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Craig Cotterman, Petitioner V Roscommon County Board Of Commissioners, Respondent · 24-003609-TT

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RECEIVED 

OCT 11 2024 

Fahey Schultz 

ATTORNEYS 

151 

105 

Burzych Rhodes 

micrican Tax TriBuNAL eros. 

FSBRLAW.COM 

381.0100 

517.381.5051 

October 9, 2024 

Via UPS 

Tribunal Clerk 

Michigan Tax Tribunal 

2nd Floor 

2407 N. Grand River Avenue 

Lansing, MI 48906 

Dear Clerk: 

Re: 

Craig Cotterman 

v Roscommon County Board of Commissioners 

MOAHR Docket No. 24-003609 

Please find enclosed for filing Respondent’s Motion and Brief for Summary Disposition, Proof of 

Service, and our check in the amount of $100.00 as payment. 

If you require additional information, please do not hesitate to contact me. 

Sincerely, 

ROSS K. BOWER 

II 

MEMBER 

Direct: 517.381.3190 

rbower@fsbrlaw.com 

RKB/jas 

Enclosures 

cc 

Craig Cotterman (w/encl)

STATE OF MICHIGAN 

DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS 

MICHIGAN TAX TRIBUNAL 

COTTERMAN, CRAIG, 

Petitioner, 

MTT DOCKET No. 24-003609-TT 

v 

PARCEL NO. 003-670-019-0000, 003- 

670-020-0000 

ROSCOMMON COUNTY BOARD OF 

COMMISSIONERS, 

Respondent. 

/ 

Craig Cotterman 

Ross K. Bower II (P70574) 

In pro per 

Samantha R. Reetz (P86523) 

413 Old Trail Drive 

Fahey Schultz Burzych Rhodes PLC 

Houghton Lake, MI 48629 

Attorneys for Respondent 

(989) 366-8220 

4151 Okemos Road 

cecotterman@hotmail.com 

Okemos, Michigan 48864 

(517) 381-0100 

Rbower@fsbrlaw.com 

sreetz@fsbrlaw.com 

RESPONDENT’S MOTION AND BRIEF FOR SUMMARY DISPOSITION! 

NOW COMES Respondent, Roscommon County Board 

of Commissioners, thtough 

counsel, and moves for summary disposition pursuant to MCR 2.116(C)(4) in lieu of filing an 

Answer because the Tribunal lacks jurisdiction over Petitioner’s appeal. As such, Respondent is 

entitled to judgment as a matter of law.

BACKGROUND 

Pursuant to Part 307 of Michigan’s Natural Resources and Environmental Protection Act, 

MCL 324.30701 et seq., (“Part 307 of NREPA”) and following notice, a public hearing was held 

on May 23, 2024, to review the special assessment roll and project costs for the Houghton Lake — 

Lake Level District (the “Public Hearing”). (See Notice of Public Hearing attached to Petitioner’s 

Petition). 

Following the May 23, 2024, Public Hearing, and following Roscommon County Board of 

Commissioners’ meetings on June 12, 2024 and June 17, 2024, the Roscommon County Board of 

Commissioners approved the assessment roll by resolution adopted June 

17, 2024 and dated 

September 27, 2024. (See attached Resolution No. 2024-06-01, attached as Exhibit 1). 

On or about June 26, 2024, Petitioner filed this appeal with the Tribunal. (See MTT Docket 

24-003609-TT https://taxdocketlookup.apps.lara.state.mi.us/Details.aspx?PK=155044). 

STANDARD OF REVIEW 

As there 

is no specific Tribunal rule governing motions for summary disposition, the 

Michigan Court Rules apply.? 

MCR 2.116(C)(4) examines whether the Tribunal has jurisdiction of the subject matter. 

Summary disposition under MCR 2.116(C)(4) is appropriate where the Tribunal 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. In addition, the evidence offered in support of, or in opposition,

A motion under MCR 2.116(C)(4) is appropriate where the [petitioner] has failed to exhaust its 

administrative remedies.” Andersons Albion Ethanol LLC v Michigan Department of Treasury, 

MTT Case No. 20-004832 (March 10, 2021). 

ARGUMENT 

The Tribunal lacks subject matter jurisdiction over Petitioner’s appeal because the appeal 

was not filed with a court as defined in the relevant statute. 

The special assessments at issue in this appeal are levied under Part 307 of NREPA, which 

relevantly provides: “The special assessment roll with the assessments listed shall be final and 

conclusive unless appealed 

in 

a court within 

15 days after county board approval.” MCL 

324.30714(4) (emphasis added). The Notice attached 

to Petitioner’s Petition also relevantly 

provides: “The special assessment roll shall be final and conclusive unless appealed in a court 

within fifteen (15) days 

after approval of the special assessment roll 

by resolution of the 

Roscommon County Board of Commissioners. Please review MCL 324.30714(4) for information 

related to lake level assessment appeals.” (See Notice of Public Hearing attached to Petitioner’s 

Petition) (emphasis added). 

The term “court” is defined in Part 307 as well: “Court means a circuit court, and if more 

than 

1 judicial circuit is involved, the circuit court designated by the county board or otherwise 

authorized by law to preside over an action.” MCL 324.30701(c). 

Petitioner filed this appeal with the Tribunal, instead of a “court” as defined in Part 307. 

MCL 324.30701(c). Since the Tribunal lacks jurisdiction over this matter, Respondent’s motion

“The Tribunal has considered the motion and finds that subject-matter jurisdiction 

is defined as ‘jurisdiction over the nature of the case and the type of relief sought; 

the extent to which a court can rule on the conduct of persons or the status of things. 

— Also termed jurisdiction of the subject matter, jurisdiction 

of the cause, 

Jurisdiction 

over 

the 

action; 

jurisdiction 

ratione 

materiae. 

Cf. 

personal 

Jurisdiction.” JURISDICTION, Black’s Law Dictionary (10™ ed. 2014). MCL 

205.731 provides that ‘[t}he tribunal has exclusive and original jurisdiction’ over 

proceedings “for direct review of a final decision, finding, ruling, determination, or 

order of an agency relating to assessment, valuation, rates, special assessments, 

allocation, or equalization, under the property tax laws of this state,’ as well as those 

‘for a refund or redetermination of a tax levied under the property tax laws of this 

state.” Jd. The Tribunal also has jurisdiction over ‘any other proceedings provided 

by law.” Id. The subject special assessment was not levied ‘under the property tax 

laws of this state,” but under the Natural Resources and Environmental Protection 

Act. Section 30714 of the Act states that ‘the special assessment roll with the 

assessments listed shall be final and conclusive unless appealed in a court within 

15 days after county board approval,” MCL 324.30714(4), and Section 30701 

defines ‘court’ as ‘a circuit court, and if more than 

1 judicial circuit is involved, the 

circuit court designated by the court board or otherwise authorized by law to preside 

over an action.” MCL 324.30701(c). 

... the plain language of the Act grants sole 

authority over such disputes to circuit courts rather than the Tribunal. [citations 

omitted]. The Tribunal and the Michigan Court of Appeals have both previously 

acknowledged as much ... ‘A court which has determined that it has no jurisdiction 

should not proceed further except to dismiss the action.” Fox v Board of Regents of 

the University of Michigan, 375 Mich 238, 243 (1985).” 

As indicated above, the Court of Appeals has previously addressed whether the Tribunal 

has jurisdiction over Part 307 of NREPA special assessment appeals. In Us! Improvement Ass'n v 

Oceana Co Drain Comm r, unpublished opinion of the Court of Appeals, issued March 13, 2012 

(Docket Nos. 297157; 298080) (attached as Exhibit 3) the plaintiff appealed special assessments 

under Part 307 of NREPA for the Holiday Lake Dam in Oceana County. In a relevant part of that 

case, Oceana County and the Board of Commissioners jointly argued the trial court (Circuit Court) 

lacked subject matter jurisdiction. Id. at ¥14. The Court referenced MCL 324.30714(4) as well as

assessment roll was filed in the circuit court in compliance with [Part 307] ... The circuit court’s 

interpretation of the statutes was that the Legislature specifically provided for a circuit court review 

... We agree.”). 

Grossmann v Oakland County Bd of Comm'rs & Oakland County Water Res Comm’r, 

unpublished opinion of the Court of Appeals, issued July 1, 2014 (Docket No. 314531) (attached 

as Exhibit 4) also involved a special assessment levied under Part 307 of NREPA. After the 

County Board of Commissioners confirmed the assessments, the Petitioner filed “an appeal of the 

assessment with the Michigan Tax Tribunal (which rejected the suit for lack of jurisdiction)...” 

Id. at53 

Likewise, this case involves an appeal of Part 307 of NREPA special assessments. Since 

the Tribunal lacks jurisdiction over Part 307 of NREPA special assessment appeals, the Tribunal 

should grant summary disposition in favor of Respondent and dismiss this case. 

WHEREFORE Respondent requests that this Honorable Tribunal enter an Order: (1) 

Granting Respondent’s Motion for Summary Disposition; (2) Dismissing this appeal; and (3) 

Granting such other and further relief to Respondent as the Tribunal deems just. 

Respectfully submitted, 

Fahey Schultz Burzych Rhodes PLC 

Attorneys for Respondent 

Dated: October 9, 2024 

— = 

By: 

Ross K. Bower II (P70574)

EXHIBIT 

1

Michelle M. Stevenson 

Roscommon County Clerk & Register of Deeds 

500 Lake Street, Roscommon, Michigan 48653 

Email: stevensonm@roscommoncounty.net 

Phone: (989) 275-5923 or (989) 275-5931 

Fax: (989) 275-8640 

September 27, 2024 

“Motion by Wolfsen, Second by Russo to adopt Resolution #2024-06-01 “Houghton Lake ~ 

Lake Level” as presented and attached. 

Resolution #2024-06-01 

Houghton Lake — Lake Level 

WHEREAS, the Roscommon County Board of Commissioners (the “Board”) and its Delegated 

Authority have jurisdiction to maintain the normal lake levels of Houghton Lake under Part 307 

of the Natural Resources and Environmental Protection Act, Act 451 of 1994, as amended (“Part 

307”); and 

WHEREAS, a special assessment district was established by the Roscommon County Circuit 

Court for Houghton Lake, located in Denton, Lake, Markey, and Roscommon Townships, 

Roscommon County, Michigan under Part 307; and 

WHEREAS, the Delegated Authority held a public hearing on May 23, 2024 to review the 

computation of costs of a lake level project and a corresponding special assessment roll 

consistent with the requirements of Part 307; and 

WHEREAS, following the public hearing, the Delegated Authority made revisions to the special 

assessment roll. MCL 324.30714(3); and 

WHEREAS, the Delegated Authority presented the special assessment roll and computation of 

costs to the Board at its meeting on June 12, 2024; 

WHEREAS, following the June 12, 2024 meeting, the Delegated Authority made additional 

revisions to the special assessment roll. See MCL 324.30714(3): and 

WHEREAS, the Delegated Authority approved the revised special assessment roll and 

computation of costs and presented said special assessment roll and computation of costs to the 

Board for final approval at its special meeting on June 17, 2024: and

WHEREAS, the Board previously approved annual expenditures of over $10,000 for activities 

to maintain that normal levels of Houghton Lake and now finds it necessary to re-affirm said 

approval. 

NOW, THEREFORE, BE IT RESOLVED: 

1. 

Computation of Costs & Special Assessment Roll. The Board approves the 

computation of costs of the lake level project and the special assessment roll as 

presented by the Delegated Authority and attached to this Resolution. The special 

assessment roll with the assessments listed shall be final and conclusive unless 

appealed in a court within 15 days of the adoption of this Resolution. MCL 

324.30714(4). The Roscommon County Clerk shall forward to the Delegated 

Authority a copy of this Resolution so that action can be instituted by Roscommon 

County in an expedient manner. 

2. 

Over $10,000 Expenditure. The Board approves annual expenditures of over 

$10,000 for activities to maintain the normal levels of Houghton Lake, including the 

maintenance and repair of lake level infrastructure. This express authorization to 

spend more than $10,000 annually shall authorize annual expenditures of over 

$10,000 for all years in which work for the activities authorized herein continues to 

occur, The expenditures authorized herein shall not exceed the amount of the 

computation of costs of the lake level project without prior approval of the Board. 

3. 

Previous Resolutions. All resolutions and parts of resolutions insofar as the same 

may be in conflict herewith are hereby rescinded. 

On Roll Call: Ayes: Russo, Ostergren, Sensor, Wolfsen. 

Nays: None. 

Resolution Adopted. 

State of Michigan 

H 

County of Roscommon} 

I, Michelle M. Stevenson, Clerk of the Board of County Commissioners for the County of 

Roscommon do hereby certify that the above is a true and correct copy of a resolution adopted 

by the Roscommon County Board of Commissioners at a regular session held on June 17, 2024. 

That I have compared the same with the original and it is a copy transcript therefrom, and of the 

whole thereafter. 

In testimony whereof, I have 

hereunto set my hand and affixed 

the official seal at Roscommon,

EXHIBIT 

2

STATE OF MICHIGAN 

GRETCHEN WHITMER 

DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS 

MARLON I. BROWN, DPA 

GOVERNOR 

MICHIGAN OFFICE OF ADMINISTRATIVE HEARINGS AND RULES 

ACTING DIRECTOR 

SUZANNE SONNEBORN 

EXECUTIVE DIRECTOR 

Jeff Gottschalk, 

MICHIGAN TAX TRIBUNAL 

Petitioner, 

v 

MOAHR Docket No. 23-003523 

Montmorency County Drain Commission, 

Presiding Judge 

Respondent. 

Patricia L. Haim 

ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY DISPOSITION 

ORDER OF DISMISSAL 

INTRODUCTION 

Petitioner filed this appeal disputing the Hiawatha Lakes Special Assessment Roll. 

On October 25, 2023, Respondent filed a motion requesting that the Tribunal enter 

summary disposition in its favor and dismiss the case. 

In the Motion, which was filed 

pursuant to MCR 2.116(C)(4), Respondent contends that the Tribunal lacks subject- 

matter jurisdiction over the appeal. As such, Respondent is entitled to judgment as a 

matter of law. 

Petitioner has not filed a response to the motion. 

. 

RESPONDENT’S CONTENTIONS 

Respondent contends that that the Tribunal lacks subject-matter jurisdiction over the 

disputed special assessment because (1) the appeal was not timely filed, and (2) the 

governing statutes grant sole authority over such appeals to circuit courts rather than 

the Tribunal. 

STANDARD OF REVIEW 

There is no specific Tribunal rule governing motions for summary disposition, thus the

MOAHR Docket No. 23-003523 

Page 2 of 4 

Motions for Summary Disposition under MCR 2.116(C)(4). 

Summary Disposition 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. 

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.” 

CONCLUSIONS OF LAW 

The Tribunal has considered the motion and finds that subject-matter jurisdiction 

is 

defined as “jurisdiction over the nature of the case and the type of relief sought; the 

extent to which a court can rule on the conduct of persons or the status of things, — 

Also termed jurisdiction of the subject matter, jurisdiction of the cause; jurisdiction over 

the action; jurisdiction ratione materiae. Cf. personal jurisdiction.” MCL 205.731 

provides that “[t]he tribunal has exclusive and original jurisdiction” over proceedings “for 

direct review of a final decision, finding, ruling, determination, or order of an agency 

relating to assessment, valuation, rates, special assessments, allocation, or 

equalization, under the property tax laws of this state,” as well as those “for a refund or 

redetermination of a tax levied under the property tax laws of this state.”® The Tribunal 

also has jurisdiction over “any other proceeding provided by law.” The subject special 

assessment was not levied “under the property tax laws of this state,” but under the 

Natural Resources and Environmental Protection Act. Section 30714 of the Act states 

that “the special assessment roll with the assessments listed shall be final and 

conclusive unless appealed in a court within 15 days after county board approval,” and 

Section 30701 defines “court” as “a circuit court, and if more than 

1 judicial circuit is 

involved, the circuit court designated by the county board or otherwise authorized by 

law to preside over an action.” Although the timeliness of the appeal is irrelevant for 

purposes of subject-matter jurisdiction, and is more properly considered under 

MCR 2.116(C)(7), which provides for summary disposition when an appeal is barred by 

the statute of limitations, the plain language of the Act grants sole authority over such 

disputes to circuit courts rather than the Tribunal.® The Tribunal and the Michigan Court 

of Appeals have both previously acknowledged as much, and the timeliness of the 

2d. 

3 MCR 2.116(G)(6). 

4 JURISDICTION, Black's Law Dictionary (10th ed. 2014).

MOAHR Docket No. 23-003523 

Page 3 of 4 

appeal is therefore irrelevant.’ “A court which has determined that it has no jurisdiction 

should not proceed further except to dismiss the action.”"" Therefore, 

IT IS ORDERED that Respondent's Motion for Summary Disposition is GRANTED. 

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. 

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. 

or 

By a lice wa 

el Han 

Entered: November 30, 2023 

jg

MOAHR Docket No. 23-003523 

Page 4 of 4 

PROOF OF SERVICE 

| 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

EXHIBIT 

3

Usl Improvement Ass'n v. Oceana County Drain Comm'r 

Court of Appeals of Michigan 

March 13, 2012, Decided 

Nos, 297157; 298080 

Reporter 

2012 Mich, App. LEXIS 455 *; 2012 WL 832622 

USL IMPROVEMENT ASSOCIATION, Plaintiff- 

Appellant, 

v OCEANA COUNTY DRAIN 

COMMISSIONER, OCEANA COUNTY, and OCEANA 

COUNTY BOARD OF COMMISSIONERS, Defendants- 

Appellees, 

Notice: THIS 

IS 

AN 

UNPUBLISHED 

OPINION. 

IN 

ACCORDANCE 

WITH 

MICHIGAN 

COURT 

OF 

APPEALS RULES, UNPUBLISHED OPINIONS ARE 

NOT 

PRECEDENTIALLY 

BINDING 

UNDER 

THE 

RULES OF STARE DECISIS. 

Prior History: 

[*1] Oceana 

Circuit Court. LC No. 

09- 

008200-CC. 

Judges: Before: METER, P.J., and FITZGERALD and 

MARKEY, JJ. 

Opinion 

PER CURIAM. 

In Docket No. 297157, plaintiff appeals as of right from 

the trial court's order granting defendants’ motions for 

summary disposition. Plaintiff challenges the portion of 

the order dismissing 

its inverse condemnation claims 

against the Oceana County Drain Commissioner (the 

“Drain 

Commissioner”). 

In 

Docket 

298080, 

plaintiff 

appeals 

by 

leave 

granted 

from 

the 

same 

order, 

challenging the portion of the order that dismissed 

its 

"claim 

of appeal" from 

a special assessment 

for the 

Holiday Lake Dam in Oceana County, as determined by 

the Drain Commissioner and approved by the Oceana 

into Upper Siiver Lake and then to Silver Lake and Lake 

Michigan. 

Lake Holiday 

is regulated 

pursuant 

to 

the 

Inland 

Lake 

Level 

Act 

{ILLA), 

which 

is contained 

in 

current Part 307 of the Natural Resource Environmental 

[*2] Protection Act (NREPA), MCL _324.30701 et seq.! 

In addition, the dam 

is subject to the Dam Safety Act, 

which 

is contained 

in current Part 315 of the NREPA, 

MCL 324.31501 et seq.? 

Responsibility for maintaining 

the Holiday Lake Dam 

rested with certain property owners, including 

plaintiff, 

until 1999, when the 

trial court determined 

in 

a prior 

action that responsibility for the repair and maintenance 

of the Holiday Lake Dam shall be with "Oceana County 

through its Lake Holiday Assessment District." Earlier in 

1997, the Board of Commissioners petitioned the trial 

court for a determination of the normal water level for 

Lake Holiday and a special assessment district to pay 

for 

repairs 

to 

the dam. 

The 

trial 

court ordered 

and 

adjudged the normal height of Lake Holiday to be 637 

feet, which level would be allowed to fluctuate and vary 

seasonally. 

[*3] The 

trial 

court 

also 

established 

a 

special 

assessment 

district, 

which 

was 

ordered 

to 

include all parcels having frontage on Lake Holiday and 

plaintiff's parcel, which was described as the "[sjouth 

side of the dam as one parcel in the district.” 

In July 2009, the Michigan Department of Environmental 

Quality 

issued 

an 

emergency order 

to 

the Oceana 

County Drain Commission and dam owners, including 

plaintiff, requiring that action be taken 

to address 

an 

imminent danger of the Holiday Lake Dam failing. The 

order 

required 

an 

immediate 

draw 

down 

of 

the 

impoundment of the Holiday Lake Dam to the maximum

Page 2 of 6 

2012 Mich. App. LEXIS 455, *3 

extent 

possible 

to 

minimize 

leakage, 

which 

was 

contributing 

to 

the 

erosion 

of 

the 

dam. 

The 

impoundment was to remain drawn down until the dam 

was repaired 

to 

a point where 

it was safe 

to restore 

water levels within the impoundment. 

In October 2009, the Drain Commissioner determined 

that repair costs would amount to $404,116. The Drain 

Commissioner also 

filed 

a motion 

in 

the 

prior 

1997 

action 

to 

confirm, 

for 

purposes 

of 

clarification, 

the 

specific parcels included in the Lake Holiday Lake Level 

District. 

In addition, 

plaintiff was given 

notice that 

a 

public review 

of the 

Drain Commissioner's proposed 

[*4] apportionment 

of 

a 

special assessment 

for 

the 

repairs would be conducted on November 10, 2009. 

Plaintiff filed this action on November 30, 2008, and filed 

a four-count "Amended Complaint and Claim of Appeal” 

on 

December 

21, 

2009. 

Counts 

| 

and 

Ul 

raised 

challenges 

to 

the 

Board 

of Commissioners’ 

alleged 

approval of the special assessment roll, as determined 

by the Drain Commissioner in November 2009. Plaintiff 

relied on Part 307 of the NREPA, MCL 324.30701 

et 

seq., as the basis for its "claim of appeal.” In counts 

ill 

and 

IV, plaintiff alleged that the Drain Commissioner's 

entry onto its property and that excavation work involved 

in the repair of the dam established claims for inverse 

condemnation and a taking of its property for which 

it 

was entitled to compensation, 

On March 

2, 

2010, 

the 

trial 

court entered 

an order 

granting defendants’ motions 

for summary disposition 

and 

dismissing 

plaintiff's 

"Complaint 

and 

Claim 

of 

Appeal” with prejudice. Thereafter, on March 23, 2010, 

plaintiff filed 

a claim of appeal 

in this Court 

in Docket 

No. 287157. On that same day, plaintiff filed a motion 

for reconsideration of the March 2, 2010, order in the 

trial court, and also requested 

an opportunity 

[*5] to 

amend 

its "claim of appeal” with respect to the special 

assessment 

decision. 

The 

trial 

court 

denied 

both 

motions. 

Plaintiff subsequently filed an application for 

leave to appeal, which this Court granted in Docket No. 

298080. 

Il. STANDARD OF REVIEW 

de novo on appeal.” Silberstein v_Pro-Golf of America, 

Inc, 278 Mich App 446, 460; 750 NW2d 615 (2008). But 

decisions 

concerning 

the 

meaning 

and 

scope 

of 

pleadings 

are 

reviewed 

for 

an 

abuse 

of discretion. 

Dacon v _Transue, 441 Mich 315, 328; 490 NW2d 369 

(1992). "A trial court abuses its discretion only when its 

decision resuits in an outcome falling outside the range 

of principled outcomes." Lockridge 

v Qakwood Hosp, 

285 Mich App 878, 692; 777 NW2d 511 (2009). 

Hil. DOCKET NO. 297157 

Plaintiff 

argues 

that 

[*6]the 

trial 

court 

erred 

in 

dismissing 

its inverse condemnation and taking claims, 

which were based on the Drain Commissioner's entry 

onto 

plaintiffs 

property 

and 

the 

excavation 

work 

in 

connection with the repair and maintenance of the dam. 

We disagree. 

The trial court did not state the subrule under which 

it 

granted defendants’ motions with respect to the inverse 

condemnation and taking claims. But because the court 

considered 

documentary 

evidence 

submitted 

by 

the 

parties and took judicial notice of its files and records 

from prior actions 

in granting defendants’ motions, we 

review 

the 

trial 

court's 

decision 

under 

MCR 

2.116(C)(10}. Spiek v Dep't of Transp, 456 Mich 331 

338: 572 NW2d 201 (1998); Healing Place 

at North 

Qakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 

55; 

744 NW2d 

174 

(2007). 

A 

motion 

under MCR 

2.116(C)(10) tests the factual support for a claim based 

on 

substantively 

admissible 

evidence. 

MCR 

2.116(G)(6); Maiden 

v Rozwood, 

461 Mich 

109, 

120- 

121; 697 NW2d 817 (1999). The motion should 

be 

granted if the evidence fails to establish a genuine issue 

of material 

fact and 

the moving 

party 

is 

entitled 

to 

judgment as a matter of law. Allison 

v AEW Capital Mat. 

LLP, 

481 

Mich 419, 424-425: 

751 NW2d 

8 (2008). 

[*71 "There 

is 

a genuine 

issue 

of material fact when 

reasonable minds could differ on an issue after viewing 

the record in the light most favorable to the nonmoving 

party." Id. at 425, 

In 

an 

inverse condemnation 

action, 

a 

plaintiff must 

establish 

that 

governmental 

actions 

amount 

to 

a

Page 3 of 6 

2012 Mich, App. LEXIS 455, *7 

actions and the alleged damages. [d. at 708. Although a 

physical 

taking 

is 

not 

required, 

in 

cases 

involving 

physical takings required acquiescence is at the heart of 

the claim. Yee v City of Escondido, 

503 U.S §19, 

527; 

112 S Ct 1522; 118 L Ed 2d 153 (1992). "[Tlhe Takings 

Clause 

requires 

compensation 

if 

the 

government 

authorizes 

a compelled physical invasion of property.” 

Id. 

There 

is 

no 

dispute 

that 

the 

Drain 

Commissioner 

entered onto plaintiff's 

[*8] property to repair the dam. 

Nonetheless, plaintiff has failed 

to establish any basis 

for disturbing the trial court's determination that its prior 

May 25, 1999, order relieved various parties, including 

plaintiff, of any responsibility for repair or maintenance 

of the dam by transferring that responsibility to Oceana 

County. While the trial court interpreted the prior order 

as implying the creation of an easement for the county's 

Drain Commissioner to carry out its responsibilities, our 

determination that summary disposition was appropriate 

under 

MCR 

2.116(C)(10) 

is 

not 

dependent 

upon 

whether the order created an "implied easement” as that 

phrase is understood in the context of general property 

law. 

"An easement represents the right to use another's land 

for 

a specified purpose.” Matthews 

v Dep't of Natural 

Resources, 288 Mich App 23; 792 NW2d 40 (2010). In 

contrast to a license, which constitutes mere permission 

to 

do some 

act 

or 

series 

of acts 

on 

property, 

the 

easement is a limited property interest. Dep't of Natural 

Resources v Camody-Lahti Real Estate, 

Inc, 472 Mich 

359, 378; 699 NW2d 272 (2005); Kitchen v Kitchen, 465 

Mich 654, 

659; 641 NW2d 245 (2002). 

Plaintiff also 

correctly 

[*9] asserts 

that 

an 

"implied 

easement" 

is 

understood as arising by necessity. 

In the context of 

property law, 

it 

is understood to arise "only when the 

land on which the easement is sought was once part of 

the same parcel that 

is now landlocked." Tolksdorf v 

Griffith, 464 Mich 1, 10; 626 NW2d 163 (2001). 

But whether an "easement" in the formal sense could be 

implied from the trial court's May 25, 1999, order, such 

as to grant the Drain Commissioner a limited property 

Interest in 

if 

plaintiff 

did 

not 

want 

to 

be 

relieved 

of 

that 

responsibifity, 

it should 

have appealed 

the 

May 

25, 

1999, order or taken steps to restore that responsibility. 

Given the lack of evidence that plaintiff did anything to 

reacquire 

responsibility 

 [*10] for 

repairs 

and 

maintenance, 

we 

conclude 

that 

plaintiff 

failed 

to 

demonstrate a genuine issue of material fact regarding 

whether 

the 

Drain 

Commissioner's 

entry 

onto 

its 

property, 

or 

use 

of 

the 

property 

for 

repairs 

and 

maintenance 

of the dam, was 

a compelled 

physical 

invasion. 

The doctrine of acquiescence relied upon by the Drain 

Commissioner supports 

this conclusion. The doctrine, 

which 

is 

a form 

of estoppel, 

has been described 

as 

follows: 

’ 

"It may be stated as a general rule that if a person 

having a right, and seeing another person about to 

commit, 

or 

in 

the course 

of committing, 

an 

act 

infringing 

upon 

that 

right, 

stands 

by 

in 

such 

a 

manner as really to induce the person committing 

the act, and who might otherwise have abstained 

from 

it, 

to believe 

that 

he assents 

to 

its being 

committed, 

he 

cannot 

afterwards 

be 

heard 

to 

complain of the act. This, 

it has been said, 

is the 

proper sense of the term acquiescence,’ which, 

in 

that sense, may be defined as quiescence under 

such 

circumstances 

as 

that 

assent 

may 

be 

reasonably Inferred from 

it, and is no more than an 

instance 

of 

the 

law 

of 

estoppel 

by 

words 

or 

conduct." [Sheffield Car Co v Constantine Hydraulic 

Co, 

171 

Mich 

423, 

450; 

137 NW 305 

(1912), 

[*11] quoting 

11 Am. & Eng. Enc. Law (2d ed}, 

p 

428.) 

The doctrine was applied in Lenawee Co Bd of Comm'rs 

v Abraham, 93 Mich App 774; 287 NW2d 371 (1979), to 

preclude property owners from denying access to their 

land for repairs and improvements, where they failed to 

contest or appeal proceedings under the former ILLA to 

determine 

and 

maintain 

lake 

levels. 

We 

similarly 

conclude that it is appropriately applied here, given that 

no genuine issue was shown by plaintiff with respect to

2012 Mich. App. 

result in finding no factual support for plaintiffs inverse 

condemnation and taking claims involving whether there 

was a compelled physical invasion. This Court will affirm 

a trial court's decision where the trial court reaches the 

right result. Tavior v Laban, 241 Mich App 449, 458; 616 

NW2d 229 (2000). 

The other arguments presented 

[*12] by plaintiff with 

respect to the inverse condemnation and taking claims 

also do not establish any basis for relief. Contrary to 

what plaintiff argues, the record does not indicate that 

the 

trial court relied on the doctrine of res judicata 

to 

conclude that plaintiff was precluded from challenging 

the 

entry 

onto 

its 

property,® 

and 

that 

doctrine 

is 

immaterial 

to 

our 

determination 

that 

the 

trial 

court 

reached the right result in granting defendants’ motions 

for summary disposition. And to the extent that plaintiff 

suggests 

that 

a 

question 

of 

fact 

existed 

regarding 

whether 

the 

Drain 

Commissioner caused 

a 

physical 

taking by exceeding the scope of its responsibilities, we 

note that MCR 2.716(C)(10) requires the party opposing 

a motion for summary disposition to “set forth specific 

facts at the time of the motion showing a genuine issue 

for 

trial." 

Maiden, 

461 

Mich 

at 

121. 

Here, 

plaintiff 

showed only that the current repair work is greater than 

past repair work. This was insufficient 

to establish 

a 

genuine issue of material fact with regard to whether the 

work being performed exceeded the scope of the Drain 

Commissioner's repair and maintenance responsibilities. 

Lastly, 

we 

reject 

plaintiffs 

argument 

that 

summary 

disposition was premature. Plaintiff failed to show that 

further discovery 

stood 

a 

fair chance 

of uncovering 

factual 

support 

for 

its 

position. 

Marilyn 

Froling 

Revocable Living Trust v Bloomfield Hills Country Club, 

283 Mich App 264, 292: 769 NW2d 234 (2009); Davis v 

Detroit, 

269 Mich App 376, 

379-380; 711 NW2d 462 

(2006); see also MCR 2.116(H); Coblentz, 475 Mich at 

Page 4 of 6 

LEXIS 455, *11 

to the allegations in count 

| of the "Amended Complaint 

and Claim of Appeal,” was based on Part 307 of the 

NREPA. 

Before 

considering 

plaintiffs 

arguments, 

we 

briefly 

consider the 

[*14] joint argument 

of Oceana County 

and 

the Board 

of Commissioners 

regarding 

the 

trial 

court's subject-matter jurisdiction to consider the appeal. 

Defects 

in subject-matter jurisdiction may be raised 

at 

any time. Electronic Data Sys Corp 

v Flint Twp, 253 

Mich App 538, 544; 656 NW2d 215 (2002). But contrary 

to the argument of Oceana County and the Board of 

Commissioners, 

subject-matter 

jurisdiction 

over 

plaintiff's appeal does not rest with the Michigan Tax 

Tribunal. MCL 324.30714(4) provides that “[t}he special 

assessment 

roll with the assessments 

listed 

shall 

be 

final and conclusive unless appealed in a court within 15 

days 

after county board approval.” "Court" means 

"a 

circuit 

court, 

and 

if 

more 

than 

1 

judicial 

circuit 

is 

involved, 

the 

circuit 

court designated 

by 

the 

county 

board or otherwise authorized by law to preside over an 

action." MCL 324.30701(c}). Because the trial court 

in 

this case is the Oceana Circuit Court, 

it had jurisdiction 

to consider plaintiff's appeal. 

Nonetheless, a court is not bound by a party's choice of 

labels for its actions because this would place form over 

substance. Johnston 

v City of Livonia, 

177 Mich App 

200, 

208; 441 NW2d 41 (1989). The gravamen of an 

action 

[*15] is determined 

by considering 

the 

entire 

claim. Maiden, 461 Mich at 135. As a whole, plaintiff's 

"Amended Complaint and Claim of Appeal” purports to 

combine multiple constitutional claims and 

a claim 

of 

appeal from 

a Board 

of Commissioners decision 

in 

a 

single action, notwithstanding that a civil action and an 

appeal each require a filing fee to invoke the trial court's 

jurisdiction. 

See 

MCL 

600.2529(1); 

cf. 

Mcintosh 

v 

Mcintosh, 

282 Mich App 

471, 

483; 

768 NW2d 325 

570-571. Therefore, we affirm the trial court's summary 

disposition ruling with respect to both "taking" counts in 

plaintiff's "Amended Complaint and Ciaim of Appeal.” 

IV. DOCKET NO. 298080 

In" Docket 

No. 

298080, 

plaintiff challenges 

the 

trial 

(2009) 

(filing 

of 

claim 

of appeal 

and 

entry 

fee 

is 

necessary 

to 

vest 

this 

Court 

with 

jurisdiction 

in 

an 

appeal, and merely arguing that a trial court erred 

in 

awarding postjudgment attorney fees, which themselves 

are 

appealable 

as 

of 

right, 

in 

an 

appeal 

from 

the 

judgment is insufficient to invoke this Court's review of

2012 Mich. App. 

Complaint and Claim 

[*16] of Appeal" itself contains a 

demand for "trial by jury on 

all counts 

in this matter." 

Plaintiff 

made 

this 

demand, 

notwithstanding 

its 

allegation that It was claiming an appeal under Part 307 

of the NREPA. 

Examined as a whole, the trial court did not err in ruling 

that plaintiff failed to properly file an appeal. We reject 

plaintiffs 

argument 

that 

dismissal 

was 

inappropriate 

because MCR 7.105 does not apply to an appeal from 

the Board 

of Commissioners’ approval of the special 

assessment 

roll. 

In 

reaching 

this 

conclusion, 

we 

disagree with the Drain Commissioner's argument that 

plaintiffs 

concession 

in 

its 

response 

to 

defendants 

motions that MCR 7.105 applies constitutes a judicial 

admission. A judicial admission 

is a formal concession 

in 

pleadings 

or 

stipulations 

that 

have 

the 

effect 

of 

withdrawing factual issues 

in 

a case. Radtke 

v Miller, 

Canfield, Paddock & Stone, 

453 Mich 

413. 

420; 551 

Nwad 698 

(1996). 

Here, 

plaintiff conceded 

only the 

applicability of a procedural rule, with the exception of 

the service requirement for the Attorney General. But 

while 

a 

party 

is 

generally 

precluded 

from 

seeking 

redress in an appellate court “on the basis of a position 

contrary to that taken in 

[*17] the trial court," Phinney v 

Permutter, 222 Mich App 513, 

544; 564 NW2d 532 

(1997), plaintiff has not established any basis for relief 

even if we were to ignore plaintiff's concession. 

We agree with plaintiff that MCR 7.105 is not explicitly 

applicable to an appeal under Part 307 of the NREPA. 

But considering that there is no applicable rule in MCR 

7.101 

et seq. and this Court's determination 

in [n_re 

Project Cost 

& Special Assessment Roll for Chappel 

Dam, 

282 Mich App 

142, 

149-150; 

762 NW2d 

192 

(2009), that MCR 7.105 is the "most applicable court 

rule” for an appeal to the circuit court under Part 307 of 

the NREPA, use of the procedures contained in that rule 

are appropriate. However, 

a court should take care 

in 

evaluating the applicability of particular provisions of the 

rule. 

We agree with plaintiff that MCR 7.105(D), the provision 

providing 

for service 

on 

the 

Attorney 

[*18] General, 

. 

Page 50f 6 

LEXIS 455, *15 

the 

NREPA. 

Court 

rules 

are 

construed 

under 

legal 

principles applicable to statutes. In re KH, 469 Mich 621 

628; 677 NW2d 800 (2004). "When the language 

is 

unambiguous, we must enforce the meaning expressed, 

without further judicial construction or interpretation.” /d. 

Here, 

the 

service 

requirement 

in MCR 

7.105(D} 

is 

directed at the specific agencies covered by the rule. 

MCR 7.105(D) provides, 

in 

part, that "[pJromptly after 

filing the petition for review, the petitioner shall serve 

true copies of the petition for review on the agency, the 

Attorney General, and all other parties to the contested 

case 

in 

the 

manner 

provided 

by MCR_2.107, 

and 

promptly 

file 

proof 

of 

service 

with 

the 

court." 

The 

required service on the Attorney General 

is consistent 

with 

the 

Attorney 

General's 

duty 

to 

provide 

legal 

services 

to 

the 

state 

of Michigan 

and 

its 

agencies, 

boards, 

commissions, 

officials, 

and 

employees. 

See 

generally Afforney General v Pub Serv Comm, 243 Mich 

App 487, 496; 625 NW2d 16 {2000}. While the Attorney 

General 

is also authorized 

to intervene 

in any action 

necessary to protect the rights or interests of the state 

under MCL 14.101, 

[*19] In re Certified Question, 

465 

Mich 537, 644-545; 638 NW2d 409 (2002), because the 

amount of a special assessment 

is 

a matter 

of local 

concern under Part 307 of the NREPA and the Attorney 

General does not provide legal services to the Board of 

Commissioners, the trial court erred as a matter of law 

in determining that MCR 7.105(D) should be applied to 

require service on the Attorney General 

in an appeal 

governed by MCL 324.30714(4). 

Nonetheless, 

MCR 

7.105(J)(2)(b} provides for dismissal 

of 

an 

appeal 

when 

it 

is 

not 

taken 

or 

pursued 

in 

conformity 

with 

the 

rules, 

and 

the 

deficiencies 

in 

plaintiffs "Amended Complaint and Claim of Appeal" go 

beyond 

the dispute concerning MCR 

_7.215(D). 

Here, 

plaintiff did 

not 

file with 

its “Complaint and Claim 

of 

Appeal" a copy of the Board of Commissioners’ decision 

for which review was sought, or explain why it was not 

attached. 

MCR_ 

7.105(C)(3). 

And 

given 

plaintiffs 

concession during 

the motion proceedings that MCR 

7.105 applies, one could have expected plaintiff to at 

least attempt to file 

a petition for review that complied 

with MCR 

7.105, 

separate 

and 

apart 

from 

the 

civil

2012 Mich. App. LEXIS 455, *20 

to bifurcate it from the inverse condemnation claims and 

present 

it as a separate proposed "petition for review." 

The trial court relied on multiple grounds to deny the 

motion, including its lack of jurisdiction to consider the 

motion in light of the appeal filed in Docket No, 297157. 

Because plaintiff failed to properly invoke the trial court's 

appellate jurisdiction and the order appealed 

in Docket 

No. 297157 disposed of the entire civil action, we agree 

with the trial court that 

it lacked jurisdiction to consider 

the motion. MCR 7.208(A);, Wiand 

v Wiand, 205 Mich 

App 360, 369-370; 522 NW2d 132 (1994). Furthermore, 

considering plaintiff's fallure to file an appeal under any 

rule, we reject plaintiffs argument that 

it should have 

been allowed to “amend an appeal” using the procedure 

in MCR 7.105(B)(2). Accordingly, 

[*21] even 

if the trial 

court had jurisdiction to consider the motion, we find no 

basis for reversing its decision denying the motion. 

Lastly, considering that plaintiff does not argue that 

it 

had 

a 

cause 

of 

action 

to 

set 

aside 

the 

special 

assessment independent of the appeal, we decline 

to 

consider plaintiffs argument 

that 

it was denied 

due 

process, Had 

plaintiff filed 

a proper appeal from 

the 

Board 

of 

Commissioners’ 

approval 

of 

the 

special 

assessment roll, the trial court could have conducted a 

formal review of the proceedings, including whether the 

amount of its assessment was arbitrarily determined. /n 

re Project Cost & Special Assessment Roll for Chappel 

Dam, 

282 

Mich App 

at 

151. 

While 

the 

trial 

court 

nonetheless gave some consideration to this matter for 

plaintiffs 

benefit 

during 

the 

proceedings, 

absent 

a 

proper appeal we have nothing to review. 

Affirmed. 

/s/ Patrick M. Meter 

/s/ E. Thomas Fitzgerald 

Is! Jane E, Markey 

Page 6 of 6 

End of Document

EXHIBIT 

4

Grossmann v. Oakland County Bd. of Comm 'Rs & Oakland County Water 

Res. Comm’'r 

Court of Appeals of Michigan 

July 1, 2014, Decided 

No. 314531 

Reporter 

2014 Mich. App. LEXIS 1266 *; 2014 WL 2972020 

CHARLES A. GROSSMANN and MARILYN 

GROSSMANN, Plaintiffs-Appellants, 

v OAKLAND 

COUNTY BOARD OF COMMISSIONERS and 

OAKLAND COUNTY WATER RESOURCES 

COMMISSIONER, Defendants-Appellees. 

Notice: THIS 

IS 

AN 

UNPUBLISHED 

OPINION. 

IN 

ACCORDANCE 

WITH 

MICHIGAN 

COURT 

OF 

APPEALS 

RULES, UNPUBLISHED OPINIONS ARE 

NOT 

PRECEDENTIALLY 

BINDING 

UNDER 

THE 

RULES OF STARE DECISIS. 

Prior History: 

[*1] Oakland Circuit Court. LC No. 2012- 

129273-AW. 

Judges: Before: WILDER, P,J., and SAAD and K. F. 

KELLY, JJ. 

Opinion 

PER CURIAM. 

Plaintiffs 

appeal 

the 

trial 

court's 

order 

that 

granted 

defendants’ motion for summary disposition pursuant to 

MCR _2.116(C)(8) and (C}(10), and rejected 

plaintiffs’ 

request for a writ of mandamus. For the reasons stated 

below, we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

This case involves a special assessment Issued under 

the 

Natural Resources and 

Environmental 

Protection 

After a hearing, the court issued an order in July 2006 

that approved a new lake level and construction of the 

dam. 

In the next few years, the dam project suffered a series 

of 

setbacks 

that 

raised 

the 

estimated 

cost 

of 

construction, 

including 

a 

series 

of 

lawsuits 

from 

a 

lakefront property owner opposed [*2] 

to the project. 

During this period, defendants made an extensive effort 

to 

inform 

the 

public 

of 

the 

additional 

expenses 

by 

holding 

public 

meetings 

and 

passing 

resolutions 

explaining the new cost structure. 

In September 2008, 

the 

Board passed 

a resolution authorizing 

the Drain 

Commission’ 

to 

compute 

"all 

costs 

relating 

to 

the 

establishment and maintaining the normal level for Bush 

Lake 

. 

. 

. and prepare a special assessment roll." The 

costs were 

to 

be "defrayed 

by special assessments” 

against properties "benefited by the project,” including 

"privately 

owned 

parcels 

of 

land." 

The 

Drain 

Commission held a public hearing 

in March 2007, and 

the Board approved 

a resolution 

that recognized the 

dam's 

cost 

would 

require 

an 

additional 

special 

assessment sometime in the near future. 2 

After the dam's design was completed in May 2009, the 

Drain Commissioner held a project meeting to discuss 

“the 

design 

of 

the 

[dam], 

the 

project[*3] 

schedule, 

project budget and financing, and proposed payment 

methods," which plaintiff Charles Grossmann attended.3 

One year later, the Drain Commission mailed lakefront 

property owners a hearing notice that explained the new 

total amount 

of the 

special assessment ($267,000),4

Page 2 of 4 

2014 Mich. App. LEXIS 12686, *3 

outlined when and how the assessment would be levied, 

specified 

that 

a 

public 

meeting 

on 

the 

assessment 

would take place on May 

19, 2010, 

and noted that 

property 

owners 

could 

protest 

the 

assessment 

and 

preserve their right of appeal by letter or in person at the 

Drain 

Commission 

offices. 

The 

Commission 

also 

published the notice 

in 

a newspaper for consecutive 

weeks. At the May 

19, 2010 meeting, which 

plaintiffs 

attended, representatives from the Drain Commission 

explained the purpose of the dam project, the project 

budget, and how the assessment would be levied. 

The Board confirmed the assessment in October 2010.5 

After 

filing 

an 

appeal 

of 

the 

assessment 

with 

the 

Michigan Tax Tribunal (which rejected the suit for lack of 

jurisdiction), plaintiffs brought the present action 

in the 

Oakland [*4] 

Circuit Court, and alleged that defendants: 

(1) did not follow the NREPA's notice procedures for the 

special 

assessment; 

(2) 

improperly 

calculated 

the 

assessment by including 

legal fees incurred from the 

suit that opposed the dam project; and (3) violated their 

right to due process. They asked the court for a writ of 

mandamus 

that would 

order defendants 

to 

void 

the 

special assessment and return all funds collected. 

Defendants 

responded 

with 

a 

motion 

for 

summary 

disposition under MCR 2.116(C)(8) and 

(C}{10), and 

argued 

that they complied 

with 

the NREPA's 

notice 

provisions and properly levied the assessment. The trial 

court 

agreed, 

and 

granted 

defendant's 

request 

for 

summary disposition. 

Plaintiffs appealed to our Court and argue that the trial 

court erred when 

it held 

that defendant: 

(1) 

did 

not 

violate 

the 

NREPA's 

notice 

provisions; 

(2) 

properly 

calculated 

the 

assessment; 

and 

(3) 

did 

not 

violate 

plaintiffs’ right to due process. We address each issue in 

turn. 

Il. STANDARD OF REVIEW 

A 

trial 

court's 

decision 

on 

a 

motion 

for 

summary 

disposition is reviewed de novo. [*5] Johnson v Recca 

492 Mich 

169, 

173; 821 NW2d 520 (2012). The trial 

court considered evidence outside of the pleadings and 

When we review a motion under MCR 2.116(C}(10), we 

consider 

the 

pleadings, 

affidavits, 

depositions, 

admissions, and other documentary evidence submitted 

in the light most favorable to the nonmoving party. /d. 

Issues of statutory interpretation are questions of law, 

which 

are 

reviewed 

de 

novo. 

In 

_re 

MCI 

Telecom 

Complaint, 460 Mich. 396, 443; 596 N.W.2d 164 (1999). 

The primary goal of judicial interpretation of statutes is 

to 

‘ascertain 

and 

give 

effect 

to 

the 

intent 

of 

the 

Legislature. 

Mich Ed Ass'n 

v Secretary of State (On 

Rehearing), 

489 Mich 

194, 

217; 801 NW2d 35 (2011). 

The 

first criterion 

in determining 

intent 

is the specific 

language 

of the statute. 

United States Fidelity Ins 

& 

Guaranty Co 

v Mich Catastrophic Claims Ass'n 

(On 

Rehearing), 484 Mich 1, 13; 795 NW2d 101 (2009). The 

Legislature is presumed to have intended the meaning it 

plainly expressed, and clear statutory language must be 

enforced as written, Velez v Tuma, 492 Mich 

1, 

16-17; 

821 NW2d 432 (2012). 

Ill. ANALYSIS 

A. NREPA 

MCL 324.30714 governs the procedural aspects 

of 

a 

special assessment, including notice, and states that: 

(1) 

A special assessment 

roll 

shall describe 

the 

parcels of land 

to be assessed, the name of the 

owner 

of each 

parcel, 

if known, 

and 

the 

dollar 

amount of the assessment against each parcel. 

(2) The delegated authority shall 

set 

a time and 

place 

for 

a 

public 

hearing 

or 

hearings 

on 

the 

project [*6] 

cost and the special assessment roll. 

Notice of a hearing shall be by both of the following: 

(a) By publication of notice at least twice prior to the 

hearing in a newspaper that circulates in the special 

assessment district, 

the 

first publication 

to 

be 

at 

least 10 days before the hearing. 

{b) As provided in Act No. 162 of the Public Acts of 

1962, 

being 

sections 

211.41 

to 

211.746 

of the 

Michigan Compiled Laws. 

(3) 

At 

or 

after 

a 

public 

hearing, 

the 

delegated

Page 3 of 4 

2014 Mich. App. LEXIS 1268, *6 

MCL 211.741(2) imposes additional notice requirements 

for 

governmental 

authorities 

that 

make 

a 

special 

assessment: 

(2) The notice of hearing shall include a statement 

that appearance and protest at the hearing 

in the 

special 

assessment 

proceedings 

is 

required 

in 

order 

to 

appeal 

the 

amount 

of 

the 

special 

assessment 

to 

the 

state 

tax 

tribunal 

and 

shall 

describe the manner in which an appearance and 

protest shall be made. 

Here, 

plaintiffs [*7] 

wrongly 

claim 

that 

defendants’ 

conduct with regard to the special assessment violated 

these statutory mandates. 

In fact, defendants complied 

with 

all 

the 

requirements 

of 

MCL 

324.30714 

and 

211.741; The May 2010 notice advised of the specific 

date, 

time, 

and 

place 

of 

the 

public 

hearing 

and 

described 

the 

hearing's 

purpose. 

It 

also 

stated 

that 

appearance and protest at the hearing was required to 

appeal 

the amount 

of 

the 

special 

assessment, 

and 

described the manner in which appearance and protest 

had 

to 

be 

made. 

Plaintiffs 

do 

not 

dispute 

that 

defendants provided the notice to each property owner 

or 

party 

in 

interest 

of property 

to 

be assessed, 

as 

provided on local tax assessment records, nor do they 

claim that defendants failed to publish the notice in an 

appropriate 

newspaper. 

Accordingly, 

defendants 

complied 

with 

MCL 

324.30714 

and 

211.741, 

and 

plaintiffs’ claim is without merit. 

B. CALCULATING THE ASSESSMENT 

MCL 324.30711(1} grants the County Board the power 

to defray "the whole or a part of the cost of a project to 

establish and maintain a normal level for an inland lake” 

via 

"special 

assessment” 

on, 

among 

other 

things, 

"privately owned parcels of land." MCL 324.30712(1)(f} 

and (g) govern how to calculate a special assessment 

for such projects, and state, in relevant [*8] 

part: 

(1) Computation of the cost of a normal level project 

shall include the cost of all of the following: 

(f} Legal fees, including estimated costs of appeals 

if assessments are not upheld. 

(g) Court costs. 

Had 

the property owner opposed 

to the dam project 

prevailed, 

the 

lower 

lake 

level 

would 

have 

been 

preserved, and thus would have damaged plaintiffs and 

other lakefront property owners—as stated by plaintiffs 

in the June 2004 petition that requested construction of 

the dam. Plaintiffs’ argument that the legal fees should 

not 

have 

been 

included 

in 

the assessment 

is 

thus 

contrary to statute and their self-professed interest. 

C. DUE PROCESS 

To invoke due process protections, plaintiff must show a 

state action deprived him of a 

life, liberty, or property 

interest. Sherwin 

v State Hwy Comm'r, 364 Mich. 

188, 

199; 111 NW.2d 56 (1961). Generally, due process in 

civil 

cases 

requires 

notice 

of the 

nature [*9] 

of the 

proceedings,’ 

an 

opportunity 

to 

be 

heard 

in 

a 

meaningful time and manner,” and an impartial decision 

maker.8 

In this case, plaintiffs claim that defendant violated their 

right 

to 

due 

process 

in 

connection 

with 

the 

special 

assessment. 

In fact, the opposite 

is true—the special 

assessment took place with 

a surfeit of process, and 

plaintiffs availed themselves of this process on multiple 

occasions. As noted, 

plaintiffs received notice 

of and 

attended the May 19, 2010 hearing on the final special 

assessment, and had an opportunity to be heard.® Nor 

did the Board violate plaintiffs’ right to due process 

in 

the months after the meeting. There 

is nothing 

in the 

record that suggests the Board's October 2010 approval 

of the special assessment was untimely or unfair, and 

plaintiffs received notice 

of the approval. The Board, 

which also appears fo post its business online, was not 

required to publish its approval in a newspaper, contrary. 

to plaintiffs’ assertions. 

8Van Slooten 

v Larsen, 

410 Mich 

21, 

53; 299 NW2d 704 

(1980). 

7 In_re Juvenile Commitment Costs, 240 Mich. App. 420, 440; 

813 NW. 2d 348 (2000).

2014 Mich. App. LEXIS 1266, *10 

Further, as noted, defendants’ May 2010 notice of public 

hearing 

complied 

with 

statutory 

requirements 

and 

informed 

plaintiffs 

of 

the 

prerequisites 

for 

filing 

an 

appeal. Though the Michigan Tax Tribunal was not the 

proper forum 

for 

plaintiffs’ 

suit, defendants were 

not 

parties 

to that action, and the circuit court eventually 

considered and denied plaintiffs’ claims when plaintiffs 

brought suit there. 

Plaintiffs’ due process argument 

is 

therefore unavailing. 

IV. CONCLUSION 

Accordingly, the trial court correctly granted defendants 

summary disposition pursuant to MCR 2.116(C})(10). 

Affirmed. 

Is! Kurtis T. Wilder 

/s/ Henry William Saad 

Is! Kirsten Frank Kelly 

Page 4 of 4 

End of Doctiment

STATE OF MICHIGAN 

DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS 

MICHIGAN TAX TRIBUNAL 

COTTERMAN, CRAIG, 

Petitioner, 

ROSCOMMON COUNTY BOARD OF 

COMMISSIONERS, 

Respondent. 

Craig Cotterman 

In pro per 

413 Old Trail Drive 

Houghton Lake, MI 48629 

(989) 366-8220 

cecotterman(@hotmail.com 

MTT DOCKET No. 24-003609-TT 

PARCEL NO. 003-670-019-0000, 003- 

670-020-0000 

Ross K. Bower 11 (P70574) 

Samantha R. Reetz (P86523) 

Fahey Schultz Burzych Rhodes PLC 

Attorneys for Respondent 

4151 Okemos Road 

Okemos, Michigan 48864 

(517) 381-0100 

Rbower@fsbrlaw.com 

sreetz{@fsbrlaw.com 

PROOF OF SERVICE 

Jamy A. Staffeld states that on October 9, 2024 she served a copy of Respondent’s Motion 

and Brief for Summary Disposition, and this Proof of Service, upon the following via first class 

mail: 

Craig Cotterman 

413 Old Trail Drive 

Houghton Lake, MI 48629

a 

5% 

IGHIGAN TAX THIBUNAL 

uit N GRAND RIVER AVE 

Lansing 11 4BONE 

2407 NORTH GRAND RIVER AVENUE 

LANSING MI 48906 

. we 

ow GROUND 

TRACKING #: 1Z 651 4R5 03 9025 3739 

pf 

1 4 

il | 

BILLING: P/P 

——— 

Reference #1: Roscommon Cty Board of Commissioner 

 — 

Reference #2: Houghton 

Lake-Lake Level 

™ 

NVA4541-0A 10/2024 

1 

ASIA 

FAHEY SCHULTZ BURZYCH RHODES P 

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4151 OKENiOS ROAD 

PMIRG. SEVEN 

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324 — FDR 

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MICHIGAN TAX TRIBUNAL 

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