Order Michigan Supreme Court

Lansing, Michigan 

June 29, 2007 Clifford W. Taylor,

 Chief Justice 

130698 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

HIGHLAND-HOWELL DEVELOPMENT Robert P. Young, Jr. 

Stephen J. Markman, COMPANY, LLC, Justices Petitioner-Appellant, 

v SC: 130698 

 COA: 262437 
 MTT: 00-307906 

TOWNSHIP OF MARION, 

Respondent-Appellee. 

_________________________________________/ 

On order of the Court, leave to appeal having been granted, and the briefs and oral 

argument of the parties having been considered by the Court, we hereby REVERSE the 

judgment of the Court of Appeals and REMAND this case to the Michigan Tax Tribunal 

for it to determine whether the special assessment levied against petitioner’s property is 

proportionate to the benefit to the property. 

In 1996, respondent township levied a special assessment against petitioner’s 

property in the amount of $3.25 million for a sanitary sewer project that included a trunk 

line across petitioner’s property. In 1998, petitioner discovered that the township had 

unofficially eliminated the trunk line across petitioner’s property from the project 

sometime after the time for challenging the special assessment roll had passed. The tax 

tribunal dismissed petitioner’s petition to challenge the special assessment on the basis 

that it lacked jurisdiction because petitioner had not objected at the public hearing or 

commenced an appeal within 30 days after the 1996 resolution confirming the special 

assessment roll as required by MCL 205.735(1) and MCL 41.726(3). 

Also in 1998, petitioner filed a separate complaint in the circuit court alleging 

breach of contract and challenging the proportionality of the special assessment. The 

circuit court granted respondent’s motion for summary disposition on the basis that the 

tribunal has exclusive jurisdiction over petitioner’s claims. However, on appeal, this 

Court held that the circuit court has jurisdiction over the breach of contract claim and the 

tribunal has jurisdiction over the proportionality claim. Highland-Howell Dev Co, LLC v 

Marion Twp, 469 Mich 673, 676, 676 n 4 (2004). Presumably because this Court held 

that the tribunal has exclusive jurisdiction over the proportionality claim, petitioner filed 
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an amended complaint that excluded the proportionality claim. On remand, the circuit 

court granted respondent’s motion for summary disposition on the basis that there was no 

contract. 

In 2004, the township passed a formal resolution ratifying changes in the sewer 

plan, including elimination of the trunk line across petitioner’s property. Petitioner 

timely filed a petition with the tax tribunal within 30 days of that resolution. The tribunal 

dismissed petitioner’s challenge of the 2004 resolution on the basis of res judicata, and 

the Court of Appeals affirmed on the basis of collateral estoppel. Unpublished opinion 

per curiam, issued January 31, 2006 (Docket No. 262437). 

There must be a proportionate relationship between a special assessment and the 

benefit to property from a special assessment. MCL 41.725(1)(d); Dixon Road Group v 

City of Novi, 426 Mich 390, 403 (1986) (“a failure by this Court to require a reasonable 

relationship between the [amount of the special assessment and the amount of the benefit] 

would be akin to the taking of property without due process of law”). Further, before an 

assessment is levied, the property owner is entitled to notice and an opportunity to be 

heard. Thomas v Gain, 35 Mich 155, 164-165 (1876). Therefore, in this case, in which 

petitioner argues that the special assessment is no longer proportionate to the benefit to 

his property due to the change that the township made to the improvement plan, 

petitioner must be afforded an opportunity to be heard. 

Because “[s]tatutes must be construed in a constitutional manner if possible,” In re 

Trejo, 462 Mich 341, 355 (2000), the statutes at issue here cannot be construed in a 

manner that would deny petitioner due process of law. See W & E Burnside, Inc v 

Bangor Twp, 402 Mich 950l (1978), in which this Court remanded the case to the tribunal 

to determine whether the petitioner was entitled to notice even though the protest 

requirement of § 735(1) was not satisfied. That is, § 735(1) cannot be construed to 

require petitioner to have objected to the removal of the trunk line across its property at 

the hearing since that removal had not yet taken place at the time of the hearing. In 

addition, § 726(3) cannot be construed to require petitioner to have objected within 30 

days after the date of confirmation of the special assessment roll because when the 

special assessment roll was confirmed, petitioner had no basis to object because the plan 

included the trunk line through petitioner’s property. MCL 205.735(2) grants the tribunal 

jurisdiction over petitioner’s 2004 petition because the 2004 resolution is a “final 

decision” and petitioner filed a written petition within 30 days after that “final decision.” 

Finally, petitioner’s 2004 claim cannot be barred by res judicata or collateral 

estoppel. In dismissing petitioner’s 2004 claim, the tribunal stated, “[t]he Tribunal’s 

March 19, 2004 final Opinion and Judgment that dismissed Docket No. 261431 fully 

considered and rendered legal conclusions with regard to all issues pertaining to official 

or unofficial changes to the plans in relation to the jurisdiction of the Tribunal.” No 
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official changes existed at that time, however, as respondent did not pass the 2004 

resolution until May 13, 2004. Accordingly, the tribunal’s March 19, 2004 opinion could 

not have fully considered and rendered legal conclusions regarding official plan changes 

that had not yet occurred, and, thus, neither res judicata nor collateral estoppel apply. 

t0620 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

June 29, 2007 

 Clerk