Anderson v. Selma Township
Anderson v. Selma Township
Opinion of the Court
At a regular meeting held December 3, 1976, the Selma Township Board adopted a resolution to authorize the construction of certain public improvements. The board directed that a special assessment district be established and ordered the township supervisor to prepare a special assessment roll for the approved district. January 8, 1977, was set as the date when the township board would meet to hear and consider any objection to the special assessment roll.
Zane A. Vogt, township clerk, alleges in an affidavit that on December 27, 1976, pursuant to the board’s directive and MCL 41.724a; MSA 5.2770(54a), MCL 41.726; MSA 5.2770(56), he mailed notice of the meeting to each owner of or interested party in property to be assessed, whose name appeared on the township’s last tax assessment record. He also published a notice in a local newspaper on December 20 and 27, 1976. Despite these efforts, however, members of the Sewer Assessment Protesters of Selma, plaintiffs herein, state by affidavit that they never received any personal notice.
Following a public hearing on January 8, 1977, the township board unanimously approved the special assessment roll. Plaintiffs allege that the
On January 6, 1978, the property owners brought suit in the Wexford County Circuit Court, seeking injunctive relief. The circuit court dismissed, for lack of subject matter jurisdiction, pursuant to MCL 205.731; MSA 7.650(31).
On June 30, 1978, plaintiffs petitioned the Michigan Tax Tribunal for relief. The tribunal granted defendant’s motion for accelerated judgment, finding that plaintiffs had failed timely to file a petition before the tribunal pursuant to MCL 205.735(3); MSA 7.650(35X3), MCL 41.726; MSA 5.2770(56). Plaintiffs appeal this order.
As of July 1, 1974, the Michigan Tax Tribunal has original and exclusive jurisdiction to review a special assessment determination, MCL 205.731(a); MSA 7.650(31)(a). The pertinent statute governing the time for appeal states:
"(3) Beginning January 1, 1977, the jurisdiction of the tribunal in an assessment dispute shall be invoked by the filing of a written petition by a party in interest, as petitioner, not later than June 30 of the tax year involved. In all other matters the jurisdiction of the tribunal shall be invoked by the filing of a written petition by a party in interest, as petitioner, within 30 days after the final decision, ruling, determination, or order which the petitioner seeks to review.” MCL 205.735(3); MSA 7.650(35X3).
Assuming that the Selma Township Board validly confirmed the special assessment on January 8, 1977, plaintiffs have failed to file a timely appeal. Plaintiffs did not attempt to invoke the jurisdiction of the tribunal until June 30, 1978, well beyond the 30-day period.
However, based on the record, we are unable to conclude that the January 8, 1977, confirmation was valid with respect to the plaintiffs. In order to have a legitimate ratification, the county clerk is required to give both personal notice and notice by publication of the special assessment hearing at which the confirmation will take place. Failure to do so will not invalidate the entire assessment, but will only affect the assessment on property where the owners or interested party did not receive notice. MCL 41.724a; MSA 5.2770(54a), MCL 41.726; MSA 5.2770(56).
In the absence of a ruling on the validity of the January 8, 1977, confirmation, we are unable to
If the special assessment was validly confirmed in 1977, then the jurisdiction of the tribunal was not timely invoked. If it was never so confirmed, then the plaintiffs have 30 days after the special assessment roll is approved to appeal the special assessments levied against their properties.
Remanded for further proceedings consistent with this opinion.
We retain no further jurisdiction.
No costs, a public issue being involved.
MCL 41.724a; MSA 5.2770(54a) reads in part as follows:
"Sec. 4a. (1) Where special assessments are made against property, notice of hearings in the special assessment proceedings shall be given as provided in this section in addition to any notice of the hearings to be given by publication or posting as required elsewhere in this act.
"(2) Notice of hearings in special assessment proceedings shall be given to each owner of, or party in interest in property to be assessed, whose name appears upon the last township tax assessment records, by mailing by first class mail addressed to the owner or party at the address shown on the tax records, at least 10 days before the date of*117 the hearing. The last township tax assessment records means the last assessment roll for ad valorem tax purposes which was reviewed by the township board of review, as supplemented by any subsequent changes in the names or addresses of the owners or parties listed thereon.
"(3) Where a person claims an interest in real property whose name and correct address do not appear upon the last township tax assessment records, he shall be obligated to file immediately the name and address with the township supervisor. This requirement shall be deemed effective only for the purpose of establishing a record of the names and addresses of those persons entitled to notice of hearings in special assessment proceedings. It shall be the duty of the supervisor to immediately enter on the tax assessment records any changes in the names and addresses of owners or parties in interest filed with him and at all times to keep the tax assessment records current and complete and available for public inspection.
"(4) A township officer whose duty is to give notice of hearings in special assessment proceedings may rely upon the last township tax assessment records in giving notice of hearing by mail. The method of giving notice by mail as provided in this section is declared to be the method that is reasonably certain to inform those to be assessed of the special assessment proceedings.
"(5) Failure to give notice as required in this section shall not invalidate an entire assessment roll but only the assessment on property affected by the lack of notice. A special assessment shall not be declared invalid as to any property if the owner or the party in interest thereof actually received notice, waived notice, or paid any part of the assessment. If an assessment is declared void by court decree or judgment, a reassessment against the property may be made.”
Dissenting Opinion
(dissenting). I cannot agree with the majority that a remand is necessary to determine whether the statutory notice requirements were met. I believe that the majority misreads the notice requirements when it holds that plaintiffs’ allegation of "no personal notice” is sufficient to challenge their individual assessments.
MCL 41.726; MSA 5.2770(56) provides for notice by publication (which is not in issue here) and for the notice required by MCL 41.724a; MSA 5.2770(54a). The latter section provides:
"Notice of hearings in special assessment proceedings shall be given to each owner of, or party in interest in property to be assessed, whose name appears upon the last township tax assessment records, by mailing by ñrst class mail addressed to the owner or party at the address shown on the tax records, at least 10 days before the date of the hearing.” (Emphasis added.)
The receipt requirement read into the statute by the majority would place an impossible burden upon an assessing township: no special assessment could ever be final unless a township could prove that each affected individual received "personal notice”. Under today’s holding an individual need only allege that notice was not received in order to escape the statute of limitations and challenge a duly confirmed assessment. In order to ensure finality, a township would have to have each affected person "personally” served with notice and a sworn return available for proof. This result could not have been contemplated when the Legislature required notice "by mailing by first class mail * *
A conclusion that only mailing is required is supported by MCL 41.724a(4); MSA 5.2770(54a)(4). It states, in part: "The method of giving notice by mail as provided in this section is declared to be the method that is reasonably certain to inform those to be assessed of the special assessment proceedings.” (Emphasis added.)
Subsection (5) is also consistent with this reading: "Failure to give notice as required in this section shall not invalidate an entire assessment roll but only the assessment on property affected by the lack of notice.” (Emphasis added.) The giving of notice as required in this section is, again, mailing by first class mail.
Therefore, I conclude that an allegation of no receipt is not a sufficient challenge; an individual must allege a failure to meet the statutory requirements, Le., a failure to mail notice to him.
I would affirm the Tax Tribunal’s order granting defendant accelerated judgment.
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