Opinion
No. 215939.
Submitted April 5, 2000, at Lansing.
August 18, 2000 at 9:10 a.m.
Appeal from Michigan Tax Tribunal, Michigan, LC No. 0-244649.
Calcutt Cunningham Davison Rogers Boynton Petterson (by William M. Davison), for the petitioners. Traverse City
Running, Wise, Ford Phillips, P.L.C. (by Richard W. Ford), for the respondent. Traverse City
Before: Wilder, P.J., and McDonald and Doctoroff, JJ.
Petitioners Robert Blaser and Elizabeth Blaser ("petitioners") appeal as of right from an order of the Michigan Tax Tribunal denying their petition challenging the establishment of a special assessment district for the construction of a sanitary sewer system in East Bay Township. Specifically, petitioners contend that respondent failed to acquire the requisite number of signatures from land owners whose property was to be included within the special assessment district. We affirm.
In 1995, a group of land owners along Four Mile Road in East Bay Township filed a petition for the construction of a sewer system. The petition outlined a special assessment district containing 106.1347 acres. Petitioners' property was located within the proposed special assessment district. Respondent designated 34.6047 acres within the special assessment district as wetlands, leaving 71.53 acres of non-wetlands property within the special assessment district. Pursuant to MCL 41.723(3)(a); MSA 5.2770(53)(3)(a), the township board could not proceed with the construction of the sanitary sewer system until another petition was filed with the board signed by "the record owners of land constituting more than 50% of the total land area in the special assessment district as finally established by the township board." The record owners of 37.76 acres of land within the special assessment district signed the petition for the construction of the sanitary sewer. The township assessor determined that the petition was sufficient because it was signed by 52.79% of the record owners of the land within the special assessment district, not including the wetlands property, and, therefore, the petition satisfied the requirements of MCL 41.723(3)(a); MSA 5.2770(53)(3)(a).
Petitioners then filed a petition in the Michigan Tax Tribunal challenging the township assessor's finding that the petition for the construction of the sanitary sewer system was signed by more than 50% of the record owners of land within the special assessment district. Petitioners argued that the wetlands located within the special assessment district were erroneously excluded as non-assessable property, and that when the wetlands were included as assessable property within the special assessment district, the signatures on the petition represented only approximately 35% of the record owners of land within the special assessment district. The tribunal disagreed, finding after a hearing that the wetlands were properly excluded from the special assessment district and that, therefore, the signatures on the petition were sufficient.
On appeal, petitioners contend that the tribunal erred in concluding that the township properly excluded wetlands property as assessable property within the special assessment district and, therefore, erred in concluding that a sufficient percentage of land owners within the special assessment district had signed the petition. We disagree. In the absence of fraud, this Court's review of a decision of the Tax Tribunal is limited to determining whether the tribunal erred in applying the law or adopted a wrong principle. Michigan Bell Telephone Co v Dep't of Treasury, 445 Mich. 470, 476; 518 N.W.2d 808 (1994); Alma Piston Co v Dep't of Treasury, 236 Mich. App. 365, 367; 600 N.W.2d 144 (1999). The tribunal's factual findings are conclusive if supported by competent, material, and substantial evidence on the whole record. Michigan Bell, supra; Alma Piston, supra at 368. Questions of statutory interpretation are reviewed de novo. Benedict v Dep't of Treasury, 236 Mich. App. 559, 563; 601 N.W.2d 151 (1999).
Petitioners' appellate brief mainly focuses on whether respondent presented sufficient evidence to support a finding that the township had a policy of excluding wetlands when establishing special assessment districts where the wetlands are not developed and, therefore, will not benefit from the improvement. However, whether such a township policy existed is not dispositive of the issue raised on appeal. Regardless of such a policy, the exclusion of the wetlands from the special assessment district in the instant case was statutorily required.
MCL 41.721; MSA 5.2770(51) grants townships the authority to make improvements and to establish special assessment districts to pay for the improvements:
The township board has the power to make an improvement named in this act, to provide for the payment of an improvement by the issuance of bonds as provided in [MCL 41.735; MSA 2.2770(65)], and to determine that the whole or any part of the cost of an improvement shall be defrayed by special assessments against the property especially benefited by the improvement. The cost of engineering services and all expenses incident to the proceedings for the making and financing of the improvement shall be deemed to be a part of the cost of the improvement. (Emphasis added.)
The construction of a sanitary sewer is one of the improvements authorized by the act. MCL 41.722(1)(a); MSA 5.2770(52)(1)(a).
It is clear from the language of the statute that a special assessment must have a direct benefit to the property assessed. Graham v Kochville Twp, 236 Mich. App. 141, 151-152, 154; 599 N.W.2d 793 (1999); Ahearn v Bloomfield Charter Twp, 235 Mich. App. 486, 493; 597 N.W.2d 858 (1999). Furthermore, "[i]n determining the sufficiency of the petition, lands not subject to special assessment and lands within a public highway or alley shall not be included in computing frontage or an assessment district area." MCL 41.723(4); MSA 5.2770(53)(4). It follows that the wetlands at issue in the instant case are not subject to assessment for the sanitary sewer system, and should not be considered for the purpose of the signature requirement, if they will derive no benefit from the sewer system.
Except for certain statutorily specified uses, and without a permit from the Department of Natural Resources, a person may not "[c]onstruct, operate, or maintain any use or development in a wetland." MCL 324.30304(c); MSA 13A.30304(c). Clearly, undeveloped land does not benefit from a sanitary sewer system. In fact, petitioners do not argue that the wetlands will benefit from the sewer system. Respondent presented testimony that the wetlands at issue are "unbuildable," and, therefore, will derive no benefit from a sewer system. Petitioners presented no evidence to the contrary. Petitioners have failed to demonstrate that the tribunal erred in applying the law, that the tribunal adopted a wrong principle, or that the tribunal's factual findings were not supported by competent, material, and substantial evidence. Michigan Bell, supra; Alma Piston, supra. Accordingly, we affirm the tribunal's order affirming the sufficiency of the signatures on the petition.
See MCL 324.30305; MSA 13A.30305.
Respondent presented further evidence that the township's position was that, if an owner of wetland property developed the property at some point in the future, that owner would be charged an amount equal to the assessment paid by the owners of non-wetland property within the special assessment district.
Affirmed.