Michigan Supreme Court 

# Order

Lansing, Michigan

June 29, 2007 Clifford W. Taylor,
Chief Justice

130698 Michael F. Cavanagh

Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. HIGHLAND-HOWELL DEVELOPMENT Stephen J. Markman, COMPANY, LLC, Justices Petitioner-Appellant,

v SC: 130698 COA: 262437 MTT: 00-307906 TOWNSHIP OF MARION, Respondent-Appellee.

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On order of the Court, leave to appeal ha ving been granted, a nd the briefs and oral argument of the parties having been consider ed by the Court, we hereby REVERSE the judgment of the Court of A ppeals and REMAND this case to the Michigan Tax Tribunal for it to determine whether the special asse ssment levied against petitioner’s property is proportionate to the benefit to the property.

In 1996, respondent town ship levied a special assessment against petitioner’s property in the amount of $3.2 5 million for a sanitary sewer project that included a trunk line across petitioner’s property. In 1998, petitioner discove red that the township had unofficially eliminated the trunk line across petitioner’s property from the project sometime after the time for challenging the sp ecial assessment roll had passed. The tax tribunal dismissed petitioner’s petition to challenge the speci al assessment on the basis that it lacked jurisdiction b ecause petitioner had not objected at the public hearing or commenced an appeal within 30 days after the 1996 resolution conf irming 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 challe nging the proportionality of th e special assessment. The circuit court granted respondent’s motion fo r summary disposition on the basis that the tribunal has exclusive jurisdiction over petiti oner’s claims. However, on appeal, this

Court held that the circuit c ourt has jurisdiction over the bre ach 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 ove r the proportionality claim, petitioner filed2

an amended complaint that excluded the prop ortionality 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 petiti oner’s property. Petitioner timely filed a petition with the tax tribunal within 30 days of that reso lution. The tribunal dismissed petitioner’s challenge of the 2004 re solution 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 relations hip 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 am ount 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 noti ce and an opportunity to be

heard. Thomas v Gain, 35 Mich 155, 164-165 (1876). Theref ore, in this case, in which petitioner argues that the special assessment is no longer proportionate to the benefit to his property due to the cha nge that the township made to the improvement plan, petitioner must be afforded an opportunity to be heard.

Because “[s]tatutes must be construe d 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 950 l (1978), in which this Court rema nded the case to the tribunal to determine whether the petitioner was en titled to notice even though the protest requirement of § 735(1) was not satisfied. Th at is, § 735(1) cannot be construed to require petitioner to have objected to the re moval 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 th e special assessment ro ll because when the special assessment roll was confirmed, petitioner had no basis to obj ect because the plan included the trunk line through petitioner’s prope rty. MCL 205.735(2) grants the tribunal jurisdiction over petitioner’s 2004 petition be cause the 2004 resolu tion is a “final decision” and petitioner filed a wr itten petition within 30 days afte r that “final decision.”

Finally, petitioner’s 2004 claim cannot be barred by res judi cata or collateral estoppel. In dismissing petiti oner’s 2004 claim, the tribuna l 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 jurisdictio n of the Tribunal.” No_______________________________________ __ 3

official changes existed at that time, however, as respondent did not pass the 2004 resolution until May 13, 2 004. 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 Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

June 29, 2007

Clerk