By Ben Solis
Gongwer News Service
A special assessment of residents in Midland and Gladwin counties, which could possibly pay for some repairs on the Edenville and Sanford dams, could be the subject of oral arguments before the Michigan Supreme Court following a ruling from the Court of Appeals that upheld the assessment.
The plaintiffs in Heron Cove Association v. Midland County Board of Commissioners (MSC Docket No. 168165) have appealed to the high court in hopes to reverse the Court of Appeals’ affirmation of a Midland Circuit Court holding. The lower court found the methodology to create the assessment was reasonable and correct.
The dispute stems from the 2018 decisions of the Midland and Gladwin boards of commissioners appointing the Four Lakes Task Force as the delegated authority to oversee the maintenance of normal lake levels for the Wixom, Sanford, Smallwood and Second lakes. A circuit court ruling from 2019 set the normal lake levels for Four Lakes and confirmed the boundaries of a special assessment district to help maintain the dams and lake levels.
In 2020, the Edenville and Sanford dams failed and caused catastrophic flooding.
Repairing, improving and replacing the four dams to restore the Four Lakes following that breakdown was estimated to cost nearly $399.7 million. The task force secured more than $200 million in federal and state grants for the project and the rest, about 55 percent of the costs, were to be recovered through special assessments on residents living in the Four Lakes district.
The special assessment was floated as a solution and would be collected in annual installments over the next 40 years. The projected proceeds would total nearly $217.7 million. Additionally, the task force created a separate special assessment roll to cover the operational and maintenance expenses for the Four Lakes system starting this year until 2029.
A public hearing was held on the matter, but the counties approved the rolls at a subsequent meeting. The plaintiffs filed a claim in Midland Circuit Court, with the lead plaintiff, Heron Cove Association, representing those who own or are interested in properties on or near the Four Lakes or within the district. They and others challenged the levying and distribution of the special assessments, which they argued were not authorized by law and were not supported by any competent, material or substantial evidence.
They further argued that the counties’ decisions regarding the assessments were illegal because construction on dam improvements began before the costs and special assessment rolls were approved by resolution, a violation of the Natural Resources and Environmental Protection Act, and that the assessments were improper because the properties received little to no special benefit or increase in market value from the tax.
The taxes imposed on their properties were also grossly disproportionate, the complaint said, to the increase in market value attributed to the improvements, which they argued was an example of unconstitutional taking without due process.
The circuit denied the plaintiffs’ requested relief, ruling that the counties provided due process, that the special assessments were legally authorized and both fully complied with provisions of the Inland Lake Level Act.
Upon appeal, the panel in Heron Cove Association affirmed the circuit court’s holdings. The per curiam unpublished opinion released on February 7, from Judge Stephen Borrello, Judge Allie Greenleaf Maldonado and Judge Randy Wallace, noted that the plaintiffs contended that the Legislature ought to have established an alternative process, but that argument was for the Senate and House and not for the judiciary. The opinion said a litigant’s perception that a statute may have been unwise or unjust does not, in and of itself, establish that the statute violates constitutional principles.
Now before the high court, the plaintiffs have asked for a declaration that the circuit court clearly erred and applied incorrect legal principles when it determined that the special assessments and the process used to create them passed muster.
“In short, these are not typical special assessments, and procedural due process is a flexible
concept,” the plaintiffs said in their application for leave to appeal. “The appellees sought and received from the circuit court automatic ratification of their actions without any modicum of due process afforded to property owners in other special assessment contexts and without evidence that the special assessments imposed on the appellants’ properties comport with constitutional and statutory standards. Accordingly, the courts below clearly erred and applied incorrect legal principles, and this court should grant leave to appeal or otherwise reverse.”
Gongwer News Service
A special assessment of residents in Midland and Gladwin counties, which could possibly pay for some repairs on the Edenville and Sanford dams, could be the subject of oral arguments before the Michigan Supreme Court following a ruling from the Court of Appeals that upheld the assessment.
The plaintiffs in Heron Cove Association v. Midland County Board of Commissioners (MSC Docket No. 168165) have appealed to the high court in hopes to reverse the Court of Appeals’ affirmation of a Midland Circuit Court holding. The lower court found the methodology to create the assessment was reasonable and correct.
The dispute stems from the 2018 decisions of the Midland and Gladwin boards of commissioners appointing the Four Lakes Task Force as the delegated authority to oversee the maintenance of normal lake levels for the Wixom, Sanford, Smallwood and Second lakes. A circuit court ruling from 2019 set the normal lake levels for Four Lakes and confirmed the boundaries of a special assessment district to help maintain the dams and lake levels.
In 2020, the Edenville and Sanford dams failed and caused catastrophic flooding.
Repairing, improving and replacing the four dams to restore the Four Lakes following that breakdown was estimated to cost nearly $399.7 million. The task force secured more than $200 million in federal and state grants for the project and the rest, about 55 percent of the costs, were to be recovered through special assessments on residents living in the Four Lakes district.
The special assessment was floated as a solution and would be collected in annual installments over the next 40 years. The projected proceeds would total nearly $217.7 million. Additionally, the task force created a separate special assessment roll to cover the operational and maintenance expenses for the Four Lakes system starting this year until 2029.
A public hearing was held on the matter, but the counties approved the rolls at a subsequent meeting. The plaintiffs filed a claim in Midland Circuit Court, with the lead plaintiff, Heron Cove Association, representing those who own or are interested in properties on or near the Four Lakes or within the district. They and others challenged the levying and distribution of the special assessments, which they argued were not authorized by law and were not supported by any competent, material or substantial evidence.
They further argued that the counties’ decisions regarding the assessments were illegal because construction on dam improvements began before the costs and special assessment rolls were approved by resolution, a violation of the Natural Resources and Environmental Protection Act, and that the assessments were improper because the properties received little to no special benefit or increase in market value from the tax.
The taxes imposed on their properties were also grossly disproportionate, the complaint said, to the increase in market value attributed to the improvements, which they argued was an example of unconstitutional taking without due process.
The circuit denied the plaintiffs’ requested relief, ruling that the counties provided due process, that the special assessments were legally authorized and both fully complied with provisions of the Inland Lake Level Act.
Upon appeal, the panel in Heron Cove Association affirmed the circuit court’s holdings. The per curiam unpublished opinion released on February 7, from Judge Stephen Borrello, Judge Allie Greenleaf Maldonado and Judge Randy Wallace, noted that the plaintiffs contended that the Legislature ought to have established an alternative process, but that argument was for the Senate and House and not for the judiciary. The opinion said a litigant’s perception that a statute may have been unwise or unjust does not, in and of itself, establish that the statute violates constitutional principles.
Now before the high court, the plaintiffs have asked for a declaration that the circuit court clearly erred and applied incorrect legal principles when it determined that the special assessments and the process used to create them passed muster.
“In short, these are not typical special assessments, and procedural due process is a flexible
concept,” the plaintiffs said in their application for leave to appeal. “The appellees sought and received from the circuit court automatic ratification of their actions without any modicum of due process afforded to property owners in other special assessment contexts and without evidence that the special assessments imposed on the appellants’ properties comport with constitutional and statutory standards. Accordingly, the courts below clearly erred and applied incorrect legal principles, and this court should grant leave to appeal or otherwise reverse.”
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