Flaintiff appeals as of right the trial court’s order denying its claim to declaratory and mandamus relief following a bench trial. For the reasons set forth in this opinion, we reverse.
I. FACTS
The relevant facts are largely undisputed. Under the current statutory tax-foreclosure scheme, the state of Michigan has a right of first refusal to purchase any tax-foreclosed properties in the state. MCL 211.78m(l). If the state declines to purchase a property, the city, village, or township within whose limits the property is located may purchase it “for a public purpose.” Id. The price of purchase (referred to as the “minimum bid”) is set at what the minimum bid would be if the property were being auctioned off, which is determined by adding all taxes, interest, and fees owed on the property, so that the foreclosing governmental unit (FGU) breaks even on the property. MCL 211.78m(ll). Before 1999, the state administered the tax-foreclosure scheme in every Michigan county. In 1999, the Legislature passed Public Act 123, which allowed counties to “opt in” and replace the state as the FGU, administering foreclosures within their jurisdictions. MCL 211.78(3), as amended by
Starting in 2005, defendant, as the FGU, began foreclosing on properties, but plaintiff did not seek to purchase any foreclosed properties until 2008. In 2008, defendant foreclosed on 16 parcels within plaintiffs limits. Plaintiff informed defendant that it wished to purchase four of the parcels and forwarded a check to defendant in the amount of the total of the minimum bids for the four parcels. Defendant determined
The properties sought by plaintiff were located at 105 West Thomas, 1216 Park Avenue, 606 Wilson, and 1906 Broadway. In its complaint, plaintiff stated that its public purpose was “to reduce the number of vacant tax reverted properties within [plaintiff]’s limits thereby minimizing the real and present dangers they present and to remove certain blighted conditions present on the subject properties” and that, through redevelopment of the properties, plaintiff “will ensure a healthy and growing tax base.”
Both parties moved for summary disposition, with plaintiff arguing that there were only two conditions placed on the conveyance of property: that plaintiff tender the purchase price to the FGU and that plaintiff have a public propose for the property. Plaintiff argued it was undisputed that both of these requirements were fulfilled; hence, defendant had a clear legal duty to convey the properties and plaintiff had a clear legal right to the performance of that duty. Defendant argued he had a statutory duty “to confirm that the municipality wants the requested property for a public purpose and that the municipality will be able to accomplish that purpose efficiently and expeditiously.” He asserted that plaintiff had no public purpose for the Park Avenue, Broadway, and West Thomas properties and that plaintiff would not be able to achieve its public purpose for the Wilson property efficiently and expeditiously. The trial court denied both parties’ motions, and the case went to a bench trial.
At trial, defendant testified that it was unclear that plaintiff had a public purpose for the properties. Stephen Black, plaintiffs Deputy City Manager of Community Development, testified that plaintiff sought to acquire the Broadway property in order to tear down the building thereon and use the land as a parking lot for the adjacent property, which the city already owned. The Park Avenue property, according to Black, presented health and safety issues because it was “severely impacted by cat urine.” Black said that foreclosure of the West Thomas property presented an opportunity to eliminate a multi-family home, noting that multi-family homes generate complaints in single-family areas. The city planned to either demolish the home or redevelop it. Defendant testified that the West Thomas property was a single-family, not a multi-family, dwelling. As for the Wilson property, Black testified it was a vacant lot that the city was considering conveying to Habitat for Humanity for it to build a new home.
The trial court found for defendant with respect to the Wilson and Broadway parcels, and for plaintiff with respect to the Park Avenue and West Thomas parcels. The parties agreed that, pending appeal, defendant would not “auction, sell, or otherwise dispose of” the Park Avenue, West Thomas, and Wilson properties and that it would not convey the Park Avenue and West Thomas properties to plaintiff. Plaintiff agreed not to seek the Broadway property.
II. MOOTNESS
Defendant argues on appeal that this claim is moot because he has offered to settle the suit by conveying the Wilson property to plaintiff. According to defendant, this removes any case or controversy between the parties. Defendant also argues that this does not fall into the mootness exception “carved out for those situations where ... the issue is of public significance and likely to recur while also likely to evade judicial review.” Defendant argues that it is speculative whether plaintiff will seek to purchase tax-foreclosed property from defendant again and that even if it does, it is only speculative that defendant will refuse to convey the property, and that even if both of these things occur, there will be opportunity for judicial review of the issue at that time.
Plaintiff denies the assertion that there is no case or controversy between the parties. Plaintiff argues that an offer to settle does not render a case moot unless the offer is accepted, and plaintiff has not accepted defendant’s offer to convey the properly in question. Plaintiff also notes that defendant has not conceded the legal points at issue in this case. Regarding the mootness exception for cases involving issues of public significance that recur but are likely to evade judicial review, plaintiff points out that, although it did not purchase any tax-foreclosed properties in 2009, it has regularly purchased tax-foreclosed properties in the past and certainly will do so in the future. And plaintiff argues that, if defendant’s settlement offer renders the issue moot, there is a possibility that the issue will evade judicial review because defendant could simply convey the property every time plaintiff challenges its refusal to do so.
In MGM Grand Detroit, LLC v Community Coalition for Empowerment, Inc,
This case presents the reverse situation — defendant seeks to render the appeal moot not by making it impossible
Additionally, as plaintiff notes, even if it received the Wilson property, this would only satisfy the mandamus claim. Plaintiff also sought a declaratory judgment that its “stated public purpose is a valid public purpose under the laws of the State of Michigan.” Because defendant will not and cannot give plaintiff such a declaration, there is still a controversy that this Court may decide. Although the nature of the action by which defendant seeks to render this case moot differs from that in MGM Grand Detroit, that case did hold that a defendant may not unilaterally render a case moot “by... changing the status quo during the appeal.” MGM Grand Detroit,
III. PUBLIC PURPOSE UNDER MCL 211.78m(l)
Plaintiff argues that MCL 211.78m requires it to have a public purpose to purchase the Wilson property and that it sought the property to build a new home, which qualifies as economic development and therefore is a public purpose. Plaintiff further contends that defendant refused to convey the property because he did not believe that the public purpose could be accomplished “ ‘efficiently’ and ‘expeditiously.’ ” According to plaintiff, the statute only requires a public purpose and not these additional conditions. Conversely, defendant argues that the intent of MCL 211.78m will not be carried out unless properties are purchased by municipalities for a public purpose that can be efficiently and expeditiously carried out. Defendant points out that in other contexts, Michigan courts have interpreted “public purpose” to be more than just a speculative idea or a future possibility and have held that without a requirement of a detailed plan that can be expeditiously carried out, the “public purpose” requirement is illusory. According to the trial court, plaintiffs “proposal [regarding the Wilson property] does not promote the prosperity and general welfare of the residents of Bay City” and was “too speculative to constitute a proper public purpose.”
“A trial court’s decision regarding a writ of mandamus is reviewed for an abuse of discretion.” Casco Twp v Secretary of State,
In Tuggle v Dep’t of State Police,
MCL 211.78m(l) provides, in relevant part:
Not later than the first Tuesday in July, immediately succeeding the entry of judgment under section 78k vesting absolute title to tax delinquent property in the foreclosing governmental unit, this state is granted the right of first refusal to purchase property at the greater of the minimum bid or its fair market value by paying that amount to the foreclosing governmental unit if the foreclosing governmental unit is not this state. If this state elects not to purchase the property under its right of first refusal, a city, village, or township may purchase for a public purpose any property located within that city, village, or township set forth in the judgment and subject to sale under this section by payment to the foreclosing governmental unit of the minimum bid.
At trial, defendant seemingly conceded that plaintiff stated a public purpose for purchasing the Wilson property. On appeal, however, he argues that plaintiffs public purpose was unclear. He claims that plaintiff sought to obtain the properties “in order to minimize a ‘real and present danger’ and to remove ‘blighted conditions on the subject properties.’ ” But according to the complaint, plaintiff sought the property “to reduce the number of vacant tax reverted properties within Bay City’s limits thereby minimizing the real and present dangers they present and to remove certain blighted conditions present on the subject properties.” And the resolution passed by plaintiff authorizing it to acquire the properties reads, in relevant part, as follows:
Whereas, the City of Bay City desires to acquire selected tax-reverted properties for the purpose of stimulating private investment through the redevelopment of each property; and
Whereas, by improving and selling the various parcels, these economic development efforts will ensure a healthy and growing tax base ....
Thus, plaintiff demonstrated a public purpose beyond minimizing dangers and abating blight. Cf. Kelo v City of New London,
However, defendant argues that the statutory scheme requires that the identified public purpose be capable of being efficiently and expeditiously carried out. Plaintiff asserts that the trial court’s conclusion that plaintiffs plan to construct
We note that while MCL 211.78m(l) does not contain any language requiring the property to be purchased for a public purpose that can be carried out efficiently and expeditiously, such language is found in MCL 211.78(1):
The legislature finds that there exists in this state a continuing need to strengthen and revitalize the economy of this state and its municipalities by encouraging the efficient and expeditious return to productive use of property returned for delinquent taxes. Therefore, the powers granted in this act relating to the return of property for delinquent taxes constitute the performance by this state or a political subdivision of this state of essential public purposes and functions.
The reference to “efficient and expeditious return to productive use” in this legislative finding is not a constraint on the public purpose identified by a city, village, or township purchasing tax-delinquent property-under MCL 211.78m(l). Rather, it is a statement of the purposes of the tax-reversion statutory scheme. Due to the perception of the Legislature that the existing statutory provisions addressing reverted properties were inefficient, the Legislature revamped the General Property Tax Act in
It is not the prerogative of this Court to “judicially legislate by adding language to [a] statute.” Empire Iron,
We hold that the trial court erred in finding for defendant with respect to the Wilson property by adding conditions on a “public purpose” that are not found within the clear and unambiguous language of MCL 211.78m(l). Given the evidence presented, including defendant’s admission at trial that plaintiff had stated a public purpose, there was no basis for the trial court to find in favor of defendant regarding the Wilson property. Because the trial court added language to the statute to arrive at its conclusions, it abused its discretion in denying mandamus relief to plaintiff.
IV COUNTY TREASURER’S AUTHORITY TO MAKE AN INDEPENDENT ASSESSMENT OF PUBLIC PURPOSE UNDER MCL 211.78m(l)
Plaintiff argues that MCL 211.78m(l) gives no authority to defendant to question plaintiffs determination of public purpose. According to plaintiff, such a determination is traditionally considered a legislative function and is thus properly left to plaintiff, as a legislative body. Plaintiff contends that unless the statute says otherwise, the power to review plaintiffs decision lies in the courts, the branch of government that traditionally reviews actions for their consistency with the laws. Finally, plaintiff argues that the proper course of action would be for defendant to obey the statute’s command that it sell the property to plaintiff. If it later becomes evident that plaintiff does not have a public purpose for the property, a party with standing could bring suit to challenge the purchase of the property.
Conversely, defendant argues that it does not usurp the function of the courts for an FGU to review a municipality’s determination of public purpose. Defendant contends that if the courts can review the FGU’s determination, judicial review is still possible. Additionally, defendant argues that he is in the best position to determine which properties to allow municipalities to purchase at the minimum bid and which properties to put to public auction to best manage and maintain the integrity of the delinquent tax revolving fund.
As noted above, MCL 211.78m(l) requires property purchased by a municipality under the statute to be purchased “for a public purpose.” The statute does not, however, specify who makes the determination whether a purpose constitutes a public purpose, nor does it specify what body, if any, may review that determination.
Plaintiff argues that its council is the proper body to determine whether there is a public purpose, because it consists of “ ‘the elected representatives of the people.’ ” Horton v Kalamazoo,
More to the point, however, is plaintiffs separation of powers argument. As noted previously in this opinion, our Supreme Court has stated that “the determination of what constitutes a public purpose is primarily the responsibility of the Legislature.”
In keeping with precedent, we hold that the determination of a proper purpose for the purchase of tax-delinquent property is a legislative function, vesting such determinations as arose in this case with plaintiffs council. Furthermore, because MCL 211.78m(l) creates a mandatory legal duty on defendant’s part to sell the property to plaintiff, granting him no discretion to decide not to sell such property, the statute does not empower a county treasurer such as defendant to make an independent determination as to a municipality’s professed “public purpose.” Pursuant to MCL 211.78m, the selling of property is a mandatory act by defendant, not a discretionary one. For these reasons, the trial court erred to the extent it implicitly held that defendant had a right to review plaintiffs determination of public purpose, and it abused its discretion by denying plaintiff mandamus relief.
Reversed and remanded. No costs are awarded to either party, a public question being involved. MCR 7.216(A)(7) and MCR 7.219(A).
Notes
The legislative analysis prepared for
In some ways, this is an example of the classic fallacy of equivocation. The term “public purpose” is being used in two different, albeit related, ways in MCL 211.78(1) and MCL 211.78m(l).