February 15, 2005, Introduced by Rep. Jones and referred to the Committee on Local Government and Urban Policy.
A bill to amend 1956 PA 40, entitled
"The drain code of 1956,"
by amending section 72 (MCL 280.72), as amended by 1987 PA 60.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 72. (1) As soon as practicable after the filing of a
petition under section 71, the drain commissioner authorized to act
on the petition, if not disqualified under section 381 to make the
apportionment
of benefits, may appoint a board of determination.
composed
of 3 disinterested property owners. If the drain
commissioner is disqualified or chooses not to appoint the board of
determination, the drain commissioner shall immediately file a copy
of the petition with the chairperson of the county board of
commissioners, together with a statement signed by the drain
commissioner, showing that he or she is disqualified or chooses not
to
act in appointing a board of determination. Upon As soon as
practicable after receiving a copy of the petition and certificate,
the chairperson of the county board of commissioners, if not
privately
interested, as soon as practicable, shall
appoint a
board
of determination composed of 3 disinterested property owners
and shall immediately notify the drain commissioner of the names
and addresses of those appointed. If the chairperson of the board
of commissioners has a private interest in the proceedings, the
drain committee of the county board of commissioners shall appoint
the
board of determination. Members of boards
(2) A board of determination shall consist of 5 individuals.
At least 1 member of a board of determination shall be an elected
or appointed official of a local unit of government, other than a
city, village, or township all or part of which included in the
drainage
district. Each member of a board of
determination shall
be
residents meet all of the
following requirements:
(a) Be a disinterested property owner.
(b) Be a resident of the county but not of a township, city,
or
village to be affected by the drain. , and may not be
members
(c) Not be a member of the county board of commissioners of
the
county. A meeting of the board of determination shall be
called
within the drainage district at a convenient place to be
designated
by the drain commissioner. The board of determination
meeting
also may be held at a public building within the city,
village,
or township in which the drain is located.
(3) If 1 of those appointed to the board of determination
fails
or refuses to serve, the drain commissioner shall appoint a
successor shall be appointed in the same manner as the original
appointee.
(4) The per diem compensation, mileage, and expenses of a
member of the board of determination shall be the same as for the
county board of commissioners of the county. In counties where
county commissioners are not paid on a per diem basis, the
compensation, mileage, and expenses shall be fixed by the drain
commissioner. The members of the board of determination shall not
receive more than 1 per diem for a day no matter how many separate
matters are considered on that day.
(5)
Upon request, the county
drain commissioner shall inform
in
writing the requesting state legislator who represents that
portion
of the area in which the proposed drain improvement
is
to be constructed of the names and addresses of the persons
appointed to a board of determination.
(6) (2)
The drain commissioner shall
call a meeting of the
board of determination. The meeting shall be held within the
drainage district at a convenient place. The board of determination
meeting also may be held at a public building within a city,
village, or township in which the drain is to be located. The drain
commissioner shall give public notice of the time, date, and place
of the
a meeting of the board of determination in the manner
required
by the open meetings act, Act No. 267 of the Public Acts
of
1976, as amended, being sections 15.261 to 15.275 of the
Michigan
Compiled Laws 1976 PA 267,
MCL 15.261 to 15.275, and by
publication in a newspaper of general circulation in the county at
least
10 days before the meeting. Notice also shall be served on
The drain commissioner shall give notice of a meeting of the board
of
determination to the county clerk and on
the clerk of each
township, city, and village in the drainage district, personally or
by registered mail, at least 10 days before the meeting. The drain
commissioner
also shall send notice, by first class first-class
mail,
of the time, date, and place of the a
meeting of the board
of determination, to each person whose name appears on the last
city, village, or township tax assessment roll as owning land
within
the special assessment drainage district, at the address
shown on the roll. If an address does not appear on the roll, a
notice need not be mailed to the person. The drain commissioner
shall make an affidavit of the mailing and shall recite in the
affidavit 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
drainage
district. The affidavit shall
be is conclusive proof
that notice was mailed to each such person to whom notice is
required
to be mailed pursuant to under this section. The
failure
of
a person to receive a notice by mail shall
does not constitute
a jurisdictional defect invalidating a drain proceeding or tax, or
both,
if notice has been sent by first class first-class mail as
provided in this section. Expenses of notification shall be paid by
the
drainage district. when created.
(7) (3)
At the time and place fixed stated in
the notice,
the board of determination shall meet, elect a chairperson and
secretary, and proceed to determine the necessity of the proposed
drain and whether, considering its costs and benefits, the drain is
conducive to public health, convenience, or welfare. The board of
determination, if it considers it necessary, shall require the
county drain commissioner to obtain from the county treasurer a
statement showing the amount of taxes and special assessments
levied against the land in the proposed drainage district on the
tax rolls for the immediately preceding 3 years and the amount of
the taxes and assessments remaining unpaid. If it appears from the
statement that 25% or more of the taxes are unpaid on the lands,
further action shall not be taken. After hearing the evidence
offered, the board of determination shall make its determination on
the necessity of the drain and whether, considering its costs and
benefits, the drain is conducive to public health, convenience, or
welfare. If the board of determination finds, by a majority vote of
the members, that the proposed drain is not necessary and conducive
to public health, convenience, or welfare, the board of
determination shall file with the drain commissioner an order
dismissing the petition, and a further petition for the drain shall
not be entertained within 1 year after the determination. If the
board of determination, by a majority vote, finds the proposed
drain proposed
to be necessary and conducive to the public
health, convenience, or welfare, the board of determination shall
make an order to that effect and file the order with the drain
commissioner.
(8) If the board of determination finds that a portion of the
construction of the proposed drain is necessary for the protection
of
the public health in 1 or more cities, villages, and or
townships,
the order shall set forth the determination giving the
names
of the that finding and
identify those municipalities.
receiving
benefit for health. If the board of determination
determines
finds that the whole cost, except that to be levied
against state or county highways for highway benefits, is necessary
for the public health in 1 or more cities, villages, or townships,
the
cost shall be levied against the townships, villages, and
cities
those municipalities at large, and it shall is not be
necessary, in a subsequent order or notice, to describe or refer to
land
included in or comprising the drainage district. Upon filing
of
the order of determination by the board of determination, the
drain
commissioner, within 10 days of filing, If the drainage
board finds that all or a portion of the cost of construction is
necessary for the protection of public health in 1 or more
municipalities, within 10 days after the drainage board files the
order of determination, the drain commissioner shall notify each
such municipality by registered mail that it is liable to pay a
percent of the cost of construction of the drain by reason of
benefits
at large for public health. The governing body of the
township,
city, or village, within Within
20 days after receipt of
the
such notification,
by registered mail from the drain
commissioner,
the governing body of a
municipality may appeal the
order
of the board of determination to the
probate circuit court
having
jurisdiction in for the county.
in which the township,
city,
or village is located. Upon Within
20 days after receipt of
the
order of the board of determination,
and or, if
an appeal has
not
been taken by a municipality to the probate
circuit court,
upon termination of the appeal proceedings, the drain commissioner
,
after 20 days, shall make his or her first order of
determination in writing, giving the name or number of the drainage
district .
The commissioner shall establish and
the commencement,
route,
terminus, and type of construction of the drain. , a copy of
which
Within 15 days after making
the order, he or she the drain
commissioner
shall file ,
within 15 days, a copy of the
order in
his
or her office. If an appeal is taken to the probate court by a
municipality,
the commissioner shall file his or her first order of
determination
after the appeal procedures are terminated.