
18 Mich. App. 66 (1969)
170 N.W.2d 510
HUDSON-WEBBER REALTY COMPANY
v.
CITY OF SOUTHFIELD
Docket No. 4,800.
Michigan Court of Appeals.
Decided June 25, 1969.
Fischer, Sprague, Franklin & Ford (George Hogg, Jr., and Francis E. Bentley, of counsel), for plaintiff.
Miller, Canfield, Paddock & Stone (Stevan Uzelac, of counsel), for city of Southfield and Clara Lane, treasurer of city of Southfield.
*68 Burton R. Shifman, for Oak Park School District.
Robert P. Allen, Corporation Counsel, and Hayward Whitlock, Assistant Corporation Counsel, for the county of Oakland.
Condit, Denison, Devine, Porter & Bartush, for Oakland Community College District.
Peter M. Mann, for Oakland Schools Intermediate School District of Oakland County.
Before: LESINSKI, C.J., and QUINN and DANHOF, JJ.
DANHOF, J.
Plaintiff commenced an action for refund of property taxes paid under protest as permitted under the authority of § 53 of the General Property Tax Act,[1] a part of which provides that a person paying under protest may sue for the amount paid and recover if the tax or special assessment is shown to be illegal. There was a trial court judgment of no cause of action.
On appeal plaintiff contends that the so-called "freeze" statute, being § 152 of the General Property Tax Act,[2] applies and also that the assessments giving rise to the taxes are such that they amount to substantially constructive fraud and are therefore illegal. No actual fraud or intentional wrong-doing is alleged or proven.
Specifically plaintiff attacks the tax assessments for 1964 on two parcels of vacant land owned by it as being so excessively high as to be outside the *69 range of honest judgment and, therefore, illegal and invalid because constructively fraudulent.
Parcel 1, known as Northland North consisted of 70 acres zoned for single family dwellings at the time the assessment was made for the 1963 taxes, but rezoned as a multiple family residential district  high rise at the time the assessment was made for the 1964 taxes.
Parcel 2, known as Providence East, consisted of 19-1/2 acres zoned partly commercial and partly single family residence dwelling in 1963, but rezoned as an education-research-office district in 1964.
The assessment of the two properties changed as follows:


                                             1963
                                 1963    Michigan State     1964
                               Assessed  Tax Commission   Assessed
Northland  North  (70 Acres)   $351,350     $235,000     $1,054,050
Providence  East  (19 Acres)   $117,900     $ 65,000     $  393,000

Neither parcel was changed physically and no improvements nor buildings were added to the vacant land between December 31, 1962 (tax day for 1963 taxes), and December 31, 1963 (tax day for 1964 taxes).
Plaintiff asserts that in January, 1964, the Southfield assessor was in a dilemma because the 1963 assessments on the two parcels were being reviewed by the State tax commission, and apparently aware of the three year "freeze" provision in § 152 he wrote the commission asking for advice regarding his 1964 assessments. In February, 1964, the tax commission advised the assessor to:
"* * * place the values on the roll in accordance with his statutory duty for 1964 and if a change in the value for 1963 would be different than the 1964 valuation, the change would be entered on the 1963 roll by the Tax Commission and the same value *70 would be entered on the 1964 assessment roll of the city of Southfield."
By order dated May 11, 1964 the tax commission fixed the assessments for 1963 at $235,000 on Northland North and $65,000 on Providence East. Plaintiff contends that because of the "freeze" provision that determination could not be changed for three years even though the two parcels were rezoned pursuant to city ordinance effective on November 27, 1963 (after the 1963 tax day but before the 1964 tax day).
In the trial court, defendants moved for partial summary judgment, seeking a ruling that the "freeze" statute did not apply to this case. Correspondingly, plaintiff moved for summary judgment on the ground that it was entitled to relief because the "freeze" statute precluded the raising of the assessment for a three-year period.
At that time § 152 provided in part:
"When the assessment of any property has been reviewed by said commission as herein authorized, such assessment shall not be changed for a period of three years, where the property remains substantially the same, without the written consent of said commission."
Subsequent amendment, not herein relevant, has eliminated the phrase "where the property remains substantially the same." The trial court ruled that the statutory "freeze" of § 152 did not apply as the properties involved did not remain substantially the same for the tax years 1963 and 1964, and that the State tax commission had given written consent to change the assessments by its order of December 21, 1964.
This Court affirms the granting of the partial summary judgment for the reason that the statutory *71 "freeze" of § 152 does not apply because the properties involved did not remain substantially the same due to rezoning. Plaintiff's argument that the phrase "where the property remains substantially the same" is limited to physical changes in the land and excludes changes in permitted use of the land is without merit. As stated in defendant's brief,
"Physical change is really only another form of change of use. When property is physically changed it changes the use to which the property may be put and the Assessor must translate the physical change into value  the only characteristic reflected on the assessment roll."
Having found that the rezoning in the instant case resulted in a substantial change to the properties, it is not necessary to make a determination regarding the question of written consent of the State tax commission.
Plaintiff next contends that the assessments are so excessive as to be outside the range of honest judgment and, therefore, fraudulent as a matter of law. However, the record discloses that the assessments were within the range of the appraisals, albeit at the top of the valuations. No evidence was introduced showing the assessment of other property in the city of Southfield, so there is nothing before this Court upon which it could base a finding of discriminatory over-assessment. An over-valuation of land is not by itself sufficient evidence of fraud, Auditor General v. Stiles (1890), 83 Mich 460. This Court finds no violation of the rule of law which protects against intentional and arbitrary discrimination in the execution of the tax laws, Twenty-Two Charlotte, Inc. v. Detroit (1940), 294 Mich 275.
It is appropriate to observe that following the assessor's determination of the 1964 tax assessments *72 on the two properties in question, appellant had them reviewed by the board of review and the State tax commission, both of which approved the assessor's decision. Plaintiff did not appeal from the tax commission's determination.
Plaintiff directed its last two questions to the trial court's rulings that the city assessor could not be questioned concerning the method he used to assess the property and to the trial court's admitting into evidence a partnership agreement setting forth the value for a portion of one of the parcels of land. This Court does not find those rulings prejudicial as they go to the amount or size of the assessment which plaintiff has not proven to be either intentionally or constructively fraudulent. Plaintiff had an opportunity before the local board of review and the State tax commission to present all its evidence relative to valuation. If plaintiff could have shown fraud, error of law, or the adoption of wrong principles, it could have sought judicial review of those administrative decisions.[3] The plaintiff is not entitled to go into valuation per se in a tax fraud case unless it tends to prove the illegality of the tax. Plaintiff has not offered proofs of discriminatory over-assessment, nor is the total assessment beyond the bounds of honest judgment. The record does not substantiate the allegation of constructive fraud resulting in an illegal tax. Here our review must end.
Affirmed, costs to the appellee.
All concurred.
NOTES
[1]  CL 1948, § 211.53 as amended by PA 1962, No 133 (Stat Ann 1969 Cum Supp § 7.97).
[2]  CLS 1961, § 211.152 (Stat Ann 1960 Rev § 7.210).
[3]  See also Allied Supermarkets, Inc., v. State Tax Commission (1969), 381 Mich 693, holding that when that agency's decisions are subjected to judicial review they must be supported by competent, material and substantial evidence on the whole record to be upheld.
