24-003736.pdf
Douglas Fairbanks, Petitioner Vs. Township Of Bear Lake, Respondent · 24-003736-TT
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STATE OF MICHIGAN GRETCHEN WHITMER GOVERNOR DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS LANSING 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 Douglas Fairbanks, MICHIGAN TAX TRIBUNAL Petitioner, SMALL CLAIMS DIVISION v MTT Docket No. 24-003736 Bear Lake Township, Case Type: Valuation Respondent. PROPOSED ORDER OF DISMISSAL PROPOSED OPINION AND JUDGMENT Personnel Presiding: Brett Wallace, Administrative Law Judge Location of Hearing: Telephonic Hearing Held on: January 6, 2026 Appearances on Behalf of Petitioner: Doug Fairbanks, Douglas Fairbanks Appearances on Behalf of Respondent: Sally Murray PROPOSED JUDGMENT The subject property’s taxable value (TV) for the tax years at issue shall be as follows: Parcel Number: 40001-001-048-10 Year TV 2024 $24,749 2025 $25,516 This case shall be dismissed with respect to Petitioner’s claims regarding true cash value (TCV) and state equalized value (SEV). PROCEDURAL HISTORY Petitioner was required to protest the subject property’s assessment to the Board of Review (BOR). Petitioner protested the subject property’s assessment to the 2024 March BOR. Petitioner filed a petition with the Tribunal on July 25, 2024, and Respondent filed an answer on October 27, 2024
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MTT Docket No. 24-003736 Page 2 of 10 The amount of the SEV or TV in dispute, as set forth in the pleadings, for all tax years at issue is within the jurisdictional limits of the Small Claims Division.1 Further, the property’s assessment for the subsequent tax year is included in this proceeding.2 ISSUES AND APPLICABLE LAW The issues in this matter are: 1. Whether the subject property is assessed in excess of 50% of its true cash value (TCV). “The petitioner has the burden of proof in establishing the true cash value of the property.”3 The assessment of real property in Michigan shall not exceed 50% of its TCV.4 “True cash value” means “the usual selling price . . . .”5 “True cash value” means “fair market value.”6 The Tribunal is required to make an independent determination of TCV.7 “[T]he tribunal is not bound to accept either of the parties’ theories of valuation. It 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.”8 The Tribunal is required to select the valuation methodology that is accurate and bears a reasonable relationship to the property’s TCV.9 2. Whether the TV exceeds the amount provided by MCL 211.27a. MCL 211.27a provides that a property’s TV is the lesser of the property’s SEV or capped TV, and a property’s capped TV is, absent a transfer of ownership, determined mathematically by taking into consideration the prior tax year’s TV, physical losses to the property, the lesser of the rate of inflation or 5%, and physical additions to the property, including omitted property (i.e., property not previously assessed). SUMMARY OF EVIDENCE A. Petitioner’s Evidence 1 See MCL 205.762(1). 2 See MCL 205.737(5)(b). 3 MCL 205.737(3); see also Kern v Pontiac Twp, 93 Mich App 612, 620; 287 NW2d 603 (1979). 4 Michigan Const 1963, art IX, sec 3. 5 MCL 211.27(1). 6 CAF Investment Co v State Tax Comm, 392 Mich 442, 450; 221 NW2d 588 (1974). 7 See Jones & Laughlin Steel Corp v City of Warren, 193 Mich App 348; 483 NW2d 416 (1992). 8 Id. at 356. 9 See Safran Printing Co v Detroit, 88 Mich App 376; 276 NW2d 602 (1979).
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MTT Docket No. 24-003736 Page 3 of 10 Petitioner’s contentions of TCV, SEV and TV: Parcel Number: 40001-001-048-10 Year TCV SEV TV 2024 $130,000 $65,732 $24,749.55 2025 Not provided The exhibits offered by Petitioner may be viewed on line 1 of the docket maintained in this case.10 No exhibits were excluded from evidence. Based on the pleadings and admitted exhibits, Petitioner contends that the assessment is not accurate with respect to the cement threshold to the cabin, the five-board, split-rail fence, two eight-by-16-foot carports, and the wood-framed pump house, as detailed therein. Based on sworn testimony, Petitioner contends that the additions to the record card resulted in four inaccuracies to TV. The threshold to the cabin, as shown in Exhibit A, is a small step. The concrete surrounding the step is covered in moss and plants. It was part of the original construction in the late 1930s, and it has not been repaired or modified since. Petitioner purchased the subject property in 1990. There was a popup for that, as well as two prior ones, and there should not be an additional new charge on the property record card. Further, the concrete is beyond its life. Petitioner contends that the fence was constructed in 1992 to replace a wire electric fence. It is on the card as a five-board split-rail fence. Exhibit B shows that it is a three- board agricultural, rough-sawn board fence. Home Depot has such fencing for $15 per board. It is decorative and not a split-rail board. It is a standard board worth $2 and something per board. The valuation on the card is wrong. Further, Petitioner contends that taxes must be leveled fairly and equitably under Article IX Section 3 of the State Constitution and the General Property Tax Act. Petitioner contends they spoke to other assessors and that other jurisdictions do not tax fences because fences go up and down quickly and without knowledge, making it impossible. Petitioner, through Zillow, searched the taxable area for properties with fences. They requested the record cards for those, and while one was not in the area, the other three were not being taxed for their fences. At a later time at the hearing, Petitioner supplemented their contentions regarding the fencing, stating that the added value was created using today’s costs. The fence was built for less than $500, which cannot be done today. If it is taxed, it should be valued at $500 with a maximum 5% annual increase, and it cannot be valued as new construction 30 years after being built. If depreciated to today, the value is almost $0. Respondent valued the fence using today’s rates and using the manual’s rate for decorative fencing, 10 The docket is located on the Tribunal’s website at Tax Docket Lookup Search Page and may be accessed by entering the docket number assigned to this case.
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MTT Docket No. 24-003736 Page 4 of 10 whereas Petitioner’s rate must be lower. Respondent’s depreciation rate still values the fence at 81% good. Exhibit C shows the three greenhouses that are missing plastic and the outline around them. Exhibit D shows that Zillow lists a fence. That property is a fenced property with decorative or other cyclone metal fencing. Exhibit F shows an ag wire fence attached to a pole barn, and no one pays taxes on those fences. As a result, Respondent is not fairly and equitably taxing fencing. Petitioner contends that the two carports being charged are a feature of the fence. As shown on Exhibit G, the fence feature was then changed to a sun shelter. It has no shingles, just a metal roof attached to taller fence posts to give animals a spot out of the weather. It is a feature of the fence and should not be taxed because it is part of the fence. Petitioner contends that the wood-framed pump house should not have been added because it was already on the record card as a septic system. The system existed prior to the 1990 purchase, and in 1992, Petitioner repaired the pumphouse structure. Petitioner contends that such a repair constitutes normal repairs, replacement, and maintenance under MCL 211.27(2), known colloquially as Matthieu Gast. Petitioner contends that the value of the repaired and replaced structure should be excluded until the property is sold. On rebuttal, Petitioner contends that the record cards were requested from and received from Ms. Murray, so Petitioner would not have known as they were from other townships. Petitioner has an email to show it. They were already getting charged for the well, and the well and pump house go together. Every time the property sold and changed taxes, the result was the value of the property. The assessment accounted for and reflected the value of the property as it actually existed the whole time. Petitioner contends they did not say that fencing is not taxable. They said it must be taxed equitably and fairly. They reject the contention that the blind sample was cherry- picked. Regarding the Zillow comment about lack of fences, pictures were provided to the BOR, and Respondent should be familiar with those. The fence feature is valued by whether it is for an animal or not. Exhibit G shows the subject is just a feature of the fence allowing animals to shelter from sleet or rain. It is not associated with events or an arena. In farmland, typically a sun shelter is used for raising pigs. Pigs do not sweat, so farmers put four to six tall polls. When the sun is hot, they pull a netting over the top. That is the only use for a sun shelter in agriculture. B. Respondent’s Evidence The property’s TCV, SEV and TV, as confirmed by the BOR, for the tax years at issue:
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MTT Docket No. 24-003736 Page 5 of 10 Parcel Number: 40001-001-048-10 Year TCV SEV TV 2024 $208,000 $104,000 $29,949 2025 Not provided The exhibit offered by Respondent may be viewed on line 5 of the docket maintained in this case.11 No exhibits were excluded from evidence. Based on the pleadings and admitted exhibits, Respondent contends that the 2024 TV was increased due to observed improvements including 641 linear feet of fencing and two 10-by-16-foot sun shelters. The BOR adjusted the new and additions down from $6,400 to $5,200 due to the sun shelters being originally priced as carports. Respondent contends that the issues raised in the petition were otherwise properly assessed. Based on sworn testimony, Respondent contends that Petitioner used the term “popup,” but there was no uncapping related to any property transfer affidavit. Instead, items were brought in because they were not previously on the roll. Respondent contends that fences are assessable and available for pricing in the published State Tax Commission (STC) manual. Respondent’s representative never heard an assessor or equalization director say they are not assessable, and Petitioner provided no evidence. Respondent contends that Petitioner’s records are seemingly cherry-picked cards with no fences. The STC requires assessors to inventory 20% of parcels in a unit on an annual basis, and the subject township had not had that service for some time, which is why the representative was brought in to find missing features. With respect to Zillow, Respondent acknowledges people rely on it, but Respondent gives no credence because there is no public information about how values are determined. That is especially true when there is a lack of photos or other evidence. Respondent shall not rely on the record cards provided, which are from municipalities outside of the subject township. Respondent cannot account for other government units. Respondent contends that, while Matthieu Gast allows for non-consideration of TCV for normal repairs or maintenance, this is a case where the pump house was never on the property record card before. Features found on the property during inspection must be placed on the property record card regardless of when they were built. The Tribunal has upheld this practice. The property’s uncapping is not relevant in this regard. Respondent contends that the carport is seemingly pertinent to the fence. Now labeled as a sun shelter, it was aptly named because it is designed to shade or otherwise accommodate animals or people. The BOR made the change, and it is somewhat accurate. Based on Petitioner’s exhibits, Respondent contends the structure is a value- 11 The docket is located on the Tribunal’s website at Tax Docket Lookup Search Page and may be accessed by entering the docket number assigned to this case.
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MTT Docket No. 24-003736 Page 6 of 10 influencing feature because it is a roofed structure affording shade and protection from the elements. Nothing in law supports disregarding that in the assessment. On rebuttal, Respondent contends that the well and pump house go together but were not priced together. The subject is valued fairly and equitably. Respondent is unsure of the blind sample, but those parcels are from neighboring townships and not the subject. The sun shelter’s assessment reflects that it is a modest structure with no walls, a light roof, and a dirt floor, and the BOR took time to address what the structure was. It was brought on at a depreciated rate. There were also 34 years during which there was no taxation on it. Respondent is in the process of updating the record cards via the 20% annual canvass of all properties. FINDINGS OF FACT The following facts were proven by a preponderance of the evidence: 1. The subject property is located at an unnumbered site on Camp Arrowhead Rd., Bear Lake Township, Kalkaska County. 2. The subject property is classified as residential. 3. The concrete slab was in existence in 2023 but not assessed on the 2023 tax roll. 4. The fence was in existence in 2023 but not assessed on the 2023 tax roll. 5. The sun shade, also described at various junctures as a carport or as an enhancement to the fence, was in existence in 2023 but not assessed on the 2023 tax roll. 6. The wood frame pump housing surrounding the well was in existence in 2023 but not assessed on the 2023 tax roll. 7. Respondent did not submit any property record cards in support of its additions to TV as omitted property. 8. Petitioner submitted only Respondent’s 2024 property record card to demonstrate the disputed property’s taxable status. 9. No additions or losses were demonstrated for tax year 2025. CONCLUSIONS OF LAW The following authority and reasoned opinion supports the Tribunal’s determination: Valuation Petitioner “has the burden of proof in establishing the [TCV] of the property.”12 “This burden encompasses two separate concepts: (1) the burden of persuasion, which does not shift during the course of the hearing, and (2) the burden of going forward with the 12 MCL 205.737(3).
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MTT Docket No. 24-003736 Page 7 of 10 evidence, which may shift to the opposing party.”13 Although the Tribunal has a duty to make an independent determination of value,14 the Michigan Court of Appeals has held that this duty “arises only when the petitioner has met its burden of going forward with evidence.”15 Therefore, “if a petitioner fails to come forward with competent evidence to challenge the assessed values of the property, then the tribunal's duty to make an independent determination of true cash value is not triggered.”16 Indeed, the Tribunal’s factual findings must be supported by competent, material, and substantial evidence.17 Thus, while the Tribunal may not “automatically accept a respondent’s assessment,”18 it may, upon motion or its own initiative, enter an involuntary dismissal if the petitioner fails to meet the burden of going forward.19 “The ‘substantial evidence test’ has been defined as evidence which a reasoning mind would accept as sufficient to support a conclusion. While it consists of more than a mere scintilla of evidence it may be substantially less than a preponderance of the evidence.”20 “Competent evidence” has been defined as “that which the very nature of the thing to be proven requires . . . . ”21 The “thing to be proven” in this case is the TCV of the property at issue. TCV is defined as “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.”22 TCV is traditionally determined using one of three widely accepted appraisal methods: cost, income, and market.23 13 Jones & Laughlin, 193 Mich App at 354–55; 483 NW2d 416, 420 (1992). 14 See Alhi Dev Co v Orion Twp, 110 Mich App 764, 767; 314 NW2d 479, 481 (1981). 15 Dicastal N Am, Inc v City of Greenville, unpublished per curiam opinion of the Court of Appeals, issued August 22, 2024 (Docket No. 365333) citing Great Lakes Div of Nat'l Steel Corp, 227 Mich App 379, 408- 410; 576 NW2d 667, 680-681 (1998). 16 Id. The Court further stated that it “will not assess the credibility of witnesses, and the determination of the weight to be given the evidence is within the Tax Tribunal’s discretion.” Id. (citations omitted). See also Country Meadows, GP v Macomb Twp, unpublished per curiam opinion of the Court of Appeals, issued April 1, 1997 (Docket No. 182305), wherein the Court held: “Plaintiffs cite Jones & Laughlin . . . . for the proposition that even when the plaintiff fails to meet his burden of proof, the tribunal must still make an independent determination of the true cash value of the property in question. However, unlike the plaintiff in Jones & Laughlin, in the present case plaintiffs did not meet their burden of going forward with evidence. Under the circumstances, the tribunal could not make an independent determination of the true cash value of the property because it had no evidence on which to base such a determination except that provided by defendant. A contrary holding would be tantamount to requiring the tribunal to hire its own appraiser.” Id. (citations omitted). 17 See Antisdale v City of Galesburg, 420 Mich 265, 277; 362 NW2d 632 (1984); 18 Jones & Laughlin, 193 Mich App at 355-356. 19 See MCR 2.504(B)(2). See also Jones & Laughlin, 193 Mich App at 354-355 and Great Lakes v City of Ecorse, 227 Mich App at 408-410. 20 Russo v Dep't of Licensing & Regul, 119 Mich App 624, 631; 326 NW2d 583, 587 (1982). See also Dow Chem Co v Dep't of Treasury, 185 Mich App 458; 462 NW2d 765 (1990). 21 Goff v Bil–Mar Foods, Inc (After Remand), 454 Mich 507, 514 n 5; 563 NW2d 214 (1997), overruled on other grounds in Mudel v Great Atl & Pac Tea Co, 462 Mich 691; 614 NW2d 607 (2000), quoting Black's Law Dictionary (6th ed). See also Moore v Prestige Painting, 277 Mich App 437; 745 NW2d 816 (2007). 22 MCL 211.27(1). 23 Meadowlanes Ltd Dividend Housing Ass'n v City of Holland, 437 Mich 473, 485; 473 NW2d 636 (1991).
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MTT Docket No. 24-003736 Page 8 of 10 “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.”24 Although Petitioner provided some evidence in this case, it is not sufficient to meet the burden of going forward with valuation of the subject property in this case. Petitioner did not present a valuation disclosure or other valuation documentation establishing a market-based value using sales or other market data. Instead, Petitioner rebuts four specific items on Respondent’s cost approach and asks for removal, alteration, or non- consideration of those items. Petitioner has not met the burden of going forward with the valuation evidence because its arguments regarding the four disputed items are not sufficient to meet that burden. Petitioner states that the concrete slab is original construction, moss-covered, and has not been updated since it was constructed in the 1930s. Petitioner states that the fence is assessed as the wrong number of rails, wrong use, and is over-valued based on commercial materials cost to replace. Petitioner states that the sun shelters are included in the fence and are not separately taxable property. Petitioner states that it was already taxed for the well and that adding the pump house results in double taxation. However, Petitioner did not provide any evidence to show what effect, if any, the presence of such features has upon the property’s market value. Despite Petitioner’s vague and unsupported assertion about the non-taxability of the fence, all property in Michigan is subject to taxation unless otherwise specifically exempt.25 Petitioner attempts to rebut this assertion that with unsupported testimony that fences are not taxed in other taxing jurisdictions, but as non-exempt property, the law states that the shelters must be taxed. The well and the pump house are distinct property, even where they are used in a coordinated manner with one another, and both are subject to taxation as a result. The Tribunal agrees with Petitioner that the photos establish that the items assessed as sun shelters, also referred to as fence enhancements, are integrated with the fence, but those items of property in Michigan nevertheless must be taxed as explained above because they are not specifically exempt. Petitioner did not meet the burden to demonstrate that another method of assessment of those features is superior to the BOR determination that they should be assessed as sun shelters because no market-based valuation evidence was provided in support of Petitioner’s contentions. Petitioner also contends that the fence must be taxed at the price for which it was built in the 1990s. However, this also conflicts with the legal requirement that Petitioner’s property be taxed at its TCV, which is the usual selling price of that property and not the property’s value at the time of its construction.26 The Tribunal also notes that, generally, Petitioner’s testimony with respect to the property conflates the concepts of cost and value, which are not synonymous terms.27 Therefore, as a result of all of the foregoing, the burden of going forward did not shift to Respondent, and the Tribunal’s duty to make an independent determination of value 24 Id. 25 See MCL 211.1. 26 See MCL 211.27(1). 27 See The Appraisal of Real Estate, Appraisal Institute (Chicago: 15th ed, 2020) at p 26.
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MTT Docket No. 24-003736 Page 9 of 10 was not triggered. As such, involuntary dismissal of the valuation portion of the case is warranted. TV While Petitioner did not meet the burden of going forward with respect to valuation, the Tribunal nevertheless has a duty to determine a property’s TV because such a calculation is mandatory and automatic.28 Petitioner also disputes the additions to TV made by the assessor as omitted real property and partially affirmed by the 2024 BOR. [U]nder MCL 211.34d(1)(b)(i), omitted real property “does not increase taxable value as an addition unless the assessing jurisdiction has a property record card or other documentation showing that the omitted real property was not previously included in the assessment.” The burden of establishing that omitted real property was not previously included in the assessment is squarely upon the assessing jurisdiction.29 In Long, the township supported its TV additions under the omitted property subsection by including prior-year record cards demonstrating that the purportedly omitted property was not previously assessed. However, the township in that case, despite producing several prior years of property record cards for that property, failed to produce record cards dating back to the year in which the purported error occurred. The Court of Appeals found that failure to establish that the property was not assessed in any prior tax year during which the error might have arisen resulted in that unit of government not meeting the burden of proof to establish omitted property. Here, unlike in Long, no prior-year record cards were established. Petitioner’s credible testimony established that many of the disputed features back date to the early 1990s. Respondent failed to support its assertions with the necessary prior-year property record cards. Respondent therefore has not met its burden to show that these items can be added to TV as omitted property. Instead, the subject TV shall be set at the prior-year TV multiplied by the annual rates of inflation for each tax year at issue. Therefore, IT IS ORDERED that this case is PARTIALLY DISMISSED with respect to Petitioner’s valuation claims. JUDGMENT This is a proposed decision and not a final decision. As such, no action should be taken based on this decision. After the expiration of the time period for the opposing party to file a response to the exceptions, the Tribunal will review the case file, including the Proposed Opinion and Judgment (POJ) and all exceptions and responses, if any, and: 28 See Michigan Properties, LLC v Meridian Twp, 491 Mich 518; 817 NW2d 548 (2012). 29 Long v Putnam Twp, unpublished per curiam opinion of the Michigan Court of Appeals, issued December 19, 2024 (Docket No 370113) (Long).
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MTT Docket No. 24-003736 Page 10 of 10 a. Issue a Final Opinion and Judgment (FOJ) adopting the POJ as a Final Decision; b. Issue an FOJ modifying the POJ and adopting the Modified POJ as a Final Decision; or c. Issue an Order vacating the POJ and ordering a rehearing or such other action as is necessary and appropriate. EXCEPTIONS The parties have 20 days from the “Entered” date below to notify the Tribunal in writing, by mail or by electronic filing, if they do not agree with the POJ and to state in writing why they do not agree with the POJ (i.e., file exceptions to the POJ). Exceptions must be signed and are limited to the evidence submitted prior to or at the hearing and any matter addressed in the POJ. There is no fee for filing exceptions. Parties must provide the opposing party with a copy of their exceptions and file proof of service with the Tribunal (i.e., submit a written statement indicating that the opposing party has been provided or “served” with a copy of the exceptions). Service on the opposing party can be made by mail, or if agreed to by the parties, by electronic service (i.e., email). The proof of service must be signed. The opposing party has 14 days from the date the exceptions are served on that party to file a written response with the Tribunal. Responses to exceptions must be signed. Parties must provide the opposing party with a copy of their response to the exceptions and file a signed proof of service with the Tribunal. If the parties fail to sign their exceptions or responses, or if they fail to submit a signed proof of service for the exceptions and/or responses, the Tribunal may not consider the exceptions or responses in issuing the FOJ. By _________________________________ Entered: January 16, 2026 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 provided by those parties, attorneys, or authorized representatives. By: Tribunal Clerk