2025.12.17 Response to MTT Order & Mt to Dismiss.pdf
Robert K Haag, Petitioner V Township Of Fair Haven, Respondent · 24-003977-TT
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STATE OF MICHIGAN DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS MICHIGAN TAX TRIBUNAL ROBERT K. HAAG, Petitioner, v TOWNSHIP OF FAIRHAVEN, Respondent. MTT DOCKET No. 24-003977 PARCEL NO. 3208-013-005-50 ______________________________________/ Robert K. Haag In pro per 10605 Canboro Road Sebewaing, MI 48759 (989) 551-1031 Ross K. Bower II (P70574) Kyle A. O’Meara (P83075) Fahey Schultz Burzych Rhodes PLC Attorneys for Respondent 4151 Okemos Road Okemos, Michigan 48864 (517) 381-0100 Rbower@fsbrlaw.com komeara@fsbrlaw.com ______________________________________/ RESPONDENT’S RESPONSE TO MTT ORDER REQUIRING INFORMATION AND RESPONDENT’S MOTION TO DISMISS Respondent Fairhaven Township (the “Township”), through counsel, Fahey Schultz Burzych Rhodes PLC, respectfully submits this Response to the Tax Tribunal’s Order Requiring Information (Docket No. 15) and also requests the Tribunal to Dismiss this Appeal: RESPONSE TO MTT ORDER 1. On December 5, 2025, the Tribunal entered an Order (the “MTT Order”) Requiring Information, requiring the Township to provide written documentation indicating whether the special assessment was approved by the electors. In compliance with the MTT Order, the official election results (attached as Exhibit A) illustrate that the special assessment
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2 was approved by the electors by a vote of 126 to 59. See https://www.co.huron.mi.us/elections. 2. The MTT Order also requested the date the special assessment was approved by the electors. The election was held on May 6, 2025. MOTION TO DISMISS 3. Further, Respondent respectfully moves for dismissal of the subject appeal, as the petition must be dismissed as untimely. 4. The Special Assessment was confirmed on August 20, 2024. The resolution confirming the roll is dated August 20, 2024 as referenced in the Tribunal’s December 5, 2025 Order. See Docket Entry No. 15. 5. Petitioner had 30 days to file an appeal after the date of confirmation (here, being August 20, 2024). See MCL 41.726(3) and MCL 211.746. 6. MCL 41.726(3) states that, following confirmation of the special assessment roll, “all assessments on that assessment roll shall be final and conclusive unless an action contesting an assessment is filed in a court of competent jurisdiction within 30 days after the date of confirmation.” 7. MCL 211.746 states that an “owner or any person having an interest in the real property may file a written appeal of the special assessment with the state tax tribunal within 30 days after the confirmation of the special assessment roll if that special assessment was protested at the hearing held for the purpose of confirming the roll.” 8. The appeal period expired on September 19, 2024. Petitioner’s Petition was filed on September 20, 2024. See MTT Order at p 1 (finding Petitioner filed his appeal on September 20, 2024).
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3 9. Tax Tribunal Rule 205 provides that in computing the time, the first day is excluded and the last day is included. In this case, the day the special assessment was confirmed (August 20, 2024) is excluded, making the final day of the appeal period September 19, 2024. 10. Since the Petitioner did not file this appeal until September 20, 2024, dismissal of this matter is appropriate under MCR 2.116(C)(7). 11. Since there is no specific Tribunal rule governing motions for summary disposition, the Tribunal follows the Michigan Court Rules. See TTR 201(5). 12. Summary disposition is appropriate under MCR 2.116(C)(7) “because Petitioner did not appeal the determination to affirm the special assessment roll within 30 days as required by statute.” See Atkinson v Burns Township (MTT Docket 23-003803) attached as Exhibit B. WHEREFORE, the Township requests that this Honorable Tribunal enter an Order (1) Granting Respondent’s Motion to Dismiss; (2) Dismissing this appeal; and (3) Granting such other and further relief to the Township as the Tribunal deems just. Respectfully Submitted, Fahey Schultz Burzych Rhodes PLC Attorneys for Respondent December 17, 2025 _________________________________________ Ross K. Bower II (P70574) Kyle A. O’Meara (P83075) 4151 Okemos Road Okemos, Michigan 48864 (517) 381-0100
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EXHIBIT A
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Page: 2 of 3 Fairhaven Township Mosquito Abatement Proposal Precinct County Huron County Michigan Fairhaven Township, Precinct 1 Election Day Total Huron County Michigan - Total Cumulative Cumulative Election Day Total Cumulative - Total County - Total Precinct County Huron County Michigan Fairhaven Township, Precinct 1 Election Day Total Huron County Michigan - Total Cumulative Cumulative Election Day Total Cumulative - Total County - Total Yes No 59 59 59 59 5/8/2025 12:53: Total Votes
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C 2% cohuron.mius/elections oo Note: The button below will take you to an external site (Google Forms) Take the Quiz Election Results Nov 4 2025 Official Results May 6th 2025 Official Results
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EXHIBIT B
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STATE OF MICHIGAN GRETCHEN WHITMER GOVERNOR DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS MARLON I. BROWN, DPA DIRECTOR MICHIGAN TAX TRIBUNAL · 611 W. OTTAWA ST., LANSING, MI 48933 · 517-335-9760 PO BOX 30232, LANSING, MI 48909 · Other Carriers: 2407 N GRAND RIVER AVE, LANSING, MI 48906 John D Atkinson, MICHIGAN TAX TRIBUNAL Petitioner, SMALL CLAIMS DIVISION v MTT Docket No. 23-003803 Burns Township, Presiding Judge Respondent. Patricia L. Halm ORDER GRANTING RESPONDENT’S MOTION FOR SUMMARY DISPOSITION FINAL OPINION AND JUDGMENT INTRODUCTION On February 15, 2024, Respondent filed a motion requesting that the Tribunal enter summary judgment in its favor in the above-captioned case under MCR 2.116(C)(4) and MCR 2.116(C)(7). Petitioner did not file a response to the motion. The Tribunal has reviewed the motion and the evidence submitted and finds that granting Respondent’s Motion for Summary Disposition under MCR 2.116(C)(4) and MCR 2.116(C)(7) is warranted at this time. RESPONDENT’S CONTENTIONS In support of its motion, Respondent contends that the subject special assessment for ambulance services was enacted under PA 33 of 1951, MCL 41.801 et seq. Petitioner failed to appear at the public hearing held on October 2, 2023, and failed to appeal the decision within 30 days of the approval of the assessment roll. Respondent contends that it satisfied the notice requirement if MCL 41.801(4) by publishing newspaper notice on September 17 and 30, 2023.1 Respondent contends it provided notice to Petitioner 19 days prior to the hearing by first-class mail, as required by MCL 41.724a(2) and in compliance with the 10-day notification requirement. Respondent contends the notice was mailed to Petitioner at the address listed for Petitioner in the township tax records. Respondent contends that, despite its compliance with all notice requirements, Petitioner failed to attend and protest at the meeting held to affirm the special assessment as required by MCL 211.741. Respondent states that Petitioner errs in considering whether the assessment notice was received and not whether Respondent 1 Respondent’s motion at 3.
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MTT Docket No. 23-003803 Page 2 of 5 met the requirements to publish and mail notice correctly. Further, Respondent contends that Petitioner did not appeal the assessment within 30 days as required by MCL 41.726(3). Respondent contends that the assessment was affirmed on October 2, 2023, and that Petitioner was required to commence this proceeding no later than November 1, 2023. However, Petitioner did not file the petition until December 28, 2023.2 STANDARD OF REVIEW There is no specific Tribunal rule governing motions for summary disposition. Therefore, the Tribunal is bound to follow the Michigan Rules of Court in rendering a decision on such motions.3 In this case, Respondent moves for summary disposition under MCR 2.116(C)(4) and MCR 2.116(C)(7). Dismissal under MCR 2.116(C)(4) is appropriate when the “court lacks jurisdiction of the subject matter.” When presented with a motion pursuant to MCR 2.116(C)(4), the Tribunal must consider any and all affidavits, pleadings, depositions, admissions, and documentary evidence submitted by the parties.4 In addition, the evidence offered in support of or in opposition to a party’s motion will “only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion.”5 A motion under MCR 2.116(C)(4) is appropriate where the plaintiff failed to exhaust its administrative remedies.6 Under MCR 2.116(C)(7), the claim is barred because of “release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of action.” In RDM Holdings, LTD v Continental Plastics Co,7 the Michigan Court of Appeals addressed a motion for summary disposition filed under MCR 2.116(C)(7). In RDM, the court stated: [T]his Court must consider not only the pleadings, but also any affidavits, depositions, admissions, or other documentary evidence filed or submitted by the parties. The contents of the complaint must be accepted as true unless contradicted by the documentary evidence. This Court must consider the documentary evidence in a light most favorable to the nonmoving party. If there is no factual dispute, whether a plaintiff's claim is barred under a principle set forth in MCR 2.116(C)(7) is a question of law 2 Respondent’s motion at 6. 3 See TTR 215. 4 Id. 5 MCR 2.116(G)(6). 6 See Citizens for Common Sense in Gov’t v Attorney Gen, 243 Mich App 43; 620 NW2d 546 (2000). 7 RDM Holdings, LTD v Continental Plastics Co, 281 Mich App 678; 762 NW2d 529 (2008).
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MTT Docket No. 23-003803 Page 3 of 5 for the court to decide. If a factual dispute exists, however, summary disposition is not appropriate.8 CONCLUSIONS OF LAW The Tribunal has carefully considered Respondent’s motion under MCR 2.116(C)(4) and MCR 2.116(C)(7) and finds that granting the motion is warranted. Respondent has presented unrebutted facts sufficient to demonstrate that it met the publication and notice requirements set by statute. It is undisputed that timely publication in the Argus Press newspaper took place on September 17, 2023, as well as additional publication on September 30, 2023.9 Notice of the special assessment proceeding was mailed to Petitioner at the address of record as demonstrated through documents attached to Respondent’s motion. The use of a different name of a legal entity was not rebutted by Petitioner and is presumed to be valid. Turning to the legal standards upon which Respondent relies, the Tribunal’s jurisdiction is set by statute and includes direct review of final decisions made under the tax laws of this state.10 The jurisdiction of the Tribunal “expressly includes special assessments under the property tax laws.”11 A motion under MCR 2.116(C)(4) is appropriate where the plaintiff has failed to exhaust its administrative remedies.12 Here, the unrebutted evidence demonstrate that Respondent effectuated notice to Petitioner in a timely manner and reasonably calculated to advise Petitioner of the formation of the special assessment district. Publication in the Argus Press newspaper was timely and complied with the statutory publication requirement.13 Notice mailed to Petitioner at the record address was also reasonably calculated to effectuate notice. Petitioner indicates in the petition that they did not protest the special assessment at the hearing held to confirm the special assessment roll due to “lack of communication.”14 However, this argument was not sufficiently developed to demonstrate any contention of a due-process failure, and Respondent’s unrebutted facts demonstrate, in the light most favorable to Petitioner, that Petitioner was advised of issuance of the special assessment in a manner complying with law and reasonably calculated to advise them of their statutory duty to protest the assessment at the hearing lest be deprived of the opportunity to further appeal against the assessment. “Due process is satisfied when a taxpayer has a fair opportunity to challenge the accuracy and legal validity of their tax obligation and a clear and certain remedy for any erroneous or unlawful tax collection to ensure that the opportunity to contest the tax is a meaningful one.”15 Meaningful 8 RDM Holdings, 281 Mich App at 687 (citations omitted). 9 See Affidavit of Shirley Riley, Petitioner’s Exhibit C. 10 MCL 205.731. 11 Wikman v City of Novi, 413 Mich 617, 634; 322 NW2d 103, 108 (1982). 12 See Citizens for Common Sense in Gov’t v Attorney Gen, 243 Mich App 43; 620 NW2d 546 (2000). 13 MCL 41.804 14 Petitioner’s petition at p 2. 15 Oak Park Crown Pointe at 5, quoting By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 29; 703 NW2d 822 (2005).
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MTT Docket No. 23-003803 Page 4 of 5 opportunity was provided, and Petitioner failed to demonstrate why it failed to take advantage of that opportunity. The Tribunal therefore grants the motion under MCR 2.116(C)(4). Summary disposition is also appropriate under MCR 2.116(C)(7) because Petitioner did not appeal the determination to affirm the special assessment roll within 30 days as required by statute.16 The Tribunal relies on the facts set forth above. Petitioner’s vague assertion, in the light most favorable to Petitioner, does not raise a due process issue sufficient to potentially rebut any of Respondent’s unrebutted facts. JUDGMENT IT IS ORDERED that Respondent’s Motion for Summary Disposition is GRANTED under MCR 2.116(C)(4) and MCR 2.116(C)(7). IT IS FURTHER ORDERED that the case is DISMISSED. This Final Opinion and Judgment resolves the last pending claim and closes the case. APPEAL RIGHTS If you disagree with the final decision in this case, you may file a motion for reconsideration with the Tribunal or a claim of appeal with the Michigan Court of Appeals. A motion for reconsideration must be filed with the Tribunal with the required filing fee within 21 days from the date of entry of the final decision. Because the final decision closes the case, the motion cannot be filed through the Tribunal’s web-based e-filing system; it must be filed by mail or personal service. The fee for the filing of such motions is $50.00 in the Entire Tribunal and $25.00 in the Small Claims Division, unless the Small Claims decision relates to the valuation of property and the property had a principal residence exemption of at least 50% at the time the petition was filed or the decision relates to the grant or denial of a poverty or disabled veterans exemption and, if so, there is no filing fee. You are required to serve a copy of the motion on the opposing party by mail or personal service or by email if the opposing party agrees to electronic service, and proof demonstrating that service must be submitted with the motion. Responses to motions for reconsideration are prohibited and there are no oral arguments unless otherwise ordered by the Tribunal. 16 MCL 205.746.
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MTT Docket No. 23-003803 Page 5 of 5 Alternatively, you may file a claim of appeal with the Michigan Court of Appeals. If the claim is filed within 21 days of the entry of the final decision, it is an “appeal of right.” If the claim is filed more than 21 days after the entry of the final decision, it is an “appeal by leave.” A copy of the claim of appeal must be filed with the Tribunal to certify the record on appeal. There is no certification fee. By _____________________________ Entered: March 26, 2024 bw PROOF OF SERVICE I certify that a copy of the foregoing was sent on the entry date indicated above to the parties or their attorneys or authorized representatives, if any, utilizing either the mailing or email addresses on file, as provide by those parties, attorneys, or authorized representatives. By: Tribunal Clerk