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Crockery Creek Turkey Farms, Petitioner Vs. Township Of Sheridan, Respondent · 25-003130-TT

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STATE OF MICHIGAN 

RECEIVED 

SEP 02 2025 

MICHIGAN TAX TRIBUNAL 

DEPARTMENT OF LICENSING & REGULATORY AFFAIRS 

MICHIGAN ADMINISTRATIVE HEARING SYSTEM 

MICHIGAN TAX TRIBUNAL 

CROCKERY CREEK TURKEY FARMS 

Petitioner, 

v 

SHERIDAN CHARTER TOWNSHIP, 

Respondent. 

MOAHR Docket No. 25-003130 

PPN: 62-17-29-200-005 

TranInfo:4606 

 26051658-1 

08/29/25 

7 

ft: 

$50.00 

"FOSTER SWIFT 

Thomas K. Dillon (P81136) 

FOSTER SWIFT COLLINS & SMITH, PC 

Attorneys for Petitioner 

1700 East Beltline Avenue NE, Suite 200 

Grand Rapids, MI 49525 

(616) 726-2258 

tdillon@fosterswift.com 

Sheridan Charter Township Assessor 

P.O. Box 53 

Fremont, MI 49412 

PROOF OF SERVICE 

On August 28, 2025, I served a copy of Petitioner’s Motion for Reconsideration, along 

with a copy of this Proof of Service, upon the Assessor for Sheridan Charter Township by first 

class U.S. mail, postage prepaid. 

I declare that the statements above are true to the best of my information, knowledge, and 

belief.

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STATE OF MICHIGAN 

DEPARTMENT OF LICENSING & REGULATORY AFFAIRS 

MICHIGAN ADMINISTRATIVE HEARING SYSTEM 

MICHIGAN TAX TRIBUNAL 

CROCKERY CREEK TURKEY FARMS 

MOAHR Docket No, 25-003130 

Petitioner, 

PPN: 62-17-29-200-005 

v 

SHERIDAN CHARTER TOWNSHIP, 

Respondent. 

Thomas K. Dillon (P81136) 

FOSTER SWIFT COLLINS & SMITH, PC 

Attorneys 

for Petitioner 

1700 East Beltline Avenue NE, Suite 200 

Grand Rapids, M1 49525 

(616) 726-2258 

tdillon@fosterswift.com 

PETITIONER’S MOTION FOR RECONSIDERATION 

Petitioner, Crockery Creek Turkey Farms, by and through 

its counsel, pursuant to Tax 

Tribunal Rule 257 and MCR 2.119(F), respectfully moves this Tribunal for reconsideration of its 

Order of Dismissal, dated August 11, 2025 (the *Order™), and in support of such motion states as 

follows: 

Introduction and Standard for Reconsideration 

The property at issue in this appeal is classified as agricultural property and Petitioner is

Property 

is classified as agricultural, the applicable filing deadline was July 31, 2025. 

MCL 

205.735a(6). 

On July 31, 2025, Petitioner filed another petition involving issues substantially similar to 

the above-captioned case. See Crockery Creek Turkey Farms v Sheridan Charter Township, MTT 

Docket No. 25-003129. Both petitions were prepared and simultaneously mailed to the Tribunal, 

via the US Postal Service, on July 31, 2025. 

See Exhibit 1, Affidavit. 

Both of the envelopes 

containing the petitions feature a red stamp indicating a mailing date of July 31, 2025. 

Both 

petition envelopes were mailed in the same manner and at the same time! 

On August 11, 2025, the Tribunal issued orders dismissing both of the petitions because 

they “were not filed by July 31 or the next business day after the Tribunal offices were closed.” 

Following discussions with Tribunal staff involving similar dismissals that were issued in MTT 

Docket Nos. 25-002926 and 25-003076, Petitioner believes that the reason for the dismissal was 

because, while the envelopes contain a red stamp with the July 31, 2025 date, they do not contain 

a black stamp showing the same date. 

In fact, they contain no black stamp at all. 

Petitioner has 

been unable to determine why the envelope containing the petition in the above-captioned case did 

not receive a black stamp on the date that the envelopes were deposited with the US Postal Service. 

Regardless, Petitioner contends that the petition in the above-captioned case was mailed, and 

therefore filed, timely on July 31, 2025. 

In determining whether to reheat or reconsider a Tribunal decision, the Tribunal applies 

the standard for reconsideration contained in MCL 2.119(F). See, e.g., Robert L Schmalzried Trust

City of Oak Park, 251 Mich App 345, 349; 650 NW2d 404 (2002). A trial court has “considerable 

discretion in granting reconsideration to correct mistakes, to preserve judicial economy, and to 

minimize costs to the parties.” 

Bakian v National City Bank (In re Moukalled), 269 Mich App 

708, 714; 714 NW2d 400 (2006) (internal citations omitted). 

The 

rule “allows the court 

considerable discretion 

in granting reconsideration 

to correct mistakes, 

to preserve judicial 

economy, and to minimize costs to the parties.” Thus, “if a trial court wants to give a ‘second 

chance’ to a motion 

it has previously [granted], 

it has every right to do so” and the rule “does 

nothing to prevent this exercise of discretion.” Kokx v Bylenga, 241 Mich App 655, 659; 617 

NW2d 368 (2000) (internal citations omitted). 

Argument 

Based on MCL 205.735a(6), the filing deadline for property involving agricultural property 

was July 31, 2025. Petitioner filed the Petition in the above-captioned case by first class mail via 

the United States Postal Service. The postage was paid and the Petition was placed in the mail on 

July 31, 2025.2 

Petitioner’s method 

of filing complies with 

the plain language 

of MCL 205.735a. 

Regardless of when the Petition was received by the Tribunal, Petitioner has established that the 

Petition was deposited with the United States Postal Service for mailing and, therefore, the date of 

filing, was timely on July 31,2025. This is no different from a petitioner that files a petition via 

an alternate method that does not receive a postmark stamp or a petitioner that files a petition by 

mail with USPS that does not receive a postmark. For example, petitions delivered via the United

period regardless of the actual date of delivery. 

See MCL 205.735a(7)(c). 

Just as with other 

methods of delivery, Petitioner cannot control how the envelope containing the petition is handled 

after it is deposited with the mailing service. 

Petitioner can only cause the petition to be mailed 

timely, which it did in this case. Arguably, utilizing the delivery date as opposed to the mailing 

date violates the Equal Protection Clauses of the United States* and Michigan Constitutions’ as 

two petitioners filing on the same date 

in the same manner (by USPS mail) will be treated 

differently depending on whether or not the envelope actually receives a black postmark stamp. 

The purpose of using a postmark date as provided in MCL 205.735a(7)(a) is “to provide a 

record of the date of mailing, because mailing is the event that invokes the jurisdiction of the Tax 

Tribunal, and to prevent stale claims.” 

See Arbor Crossing Apt. LLC v Township of Muskegon, 

per curiam, unpublished, COA No. 334318 (October 26, 2017) (citing Electronic Data Sys. Corp. 

v Township of Flint, 253 Mich App 538, 549-550; 656 NW2d 215 (2000)). 

The case at hand is 

distinguishable from Arbor Crossing, supra, as that case involved a petition that was postmarked 

after the filing deadline, which the Court of Appeals deemed to establish a record of the date of 

mailing. Jd. Here, even though Petitioner does not know why the envelope containing the petition 

did not receive a black postmark stamp at all, Petitioner has established that it timely mailed the 

Petition in the above-captioned case on July 31, 2025. 

For these reasons, the Petition was properly filed on July 31, 2025 and the Tribunal’s Order 

of Dismissal constitutes a palpable error requiring reversal. 

Conclusion

Corp, supra. 

Petitioner has established through a sworn affidavit that the Petition in the above- 

captioned case was in fact mailed to the Tribunal on July 31, 2025. Pursuant to MCL 205.735a(6), 

the deadline for appeals involving agricultural property such as the Subject Property was July 31, 

2025. 

The Petition was therefore timely filed. 

For the same reason, the Tribunal’s Order of 

Dismissal finding that the Petition was not timely filed constitutes palpable error that requires 

reversal. 

WHEREFORE, Petitioner respectfully requests that the Tribunal: (1) grant Petitioner's 

Motion for Reconsideration; (2) reverse its August 11 Order of Dismissal; (3) reinstate Petitioner’s 

Petition; and (4) award any other relief that this Tribunal determines to be fair and equitable. 

Respectfully submitted, 

FOSTER SWIFT COLLINS & SMITH, PC 

Attorneys for Petitioner 

Dated: August 28, 2025 

By: Ah wi 

Thomas K. Dillon (P8136) 

1700 E. Beltline Ave. NE, Suite 200 

Grand Rapids, MI 49525 

(616) 726-2258 

86739:00011:201856021-1

EXHIBIT 1

STATE OF MICHIGAN 

DEPARTMENT OF LICENSING & REGULATORY AFFAIRS 

MICHIGAN ADMINISTRATIVE HEARING SYSTEM 

MICHIGAN TAX TRIBUNAL 

CROCKERY CREEK TURKEY FARMS 

MOAHR Docket No. 25-003130 

Petitioner, 

PPN: 62-17-29-200-005 

v 

SHERIDAN CHARTER TOWNSHIP, 

Respondent. 

Thomas K. Dillon (P81136) 

FOSTER SWIFT COLLINS & SMITH, PC 

Attorneys for Petitioner 

1700 East Beltline Avenue NE, Suite 200 

Grand Rapids, M1 49525 

(616) 726-2258 

tdillon@fosterswift.com 

AFFIDAVIT OF JACLYN FOLKEMA 

STATE OF MICHIGAN 

} 

} ss 

COUNTY OF KENT 

} 

Jaclyn Folkema, being duly sworn, 

is competent to testify and makes the following 

statements based on personal knowledge and, if sworn as a witness, could testify to the facts stated 

in this Affidavit: 

1. 

My name is Jaclyn Folkema. 

I am a legal assistant with Foster, Swift, Collins & Smith, 

P.C. and work with municipal attorneys in the Grand Rapids office in receiving, preparing, 

mailing, filing pleadings and other documents with the Michigan Tax Tribunal.

4. 

I also prepared and signed letters dated July 31, 2025, to the Tribunal Clerk enclosing the 

two petitions along with checks for the various filing fees (together the “Petition Packets”). 

S. 

On July 31,2025, I caused the postage to be paid and submitted both of the Petition Packets, 

including the Petition Packet for the above-captioned case, to the United States Postal 

Service by depositing the Petition Packets in the designated outgoing mail receptacle 

located at 1700 E. Beltline Ave. NE, Grand Rapids, Michigan 49525. 

6. 

I deposited both of the above-referenced Petition Packets with the United States Postal 

Service for mailing to the Tribunal at the same time and in the same manner on July 31, 

2025. 

Further affiant sayeth not. 

lyn Folkéma 

STATE OF MICHIGAN 

) 

COUNTY OF KENT 

) 

Acknowledged before me on this 28" day of August, 2025. 

ulie 

, Notary Public 

Barry County, Michigan 

My commission expires: 07/27/31 

Acting in the County of Kent 

86739:00011:201858298-1

EXHIBIT 2

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

2002 WL 31958966 (Mich, Tax Tribunal) 

Michigan Tax Tribunal 

State of Michigan 

ROBERT L. SCHMALZRIED TRUST, PETITIONER 

v. 

TOWNSHIP OF COMMERCE, RESPONDENT 

MTT Docket No. 198854 

March 25, 2002 

OPINION AND JUDGMENT 

I. INTRODUCTION 

A. THE APPEAL, REPRESENTATION, AND THE HEARING. 

*1 

This real property tax assessment matter came before the Michigan Tax Tribunal for hearing on October 13, 1997, in 

its Lansing, Michigan offices. The appeal pertains to tax years 1993 and 1994. Petitioner, Robert L. Schmalzried Trust, was 

represented by agent Frederick W., Morgan, a consultant and appraiser with the firm of Myles B. Hoffert and Associates, P.C, 

Respondent, Township of Commerce, was represented by Gregory K. Need, attorney at law with the firm of Adkison Need, 

P.L.L.C. Both parties presented witnesses. Petitioner offered seven exhibits (Exh) and six were admitted; Respondent offered 

eight exhibits and eight were admitted. Both parties filed post-hearing briefs and responses. 

B. SUMMARY OF CASE. 

The property under appeal is a small marina on Union Lake, with approximately 1.68 acres of land, 42 to 50 boat slips, and 

a 4,750 square-foot (SF) retail structure. The property was vacant at the time of the initial appeal on December 31, 1992, but 

became leased, with an option to purchase, in December 1993. 

The case began in the Small Claims Division for tax year 1993. After the Answer to the Petition was filed, but before the first 

hearing, Petitioner sought voluntary withdrawal. That action was denied by the Tribunal under the provision of TTR 247(2), 

the Rules of November 1981 

in effect at that time, which permitted voluntary dismissal by Petitioner only “before the first 

responsive pleading.” Thereafter, a voluntary dismissal “shall be granted only upon stipulation of all the parties,” a condition 

not met by Respondent's written strong objection to withdrawal.

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

contentions of the parties were such that the Small Claims Division did not have monetary jurisdiction over this commercially 

classed property; (3) sua sponte, the case was to be transferred to the Entire Tribunal Division for processing and hearing; and 

(4) the Small Claims rehearing was adjourned. 

*2 Upon commencement of the hearing of October 13, 1997, in the Entire Tribunal Division, Petitioner stated that the case 

should be dismissed (Vt at 9:18), but the context of the statement was viewed at that time as a statement of position. In Section 

“B” of the “Conclusions of Law,” the matter will be discussed, finding that the statement was one merely of opinion, not a 

motion to dismiss. 

Shortly thereafter, the topic of motions related to dismissal did arise, for which a brief background will assist in understanding 

the context of that request. Well prior to the hearing of October 13, 1997, held in the Entire Tribunal division, Petitioner filed 

four motions (three of which addressed its desire to withdraw), and challenged Respondent's standing in holding for an increase 

in the assessment. At the Entire Tribunal hearing, Petitioner moved for reconsideration of its four prior motions. (Vt at 9:22). 

The Tribunal denied the motion for reconsideration as providing no new material, and concerning matters already considered 

and ruled upon (see “Conclusions of Law,” Section “C” titled “Background and Summary of the Four Motions”). However, in 

that Petitioner no longer challenged the assessment, but Respondent continued in its contention for an increase in assessment, 

the Tribunal ruled that the burden of proof 

in the True Cash Value matter had shifted to Respondent, that burden being “to at least 

establish that the original assessments were too low.” Meadowlanes Limited Dividend Housing Ass'n v City of Holland, 156 

Mich App 238, 242-243; 401 NW2d 620 (1986). The Tribunal's ruling was unchallenged by either Petitioner or Respondent, 

Then, later in the hearing (Vt at 9:47), Petitioner moved again, specifically for summary disposition, the ruling for which the 

Tribunal held in abeyance pending issuance of this Opinion and Judgment. The Opinion and Judgment now being issued denies 

that motion, being without merit; the reasoning is offered later in Section “D” of the “Conclusions of Law.” 

Petitioner was clearly an unwilling litigant at the hearing. In addition to the several motions denied, Petitioner's case became 

a challenge on a variation of the uniformity argument. Petitioner stated it accepted the assessment was uniform as equalized, 

and that the assessment was at the level of all other properties in its class, but contended that the entire assessment class was 

less than a 50% ratio. Petitioner's argument appears to be that any finding by the Tribunal at other than the assessment would 

cause a lack of uniformity between subject and all other properties, and additionally, held that claim out as its foundational 

belief that the case should be dismissed. Petitioner neither provided proofs on the True Cash Value issue, nor offered proofs 

in support of the value reflected by twice the assessment, However, Petitioner did challenge Respondent's valuation proofs in 

cross-examination, and further attempted to establish, through examination of the assessor, that the level of assessment was less 

than 50% for the entire commercial class. 

*3 Respondent, who carried the burden of proof 

on the average level of assessment issue, provided testimony as to the level 

of assessment for subject's Commercial class, establishing that the properties in subject's class as equalized were uniformly 

assessed at a 50% ratio. In this Opinion, the Tribunal rejects Petitioner's case on the average level of assessment issue, in that 

Petitioner offered insufficient and unconvincing proofs in attempting to go forward with its challenge, and found that Respondent 

had met its burden on the assessment level issue. 

On the True Cash Value issue, Respondent claimed that its assessment was below market value, and requested that the Tribunal 

increase the valuation to represent subject's accurate True Cash Value. The valuation issue was made difficult by the fact that

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

repairs had been accomplished, and, 

in part, incorporated business valuation elements commingled with the real property 

appraisal, The mixture of valuation components produced an unacceptable result. 

Consequently, the nature of the evidence required the Tribunal to make an independent determination of value. In doing so, the 

Tribunal found sufficient data in other evidence, offered primarily by Respondent, to support an independent finding of value. 

Of particular importance was a recognition of subject's two market leases and the option to purchase (later exercised), as the 

best available evidence of value for the second of the two years under appeal. The valuation for the first year of appeal was then 

developed by applying a market condition adjustment factor. The Tribunal's resulting independent analysis concludes at a True 

Cash Value well below Respondent's contention of increase, but more than that reflected by the assessment. 

11. FINDINGS OF FACT 

A. ASSESSMENT AND TRUE CASH VALUE CONTENTION DATA. 

The subject property is classified as Commercial Real property for tax assessment purposes. Common symbols used in this 

Opinion are: True Cash Value = TCV, Assessed Value = AV; State Equalized Value = SEV; and Taxable Value = TV. The 

assessment data and True Cash Value Contentions follow: 

ASSESSMENT DATA - TAX NO. 17-01-476-004 

TAX YEAR 

LEVEL 

AVISEV 

SEV x2 

™v 

1993 

50% 

$215,050 

$430,100 

NA 

1994 

50% 

$216,500 

$433,000 

Same as SEV? 

CONTENTIONS OF TRUE CASH VALUE AND LEVEL 

TAX 

PET. TCV 

RESP. TCV 

PET, LEVEL 

RESP. LEVEL 

YEAR 

1993 

AV x2 

$ 700,000 

Less Than 50% 

50% 

1994 

AV x2 

$770,000 

Less Than 50% 

50% 

B. PROPERTY PHYSICAL DESCRIPTION, 

*4 

The subject property, a small marina and retail boat sales facility, 

is located at 2265 Union Lake Road, Union Lake, 

Michigan, in the Township of Commerce, Oakland County, Michigan. The property is zoned B-4, “Restricted General Business,”

Robert L.. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

five overhead doors in the side and rear walls. The roof structure is mostly flat with a tar and gravel covering, constructed over 

steel bar joints, but with a small section of gable design. The building interior has suspended acoustical tile ceilings in most 

parts, fluorescent lighting, painted drywall partitions, with some areas of the floor carpeted and others having vinyl tile, and a 

2-piece lavatory. Heat is furnished by a gas-fired suspended unit in one part, a through-the-wall air conditioner, and the balance 

by a roof-mounted heat/cool unit. The total area of the building is estimated at 4,750 square feet (SF), with a concrete block 

partition wall between a 3,814 SF northern and a 936 SF southern portion, with access between the two parts. The building, 

parking lot, and docks were in need of repair and upgrading, which work was performed by the lessee-purchaser some time 

subsequent to the December 1993 occupancy under the lease. However, the appraiser did not inspect and interview the new 

purchaser until July 1996, after the work had been performed. At that time, it was reported that the cost of repairs were estimated 

at more than $100,000 (Exh R-5, pp 27, 84, 85). 

Other site improvements consist of an irregularly shaped asphalt surface parking lot of approximately 11,500 SF, with defined 

parking spaces for 22 vehicles. In addition, there is a dock on the property, a steel seawall estimated at 115 lineal feet, a 42 to 

50-slip marina (about 42 slips being effectively available with sufficient water depth), and an eight-foot high chain link fence 

at the rear of the site. 

C. RECENT LEASE AND SALES HISTORY. 

1. Leases. 

The retail store lease, Exhibit R-6, was between the Co-Trustees of the Robert L. Schmalzried Living Trust as Lessors (Jack L. 

Rosen, David S. Lichtenstein, and Alan M. Abrams as signatories for the Trust), and Aggressive Marine West, inc. as Lessee 

(Craig Stigleman, signatory). The retail building lease called for monthly rent of $2,000 in the first year of the lease, beginning 

in the seventh month, there being an abatement of rent in the first six months. Thereafter, the second and third lease year's 

rent was $2,093.79 monthly. Rentals were on a net lease basis with the tenant paying all expenses (real & personal property 

taxes, insurance, utilities, trash removal, snow removal, general property care), except for standard exterior landlord functions 

regarding the roof and outer walls. The lease made provision for tenant improvements during the first 90 days of the lease, at 

the tenant's expense, and which become the property of the landlord upon lease termination. The lease contained a five-year 

option to renew following the initial three-year period, but at renegotiated rentals. 

*5 The leasing of the balance of the subject property, the marina portion, was accomplished by the second lease of the same 

date, and the same persons. The marina lease was between Four Seasons Marina, Inc. as Lessors, identified on the signature 

page as being the same Schmalzried Trust, and the same three Co-Trustees as were the signatories of the first lease. The Lessee, 

Aggressive Marine West, Inc., with signature and guarantee by Craig Stigleman, was also the same person as found in the first 

lease. Therefore, as to both the Highest and Best Use, and control of their respective Lessor/Lessee rights, the same parties 

comprised legal ownership and occupancy of the premises. In fact, Petitioner's filing of the instant case before the Tribunal made 

no distinction between the leased sections of property, the Robert L. Schmalzried Trust acting as a singular party of interest. 

The marina lease called for monthly rent of $1,000 in the first year of the lease, beginning in the seventh month, there being 

an abatement of rent in the first six months. Thereafter, the second and third lease year's rent was $1,040.63 monthly. Rentals 

were on a net lease basis with the tenant paying all expenses including real and personal property taxes, insurance, utilities, and

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

months of the lease. (Exh R-6, p 20, sec 22.01). Although the purchase option was contained in only one of the two leases (the 

retail store portion), the specific language was clear that the purchase option rights and the dollar amount pertained to the total 

retail/marina property referenced in the two leases. The two leases comprising the total property were the retail store portion of 

the site described in Exhibit R-6, as well as the marina portion referenced in Exhibit R-7 of the same date. 

The Fuller appraisal also noted having confirmed the sale facts price with the purchaser, that the terms were cash, there were 

no unusual sale conditions, the price was “typical” despite having been purchased from an estate (the “Trust™), and that the 

property had been vacant for approximately five years prior to the lease— requiring a substantial amount of repair.” (Exh R-5, 

pp 5-6). Commerce Township Assessor E. Wynn Berry, called as both Petitioner's adverse witness and Respondent's primary 

witness, also testified in confirmation of the subject sale facts. (Vt at 10:16). Additionally, the Fuller appraisal stated that the 

property reportedly was “offered for sale at the time the [December 1993] lease was negotiated at the price of $825,000” (Exh 

R-5, p 6). However, the Tribunal notes Mr. Fuller neither appeared as a witness to support that statement, nor did the appraisal 

or hearing exhibits contain evidence in support of that statement. 

*6 Prior to the February 1996 sale at $575,000, the subject property had been purchased by Robert L. Schmalzried as Trustee, 

September 29, 1987, for $540,000 (Exh R-2, p 2, and attached Warrant Deed). That same price was also reported by the Fuller 

appraisal (Exh R-5, p 68). Mr. Berry's valuation letter, Exhibit R-2, also noted yet an earlier sale of subject in 1981 for $225,000 

(Exh R-2, p 1), but the 1981 date appears to be in error. Attached to Mr. Berry's opinion letter was a copy of a warranty deed, 

but dated October 24, 1986, not in 1981. Importantly, a notation on the deed stated that it was being issued pursuant to a land 

contract of November 15, 1972. 

D. SUMMARY OF PETITIONER'S CASE, 

Petitioner's case atypically seeks to affirm the assessment originally placed on the property for the tax years 1993 and 1994. 

Thus, Petitioner contends that the assessment on the subject property of $215,050 for 1993 and $216,500 for 1994 are “at the 

same level of assessment as every other property in that particular class as to each and every” tax year, (Vt at 9:33). However, 

Petitioner is not conceding that the average level is at 50% for the commercial class, but contending all properties are at a 

uniform level less than 50%, Furthermore, Petitioner is contending that the case should have been dismissed earlier, moved for 

reconsideration of prior motions already ruled upon, and asserted that Respondent had the burden of proving that an increase 

is warranted. 

In presenting its case, Petitioner produced no witnesses of its own, but rather, relied entirely upon reference to its prior denied 

motions, statements of position, admitted exhibits, and examination of Township Assessor E. Wynn Berry, as an adverse witness, 

1. Petitioner's Motion for Summary Disposition. 

Petitioner questioned Mr. Berry regarding an earlier subject sale price in relationship to the property's current assessment. 

Specifically, referencing Exhibit R-1, the witness was asked to calculate the level of 1993 assessment ratio based upon the 

September 

1, 1987, sale of subject at $540,000. Mr. Berry calculated the relationship at 40.09% (Vt at 9:46), The Tribunal 

noted that the disparity in comparison years was not pursued. That examination question then led directly into several specific

Robert 1. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

proper factual proofs. The Tribunal ruled that the Motion for Summary Disposition would be held in abeyance to allow for 

diligent consideration of the facts and relevant case law. (Vt at 9:49). The Tribunal's ruling, a denial of the motion, is presented 

in the “Conclusions of Law,” Section “D.” 

*7 A summary of other motions brought by Petitioner, and the Tribunal's ruling on the motions, all of which were denied, is 

also presented in the “““Conclusions of Law,” Sections “B” and “C.” 

2. Development of Case Through Examination of Adverse Witness. 

In addition to the brief examination leading to the dispositive motion outlined in Subsection 

1 above, Petitioner relied on his 

further opportunities to cross-examine witness E. Wynn Berry, the Township assessor, coupled with the introduction of several 

exhibits, for development of its case. 

Additionally, Petitioner sought to argue its case through cross-examination of Respondent's assessor witness, attempting to show 

that increasing the value of the subject property, as Mr. Berry contends is proper, would destroy the uniformity that existed in 

the original assessments. To illustrate its point, Petitioner introduced assessment cards on a vacant commercial site immediately 

to the south of subject (tax parcel # [7-01-476-003, Exh P-1), and an improved commercial property adjacent to the north (tax 

parcel # 17-01-476-005, Exh P-2), both being properties referenced by the assessor under direct testimony. In comparing (a) 

the ratio of assessed value in 1992, 1993, and 1994 to the purchase price of $725,000 for tax parcel # 005 

in 1992; and (b) 

comparing the 1993 assessed value to the $500,000 offering price refused about 1993 for tax parcel # 003, the following ratios 

resulted from Petitioner's cross-examination of the assessor (Vt at 11:20): 

Parcel # 005: 1992 AV $261,200/1992 Sale at $725,000 = 36.03% 

Parcel # 005: 1993 AV $276,900/1992 Sale at $725,000 = 38.19% 

Parcel # 005: 1994 AV $294,100/1992 Sale at $725,000 = 40.57% 

Parcel # 003: 1993 AV $123,200/1993 Offer at $500,000 = 24.64% 

With these observations, Petitioner contended that if the subject property's assessment were to be increased, the ratio on the 

property would exceed that imposed on the comparable parcels, thereby destroying the uniformity of assessment. As a result, 

Petitioner contends, the property assessments should remain unchanged. 

In another cross-examination segment related to the level of assessment challenge, Petitioner offered Exhibits P-4, P-5, and 

P-6, all described as being Oakland County Equalization “4018” forms, and appearing to be ratio studies based on appraisal 

sampling. The three single-page charts were all labeled alike, except for stating different years. All bore the title “Oakland 

County Equalization Committee 

- Proposed Corrections for [Year] Equalization.” Exhibit P-4 was for 1992, P-5 for 1993, 

and P-6 for 1994. Petitioner attempted to lay a foundation by questioning the witness, and moved for admission, Respondent 

objected, stating that none of the exhibits were noted on the Exhibit List, to which Petitioner's agent replied that the sheets were 

rebuttal exhibits, which need not be listed. The Tribunal permitted Petitioner to state its case by admitting the Exhibits, but noted

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL. 31958966 (2002} 

*8 

A fourth Exhibit (P-7) was shown to the witness, purporting to be a printout of 

an Oakland County Sales Analysis document 

pertaining to the Jevel of assessment. The witness stated he did not recognize the form or system of sales analysis, and that 

without checking his records was unable to ascertain whether the reported data were actual sales. Petitioner offered the proposed 

exhibit for admission. Respondent objected to admission of the proposed exhibit on the basis that it had not seen the document 

prior to the hearing, had no information on hand to examine the proposed exhibit's data, and that no foundation had been laid 

for its introduction. The Tribunal denied admission of the proposed Exhibit P-7, it not having been listed as an exhibit for which 

the opposing party could prepare, and there having been no foundation laid for its introduction or authentication. 

On a series of miscellaneous topics pertaining to matters other than the assessment level, in continued cross-examination (Vt 

at 11:26-14:10) the assessor witness expressed his views on: (i) subject value was increasing at 14.07% annually; (ii) he had 

verified subject's sales history by both review of the deeds (attached to Exh R-2) and personally with the parties involved in the 

Trust's acquisition of the subject; (iii) his supplement analysis of the subject leases (Exh R-3) concluded the lease rents were 

not at market levels; (iv) acknowledged that the analysis was based on an assumption of subject market value being $700,000 

for reversionary purposes; (v) the only three commercial properties on Union Lake, of which subject is one, are in states of 

transition of Highest and Best Use; (vi) the capitalization rate he used at 4.738% was low since the rapid appreciation increase 

of 14.07%, when added to that rate, resulted in an annual return of 18.81%. 

3. Post-Hearing Argument on Equal Protection. 

In Petitioner's Post-Hearing Brief (Pet. P-H Br), a new argument was offered not presented at hearing, but based on the valuation 

method presented in Respondent's exhibits and testimony. The new claim was that the method of assessment used by Respondent 

violated the Equal Protection Clause [of the Fourteenth Amendment], subjecting the taxpayer to discriminatory treatment and 

taxes not imposed on others. (Pet. P-H Br, pp 55-59). Petitioner cited Allegheny Pittsburgh Coal Co v County Commission of 

Webster County, West Virginia, 488 US 366; 109 S Ct 633 (1989), stating “there is a constitutional requirement that there be a 

reasonable attainment of a rough equality in tax treatment of similarly situated property owners.” (Pet. P-H Br, p 58). Petitioner 

argues that Respondent's calculation of increased value in this matter is based on a trending of the subject's 1987 sales price of 

$540,000, and that “[sJhould the Tribunal adopt such a valuation method, a gross disparity would result.” (Pet. P-H Br, p 56). 

Respondent's Post-Hearing Response Brief (Resp. P-H Br, Response) argued in rebuttal that the subject assessment in Allegheny 

Pittsburgh ranged from eight to thirty-five times its neighbors, a situation unlike subject's case; that the assessment situation in 

the instant case is “exactly the kind of situation that the Supreme Court held was constitutionally valid, that is general adjustments 

made over a short period of time to achieve rough equality and tax treatment of similarly situated property owners.” Respondent 

rejected Petitioner's claims, concluding, “i]t is amazing that Petitioner can seriously contend that this case is applicable to 

this situation 

.... [t]he argument made by Petitioner in this section is both factually and legally unsupported and should be 

rejected.” (Resp. P-H Br, Response, pp 13-14). 

E. SUMMARY OF RESPONDENT'S CASE. 

1. Respondent's Letter Appraisals and Testimony of Assessor.

Robert L.. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

In cross-examination testimony, the assessor agreed that the current use of the subject property was the Highest and Best Use 

of the property. (Vt at 10:32). He also testified to his opinion of True Cash Value for the subject property as being $700,000 for 

1993, and $770,000 for 1994. Both valuations represented a substantial increase over the $430,100 and $433,000 True Cash 

Value reflected by his assessments. The appraiser's letter narrative report (Exh R-2) and supplemental valuation disclosure (Exh 

R-3) placed particular emphasis on market data and income methods to provide the ultimate figures. He did not use the Cost 

Approach to estimate value. 

Although the witness gave consideration to sale data in his determination of value of subject property, he did not provide a 

conclusion for this method. The assessor's valuation letter (Exh R-2) recognized that there were only three commercial properties 

in Commerce Township fronting on Union Lake, and that the subject property was the only one to have boat rental slips. Part 

of his discussion concerned the value levels represented by the two adjoining properties. 

The commercial property to the north of the subject, tax parcel 17-01-476-005, had sold in 1988, and again in 1992 when 

it 

had been converted from a tavern to a real estate office. The 1992 value after remodeling was calculated at $850,000, being the 

$725,000 purchase price from July 1992, plus the $125,000 invested to convert and remodel the building to its new function as a 

real estate office. Given the building's 3,356 SF, the resulting value averaged $253 per square foot. As a further observation, the 

assessor noted the -005 property had sold previously in January 1988 on land contract for $400,000. He calculated the increase 

in sale price during the 4%; years to be 14.07% annual compounded increase in value, plus the 4.738% overall rate to suggest 

a total return of 18.81%, which he described as a “handsome” return. (Exh R-2, p 1). 

A second comparable, the commercial property to the south of the subject property, tax parcel 17-01-476-003, was formerly 

a waterfront tavern (Little Brown Jug) prior to its destruction by fire. The site now is vacant land with 0.73 acres of its [4.67 

acres above water. The owner had refused cash offers of $500,000 for the property, according to reports of Thompson Brown 

Realtors. (Exh R-2, p 2). 

*10 

In another aspect of his valuation discussion, the witness compared an earlier sale of subject property, stated as being in 

January 1981 for $225,000 (Exh R-2, para 6, p 

1), with the September 1987 purchase for $540,000. He observed a resulting 

increase in value of “over 15% compounded” annually as being illustrative of the “unique character” of the subject and the 

two adjacent commercial parcels (-003 and - 005). Using this reasoning, and given Petitioner's calculated 1987 acquisition cost 

of $540,000 compounded to December 31, 1992 at a “conservative” 10% per year, the assessor reasoned that the resulting 

value should be $869,675. (Exh R-2, p 2). The Tribunal notes, however, that his reporting of the $225,000 sale in January 1981 

appears in error as to the date, since the deed was given pursuant to an earlier land contract, thereby also affecting the assumed 

rate of growth in value. Later, in the “Conclusions of Law,” this point will be discussed further. 

Returning to a summary of Respondent's valuation letters, the assessor neither offered a market adjustment analysis relating the 

comparable features to subject, nor presented any independent value as a sales comparison conclusion. In cross-examination, 

the witness testified that subject's 1996 sale at $575,000 resulted from the 1993 lease negotiations, but that he had no reason 

to believe it was not an arm's-length transaction. (Vt at 14:03). 

Respondent's appraiser also applied Income Approach considerations to calculate the value of the subject parcel. Using the 

“rental information supplied by Petitioner's attorney,” the assessor divided $31,000 of income by a capitalization rate of 4.738%, 

to indicate a value of $707,762 “via the income approach,” (Exh R-2, p 2). However, the Tribunal observes that the rental data

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

support of that rental figure. Coupling this rate with his earlier sales analysis indicating value of tax parce! -005 at $850,000, 

the witness concluded that the overall capitalization rate would be 4.738%. 

In addition, Mr. Berry calculated the effect of subject leases upon value in his “Supplemental Valuation Disclosure.” (Exh R-3). 

That calculation had been ordered of both parties by the Tribunal (“Prehearing Summary” of April 24, 1997, para 3-B.2), but an 

Order ignored by Petitioner. The basis for these calculations was the actual lease amounts contained in subject's December 13, 

1993, marine and retail building lease documents. (Exh R-6 and R-7). The combined initial lease amounts of $3,000 triple-net 

per month increase somewhat over the three-year [ease term. Respondent's witness calculated the present value of the annual 

rentals to be $93,783 over the three-year term, using a 10% discount rate. The reversion was calculated at $615,291 using his 

own value conclusion of $700,000 and the Fuller appraisal, rather than the $575,000 purchase option. The total present value 

was $709,074. The appraiser observed that, in his experience, subject lease rents were low, but that the December 1993 lease 

had no effect on the December 31, 1992, tax date for tax year 1993. In cross-examination, the assessor repeated his position that 

the subject lease rentals were below market, and that subject site, along with the two adjoining properties, were in a transitional 

state of Highest and Best Use. (Vt at 13:50). No separate value conclusion was offered under the Income Approach. 

*11 

The assessor reserved his final True Cash Value answer for the reconciliation at the conclusion of his valuation letter. 

The valuation letter recommended that the Tribunal adopt a higher assessment based on the sale data and income capitalization 

analysis. The value estimates directly related to subject were $707,762 (capitalized income), $869,675 (trended prior sale price), 

and $709,074 (present value of income and reversion). In conclusion, Respondent recommended that the Tribunal adopt a value 

of $700,000 for 1993. For 1994, an additional 10% was added to the previous year's value, resulting in a conclusion of $770,000. 

(Exh R-2, p 2). 

2. Summary of Fuller's 1996 Mortgage Appraisal; Exhibit R-5. 

in addition to the assessor's valuation exhibits and testimony, Respondent's valuation evidence included the appraisal report of 

James M. Fuller, MAL attached to Mr. Berry's valuation supplement (Exh R-3). Mr. Fuller's appraisal was also separately offered 

and admitted into evidence as Exhibit R-5. The 108-page narrative appraisal conducted by Fuller Appraisal Services pertained 

to subject's market value as of July 17, 1996, and had been ordered by First of America Bank, NA, for financing purposes. 

Mr. Fuller's report outlined his extensive appraisal qualifications in the addendum of the appraisal, including being a licensed 

Real Estate Broker, a licensed State Certified Real Estate Appraiser in Michigan, and a Member of the Appraisal Institute (MAI). 

Although the Fuller appraisal valued the subject several years after the tax years in question, it did contain substantial market 

analysis, data relating to the subject property, and references to the time period of the appeal. It must be noted, however, that 

the Tribunal accorded minimal weight to much of the appraisal's data, analysis, and conclusions for reasons explained later in 

the “Conclusions of Law,” Section “““H,” Subsection 2. A summary of the Fuller report (Exh R-5) follows: 

a. Highest and Best Use, Exhibit R-5. 

The Fuller appraisal stated that the Highest and Best Use of the subject site as vacant land would be for “traffic oriented and 

residentially oriented commercial use,” while the Highest and Best Use of the subject site as improved would be for “commercial

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

resulted in a building replacement cost of $231,468. Depreciation was calculated at 14%, employing charts in the Marshall 

Valuation Service, and an anticipated building life of 45 years, with an effective age of 15 years. Depreciation allowances were 

subtracted, resulting in a $199,068 depreciated value for the subject building and $45,950 for site improvements, a total of 

$245,018 for building and site improvements. 

*12 

Land value was estimated based on other lakefront sale data, some of which were residential because of limited data for 

commercial lakefront sites. In his land analysis, Mr. Fuller employed four residential sales; the one commercial property on 

Watkins Lake, without D.N.R. marina approval, sold to a subdivision association for beach and recreation purposes. On the 

basis of this analysis, subject site was estimated to have a market value of $400,000 as of the appraisal date. 

In addition to improvement and land values, the subject's D.N.R. marina approval was estimated to have a market value of 

$90,000. The appraiser's method of estimating the value of this intangible asset was the difference between having subtracted 

land value from the capitalized income from marina use. No support for market recognition of the business asset value, the 

business enterprise methodology used in measuring the intangible asset, or the market-validity of the $90,000 conclusion were 

offered. 

The final Cost Approach conclusion for the Fuller appraisal was $735,000 as of the July 1996 date of the appraisal. (Exh R-5, 

p37). 

¢. Sales Comparison Approach, Exhibit R-5. 

The Fuller appraisal provided significant detail and analysis concerning sales comparison and market information, (Exh R-5, 

pp 60-89). A brief description of these property transactions follows. 

Comparable “One” was parcel 17-01-476-005, the same property to the north of the subject considered by Respondent's assessor. 

This April 1992 sale at $725,000 was improved with a commercial building converted after purchase to a real estate office. 

The cost of conversion was about $150,000 but the appraiser estimated the remodeling added only about $100,000 to value. 

Of interest to the Tribunal as being applicable to subject, the appraiser adjusted for changes in market conditions between the 

comparable's 1993 sale and the subject's 1996 valuation date for the bank appraisal. In that process, the appraiser referenced 

subject's own resale, comparing the 1987 transaction at $540,000 with the 1993 purchase option sale in 1996 at $575,000, and 

noted only a 7% difference over the 6-year period. He attributed this small increase to the fact of subject being vacant for five 

years prior to the last sale. After additional analysis, he concluded that an annual change of 5% would be applicable to the 

comparable adjustment, despite the clear evidence of an annual change of only about 1% for subject in its “as is” condition. 

Other adjustments were made, including the $90,000 for subject's marina approval, to indicate $690,000 for subject in 1996. 

(Exh R-5, pp 62-72). 

Comparable “Two” was a marina on Lake Fenton in Genesee County at the Oakland County border. The sale was a 60-slip 

facility with D.N.R. marina approval, two buildings, and a sale price of 

$500,000 in December 1987. The appraiser's adjustments 

included changes in market conditions over time, locational differences, and other factors related to differences with subject. 

The indicated value for subject property was $702,000 as of the July 1996 valuation date. (Exh R-5, pp 74-79).

Robert L.. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

to sale, the full price due within thirty days of closing, and the appraiser's investigation of the transaction, found the sale “to 

be totally arms-length in nature.” (Exh R-5, p 83). In examining that price, the appraiser considered the property having been 

vacant for five years prior to sale, the improving market conditions from 1993 to 1996 measured at an average of 5% per 

year, the need for substantial remedial work, subject improvements performed after the 1993 date, and the assumed intangible 

benefit of $90,000 for the marina approval. The resulting value conclusion for subject was $744,000 as of the July 1996 date 

of appraisal. (Exh R-5, pp 83-86). 

The “Summary” of the Sales Comparison Approach indicated a value range from $655,400 to $744,000. The high end of the 

range resulted from analyzing the sale of the subject property, including recognition of the D.N.R. marina approval valued 

at an estimated $90,000. The least weight was given to Comparable Three, which was a non-waterfront property requiring 

considerable adjustment. Accordingly, the value for subject was narrowed to a range of $690,000 to $700,000, from which the 

value as of July 1996 for financing purposes was concluded to be $700,000 based on the “limited number of such facilities” 

and the “virtual impossibility” of creating new lakefront sites with marina approval. (Exh R-5, p 88). 

d. Income Approach, Exhibit R-5. 

The Fuller appraisal provided an Income Approach. (Exh R-5, pp 38-59). The retail building income was based on a review 

of six commercial comparable rentals, and calculated at $42,750 for subject's 4,750 SF at $9.00 per SF. (Exh R-5, pp 44-49). 

After subtracting a vacancy factor of 5%, the appraiser also deducted estimated expenses of operating the subject property. 

The resulting net income was an annual amount of $35,625 for the retail portion of the subject property. To this figure was 

added additional income based upon seasonal rental of 42 slips. The individual seasonal rate of $1,500 each, determined by 

comparison with slip rentals at other marinas, was reduced for expenses of dock maintenance, insurance, management, and 

real estate tax allocated to the docks, leaving a “dock net income” of $44,600. (Exh R-5, pp 39-43). The “total indicated net 

income” for retail and docks was $80,225. 

*14 The Tribunal takes note that while the retail portion was valued as real property, using a square footage rental, the marina 

portion was based on retail income. That type of income has all the characteristics of being a business net income, similar to 

rental of a hotel or motel room. Additionally, a contributing factor of the marina income is derived from the estimated value of 

the D.N.R marina slip approvals noted in the Cost and Sales Comparison Approaches—which, if it does exist, would be a form 

of non-taxable intangible property (for example, similar to a liquor license). 

The last step in this approach required dividing the net income by a capitalization rate. The Fuller appraisal determined the 

capitalization rate to be 11.7% using the mortgage-equity band-of-investment technique, which by additional reasoning was 

reduced to 11.5% for subject. (Exh R-5, p 56). Therefore, the final calculation was based on $80,225 net income divided by 

11.5% overall rate, which was rounded to $700,000 for the 1996 value estimate. (Exh R-5, p 58). 

e. Reconciliation, Exhibit R-5. 

The Fuller appraisal utilized the three approaches to arrive at $700,000 under the Sales Comparison and Income Approaches, 

and $735,000 under the Cost Approach. The appraiser recognized the “unique nature of the subject property” and the limited

Robert L.. Schmalzried Trust v. Township of Commerce, 2002 Wi. 31958966 (2002) 

3. Respondent's Level of Assessment. 

In addition to testimony on valuation issues, Mr. Berry testified that the average levels of assessment for subject's commercial 

classification were 50% for both tax years 1993 and 1994, and that the County equalization factor was 1.00 for those same 

years, (Vt 10:24). The assessor also testified concerning Exhibit R-8, a form L 4021, as to the changes in value for all property 

classifications between years 1993 and 1994. 

HL. CONCLUSIONS OF LAW 

A. LAW AND CASE LAW PROCEDURAL REFERENCES. 

The assessment of real and personal property in Michigan is governed by the constitutional standard that such property shall 

not be assessed in excess of 50% of its true cash value, as equalized, and that beginning in 1995 the taxable value is limited by 

statutorily determined general price increases, adjusted for additions and losses. 

*15 The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt 

by law ... The legislature shall provide for the determination of true cash value of such property: the proportion of true cash 

value at which such property shall be uniformly assessed, which shall not ... exceed 50% ...; and for a system of equalization 

of assessments. For taxes levied in 1995 and each year thereafter, the legislature shall provide that the taxable value of each 

parcel of property adjusted for additions and losses, shall not increase each year by more than the increase in the immediately 

preceding year in the general price level, as defined in section 33 of this article, or § percent, whichever is less until ownership 

of the parcel of property is transferred. When ownership of the parcel of property is transferred as defined by law, the parcel 

shall be assessed at the applicable proportion of current true cash value. Const 1963, Art IX, Sec 3. 

The Michigan Legislature has defined “true cash value” to mean “the usual selling price.” 

As used in this act, “cash value” means 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 except as 

otherwise provided in this section, or at forced sale. MCL 211.27(1); MSA 7.27(1). 

“True cash value” is synonymous with “fair market value.” CAF Investment Co v State Tax Comm, 392 Mich 442, 450: 221 

NW2d 588 (1974). 

A proceeding before the Tax Tribunal 

is original, independent, and de novo. MCL 205.735 (1); MSA 7.650 (35)(1). The 

Tribunals factual findings are to be supported by competent, material, and substantial evidence. Antisdale v City 

of Galesburg, 

420 Mich 265, 277; 362 NW2d 632 (1984); Dow Chemical Co v Dep't of Treasury. [85 Mich App 458, 462-463; 452 NW2d 

765 (1990). “Substantial evidence must be more than 

a scintilla of evidence, although 

it may be substantially less than a 

preponderance of the evidence.” (Citations omitted) Jones and Laughtin Steel Corp v City of Warren, 193 Mich App 348, 

352-353: 483 NW2d 416 (1992).

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL. 31958966 (2002) 

“There are three traditional methods of determining true cash value, or fair market value, which have been found acceptable and 

reliable by the Tax Tribunal and the courts. They are: (1) the cost-less-depreciation approach, (2) the sales-comparison or market 

approach, and (3) the capitalization-of-income approach.” Meadowlanes Limited Dividend Housing Ass'n v City of Holland, 

437 Mich 473, 484-485; 473 NW2d 636 (1991); Antisdale at 276-277, n 1. The market approach is the only appraisal method 

that directly reflects the balance of supply and demand for property in marketplace trading. Antisdale at 276, n I. ““*“Variations 

of these approaches and entirely new methods may be useful if found to be accurate and reasonably related to the fair market 

value of the subject property.” Meadowlanes, at 485, referencing Antisdale at 277, n 1. “It is the duty of the Tribunal to select 

citing Pantlind Hotel Co v State Tax Comm, 3 Mich App 170; 141 NW2d 699 (1966), aff'd 380 Mich 390 (1968). 

*16 Under MCL 205.737(1); MSA 7.650 (37)(1), the Tribunal must find a property's true cash value in determining a lawful 

property assessment. Alhi Development Co v Orion Twp, 110 Mich App 764, 767: 314 NW2d 479 (1981). The Tribunal may 

not automatically accept a respondent's assessment but must make its own findings of fact and arrive at a legally supportable 

true cash value. Pinelake Housing Cooperative v Ann Arbor, 159 Mich App 208, 220; 406 NW2d 832 (1987); Consolidated 

Aluminum Corp v Richmond Twp, 88 Mich App 229, 232-233; 276 NW2d 566 (1979). 

The Tribunal is not bound to accept either of the parties theories of valuation. Teledyne Continental Motors v Muskegon Twp, 

145 Mich App 749, 754; 377 NW2d 908 (1985). The Tribunal may accept one theory and reject the other, it may reject both 

theories, or it may utilize a combination of both in arriving at its determination. Meadowlanes at 485-436; Wolverine Tower 

Associates v City of Ann Arbor, 96 Mich App 780; 293 NW2d 669 (1980). A similar position 

is stated in Tatham 

v City 

of 

Birmingham, 119 Mich App 583, 597; 326 NW2d 568 (1982): “The Tax Tribunal is not required to accept the valuation figure 

advanced by the taxpayer, the valuation figure advanced by the assessing unit, or some figure in between these two. It may 

reject both the taxpayer's and assessing unit's approaches.” 

B. RULING ON PETITIONER'S STATEMENT AT HEARING FOR DISMISSAL OF CASE, 

Several minutes after the hearing was convened, but before opening statements were received, the Tribunal proceeded with its 

customary process of requesting verification of assessments and positions on valuation contentions. At that time, rather than 

stating its contention of True Cash Value, Petitioner's agent issued what appeared fo be an opening statement of position, the 

statement being merely, “The Petitioner believes that the assessment as equalized is uniformfy assessed, and therefore believes 

that the case should be dismissed.” (Vt at 9:18). There was no identification of the matter being a motion, no citation of a 

Tribunal or Court Rule identified as a procedural basis, and no new facts raised as grounds; Respondent made no comment or 

reply, and Petitioner requested no ruling. The presiding judge remarked that the Tribunal would await his proofs with interest, 

and the case moved on, Several minutes later (Vt at 9:22), Petitioner's agent did move for reconsideration of four prior motions 

(see Section “C” following), and later still (Vt at 9:47) moved for summary disposition (see Section “D” following). 

However, as to the initial statement of position (Vt at 9:18), Petitioner now characterizes that statement in it Post-Hearing Brief 

as though it had been a motion. (Pet. P-H Br, p 2, para 13). Petitioner's brief, drafted by attorney Claris Kaye Cwirko (who had 

not attended the hearing), declared, “Petitioner renewed its motion that the case be dismissed” (Vt at 9:18). Yet, in making the 

statement, the record does not indicate Petitioner employed words such as “motion” or “request,” identifying the statement 

in question as a motion. Neither did Petitioner's agent inquire of the Tribunal for a response or ruling, which would have been

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL. 31958966 (2002) 

rejected previously, and renewed in Petitioner's actual motion for reconsideration proffered several minutes later (see Section 

“C” following). 

C. RULING ON PETITIONER'S MOTION FOR RECONSIDERATION OF 

FOUR PRIOR MOTIONS PREVIOUSLY RULED UPON PRIOR TO HEARING. 

During the initial stages of the hearing (Vt at 9:22), Petitioner requested reconsideration of four motions that had been filed in 

the years 1995 to 1997 prior to hearing, and which the Tribunal had previously denied. Those motions were: (1) the February 

22, 1995, “Motion for Reconsideration” requesting the Tribunal to vacate its “Sua Sponte Order Transferring Case,” wherein 

this matter had been moved from the Small Claims Division to the Entire Tribunal; (2) the “Motion for Voluntary Dismissal 

With Prejudice,” of March 

14, 1996; (3) the “Second Motion for Voluntary Dismissal With Prejudice,” of August 13, 1996; and 

(4) the “Motion to Compel Answers to Interrogatories,” of October 8, 1997. 

These are the four prior motions for which Petitioner moved for reconsideration at hearing. The Tribunal takes note that no 

new facts, supporting evidence or reasoning were presented by Petitioner in support of its renewal motion. Instead, Petitioner 

explained its action as one to “preserve its right to appeal the issues raised on the record at hearing.” Respondent objected, 

arguing that Petitioner presented nothing new that would indicate that the Tribunal's previous denial of those motions was 

incorrect or that would cause the Tribunal fo review its prior rulings. As further argument, Respondent stated it was relying on 

its prior written responses to the four motions filed in this matter. The Tribunal agreed with Respondent's opposition argument, 

denying Petitioner's motion at hearing requesting reconsideration of the four prior written motions, and finding that its earlier 

responses and rulings would stand. 

Petitioner's motion for reconsideration, presented at hearing, was denied as being without merit under provisions of MCR 

2.119(F)(3) pertaining to “Motions for Rehearing and Reconsideration.” The Court Rule provides a specific two-part standard 

for review, that the request will be denied if it “merely presents the same issues ruled on by the court,” and fails to demonstrate 

a “palpable error by which the court and the parties have been misied.” At hearing, Petitioner offered no new facts on the issues, 

thereby failing on both points, 

*18 The following “Background” section provides a history and review of actions relative to these motions. 

1. Background of the Four Motions. 

Petitioner initially filed a petition on September 27, 1993, appealing the [993 tax year assessment, contending that the subject's 

market value was $400,000, and the assessments exceeded fifty percent of the property's true cash value. Respondent filed an 

answer December 8, 1993, contending that the property was underassessed, and that the assessed value should be increased. The 

Michigan Tax Tribunal assigned the case a docket number, and scheduled a Small Claims Division Hearing for May 11, 1994. 

On May 

2, 1994, Petitioner submitted 

a letter informing the Tribunal of Petitioner's intent to withdraw from the case. 

Respondent's reply “vehemently” objected to the withdrawal of the case, stating that valuation studies had been conducted 

indicating that the assessed value was “too low™ on the subject property. Pursuant to TTR 247(2) [Rules of November 1981 

in

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

Petitioner had requested 1994 be excluded, while Respondent moved for 

it to remain included in the appeal. The Hearing 

Referee denied Petitioner's request, declining to grant leave for exclusion under MCL 205.37(5). In the Small Claims Hearing, 

Petitioner contended True Cash Value {TCV) to be $400,000 for tax year 1993. Respondent sought an increase in assessment, 

contending TCV to be $700,000 for tax year 1993 and $770,000 for tax year 1994. The Hearing Referee's Opinion and Judgment 

was entered on October 5, 1994, finding TCV at $655,000 for 1993 and $670,000 for 1994. 

On October 21, 1994, Petitioner filed a “Request for Rehearing” contending that the Hearing Referee committed an “error of 

law” in determining a TCV that increased the State Equalized Value (SEV) by $106,000, an amount in excess of the jurisdictional 

limits ($100,000) of the Small Claims Division, pursuant to MCL 205.762(1). Respondent filed a response to the “Request for 

Rehearing,” contending that the increase could be reduced from $106,000 to $100,000, eliminating any need for a rehearing. 

Supervising Tribunal Judge, Michael A. Stimpson, granted Petitioner's request for a rehearing by Order dated November 23, 

1994, citing “good cause.” 

*19 The case was assigned to Tribunal Judge R. Conrad Morrow, who convened the rehearing on January 13, 1995, in Pontiac, 

Michigan. At the outset, Petitioner stated its contention of TCV as being $433,000 for both years, that figure being exactly 

twice the assessment, and modestly increased over the contended figure presented in the original hearing. Respondent's TCV 

contention remained unchanged at $700,000 for 1993 and $770,000 for 1994, still indicating an increase over the assessed 

valuation of $216,500 currently on the roll for each year. Upon confirming the parties’ contentions of value, but prior to 

presentation of proofs, the Tribunal adjourned the hearing, ruling that the property under appeal exceeded the monetary 

Jurisdictional limits of the Small Claims Division for commercial property. On the Tribunal's own initiative, 

it was ordered 

that the matter be transferred to the Entire Tribunal, the verbal order to be subsequently followed by entry of a written Order. 

In ordering the transfer, the Tribunal's reasoning also rejected Respondent's earlier suggestion that the matter could remain 

in the Small Claims Division if any finding of TCV increase by the Tribunal were arbitrarily reduced to the $100,000 SEV 

limitation [MCL 205.762(1); amended upward from $20,000 for “““property other than residential” by P.A. No. 172 of 1992]. 

That process would have violated the Tribunal's statutory mandate to find True Cash Value. 

On February 10, 1995, the Tribunal issued its “Sua Sponte Order Transferring Case,” removing the matter from the Tribunal’s 

Small Claims Division to the Entire Tribunal, in that the Small Claims Division lacked “subject matter jurisdiction over the 

assessments in issue pursuant to MCL, 205.762(1).” As already noted, the subject property, being commercial and “property 

other than residential,” was constrained by a $100,000 limitation on changes to the SEV in contention. The Tribunal further 

ordered that the subject property's assessment for tax year 1994 be included in the transfer, that year having been automatically 

added to the petition under provision of MCL 205.737(5). 

With the background of the case now having been presented, this next section summarizes factors of each of Petitioner's four 

motions previously filed and ruled upon, and for which Petitioner at hearing again requested reconsideration of those same 

issues. The actual file documents, including Petitioner's motions, Respondent's responses in opposition, and the Tribunal's 

rulings, are incorporated by reference. 

2. Review of the First Prior Motion. 

On February 22. 1995, Petitioner filed its “Motion for Reconsideration.” In support of the motion, Petitioner contended that

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

“[w]hen the court ... determines that 

it lacks jurisdiction of the subject matter of the action, but some other Michigan court 

would have jurisdiction over the action, the court may order the action transferred to the other court where venue would be 

proper”; (¢) in this case, the Small Claims Division lacked jurisdiction to proceed, whereas the Entire Tribunal “clearly ha[d] 

jurisdiction over the instant tax appeal”; and (d) MCL 205.732 granted implied authority for the Order since the Tribunal's 

powers include “[g]ranting other relief or issuing writs, orders, or directives which it deems necessary or appropriate in the 

process of disposition of a matter of which it may acquire jurisdiction.” Additionally, the Tribunal provided its reasoning under 

MCL 205.737(5) in exercising its authority for leaving in place the statutory addition of the subsequent tax year 1994, 

*20 

On October 18, 1995, Petitioner filed with the Michigan Court of Appeals its “Motion for Immediate Consideration,” 

and an “Application for Interfocutory Appeal” On December 28, 1995, the Michigan Court of Appeals granted the motion 

for immediate consideration, but denied the application for leave to appeal for “failure to persuade the Court of the need for 

immediate appellate review.” On March 5, 1996, the Tribunal issued scheduling orders to move the case forward. 

3. Review of the Second Prior Motion. 

On March 14, 1996, Petitioner filed a “Motion for Voluntary Dismissal With Prejudice” (in addition to motions for immediate 

consideration, and for stay of proceedings). In support of its motion for dismissal, Petitioner contended that (a) it had discovered 

new authority (an Arizona appeal) for its argument that the Tribunal had exceeded its authority by failing to permit Petitioner 

to withdraw this appeal and in sua sponte transferring the matter to the Entire Tribunal; (b) Respondent's contention that the 

assessment on the roll was less than 50% of the subject property's True Cash Value was an attempt to state a counterclaim, which 

failed to state a claim upon which relief could be granted since Respondent lacked standing to initiate an appeal; (¢) Respondent 

would have suffered no legal prejudice had the motion been granted; and (d) the granting of the motion would have eliminated 

an entry on the Tribunal's crowded docket, thereby serving the interests of a more efficient administration of justice. On April 3, 

1996, Respondent filed a response to the motion contending that the authority cited by Petitioner was not germane to the case. 

On June 21, 1996, the Tribunal entered an Order denying Petitioner's first motion to dismiss. In support of its Order, the Tribunal 

found that (a) the decision rendered by the Arizona Court of Appeals in Turf Paradise, Inc v Maricopa County, 

et al, 878 P2d 

1375 (1994), had no precedential effect and was irrelevant to a consideration of the issues raised in the motion; (b) Respondent's 

standing to bring a counterclaim was not an issue since the Tribunal is required to render an independent determination of a 

property's True Cash Value and may increase a property's assessment based on the evidence submitted; and (c) an answer to 

the original petition was filed in this case prior to Petitioner's request to withdraw, precluding withdrawal since Respondent 

objected, under TTR 247(2) [Rules of November 1981 

in effect at the time of the event]. The Order placed this case on the 

September 1996 Prehearing General Call (which was later rescheduled), with provisions for exchange of valuation disclosures. 

Additionally, to move the matter forward fairly and efficiently, on the Tribunal's own initiative it waived both Petitioner's filing 

fees and the obligation to conduct the counsel conference (the issues now being well-defined). 

4. Review of the Third Prior Motion. 

*21 

On August 13, 1996, Petitioner filed its “Second Motion for Voluntary Dismissal with Prejudice.” Petitioner raised two 

issues: (a) whether the Tribunal's May 6, [994, decision not to dismiss the matter in the Small Claims Division prior to the initial

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL. 31958966 (2002) 

On October 17, 1996, the Tribunal entered an Order denying Petitioner's second motion to dismiss. As to the first issue raised by 

Petitioner regarding denial of its May 2, 1994, dismissal request, the Tribunal found no new issue, and ruled as it had previously. 

Under the Tax Tribunal Rules in effect at that time (revisions of November 1981), TTR 247(2) provided that “[a] proceeding 

may be dismissed voluntarily by the petitioner before the first responsive pleading. Thereafter, a voluntary dismissal shall be 

granted only upon stipulation of all the parties.” Since Respondent filed an answer to the petition (first responsive pleading) 

prior to Petitioner's May 2, 1994, request, and since Respondent objected to the dismissal, the Tribunal properly refused to grant 

the dismissal. The Tribunal further concluded that Petitioner's contentions were “merely a repeat of an issue presented and ruled 

upon previously,” without merit or new basis. 

As to Petitioner's second issue, the Tribunal found that Petitioner's application of Township of Covert v Consumers Power Co, 

217 Mich App 352 (1996), proposed as a basis to extend the law in this matter, was misplaced and its reasoning ungrounded in 

law. Covert dealt with the requirements of standing, and circumstances under which the Tribunal may acquire subject jurisdiction 

in the initial filing of an appeal. Petitioner's argument incorrectly attempted to draw a correlation between the actions necessary 

for a party to invoke the initial jurisdiction of the Tribunal, as being the same standard required in an ongoing appeal for 

Respondent assessor to contend a different value than that reflected by the original assessment. The Tribunal found Covert 

inapplicable and misapplied to the instant case. Clearly, in Consumers Power Co v Big Prairie Township, 81 Mich App 120, 

159; 265 NW2d 182 (1978), the Michigan Court of Appeals affirmed the potential for underassessment, and the Tribunal's 

jurisdiction to increase an underassessment affirmed from the instant the matter came under appeal. The Tribunal found “no 

jurisdictional constraint upon Respondent pursuing proofs in support of an assessment other than that on the roll, contrary to 

Petitioner's argument.” 

*22 

Following denial 

of Petitioner's motion, the Tribunal found 

that Petitioner had “argued without merit, reaching 

unreasonable conclusions as to its right to withdraw, and causing unnecessary delay and cost.” Specifically, the Tribunal found 

that Petitioner's motion was “neither well grounded in, nor warranted by, existing law, failed] to provide a good-faith argument 

in support of its claim, and serve[d] to cause needless cost and delay.” The Tribunal concluded that Petitioner's attorney had 

signed a motion in violation of MCR 2.1 [4(D)(2)(3), thereby invoking sanctions under the provisions of MCR 2.114(E). The 

Tribunal granted leave for Respondent to submit a detailed statement of costs and attorney fees associated with the motion. 

Costs, as revised, were subsequently approved on December 19, 1996, in the total sum of $396. In its Post-Hearing Brief, 

Respondent reported that the costs had not yet been paid. 

The Tribunal scheduled a Prehearing Conference for April 16, 1997, and on April 24, 1997, the Tribunal issued its “Summary 

of Prehearing Conference and Scheduling Order,” setting the case on the August-September 1997 General Call. By subsequent 

Order, a date certain for hearing was set for October 13, 1997. 

5. Review of the Fourth Prior Motion, 

With the scheduled time for hearing only five days away, on October 8, 1997, Petitioner filed a “Motion to Compel Answers to 

interrogatories” (of June 9, 1997), and a “Motion for Immediate Consideration.” Respondent's instant reply, sent by facsimile 

and filed by first class mail, stated no objection to immediate consideration, but did object to the motion to compel in that it, 

too, had unanswered interrogatories from May 29, 1997. The Tribunal, in its Order of October 10, 1997, granted immediate 

consideration, with copies sent by facsimile and served by first class mail. The Order denied Petitioner's motion to compel

Robert L. Schimalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

D. RULING ON PETITIONER'S MOTION AT HEARING FOR SUMMARY DISPOSITION. 

1. Background, Reasoning and Analysis. 

Following the events at hearing pertaining to reconsideration of the four motions, and short opening statements by both attorneys, 

Petitioner's agent called assessor Berry as an adverse witness. Following about ten minutes of examination, Petitioner moved 

for Summary Disposition (Vt at 9:47). The motion came about in response to three specific questions regarding the assessments, 

for which Mr. Berry had testified that to his knowledge subject's assessments were not fraudulent, not an error of law, and not 

based on the adoption of wrong principles (Vt at 9:46). Those specific answers, the purpose for which immediately became 

apparent, then prompted the motion for dismissal. Petitioner argued briefly that because none of the three conditions for judicial 

review had been met, the Tribunal could not change the assessment, and the matter should be dismissed. In support of its motion, 

Petitioner relied upon Presque Isle Harbor Water Company v Presque Isle Township, 130 Mich App 182, 191; 344 NW2d 285 

(1983), which stated that “[a]n assessment will not be susceptible to attack unless fraud, error of law, or adoption of the wrong 

principles is shown,” 

*23 

Respondent argued in opposition to the motion that the Tribunal had the statutory authority to make an independent 

assessment of True Cash Value, including the possibility of increasing an assessment, and requested that the motion be denied. 

The Tribunal held the motion in abeyance pending review of the cited case law, and elected to rule on the motion in this Opinion. 

In now reviewing the matter, the Tribunal notes that under MCR 2.116(C): “The motion ... must specify the grounds on which it 

is based ... [listing Grounds 

I through 101.” Petitioner's agent did not identify the grounds for his motion by numerical reference 

to the Court Rules, instead, citing a single instance of case law upon which he relied. Since only several of the grounds listed 

in the Michigan Court Rules are applicable to presentation at hearing, 

it was reasonably apparent from the context of the case 

Petitioner's agent relied upon, and his summary statement, that Petitioner's motion was intended to fall under MCR 2.116(C)(4), 

“lacks jurisdiction of the subject matter.” From the Tribunal’s observation, it appears the reasoning Petitioner was attempting 

to put forth was that the contended absence of fraud, error of law, or adoption of wrong principles, acknowledgement of which 

were extracted from witness Berry's testimony under examination, precluded the Tribunal from judicial review of the assessment 

(i.e. “lacks jurisdiction™). 

Having since studied the cited case (Presque Isle), and considered Petitioner's motion to dismiss under summary disposition, the 

Tribunal denies the motion, in that the premise of the motion is unsupported by the misapplication of case law, and is not founded 

in fact or law. The plain, unambiguous language of Presque Isle, the case upon which Petitioner solely relies, states at 189: 

Appellate review of Tax Tribunal decisions is circumscribed by Const. 1963, art.6, 

§ 28, which provides: “In the absence of 

fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for 

the administration of property tax laws from any decision relating to valuation or allocation.” 

There is no uncertainty here. The case citation Mr. Morgan relied upon is out of context, and misapplied, in that the Presque Isle 

citation defined the criteria for appellate review of Tribunal decisions, not the jurisdiction of the Tribunal to hear assessment 

appeals. The Presque Isle citation at [91 is footnoted (n 9) to another case that clearly sets the context as being the Constitutional

Robert L.. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

error of law 

or adoption of a wrong principle, is erroneous, being based on misplaced case law; and (¢) as a result, the Tribunal 

has jurisdiction over the instant tax appeal matter. 

2. Order Denying Petitioner's Motion for Summary Disposition. 

*24 The Tribunal, having given due consideration to the motion, and Petitioner's misplaced reliance upon Presque Isle as the 

sole grounds for the motion, denies the motion for summary disposition. Therefore, 

IT IS ORDERED that Petitioner's Motion for Summary Disposition, presented orally at hearing, is DENIED. 

E. PETITIONER'S POST-HEARING ARGUMENT: VARIATION ON DISMISSAL THEME. 

1. Petitioner's Contention. 

Petitioner's Post-Hearing Brief, pages 39-41, presented an additional argument on the issue of its right to withdraw having 

been denied. This new argument, not presented at hearing or in any other of the Petitioner's filings, offers a new variation of 

the dismissal theme. Although not specifically stated, it appears the argument attempts to restate the grounds for Petitioner's 

dismissal motion of March 

14, 1995 (see “Review of Second Prior Motion,” in Section “C,” preceding), in that the Brief 

references the Tribunal's order of June 21, 1996, denying that motion. 

The heading of Petitioner's Post-Hearing Brief, Section 11], claims that “[t] he Tribunal committed an error of law when it failed 

to follow its own rules regarding the dismissal of an entire tribunal appeal prior to a counsel conference.” In summary, this new 

argument states that subject case came under new Tribunal “Rules of Practice and Procedure,” effective May 

1, 1996. Those 

new rules permitted withdrawal under TTR 247(3) before the time for conducting a counsel conference under TTR 205 had 

expired. Petitioner asserts that, since the counsel conference had been waived in the Tribunal's order of June 21, 1996, “the 

proceeding should have been dismissed upon petitioner's motion.” (Pet. P-H Br, p 40). 

2. Respondent's Rebuttal. 

Respondent's Post-Hearing Response Brief, Section 11, pages 5-8, argues in opposition that the Tribunal's denial represented 

no error of law. While acknowledging that the new rules of May 

1, 1996, now allow for voluntary dismissal prior to the time 

for conducting a counsel conference, Respondent asserted that the time for Petitioner to withdraw had long since expired when 

the Tribunal issued its denial order of June 21, 1996. Attorney Need concluded that “[t]this argument, although admittedly 

ingenious, is irrelevant to these proceedings ... [gliven the chronology of this case, this rule is simply inapplicable.” (Resp. P-H 

Response Br, p 6). Respondent then demonstrated its position by calculating the time at which Petitioner's right to withdraw had 

expired much earlier than the privilege claimed by Petitioner. The chronology of events for time calculation were based on the 

Tribunal Order of February 10, 1995, requiring Petitioner to file a petition, which filing would have began the time sequence 

for an answer, and the time for the mandatory counsel conference would have been not later than May 2, 1995, However, the 

argument continues, Petitioner “never filed the appropriate amended petition” in violation of the Tribunal's Order, and “now

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

err in that support is dependent upon a disregard for Tribunal orders. In contrast, Respondent's reasoning is soundly based on the 

premise that the voluntary withdrawal privilege had expired, and once expired was not later automatically renewed. Reasoning 

on these statements, and presentation of other reasoning, all of which firmly reject Petitioner's argument, follows. 

a. There is No Motion Before the Tribunal to be Argued. 

It has already been observed that the topic of this new argument appears to be Petitioner's dismissal motion of March 14, 1996 

(see “Review of the Second Prior Motion.” in preceding Section *C”). However, the Tribunal’s Order of denial entered June 21, 

1996, had already addressed that motion and its stated grounds. The new argument outlines an entirely different argument than 

those grounds outlined in Petitioner's March 

14, 1996 dismissal motion, or any other motion brought before the Tribunal. As 

explained in Section “C,” the grounds stated, and those which the Tribunal rejected, related to the initial denial of withdrawal 

in the Small Claims Division, and the Tribunal's sua sponte transferal to the Entire Tribunal for lack of jurisdiction in the Small 

Claims sector. Those same grounds were imbedded in Petitioner's agent's oral motion for reconsideration presented at hearing, 

and no new grounds or facts were presented at hearing. Therefore, Petitioner appears to be arguing a “phantom” motion, since 

there is no outstanding motion on this new claim or any other claim. Even if there were an open dismissal motion before the 

Tribunal, based on these newly stated claims, it would be meritless for the reasons presented in the next paragraph. 

b. Important Events and Related Chronology are Omitted. 

Petitioner's chronology of this case failed to list several important aspects of the related events. For example, an important 

omission was recognition of the impact of either the old or new rules in effect upon events that occurred prior to the mid-1996 

time period in which the right to withdrawal 

is argued. The second oversight in relating events was the manner in which 

Petitioner's repeated disregard of Tribunal Orders affected the sequence of events to Petitioner's advantage. The following 

paragraphs illustrate that consideration of these omitted events creates a different picture, defining a clear loss of Petitioner's 

privilege for a unilateral withdrawal from the case at least a year prior to the time currently claimed. 

(i). Tribunal Rules Changes. 

This recitation of events begins with a focus upon the status of the case following the Tribunal’s sua sponte transfer to the Entire 

Tribunal on February 10, 1995. The Tribunal agrees with the premise that upon transfer to the Entire Tribunal, the case would no 

longer be governed by the Small Claims Division rules. The Entire Tribunal Rules in effect at that time were those of November 

1981, in which the rights of voluntary dismissai were governed by TTR 247. The voluntary dismissal provision of TTR 247(2) 

was available “before the first responsive pleading ... [t]hereafter, a voluntary dismissal shall be granted only upon stipulation 

of all the parties.” This rule remained in effect until the new rules of May 1, 1996. The question then is whether there were any 

events that occurred under the old rules, following transfer to the Entire Tribunal, that would have caused Petitioner's right to 

withdraw to have expired. Upon examination of the record, the answer is clearly “yes,” and those rights expired much earlier 

than the time of privilege claimed by Petitioner. 

(ii). Petitioner's Privilege of a Unilateral Withdrawal Expired Under Either One of Alternate Calculations.

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

under the old rules, where the right to voluntary dismissal expired “before the first responsive pleading.” Petitioner's privilege 

of a unilateral withdrawal expired on October 2, 1995. Once expired, the Tribunal holds that the dismissal privilege was not 

automatically renewed by any subsequent event, and could not be claimed absent the Tribunal granting such privilege—an 

action which was neither requested nor likely to have been granted. 

As an additional observation, had Petitioner elected to comply with the Tribunal's Order (it had not) and filed an amended 

Petition in the Entire Tribunal within twenty days, the same rules would have caused a loss of privilege upon Respondent's 

Answer being filed thirty days later on April 

1, 1995, It would be unjust result if the failure to file a petition as ordered were 

ignored, and that disregard for an order permitted to extend Petitioner's privilege. Accordingly, an alternate and just calculation 

would be to compute the time at which the dismissal action expired, based on the time expiration of events that would have 

effected such an expiration had Petitioner's conduct not been prejudicial to Respondent's position. 

In summary, Petitioner's privilege clearly expired October 2, 1995, and earlier on April 1, 1995, if a just calculation were applied 

to the facts, Either way, Petitioner's new argument became moot in the year preceding the time period of its claim. 

I. POST-HEARING ARGUMENT: EQUAL PROTECTION CLAUSE. 

Petitioner's post-hearing brief added yet another new argument to the case not presented at hearing, that Respondent's valuation 

method violated the Equal Protection Clause [of the Fourteenth Amendment], subjecting the taxpayer to discriminatory 

treatment and taxes not imposed on others. (Pet. P-H Br, pp 55-59). Petitioner cited Allegheny Pittsburgh Coal Co v County 

Commission of Webster County, West Virginia, 488 US 366; 109 S Ct 633 (1989), stating “there is a constitutional requirement 

that there be a reasonable attainment of a rough equality in tax treatment of similarly situated property owners.” Petitioner 

argues that Respondent's calculation of increased value in this matter is based on a trending of the subject's 1987 sales price of 

$540,000. “Should the Tribunal adopt such a valuation method, a gross disparity would result,” in that “[o]ther commercial 

properties would be valued using the cost approach for building value and a market approach for the land ....” (Pet. P-H Br, p 56). 

*27 Respondent counters in its Post-Hearing Response Brief (Sec IV, pp 11-14), referencing Allegheny Pittsburgh, that “the 

only legal authority submitted by Petitioner involves a factual situation so greatly different than the instant situation to be almost 

irrelevant.” Respondent further argues in rebuttal that in Allegheny Pittsburgh “Petitioner's property was assessed at roughly 

eight (8) to thirty-five (35) times more than comparable neighboring properties which discrepancies continued for more than 

ten (10) years without change.” (Resp. P-H Br, Response, p 12). Continuing, in citing the Supreme Court case at 343, “as long 

as general adjustments are accurate enough over a short period of time, to equalize the differences in proportion between the 

assessments of a class of property holders, the Equal Protection Clause is satisfied.” Respondent then notes that the assessment 

differences between subject and its neighboring property were not at all like the disparity found in Allegheny Pittsburgh, and 

that subject's case was “exactly the kind of situation that the Supreme Court held was constitutionally valid, that is general 

adjustments made over a short period of time to achieve rough equality and tax treatment of similarly situated property owners.” 

Respondent rejected Petitioner's claims, stating, “It is amazing that Petitioner can seriously contend that this case is applicable 

to this situation .... [tThe argument made by Petitioner in this section is both factually and legally unsupported and should be 

rejected.” (Resp. P-H Br, Response, pp 13-14). 

The Tribunal agrees with Respondent, that Allegheny Pittsburgh is misapplied in this matter, and that Petitioner's arguments are

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

valuation under the circumstances.” That function will be presented later in Section “H” of this Opinion, titled “True Cash 

Value Issue.” 

G. AVERAGE LEVEL OF ASSESSMENT ISSUE. 

*28 This section of the Opinion addresses Petitioner's challenge to the average level of assessment. The challenge is presented 

in a manner that varies from the standard style of such claims. Petitioner is claiming that the average level of the entire 

commercial class is uniform, although uniformly well below 50%, and that subject should be set at that same uniformly low 

level. However, Petitioner offered no specific ratio as the correct level for each year of appeal. Petitioner presented several 

exhibits, and examination of the Township's assessor, in demonstrating its viewpoint that several properties had sold at higher 

prices, yet the subsequent assessments had not been adjusted upward from their lower levels to 50% levels. In addressing its 

statutory burden, and defending against the challenge, Respondent relied primarily upon its assessor-witness Berry, rebuttal 

testimony opposing Petitioner's exhibits, and an exhibit of its own demonstrating the paucity of data sampled in Petitioner's case. 

1. The Legal Standard for Petitioner's Challenge and Respondent's Burden of Proof. 

The Michigan Constitution requires that property be assessed uniformly not to exceed 50% of its true cash value, based on “a 

system of equalization of assessments,” and that the legislature shall so provide. (Const. 1963, art IX, § 3). The actions of the 

legislature are summarized in Allied Supermarkets, 

Inc v City of Detroit, 391 Mich 460, 467-468; 216 NW2d 755 (1974): 

The legislature has, in accordance with the constitutional mandate, 

 “ “provided” for the uniform general ad valorem taxation 

of real and tangible personal property. It has provided for the determination of true cash value of such property. It has provided 

that the proportion of true cash value at which such property shall be uniformly assessed shall not exceed 50%. It has provided 

for a system of equalization of assessments. 

MCL 205.737(3) addresses the topic of Respondent's burden, and MCL. 205.737(2) charges the Tribunal with the duty to apply 

the appropriate level and factor to the True Cash Value finding. Those functions are cited from the statute: 

(2) The tribunal shall determine a property's state equalized valuation by multiplying its finding of true cash value by a percentage 

equal to the ratio of the average level of assessment in relation to true cash values in the assessment district, and equalizing that 

product by application of the equalization factor that is uniformly applicable in the assessment district for the year in question. 

The property's state equalized valuation shall not exceed 50% of the true cash value of the property on the assessment date, 

(3) The petitioner has the burden of proof in establishing the true cash value of the property. The assessing agency has the 

burden of proof in establishing the ratio of the average level of assessments in relation to true cash values in the assessment 

district and the equalization factor that was uniformly applied in the assessment district for the year in question. 

*29 

A level of assessment appeal before the Tribunal is comprised of more than Respondent meeting its statutory burden of 

proof. A successful challenge to a level of assessment places upon Petitioner the demands of a significant role in the appeal 

process, as Respondent correctly argued in its Post-Hearing Brief and Response Brief.

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

City of Ecorse, 227 Mich App 379; 576 NW2d 667 (1998). Notice, too, that the extent of demonstrating a claim of disparity is not 

met by a mere sampling of property assessments, but that the breadth of the test is to be the “taxing district” for that same class. 

The Court of Appeals has well-expressed those same taxpayer duties in an oftquoted passage (underline added) summarized 

from Brittany Park Apartments v Harrison Township, 104 Mich App 81, 88: 304 NW2d 488 (1981): 

The Supreme Court has recognized a taxpayer's right to complain that his assessment was not made in 

taxpayer must show that the ratio of assessed value to fair market value of his property is greater than the 

ratio of average assessed value to the average fair market value in the taxing district. 

In challenging the level of assessment, Petitioner is required to present evidence sufficient to prove that its property is being 

treated differently, and that task has been described as a “heavy burden” by the Court of Appeals. In remanding an early average 

level of assessment case (underline added): “We also think we should note that we have serious doubt as to whether Hoerner- 

Waldorf has sustained, on the basis of the evidence 

it presented, its heavy burden of proving the inaccuracy of the [ratio].” 

Hoerner-Waldorf Corp v Village of Ontonagon. 26 Mich App 542. 548; 182 NW2d 759 (1970). The difficulty of Petitioner's 

duty in presenting its challenge is not met by mere presentation of a few examples. In fact, in one case Petitioner's proofs 

consisting of 119 comparison sales were found to be insufficient, necessitating a remand from the Court of Appeals to the Tax 

Tribunal, and stating (underline added): “It is our opinion that petitioners have inadequately proved that the average ratio of 

assessed to true cash value in the taxing district for the year 1979 was 43%, and not 50% as respondent claims.” Tatham v 

Birmingham, 119 Mich App 583, 597; 326 NW2d 568 (1982). 

2. Petitioner's Case for Relief. 

*30 Petitioner's position was defined in the opening statement at hearing, where Petitioner asserted that the subject was assessed 

at a uniform level as all other properties in its class, but that the entire commercial class was at a level less than 50%. Subject's 

assessments on the roll were not challenged, with Petitioner contending that the assessments as equalized were uniform. (Vt at 

9:18; Pet. P-H Br, p 2; para 12). Under Petitioner's theory, a variation of the usual challenge, any finding of assessment by the 

Tribunal, other than that which is already on the roll, would disturb the uniformity of the subject and the other underassessed 

commercial properties within its class, Clearly, for this argument to go forward, Petitioner must first successfully establish that 

the entire commercial class is assessed at a level whose average is uniformly less than 50% of true cash value. The effort made 

at hearing involved two minimal approaches, neither successful, as described following. 

a. County Equalization Summary Data Not Relevant. 

The first approach was to introduce equalization evidence, hopefully indicating the level of assessment to be less than 50% 

for subject's commercial class. The evidence upon which Petitioner's agent relied were Exhibits P-4, 5, and 6, characterized

Robert I. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

The Tribunal accorded no weight to these exhibits. None of the exhibits had been authenticated, a task which the Tribunal had 

suggested in the Prehearing Summary, and the witness had limited knowledge of the forms or how they were derived. Although 

one column was labeled “Factor by Class,” each exhibit sheet twice carried the phrase, “Proposed Correction.” No evidence had 

been offered to indicate how the chart of proposed figures related to the final average level for the commercial class. Nothing 

in Petitioner's effort offered the Tribunal any indication that the level of assessment should be other than the 50% average level 

to which Mr. Berry had testified earlier had been ascribed to the Township by the County. 

b. Two Adjacent Assessments Fail in Their Sufficiency to Sample Approximately 300 Parcels in the Commercial Class. 

*31 

The second approach in Petitioner's level of assessment challenge consisted of cross-examination of Mr. Berry on two 

neighboring assessments, attempting to show that the entire class of commercial assessments was at a level less than 50%. The 

assessor was asked to calculate the level resulting from the two other neighboring assessments, vacant land tax parcel -003 to 

the south, and the improved commercial tax parcel -005 adjacent to the north of subject (see Findings of Fact, Section C). As 

before, Petitioner failed in this approach. The examples extracted from cross-examination of Mr. Berry, although ranging from 

about 36% to 40% based on assessments for 1992, 1993, and 1994 when compared to the 1992 sale of tax parcel - 005, and 

25% based on the 1993 assessment of tax parcel -003 when compared with an offer refused by the owner, were insufficient to 

establish Petitioner's case. The data examples were not only unconvincing, but minuscule in sampling the approximately 300 

parcels of the commercial class. 

3. Respondent's Case on the Burden of Proof. 

Respondent acknowledged that the burden of proof 

in level of assessment matters fell upon itself pursuant to MCL 205.737(3), 

in support of its contention of a 50% level for each year of appeal. In addition to offering one exhibit, Respondent addressed 

its statutory burden of proof primarily through the testimony of the Township Assessor, E. Wynn Berry. His professional 

qualifications in the assessment field were placed in evidence upon direct examination by counsel (Vt at 9:52). In summary, Mr. 

Berry testified that he has been the Township Assessor for about 30 years, is qualified as a Level IV assessor, is also Director 

of the Downtown Development Authority for the Township, is actively engaged in expanding sanitary sewer and water utilities 

throughout the Township, is a licensed real estate broker, and is responsible for the assessments placed on the record for all 

classes of property in the Township, including subject's assessments. Through use of Exhibit R-8, Mr. Berry explained the 

commercial class assessments (designated as BV, BI, and MM) for 1993 and 1994, and totaling 293 parcels in the latter tax 

year. The witness testified that the subject property assessment was difficult in that there were only three commercial properties 

on Union Lake, one of which was the subject small boat facility and marina. 

On the topic of level of assessment, Mr. Berry further testified that the Township had been granted an equalization factor of 1.00, 

for which the average level of assessment was 50%, relative to subject's commercial class for both 1993 and 1994 tax years of 

appeal. (Vt at 10:24). Under cross-examination, Mr. Berry again described the assessment process, and the difficulties associated 

with insufficient sales for subject's commercial class. He asserted that his methods of valuation were uniformly applied to 

subject's commercial class, although some methods were better under certain circumstances. He testified that his goal was to 

arrive at a uniform level of assessment. (Vt at 13:34). In response to a question by the Presiding Judge, Mr. Berry confirmed the

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

of Township Assessor E. Wynn Berry met that requirement, The witness was credible and in an administrative position of 

experience and knowledge to report accurately on the equalization factor and resulting level of assessment accredited to the 

Township by statutorily mandated procedures. In making that finding, it must be understood that Mr. Berry does not establish 

the level of assessments for the Township; instead, he provides the assessment data for review by those other persons or bodies 

duly authorized to make equalization-related determinations. In testifying, Mr. Berry has been found to be a witness entirely 

capable and knowledgeable in reporting on the outcome of authorized functions applicable to the Township. 

The legislature has granted the State Tax Commission (STC) full statutory authority to provide administration and supervision of 

the tax laws pursuant to MCL 209.102 and 209.104. The STC provides rules and guidelines to the assessors, who prepare the roll 

as provided by MCL 211.24(1) for review, equalization, and certification by the County and State. The State Tax Commission's 

procedures and examples for preparing the roll are extensively defined in the Assessor's Manual and the many published STC 

Bulletins. One procedure, for example, is that levels of assessments between 49% and 50% may be rounded and considered as 

50%. Once the assessment roll has been reviewed and accepted by the County Board of Commissioners, and adopted by the 

Commission's Resolution, it becomes the lawful level of assessment. It is not until the State certified equalization results are filed 

and distributed does the equalization for the County and its assessing districts become final, and “the basis for apportionment 

of all state taxes until another equalization is made.” (MCL 209.4). 

No facts emerged from Mr. Berry's testimony that the Township had failed to provide appropriate compliance with the lawfully 

mandated procedures of uniform assessment practices specified by the State Tax Commission. The preliminary work papers 

and assessment calculations of the assessors and equalization departments are not the lawful ratios, but only part of a process, 

including providing advisory information to the Board of Commissioners. The lawful ratios are the final result of the statutory 

authorization for findings of the Oakland County Board of Commissioners. 

The outcome of the Commissioners' determination, reported by Mr. Berry as it affected Commerce Township for the years of 

appeal, is not only relative to a factor of 1.00, but their authorization also attests to a finding of compliance with MCL 211.34. 

The importance of MCL 211.34 is that it requires the Commissioners, in their assessment roll review functions, to also provide 

statutory compliance applicable to the level of assessment in the finding of a 

cash value established by the legislature.” That is, the Commissioners made a lawful finding that a 50% relationship existed 

between True Cash Value and the equalized assessments, as required by the legislature, and that 50% finding is the lawful level 

of assessment when they found a 1.00 equalization factor for Commerce Township in the years of appeal. 

ree sum which represents the proportion of true 

*33 

Mr. Berry's testimony, found credible, did not pertain to his authority to find a 50% level, since he had no such authority, 

but merely attested to the results of a duly authorized procedure that resulted in a 1.00 equalization factor reflective of a 50% 

level of assessment, If the assessments were not representative of a 50% of True Cash Value level, then the Commissioners 

would have been required by statute (subsection 2 of MCL 211.34) to make adjustment by “adding to or deducting from the 

valuation of taxable real property.” In this case, for the tax years 1993 and 1994 under appeal, the credible testimony that a 1.00 

factor was found indicates they made no adjustment, and that the average level of assessment was at 50%. 

For these reasons, the Tribunal finds Respondent met its burden of proof as required by MCL 205.737(3). 

5. Petitioner Has Failed to Successfully Challenge the Level of Assessment.

Robert L. Schmaizried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

In summary, the Tribunal rejects Petitioner's claim that it is entitled to an assessment level of something less than 50%. Based 

on the evidence in this case, the Tribunal finds that Respondent has met its burden of proof 

in establishing that the average level 

of assessment in the assessing district is 50%, applicable to subject's commercial class in the Township of Commerce for the 

tax years 1993 and 1994 assessments under appeal. Therefore, in application of MCL 205.737(2), the Tribunal determines that 

the subject “property's state equalized valuation by multiplying its finding of true cash value [as presented in the “Conclusions 

of Law” of this Opinion } by a percentage [50%] equal to the ratio of the average level of assessment in relation to true cash 

values in the assessment district, and equalizing that product by application of the equalization factor [1.00] that is uniformly 

applicable in the assessment district for the year{s 1993 and 1994] in question.” 

H. TRUE CASH VALUE ISSUE. 

1. Burden of Proof. 

In the typical True Cash Value dispute, “[tfhe petitioner has the burden of proof in establishing the true cash value of property.” 

MCL 205.737(3). However, this case clearly not being typical of such appeals, Petitioner does not now dispute the subject's 

value or assessment (although did so in the early stages). 

It is Respondent who has contended that the assessment is low, 

abandoning support for the original assessment, and whose position 

is that the True Cash Value should be increased. The 

Tribunal's authority to increase or decrease assessments is grounded in law, MCL 205.732(b), and in this case “the potential for 

a finding of under-assessment came into being the instant” Schmalzried Trust appealed to the Tax Tribunal. “From that moment 

on, the Tax Tribunal had the jurisdiction and power to increase the contested assessment ....” Consumers Power Co v Big Prairie 

Township, 81 Mich App [20. 159; 265 NW2d 182 (1978). 

*34 

Accordingly, the Tribunal ruled at hearing that the burden of proof as to True Cash Value had shifted to Respondent, 

as based on pertinent case law. Respondent's burden 

is “to at least establish that the original assessments were too low.” 

Meadowlanes Limited Dividend Housing Ass'n v City of Holland, 156 Mich App 238, 242-243; 401 NW2d 620 (1986). The 

shift in burden was unchallenged at hearing, and undisputed by either party in their post-hearing briefs. (Pet. P-H Br, p 3, para 

IIIA; Resp. P-H Br, Sec IV, p 42). 

2. Failure of Petitioner to Present Its Own Valuation Evidence. 

Petitioner's case presented no valuation evidence of its own, either in confirmation of the assessments (SEV x 2} that it now 

supports as correct on the roll, or market data in rebuttal of Respondent's contention for a valuation increase. Petitioner's case 

consisted primarily of attempts to show inconsistencies in Respondent's work through the process of cross-examination, and 

the Post-Hearing Briefs. Petitioner's attempt to show that the assessments on the roll (and the reflected True Cash Value) should 

remain unchanged was a failed effort. While some of the weaknesses of Respondent's case were apparent, and correctly pointed 

out in examination, Petitioner had no market evidence of its own to support any other valuation figure. Therefore, the Tribunal's 

review of the failures and strengths of Respondent's valuation work, presented in the discussion following, overlaps Petitioner's 

critique. As such, the Tribunals review of Respondent's approach to an increased assessment covers the critical elements of the

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

Because Petitioner withdrew its claim of grievance over the existing assessments, the True Cash Value task at hand shifted, 

becoming Respondent's burden “to at least establish that the original assessments were too low,” Meadowlanes at 242-243, a 

burden to which the Tribunal found agreement in part. While the Tribunal was not in agreement with the whole of Respondent- 

assessor's work and conclusions as to Exhibit R-2 (a two-page valuation letter, with attachments) and Exhibit R-3 (a two-page 

letter addressing subject leases), it did find that the assessments were lower than the lawful level, and some moderate increase 

was warranted to achieve a legal level. 

It reaching its conclusions, the Tribunal took note of one of Respondent's exhibits. Respondent presented the work of James 

M. Fuller, MAI, admitted as Exhibit R-5, a narrative appraisal of the quality which could have been more useful under other 

circumstances. The details of this 108-page appraisal were noted earfier in summarizing Respondent's “Finds of Fact,” Section 

“E,” Subsection 2. In terms of a properly formatted and developed appraisal valuation product, the Fuller work was far superior 

to the brief letter format valuation opinions of the assessor. Nevertheless, the Tribunal was able to use only limited portions of 

the data of this report, and accorded minimal weight to the analysis and conclusions of the product for a number of significant 

reasons. Those reasons include the following: (a) the time period of valuation was two to three years subsequent to the appeal 

years; (b) at the time of the appraisal subject property had been improved with substantial expenditures for repairs, reported 

at about $100,000; (c) the property was being operated as a small marina and boat sales facility under new fee ownership (the 

option to purchase privilege having been elected) and not under lease as was in existence for one of the two years of appeal; (d) 

the Fuller appraisal valued the retail portion of the site as real property, using building rental rates for the Income Approach, 

an acceptable approach to part of the valuation problem; (d) not acceptable were the inclusion of intangible elements of the 

boat slip business through use of a per-slip business rental income; (e) also not acceptable, either as to methodology or value 

conclusion, was the addition of the estimated intangible value for the D.N.R. permits at $90,000; and (f) although both parties 

made repeated references to Mr. Fuller's appraisal data and analysis, he was not called by either party as a witness to explain 

or defend his data, analysis, reasoning, and conclusions—vithout which significant portions of the appraiser's work were not 

exposed to the examination process. Accordingly, as already stated, the Tribunal placed little weight on the report's conclusions, 

and cautiously employed only minimally selected factors that were not in dispute, for example, subject's sale and occupancy 

history, and information related to the same two adjacent comparables (tax items ~003 and -005) referenced by both parties. 

*35 

Turning now to Respondent's valuation case, the Tribunal agrees with the testimony of Respondent's witness, that the 

Highest and Best Use for subject is its current use (Vt at 10:32), that is, as a small boat sales/service/marina facility. Factors 

supporting that conclusion include the property's location on the waters of Union Lake, its proximity to a public boat launching 

site, its physical layout, the availability of small boat slips, the absence of any other small marina competition on Union Lake, 

and the recent purchase and investment upgrading of the property for small boat retail and marina purposes. These, and other 

related factors, all reasonably support the continued use for the property, either vacant or as improved, as meeting the standard 

four-test criteria for confirmation of the Highest and Best Use conclusion [Appraisal Institute, The Appraisal of Real Estate, 

1" ed. Chicago: Appraisal Institute (1996), 302-306). 

However, Respondent's conclusions relative to its True Cash Value case are found to be unconvincing for reasons summarized 

following: 

a. Respondent's Growth Rate for Subject Was Based on Factual Error.

Robert L.. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

Respondent's Exhibit R-2, the opinion letter drafted by assessor E. Wynn Berry, draws the conclusion that “the rate of increase 

in value of the subject from the 1981 sale to the 1987 sale is over 15% compounded on an annual basis.” (Exh R-2, p 

1, para 

6). Copies of recorded deeds and land contract documents were attached, relative to the subject and other properties referenced 

in the opinion letter. 

Based on the documents attached to the opinion letter, there was 

a $540,000 sale of subject September 29, 1987, to the 

Schmalzried Trust recorded in Liber 10563, Page 321. The mistake is found in Mr. Berry's reporting of the 1981 sale date; there 

was ito earlier sale documents in 1981. The warranty deed attached to his opinion letter exhibit was dated October 24, 1986, and 

distinctly states the deed was given pursuant to an earlier land contract sale dated November 15, 1972. The 1972 land contract 

was also attached, recorded in Liber 6303, Page 169, and stated the “full consideration” to be $156,500 (the price and document 

recording acknowledged by Mr. Berry in direct examination; Vt at 9:56). 

Therefore, the rate of growth for subject, from November 1972 to September 1987, was 8.7% on an annual compounded basis 

in rounded terms, not the “over 15%” reported by Respondent's witness. That fact invalidates much of the opinion letter's 

reasoning and conclusions. Further, there is little merit in using data as old as this material, in that there is neither evidence 

of it being representative of the more current market conditions affecting subject property, nor evidence of the condition and 

physical status of the property that many years ago. 

(ii). More recent sale history 1987 to the 1993 purchase option. 

*36 

In a second example of overstated growth for subject, the most recent sale of the real property was at $575,000 in February 

1996, pursuant to the December 13, 1993, option to purchase. The exercise of the purchase option was embodied within the 

retail store portion of the leases, and was inclusive of the marina portion. Respondent's witness, in his opinion letter, took the 

September 22, 1987, sale price of $540,000, and compounded it at a “conservative 10% per year” from 1987 for five years. Mr, 

Berry then concluded that the projected value of the property would be $869,675 on December 31, 1992. (Exh R-2, p 2, para 3). 

This logic fails because the evidence is that the average annual rate of value increase between the two sale dates was not “a 

conservative 10% per year,” but much less. Whether the most current sale date is figured as effective upon signing the lease on 

December 13, 1993, or the actual date of transaction in February of 1996, makes little difference in the average compounded 

rate of growth. If based upon the 1993 lease date, the annual compound rate is 1.02%, or slightly less at 0.75% if the actual 1996 

option exercise date is used. Those rates of increase produce a far different picture than the 10% or 15% annual compounded 

rates used by Mr. Berry in his appraisal opinion letter. Further, the evidence in this case is that subject was vacant property 

for five years prior to its being leased December 13, 1993. In the year following commencement of the lease, the new tenant 

expended “over $100,000” in repairs. The actual rates of change between 1987 and 1993, as corrected by the Tribunal, are 

nominal, and more accurately specific to subject property than the generalized rates of growth to which the assessor testified 

as being representative of the community. 

b. Respondent's Opinion Letters of Appraisal are not Convincing. 

Beyond the serious flaws of Respondent's Exhibit R-2 opinion letter, noted in the preceding subsection, the assessor draws

Robert L. Schimalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

In Exhibit R-2 opinion letter, the property immediately to the south (-003) was also referenced as a comparable, The property 

was the former location of the Little Brown Jug Tavern prior to its destruction by fire several years prior to the appeal dates. 

The site is now cleared, and the only comparison factor offered is a reported rejected offer of $500,000. The subject is an 

improved property, not vacant land as is the offering, and there are no supporting documents verifying the accuracy or terms 

of the offering, the history of the asking price, or credible indication of the land's true value, The Tribunal places no weight on 

the presentation of this property as a comparable. 

*37 

Finally, Respondent produced Exhibit R-3, an analysis of the subject lease on the property's value. The Tribunal had 

ordered both parties to analyze the effect of the lease upon subject value, but to its credit, only Respondent complied with 

that request. The assessor used a present value concept, concluding subject lease was below market, and that the value of the 

property would be from $615,291 

to $655,538. The Tribunal finds the analysis unconvincing, in that the rental rate for the 

first year is in error since it was abated for six months, the subject rental was claimed to be less than market but no evidence 

was presented in support of that view, and the revessionary value was extracted from the Fuller appraisal at $700,000 rather 

than the actual figure of $575,000 under provision of the purchase option. The resulting calculations are incorrect for which 

no weight can be accorded. 

In conclusion, although little or no weight will be given the valuation work of Respondent's assessor-appraiser, the fact that a 

sincere effort was made to produce an opinion of value under extremely difficult appraisal conditions is to be respected. The 

subject property offers an unusually different and difficult valuation task, with no other properties similar to it on Union Lake. 

4. The Tribunal's Valuation Reasoning, Analysis, and TCV Conclusion. 

In that neither party produced convincing evidence of subject's valuation, the Tribunal performed 

its own independent 

determination of value, finding some increase over the current assessments to be warranted, but well below the assessor's 

contentions. That analysis is discussed following. 

a. Petitioner's Interest is that of a Lessor's Interest for 1994. 

The key to valuation of subject rests in several points of recognition: (a) the property was vacant five years prior to its leasing 

in the second year of appeal, and in need of repairs; (b) the nature of the property, a combination retail structure and marina 

slips, renders it ill-suited for general use in its entirety, and a difficult property to sell or lease; (c) the fact that the new tenant 

expended over $100,000 on the property was a clear sign of a property in need of cash expenditures to render it economically 

fit as an income producing property, an expenditure the landlord had not performed; (d) there is no supporting data to approach 

this appraisal assignment from the viewpoint of a sales comparison or income approach, or evidence that the subject owners 

had received any meaningful market interest in their property prior to its leasing in late 1993; (e) appraisal problems of this sort, 

being sparse in available and applicable data, require maximum use of any significant valuation information in evidence and 

extended use of valuation judgment; (f) fortunately, the subject was leased December 13, 1993, just several weeks prior to tax 

day for the second year of appeal, and that fact is critical to at least one of the two years under appeal; (g) the petitioning party 

in this matter is the Lessor, and therefore the interest being valued is the lessor's interest in the second year of appeal (1994 as of 

December 31, 1993); (h) there is no evidence that the value of the Lessor's interest in 1994 is other than the best available price

Robert I. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

market rate or “present economic income” of the property; (m) the increased value of the property, from performance of the 

“deferred maintenance” repairs at tenant expense, will not be realized until the year following the last year of appeal, therefore, 

not figuring into the present value of the “present economic income” on tax day for tax year 1994 as reflecting its condition for 

years prior; (n) the annual increase in value for the subject property from general market conditions, in the years immediately 

preceding its leasing, have been demonstrated to be about 1% annually, constituting a basically flat market for subject's unusual 

highest and best use and vacant condition; (0) the nominal (1%) annual increase in subject value, based on actual sale data, 

thereby provides the best evidence for the 1993 valuation being 1% less than that figure found for tax year 1994. 

b. Economic and Present Value Factors Used in the Calculations. 

*38 Using the analysis of the preceding section, coupled with data from the two leases (one for the retail and one for the slip 

portion}, and other items of information in evidence, the Tribunal is able to calculate the present value of the Lessor's interest on 

tax day for year 1994. It is this sum that represents “present economic income,” expressed as the value of the Lessot’s interest or 

the “usual selling price” of the income producing property as of the end of the calendar year 1993 (tax year 1994). For rounding 

purposes, the present value of the December 13, 1993, date of the lease will be considered as tax day (December 31, 1993) 

for tax year 1994. 

Expenses are net, with the Lessee paying all major costs. The short term of the lease, and required tenant expenditures, render 

no expectation of a vacancy allowance, particularly since the rent is abated for the first six months by provisions of each of the 

two leases. Tenant repairs to the interior and exterior, as reported in Exhibit R-5, are expected to result in no additional landlord 

expense despite the lease making minor provision for possible costs outside the net terms. The only landlord expense will be a 

5% charge for management. A return for risk was estimated by Respondent's appraiser at 10%, and at 9% by the Fuller Exhibit 

R-5. Considering the short term of the Lessor's interest, and the strong possibility of the purchase option being exercised by 

reason of the required Lessee improvements, the need for a reasonable return for risk would, in the Tribunals view, be properly 

addressed by a 10% annual rate of return. That figure will be converted to a monthly basis in the present value discounting 

process where monthly payments are involved (the present value of a series of payments). When a lump sum is discounted (the 

present value of one), a straight 10% annual rate of discount will be employed. The facts and calculations are coniprised of the 

rental income and reversionary elements described following. 

c. First Year Present Value of Rental Income, 

The retail lease amount (Exh R-6) is $2,000 monthly, the marina lease amount (Exh R-7) is $1,000 monthly, or a total of $3,000 

gross monthly. 

The calculations are: $3,000 per month rental less 5% management = $2,850 net income per month for the last six months of 

the year. The present value of the last six months is $16,612. The present value of that lump sum, deferred six months to the 

date of valuation, is $15,805. 

d. Second Year Present Value of Rental Income.

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

e. Reversion From Exercise of Purchase Option. 

*39 

The terms of the lease require the purchase option to be exercised between the 22 "and the 25™ months, with cash 

payment in full 30 days thereafter. In fact, it was exercised at the last month of the option, with a sale concluding in February 

1996 as reported by both parties, There are no brokerage fees involved, the sale being direct between Lessor and Lessee. For this 

calculation, the Tribunal will use a cash closing in the 26 8 month (2.17 years), reverted as a lump sum to the date of valuation. 

The present value of the $575,000 option amount is $467,263. 

f. Total Present Value of Lessor's Interest, 

The sum of the first year's income at $15,821, plus the “step up” income from the second year and one month of the third year at 

33,221, 

is added to the reversion from exercise of the purchase option at $467,263. The total of $516,305 or $516,300 rounded 

is the True Cash Value of the Lessor's interest being appealed for tax year 1994. 

The True Cash Value difference between 1993 and 1994 is an increase of 1% rounded, as developed by prior analysis. Therefore, 

the 1993 valuation is $516,300 divided by 1.01, being $511,188 or $511,200 rounded. As already noted, the subject property 

had been vacant for several years at the time of the 1993 tax year, and the tenant repairs made in the 1994 year following the 

{ease had not yet been performed. Therefore, it is the Tribunal's conclusion that the Lessor's interest was an “as is” rental at 

the best terms in the market, and in a condition absent tenant improvements. That being the case for 1994, then the paired sale 

analysis performed earlier revealed subject annual rate of change, also in an “as is” condition, indicated only 1% change on 

an annually compounded basis. Thus, the True Cash Value of each year (or the difference between the two years) is readily 

determined upon a sound evidentiary basis. 

I. SUMMARY OF TRUE CASH VALUES AND REVISED 1993 AND 1994 ASSESSMENTS, 

Based upon the “Findings of Fact” and “Conclusions of Law” presented in the preceding sections, the Tribunal concludes 

that the True Cash Values, revised Assessed Values and State Equalized Values for each year of subject property appeal, Tax 

Identification No. 17-01-476-004, are as stated in the following chart. No costs allowed. 

SUMMARY OF FINDINGS - TAX NO. 17-01-476-004 

REVISED 

TAX YEAR 1993 

TAX YEAR 1994 

TRUE CASH VALUE 

$511,200 

$516,300 

ASSESSED VALUE (56%) 

$255,600 

$258,150 

STATE EQ. VALUE (1.00) 

$255,600 

$258,150

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL. 31958966 (2002) 

J. ORDER VACATING SMALL CLAIMS OPINION, 

*40 

This case originated in the Small Claims Division, with a hearing in Pontiac, Michigan before Hearing Referee Mark G. 

Michaelsen on May 11, 1994. Following that hearing, the Referee issued an Opinion and Judgment entered October 5, 1994. 

The Tribunal granted a rehearing, but subsequently, before hold of that rehearing, the matter was sua sponte transferred to the 

Entire Tribunal Division for lack of monetary jurisdiction, wherein a new hearing was conducted. The matter now having been 

heard before a Tribunal Judge in the Entire Tribunal Division, therefore, 

IT IS ORDERED that the Opinion and Judgment of May 11, 1994, issued from the Small Claims Division, is hereby VACATED, 

and replaced by the instant Opinion and Judgment issued from the Entire Tribunal Division upon its entry this date. 

IV. JUDGMENT 

IT IS ORDERED that the subject property's true cash, assessed, and taxable values shall be revised for the tax years at issue as 

provided in the “““Conclusions of Law” section of this Opinion and Judgment. 

IT IS FURTHER ORDERED that the officer charged with keeping the assessment rolls for the tax years at issue shall correct 

or cause the assessment rolls to be corrected to reflect the property's revised assessed and taxable values as provided in the 

“Conclusions of Law” section of this Opinion and Judgment within 20 days of the entry of this Order. 

IT IS FURTHER ORDERED that the officer charged with collecting or refunding the affected taxes shall collect taxes and any 

applicable interest or issue a refund as required by this Order within 20 days of the entry of this Order. If a refund is warranted, 

it shall include a proportionate share of any property tax administration fees paid and of penalty and interest paid on delinquent 

taxes. A sum determined by the Tribunal to have been unlawfully paid shall bear interest from the date of payment to the date 

of judgment and the judgment shall bear interest to the date of its payment. A sum determined by the Tribunal to have been 

underpaid shall not bear interest for any time period prior to 28 days after the issuance of this Order. As provided in 1994 PA 

254 and 1995 PA 232, being MCL 205.737, as amended, interest shall accrue for periods after March 31, 1985, but before April 

I, 1994, at a rate of 9% per year. After March 31, 1994, but before January 

1, 1996, interest shall accrue at an interest rate set 

monthly at a per annum rate based on the auction rate of the 91-day discount treasury bill rate for the first Monday in each 

month, plus 1%. After December I, 1995, interest shall accrue at an interest rate set each year by the Department of Treasury. 

Pursuant to 1995 PA 232, interest shall accrue (i) after December 31, 1995, at a rate of 6.55% for calendar year 1996, (ii) after 

December 31, 1996, at a rate of 6.11% for calendar year 1997, (iii) after December 31, 1997, at a rate of 6.04% for calendar 

year 1998, (iv) after December 31, 1998, at a rate of 6.01% for calendar year 1999, (v) after December 31, 1999, at a rate of 

5.49% for calendar year 2000, (vi) after December 31, 2000, at a rate of 6.56% for calendar year 2001, and (vii) after December 

31, 2001, at a rate of 5.56% for calendar year 2002. 

*41 

R. Conrad Morrow 

Tribunal Judge Presiding

Robert L. Schmalzried Trust v. Township of Commerce, 2002 WL 31958966 (2002) 

al 

MCL 211.27a(2)(a) 

2002 WL 31958966 (Mich. Tax Tribunal) 

End of Document 

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August 28, 2025 

Via United Parcel Service 

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Re: 

Crockery Creek Turkey Farms v. Sheridan Charter Township 

MTT Docket No. 25-003130 

Dear Clerk: 

Enclosed for filing with the Tribunal, please find Petitioner’s Motion for Reconsideration and Proof of 

Service. Also enclosed is a check in the amount of $50.00 to cover the motion filing fee. 

If you have any questions, please do not hesitate to contact us. 

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gesss 

HF 

[29 g 

HINGE 

Ww 

= E 

Note: UPS 

electronic 

Do not sen| 

Internation 

rE 

TT TT TT 

i ET 

En ec

the Contract for the International Carriage of Goods by Road (the “CMR Convention”). These commodities, technology or software

from the U.S. in accordance with the Export Administration Regulations. Diversion contrary to U.S. law prohibited.

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