April 9, 2003, Introduced by Reps. Howell, Meyer, Ehardt, Emmons and Wenke and referred to the Committee on Agriculture and Resource Management.
A bill to amend 1956 PA 40, entitled
"The drain code of 1956,"
by amending sections 1, 2, 3, 6, 8, 10, 12, 21, 23, 24, 25, 26,
27, 28, 29, 30, 31, 32, 33, 51, 52, 53, 54, 101, 102, 103, 104,
105, 106, 151, 152, 153, 154, 155, 156, 157, 158, 161, 191, 192,
199, 200, 221, 222, 223, 241, 242, 243, 244, 245, 247, 261, 262,
263, 265, 266, 267, 269, 270, 273, 274, 275, 276, 277, 278, 279,
280, 282, 283, 301, 302, 303, 304, 306, 307, 322, 322b, 323, 324,
326, 327, 328, 391, 392, 393, 395, 421, 422, 423, 425, 429, 430,
431, 433, 463, 464, 465, 466, 467, 468, 469, 472, 473, 474, 476,
478, 483, 490, 491, 499, 513, 515, 517, 518, 519, 520, 521, 524,
525, 532, 540, 541, 601, 602, 622, 626, and 627 (MCL 280.1,
280.2, 280.3, 280.6, 280.8, 280.10, 280.12, 280.21, 280.23,
280.24, 280.25, 280.26, 280.27, 280.28, 280.29, 280.30, 280.31,
280.32, 280.33, 280.51, 280.52, 280.53, 280.54, 280.101, 280.102,
280.103, 280.104, 280.105, 280.106, 280.151, 280.152, 280.153,
280.154, 280.155, 280.156, 280.157, 280.158, 280.161, 280.191,
280.192, 280.199, 280.200, 280.221, 280.222, 280.223, 280.241,
280.242, 280.243, 280.244, 280.245, 280.247, 280.261, 280.262,
280.263, 280.265, 280.266, 280.267, 280.269, 280.270, 280.273,
280.274, 280.275, 280.276, 280.277, 280.278, 280.279, 280.280,
280.282, 280.283, 280.301, 280.302, 280.303, 280.304, 280.306,
280.307, 280.322, 280.322b, 280.323, 280.324, 280.326, 280.327,
280.328, 280.391, 280.392, 280.393, 280.395, 280.421, 280.422,
280.423, 280.425, 280.429, 280.430, 280.431, 280.433, 280.463,
280.464, 280.465, 280.466, 280.467, 280.468, 280.469, 280.472,
280.473, 280.474, 280.476, 280.478, 280.483, 280.490, 280.491,
280.499, 280.513, 280.515, 280.517, 280.518, 280.519, 280.520,
280.521, 280.524, 280.525, 280.532, 280.540, 280.541, 280.601,
280.602, 280.622, 280.626, and 280.627), sections 21 and 464 as
amended by 1989 PA 134, section 33 as amended by 1982 PA 356,
section 223 as amended by 1989 PA 61, sections 275, 278, and 280
as amended by 2002 PA 406, section 282 as amended by 1984 PA 80,
sections 283 and 499 as amended by 1989 PA 149, section 323 as
amended by 2002 PA 353, section 423 as amended by 1996 PA 552,
and section 433 as amended by 1982 PA 449, and by adding sections
7, 7a, 7b, 7c, 13, 14, 34, 35, 36, 53a, 55, 56, 57, 58, 59, 60,
61, 62, 63, 103a, 107, 108, 109, 110, 111, 112, 113, 114, 115,
116, 117, 201, 275a, 277a, 329, 330, 467a, 467b, 474a, 500, 519a,
and 603; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1
CHAPTER 1 .
1 DRAINS.
GENERAL PROVISIONS
2 Sec. 1. This act
shall be known and may be cited as " the
3 "drain code".
of 1956".
4 Sec. 2. Drains
including branches may be located,
5 established,
constructed and maintained, and existing drains,
6 creeks, rivers and
watercourses and their branches, or
7 tributaries whether
located, established and constructed by a
8 county drain
commissioner or drainage board or by a city, village
9 or township, may be
cleaned out, straightened, widened, deepened,
10 extended,
consolidated, relocated, tiled, connected and relocated
11 along a highway, or
there may be provided for the same structures
12 or mechanical devices
that will properly purify or improve the
13 flow of the drain or
pumping equipment necessary to assist or
14 relieve the flow of
the drain, or 1 or more branches may be added
15 thereto, by petition
under the provisions of this act, whenever
16 the same shall be
conducive to the public health, convenience and
17 welfare. As used in this act:
18 (a) "Agency" includes an officer, board, commission, and
19 other body created by a public corporation or by the federal
20 government, authorized to act in his, her, or its own name.
21 (b) "Benefit" or "benefits" means advantages resulting from a
22 project to public corporations, the residents of this state, and
23 property within this state. Benefit may include advantages that
24 result from elimination of pollution and elimination of flood
25 damage, or elimination of water conditions that jeopardize the
26 public health or safety; increase or decrease of the value or use
27 of lands and property resulting from the project; and the
1 positive or negative consequences of the project for individual
2 parcels of land which may include, but need not be limited to, 1
3 or more of the following:
4 (i) Increase or decrease in natural resource values.
5 (ii) Increase or decrease in flooding.
6 (iii) The amount and quality of runoff from land entering a
7 drain as determined by applicable factors including, but not
8 limited to, the following:
9 (A) The depth, character, and quality of surface and
10 subsurface soils of the land.
11 (B) The amount of impervious surface on the land.
12 (C) Whether the act or omission of a person increases or
13 decreases the need for the project.
14 (D) Whether the act or omission of a person improves or
15 degrades the water quality.
16 (c) "County drain" means a drain that provides drainage or
17 serves lands in only 1 county and has lands in only 1 county that
18 may be subject to assessment.
19 (d) "County drain commissioner", "drain commissioner", or,
20 unless the context clearly indicates otherwise, "commissioner"
21 means 1 of the following:
22 (i) The elected county drain commissioner or the person or
23 persons designated to perform the duties of the elected county
24 drain commissioner as provided by this act.
25 (ii) A public works commissioner described in section 21.
26 (iii) The official or body lawfully designated by charter to
27 exercise the powers and perform the duties of a county drain
1 commissioner in a county organized under 1966 PA 293, MCL 45.501
2 to 45.521.
3 (e) "Director of agriculture" means the director of the
4 department of agriculture or his or her designee, subject to
5 section 13.
6 (f) "Director of transportation" means the director of the
7 state transportation department or his or her designee, subject
8 to section 13.
9 (g) "Drain" means any of the following if established
10 pursuant to this act:
11 (i) The main stream or trunk or a tributary or branch of a
12 creek or river.
13 (ii) A watercourse or ditch, either open or closed.
14 (iii) A covered drain.
15 (iv) A sanitary or a combined sanitary and storm sewer or
16 storm sewer or conduit.
17 (v) A structure or mechanical device to purify or improve the
18 flow of a drain.
19 (vi) Pumping equipment necessary to assist or relieve the
20 flow of a drain.
21 (vii) Any dam, levee, dike, or barrier for drainage or to
22 purify or improve the flow of a drain.
23 (viii) Storm water storage, detention, or retention
24 facilities.
25 (h) "Drain" does not include any dam and connected flowage
26 rights used for the generation of power by a public utility
27 subject to regulation by the public service commission.
1 (i) "Drainage district" means the area described in the final
2 order of determination or, for a proposed drain for which a final
3 order of determination has not been made, the area that would be
4 drained by the proposed drain. Once established, a drainage
5 district is a body corporate with power to contract, to sue and
6 to be sued, and to hold, manage, and dispose of real and personal
7 property, in addition to any other powers conferred upon it by
8 law.
9 (j) "Engineer" means a professional engineer licensed under
10 article 20 of the occupational code, 1980 PA 299, MCL 339.2001 to
11 339.2014.
12 (k) "Improvement" means and "improve" refers to any of the
13 following with respect to the drain if the drain or that portion
14 of the drain has actually been constructed or established:
15 (i) Relocating, widening, deepening, straightening, tiling,
16 extending, or adding branches to a drain.
17 (ii) Providing dams, levees, dikes, barriers, structures, or
18 mechanical devices that will properly purify, control, or improve
19 the flow of a drain.
20 (iii) Providing pumping equipment or constructing relief
21 drains necessary to assist or relieve the flow of a drain.
22 (l) "Intercounty drain" means a drain that provides drainage
23 or serves lands in more than 1 county that may be subject to
24 assessment.
25 (m) "Landowner" means a person holding the most recent fee
26 title or a land contract vendee's interest in land as shown by
27 the records of the county register of deeds. If there is more
1 than 1 person with a fee interest or land contract vendee's
2 interest in land, each such person is a separate landowner, but
3 only 1 such person shall sign a petition under this act.
4 (n) "Maintenance" and "maintain" refer to any of the
5 following if within the capacity of a drain as previously
6 established or constructed:
7 (i) Maintaining a drain or drains in working order to
8 continue a normal flow of water, including but not limited to the
9 maintenance, repair, or replacement of and utility service for
10 pumping stations, sewage treatment facilities, or mechanical
11 devices.
12 (ii) Cleaning out a drain or drains.
13 (iii) Keeping a drain or drains free from rubbish, debris,
14 siltation, or obstructions.
15 (iv) Repairing a portion or all of a tile, drain, or drains
16 to continue the normal flow of water.
17 (v) Restoration of previously established depths, bottom
18 widths, and grade based on records maintained at the office of
19 the drain commissioner.
20 (vi) Erosion repair and control.
21 (vii) Erosion and sedimentation control.
22 (viii) Maintenance, repair, or replacement of levees, dikes,
23 dams, and retention and detention basins.
24 (ix) Maintenance, repair, or replacement of structures, such
25 as bridges, culverts, or fords, that have diminished the capacity
26 of the drain or that are or may become unstable or unsafe.
27 (x) Removal and disposal of contaminated material.
1 (xi) Removal of obstructions downstream for the purpose of
2 restoring adequate outlet for lands within an existing drainage
3 district or districts, subject to section 422.
4 (xii) Activities associated with maintenance described in
5 subparagraphs (i) through (xi).
6 (xiii) Activity under part 91 of the natural resources and
7 environmental protection act, 1994 PA 451, MCL 324.9101 to
8 324.9123a.
9 (o) "Municipality" means a county, city, village, or
10 township, or an authority with power to levy a tax created by any
11 of these.
12 (p) "Person" means an individual, partnership, corporation,
13 association, governmental entity, or other legal entity.
14 (q) "Project" means work undertaken as a result of petition
15 and an order of necessity or undertaken as maintenance on a drain
16 pursuant to section 199.
17 (r) "Public corporation" means a state department or agency,
18 including, but not limited to, a college or university described
19 in section 4, 5, or 6 of article VIII of the state constitution
20 of 1963; an authority created by or pursuant to state law; a
21 junior college or community college established pursuant to
22 section 7 of article VIII of the state constitution of 1963; a
23 school district; or a municipality. However, in chapters 20 and
24 21, public corporation means a city, village, or township; with
25 respect to a state trunk line highway, this state; or with
26 respect to a county road, the county.
27 (s) "Roadway" means a state trunk line highway, county road,
1 city or village street, or a road under the jurisdiction of a
2 township.
3 (t) "Roadway authority" means, with respect to a state trunk
4 line highway, the state transportation commission or the director
5 of transportation; with respect to a county road, the board of
6 county road commissioners, the county executive, or other agency
7 acting as the county road commission; with respect to a city or
8 village street, the city or village; and with respect to a road
9 under township jurisdiction, the township.
10 (u) "Surveyor" means a professional surveyor licensed under
11 article 20 of the occupational code, 1980 PA 299, MCL 339.2001 to
12 339.2014.
13 Sec. 3. The word
"drain", whenever used in this act, shall
14 include the main
stream or trunk and all tributaries or branches
15 of any creek or river,
any watercourse or ditch, either open or
16 closed, any covered
drain, any sanitary or any combined sanitary
17 and storm sewer or
storm sewer or conduit composed of tile,
18 brick, concrete, or
other material, any structures or mechanical
19 devices, that will
properly purify the flow of such drains, any
20 pumping equipment
necessary to assist or relieve the flow of such
21 drains and any levee,
dike, barrier, or a combination of any or
22 all of same
constructed, or proposed to be constructed, for the
23 purpose of drainage or
for the purification of the flow of such
24 drains, but shall not
include any dam and flowage rights used in
25 connection therewith
which is used for the generation of power by
26 a public utility
subject to regulation by the public service
27 commission.
1 (1) A drain may be established, constructed, maintained, and
2 improved consistent with the provisions of this act.
3 (2) Each commissioner, each drainage board, and the director
4 of agriculture shall, as part of any drain construction or
5 improvement project, do all of the following:
6 (a) Protect water quality, headwaters, main branches, and
7 tributaries and protect the hydraulic capacity of floodplains and
8 floodways in new drains, improvements, and maintenance projects.
9 (b) Avoid, minimize, and mitigate impacts of new drains,
10 improvements, and maintenance on land or interests in land,
11 including, but not limited to, easements, owned for preservation
12 or conservation purposes by a public corporation or private
13 nonprofit organization.
14 (c) Incorporate flow patterns into criteria for drain design
15 and storm water management.
16 (d) Make on-site retention and detention of storm water a
17 priority.
18 (e) Utilize applicable management practices adopted by the
19 commission of agriculture in new drains, improvements, and
20 maintenance projects. The commission of agriculture shall adopt
21 management practices on or before the expiration of 2 years after
22 the effective date of the 2003 amendatory act that amended this
23 section. The commission of agriculture shall adopt and may
24 revise the management practices after doing both of the
25 following:
26 (i) Consulting with the department of natural resources, the
27 department of environmental quality, public corporations, and
1 interested drain commissioners.
2 (ii) Holding at least 1 appropriately noticed public hearing
3 on the proposed management practices or revisions.
4 (f) Evaluate the impacts of the project on natural resources
5 and identify appropriate measures to minimize adverse impacts.
6 (g) Obtain any permits required under the natural resources
7 and environmental protection act, 1994 PA 451, MCL 324.101 to
8 324.90106.
9 Sec. 6. All established
drains regularly located and
10 established in
pursuance of under law existing in effect at
11 the time of location
and establishment and visibly in
12 existence, which were
established as drains, and or all drains
13 visibly in existence in
written drain easements, or
14 rights-of-way, orders, or other records, such as maps,
15 engineering plans, survey or construction records, or
16 apportionment, assessment, or procedural records, on file in the
17 office of the
commissioner, shall be deemed are public drains
18 located and shall be presumed to have been established
under
19 law. The easements and the drains shall be presumed to have been
20 located in public easements or rights-of-way which are valid and
21 binding against any owners
of any persons making a claim on the
22 basis of ownership of a
property interest who became or
23 hereafter become such owners after the location and
24 establishment of the drain or the existence of the drain became
25 visible or the written
drain easement, or right-of-way, or
26 order was executed.
, and the The commissioner or drainage
27 board may use, enter upon,
and preserve such the easement or
1 right-of-way for
maintenance and improvement of the visible
2 drain and any other
lawful activity with respect to the same
3 drain not requiring a larger or different easement or
4 right-of-way and may exercise any rights granted in the written
5 easement, or right-of-way,
or order on file in the office of
6 the drain
commissioner. Easements or rights-of-way , or
7 portions of easements or
rights-of-way , no longer necessary
8 for drainage purposes may
be conveyed or released to the fee
9 owners landowners by the commissioner or drainage
board on
10 behalf of the drainage
district. The drain commissioner or
11 drainage board shall
give at least 30 days' notice of the
12 intention to release
the excess easements by publishing a notice
13 in a newspaper of
general circulation in the county or a
14 newspaper of general
circulation where the drainage district
15 boundaries are
located. This notice shall give a general
16 description of the
excess easements to be released and the date
17 any taxpayers may
appear to protest said release. After said
18 date if no protests
are received, the drain commissioner or
19 drainage board may
release said excess easements or portions
20 thereof not necessary
for drainage purposes.
21 Sec. 7. (1) For the purposes of this act, a drain
22 commissioner or drainage board may acquire property or a property
23 interest, including, but not limited to, land, easements, and
24 rights of way. The property or a property interest may be
25 acquired by gift, grant, dedication, purchase, or condemnation
26 under the uniform condemnation procedures act, 1980 PA 87, MCL
27 213.51 to 213.75.
1 (2) A release of right-of-way negotiated by the drain
2 commissioner after the effective date of the 2003 amendatory act
3 that added this section shall describe the land to be granted or
4 conveyed including ground necessary for the deposit of drainage
5 excavations. If a portion of a drain is located within a
6 roadway, or public place, then a resolution of the roadway
7 authority or the governing body having jurisdiction over the
8 public place, respectively, granting leave to construct the drain
9 therein and designating the place to be traversed by the drain,
10 is a sufficient release of the right-of-way, under this act.
11 (3) A county drain or intercounty drain may be laid within or
12 across the right-of-way of a roadway if the drain commissioner or
13 drainage board, respectively, obtains a permit from the roadway
14 authority.
15 (4) If the federal government is participating in a project
16 under this act, property or a property interest for the project
17 may be acquired by the federal government under applicable
18 federal law. Except as provided in section 431, the cost for the
19 federal government to acquire the property or a property interest
20 shall be considered a part of the cost of the project as if the
21 property or a property interest were acquired under subsection
22 (1).
23 Sec. 7a. (1) If a drain commissioner or drainage board
24 acquires property or an interest in property after the effective
25 date of the amendatory act that amended section 1 in connection
26 with any proposed drain or drains, the drain commissioner or
27 drainage board shall record the property or interest in property
1 in the office of the register of deeds.
2 (2) Property or an interest in property acquired at any time
3 in connection with an existing drain shall be recorded in the
4 office of the register of deeds when the drain is maintained,
5 improved, or consolidated. Provided, however, the property or
6 interest in property for all established drains under the
7 jurisdiction and control of the drain commissioner shall be
8 recorded in the office of the register of deeds not later than 10
9 years after the effective date of the amendatory act that added
10 this section. If a drain is consolidated, any easements granted
11 to the separate drainage districts shall be considered to be
12 assigned to the consolidated drainage district with full force
13 and effect of law as originally granted.
14 (3) The drain commissioner may contract for services in order
15 to accomplish the recording required under this section.
16 (4) The cost of recording and contracted services under this
17 section shall be paid by the drainage district.
18 Sec. 7b. A certificate, report, or determination authorized
19 or required by this act, or the record thereof, or a certified
20 copy of any such certificate, report, or determination or record,
21 is prima facie evidence of the facts recited therein, of the
22 title to the property described or referred to, and of the right
23 of the drainage board or commissioner to take the property for
24 drain purposes.
25 Sec. 7c. The owner of any land over, through, or across
26 which a drainage district has acquired an easement or
27 right-of-way for the construction and maintenance of an open or
1 covered drain shall not use the land within the easement or
2 right-of-way in a manner that will interfere with the operation
3 of the drain, that will increase the cost to the district of
4 performing work on the drain, or that is otherwise inconsistent
5 with the easement or right-of-way of the district. A landowner
6 who violates this section is subject to section 421.
7 Sec. 8. (1) The
business which performed by and any
8 hearing held by a board
or commission committee created
9 pursuant to this act ,
or a body of special commissioners
10 appointed pursuant to
this act, may perform shall be
conducted
11 at a public meeting of
the board , commission, or body of
12 special commissioners or committee held in compliance with Act
13 No. 267 of the Public
Acts of 1976, being sections 15.261 to
14 15.275 of the Michigan
Compiled Laws the open meetings
act, 1976
15 PA 267, MCL 15.261 to 15.275. Public notice of the time, date,
16 and place of the meeting shall be given in the manner required by
17 Act No. 267 of the
Public Acts of 1976 the open
meetings act,
18 1976 PA 267, MCL 15.261 to 15.275.
19 (2) In addition to the requirements of subsection (1) and
20 except as otherwise provided in this act, notice of public
21 hearings for the board of determination, day of review, or board
22 of review; hearings of practicability and necessity of the
23 drainage board, the receiving of bids, and the review of
24 apportionments; notice of an order under section 151 changing the
25 name or number of a drain or the boundaries of a drainage
26 district; and notice of an order under section 199(1) for
27 inspection of a drain at least every 3 years shall be sent by
1 first-class mail to all landowners other than public corporations
2 subject to an assessment in the drainage district or proposed
3 drainage district at the address in the last city, village, or
4 township tax assessment roll. If a public corporation other than
5 a state department may be subject to an assessment for the drain,
6 notice shall be personally delivered or sent by first-class mail
7 to the governing body of the public corporation. If a state
8 department may be subject to an assessment for the drain, notice
9 shall be personally delivered or sent by first-class mail to the
10 head of the state department. However, if the head of the state
11 department is a commission, notice shall be personally delivered
12 or sent by first-class mail to the principal executive officer of
13 the state department. Notice shall also be personally delivered
14 or sent by first-class mail to the director of transportation,
15 the director of the department of natural resources, the director
16 of the department of environmental quality, and the board of
17 county road commissioners. Notice of a change in route of the
18 drain after the first order of determination shall be delivered
19 in the manner provided in this subsection but need only be
20 delivered to landowners whose lands will be affected as a result
21 of the change of route. In addition, notice of a hearing of a
22 drainage board under section 467, 467b, or 519a or of an
23 augmented drainage board under section 519 shall also be sent by
24 first-class mail to all landowners whose land may be traversed or
25 bordered by the proposed drain. The notice shall be mailed as
26 follows:
27 (a) For a hearing under section 467 or 469, not less than 21
1 days before the date of the hearing.
2 (b) For any other proceeding, not less than 14 days before
3 the date of the proceeding.
4 (c) For a change in route of the drain after the first order
5 of determination, not more than 14 days after the approval of the
6 route.
7 (d) For an order under section 151 changing the name or
8 number of a drain or the boundaries of a drainage district or an
9 order under section 199(2), not more than 14 days after entry of
10 the order.
11 (3) The person giving notice shall make an affidavit of the
12 mailing and shall recite in the affidavit that the persons to
13 whom the notice was mailed constitute all of the persons whose
14 names and addresses appear upon the tax rolls as owning land
15 within the drainage district or proposed drainage district and
16 who are entitled to notice under this section. The affidavit of
17 mailing is conclusive proof that notice of a public hearing
18 described in subsection (2) was mailed according to this act.
19 Failure to receive a notice by mail is not a jurisdictional
20 defect invalidating a drain proceeding or special assessment if
21 notice has been sent as provided in this act.
22 (4) The notice described in subsection (2) shall be posted in
23 the office of each drain commissioner involved by the date by
24 which publication is first required.
25 (5) Notice of a public hearing described in subsection (2)
26 shall be published in a newspaper of general circulation in the
27 drainage district. The notice shall be published at least once,
1 not less than 14 days before the date of the proceeding.
2 However, for a hearing under section 467 or 469, notice shall be
3 published at least twice, with the first publication not less
4 than 21 days before the date of the hearing.
5 (6) Notice of a public hearing described in subsection (2)
6 shall be published in a newspaper of general circulation in the
7 drainage district. The notice of a hearing described in
8 subsection (2) shall set forth the time, date, place, and purpose
9 of the meeting. If the hearing is for the board of
10 determination, day of review, or board of review, the notice
11 shall include the name, address, and telephone number of the
12 drain commissioner in the county where the proceeding will take
13 place. If the hearing is a hearing of practicability and
14 necessity of the drainage board, the notice shall include the
15 name, address, and telephone number of each of the members of the
16 drainage board. The notice shall explain the consequence of any
17 of the decisions made at the hearing and shall specify any appeal
18 period for the action taken. If the hearing is a hearing of
19 necessity of the board of determination or drainage board, the
20 notice shall also set forth all of the following:
21 (a) The relief requested by the petition.
22 (b) The reasons for relief as presented in the petition.
23 (c) That there is available for inspection at the drain
24 commissioner's office a copy of the preliminary analysis
25 including a description of the drainage district, a recommended
26 route and course for the drain, a recommended type of
27 construction for the drain, and an estimate of the cost of the
1 drain. This subdivision does not apply to a hearing of necessity
2 under chapter 20 or 21.
3 (7) (2) A
writing prepared, owned, used, in the possession
4 of, or retained by a board, committee, commission, or advisory
5 committee created pursuant to this act, or a commissioner
6 appointed pursuant to this act, in the performance of an official
7 function shall be made available to the public in compliance with
8 Act No. 442 of the
Public Acts of 1976, being sections 15.231 to
9 15.246 of the Michigan
Compiled Laws the freedom of
information
10 act, 1976 PA 442, MCL 15.231 to 15.246.
11 Sec. 10. Drains may be laid or extended into or along or
12 from any lake or other body of water surrounded wholly or in part
13 by a swamp, marsh or other low lands for the general purpose of
14 drainage contemplated by this act, but not so as to impair the
15 navigation of any navigable river, subject to any permit required
16 under the natural resources and environmental protection act,
17 1994 PA 451, MCL 324.101 to 324.90106.
18 Any meeting
called pursuant to the provisions of this act,
19 unless otherwise
provided, may be adjourned from time to time by
20 public announcement
thereof and no advertisement of the time of
21 said adjournment shall
be required.
22 The commissioner shall have jurisdiction over all established
23 county drains within his or her county, heretofore established
24 and now in the process of being established except that in the
25 case of a drain located or to be located entirely within a single
26 city or village, such jurisdiction shall be consented to by
27 resolution of the governing body of such city or village.
1 If
any drainage project lies entirely within the limits of a
2 municipality less than
a county, such municipality, by its
3 governing body, shall
have the power to pledge the full faith and
4 credit of the
municipality for the payment of bonds or drain
5 orders issued in
connection with such project, and if a
6 deficiency exists in
the drain fund or sinking fund for said
7 drain 1 year after the
last installment of the deficiency
8 assessment provided
for in section 280 of this act, shall have
9 become delinquent,
such municipality shall forthwith advance to
10 the county drain fund
the amount of such deficiency and
11 thereafter all
receipts of such drain fund from the sale of
12 delinquent tax lands,
which had been assessed for said drain,
13 shall be paid to the
municipality within 90 days after receipt by
14 the county treasurer.
15 Sec. 12. Except as
provided in section 8, when if a time
16 is specified in this act in which the drain commissioner or a
17 drainage board shall take a specified administrative action or a
18 procedural step, the
specification of time shall be considered
19 is directory and not mandatory, and failure to take the action or
20 step within the time
specified shall does not affect the
21 legality and validity of
a drain proceeding. Where If the
22 specification of time relates to the giving of notice, the filing
23 of objections, the taking of an appeal, the commencement of an
24 action in a court, the taking of an action or step in the
25 assessment, levy, or
collection of drain assessments , taxes or
26 other charges, or to a requirement of due process, the
27 specification of time shall
be considered is mandatory if so
1 provided in this act.
2 Sec. 13. (1) The director of agriculture may designate an
3 individual to act on his or her behalf with respect to the
4 exercise of powers and the performance of duties under this act.
5 If a deputy or assistant acts in the capacity of the director of
6 agriculture under this act, he or she shall be considered to have
7 been properly designated by the director of agriculture. Any
8 official proceedings may be signed by the designee in his or her
9 own name. The signature of the designee shall be followed by his
10 or her official title. If an individual is designated by the
11 director of agriculture to act in his or her stead in connection
12 with all the proceedings as to any project, then any notice
13 required to be served upon or mailed to the director of
14 agriculture may be served upon or mailed to the designee.
15 (2) Expenses incurred by the director of agriculture under
16 this act shall be assumed by the department of agriculture.
17 (3) The director of transportation may designate an employee
18 of the state transportation department to act on his or her
19 behalf with respect to the exercise of powers and the performance
20 of duties under this act. If an employee of the state
21 transportation department acts in the capacity of the director of
22 transportation under this act, the employee shall be considered
23 to have been properly designated by the director of
24 transportation. Any official proceedings may be signed by the
25 designee in his or her own name. The signature of the designee
26 shall be followed by his or her official title. Any notice
27 required to be served upon or mailed to the director of
1 transportation shall be served upon or mailed to the designee.
2 Sec. 14. (1) For a public corporation other than a state
3 department to be a petitioner under this act, the petition shall
4 be authorized by resolution of the governing body and signed on
5 behalf of the public corporation by an officer designated by the
6 governing body. A certified copy of the resolution shall be
7 attached to the petition.
8 (2) For a state department to be a petitioner under this act,
9 the petition shall be signed on behalf of the state department by
10 the head of the state department. However, if the head of the
11 state department is a commission, the petition shall be signed by
12 the principal executive officer of the state department.
13
CHAPTER 2 .
14 COUNTY
DRAIN COMMISSIONER .
15 Sec. 21. (1) At Subject
to this section, at the general
16 election to be held in
November , 1976 2000, and each fourth
17 year after November ,
1976 2000, a county drain commissioner
18 shall be elected in each county having a drain commissioner by
19 the qualified electors of the county. The term of office of
20 the a commissioner shall begin on the January 1
following the
21 drain commissioner's election and continue for a period of 4
22 years and until his or her successor is elected and qualified,
23 whichever occurs earlier.
24 (2) As determined by the county board of commissioners, the
25 county drain commissioner shall be covered by a blanket bond or,
26 before entering upon the duties of office, shall execute and file
27 with the county clerk a bond to the people of the state in the
1 penal sum of $5,000.00
$100,000.00, issued by a surety company
2 licensed to do business in this state, conditioned upon the
3 faithful discharge of the duties of the office. The county board
4 of commissioners may fix the individual bond to be required of
5 the commissioner at a different amount if, in its judgment, that
6 is desirable.
7 (3) The county
board of commissioners of a county having a
8 population of less
than 12,000, by resolution of a 2/3 vote of
9 the members elect, may
abolish the office of county drain
10 commissioner and
transfer the powers and duties of the office to
11 the board of county
road commissioners.
12 (3) (4) If
a county establishes a department of public
13 works pursuant to Act
No. 185 of the Public Acts of 1957, as
14 amended, being
sections 123.731 to 123.786 of the Michigan
15 Compiled Laws 1957 PA 185, MCL 123.731 to 123.786, or a
public
16 improvement agency with the drain commissioner designated as the
17 county agent pursuant to the county public improvement act of
18 1939, Act No. 342 of
the Public Acts of 1939, as amended, being
19 sections 46.171 to
46.188 of the Michigan Compiled Laws 1939
PA
20 342, MCL 46.171 to 46.188, the county board of commissioners, by
21 resolution of a 2/3 vote of the members elected and serving, may
22 combine the powers,
duties, and functions set forth in Act
23 No. 185 of the Public
Acts of 1957, as amended, Act No. 342 of
24 the Public Acts of
1939, as amended 1957 PA 185, MCL
123.731 to
25 123.786, the county public improvement act of 1939, 1939 PA 342,
26 MCL 46.171 to 46.188, and this act into 1 county department
27 headed by a public works commissioner. The public works
1 commissioner shall be elected in the same manner and for the same
2 term as a drain
commissioner. and shall carry out the powers and
3 duties of a drain
commissioner.
4 (4) (5) A
resolution provided for in subsection (4) (3)
5 may not be adopted unless the county board of commissioners has
6 first held at least 1 generally
publicized public hearing on
7 the resolution. Notice of the hearing shall be published as
8 provided in section 8(3).
9 (5) (6) Not
less than 3 years after a county establishes
10 the office of public works commissioner pursuant to subsections
11 (4) (3) and (5) (4), or a public
improvement agency, the
12 county board of commissioners, by resolution approved by a 2/3
13 vote of the members elected and serving, may abolish the office
14 of public works commissioner not less than 6 months before the
15 next primary election for that office. The office of public
16 works commissioner shall be abolished in the county effective 180
17 days after a resolution is adopted pursuant to this subsection.
18 The office shall then be referred to as the drain commissioner
19 and the person in office at the time a resolution of abolishment
20 is passed shall fulfill the remainder of the term of office until
21 the next general election.
22 (6) (7) A In
a county that is organized under Act No. 293
23 of the Public Acts of
1966, being sections 45.501 to 45.521 of
24 the Michigan Compiled
Laws 1966 PA 293, MCL 45.501 to
45.521,
25 whose charter prescribes an elected county executive, and which
26 county has a population of more than 2,000,000 at the time the
27 charter is adopted, shall
be governed by section 21a in place of
1 this section the powers and duties of the drain commissioner,
2 under this act, shall be performed by a person or persons
3 designated under the county's charter.
4 Sec. 23. The commissioner shall have jurisdiction over all
5 county drains within his
the county, including those
6 heretofore
established and now in the
process of construction
7 being established or constructed. Drains extending into more
8 than 1 county , or
affecting lands in more than 1 county ,
9 are under the jurisdiction of the drainage board and shall be
10 established and constructed in accordance with the provisions of
11 this act regulating the establishment and construction of drains
12 traversing more than 1 county or affecting lands in more than 1
13 county. Nothing in
this act shall be construed as depriving a
14 The drain commissioner of a county is not deprived of
15 jurisdiction or as
making any drain over a drain and the drain
16 does not become an
intercounty drain, merely because a the
17 drain extends into another county for the purpose of securing a
18 proper outlet and not for the purpose of draining any lands in
19 the other county, :
Provided, such if the extension is
20 approved by the drain commissioners and is approved by the county
21 board of supervisors commissioners
of each affected county
22 after a public hearing of the county board of commissioners
23 noticed and conducted in the manner provided by law for meetings
24 of the county board of commissioners. The portion of any such
25 the drain extending into another county shall not be considered
26 in determining the number
of signers required to for a
27 petition. to
locate, establish and construct.
1 Sec. 24. (1) The county board of commissioners may employ
2 an engineer who shall perform under this act the services
3 required to be performed by an engineer or surveyor as may be
4 directed by the drain commissioner.
5 (2) A commissioner
may appoint a deputy or deputies , if the
6 county board of
commissioners approves, and may
revoke the
7 appointment at pleasure. The appointment shall be made in
8 writing and filed with the clerk of the county. To the extent
9 authorized by the drain commissioner, a deputy may execute the
10 powers and duties of a drain commissioner under this act. If the
11 commissioner is unable to execute the duties of office, the
12 deputy or deputies shall execute or assist in the execution of
13 the duties of the county
drain commissioner. assigned by the
14 county drain
commissioner. As determined by the county board of
15 commissioners, the
deputy or deputies, either shall be covered by
16 a blanket bond or
shall file a bond with and to be approved by
17 the commissioner in a
sum not to exceed $5,000.00, conditioned
18 upon the faithful
discharge of the deputy's or deputies' duties.
19 If the commissioner dies during his or her term, the deputy
20 commissioner shall have all of the powers and be charged with all
21 of the duties of a commissioner until a commissioner is appointed
22 or elected.
23 (3) As determined by the county board of commissioners, the
24 deputy or deputies either shall be covered by a blanket bond or
25 shall file with the drain commissioner a bond to be approved by
26 the drain commissioner in a sum not to exceed $100,000.00,
27 conditioned on the faithful discharge of the duties of the deputy
1 or deputies.
2 Sec. 25. (1)
The commissioner and his bondsmen shall be
3 the sureties on the individual or blanket bonds covering the
4 commissioner and deputy are liable for all the acts and defaults
5 of the a
deputy or deputies when appointed as herein
6 provided in section 24. After entry of the order designating
7 drainage districts as
provided in section 54 and section 55 or
8 105, of this
act, the drainage district as designated shall be
9 responsible for and is liable for all acts and defaults of
10 such the commissioner and his or a
deputy, or deputies,
11 except for acts of malfeasance or misfeasance. The commissioner
12 is liable on the blanket bond or his or her individual bond for
13 gross neglect of duty or a misapplication of money coming under
14 his or her control as commissioner.
15 (2) The county
board of supervisors commissioners may adopt
16 resolutions providing that public liability or other insurance
17 may be purchased at the expense of the county to cover such
18 potential liabilities of
the various drainage districts under
19 the supervision of the county drain commissioner.
20 Sec. 26. Each deputy
commissioner shall receive such the
21 salary or compensation as
the determined by the county board of
22 supervisors shall
allow commissioners and all
traveling
23 expenses actually and
necessarily spent by him in the discharge
24 of his or her
duties as prescribed in this act. ; he shall make
25 a report to the
commissioner of all work performed by him on or
26 before the first
Saturday of each month and an annual report on
27 or before the second
Wednesday in September of each year.
1 Sec. 27. (1) County
clerks, or the board of auditors in
2 counties having such
boards, shall be authorized, and it shall be
3 their duty to procure,
at the expense of their respective
4 counties, the
necessary books, blanks and stationery for the use
5 of said commissioners;
and each commissioner shall furnish upon
6 request blank
applications or petitions to any person who may
7 desire to file the
same under this act. The At the
expense of
8 the county and subject to county appropriations, the office of
9 the drain
commissioner shall be furnished at the expense of the
10 county by the board of
supervisors, or by the board of auditors
11 in counties having
such boards, and shall be maintained at the
12 county seat, in which
said office said commissioner shall be and
13 remain at least 1 day
per week such day to be painted on the door
14 of the commissioner's
office and printed or stamped on his
15 stationery. with all of the following as necessary to fulfill
16 the duties of this act or other acts, ordinances, or resolutions
17 specifying duties to be performed by the drain commissioner:
18 (a) Books, blanks, documents, stationery, and office
19 supplies.
20 (b) Office equipment necessary to make profiles, blueprints,
21 and specifications in any drainage district, word processing
22 equipment, and mapping and assessing equipment.
23 (c) Space and facilities to file, preserve, and retain field
24 notes, blueprints, profiles, estimates, and all other records.
25 (2) The office of the commissioner shall be maintained at an
26 official county facility.
27 (3) With the approval of the county board of commissioners, a
1 drain commissioner may add to the assessments of lands in each
2 drainage district established pursuant to chapter 3 or 20 not
3 more than 1% per year for education and training for the drain
4 commissioner and his or her staff with regard to 1 or more of the
5 following:
6 (a) Best management practices.
7 (b) Environmental protection and enhancement.
8 (c) Watershed management and planning.
9 (d) Assessing for drain projects.
10 (e) Financing for drain projects.
11 (f) Drain construction methods and techniques.
12 (g) Alternatives for on-site management of storm water.
13 (h) Any other matter related to the operation of the office
14 of drain commissioner or the construction, operation,
15 maintenance, or improvement of drains.
16 (4) Funds collected pursuant to subsection (3) shall be
17 consolidated and held in a separate account for the purposes set
18 forth in subsection (3). Interest earned on the fund shall be
19 credited to the fund. Subsection (3) is intended to supplement,
20 not replace, appropriations of county general fund money for the
21 purposes set forth in subsection (3).
22 Sec. 28. (1) Each
Subject to subsection (2), a drain
23 commissioner shall
receive an annual salary to be paid at other
24 county officers are
paid, the and fringe benefits, if
any, as
25 determined by the county board of commissioners. The amount of
26 the salary to and
fringe benefits, if any, shall be fixed by
27 the county board of commissioners before November 1 of each year
1 and shall be paid from the general fund of the county in the same
2 manner and at the same time as the salaries and fringe benefits
3 of other county officers
are fixed and paid. The A drain
4 commissioner's salary may be increased but shall not be decreased
5 during his or her the
term of office , and in addition, each
6 commissioner shall be
allowed of that drain
commissioner. A
7 drain commissioner's fringe benefits shall not be decreased
8 during the term of office to a greater extent than the fringe
9 benefits of elected county officials in general are decreased.
10 The county shall pay a drain commissioner for his or her actual
11 necessary expenses, including traveling expenses incurred in the
12 discharge of the duties
of the office. , including all actual
13 and necessary expense
for clerk hire and recording by the county
14 board of commissioners
or board of county auditors to be paid by
15 the county. The expense account shall be an itemized account.
16 and verified by oath
taken before a proper officer. The
amounts
17 paid to the commissioner for salary and expenses shall be in full
18 for all services rendered by the commissioner and all expenses
19 incurred in the performance of the duties of the office.
20 (2) Notwithstanding
subsection (1), for If a county which
21 has a county officers compensation commission, the compensation
22 for each the
county drain commissioner shall be determined by
23 that commission under
1978 PA 485, MCL 45.471 to 45.477. A
24 change in compensation
for a county drain commissioner of a
25 county which has a
county officers compensation commission shall
26 commence at the
beginning of the first odd numbered year after
27 the determination is
made by the county officers compensation
1 commission and is not
rejected.
2 Sec. 29. The
county shall furnish the commissioner with
3 all necessary books
and papers for use in the survey, and such
4 office equipment as
shall be necessary in making profiles,
5 blueprints and
specifications in any drainage district. The
6 surveyor or engineer
shall file with the commissioner all field
7 notes, blueprints,
profiles, estimates and all other papers in
8 his possession
relating to said drain. The board of supervisors
9 of any county may
employ an engineer who shall perform under this
10 act the services
required to be performed by an engineer or
11 surveyor. The drain commissioner's office shall furnish to
any
12 person, who may so desire, documents as may be required to
13 implement the procedures of this act, and the drain commissioner
14 may assist in the preparation of such documents as may be
15 required to implement the procedures of this act.
16 Sec. 30. It
shall be the duty of each commissioner to make
17 and keep A drain commissioner shall maintain a full
financial
18 statement of each drainage district. The commissioner shall also
19 make and keep in his the
commissioner's office in a book to be
20 provided for that
purpose a complete record of each
drainage
21 district. ,
which The record shall include a copy of the any
22 application for laying
out and designating such the district
23 under former provisions of this act, of the petition for the
24 drain, of the minutes of the survey, of the releases of the
25 right-of-way where the same have been released, of the orders of
26 determination of the necessity for and of the establishment of
27 the drain, and of the apportionment and assessment of benefits
1 therefor . Where
special commissioners have been called, it
2 shall also contain a
copy of the application to the probate
3 court, of the return
of the special commissioners and of
all
4 other papers records
in his the office necessary to show a
5 complete history of each drainage district, all of which said
6 original papers records
shall then be enrolled and filed in the
7 office of the county
drain commissioner. No drain tax
8 assessment shall be spread until all the records required have
9 been deposited and filed in the office of the county drain
10 commissioner.
11 Sec. 31. (1)
Each commissioner shall make a report to the
12 county board of
commissioners at its annual meeting in October of
13 the drainage districts
laid out, the drains constructed,
14 finished, or begun
under his or her supervision during the year
15 ending October 1, and
the commissioner shall also submit to the
16 board a full financial
statement of each drainage district. If
17 authorized by
resolution of the county board of commissioners,
18 the report shall be
made before April 2 of each year and shall
19 cover the preceding
calendar year. The commissioner shall also
20 make reports and
furnish information as required by the director
21 of the department of
agriculture.
22 (2) The reports
required by subsection (1) shall include an
23 itemized statement of
the orders issued on account of each
24 drainage district and
a debit and credit balance of the district
25 fund. The
commissioner shall be liable on the blanket bond or
26 his or her individual
bond for gross neglect of duty or a
27 misapplication of
money coming under his or her control as
1 commissioner.
2 (1) If requested by the legislative body of a municipality, a
3 drain commissioner shall submit an annual report to the
4 legislative body at its first regular meeting held on or after
5 October 1. The report shall cover drains established or
6 constructed by the drain commissioner during the 1-year period
7 ending September 30. Each report under this subsection shall
8 include a full financial statement for each drainage district
9 within the municipality, including, but not limited to, an
10 itemized statement of the orders issued under this act on account
11 of each drainage district and a debit and credit balance of the
12 district fund. If the municipality is a city, village, or
13 township, the report shall only apply to a drain and drainage
14 district if the drainage district lies entirely within the city,
15 village, or township.
16 (2) If requested by the legislative body, a report under
17 subsection (1) shall be submitted between January 1 and April 2
18 and shall cover the preceding calendar year.
19 (3) A drain commissioner shall submit to the director of
20 agriculture reports and information required by the director of
21 agriculture. A report under this subsection shall include an
22 itemized statement of the orders issued on account of each
23 drainage district covered by the report and a debit and credit
24 balance of the drainage district fund.
25 (4) A report under this section is advisory and is not a
26 prerequisite to the levy of any special assessments under this
27 act. The failure to submit a report under this section does not
1 invalidate a drain proceeding or special assessment.
2 Sec. 32. The county
board of supervisors of each county
3 having a drain
commissioner commissioners
may adopt a resolution
4 authorizing the county to enter into an agreement with the
5 secretary of health,
education and welfare pursuant to the
6 provisions of Act No.
205 of the Public Acts of 1951, as amended,
7 being sections 38.851
to 38.870 of the Compiled Laws of 1948,
8 the department of health and human services under 1951 PA 205,
9 MCL 38.851 to 38.871, to allow the drain commissioner and all the
10 employees of the drain commissioner's office to obtain the
11 benefits provided by the federal
social security act, chapter
12 531, 49 Stat. 620. The funds necessary for this coverage shall
13 be appropriated from the
county general fund. or from the
14 revolving drain fund.
15 Sec. 33. (1) The
salary of the commissioner, deputy
16 commissioners, and
clerks and employees of the drain
17 commissioner's office
shall, except as otherwise provided in this
18 act, be paid from the
general fund of the county in the same
19 manner and at the same
time as other county employees are paid.
20 (2) The drain commissioner may, with the approval of the
county
21 board of commissioners,
hire drain maintenance employees. Such
22 drain Drain maintenance employees shall be
considered are
23 county employees and shall be compensated from the general fund
24 of a county in the same manner and at the same time as other
25 county employees.
26 (2) (3) The
general fund of a county shall be reimbursed by
27 the drain districts in which work is performed by drain
1 maintenance employees hired by the commissioner pursuant to
2 subsection (2) for compensation, including the cost of fringe
3 benefits, paid to the drain maintenance employees by the county
4 from its general fund. The county board of commissioners may
5 waive the reimbursement
for emergency work not exceeding
6 $800.00 performed on any 1 drain during the course of 1 year.
7 Sec. 34. (1) If a municipality determines that construction
8 or other activity that the municipality has authority to approve
9 may have a significant effect on the quantity of water entering a
10 drain or on the hydrology of a drain, the municipality shall
11 provide the drain commissioner with prior notice and opportunity
12 to review the activity before the municipality issues its
13 approval. The drain commissioner's review under this subsection
14 is limited to the ability of the drain to transport storm water
15 runoff from the proposed activities, and not a determination of
16 the propriety or impropriety of the proposed land use or zoning
17 issues. Any comments on the proposed activity shall be made by
18 the drain commissioner within 30 days of his or her receipt of
19 the plans for the proposed activity.
20 (2) The drain commissioner or drainage board may review and
21 may approve all requests to discharge into, make a connection to,
22 or construct a crossing of any established county or intercounty
23 drains. The drain commissioner may propose and the county board
24 of commissioners may adopt an ordinance to implement this
25 subsection. The ordinance may include a schedule of fees to be
26 charged for the review and inspection of any discharges,
27 connections, or crossings and penalties for noncompliance. The
1 fees shall be deposited in a revolving fund and used for reviews
2 and inspections as specified in the ordinance. If the revolving
3 fund is not sufficient to cover expenses for the reviews and
4 inspections, the expenses shall be paid from the county general
5 fund.
6 (3) The drain commissioner may establish rules and schedule
7 of fees for other reviews and inspections required of the drain
8 commissioner's office by the county board of commissioners or by
9 other statute, including but not limited to the land division
10 act, 1967 PA 288, MCL 560.101 to 560.293, the mobile home
11 commission act, 1987 PA 96, MCL 125.2301 to 125.2349, and the
12 condominium act, 1978 PA 59, MCL 559.101 to 559.276. The rules
13 and schedule of fees shall not take effect unless approved by the
14 county board of commissioners. The fees shall be deposited in a
15 revolving fund under subsection (2).
16 Sec. 35. A drain commissioner shall meet with a person who
17 is considering filing a petition under this act and who requests
18 a meeting to discuss a potential project or the requirements of
19 this act. The drain commissioner shall meet within 14 days after
20 the request is made, unless the person requesting the meeting
21 agrees to meet at a later date.
22 Sec. 36. (1) If a drain commissioner who is required to
23 apportion benefits under this act, or the spouse or child of such
24 a drain commissioner, owns lands that would be liable to an
25 assessment for the benefits, or if the commissioner is otherwise
26 disqualified to act in the making of an apportionment of
27 benefits, the commissioner shall file with the judge of probate
1 of the county a copy of the petition and a signed statement
2 showing that the drain commissioner is disqualified to act in
3 making the apportionment of benefits.
4 (2) Not more than 14 days after receiving the petition and
5 signed statement under subsection (1), the judge of probate shall
6 appoint a disinterested drain commissioner of an adjoining or
7 nearby county to make the apportionment of benefits on the
8 drain. The disinterested commissioner appointed shall make and
9 complete within a period of 28 days, or within such reasonable
10 time thereafter as may be necessary, an apportionment of the
11 benefits of the drain and file the apportionment with the
12 disqualified commissioner. The apportionment shall be adopted
13 for the drain, subject to the same rights of appeal as provided
14 in this act. The disqualified commissioner shall furnish the
15 disinterested commissioner with a copy of the final order of
16 determination on the drain.
17 (3) The salary of the commissioner appointed under subsection
18 (2) shall be the same as that received from the county of which
19 he or she is the commissioner. The salary, together with all
20 expenses actually and necessarily incurred by the commissioner,
21 shall be assessed against the drain in connection with which the
22 services were performed and shall be paid in the same manner as
23 other expenses are paid.
24
CHAPTER 3 .
25 COUNTY DRAINAGE
DISTRICTS AND COUNTY DRAINS .
26 Sec. 51. (1) Before
a commissioner takes any action on any
27 application to locate,
establish and construct any drain, there
1 shall first be filed
with him an application to lay out and
2 designate a drainage
district with reference to a proposed drain
3 therein; such
application shall tentatively describe the location
4 and route of such
proposed drain. The application shall be
5 signed by not less
than 10 freeholders of the township or
6 townships in which
such proposed drain or the proposed lands to
7 be drained thereby may
be situated: Provided, That 5 or more of
8 said signers shall be
the owners of land liable to an assessment
9 for the construction
of such proposed drain: Provided further,
10 If it shall appear to
the drain commissioner on filing an
11 application to lay out
and designate a drainage district that
12 said district might
not include 20 freeholders whose lands would
13 be liable for such
assessment, in such case such application
14 shall be received if
any one of the signers is a freeholder
15 liable to an
assessment for the construction of such proposed
16 drain. To initiate the establishment of a drainage
district and
17 the establishment and construction of a county drain, a petition
18 shall be filed with the drain commissioner of that county.
19 Subject to subsection (2), the petition shall be signed by 10
20 landowners in the proposed drainage district whose lands would be
21 liable to assessment for benefits or at least 50% of the
22 landowners if there are less than 10 landowners whose lands would
23 be liable for assessment or may be signed by landowners
24 representing 25% of the land area liable for assessment. The
25 drain commissioner shall determine the eligibility of the signers
26 to such application
shall be determined by the drain
27 commissioner according
to their interest of record in the office
1 of the register of
deeds, in the probate court or in the circuit
2 court of the county in
which such lands are situated at the time
3 such application is the petition based on their status as
4 landowners when the petition was filed. The board of
5 supervisors, by
resolution, may instruct the drain commissioner
6 to refuse any
application to lay out a drainage district unless a
7 cash deposit,
sufficient to cover the preliminary costs,
8 accompanies the
application. If the drain is completed, the cost
9 advanced shall be
returned to the depositor or his personal
10 representative out of
the first tax collections on the drain. If
11 uncompleted, any
excess above costs shall be so returned. In
12 lieu of an application
signed by freeholders as aforesaid, such
13 an application may be
signed solely by the board of health of the
14 county
15 (2) Instead of landowners, a public corporation may petition
16 for the establishment of a drainage district and the
17 establishment and construction of a drain if the proposed drain
18 is necessary for the public
health, of any part of the county,
19 or safety, or welfare or for agriculture and may
be signed
20 solely by any city,
village or township public corporation,
21 when duly authorized by its governing body, if the proposed drain
22 is necessary for the
public health, of such municipality and if
23 such municipality safety, or welfare or for agriculture in the
24 public corporation and if the public corporation will be liable
25 for an assessment at
large against it for a percentage of the
26 cost of the proposed
drain. The entry of an order designating a
27 drainage district, as
hereinafter provided, of
necessity under
1 section 54 shall be considered a determination of the sufficiency
2 of such application the
petition.
3 (3) The petition shall request the establishment of a
4 drainage district and the establishment and construction of a
5 drain and set forth the reasons for the request. The petition
6 may request that measures be undertaken which are intended both
7 to enhance or improve the natural resource values of the proposed
8 drain and which provide direct benefit to the designed function,
9 longevity, or hydraulic capacity of the proposed drain. The
10 petition may propose a location and route for the drain.
11 (4) The petition shall be accompanied by a description or tax
12 parcel number of the land in the proposed district owned by each
13 signer and by a certificate of the county treasurer as to payment
14 of taxes and special assessments against the lands. The
15 certificate shall be in substantially the following form:
16 I hereby certify that there are no taxes or special
17 assessments unpaid against any of the lands described in the
18 annexed list according to the records of the county treasurer's
19 office for the preceding 3 years, except as follows:
20 Description Year Tax or assessment Amount
21 ................. ............ ..................... ........
22 (5) The name of any signer as to whose land the certificate
23 shows taxes or assessments unpaid for the preceding 3 years shall
24 not be counted. If it appears from the certificate that 33-1/3%
25 or more of the lands in the proposed drainage district have been
26 returned as tax delinquent and still remain delinquent, the
1 commissioner shall not take further action on the petition.
2 (6) The county board of commissioners, by resolution, may
3 instruct the drain commissioner to refuse all petitions to
4 establish a drainage district and establish and construct a drain
5 unless the petitions are accompanied by cash deposits. A cash
6 deposit shall equal the drain commissioner's reasonable estimate
7 of the costs to be incurred by the office of drain commissioner
8 in proceedings under this chapter until the entry of an order of
9 no necessity or an order of necessity. A cash deposit shall be
10 applied to any liability of the petitioners under subsection
11 (7).
12 (7) Costs incurred by the office of drain commissioner in
13 proceedings under this chapter, including any attorney fees,
14 shall be paid as follows:
15 (a) By the drainage district, if the board of determination
16 enters an order of necessity. Any deposit required under
17 subsection (6) shall be returned to the depositor out of the
18 first special assessment collections of the drainage district or
19 borrowed funds secured by special assessment collections on the
20 drain, whichever is received first.
21 (b) By the petitioners, if the board of determination enters
22 an order of no necessity and the county board of commissioners
23 required a deposit under subsection (6). However, if the board
24 of determination first enters an order of practicality, costs
25 incurred after entry of the order of practicality through entry
26 of the order of no necessity shall not be paid by the petitioners
27 but shall be apportioned as provided in chapter 7 and assessed
1 against the drainage district as described in the order of
2 practicality.
3 (c) From the county general fund, if the board of
4 determination enters an order of no necessity under section 55
5 and the county board of commissioners did not require a deposit
6 under subsection (6).
7 (8) If the petition shows, or it is determined thereafter,
8 that the proposed drain will affect lands in more than 1 county,
9 the commissioner shall proceed under chapter 5.
10 Sec. 52. Upon
filing of such application for a new
11 drainage district, the
commissioner shall immediately cause a
12 survey to be made by a
competent surveyor or engineer to
13 determine the area
which would be drained by the proposed drain,
14 and the route and type
of construction of the drain or drains
15 most serviceable for that
purpose. He shall not be limited in
16 such determination to
the route described in the application. In
17 any county having a
board of county auditors, no survey shall be
18 ordered without the
approval of such board but if the application
19 shows, or it is
determined thereafter, that any such proposed
20 drainage district will
affect lands in more than 1 county, the
21 commissioner shall
proceed under the portions of chapter 5 of
22 this act relating to
intercounty drains, and in such case the
23 approval of the board
of county auditors shall not be required.
24 If upon the survey, or
if before the survey is made, the
25 commissioner
determines that the proposed drain is impractical,
26 he shall take no
further action thereon but shall, in writing,
27 notify the persons who
delivered the application to him, of that
1 fact, and his reasons
for making his determination. If upon the
2 survey the commissioner
determines the proposed drain to be
3 practical, he shall
lay out a drainage district, prepare and file
4 in the office of the
drain commissioner a description of the
5 drainage district,
which may be described by its boundaries of
6 highways and streets
and tracts and parcels of land including
7 therein all highways
and streets, townships, cities and villages
8 or by a description of
all tracts or parcels of land, highways,
9 townships, cities and
villages which would be benefited by the
10 construction of the
proposed drain, and which would be liable to
11 an assessment
therefor, should the drain be constructed as
12 hereinafter provided.
The commissioner shall obtain from the
13 county treasurer a
statement showing as near as may be the amount
14 of taxes and special
assessments levied against the lands in the
15 proposed drainage
district on the tax rolls for the 3 years next
16 preceding, and the
amount of such taxes and assessments remaining
17 unpaid, and if it
appears from the statement that 33 1/3% or more
18 of the lands in the
proposed drainage district have been returned
19 as tax delinquent and
still remain delinquent, no further action
20 shall be taken.
21 (1) If the drain commissioner determines that a petition
22 filed with the drain commissioner meets the requirements of
23 section 51, the commissioner shall promptly arrange for the
24 preparation of a preliminary analysis. Except as provided in
25 subdivision (a), an engineer shall prepare the preliminary
26 analysis. The commissioner shall select the engineer based on
27 the engineer's qualifications. The preliminary analysis shall
1 describe a drain and drainage district to address the reasons for
2 a drain and drainage district set forth in the petition. The
3 preliminary analysis shall include all of the following:
4 (a) A description of the drainage district by its boundaries
5 of streets or highways or tracts or parcels of land, or by a
6 description of all tracts or all parcels of land, including all
7 highways, townships, counties, cities, and villages which would
8 be benefited by the construction of the proposed drain. The
9 description of the drainage district may be prepared by a
10 surveyor.
11 (b) A proposed route and course for the drain.
12 (c) A proposed type of construction of the drain.
13 (d) An estimate of the cost of the proposed drain.
14 (e) A description of the proposed drain's impacts to natural
15 resources.
16 (2) Upon completion of the preliminary analysis, the drain
17 commissioner shall file a copy of the preliminary analysis in his
18 or her office and make it available for public inspection. The
19 drain commissioner shall also file the preliminary analysis with
20 the district office of the land and water management division,
21 department of environmental quality, for the district where the
22 project is located.
23 (3) As soon as practicable after the filing of the
24 preliminary analysis under section 52, the commissioner
25 authorized to act on the petition, if not disqualified under
26 section 35 to make the apportionment of benefits, may appoint a
27 board of determination composed of 3 disinterested individuals
1 and an alternate disinterested individual. If the commissioner
2 is disqualified or chooses not to appoint the board of
3 determination, the commissioner shall immediately file with the
4 chairperson of the county board of commissioners a copy of the
5 petition, together with a statement signed by the commissioner,
6 explaining why he or she is disqualified or chooses not to act in
7 appointing a board of determination. As soon as practicable
8 after receiving the copy of the petition and the statement, the
9 chairperson of the county board of commissioners, if not
10 otherwise interested as set forth in section 35, shall appoint
11 the board of determination and shall immediately notify the drain
12 commissioner of the names and addresses of those appointed. If
13 the chairperson of the county board of commissioners has a
14 private interest in the proceedings, the finance committee of the
15 county board of commissioners shall appoint the board of
16 determination.
17 (4) Each member of a board of determination shall be a
18 landowner and resident of the county, but not of a township,
19 city, or village in the proposed drainage district. A member of
20 the board of determination shall not be any of the following:
21 (a) A member of the county board of commissioners or county
22 board of road commissioners.
23 (b) The spouse, parent, child, or sibling of a member of the
24 county board of commissioners or of the drain commissioner.
25 (5) A hearing of the board of determination shall be called
26 within the drainage district at a convenient place to be
27 designated by the drain commissioner. The board of determination
1 hearing also may be held outside the drainage district at a
2 suitable public building anywhere within the city, village, or
3 township in which the drain is located or, if there is no such
4 building, at any suitable public building near the drainage
5 district. If any individual appointed to the board of
6 determination fails or refuses to serve or is disqualified, the
7 drain commissioner, the county board of commissioners, or the
8 finance committee of the county board of commissioners, whichever
9 appointed the individual, shall appoint a successor.
10 (6) The per diem compensation, mileage, and expenses of a
11 member of the board of determination shall be paid in the same
12 amount as paid to a member of the county board of commissioners
13 of the county. In a county in which members of the county board
14 of commissioners are not paid on a per diem basis, the
15 compensation, mileage, and expenses shall be fixed by the drain
16 commissioner.
17 (7) Upon request, the drain commissioner shall inform in
18 writing the state legislator who represents that portion of the
19 area in which the proposed drain improvement is to be constructed
20 of the names and addresses of the persons appointed to a board of
21 determination.
22 (8) Notice of the hearing of the board of determination
23 shall be given in the manner provided in section 8.
24 (9) The drain commissioner shall arrange for a certified
25 court reporter, stenomask reporter, or court recorder to attend
26 each hearing of the board of determination and take a verbatim
27 record of the proceedings. If proceedings are initiated in the
1 circuit court under section 56 or 58, the drain commissioner
2 shall promptly request the reporter or recorder to furnish a
3 transcript of the proceedings to the court. The aggrieved party
4 may request and shall be promptly furnished a transcript of the
5 proceedings at cost.
6 (10) The board of determination shall meet at the time and
7 place specified in the notice. The board of determination shall
8 act by majority vote. The drain commissioner or deputy drain
9 commissioner shall attend the hearing of the board of
10 determination.
11 Sec. 53. The
surveyor or engineer authorized to make the
12 survey shall ascertain
the size and depth of the drains and he
13 shall preserve all
minutes with reference thereto. He shall
14 prepare preliminary
plans, drawings and profiles thereof,
15 together with a
computation of the yards of earth to be
16 excavated, the amount
of tile or pipe to be used and the
17 necessary bridges and
culverts or fords to be built in
18 constructing such
proposed drain, and his estimate of the cost of
19 such construction, and
where practicable shall recommend the
20 leveling of the spoil
banks. He shall thereupon lay out a
21 drainage district,
which district may be described by its
22 boundaries of streets
or highways or tracts or parcels of land,
23 or by a description of
all tracts or all parcels of land,
24 including therein all
highways, townships, counties, cities and
25 villages which would
be benefited by the construction of the
26 proposed drain, all of
which he shall deliver to the
27 commissioner. The
surveyor or engineer shall not be limited to
1 the route described in
the application but may recommend a route
2 and type of
construction for the drains he considers most
3 serviceable for
draining the area involved. The
board of
4 determination shall do all of the following at the hearing under
5 section 52:
6 (a) Elect a chairperson.
7 (b) Elect a secretary.
8 (c) Receive testimony and evidence on whether the drain is
9 necessary and conducive to the public health, safety, or welfare
10 or for agriculture.
11 (d) Consider the preliminary analysis.
12 (e) Determine 1 of the following:
13 (i) That the proposed drain is necessary and conducive to
14 public health, safety, or welfare or for agriculture.
15 (ii) That the proposed drain is not necessary and conducive
16 to public health, safety, or welfare or for agriculture.
17 (iii) That the drain is practical, but that additional
18 information is needed to determine whether the drain is necessary
19 and conducive to the public health, safety, or welfare or for
20 agriculture, or to determine the boundaries of the drainage
21 district. If the board of determination finds that the drain is
22 practical, it shall receive testimony and evidence on the extent
23 of the lands proposed to be served by the drain and determine the
24 boundaries of the tentative drainage district, which lands will
25 be subject to assessment for costs incurred by the drain
26 commissioner in gathering the requested additional information,
27 if the drain is subsequently determined not necessary.
1 Sec. 53a. (1) After the board determines the drain
2 practical and establishes a tentative drainage district, it shall
3 recess to allow the drain commissioner to gather the additional
4 information and shall enter an order of practicality that specifies
5 both of the following:
6 (a) The information under section 60 that is needed.
7 (b) The boundaries of the tentative drainage district.
8 (2) If during the gathering of the additional information the
9 drain commissioner determines that the drain is not practical, he
10 shall reconvene the board of determination. Notice of the
11 reconvened board of determination shall be pursuant to section 8
12 and shall specify the determination by the drain commissioner and
13 the reasons therefor.
14 (3) At the hearing of the reconvened board of determination
15 under subsection (2), the board shall do the following:
16 (a) receive the determination of the drain commissioner.
17 (b) Receive testimony and evidence as to the drain
18 commissioner's determination.
19 (c) Direct the drain commissioner to complete the gathering
20 of the additional information or find the drain is not necessary
21 and conducive to the public health, safety, or welfare or for
22 agriculture and order that the costs be paid pursuant to section
23 51(7).
24 (4) If the reconvened board of determination directs the
25 drain commissioner to complete the gathering of the additional
26 information, the drain commissioner shall gather the additional
1 information.
2 (5) After gathering the additional information, the drain
3 commissioner shall call the board of determination to reconvene.
4 The drain commissioner shall give notice of the reconvening of
5 the board of determination in the manner provided in section 8.
6 The reconvened hearing of the board of determination shall do all
7 of the following:
8 (a) Receive and consider the additional information from the
9 drain commissioner.
10 (b) Receive testimony and evidence on whether the drain is
11 necessary and conducive to the public health, safety, or welfare
12 or for agriculture.
13 (c) Determine whether or not the drain is necessary and
14 conducive to the public health, safety, or welfare or for
15 agriculture.
16 (6) If the reconvened board of determination finds the drain
17 is necessary and conducive to the public health, safety, or
18 welfare or for agriculture, it shall proceed and make such orders
19 as set forth in section 54.
20 (7) If the reconvened board of determination finds the drain
21 is not necessary and conducive to the public health, safety, or
22 welfare or for agriculture, it shall enter an order to that
23 effect and order that the costs be paid pursuant to section
24 51(7).
25 Sec. 54. The
commissioner shall prepare and file in his
26 office his order
designating a drainage district and give it a
27 name or number and
describe therein the boundaries of the
1 district by streets or
highways or parcels of land for each of
2 the several tracts or
parcels of land included therein and the
3 counties, townships,
cities, villages and state trunk line
4 highways which would
be benefited by the construction of the
5 drains and would be
liable to assessment therefor, also a
6 description of the
drains as determined by him, showing the
7 beginning, route,
terminus, type of the proposed construction and
8 the estimated cost of
such proposed construction. The
9 commissioner shall
give notice of filing the order designating a
10 drainage district by
publishing a notice in a newspaper of
11 general circulation in
the county, or a newspaper of general
12 circulation in the
area where the drainage district boundaries
13 are located, which
notice shall give a general description of the
14 route of the proposed
drain or drains and of the drainage
15 district as shown by
the order.
16 At
any time after the order designating a drainage district
17 and giving it a name
or number has been filed in the office of
18 the drain
commissioner, the order may be amended as to the name
19 or number of the drain
at any time by presenting to the drain
20 commissioner of the
county a petition signed by no less than 5
21 land owners whose land
is traversed by the drain, which petition
22 shall state the then
present name or number of the drain and the
23 change or changes to
be made in the name or number. Upon receipt
24 of such petition, and
if in the drain commissioner's opinion it
25 is to the best
interest of all concerned that the name or number
26 be changed, he shall
make his order amending the name or number,
27 and thereafter the
drainage district shall be known by such name
1 or number. The drain
commissioner shall forthwith post such
2 signs upon the drain
as he may deem advisable for public notice
3 of the new name or number.
4 (1) If the board of determination by a majority vote finds
5 the drain is necessary and conducive to the public health,
6 safety, or welfare or for agriculture, either at the first
7 hearing or following a reconvened hearing pursuant to section
8 53a, the board of determination shall:
9 (a) Receive testimony and other evidence on the extent of the
10 lands proposed to be served by the drain and determine the
11 boundaries of the drainage district. If the board of
12 determination at any time finds that the drain would serve lands
13 in more than 1 county, the board of determination shall file an
14 order to that effect and refer the petition to the drain
15 commissioner for proceedings under chapter 5.
16 (b) Designate a preliminary name for the drain and drainage
17 district.
18 (c) Determine whether a portion of the costs of construction
19 of the proposed drain is necessary for the public health, safety,
20 or welfare in 1 or more public corporations and identify those
21 public corporations.
22 (2) If it appears to the board of determination at any time
23 that the drainage district may include lands whose landowners
24 were not sent notice of the hearing in the manner provided in
25 section 8, the board of determination shall enter a finding to
26 that effect identifying the additional lands and file the finding
27 with the drain commissioner. The board of determination shall
1 recess the hearing. The drain commissioner shall promptly give
2 notice of the pending reconvened hearing to the landowners of the
3 additional lands and all other persons entitled to notice under
4 section 8 in the manner provided in section 8 and shall call the
5 board of determination to reconvene.
6 Sec. 55. (1) If the board of determination by a majority
7 vote finds the drain is necessary and conducive to the public
8 health, safety, or welfare or for agriculture, either at the
9 first hearing or following a reconvened hearing pursuant to
10 section 53a, the board of determination shall enter an order of
11 necessity and file the order of necessity with the commissioner.
12 (2) The order of necessity shall specify:
13 (a) The finding of necessity.
14 (b) The boundaries of the drainage district.
15 (c) The public corporations determined liable for assessment
16 at-large for a portion of the costs of the drain for public
17 health, safety, or welfare.
18 (3) The board of determination shall not determine the scope
19 of the project. The scope of the project is within the sole
20 authority of the drain commissioner in consultation with his or
21 her engineers or other qualified professionals.
22 Sec. 56. Within 7 days after the order of necessity is
23 filed, the drain commissioner shall notify by first-class mail
24 each public corporation identified in the order of necessity as
25 receiving benefits at large for public health, safety, or welfare
26 that it is liable to pay a percent of the cost of construction of
27 the drain for benefits for public health, safety, or welfare.
1 The governing body of the public corporation, within 21 days
2 after mailing of the notification from the drain commissioner,
3 may appeal the order of necessity as to the finding that all or a
4 portion of the costs is necessary for public health, safety, or
5 welfare. The appeal shall be filed with the circuit court in the
6 county in which the territory of the public corporation is
7 located.
8 Sec. 57. If the board of determination finds that the drain
9 is not necessary and conducive to the public health, safety, or
10 welfare or for agriculture, all of the following apply:
11 (a) The board of determination shall file with the
12 commissioner an order of no necessity rejecting the petition.
13 (b) Costs shall be paid as provided in section 51.
14 (c) A new petition for the drain shall not be filed within 1
15 year after the filing of the order of no necessity.
16 Sec. 58. After the board of determination files an order of
17 no necessity or files an order of necessity, a public corporation
18 or other person feeling aggrieved by the order may institute an
19 action in the circuit court for the county in which the drainage
20 district is located for a review of the order. The action shall
21 be filed within 14 days after the filing of the order. The
22 circuit court shall determine whether the order was authorized by
23 law and supported by substantial, material, and competent
24 evidence on the whole record. The review shall be made on the
25 record presented to the board of determination and no additional
26 testimony or information shall be offered except for purposes of
27 claim of fraud or error of law. After the review of the record,
1 the court may remand the matter to the board of determination and
2 order the board of determination to reconvene for purposes of
3 securing additional testimony and evidence on issues which the
4 court considers necessary to render its decision on the appeal.
5 Following the hearing on remand, the record shall be transmitted
6 to the court for hearing and decision.
7 Sec. 59. (1) After the order of necessity is filed, the
8 drain commissioner, subject to subsection (2), shall execute a
9 first order of determination and file the first order of
10 determination in his or her office. The first order of
11 determination shall do all of the following consistent with the
12 order of necessity:
13 (a) Establish the drainage district and give it a name or
14 number.
15 (b) Describe the drainage district by its boundaries or by a
16 description of all the land that would be benefited by the
17 construction of the drain and would be liable to assessment
18 therefor, including the counties, townships, cities, and
19 villages; roadways; and parcels of land identified by legal
20 description or tax code parcel number.
21 (c) Describe the beginning, route, terminus, type of the
22 proposed construction, and the estimated cost of such proposed
23 construction.
24 (2) If an appeal is not filed, the drain commissioner shall
25 satisfy the requirements of subsection (1) upon the expiration of
26 the appeal periods under section 58 and, if applicable, section
27 56. If an appeal is filed, the drain commissioner shall satisfy
1 the requirements of subsection (1) after the appeal procedures
2 are terminated.
3 Sec. 60. After the drain commissioner files the first order
4 of determination, the commissioner shall secure the services of
5 an engineer and arrange for the preparation of an engineering
6 analysis. The commissioner shall select the engineer based on
7 the engineer's qualifications. The engineering analysis shall
8 describe a drain and drainage district to address the reasons for
9 a drain and drainage district set forth in the petition and in
10 the evidence and testimony received at the hearing of the board
11 of determination. Except as provided in subdivisions (e) and
12 (j), the engineering analysis shall be prepared by an engineer
13 and shall include all of the following:
14 (a) Hydrologic and hydraulic report that includes, but is not
15 limited to, a discussion of the present drainage characteristics
16 and the impacts of the proposed project on flooding
17 characteristics downstream of the drainage district.
18 (b) Recommended route and course.
19 (c) An existing and proposed profile of the recommended route
20 and course.
21 (d) Description of the recommended work including crossings,
22 structures, and facilities.
23 (e) A description of the drainage district by its boundaries
24 of streets or highways or tracts or parcels of land, or by a
25 description of all tracts or all parcels of land, including all
26 highways, townships, counties, cities, and villages which would
27 be benefited by the construction of the proposed drain. The
1 description of the drainage district may be prepared by a
2 surveyor.
3 (f) An estimate of the cost of construction of the engineer's
4 recommendation.
5 (g) A description of alternatives considered.
6 (h) An analysis of the effectiveness of the proposed project
7 to address the conditions that it is intended to remedy, create,
8 or enhance.
9 (i) A maintenance plan for the drain.
10 (j) An evaluation of the impacts of the project on natural
11 resources that identifies appropriate practical measures to
12 minimize adverse effects. The evaluation need not be part of the
13 engineering analysis and may instead be prepared by the
14 commissioner or another qualified professional.
15 (k) Any other information requested by the commissioner.
16 Sec. 61. (1) The engineer shall prepare final plans,
17 specifications, and an estimate of costs of the proposed drain.
18 The commissioner shall secure from the engineer or a surveyor a
19 description of the lands or rights-of-way needed for the proposed
20 drain. In approving the route of the drain as furnished by the
21 engineer, the commissioner is not limited to that described in
22 the petition or in the first order of determination, if the new
23 route is more efficient and serviceable.
24 (2) If the board of determination determines that the drain
25 is necessary and conducive to the public health, safety, or
26 welfare or for agriculture, the drain commissioner shall convene
27 a meeting under section 62 to provide information or elicit
1 information and testimony with regards to the route and type of
2 construction and estimate of cost of the drain to assist the
3 drain commissioner in determining the scope of the drain project
4 to be undertaken by the commissioner. The meeting is for
5 informational purposes only.
6 (3) The drain commissioner shall obtain any permits required
7 under the natural resources and environmental protection act,
8 1994 PA 451, MCL 324.101 to 324.90106. All costs associated with
9 evaluating natural resource impacts and implementing the measures
10 to minimize those impacts shall be the responsibility of the
11 drainage district.
12 (4) Measures that are intended to enhance or improve natural
13 resource values but that will not provide benefit to the designed
14 function, longevity, or hydraulic capacity of the drain may be
15 included as part of the drainage project in the discretion of the
16 drain commissioner. The funding for such measures may only
17 include gifts, donations, grants, contracts pursuant to
18 section 431, special assessments other than special assessments
19 under this act, or any combination thereof, as considered
20 appropriate by the drain commissioner.
21 (5) If, after the receipt of the plans, specifications,
22 estimate of cost, and descriptions of the lands or rights-of-way
23 needed for the proposed drain, the commissioner determines that
24 the project is not feasible, the commissioner shall notify the
25 landowners and public corporations in the district by first-class
26 mail of the intent to reject the petition. The notice shall
27 specify the reasons for the proposed rejection. The notice shall
1 also specify a time, date, and place for a public hearing to hear
2 objections to the rejection of the petition. At the public
3 hearing, the commissioner shall elicit testimony and evidence
4 with regards to the proposed rejection. Following the receipt of
5 testimony, the drain commissioner shall determine whether or not
6 the petition should be rejected. If, after hearing testimony,
7 the drain commissioner determines to reject the petition, the
8 commissioner shall enter an order of rejection and apportion all
9 costs incurred to the district as if the project had been built
10 and the costs will be subsequently assessed and paid as provided
11 in chapter 7. An order of rejection does not limit the right to
12 file a subsequent petition.
13 Sec. 62. (1) Upon completion of the engineering analysis,
14 pursuant to section 60 the commissioner shall file a copy of the
15 engineering analysis in the commissioner's office and shall
16 convene a meeting to present and receive testimony and other
17 evidence on the engineering analysis and the project proposed to
18 be undertaken. The commissioner shall give notice of filing of
19 the engineering analysis and of the meeting in the manner
20 provided in section 8. The notice shall give all of the
21 following information:
22 (a) A general description of the drainage district.
23 (b) The name or number of the drainage district.
24 (c) A general map or description of the drainage district as
25 described in the engineering analysis or a general description of
26 the boundaries of that drainage district by municipal boundaries,
27 roadways, or parcels or tracts of land.
1 (d) A general description of the route and type of
2 construction and the estimated cost of the engineer's
3 recommendation.
4 (2) The drain commissioner shall consider the testimony and
5 other evidence offered at the public meeting under subsection (1)
6 and decide the route and course, type of construction, and other
7 features of the drain.
8 Sec. 63. (1) Unless the drain commissioner determines to
9 reject the petition under section 61(6), the drain commissioner
10 shall proceed to acquire property for the drain under section 7.
11 (2) After acquiring property necessary for the drain, the
12 drain commissioner shall prepare and promptly file in his or her
13 office a final order of determination establishing the drain.
14 (3) The apportionment and review of benefits, the letting of
15 contracts, and the levy and collection of drain special
16 assessments for the drain shall be as provided in chapters 7, 9,
17 and 11.
18
CHAPTER 5 .
19 INTERCOUNTY DRAINAGE
DISTRICTS . AND INTERCOUNTY DRAINS
20 Sec. 101. (1)
Before any action is taken on any petition
21 to locate, establish
and construct any drain, which proposed
22 drain will traverse
lands in more than 1 county, or affect more
23 than 1 county, there
shall first be filed with the commissioner
24 having jurisdiction of
any such lands an application to lay out
25 and designate a
drainage district with reference to a proposed
26 drain therein; such
application shall tentatively describe the
27 location and route of
such proposed drain. The application shall
1 be signed by a number
of freeholders in said drainage district
2 whose lands would be
liable to an assessment for benefits, equal
3 to 50% of any of the
freeholders whose lands would be traversed
4 by the drain or drains
applied for or abut on any highway or
5 street along the side
of which such drain extends, between a
6 point where such drain
enters such highway and the point where it
7 leaves such highway
and which lands are within the drainage
8 district To initiate the establishment of a drainage
district
9 and the establishment and construction of a drain that will
10 traverse lands in more than 1 county or affect more than 1
11 county, a petition shall be filed with the drain commissioner of
12 1 of the counties. Subject to subsection (2), the petition shall
13 be signed by 10 landowners in the intercounty drainage district
14 whose lands would be liable to assessment for benefits or at
15 least 50% of the landowners if there are less than 10 landowners
16 whose lands would be liable to assessment or may be signed by
17 landowners representing 25% of the land area liable to
18 assessment. The drain commissioner shall determine the
19 eligibility of the
signers to such application shall be
20 determined by their
interest of record in the office of the
21 register of deeds, in
the probate court or in the circuit court
22 of the county in which
such lands are situated at the time such
23 petition is filed the petition based on their status as
24 landowners when the petition was filed.
25 (2) Instead of landowners, a public corporation may petition
26 for the establishment of a drainage district and the
27 establishment and construction of a drain when duly authorized by
1 its governing body, if the proposed drain is necessary for public
2 health, safety, or welfare in the public corporation and if the
3 public corporation will be liable for an assessment at large for
4 a percentage of the cost of the proposed drain. The entry of an
5 order of necessity under section 104 shall be considered a
6 determination of the sufficiency of the petition.
7 (3) The petition shall request the establishment of a
8 drainage district and the establishment and construction of a
9 drain and set forth the reasons for the request. The petition
10 may request that measures be undertaken which are intended both
11 to enhance or improve the natural resource values of the proposed
12 drain and which provide direct benefit to the designed function,
13 longevity, or hydraulic capacity of the proposed drain. The
14 petition may propose a location and route for the drain.
15 (4) The petition shall be accompanied by a description or tax
16 parcel number of the land in the proposed district owned by each
17 signer and by a certificate of the county treasurer of each
18 county where such land is located as to payment of taxes and
19 special assessments against the land in that county. The
20 certificate shall be in substantially the following form:
21 I hereby certify that there are no taxes or special
22 assessments unpaid against any of the lands described in the
23 annexed list according to the records of the county treasurer's
24 office for the preceding 3 years, except as follows:
25 Description Year Tax or assessment Amount
26 ................. ............ ..................... ........
1 (5) The name of any signer as to whose land the certificate
2 shows taxes or assessments unpaid for the preceding 3 years shall
3 not be counted. If it appears from the certificate that 33-1/3%
4 or more of the lands in the proposed drainage district have been
5 returned as tax delinquent and still remain delinquent, the
6 commissioner shall not take further action on the petition.
7 (6) If the petition shows, or it is determined thereafter,
8 that the proposed drain will affect lands in only 1 county, the
9 commissioner shall proceed under chapter 3.
10 Sec. 102. (1)
Upon filing of such application Not more
11 than 21 days after a petition is filed, the commissioner shall
12 within 20 days send a copy of such application the
petition
13 by registered first-class
mail to the state director of
14 agriculture and also to
the drain commissioner of each county
15 in which lie lands liable for assessment for benefits for the
16 construction of such proposed drain.
17 (2) The drain commissioners of such counties and the director
18 of agriculture or any
deputy designated by him shall be and
19 constitute the
drainage board shall constitute the
drainage
20 board. If at any time the drainage board determines that lands
21 should be added to the drainage district and if those lands are
22 located in a county whose drain commissioner is not a member of
23 the drainage board, the drainage board shall notify that drain
24 commissioner and he or she shall become a member of the drainage
25 board. If at any time the drainage board determines that all the
26 lands from a particular county that are part of the drainage
27 district should be deleted from the drainage district, the drain
1 commissioner from that county shall no longer be a member of the
2 drainage board.
3 (3) The director of agriculture shall serve as chairperson of
4 the drainage board and shall only vote if there is a tie. The
5 drainage board shall act by majority vote of the drainage board.
6 (4) The state
director of agriculture shall call a meeting
7 of such the
drainage board , which meeting shall be held not
8 less than 15 and not
more than 60 days from the receipt of such
9 notice. Such meeting
shall be held in the immediate locality of
10 the proposed drainage
district. Notices of such meeting shall be
11 posted in 5 public
places within the proposed drainage district
12 within each county,
and served on the county clerk of each county
13 and the supervisor of
each township within the proposed drainage
14 district personally or
by registered mail at least 10 days before
15 such public meeting.
A notice of such meeting shall be published
16 in each county
affected once a week for 2 consecutive weeks
17 before such meeting in
a newspaper of general circulation in such
18 county, if there is
one, the first publication to be at least 10
19 days before the
meeting as soon as practical but
not later than
20 63 days after the filing of a petition.
21 (5) At the meeting, the drainage board shall determine if the
22 petition filed meets the requirements of section 101. If the
23 drainage board determines that the petition meets the
24 requirements of section 101, the drainage board shall promptly
25 arrange for the preparation of a preliminary analysis. Except as
26 provided in subdivision (a), an engineer shall prepare the
27 preliminary analysis. The drainage board shall select the
1 engineer based on the engineer's qualifications. The preliminary
2 analysis shall describe a drain and drainage district to address
3 the reasons for a drain and drainage district set forth in the
4 petition. The preliminary analysis shall include all of the
5 following:
6 (a) A description of the drainage district by its boundaries
7 of streets or highways or tracts or parcels of land, or by a
8 description of all tracts or all parcels of land, including all
9 highways, townships, counties, cities, and villages which would
10 be benefited by the construction of the proposed drain. The
11 description of the drainage district may be prepared by a
12 surveyor.
13 (b) A proposed route and course for the drain.
14 (c) A proposed type of construction of the drain.
15 (d) An estimate of the cost of the proposed drain.
16 (6) Upon completion of the preliminary analysis, a copy of
17 the preliminary analysis shall be filed in the office of each
18 drain commissioner on the drainage board and the office of the
19 director of agriculture and made available for public
20 inspection. The drainage board shall also file the preliminary
21 analysis with the district office of the land and water
22 management division, department of environmental quality, for the
23 district where the project is located.
24 (7) As soon as practical but not later than 60 days after the
25 filing of the preliminary analysis, the director of agriculture
26 shall call a hearing of the drainage board.
27 (8) The hearing of the drainage board shall be called within
1 the drainage district at a convenient place to be designated by
2 the director of agriculture. The drainage board hearing also may
3 be held outside the drainage district at a suitable public
4 building anywhere within the city, village, or township in which
5 the drain is located or, if there is no such building, at any
6 suitable public building near the drainage district.
7 (9) Notice of the hearing of the drainage board shall be
8 given in the manner provided in section 8. To determine which
9 landowners may be subject to assessment and should be given
10 notice, the drain commissioner of each affected county shall
11 forward to the director of agriculture a tentative description of
12 the proposed drainage district within that county. The director
13 of agriculture shall prepare and file in his or her office and
14 with the drain commissioner of each affected county a composite
15 description of the lands in the drainage district.
16 (10) The drainage board shall arrange for a certified court
17 reporter, stenomask reporter, or court recorder to attend each
18 hearing of the drainage board and take a verbatim record of the
19 proceedings. If proceedings are initiated in the circuit court
20 under section 106 or 108, the drainage board shall promptly
21 request the reporter or recorder to furnish a transcript of the
22 proceedings to the court. Upon request of the drainage board,
23 the reporter or recorder shall promptly furnish the transcript to
24 the court.
25 (11) The drainage board shall meet at the time and place
26 specified in the notice.
27 Sec. 103. Upon
convening said meeting the state director
1 of agriculture or any
deputy selected by him shall act as
2 chairman. The said
drainage board shall consider such
3 application, and
determine the sufficiency of the signatures
4 thereto, and shall go
over the route of said proposed drain and
5 take testimony to
determine its practicability. All persons
6 owning lands liable to
assessment for benefits or whose lands
7 shall be crossed by
said drain or any municipality affected may
8 appear for or against
said drain proceedings. If at said meeting
9 or at any subsequent
time before the entry of the order
10 designating a drainage
district, they shall determine that the
11 drainage of the
proposed drain area is not practical, no further
12 action shall be taken
thereon within 1 year. If said proposed
13 drain is determined to
be practical, then the drainage board
14 shall cause a survey
thereof to be made by a competent surveyor
15 or engineer to
ascertain the area which would be drained by the
16 proposed drain, and
the route and type of construction of drain
17 or drains most
serviceable for that purpose.
18 (1) The drainage board shall do all of the following at the
19 hearing:
20 (a) Elect a secretary.
21 (b) Receive testimony and evidence on whether the drain is
22 necessary and conducive to the public health, safety, or welfare
23 or for agriculture.
24 (c) Consider the preliminary analysis.
25 (2) Following the receipt of testimony and evidence and
26 consideration of the preliminary analysis, the drainage board
27 shall determine 1 of the following:
1 (a) That the proposed drain is necessary and conducive to
2 public health, safety, or welfare or for agriculture.
3 (b) That the proposed drain is not necessary and conducive to
4 public health, safety, or welfare or for agriculture.
5 (c) That the drain is practical, but that additional
6 information is needed to determine whether the drain is necessary
7 and conducive to the public health, safety, or welfare or for
8 agriculture, or to determine the boundaries of the drainage
9 district. If the drainage board finds that the drain is
10 practical, it shall receive testimony and evidence on the extent
11 of the lands proposed to be served by the drain and determine the
12 boundaries of the tentative drainage district, which lands will
13 be subject to assessment for costs incurred by the drainage board
14 in gathering the requested additional information, if the drain
15 is subsequently determined not necessary.
16 (d) Preliminarily determine the percentages of the cost of
17 establishing the district and constructing the drain that each
18 county will bear. The counties affected shall pay the costs
19 described in section 302 as provided in that section.
20 Sec. 103a. (1) After the drainage board determines the
21 drain practical and establishes a tentative drainage district, it
22 shall recess to allow for the gathering of the additional
23 information and shall enter an order of practicality that specifies
24 both of the following:
25 (a) The information under section 110 that is needed.
26 (b) The boundaries of the tentative drainage district.
1 (2) If during the gathering of the additional information the
2 drainage board determines that the drain is not practical, it
3 shall reconvene. Notice of the reconvened drainage board shall
4 be pursuant to section 8 and shall specify the determination by
5 the drainage board and the reasons therefor.
6 (3) At the hearing of the reconvened drainage board under
7 subsection (2), the board shall do the following:
8 (a) Receive testimony and evidence as to the drainage board's
9 determination.
10 (b) Determine to complete the gathering of the additional
11 information or find the drain is not necessary and conducive to
12 the public health, safety, or welfare or for agriculture and
13 order the costs assessed pursuant to the tentative drainage
14 district.
15 (4) If the reconvened drainage board determines to complete
16 the gathering of the additional information, it shall gather the
17 additional information.
18 (5) After gathering the additional information, the drainage
19 board shall reconvene. The director of agriculture shall give
20 notice of the reconvening of the drainage board in the manner
21 provided in section 8. At the reconvened hearing, the drainage
22 board shall do all of the following:
23 (a) Receive and consider the additional information.
24 (b) Receive testimony and evidence on whether the drain is
25 necessary and conducive to the public health, safety, or welfare
26 or for agriculture.
27 (c) Determine whether or not the drain is necessary and
1 conducive to the public health, safety, or welfare or for
2 agriculture.
3 (6) If the reconvened drainage board finds the drain is
4 necessary and conducive to the public health, safety, or welfare
5 or for agriculture, it shall proceed and make such orders as set
6 forth in section 105.
7 (7) If the reconvened drainage board finds the drain is not
8 necessary and conducive to the public health, safety, or welfare
9 or for agriculture, it shall enter an order to that effect and
10 costs shall be apportioned to the tentative drainage district as
11 provided in chapter 7 as if the drain had been constructed.
12 Sec. 104. The
surveyor or engineer authorized to make the
13 survey shall ascertain
the size and depth of the drains, and
14 shall preserve all
minutes with reference thereto. He shall
15 prepare plans,
drawings and profiles thereof, together with a
16 computation of the
yards of earth to be excavated, and where
17 practicable the
leveling of the spoil banks or the amount of tile
18 or pipe to be used and
the necessary bridges and culverts or
19 fords to be built in
constructing the proposed drains, and his
20 estimate of the cost
of such construction. He shall thereupon
21 lay out a proposed
drainage district, which district may be
22 described by its
boundaries of streets and highways or tracts or
23 parcels of land or by
a description of all tracts or parcels of
24 land, including
therein all highways, townships, counties, cities
25 and villages which
would be benefited by the construction of the
26 proposed drain, all of
which he shall deliver to the drainage
27 board. The surveyor
or engineer shall not be limited to the
1 route described in the
application, but may recommend a route and
2 type of construction
for the drains he considers most serviceable
3 for draining the area
involved.
4 (1) If the drainage board by majority vote finds the drain is
5 necessary and conducive to the public health, safety, or welfare
6 or for agriculture, either at the first hearing or following a
7 reconvened hearing pursuant to section 103a, the drainage board
8 shall:
9 (a) Receive testimony and other evidence on the extent of the
10 lands proposed to be served by the drain and determine the
11 boundaries of the drainage district. If the drainage board at
12 any time finds that the drain would serve lands in only 1 county,
13 the drainage board shall file an order to that effect and refer
14 the petition to the drain commissioner of that county for
15 proceedings under chapter 3.
16 (b) Designate a preliminary name for the drain and drainage
17 district.
18 (c) Determine whether a portion of the costs of construction
19 of the proposed drain is necessary for the public health, safety,
20 or welfare or for agriculture in 1 or more public corporations
21 and identify those public corporations.
22 (2) If it appears to the drainage board at any time that the
23 drainage district may include lands whose landowners were not
24 sent notice of the hearing in the manner provided in section 8,
25 the drainage board shall enter a finding to that effect
26 identifying the additional lands and file the finding with the
27 director of agriculture. The drainage board shall recess the
1 hearing. The director of agriculture shall promptly give notice
2 of the pending reconvened hearing to the landowners of the
3 additional lands and all other persons entitled to notice under
4 section 8, in the manner provided in section 8 and shall call the
5 drainage board to reconvene.
6 Sec. 105. The
chairman of the drainage board shall
7 thereupon prepare an
order designating a drainage district,
8 giving it a name or
number and describe therein the drainage
9 district by its
boundaries of streets and highways or tracts or
10 parcels of land or by
a description of all tracts or parcels of
11 land included therein
and the counties, townships, cities,
12 villages and state
trunk line highways including therein all
13 highways, townships,
counties, cities and villages, which would
14 be benefited by the
construction of such drain and would be
15 liable to an
assessment therefor; also a description of the drain
16 according to the plans
and specifications prepared by the
17 surveyor or engineer
and determined by the drainage board,
18 showing the beginning,
route, terminus, type of construction and
19 the estimated cost of
the construction. Notice of filing of the
20 order shall be given
by the state director of agriculture by
21 publishing a notice in
a newspaper in each county affected, once
22 in each week for 2
successive weeks, which notice shall give a
23 general description of
the route of the drain and of the drainage
24 district as shown by
the order. A copy of the order shall within
25 10 days be filed by
the state director of agriculture in the
26 office of the county
drain commissioner of each county in which
27 lie lands included in
the district.
1 At
any time after the order designating an intercounty
2 drainage district,
giving it a name or number, has been filed in
3 the offices of the
county drain commissioners of the counties
4 within the district,
the order may be amended as to the name or
5 number of the drain by
a written request of a drain commissioner
6 of 1 of the counties
traversed by the drain, which request shall
7 state the then present
name or number of the drain and the change
8 to be made in the name
or number. Upon filing of the request,
9 the drain commissioner
shall mail a copy of the request, to the
10 state director of
agriculture and also to the drain commissioner
11 of each county in
which lie lands liable for assessments for the
12 drain. The state
director of agriculture shall call a meeting of
13 the drainage board and
if, in the opinion of the drainage board,
14 it is found advisable
to change the name or number of the drain,
15 they shall file an
order designating such change. The drainage
16 board shall also
designate the number of signs to be posted upon
17 the drain as they may
deem advisable for public notice of the new
18 name or number.
Copies of the order changing the name or number
19 of the drain shall be
filed with the drain commissioner and the
20 county treasurer of
each county liable for assessments of such
21 drain. If the
commissioners of the counties affected cannot
22 agree as to the
apportionment of costs for laying out a drainage
23 district, the director
of agriculture or any deputy appointed by
24 him shall apportion
the costs and the counties affected shall pay
25 the same as provided
in section 302 of this act.
26 (1) If the drainage board by a majority vote finds the drain
27 is necessary and conducive to the public health, safety, or
1 welfare or for agriculture, either at the first hearing or
2 following a reconvened hearing pursuant to section 103a, the
3 drainage board shall enter an order of necessity and file the
4 order of necessity with the director of agriculture.
5 (2) The order of necessity shall specify:
6 (a) The finding of necessity.
7 (b) The boundaries of the drainage district.
8 (c) The public corporations determined liable for assessment
9 at-large for a portion of the costs of the drain for public
10 health, safety, or welfare.
11 (3) The drainage board shall not determine the scope of the
12 project in the order of necessity or at the hearings pursuant to
13 sections 102 and 103a. The scope of the project is within the
14 sole authority of the drainage board in consultation with its
15 engineers or other qualified professionals.
16 Sec. 106. If the
drain commissioner of a county involved
17 considers the
apportionment between the counties to be unfair,
18 the commissioner shall
have the right to have the apportionment
19 reviewed by an arbitration
board to be composed of drain
20 commissioners from
unaffected counties in this state. Within 20
21 days after the order
of apportionment provided in section 105,
22 the commissioner shall
file with the department of agriculture a
23 claim for review by
arbitration in which the commissioner shall
24 state briefly in what
respect he or she considers the
25 apportionment unfair
and request, over the commissioner's
26 official signature, a
review by arbitration. The commissioner
27 shall nominate a
disinterested drain commissioner as his or her
1 choice for the
arbitration board. Upon receipt of the claim for
2 review by arbitration,
the director of the department of
3 agriculture or the
director's deputy shall forward to each county
4 drain commissioner
involved, except the claimant, within 10 days,
5 a copy of the claim
for review by arbitration. The
6 commissioners, within
10 days, shall notify the department of
7 agriculture of their
selection to the arbitration board. The
8 director of the
department of agriculture, at the earliest date,
9 consistent with Act
No. 267 of the Public Acts of 1976, but not
10 later than 30 days
after the notice, shall notify the chosen
11 drain commissioners of
a date and time they shall meet in the
12 commissioner's office
in Lansing. At the meeting they shall
13 select 1 or 2 more
unaffected drain commissioners in the state to
14 complete the board of
review. Only 1 shall be selected if the
15 board members selected
by the drain commissioners affected
16 constitute an even
number and 2 shall be selected if the board
17 members selected by
the drain commissioners affected constitute
18 an odd number. Upon
selection of the final members of the board
19 of review, those
members present shall set a date, time, and
20 place in an affected
county for a first full meeting of the board
21 of review. Notice of
the meeting shall be posted in 5 public
22 places in each county
affected and be served personally or by
23 registered mail at
least 10 days before the meeting on the county
24 clerk of the county
and the supervisor of a township in each
25 county traversed by
the drain. A notice of the meeting shall be
26 published once a week
for 2 consecutive weeks before the meeting
27 in a newspaper
published and of general circulation in the
1 counties affected.
The first publication is to be at least 10
2 days before the
meeting. The director of the department of
3 agriculture shall
notify the 1 or 2 drain commissioners selected
4 of their appointment and
of the date, time, and place of the next
5 meeting of the full
board. The board of arbitration shall
6 convene at the time,
date, and place specified, elect a
7 chairperson and
secretary, and review the fairness of the
8 apportionment between
the counties. The board may adjourn until
9 their review is
completed. The findings shall be made and signed
10 by all the members
attesting the determination of the majority of
11 the board and the
determination by the majority of the board
12 shall be final and
conclusive as to the fairness of the
13 apportionment. Within 7 days after the order of necessity is
14 filed, the drainage board shall notify by first-class mail each
15 public corporation identified in the order of necessity as
16 receiving benefits at-large for public health, safety, or welfare
17 that it is liable to pay a percent of the cost of construction of
18 the drain for benefits for public health, safety, or welfare.
19 The governing body of the public corporation, within 21 days
20 after mailing of the notification from the drainage board, may
21 appeal the order of necessity as to the finding that all or a
22 portion of the costs is necessary for public health, safety, or
23 welfare. The appeal shall be filed with the circuit court in the
24 county in which the territory of the public corporation is
25 located.
26 Sec. 107. If the drainage board finds that the drain is not
27 necessary and conducive to the public health, safety, or welfare
1 or for agriculture, all of the following apply:
2 (a) The drainage board shall file with the director of
3 agriculture an order of no necessity rejecting the petition.
4 (b) Costs shall be paid as apportioned amongst the counties
5 as determined in section 103 and pursuant to chapter 7 as if the
6 drain had been constructed.
7 (c) A new petition for the drain shall not be filed within 1
8 year after the filing of the order of no necessity.
9 Sec. 108. After the drainage board files an order of no
10 necessity or files an order of necessity, a public corporation or
11 other person feeling aggrieved by the order may institute an
12 action in a circuit court for any county in which the drainage
13 district is located for a review of the order. The action shall
14 be filed within 14 days after the filing of the order. The
15 circuit court shall determine whether the order was authorized by
16 law and supported by substantial, material, and competent
17 evidence on the whole record. The review shall be made on the
18 record presented to the drainage board and no additional
19 testimony or information shall be offered except for purposes of
20 claim of fraud or error of law. After the review of the record,
21 the court may remand the matter to the drainage board and order
22 the drainage board to reconvene for purposes of securing
23 additional testimony and evidence on issues which the court
24 considers necessary to render its decision on the appeal.
25 Following the hearing on remand, the record shall be transmitted
26 to the court for hearing and decision.
27 Sec. 109. (1) After the order of necessity is filed, the
1 drainage board, subject to subsection (2), shall execute a first
2 order of determination and file the first order of determination
3 with the director of agriculture. The first order of
4 determination shall do all of the following consistent with the
5 order of necessity:
6 (a) Establish the drainage district and give it a name or
7 number.
8 (b) Describe the drainage district by its boundaries or by a
9 description of all the land that would be benefited by the
10 construction of the drain and would be liable to assessment
11 therefor, including the counties, townships, cities, and
12 villages; roadways; and parcels of land identified by legal
13 description or tax code parcel number.
14 (c) Describe the beginning, route, terminus, type of the
15 proposed construction, and the estimated cost of such proposed
16 construction.
17 (d) Review and establish the percentages of the whole cost of
18 construction which each county shall bear, as preliminarily
19 determined under section 103, and determine the number of
20 installments in which the drain special assessments shall be
21 collected.
22 (2) If a drain commissioner considers the apportionment
23 between the counties to be unfair, the commissioner shall request
24 the director of agriculture to review the apportionment and make
25 a recommendation of an apportionment between the counties. If
26 the recommendation is not adopted by majority vote, or if the
27 recommendation is adopted and a drain commissioner finds that the
1 apportionment is unfair, it may be reviewed pursuant to
2 subsection (3).
3 (3) If a drain commissioner considers the apportionment
4 between the counties to be unfair, the commissioner may have the
5 apportionment reviewed by an arbitration board composed of
6 disinterested drain commissioners. Within 21 days after the
7 filing of the order of necessity under section 105, the
8 commissioner shall file with the director of agriculture a signed
9 claim for review by arbitration in which the commissioner shall
10 state briefly in what respect he or she considers the
11 apportionment unfair and request a review by arbitration. The
12 commissioner shall select a disinterested drain commissioner to
13 be a member of the arbitration board. Not more than 14 days
14 after receipt of the claim for review by arbitration, the
15 director of agriculture shall forward to the drain commissioner
16 of each county to which a percentage of benefits has been
17 apportioned, except the claimant, a copy of the claim for review
18 by arbitration. Each such commissioner shall select 1
19 disinterested drain commissioner to be a member of the
20 arbitration board and, within 14 days, shall notify the
21 department of agriculture of his or her selection. The director
22 of agriculture, at the earliest date consistent with the open
23 meetings act, 1976 PA 267, MCL 15.261 to 15.275, but not later
24 than 28 days after the notice, shall notify the selected drain
25 commissioners of a date and time they shall meet in the office of
26 the director of agriculture in Lansing. At the meeting, they
27 shall complete the arbitration board by selecting 1 or 2 more
1 disinterested drain commissioners, as appropriate so the
2 arbitration board has an odd number of members.
3 (4) Upon selection of the final members of the arbitration
4 board, those members present shall set a date, time, and place in
5 an affected county for a first full meeting of the arbitration
6 board. Notice of the meeting shall be served personally or by
7 first-class mail at least 14 days before the meeting on the
8 county clerk of each affected county and the clerk of each
9 township in each affected county. The arbitration board shall
10 publish a notice of the meeting once a week for 2 consecutive
11 weeks before the meeting in a newspaper published and of general
12 circulation in the counties affected. The first publication
13 shall be at least 14 days before the meeting. The director of
14 agriculture shall notify the drain commissioners selected of
15 their appointment and of the date, time, and place of the next
16 meeting of the arbitration board.
17 (5) The arbitration board shall convene at the time, date,
18 and place specified, take testimony from the affected parties,
19 elect a chairperson and secretary, and review the fairness of the
20 apportionment between the counties. The arbitration board may
21 adjourn until the review is completed. The findings shall be
22 made and signed by all the members attesting the determination of
23 the majority of the arbitration board, and the determination by
24 the majority of the arbitration board is final and conclusive as
25 to the fairness of the apportionment. Commissioners so appointed
26 shall be compensated in the same amount and manner as members of
27 the county board of commissioners in their respective counties.
1 Other costs of the arbitration board shall be borne by the
2 district.
3 (6) If an appeal is not filed, the drainage board shall
4 satisfy the requirements of subsection (1) upon the expiration of
5 the appeal periods under section 106 and, if applicable, 108. If
6 an appeal is filed, the drainage board shall satisfy the
7 requirements of subsection (1) after the appeal procedures are
8 terminated.
9 Sec. 110. After the drainage board files the first order of
10 determination, it shall secure the services of an engineer and
11 arrange for the preparation of an engineering analysis. The
12 drainage board shall select the engineer based on the engineer's
13 qualifications. The engineering analysis shall describe a drain
14 and drainage district to address the reasons for a drain and
15 drainage district set forth in the petition and in the evidence
16 and testimony received at the hearing of the drainage board.
17 Except as provided in subdivisions (e) and (j), the engineering
18 analysis shall be prepared by an engineer and shall include all
19 of the following:
20 (a) Hydrologic and hydraulic report that includes, but is not
21 limited to, a discussion of the present drainage characteristics
22 and the impacts of the proposed project on flooding
23 characteristics downstream of the drainage district.
24 (b) Recommended route and course.
25 (c) An existing and proposed profile of the recommended route
26 and course.
27 (d) Description of the recommended work including crossings,
1 structures, and facilities.
2 (e) A description of the drainage district by its boundaries
3 of streets or highways or tracts or parcels of land, or by a
4 description of all tracts or all parcels of land, including all
5 highways, townships, counties, cities, and villages which would
6 be benefited by the construction of the proposed drain. The
7 description of the drainage district may be prepared by a
8 surveyor.
9 (f) An estimate of the cost of construction of the engineer's
10 recommendation.
11 (g) A description of alternatives considered.
12 (h) An analysis of the effectiveness of the proposed project
13 to address the conditions that it is intended to remedy, create,
14 or enhance.
15 (i) A maintenance plan for the drain.
16 (j) An evaluation of the impacts of the project on natural
17 resources that identifies appropriate practical measures to
18 minimize adverse effects. The evaluation need not be part of the
19 engineering analysis and may instead be prepared by a
20 commissioner or another qualified professional.
21 (k) Any other information requested by the drainage board.
22 Sec. 111. (1) The engineer shall prepare final plans,
23 specifications, and an estimate of costs of the proposed drain.
24 The commissioner shall secure from the engineer or a surveyor a
25 description of the lands or rights-of-way needed for the proposed
26 drain. In approving the route of the drain as furnished by the
27 engineer, the drainage board is not limited to that described in
1 the petition or in the first order of determination, if the new
2 route is more efficient and serviceable.
3 (2) If the drainage board determines that the drain is
4 necessary and conducive to the public health, safety, or welfare
5 or for agriculture, the drainage board shall convene a meeting
6 under section 112 to provide information or elicit information
7 and testimony with regards to the route and type of construction
8 and estimate of cost of the drain to assist the drainage board in
9 determining the scope of the drain project to be undertaken by
10 the board. The meeting is for informational purposes only.
11 (3) The drainage board shall obtain any permits required
12 under the natural resources and environmental protection act,
13 1994 PA 451, MCL 324.101 to 324.90106. All costs associated with
14 evaluating natural resource impacts and implementing the measures
15 to minimize those impacts shall be the responsibility of the
16 drainage district.
17 (4) Measures that are intended to enhance or improve natural
18 resource values but that will not provide benefit to the designed
19 function, longevity, or hydraulic capacity of the drain may be
20 included as part of the drainage project in the discretion of the
21 drainage board. The funding for such measures may only include
22 gifts, donations, grants, contracts pursuant to section 431,
23 special assessments other than special assessments under this
24 act, or any combination thereof, as considered appropriate by the
25 drainage board.
26 (5) If, after the receipt of the plans, specifications,
27 estimate of cost, and descriptions of the lands or rights-of-way
1 needed for the proposed drain, the drainage board determines that
2 the project is not feasible, it shall notify the landowners and
3 public corporations in the district by first-class mail of the
4 intent to reject the petition. The notice shall specify the
5 reasons for the proposed rejection. The notice shall also
6 specify a time, date, and place for a public hearing to hear
7 objections to the rejection of the petition. At the public
8 hearing, the drainage board shall elicit testimony and evidence
9 with regards to the proposed rejection. Following the receipt of
10 testimony, the drainage board shall determine whether or not the
11 petition should be rejected. If, after hearing testimony, the
12 drainage board determines to reject the petition, it shall enter
13 an order of rejection and apportion all costs incurred to the
14 district as if the project had been built and the costs will be
15 subsequently assessed and paid as provided in chapter 7. An
16 order of rejection does not limit the right to file a subsequent
17 petition.
18 Sec. 112. (1) Upon completion of the engineering analysis,
19 pursuant to section 110 the drainage board shall file a copy of
20 the engineering analysis in the office of the director of
21 agriculture and the office of each drain commissioner on the
22 drainage board and shall convene a hearing to present and receive
23 testimony and other evidence on the engineering analysis and the
24 project proposed to be undertaken. The drainage board shall give
25 notice of filing of the engineering analysis and of the hearing
26 in the manner provided in section 8. The notice shall give all
27 of the following information:
1 (a) A general description of the drainage district.
2 (b) The name or number of the drainage district.
3 (c) A general map or description of the drainage district as
4 described in the engineering analysis or a general description of
5 the boundaries of that drainage district by municipal boundaries,
6 roadways, or parcels or tracts of land.
7 (d) A general description of the route and type of
8 construction and the estimated cost of the engineer's
9 recommendation.
10 (2) The drainage board shall consider the testimony and other
11 evidence offered at the public hearing under subsection (1) and
12 decide the route and course, type of construction, and other
13 features of the drain.
14 Sec. 113. (1) Unless the drainage board determines to
15 reject the petition under section 111(6), the drainage board
16 shall proceed to acquire property for the drain under section 7.
17 (2) After acquiring property necessary for the drain, the
18 drainage board shall prepare and promptly file in the office of
19 the director of agriculture a final order of determination
20 establishing the drain.
21 (3) The apportionment and review of benefits, the letting of
22 contracts, and the levy and collection of drain special
23 assessments for the drain shall be as provided in chapters 7, 9,
24 and 11.
25 Sec. 114. A full record of the drain shall be made and
26 entered by the director of agriculture and several commissioners
27 in the drain records of their respective counties, and a copy of
1 all the records relative to the establishment and construction of
2 the drain shall be delivered to the other commissioners and the
3 director of agriculture by the commissioner having the original
4 application or petition, which copies shall be filed in the
5 office of the director of agriculture and the county drain
6 commissioner of the respective counties as original records are
7 required to be filed and with the same force and effect.
8 Sec. 115. The drainage board, acting on behalf of the
9 drainage district, may borrow money and may issue bonds or notes
10 therefor as provided for drains lying wholly within 1 county.
11 The bonds or notes shall be signed by the members of the drainage
12 board and shall be countersigned by the clerks of the counties
13 affected. Bonds or notes issued under this chapter are payable
14 at the office of the county treasurer selected by the drainage
15 board to serve as the treasurer of the drainage district. The
16 bonds or notes shall be deposited and safely kept by the
17 treasurer until sold and delivered. All installments, with
18 interest thereon, of the special assessments shall be transmitted
19 as collected by the treasurer or treasurers of the other county
20 or counties concerned to the treasurer of the drainage district,
21 who shall issue a receipt therefor and shall place the money in
22 the fund of the drain to be disbursed solely for the retirement
23 of the bonds or notes at maturity and the payment of interest
24 thereon.
25 Sec. 116. If a proposed drain lies wholly or partly in an
26 adjoining state, or the lands to be drained thereby lie partly in
27 an adjoining state, a petition to establish a drainage district
1 and establish and construct a drain as specified in this act may
2 be made to any commissioner representing any county in this state
3 in which any portion of the proposed drain or lands to be
4 affected thereby lie, and the same proceedings shall be had
5 regarding the portion of the drain or the lands to be drained or
6 affected thereby lying within this state as are provided in this
7 act for drains and lands lying wholly within this state.
8 However, before any expense is incurred in relation to the
9 proposed drain, a voluntary release of the right-of-way to
10 construct the drain or portion of the drain that lies without
11 this state and an agreement to keep it or permit it to be kept,
12 clear from obstruction shall first be obtained from the parties
13 owning lands outside of this state through which the drain or
14 portion thereof is to pass, and such release and agreement shall
15 be filed with the said drain commissioner and shall form a part
16 of the record of his or her proceedings in the premises.
17 Sec. 117. An action involving an intercounty drain may be
18 brought in the circuit court of a county in which a part of the
19 intercounty drainage district is established, subject to the
20 Michigan rules of court.
21
CHAPTER 7 .
22
APPORTIONMENT AND REVIEW .
23 Sec. 151. (1)
Upon the release of the right-of-way and
24 damages, or upon the
determination and return of the special
25 commissioners after the drain commissioner, for a county drain,
26 or drainage board, for an intercounty drain, acquires
27 rights-of-way or easements, the commissioner or drainage board
1 shall make his the
final order of determination establishing
2 the drain. ,
which The drain shall project may be divided
3 into convenient
sections for the letting of contracts:
4 Provided, That the
commissioner may let the drain in sections or
5 as a whole. Said for the purpose of letting contracts. The
6 order of determination shall be filed with the county drain
7 commissioner within 5
not more than 7 days after such the
8 order is made. He
shall, before
9 (2) The drain commissioner, for a county drain, or drainage
10 board, for an intercounty drain, may amend a final order of
11 determination by changing the name or number of the drain or the
12 boundaries of the district if there is filed with the drain
13 commissioner or drainage board a petition signed by not less than
14 5 landowners whose land is traversed by the drain, stating the
15 then present name or number of the drain and the change or
16 changes to be made in the name or number of the drain or the
17 boundaries of the district. A petition to change the boundaries
18 of the drainage district shall be accompanied by a certification
19 from an engineer or surveyor. If in the drain commissioner's or
20 drainage board's opinion it is to the best interest of all
21 concerned that the name or number of the drain or the lands be
22 changed, the drain commissioner or drainage board shall make an
23 order amending the name, number, or district boundaries, and
24 thereafter the drainage district shall be known by the name or
25 number and the boundary shall be as set forth in the amended
26 order. If such an order is made, the drain commissioner or
27 drainage board shall provide notice of such a change in the
1 manner provided in section 8 to the drainage district and convene
2 a day of review of apportionments.
3 (3) Before the
day of letting and review of apportionments,
4 the drain commissioner or drainage board shall fix the number of
5 installments for the
collection of drainage taxes assessments
6 and apportion the per
cent percent of the cost of construction
7 of such drain which
any township, city or village traversed or
8 benefited thereby
shall be the drain that any city,
village, or
9 township is liable to pay by reason of the benefit to the public
10 health, convenience safety,
or welfare, or as the means of
11 improving any highway
under the control of such township, city or
12 village. He shall
apportion the per cent of the cost of
13 construction of such
drain which any highway then under the
14 control of the county
or district road commissioners, shall be
15 liable to pay by
reason of benefits therefor, and as the means of
16 improving such
highway. He shall also apportion the per cent of
17 the cost of
construction of such drain which any state trunk line
18 highway, under the
control of the state highway commissioner,
19 shall be liable to pay
by reason of benefits therefor and as the
20 means of improving
said highway. He that any
municipality or
21 the state transportation department is liable to pay by reason of
22 benefits to or contributions from a roadway.
23 (4) For a county drain, the drain commissioner shall also
24 apportion the per
cent percent of benefits to accrue to any
25 piece or parcel of land including lands owned by any public
26 corporation by reason of the construction, maintenance, or
27 improvement of such the
drain over and above the per cent
1 percent apportioned to
any township, city or village at large
2 public corporation or to
any highway roadway as above
3 provided. Such per
cent For an intercounty drain, the drain
4 commissioner for each county in which lands subject to assessment
5 for the drain are located shall so apportion the percent of
6 benefits to accrue to those lands. The percent so apportioned
7 when finally approved
shall be assessed against such townships,
8 cities and villages
and against the county at large by reason of
9 the improvement of the
highways within the drainage district, and
10 against the state by
reason of the improvement of the state trunk
11 line highways within
such drainage district, and against all
12 parcels of land
therein according to such the
apportionment of
13 benefits. as
herein provided. The apportionment of benefits so
14 made shall be and addition of lands to the drainage district are
15 subject to review and correction and may be appealed from as
16 provided in this act.
provided. The board of supervisors
17 commissioners at its October meeting each year shall make
18 provision by proper assessment of the amounts apportioned against
19 any highway under the
control of the county and district highway
20 commissioners county road.
21 Sec. 152. (1)
All apportionments of benefits under the
22 provisions of this act
shall be upon the principle of Each
23 apportionment shall be based upon benefits derived as
24 specifically described in a written document that shall be
25 available for inspection on the day of review. All
26 descriptions
27 (2) If the act or omission of a person increases or reduces
1 the need for maintenance or improvement of the drain, the drain
2 commissioner may consider the act or omission in making the
3 apportionment.
4 (3) A description of
land under the provisions of this act
5 shall be made by giving the legal subdivision thereof, whenever
6 practicable, and when the tract of land which is to be benefited
7 or affected by such a
drain is less than such a legal
8 subdivision, it may be described by designation of the lot or a
9 part of a lot or other
boundaries, or in some way. by which it
10 may be known. If the drain commissioner retains in his or her
11 office a detailed description, map, or other specification that
12 designates a parcel or portion of a parcel to be benefited by the
13 drain, the commissioner, instead of providing a specific
14 description of the parcel, may designate the parcel by use of the
15 parcel's tax parcel identification number.
16 (4) The apportionment of benefits for state trunk line
17 highways, and the portion paid by county road commissions, the
18 county executive, or other agency acting as the county road
19 commission for benefit to county roads, must be paid pursuant to
20 section 14a of 1951 PA 51, MCL 247.664a.
21 Sec. 153. Such The
final order of determination shall
22 contain a description of the district to be assessed for benefits
23 in the construction of said
the drain, either by boundaries or
24 by description or tax parcel identification number of the several
25 tracts or parcels of land
to be assessed. , which said The
26 tracts or parcels and the county, townships, cities, villages,
27 and highways roadways
therein shall constitute the special
1 assessment district.
, and which district shall in said order be
2 designated the final order of determination shall designate
the
3 district by na