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### STATE OF MICHIGAN

COURT OF APPEALS

KRISTIN WISE,

Petitioner-Appellant, UNPUBLISHED May 12, 2016

v No. 327450
Tax Tribunal CITY OF HOLLAND, LC No. 14-001385

Respondent-Appellee.

Before: H OEKSTRA , P.J., and O’C ONNELL and M URRAY , JJ.

P ER C URIAM

.

In this case involving a challe nge to a property tax assessmen t, petitioner appeals as of right the final order and judgment of the Michigan Tax Tribunal (MTT) that determined the value of petitioner’s property in Holland, Michigan for the 201 4 tax year. Because petitioner was afforded due process and the MTT’s determination of value w as supported by competent,
material and substantia l evidence, we affirm.

Petitioner is a nonresident owne r of a residential rental prop erty in Holland, Michigan, which she purchased in 2013 for $98,000. For the 2014 tax year , respondent valued the property at $125,800, resulting in a taxab le value (TV) of $62,900. Pet itioner submitted a written protest to the March Board of Review (MBOR) within the statutory timefr ame for MBOR meetings set by MCL 211.30, but the MBOR did not consider her protest becaus e it had concluded its proceedings before the time period set by MCL 211.30. Petition er then appealed to the MTT to challenge the calculation of her property’s true cash value (TC V) and TV. Recognizing that its MBOR meeting requirements did not fully comply with MCL 211.30, respondent did not dispute petitioner’s right to appeal, a nd her claim was heard by a hear ing referee in the small claims
division of the MTT.

During these proceedings, petitioner alleged that her property ’s fair market value was the $98,000 purchase price, meaning that her TV should be set at $4 9,000. In comparison, respondent maintained that the property’s TV had been properly calculated at $62,900 with a TCV of $125,800. In support of its proposed valuation, respond ent offered an appraisal of the property, which employed two valuation approaches: a cost appro ach and a sales approach. Petitioner attempted to present documentary evidence in support of her position, including
evidence of recent sales in the a rea; but this evidence was exc luded by the hearing referee because petitioner failed to serve the documents on respondent 21 days before the hearing as-2- required by Mich Admin Code R 792.10287. Following the hearing , which included testimony from petitioner, 1 the hearing referee adopted res pondent’s calculation of value in a proposed opinion and judgment, determining that the property’s TCV was $ 125,800.

Petitioner filed exceptions to the proposed opinion and judgme nt, faulting the hearing referee for (1) excluding petitioner’s evidence and (2) failing to consider that, by not complying with MCL 211.30, the MBOR proceedings deprived petitioner of he r due process right to be heard. Following consideration of petitioner’s exceptions, the MTT issued its final opinion and judgment, which incorporated the findings of fact and conclusio ns of law from the hearing referee’s proposed opinion and judgment, resulting in a TV of $ 62,900 and TCV of $125,800. In addition, the MTT addressed petitioner’s concerns regarding the MBOR meetings and the
exclusion of her evidence. First , regarding the MBOR meetings, the MTT concluded that it lacked jurisdiction to decide a constitutional due process ques tion, but that, in any event, any potential error arising from the MBOR proceedings was cured by the MTT’s de novo review. Second, regarding valuation, the MTT held that petitioner’s evi dence was properly excluded under Mich Admin Code R 792.10287. Nonetheless, the MTT then c onsidered petitioner’s documentary evidence, and still concluded that the property had a TCV of $125,800. Petitioner then moved for reconsideration, w hich the MTT denied. Petition er now appeals as of right.

On appeal, petitioner argues th at the MBOR’s failure to comply with MCL 211.30, and its refusal to consider her protest, violated due process and d enied her a meaningful opportunity to be heard. According to petitioner, this error was compounde d, rather than cured, by the MTT proceedings because the hearing referee improperly excluded her documentary evidence, again denying petitioner an opportunity to be heard. Finally, petiti oner challenges the MTT’s determination of value, assert ing that the MTT failed to conduc t an independent review and that the MTT’s decision was not supported by competent, material, an d substantial evidence. In particular, petitioner argues that the MTT should have consider ed an income approach to valuation. She also disparages respondent’s appraisal and she discusses the importance of the property’s various features. Overall, petitioner maintains tha t the MTT should have relied on the purchase price as well as petiti oner’s sales evidence to reach a TCV of $98,000. We disagree.

“Absent fraud, this Court’s rev iew of a MTT decision is limite d to determining whether
the tribunal made an error of law or adopted a wrong legal prin ciple.” Meijer, Inc v City of

Midland , 240 Mich App 1, 5; 610 NW2d 242 (2000). “The tribunal’s fact ual findings are upheld unless they are not supported by competent, material, and subst antial evidence.” Id. Statutory interpretation poses a question of law, which this Court review s de novo. Lee v Smith , 310 Mich App 507, 509; 871 NW2d 873 (2015). Likewise, constitutional qu estions, such as whether a party was afforded due process, are reviewed de novo. Brooks Williamson & Assoc, Inc v Mayflower Const Co , 308 Mich App 18, 32; 863 NW2d 333 (2014).

I. MBOR PROCEEDINGS

1 Because the matter was heard before the small claims division, no formal transcript of the proceedings was made. See Mich Admin Code R 792.10265(1).-3- We first consider petitioner’s c ontentions that, by concluding its meetings on March 7, the MBOR failed to comply with M CL 211.30 and that this statuto ry violation deprived her of an opportunity to be heard on her tax assessment protest. Relevan t to petitioner’s argument, “[t]he owner of real property is entitle d to the protection of constit utional due process with respect to the assessment and collection of property taxes.” Spranger v City of Warren , 308 Mich App 477, 483-484; 865 NW2d 52 (2014). “Due process is a flexible c oncept, the essence of which requires fundamental fairness.” Al-Maliki v LaGrant , 286 Mich App 483, 485; 781 NW2d 853 (2009). At a minimum, due process requires notice along with an “opportunity to be heard in a meaningful time and manner, and an impartial decisionmaker.” Cummings v Wayne Co , 210 Mich App 249, 253; 533 NW2d 13 (1995).

The General Property Tax Act (GPTA) “provides a comprehensive system for the assessment of property for ad valorem tax purposes and the coll ection of those taxes.” Mich Props, LLC v Meridian Twp , 491 Mich 518, 530; 817 NW2d 548 (2012). “It also provides fo r the administration of the system.” Id. Under this system, the error-correcting powers of the
MBOR are set forth in MCL 211.29 and MCL 211.30. Mich Props , 491 Mich at 534. These provisions “specify w hen a local board of review must meet and what business it must conduct at
those times.” AERC of Mich, LLC v Grand Rapids , 266 Mich App 717, 722; 702 NW2d 692 (2005). In particular, MCL 211.29 states in part that:

(1) On the Tuesday immediately following the first Monday in Ma rch, the board of review of each township shall meet at the office of the supe rvisor, at which time the supervisor shall submit to the board the assessment ro ll for the current year, as prepared by the supervis or, and the board shall procee d to examine and
review the assessment roll.

After this review of the tax r oll following the first Monday in March, the board then meets again on the second Monday in March to hear taxpayer protests as set forth in MCL 211.30, in relevant part, as follows:

(1) Except as otherwise provided in subsection (2), the board o f review shall meet on the second Monday in March. [2]

***

(3) The first meeting of the board of review shall start not ea rlier than 9 a.m. and not later than 3 p.m. and last for not less than 6 hours. The board of review shall also meet for not less than 6 hours during the remainder of tha t week. Persons or their agents who have appeared to file a protest before the board of review at a scheduled meeting or at a scheduled appointment shall be afford ed an opportunity to be heard by the board of review. . . . The board of review s hall hold at least 3

2 By ordinance or resolution a dopted by the City’s governing bod y, the MBOR may instead meet starting on the Tuesday or Wedne sday following the second Monda y of March. MCL 211.30(2).-4- hours of its required sessions for review of assessment rolls d uring the week of the second Monday in March after 6 p.m.

(4) A board of review shall meet a total of at least 12 hours during the week beginning the second Monday in March to hear protests. . . . A nonresident taxpayer may file his or her appearance, protest, and papers in support of the protest by letter, and his or her personal appearance is not re quired. . . .

The statutory meeting requirements in MCL 211.29 and MCL 211.3 0 are mandatory, as evinced by the Legislature’s statement that the MBOR “ shall meet” as set forth in those provisions. See Roberts v Mecosta Co Gen Hosp , 466 Mich 57, 65; 642 NW2d 663 (2002) (“The phrases ‘shall’ and ‘shall not’ are unambiguous and denot e a mandatory, rather than discretionary action.”). See also Auditor Gen v Chandler , 108 Mich 569, 571-572; 66 NW 482 (1896). In light of these statut ory provisions, taxpayers are “entitled to assume that the board [will] remain in session the full length of time provided by th e statute,” and taxpayers cannot be deprived of an opportunity to be heard in keeping with the stat utory requirements. Auditor Gen

, 108 Mich at 571-572; Twp of Caledonia v Rose , 94 Mich 216, 218; 53 NW 927 (1892). See also Pollack v Southfield Twp , 167 Mich App 323, 326; 421 NW2d 676 (1988). Given the MBOR’s obligation to abide by these meeting requirements, to be consid ered timely, a protest must be brought to the board’s attention within the statutory timeframe for the public meetings. See Oakwood Farms Assoc v Oxford Twp , 107 Mich App 602, 605-606; 309 NW2d 685 (1981).

In this case, consistent with MCL 211.29 and the Holland City Charter, the MBOR met on the Tuesday following the first Monday in March, for a total of four days on March 4, 5, 6,
and 7 of 2014. 3 However, the MBOR did not hold meetings on the second Monday of March or any other day that week, which would have been the week beginni ng on March 10, 2014. Thus, it appears that the Holland MBOR failed to comply with MCL 211. 30. 4 Moreover, respondent submitted her nonresident written protest to the MBOR on March 10, within the statutory timeframe for MBOR meetings, meaning that her protest may be co nsidered timely, Oakwood

Farms Assoc , 107 Mich App at 605-606

, and the MBOR’s early conclusion of its meetings, and its refusal to consider petitioner’s timely nonresident protest , improperly deprived petitioner of

3 The City of Holland Charter, Chapter 10, § 10.6 states: “The b oard of review shall meet on the first Tuesday following the fir st Monday in March in each year at such place as shall be designated by the council, and sh all continue in session from d ay to day, for the purpose of considering and correcting the r oll, for four days, and as much longer as may be necessary. . . .”

4 We note that “the provisions of the GPTA are applicable to cit ies only insofar as the act does not conflict with a charter provision or ordinance enacted by t he municipality.” AERC of Mich

, 266 Mich App at 722. In other words, “if a conflict exists bet ween the GPTA and the city charter, the charter governs.” Booker v Detroit , 469 Mich 892; 668 NW2d 623 (2003). See also MCL 211.107. However, in this case, respondent does not assert that there is a conflict between its charter and the GPTA requirements. In fact, respondent off ers no argument on appeal to justify its failure to comply with MCL 211.30, and respondent i ndicates that st eps have been
taken to amend the MBOR procedures going forward.-5- an opportunity to be heard by the MBOR. See MCL 211.30(4); Twp of Caledonia , 94 Mich at
218. Cf. Pollack , 167 Mich App at 326-327.

However, even accepting that the MBOR violated MCL 211.30 and deprived petitioner of an opportunity to be heard before the MBOR, this error does not entitle petitioner to relief on appeal given the de novo review a fforded to her by virtue of th e MTT’s consideration of her assessment. That is, as a general proposition, depending on th e circumstances, the availability of a remedy for an error, such as subsequent review by another ent ity or an opportunity for rehearing, may satisfy due process. See, e.g., Georgetown Place Co-op v City of Taylor , 226 Mich App 33, 52; 572 NW2d 232 (1997). See also Elba Twp v Gratiot Co Drain Com’r , 493 Mich 265, 285-286; 831 NW2d 204 (2013). In the context of prop erty tax assessments in particular, the March meetings held by the MBOR are not a taxpa yer’s last opportunity to challenge an assessment. Rather, taxpayers are also afforded a n opportunity for review by the

MTT. 5 See MCL 205.735a(2). A proceeding before the MTT “is origina l and independent and is considered de novo.” MCL 205.735a(2). See also President Inn Props, LLC v Grand Rapids

, 291 Mich App 625, 631; 806 NW2d 342 (2011). Further, hearings before the MTT are conducted in such a manner—allowing for the presentation of evi dence and arguments—so as to ensure that a petitioner is afforded due process. Georgetown Place Co-op , 226 Mich App at 52. By virtue of these de novo proceedings, the MTT can provide a p etitioner with the procedural due process denied by the MBOR and the MTT is thus in a positio n to cure an earlier constitutional error by the MBOR. See Spranger , 308 Mich App at 484-485. 6 Consequently, in

5 Failure to protest before the MBOR in fact deprives the MTT of jurisdiction to review an assessment, MCL 205.735a(3); Pollack , 167 Mich App at 324, and parties cannot agree to confer jurisdiction on a court, Hillsdale Co Sr Servs, Inc v Hillsdale Co , 494 Mich 46, 51 n 3; 832 NW2d 728 (2013). For this reason we think it necessary to note that, although the MBOR did not actually consider petitioner’s protest, this did not depriv e the MTT of jurisdiction in this case because, as discussed, petitioner in fact brought her protest w ithin the timeframe prescribed by statute, meaning that she protested before the MBOR as required to confer jurisdiction on the MTT. Had the MTT refused to hear her protest on the grounds th at she failed to protest before the MBOR, thus leaving petitioner without a remedy, she might h ave had some cause for complaint on appeal. Cf. Nicholson v Birmingham Bd of Review , 191 Mich App 237, 243; 477 NW2d 492 (1991).

6 We note that, in Spranger , following a due process viola tion by the MBOR, the petitioner had a hearing before the MTT regarding her application for a tax exem ption, but on appeal this Court nonetheless found it necessary to remand for a second hearing before the MTT. Spranger , 308 Mich App at 478-479, 481-482, 485. In particular, in Spranger the MBOR failed to give the petitioner notice, thereby depriving her of an opportunity to a ppear and to present evidence to supplement her application for an exemption. See id. at 478, 481-482

. Before the MTT, the respondent objected to the petitioner’s presentation of evidenc e beyond that considered by the MBOR and the MTT based its decision on the petitioner’s applica tion originally submitted to the

MBOR. See id. at 478-479, 481-482. In these circumstances, this Court found it necessary to afford the petitioner a second hearing before the MTT, includin g an opportunity to supplement her original application and to present new evidence. Id. at 485. Unlike in Spranger , in this-6- this case, we conclude that the de novo MTT proceedings afforde d petitioner a meaningful opportunity to be heard by an impartial decisionmaker, and thes e proceedings were sufficient to guarantee due process and cure any error by the MBOR. See id. ; Georgetown Place Co-op , 226 Mich App at 52-53.

II. MTT EXCLUSION OF PETITIONER’S EVIDENCE

Petitioner next contends on appe al that the MTT proceedings ca nnot have cured the MBOR’s error in this case because the hearing referee improperl y excluded petitioner’s documentary evidence, thereby again denying her a meaningful op portunity to be heard. Insofar as petitioner challenges the hearing referee’s evidentiary deci sion, her claim is clearly without merit. In proceedings before the small claims division, Mich A dmin Code R 792.10287(1) provides the hearing referee with the discretion to exclude evi dence when, as in this case, a party has not served the opposing party with the evidence 21 days bef ore the hearing date. See also Kok v Cascade Charter Twp , 255 Mich App 535, 544; 660 NW2d 389 (2003) (considering former version of a comparable rule). Thus, as an evidentiary matter, the exclusion of petitioner’s evidence was not improper. Id. ; Mich Admin Code R 792.10287(1).

There is likewise no merit to petitioner’s assertion that the exclusion of this evidence violated her right to due process. As noted, due process requi res notice and an opportunity to be heard in a meaningful time and manner. Spranger , 308 Mich App at 483. However, due process does not excuse litigants from their obligation to “comply withestablished rules of procedure and evidence designed to assure both fairness and reliability.” People v King , 297 Mich App 465, 474; 824 NW2d 258 (2012). In this case, petitioner was af forded a hearing in the MTT and provided with an opportunity to be heard, including the opportunity to testify. In this context, the exclusion of her documentary evidence occasioned by her fai lure to comply with the evidentiary requirements does not amount to a deprivation of du e process, particularly given the written notice petitioner receive d before the hearing detailing the rules for submission of evidence and the consequences for failing to serve evidence on the other party. In addition, while the hearing referee did not consider petitioner’s documen tary evidence, petitioner was afforded the opportunity after the hearing to challenge the ref eree’s findings and rulings. Cf. Georgetown Place Co-op , 226 Mich App at 53

. After petitioner filed exceptions to the hearing referee’s decision, the MTT in f act considered p etitioner’s doc umentary evidence in its final opinion and judgment. On this r ecord, petitioner plainly had t he opportunity to present her valuation arguments and there i s no merit to her due process cl aim.

III. TRUE CASH VALUE

Finally, turning to the MTT’s calculation of TCV, we conclude that the MTT’s independent determination of TCV, based on a cost approach as s upported by a sales approach, was supported by competent, material and substantial evidence. In particular, in Michigan, property is assessed at 50 percen t of its TCV. Const 1963, art 9, § 3; MCL 211.27a(1). TCV

case, petitioner did not attempt to appear in person before the MBOR to supplement her written
documentation and she was not limited in the MTT to the materia ls she presented to the MBOR. Spranger is thus distinguishable and it does not necessitate a second h earing by the MTT.-7- refers to “the usual selling price at the place where the prope rty to which the term is applied is at the time of assessment, being the price that could be obtained for the property at private sale, and not at auction sale . . . or at forced sale.” MCL 211.27(1). In other words, TCV is synonymous
with “fair market value.” WPW Acquisition Co v Troy , 250 Mich App 287, 298; 646 NW2d 487 (2002). A petitioner bears the burden of establishing a proper ty’s TCV. MCL 205.737(3). Purchase price may be relevant to determining the value of a pr operty, Profl Plaza, LLC v

Detroit , 250 Mich App 473, 476; 647 NW2d 529 (2002); but there is no p resumption that purchase price represents t he property’s TCV, MCL 211.27(6).

Indeed, there is no single statutorily required method for det ermining TCV. See Great Lakes Div of Nat Steel Corp v Ecorse , 227 Mich App 379, 390; 576 NW2d 667 (1998). Rather, the MTT must “apply its expertise to the facts of a case in ord er to determine the appropriate method of arriving at the true cash value of property, utilizin g an approach that provides the most
accurate valuation under the circumstances.” Id. at 389. See also Huron Ridge LP v Ypsilanti Twp , 275 Mich App 23, 28; 737 NW2d 187 (2007). The MTT must make its own, independent determination of TCV, and it is free to accept or reject either party’s valuations, or to combine the approaches. Great Lakes Div of Nat’l Steel Corp , 227 Mich App at 389-390. Although not mandatory, the three most common approaches to valuation are: the capitalization of income approach, the sales comparison or market approach, and the cost less depreciation approach. Id.

at 390.

In this case, respondent presented evidence of an appraisal em ploying both a cost approach and a sales approach. Using the sales approach, the appraiser determined petitioner’s property to have a value of $126,000. Using a cost approach, a nd accounting for depreciation, the appraiser determined that petitioner’s property had a marke t value of $125,800. In comparison, petitioner’s assertion of valuation was supported b y the purchase price of the property as testified to by petitioner and a sampling of purpor tedly comparable properties compiled by petitioner. The MTT conducted an independent revie w of this evidence and the documents presented, including the appraisal and property recor d card detailing the property’s features. Based on this review, the MTT concluded that respond ent’s evidence of the cost approach coupled with the sales approach provided a reliable in dicator of value. Thus, the MTT adopted the cost approach to a rrive at a value of $125,800 as t he property’s TCV.

In arriving at this TCV, the MTT considered the purchase price evidence offered by petitioner, but corre ctly recognized that th is was not presumed to be the property’s TCV. See MCL 211.27(6). Further, the MTT reasoned that the purchase pri ce should not be relied upon in this case because there was insufficient evidence regarding the terms of sale or market exposure of the property. In addition, wh ile the hearing referee exclud ed petitioner’s documentary sales evidence, the MTT ultimately considered this evidence in its fi nal opinion and judgment, explaining that petitioner’s attempt to provide evidence of com parable sales was unimpressive because, unlike respondent, petitioner provided market data wit hout making necessary adjustments to the comparable properties. In its final opinion and judgment, the Tribunal explained its acceptance of respondent’s sales evidence over pe titioner’s evidence as follows:

Petitioner’s sales evidence does not contain adjustments. Rath er, it merely lists the features of the subject and the comparable. From this list , it is clear that adjustments would be required for square footage, bathroom coun t, and attached-8- versus detached garages. In addition, there are many other fea tures of properties not reflected within Petitioner’s evidence such as lot size, qu ality of construction, age, and condition, all of which could substantially affect the valuation if properly adjusted for. On the other hand, Respondent’s sales comparison approach properly contains market based adjustments and indicates an adj usted price range from $115,600 to $153,700. The Tribunal finds that the sales u sed are comparable to the subject requiri ng relatively low gross adjust ments. As such, the Hearing Referee properly found that Respondent’s sales comparis on approach supported the assess ed true cash value.

On the whole, considering the evidence presented and the analys is by the MTT, the MTT’s determination of value was supported by competent, material and substantial evidence. See Meijer, Inc , 240 Mich App at 5.

In contrast, despite the MTT’s clear evaluation of the evidenc e and explanation for its determination of value, petitioner contends (1) that the MTT sh ould have considered other methods of valuation, such as an income-capitalization method, (2) that the MTT should have accepted petitioner’s contentions of value based on the purchas e price and her sales evidence, and (3) that the MTT overlooked ce rtain characteristics of the property and ignored errors in respondent’s appraisal. These arguments are without merit. Th e MTT was not required to employ a specific valuation method, such as an income approach, and it was ultimately free to reject petitioner’s assertions of value. See Great Lakes Div of Nat’l Steel Corp , 227 Mich App at 389-390; President Inn Props, LLC, 291 Mich App at 639. Indeed, to the extent petitioner now emphasizes various property characteristics and challenges the credibility of the appraisal, these issues regarding the weight and credibility of the evidence wer e for the MTT to decide. See

Drew v Cass Co , 299 Mich App 495, 502; 830 NW2d 832 (2013). And, to the exte nt the MTT did not discuss particular propert y features, “there is no rule of law that requires the [MTT] to quantify every possible factor affecting value.” Great Lakes Div of Nat Steel Corp , 227 Mich App at 398-399. Ultimately, while petitioner disagrees with th e MTT’s conclusions, the fact remains that the MTT independently reviewed the evidence presen ted and made a determination of value that was supported by competent, material and substant ial evidence. See Meijer, Inc, 240 Mich App at 5. Thus, there is no basis for reversing the M TT’s finding of value and petitioner is not e ntitled to relief.

Affirmed.

/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell /s/ Christopher M. Murray