plaintiff.

Irving H. Small and Irving B. Ackerman (Edward P. Echlin, of counsel), for defendants.

Before: J.H. GILLIS, P.J., and DANHOF and MAHINSKE,^[*] JJ.

PER CURIAM.

Defendants, property owners, appeal the jury award in condemnation proceedings tried below. They claim denial of due process in that the plaintiff city took their property without paying just compensation. (US Const Am 5 and Am 14; Mich Const 1963, art 10, § 2.) Specifically, defendants contend that a municipal government, when acting as condemnor, should be estopped from assessing the value of private property at one rate for purposes of the ad valorem property tax and at a lesser value for purposes of condemnation. They argue that the property tax valuation should be the minimum amount at which the city could value that same property for condemnation purposes. We find this argument wholly untenable.

"Value" is a word of many meanings,

"[A]nd the particular method deemed most appropriate and expedient for its ascertainment may vary according to the purposes for which valuation is sought. Where property is taken by eminent domain, the constitutional mandate of `just compensation' must be carried out; and a judicial award must be made in each individual case to indemnify the owner for the loss of his property. The search for a value which will constitute a proper balance between the public's need and a particular owner's loss is the function of the condemnation court. Valuation for tax purposes, however, simply is a measure by which the cost of government may be fairly apportioned. Equality of assessment is the paramount consideration in tax proceedings." In re Site for School of Industrial Arts (1956), 2 Misc. 2d 403, 406 (154 NYS2d 402, 405). Cf. Southwestern Bell Telephone Co. v. Public Service Commission (1922), 262 U.S. 276 (43 S. Ct. 544, 67 L. Ed. 981).

In Michigan, the primary goal in assessments for ad valorem taxation is the principle of equal treatment regardless of the actual "true cash value" involved. Consumers Power Company v. City of Muskegon (1968), 13 Mich. App. 334; cf. Pantlind Hotel Company v. State Tax Commission (1966), 3 Mich. App. 170; Fisher-New Center Company v. State Tax Commission (1968), 380 Mich. 340. The "true cash value" is not solely "the usual selling price". (MCLA § 211.27 [Stat Ann 1970 Cum Supp § 7.27].) The market price is an item to be considered by the tax assessor but is not of itself controlling. Davidson v. City of Lansing (1959), 356 Mich. 697.

"The legislative statement of the meaning of [true] cash value, which is really a statement of tests to be applied in determining [true] cash value, is not exclusive or inclusive. The tax law must be read as a whole. The general purpose of the law is to subject property to a proportionate payment of public levies." Cleveland-Cliffs Iron Co. v. Township of Republic (1917), 196 Mich. 189, 201, 202, cited with approval in Moran v. Grosse Pointe Township (1947), 317 Mich. 248, 255. (Emphasis supplied.)

Both the Federal and state constitutions require that just compensation be paid for property taken by condemnation. There is no rigid formula which determines the amount constituting "just compensation". Rather, upon an examination of each case, the just compensation paid is that amount which "put[s] the party injured in as good a position as he would have been if the injury had not occurred". State Highway Commissioner v. Eilender (1961), 362 Mich. 697, 699; Michigan Consolidated Gas Company v. Muzeck (1967), 8 Mich. App. 329; Consumers Power Company v. Allegan State Bank (1969), 20 Mich. App. 720.

A realistic comparison of the different purposes for which valuations are made for ad valorem property tax assessments and condemnation awards impels the conclusion that the standards fixed in the former may not arbitrarily be assumed synonymous with those utilized in the latter.

Michigan, unlike the majority of states,^[1] recognizes that there are some meritorious similarities in the two standards. For that reason our Supreme Court held in In re Memorial Hall Site (1947), 316 Mich. 360, 362, that although the assessed valuation of real property

"[D]oes not determine with finality the fair market value in [a] condemnation case, it does have a material bearing on the issue as to what is the * * * fair market value of the property."

The measure and elements of a condemnation award are not a fixed formula. In re Grand Haven Highway (1959), 357 Mich. 20. In the case before us, the tax assessment of the condemned property was offered in evidence. It, and the expert appraisals offered by both parties to this action, were presented to the jury. GCR 1963, 516.5; MCLA § 213.377 (Stat Ann 1970 Cum Supp § 8.261[17]).

"A verdict will be upheld in this Court if it is supported by competent evidence as long as the amount is not lower than the minimum, or higher than the maximum valuation placed by the witnesses on the property sought to be condemned." State Highway Commission v. Hessell (1967), 5 Mich. App. 559, 565.

The jury was properly instructed that they could take the testimony regarding the tax assessment into consideration in determining the value of the condemned parcels. Where the jury's award is within the minimum-maximum appraisals presented, as here, this Court will not disturb that finding. State Highway Commissioner v. Schultz (1963), 370 Mich. 78. Thus, we cannot say, after a full review of the record, that the award was palpably contrary to the evidence.

Affirmed. Costs to plaintiff.

NOTES

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

[1] The overwhelming weight of authority has held that assessed value is not competent and direct evidence of value for purposes other than taxation. Among the better reasoned decisions are: City of Chicago v. Harrison-Halsted Building Corporation (1957), 11 Ill 2d 431 (143 NE2d 40); United States v. Certain Parcels of Land (CA4, 1958), 261 F2d 287; State Highway Commission v. Anderegg (1965), 241 Ore 31 (403 P2d 717). Michigan is one of eight states which allows tax assessment valuations to be considered in determining market value in condemnation proceedings. Michigan's reasoning is reflected in: Colson v. State Highway Board (1961), 122 Vt 392 (173 A2d 849); Minneapolis-Saint Paul Metropolitan Airports Commission v. Stawicki (1964), 269 Minn 264 (130 NW2d 503); In re Boston-Secor Houses (1969), 25 NY2d 430 (255 NE2d 156). Further analysis can be found in: Annotation, 39 ALR2d 209; Sengstock and McAuliffe, "What is the Price of Eminent Domain," 44 Journal of Urban Law 185 (1966).