                          STATE OF MICHIGAN

                           COURT OF APPEALS



KRISTIN WISE,                                                      UNPUBLISHED
                                                                   May 12, 2016
               Petitioner-Appellant,

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

               Respondent-Appellee.


Before: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ.

PER CURIAM.

        In this case involving a challenge to a property tax assessment, 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 2014 tax year. Because petitioner
was afforded due process and the MTT’s determination of value was supported by competent,
material and substantial evidence, we affirm.

        Petitioner is a nonresident owner of a residential rental property 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 taxable value (TV) of $62,900. Petitioner submitted a written protest
to the March Board of Review (MBOR) within the statutory timeframe for MBOR meetings set
by MCL 211.30, but the MBOR did not consider her protest because it had concluded its
proceedings before the time period set by MCL 211.30. Petitioner then appealed to the MTT to
challenge the calculation of her property’s true cash value (TCV) 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, and her claim was heard by a hearing 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 $49,000. 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, respondent offered an appraisal of the
property, which employed two valuation approaches: a cost approach and a sales approach.
Petitioner attempted to present documentary evidence in support of her position, including
evidence of recent sales in the area; but this evidence was excluded by the hearing referee
because petitioner failed to serve the documents on respondent 21 days before the hearing as

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required by Mich Admin Code R 792.10287. Following the hearing, which included testimony
from petitioner,1 the hearing referee adopted respondent’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 judgment, 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 her 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 conclusions 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 question, 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 evidence was properly excluded
under Mich Admin Code R 792.10287. Nonetheless, the MTT then considered petitioner’s
documentary evidence, and still concluded that the property had a TCV of $125,800. Petitioner
then moved for reconsideration, which the MTT denied. Petitioner now appeals as of right.

        On appeal, petitioner argues that the MBOR’s failure to comply with MCL 211.30, and
its refusal to consider her protest, violated due process and denied her a meaningful opportunity
to be heard. According to petitioner, this error was compounded, 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, petitioner challenges the MTT’s
determination of value, asserting that the MTT failed to conduct an independent review and that
the MTT’s decision was not supported by competent, material, and substantial evidence. In
particular, petitioner argues that the MTT should have considered 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 that the MTT should have relied on the
purchase price as well as petitioner’s sales evidence to reach a TCV of $98,000. We disagree.

        “Absent fraud, this Court’s review of a MTT decision is limited to determining whether
the tribunal made an error of law or adopted a wrong legal principle.” Meijer, Inc v City of
Midland, 240 Mich App 1, 5; 610 NW2d 242 (2000). “The tribunal’s factual findings are upheld
unless they are not supported by competent, material, and substantial evidence.” Id. Statutory
interpretation poses a question of law, which this Court reviews de novo. Lee v Smith, 310 Mich
App 507, 509; 871 NW2d 873 (2015). Likewise, constitutional questions, 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).


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       We first consider petitioner’s contentions that, by concluding its meetings on March 7,
the MBOR failed to comply with MCL 211.30 and that this statutory violation deprived her of an
opportunity to be heard on her tax assessment protest. Relevant to petitioner’s argument, “[t]he
owner of real property is entitled to the protection of constitutional 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 concept, 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 collection of those taxes.” Mich
Props, LLC v Meridian Twp, 491 Mich 518, 530; 817 NW2d 548 (2012). “It also provides for
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 when 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 March, the board
       of review of each township shall meet at the office of the supervisor, at which
       time the supervisor shall submit to the board the assessment roll for the current
       year, as prepared by the supervisor, and the board shall proceed to examine and
       review the assessment roll.

After this review of the tax roll 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 of review shall meet
       on the second Monday in March.[2]

                                               ***

       (3) The first meeting of the board of review shall start not earlier 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 that 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 afforded an opportunity
       to be heard by the board of review. . . . The board of review shall hold at least 3



2
  By ordinance or resolution adopted by the City’s governing body, the MBOR may instead meet
starting on the Tuesday or Wednesday following the second Monday of March. MCL 211.30(2).


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       hours of its required sessions for review of assessment rolls during 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 required. . . .

        The statutory meeting requirements in MCL 211.29 and MCL 211.30 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 denote 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 statutory provisions, taxpayers are “entitled to assume that the board
[will] remain in session the full length of time provided by the statute,” and taxpayers cannot be
deprived of an opportunity to be heard in keeping with the statutory 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 considered 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 beginning 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 considered 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 board of review shall meet on the
first Tuesday following the first Monday in March in each year at such place as shall be
designated by the council, and shall continue in session from day to day, for the purpose of
considering and correcting the roll, for four days, and as much longer as may be necessary. . . .”
4
  We note that “the provisions of the GPTA are applicable to cities only insofar as the act does
not conflict with a charter provision or ordinance enacted by the municipality.” AERC of Mich,
266 Mich App at 722. In other words, “if a conflict exists between 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 offers no argument on appeal to
justify its failure to comply with MCL 211.30, and respondent indicates that steps have been
taken to amend the MBOR procedures going forward.


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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 afforded to her by virtue of the MTT’s consideration of her
assessment. That is, as a general proposition, depending on the circumstances, the availability of
a remedy for an error, such as subsequent review by another entity 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 property tax assessments in
particular, the March meetings held by the MBOR are not a taxpayer’s last opportunity to
challenge an assessment. Rather, taxpayers are also afforded an opportunity for review by the
MTT.5 See MCL 205.735a(2). A proceeding before the MTT “is original 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 evidence 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 petitioner with the procedural
due process denied by the MBOR and the MTT is thus in a position 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 deprive the MTT of jurisdiction in this case
because, as discussed, petitioner in fact brought her protest within 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 that she failed to protest before
the MBOR, thus leaving petitioner without a remedy, she might have 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 violation by the MBOR, the petitioner had a
hearing before the MTT regarding her application for a tax exemption, 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 appear 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 evidence beyond that considered by the
MBOR and the MTT based its decision on the petitioner’s application 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, including an opportunity to supplement
her original application and to present new evidence. Id. at 485. Unlike in Spranger, in this

                                                -5-
this case, we conclude that the de novo MTT proceedings afforded petitioner a meaningful
opportunity to be heard by an impartial decisionmaker, and these 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 appeal that the MTT proceedings cannot have cured the
MBOR’s error in this case because the hearing referee improperly excluded petitioner’s
documentary evidence, thereby again denying her a meaningful opportunity to be heard. Insofar
as petitioner challenges the hearing referee’s evidentiary decision, her claim is clearly without
merit. In proceedings before the small claims division, Mich Admin Code R 792.10287(1)
provides the hearing referee with the discretion to exclude evidence when, as in this case, a party
has not served the opposing party with the evidence 21 days before 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 requires 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 with established 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 afforded 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 failure to comply with the
evidentiary requirements does not amount to a deprivation of due process, particularly given the
written notice petitioner received 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 documentary evidence, petitioner was
afforded the opportunity after the hearing to challenge the referee’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 fact considered petitioner’s documentary evidence in its final
opinion and judgment. On this record, petitioner plainly had the opportunity to present her
valuation arguments and there is no merit to her due process claim.

                                   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 supported by a sales approach,
was supported by competent, material and substantial evidence. In particular, in Michigan,
property is assessed at 50 percent 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 materials she presented to the MBOR.
Spranger is thus distinguishable and it does not necessitate a second hearing by the MTT.


                                                -6-
refers to “the usual selling price at the place where the property 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 property’s TCV. MCL 205.737(3).
Purchase price may be relevant to determining the value of a property, Profl Plaza, LLC v
Detroit, 250 Mich App 473, 476; 647 NW2d 529 (2002); but there is no presumption that
purchase price represents the property’s TCV, MCL 211.27(6).

        Indeed, there is no single statutorily required method for determining 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 order to determine the appropriate
method of arriving at the true cash value of property, utilizing 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 employing 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, and accounting for depreciation,
the appraiser determined that petitioner’s property had a market value of $125,800. In
comparison, petitioner’s assertion of valuation was supported by the purchase price of the
property as testified to by petitioner and a sampling of purportedly comparable properties
compiled by petitioner. The MTT conducted an independent review of this evidence and the
documents presented, including the appraisal and property record card detailing the property’s
features. Based on this review, the MTT concluded that respondent’s evidence of the cost
approach coupled with the sales approach provided a reliable indicator of value. Thus, the MTT
adopted the cost approach to arrive at a value of $125,800 as the property’s TCV.

        In arriving at this TCV, the MTT considered the purchase price evidence offered by
petitioner, but correctly recognized that this was not presumed to be the property’s TCV. See
MCL 211.27(6). Further, the MTT reasoned that the purchase price 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, while the hearing referee excluded petitioner’s documentary sales
evidence, the MTT ultimately considered this evidence in its final opinion and judgment,
explaining that petitioner’s attempt to provide evidence of comparable sales was unimpressive
because, unlike respondent, petitioner provided market data without making necessary
adjustments to the comparable properties. In its final opinion and judgment, the Tribunal
explained its acceptance of respondent’s sales evidence over petitioner’s evidence as follows:

       Petitioner’s sales evidence does not contain adjustments. Rather, 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 count, and attached

                                                -7-
       versus detached garages. In addition, there are many other features of properties
       not reflected within Petitioner’s evidence such as lot size, quality 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 adjusted price range
       from $115,600 to $153,700. The Tribunal finds that the sales used are
       comparable to the subject requiring relatively low gross adjustments. As such, the
       Hearing Referee properly found that Respondent’s sales comparison approach
       supported the assessed true cash value.

On the whole, considering the evidence presented and the analysis 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 evidence and explanation for its
determination of value, petitioner contends (1) that the MTT should 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 purchase price and her sales evidence,
and (3) that the MTT overlooked certain characteristics of the property and ignored errors in
respondent’s appraisal. These arguments are without merit. The 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 were for the MTT to decide. See
Drew v Cass Co, 299 Mich App 495, 502; 830 NW2d 832 (2013). And, to the extent the MTT
did not discuss particular property 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 the MTT’s conclusions, the fact
remains that the MTT independently reviewed the evidence presented and made a determination
of value that was supported by competent, material and substantial evidence. See Meijer, Inc,
240 Mich App at 5. Thus, there is no basis for reversing the MTT’s finding of value and
petitioner is not entitled to relief.

       Affirmed.



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




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