Opinion
Docket No. 77-5047.
Decided July 9, 1979.
Sinas, Dramis, Brake, Turner, Boughton, McIntyre Reisig, P.C. (by Tim J. Donovan), for plaintiff.
Church, Wyble, Kritselis, Anderson Robinson, P.C., for defendant.
Petitioner appeals an order of the Michigan Tax Tribunal affirming a special tax assessment of $10,725 upon her property.
On October 3, 1977, Delhi Township adopted a resolution approving a special tax assessment roll for the purpose of constructing a sanitary sewer. Petitioner owns a single family dwelling and ten acres of land located within the special assessment district.
After receiving her assessment, petitioner filed the instant action in the Tax Tribunal seeking to restrain respondent from proceeding with the project. Petitioner alleged the special assessment on her property was invalid for a number of reasons. The Tax Tribunal issued an ex parte restraining order of November 16, 1977, and ordered a show cause hearing to be held on December 1, 1977. In the interim, respondent filed a motion to dissolve or modify the ex parte restraining order.
On December 1, 1977, the parties appeared for the scheduled hearing. At the outset of the proceedings, tribunal member Cramer indicated that the parties had met in chambers and it was understood that the matter would be heard on the merits. Following testimony on behalf of both parties, a decision was rendered affirming the special assessment.
On appeal plaintiff claims the tribunal erred in reaching the merits of the case when the hearing was scheduled only to determine whether a preliminary injunction should issue.
In Almira Twp v Benzie County Tax Allocation Board, 80 Mich. App. 755; 265 N.W.2d 39 (1978), the tribunal scheduled a preliminary hearing to determine the need for further proceedings. Following the presentation of testimony, a decision on the merits was rendered. This Court reversed, holding that the petitioner's right to review had been prejudiced by this procedure.
The instant case is distinguishable on the facts. In Almira, the petitioner's presentation was predicated on the assumption that the hearing was not on the merits. In the case at bar, prior to commencing the hearing, the parties manifested consent that the hearing be on the merits. We see no reason why the parties may not stipulate to expand the original scope of the hearing. Moreover, had petitioner felt inadequately prepared to proceed to a final adjudication, an objection could have been raised at the time.
Petitioner also contends that the decision of the tribunal was made without the participation of the entire tribunal. Only three of the seven members of the tribunal participated in the decision.
MCL 205.734; MSA 7.650(34) provides, in part:
"One or more members of the tribunal shall hear proceedings, but a decision shall not be made without participation of the entire tribunal."
While at first glance it would appear from the above that all seven members of the tribunal must participate in a decision, § 3 of the Tax Tribunal Act defines "entire tribunal" to mean three or more members of the tribunal:
"`Entire tribunal' means 3 or more of the members appointed and serving pursuant to this act." MCL 205.703(b); MSA 7.650(3)(b). (Emphasis added.)
There is dicta in Almira, supra, which would indicate participation by all seven members is necessary. However, Almira failed to take into account the above definition of "entire tribunal". This writer confesses error for having joined in that portion of the opinion.
"Initially, we must note that the legislation creating the tribunal mandates that its decisions be rendered only upon `participation of the entire tribunal'. MCL 205.734; MSA 7.650(34). Here, a decision was rendered with participation by only three members of the seven-member tribunal." Almira Twp v Benzie County Tax Allocation Board, 80 Mich. App. 755, 760; 265 N.W.2d 39 (1978).
Petitioner finally contends that the special assessment was invalid because the amount of the assessment exceeded any benefit conferred upon petitioner's land.
The theory behind special assessments is that a special benefit has been conferred, over and above that conferred upon the community in general. Fluckey v Plymouth, 358 Mich. 447; 100 N.W.2d 486 (1960). A special benefit may be found from an increase in value, relief from burden, or creation of a special adaptability in the land. Soncoff v Inkster, 22 Mich. App. 358; 177 N.W.2d 243 (1970).
One who challenges a special assessment carries a heavy burden of proof, since there is a presumption that the levy is valid. Tack v Roseville, 67 Mich. App. 34; 239 N.W.2d 752 (1976).
Petitioner's expert witness, William Porter, initially testified that the installation of the sewer would result in a net increase in value of $6,500. However, as the tribunal noted, this figure was arrived at by assuming the property could be subdivided and sold for $50 per foot of frontage. Mr. Porter's own testimony indicates that $62 per foot was the average for the properties in the area he had used for comparison purposes. Using this figure, the tribunal concluded that the increase in value due to the sewer would exceed the amount of the assessment. Findings of fact made by the tribunal are binding upon this Court. Ironwood v Gobebic County Board of Comm'rs, 84 Mich. App. 464; 269 N.W.2d 642 (1978).
Petitioner argues, nonetheless, that any such benefit could be realized only if petitioner changed the existing use of her property from farming to residential development. Petitioner contends that it was error to look at future potential rather than the present, actual use of the land.
In determining whether property is benefited by a particular improvement, the inquiry is not limited to the present use of the property but, rather, to uses to which it may be put. Crampton v Royal Oak, 362 Mich. 503, 517; 108 N.W.2d 16 (1961), Stybel Plumbing, Inc v Oak Park, 40 Mich. App. 108; 198 N.W.2d 782 (1972).
Petitioner cites Leonard Capaldi Contracting Co, Inc v Fraser, 70 Mich. App. 227; 245 N.W.2d 575 (1976), in support of her position. In that case the assessed property was used as an airport. While the installation of sewer and water lines would have been beneficial to the property if used for residential purposes, such use would decrease the value of the property from $10,000 to less than $3,500 per acre.
The Court reaffirmed the rule that the assessing authorities are not restricted to examining present use, but may look to potential use. The Court then went on to say:
"But we refuse to extend that ruling to what would amount to a logical absurdity. We are urged to hold that although residential use by plaintiffs here might devaluate their investment to as low as one-third of the acreage value of the land in its present use as an airport, that if the assessment increases the value of the premises for residential use in relation to the amount of the assessment, that it must be upheld. We decline to do so." Leonard Capaldi Contracting Co, Inc, supra, at 232.
In the instant case it is undisputed that the use of petitioner's property for residential purposes would increase the market value of the land. Hence, the rationale of Capaldi has no application here.
Affirmed. No costs, a public question being involved.