By By JOHN EBY / Dowagiac Daily News
The Michigan Court of Appeals on Tuesday concluded there is "no basis" for reversing a drain project decision.
Judges William B. Murphy, David H. Sawyer and Pat M. Donofrio said plaintiffs Gary L. King, Marla K. King, Robert W. King and Monica M. King "failed to overcome the presumption of validity and proportionality at the board of review level" and in Cass County Circuit Court - "especially (their) 'market value' approach."
Plaintiffs appealed a Circuit Court order granting defendant Alan F. Butchbaker, former county drain commissioner, motion for summary disposition.
This case arose out of a special assessment for the cost of constructing Hilltop Road Drain in Porter Township.
The drain project was proposed because water running down from higher elevations, i.e., various parcels owned by the plaintiffs, occasionally washed out the roadway and saturated lower-elevation parcels.
The drain diverted rain water to a nearby lake in such a manner as to alleviate past drainage problems.
Butchbaker's apportionment of the costs involving in undertaking and completing the project, which costs totaled approximately $84,000.
Butchbaker's apportionment resulted in the plaintiff's property being assessed a little more than $17,000.
The remainder of the costs was allocated between the township, the county and other township residents.
The judges wrote in their ruling, "Plaintiffs' position was and is that, under the principle of benefits derived relative to assessing or apportioning the cost of a drain project, thei rproperty would receive no benefit from the construction as necessarily and solely reflected by changes in the market value of the property and that the method used by defendant improperly focused on property features that contributed to the need for a drain, not the benefits derived or recieved by way of the drain project.
A three-member review board Probate Court appointed upheld the assessment the drain commissioner issued. Circuit Court upheld review board's ruling. "We affirm," the Court of Appeals stated. "We find it unnecessary to address plaintiffs' argument that benefits derived must be measured by fluctuation, if any, in the market value of the property that is created when taking into consideration the drain project."
The Court of Appeals said the plaintiffs failed to take advantage of the opportunity to submit evidence regarding market value either before the review board or in Circuit Court in the face of the motion for summary disposition.