Judge dismisses lawsuit over city roads assessment

By: Sherri Kolade | Farmington Press | Published March 20, 2017

FARMINGTON HILLS — “We won.”

The two-word subject line sent in a Feb. 23 email summed up a local resident’s feelings about an Oakland County Circuit Court judge’s ruling in a city of Farmington Hills lawsuit against about 80 Independence Commons subdivision residents.

A city road improvement policy — which would require homeowners to pay roughly $12,000-$18,000 each over 10-15 years based on average abutting frontage — would violate the Michigan Constitution, according to Judge Phyllis McMillen.

McMillen stated in the Feb. 21 lawsuit dismissal that the city is not permitted, even as a home rule city, to institute policies that violate the state constitution.

“The plaintiff argues that as a home rule city, it has broad discretion to adopt charter provisions regarding special assessment,” McMillen stated in the letter. “However, the Home Rule City Act does not give plaintiff discretion to adopt unconstitutional policies. The complaint is dismissed in its entirety.” 

Both parties had a right to file an appeal until March 14.

Subdivision resident Barbara Cripps confirmed in an email that their attorney had filed a reconsideration last week.

Sylvan Lake-based attorney Thomas Ryan, Cripps said, filed a motion for reconsideration to see if McMillen would take a further step to rule on the constitutionality of the city charter section for SADs.

Ryan could not be reached for comment by press time.

“All other cities I know of have a millage for roads, as does Farmington Hills. However, Farmington Hills continues to tax its residents on top of the millage. Tom is trying to get that changed so homeowners aren’t facing these huge bills,” Cripps said.

The lawsuit began last year after 80 Independence Commons subdivision residents took their grievances to the Michigan Tax Tribunal in April because they felt that the high road assessment would not pay off for them. The city responded by suing them in order to allow the courts to have a say in the matter. 

Last August, the city informed a number of residents that certain streets — in the Flemings Roseland Park and the Farmington Acres subdivisions, along with Omenwood Street and Geraldine Road — were being considered for reconstruction.

Per the city’s directed special assessments for road improvements policy — approved by City Council about a year ago — local roads are given priority to be improved based on a pavement condition rating and a number of other factors, such as housing density, Department of Public Works upkeep and public interest.

Farmington Hills Mayor Ken Massey said in an email statement that McMillen’s ruling was somewhat in the middle.  

“The judge decided not to grant the residents the relief they requested and also not to grant the city’s request for guidance and direction on whether the voted-upon charter cap on city contribution to local road SADs at 20 percent was constitutional,” Massey said. “The end result is that the city charter cap has not been found to be unconstitutional and remains applicable. Going forward, decisions regarding future SADs will have to stand on their own merits.”

Under that policy, the city is responsible for paying 20 percent, while residents pay 80 percent.

He added in the email that due to the ruling, there are no subdivision road construction projects set for the 2017 construction season, but what will happen in 2018 is “yet to be determined,” Massey said.  

“As stated, the voted-upon charter provision capping the city’s contribution toward local road SADs at 20 percent continues to be in place,” he added.

Assistant City Manager Gary Mekjian said previously that in 2014, the city revised the way it rates pavement conditions.

He said that when City Council members saw the poor conditions of the streets, they changed the road improvements policy. The policy always allowed residents to petition the city to reconstruct their local streets, but the change allowed the city to impose an SAD without residents petitioning, officials said.

The standardized pavement assessment is used throughout the state and county for road agencies to rank roads on a scale of 1-10, where 10 is a brand-new road and 2 is practically undrivable.

He said that neighborhoods with a pavement condition of  2.75 or less were going to be moved into the capital plan.

During oral arguments Feb. 1 before McMillen, City Attorney Steven P. Joppich and Ryan, who represents Independence Commons subdivision residents, argued their cases. 

The 80 subdivision residents initially took their grievances to the Michigan Tax Tribunal in April 2016; the Michigan Tax Tribunal  dismissed the case in December because the residents did not have evidence properly supporting their grievances.

Massey said that the MTT ruling favored the city in all of its cases.

“The assessments approved by City Council in each of these cases were affirmed by the judge, and they are lawful and proper,” he said of the MTT ruling. “The judge also found that the city’s process and procedures were legal and sound. As such, the assessments relative to the persons who challenged them in the MTT remain in place.”

McMillen’s 15-page ruling listed other lawsuits, saying that the issues raised by residents fall within the Michigan Tax Tribunal purview when it comes to road assessments. 

Massey said last August that the residents used their right to appeal to the MTT for their assessment values. Independence Commons residents are asking the city to put in more than 20 percent of the cost.

Massey said in an email after the ruling that most people want good roads in their neighborhoods, and there is a process in the city charter to provide the funding for good neighborhood roads.  

“At some point, all roads reach the end of their life and become unsafe, requiring reconstruction — preferably before they reach an unsafe condition,” he said in the email. “The Independence Commons roads, for example, were 40-45 years old. As roads become more and more deteriorated, the issue for most people is not about whether to reconstruct them, but it is who pays.”

He added that the primary users of neighborhood roads are the people who live there.

“When our charter was adopted by a vote of the people, the decision was made by those voters that the residents within the neighborhoods would have to pay upwards of 80 percent or more of the cost for the construction or reconstruction of their neighborhood’s roads by way of an SAD. Our city has followed these voter-approved charter requirements for over 40 years in neighborhoods across the city,” he said.

Subdivision resident Thomas DeWard, who said some people in the city disagree with the city charter, said in an email that McMillen’s ruling was fair. 

“It’s very good news,” he said, adding that he was not surprised by the ruling. “I think the city was reaching.”

DeWard said he has not heard any communication from the city on McMillen’s ruling. 

“Whether the city plans on appealing that is up to the city,” he said. “I’ve hoped all along we could reach some type of compromise agreement outside of the MTT or the Oakland County Circuit Court, where we could reach some type of compromise where the level of assessment would be reduced.”

Cripps, who lives on Bridgeman Street in Independence Commons, said, “I’m very happy to find out the court ruled in our favor and dismissed the lawsuit.”

Jennifer Orow, who lives in the Independence Commons subdivision, said that her roads were paved last year, and the recent ruling does not bear any weight because her street was already in the process of being worked on.

“Obviously, the decision was a victory, but it shouldn’t have even gone there,” she said. “The city knows they have to make their assessments more reasonable. … This is really about the government trampling on your rights,” she said.

 

For more information, go to www.fhgov.com.