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01/26/76 TACK v. CITY ROSEVILLE

January 26, 1976

TACK
v.
CITY OF ROSEVILLE



Appeal from Macomb, Hunter D. Stair, J.

Leave to appeal denied, 397 Mich .

J. H. Gillis, P. J., and Allen and M. J. Kelly, JJ.

SYLLABUS BY THE COURT

1. Appeal and Error -- Equity -- De Novo Review -- Findings of Fact.

An appellate court reviewing an equity case de novo will not ordinarily disturb findings of fact unless the court concludes it would have arrived at a different result had it been in the position of the trial Judge.

2. Municipal Corporations -- Special Assessments -- Street Improvements -- Benefit to Abutting Property.

Municipal corporations may levy special assessments upon abutting property for the purpose of street improvement based upon the theory that a special benefit is conferred upon such property over and above the general benefit conferred upon the municipality as a whole.

3. Municipal Corporations -- Special Assessments -- Street Improvements -- Benefit to Abutting Property -- Judicial Review.

The legislative body imposing a special assessment for the purpose of street improvements is in the best position to determine whether a benefit is conferred upon the property so assessed and the amount of such benefit; courts are reluctant to interfere in this legislative determination unless there is fraud, mistake, discrimination, or the absence of the benefits claimed appears with certainty.

4. Municipal Corporations -- Special Assessments -- Street Improvements -- Benefit to Abutting Property -- Judicial Review.

The concept that road improvements, including street widening in particular, automatically result in special benefits to abutting properties, even when so determined by the legislative body imposing assessments, may be overturned where the record as a whole stretches credulity or shows beyond fair dispute that an overall harm results to the property owners assessed.

5. Municipal Corporations -- Special Assessments -- Street Improvements -- Benefit to Abutting Property -- Detriment to Abutting Property.

Owners of property abutting a street were not specially benefited so as to justify the levy of a special assessment against the property when the street was widened from two lanes to five and curbs and storm sewers installed where the record indicates that the improvement was not made for the benefit of the abutting property owners but for the county as a whole, to eliminate a serious bottleneck in a major thoroughfare and to serve some commercial traffic generators in particular; the abutting property owners were no more benefited than were nonassessed taxpayers of the county and in addition incurred some detriments in that traffic was increased and was moved closer to their homes.

6. Courts -- Judge's Discretion -- Class Actions -- Notice to Absentee Members -- Appeal ...


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