May 27, 2015, Introduced by Rep. Johnson and referred to the Committee on Local Government.
A bill to amend 1956 PA 40, entitled
"The drain code of 1956,"
by amending sections 154, 191, and 196 (MCL 280.154, 280.191, and
280.196), section 154 as amended by 2010 PA 339 and section 196 as
amended by 2008 PA 509.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 154. (1) The commissioner shall give notice as described
in subsection (3) for the receiving of bids for the construction of
the drain and for the holding of a public meeting to review the
apportionment of benefits. The meeting shall be not less than 5 nor
more than 30 days after the date set for receiving bids.
(2) The notice under subsection (1) shall be given by
publication of at least 2 insertions in a newspaper published and
of general circulation in the county. The first publication shall
be at least 10 days before the date set for receiving bids.
(3) The drain commissioner shall also send the notice under
subsection (1) by first-class mail at least 10 days before the date
of the meeting to review the apportionment of benefits, to each
person whose name appears upon the last city or township tax
assessment roll as owning land within the special assessment
district, at the address shown on the roll. If an address does not
appear on the roll, then notice need not be mailed to the person.
The
drain commissioner shall make an affidavit of the mailing and
shall
recite in the affidavit reciting
that the persons to whom the
notice was mailed constitute all of the persons whose names and
addresses appear upon the tax rolls as owning land within the
particular special assessment district. The affidavit is conclusive
proof that notice was mailed to each person to whom notice is
required to be mailed. If notice has been sent by first-class mail
as provided in this section, the failure to receive notice by mail
does not constitute a jurisdictional defect invalidating a drain
proceeding
or tax. assessment. If the board of determination
determines that the drain is necessary for the protection of the
public health and that the whole cost of the drain, except that
part which may be apportioned for benefits to highways, shall be
apportioned to municipalities, then mailing of individual notices
to persons owning land within the special assessment district as
provided in this subsection is not required. However, if costs of
maintenance work under chapter 8 are being apportioned, the drain
commissioner shall send an individual notice by first-class mail to
each person whose real property is expected to be entered for the
purpose of performing the maintenance work, informing the person of
the expected entry.
(4) The notice under subsection (1) shall be personally served
on the county clerk and 1 or more members of the road commission of
a
county, or road district, the supervisor of a
township, the mayor
of a city, and the president of a village to be assessed at large.
(5) The notice under subsection (1) shall contain all of the
following:
(a) The date, time, and place of receiving bids.
(b) The date, time, and place of the meeting to review the
apportionment of benefits.
(c) A statement that, at the meeting to review the
apportionment
of benefits, the drain commissioner will have
available
to review the tentative
apportionments against parcels
and municipalities within the drainage district will be available
to review.
(d) A statement that drain assessments against land will be
collected in the same manner as property taxes.
(e) A statement that if drain assessments against land are
collected by installment, the land owner may pay the assessments in
full with any interest to date at any time and thereby avoid
further interest charges.
(f) The name of each county, township, city, or village to be
assessed at large.
(g) A description of the land constituting the special
assessment district for the drain. The description may be stated by
designating the boundaries of the special assessment district by
streets, highways, parcels, or tracts of land or by describing the
tracts or parcels of land constituting the district. A tract or
parcel need not be subdivided beyond the point where the whole of
the tract or parcel is within the drainage district.
(h) The name or number of the drain.
(i) The number and length of sections, the average depth and
width of each section, and if the drain will be a closed drain, the
amount and specifications of all tile or pipe required.
(j) The location, number, type, and size of all culverts and
bridges.
(k) The conditions upon which the contract will be awarded.
(l) For an individual mailed notice of maintenance work under
chapter 8, a statement that the recipient's real property is
expected to be entered for the performance of the maintenance work,
if applicable.
(6) The notice under subsection (1) need not contain the
minutes of a survey or a table of cuttings. These shall be kept on
file in the office of the drain commissioner.
(7) Bids shall be received and the total cost of the drain
shall be computed before the time set for review of the
apportionment. The computation shall be open to inspection. If the
computation is not completed before the day of review, the review
may
be adjourned from time to time, not more than 20 days in all,
total, for the completion of the computation, or a new hearing may
be called with similar notice, by publication and service at least
10 days before the hearing. If the contracts on which the
computation was based are not executed and new contracts are let at
a higher price, the computation shall be corrected and a new review
held
with a similar notice. At the date, time, and place fixed
specified in the notice, or at another date, time, and place to
which the county drain commissioner may adjourn the hearing, the
apportionment of benefits and the lands constituting the special
assessment district shall be subject to review for at least 1 day.
The review shall be held open from 9 a.m. until 5 p.m. At the
review, the county clerk or the county road commission may appear
on
behalf of the county or a road district,
; the supervisor of a
township
may appear on behalf of a township,
; the mayor or an
officer of the city designated by the mayor may appear for a city,
;
and the president may appear on behalf of a village. At
the
review, the county drain commissioner shall hear the proofs and
allegations, shall carefully reconsider and review the description
of
land comprised within the special assessment district , and
the
several descriptions and apportionment of benefits, and shall
define and equalize the land as is just and equitable.
(8) If an apportionment of benefits is made against a state
trunk line highway, unless the director of the state transportation
department consents in writing to the apportionment, the drain
commissioner, at least 20 days before the review on the highway,
shall notify by registered mail the director of the state
transportation department of the percentage apportioned against the
highway
and the date, time, and place fixed for of a review of
apportionment of benefits. If the director of the state
transportation department desires to have the apportionment of
benefits reviewed by the director of the department of agriculture
and rural development, the director of the state transportation
department,
within 10 days from after the receipt of the notice,
shall file with the drain commissioner an objection to the
apportionment. The drain commissioner shall notify the director of
the department of agriculture and rural development of the date,
time,
and place fixed for of the review of apportionments, and at
the meeting the director of the department of agriculture, or a
deputy of the director, shall review the apportionment made against
the state trunk line highway and listen to the proofs and
allegations of the parties, and may view the highway benefited. The
action and decision on the apportionment under this subsection,
when reduced to writing, is final.
Sec. 191. (1)
When If a
drain or portion thereof, which of
a
drain
traverses lands wholly in 1 county, and
lands only in 1
county
which is are subject to assessment, and the drain or portion
of the drain needs cleaning out, relocating, widening, deepening,
straightening, tiling, extending, or relocating along a highway, or
requires structures or mechanical devices that will properly purify
or improve the flow of the drain or pumping equipment necessary to
assist or relieve the flow of the drain, or needs supplementing by
the construction of 1 or more relief drains which may consist of
new drains or extensions, enlargements, or connections to existing
drains,
or needs 1 or more branches added, thereto, a written
petition setting forth the necessity of the proposed work may be
filed with the commissioner. The petition shall be signed by any 5
freeholders,
or at least 50% of the freeholders if
there are less
fewer
than 5 freeholders,
whose lands shall will be liable to an
assessment
for benefits. of such work, may make petition in writing
to
the commissioner setting forth the necessity of the proposed
work
and Upon filing of the
petition, the commissioner shall
proceed in the same manner provided for the location,
establishment, and construction of a drain.
(2) If the project includes a tiled relief drain, or the
tiling
of an existing open drain or any portion thereof, of such a
drain, with a conduit a part of which has an inside diameter in
excess of 36 inches or the retiling of an existing drain with a
conduit, a part of which has an inside diameter in excess of 36
inches,
then the petition shall comply with section 71. The
preceding
sentence shall not be applicable This
subsection does not
apply to the construction of bridges, culverts, and passageways.
The
word tiling as used in this and other sections of this act,
means
the laying of a conduit composed of tile, brick, concrete, or
other
material. When it
(3) If the work described in subsection (1) is necessary for
the
public health of 1 or more cities, villages, and or townships,
the petition may be signed solely by a city, village, or township
when authorized by its governing body or by a combination of the
municipalities, if the municipality or municipalities are liable to
assessments at large for a percentage of the total amount assessed
for the cost of the proposed work. After the board of determination
determines the necessity for the work, as provided in section 72,
the commissioner shall, as soon as practicable after he or she has
filed the final order of determination prescribed in section 151,
has
been filed by him, proceed as
provided in sections 151 to 161,
.
If the apportionment is the same as the last recorded
apportionments,
no day of review is necessary, but in other cases
the
commissioner shall proceed as provided in sections 151 to 161,
including the notice of and the holding of a day of review. Notice
of the day of review mailed under section 154 to a person whose
real property is expected to be entered for the purpose of
performing the maintenance work shall inform the person of the
expected entry.
(4) As used in this act, "tiling" means the laying of a
conduit composed of tile, brick, concrete, or other material.
Sec. 196. (1) An annual inspection may be made of a drain
established under this act. Inspection shall also be made upon the
request of the governing body of a public corporation, as defined
in section 461, served in whole or in part by the drain to be
inspected. For county drains, the inspection shall be made by the
drain
commissioner , or a
competent person appointed by the drain
commissioner. For intercounty drains, the inspection shall be
caused
to be made by a competent person appointed by the drainage
board.
(2)
Surplus construction funds money
remaining after
completion
of construction of a drain, or funds money remaining
after completion of work performed under a petition for maintenance
or improvements under this chapter, shall be deposited in the drain
fund of a drainage district and shall be expended for inspection,
repair, and maintenance of the drain.
(3) If at any time the drain fund of a drainage district
contains less than $5,000.00 per mile or fraction of a mile of a
drain, the drain commissioner or drainage board may assess the
drainage district for an amount not to exceed $2,500.00 per mile or
fraction of a mile in any 1 year. The amount collected under an
assessment shall be deposited in the drain fund of a drainage
district for necessary inspection, repair, and maintenance of the
drain.
(4) If an inspection discloses the necessity of expending
money
for the maintenance and repair of a drain in order to keep it
in working order, the drain commissioner for a county drain, or the
drainage board for an intercounty drain, may without petition
expend an amount not to exceed in any 1 year $5,000.00 per mile or
fraction
of a mile for maintenance and repair of a drain, exclusive
of
excluding inspection and engineering fees and the cost of
publication and mailing. The determination of the maximum
expenditure allowed without a petition or resolution shall be based
on the total number of miles of the drain and not on the actual
number of miles or the location of the maintenance or repair.
(5) If the drain commissioner or the drainage board finds it
necessary
to expend funds money in excess of the amount established
in subsection (4) per mile or fraction of a mile in any 1 year for
the maintenance and repair of a drain, the additional amounts shall
not be expended until approved by resolution of the governing body
of each township, city, and village affected by more than 20% of
the cost.
(6) If the drain fund of a drainage district does not contain
sufficient
funds money to pay for inspection, repair, and
maintenance authorized by this section, the drain commissioner or
the drainage board shall reassess the drainage district for the
inspection, repair, and maintenance according to benefits received.
A reassessment shall be made and spread upon the city or township
tax assessment roll within 2 years after the completion of the
inspection,
repair, and maintenance. If the total expenditure is
more
than the amount established in subsection (4) per mile or
fraction
of a mile, all
(7) Regardless of the amount of money to be expended and
whether the drain fund contains sufficient money to pay for
maintenance
under this section, owners of real
property owners
subject
to an assessment within the
drainage district shall be
notified of the inspection, repair, and maintenance and any
assessment by publication in a newspaper of general circulation
within the drainage district and by first-class mail to the name
and address that appears on the last city or township assessment
roll. The notice by first-class mail to a person whose real
property is expected to be entered for the purpose of performing
the maintenance work shall inform the person of the expected entry.
An affidavit of mailing shall be made by the drain commissioner.
The affidavit is conclusive proof that the notices required by this
subsection were mailed. The failure to receive the notices by mail
shall
does not constitute a jurisdictional defect invalidating
a
drain tax if notice by publication was given as required by this
subsection.
(8) (7)
An assessment for the actual cost
of inspection,
repair, and maintenance performed on a drain, or an assessment to
be deposited in the drain fund of a drainage district, shall be
made
according to benefits received. The expenditure limit of the
amount
established in subsection (4) per
mile of drain or fraction
of a mile shall be used to calculate the maximum amount that the
drain commissioner or drainage board may assess in any 1 year
without a petition or a request from a public corporation. The
property in a drainage district that benefits from the inspection,
repair, or maintenance of the drain is subject to assessment for
that inspection, repair, or maintenance. Determination of the
maximum assessment amount allowed without petition or request, or
of the property that is subject to assessment, shall be based on
the number of miles of drain and areas of the drainage district
receiving benefits and not on the actual number of miles or actual
location of the inspection, repair, or maintenance.
(9) (8)
If an emergency condition exists
that endangers the
public health, crops, or property within a drainage district, the
drain
commissioner or the drainage board may expend funds money for
maintenance and repair to alleviate the emergency condition.
(10) (9)
Nothing in this section prohibits
the drain
commissioner
or the drainage board from spending funds money in
excess of the amount established in subsection (4) per mile or
fraction of a mile in any 1 year for inspection, maintenance, and
repair of a drain when requested by a public corporation, if the
public corporation pays the entire cost of the inspection,
maintenance, and repair.
(11) (10)
In computing the amounts that may
be expended in
accordance with this section, the cost of work to be performed by a
federal agency or public corporation that is not chargeable to the
county
or intercounty drainage district shall not be included. ,
nor
shall it be necessary for the The
drain commissioner or the
drainage board is not required to advertise for bids for that
portion of the work to be done by the federal agency or public
corporation.
(12) (11)
For purposes of this section, the
costs of
maintenance
or repair shall include the costs of maintaining the
drain in working order to continue a normal flow of water,
including the servicing or repair of necessary pumping equipment
and utility charges for pumping equipment; the cost of keeping the
drain free from rubbish, debris, siltation, or obstructions; the
cost of repairing a portion or all of a tile or drain to continue
the normal flow of water; and other costs associated with the costs
enumerated
listed in this subsection.
(13) (12)
If the cost of maintenance and
repair of a drain
includes utility charges or costs to service pumping stations,
sewage treatment facilities, or retention basins, the limitation
for
maintenance and repair under
subsection (4) does not apply.
except
that the The drain commissioner or drainage board may levy
sufficient special assessments to pay the charges or costs but not
more than the amount sufficient to pay those charges or costs.
(14) (13)
Except as otherwise provided in
this act, that
portion of the salaries, expenses, and fringe benefits of
administrative and engineering employees under the supervision of
the drain commissioner that are directly attributable, but not
incidental, to a drain or otherwise not recovered by fees
established by resolution or ordinance of the board of
commissioners
may be chargeable charged to the drain fund of a
drainage district.