Outside Legal Counsel PLC

OLC Files Appeal Challenging New Higgins Lake Special Assessment District

For Immediate Release | Jan 08, 2024

On behalf of four property owners and a local property-rights association, Outside Legal Counsel has filed an appeal challenging the creation of the Higgins Lake Special Assessment District in northern Michigan.

Higgins Lake contains twenty-one miles of shoreline located within Roscommon and Crawford Counties. In the fall of 2023, these Counties sought to have the local court approve their creation of a new taxing-zoning known as a special assessment district. Under Michigan law, these taxing designations force specific property owners to pay assessments, a type of tax, to repay the cost of proposed improvements the government seeks to undertake. But to be an appropriate "special assessment district," Michigan law mandates that there must legal "proportionality" between the amount of the special assessment and the benefits derived therefrom. Without reasonable and established proportionality, the Michigan Supreme Court has decried such improper special assessments to be "akin to the taking of property without due process of law."

The Boards of Commissioners of Roscommon and Crawford Counties sought to create such a taxing zone without first establishing what the project would consist of, how much it would cost, and who would be allocated to pay for the same. Instead, it simply proposed that the decision as to how much would be imposed as new taxes is outside the oversight of the normal confirmation process and without local affected property owners having the opportunity to object to the Court.

This, according to OLC attorney Philip L. Ellison, made the undertaken process illegal.

The Counties' alleged failure to follow required procedural, constitutional, and legal mandates is the result of "a structural misunderstanding" by county officials "of how a special assessment is [supposed] to be first drafted, then proposed, later reviewed, and ultimately established (with circuit court approval on confirmation)."

According to Roscommon County, it acknowledges it is "responsible for the operation, maintenance and improvement of the Higgins Lake lake-level control structure" (LLCS) yet asserts on its website that the LLCS needs repairs that Roscommon County alone can no longer pay as being labor-intensive, unsafe and susceptible to tampering. Yet, there has been no cost or feasibility studies undertaken or any project proposed on how to fix or replace it. Yet, government officials claim to need "to defray the cost of updating and repairing the LLCS" without a plan and have local property owners foot the bill without due process.

Despite more than a hundred objections filed, the Roscommon County Circuit Court found on September 15, 2023 that the made-objections to the Higgins Lake Special Assessment District were legally irrelevant because the Part 307 hearing was being conduct was solely to "appraise the public of the governmental action while providing the opportunity to present opposing viewpoints." In other words, according to the Circuit Court, the hundreds of objections were a pointless exercise because the "hearing is not about potential assessment costs" but more akin to a mere announcement from the town square.

"Such thinking," argued Ellison in the brief, is "legal error."

On January 8, 2024, Ellison filed a nearly 30-page brief supported by over 300 pages of appendix documents outlining why the Counties of Roscommon and Crawford securing "an undefined, open-ended special assessment on property owners along Higgins Lake" violates Michigan law.

Oral arguments on the legal challenge are expected in the Fall of 2024.

This is not the first challenge made at the appellate courts against erroneous 'conventional wisdom' regarding the operations of Higgins Lake. OLC's attorney Ellison previously appealed the same local court's refusal to require these same counties to maintain the mandated legal level of Higgins Lake and succeeded in getting a reversal before the Michigan Court of Appeals. There, a three-judge panel agreed there is "a clear, legal duty to maintain the lake level at 1,154.11 feet" while local property owners "had a right to performance of this duty." Later appeals by Roscommon County to the Michigan Supreme Court were unsuccessful.