January 22, 2007, Introduced by Rep. Rick Jones and referred to the Committee on Regulatory Reform.
A bill to amend 1956 PA 40, entitled
"The drain code of 1956,"
by amending sections 72, 154, and 221 (MCL 280.72, 280.154, and
280.221), section 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 3 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 is included in the
drainage
district. Each member of a board of
determination shall be
residents
meet all of the following
requirements:
(a) The person shall be a disinterested property owner.
(b) The person shall 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) The person shall 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.
(d) The person shall be a member of a pool of persons eligible
for service on boards of determination. To become a member of such
a pool, a person shall be recommended to the county board of
commissioners by the drain commissioner in writing and approved by
the county board of commissioners. If the county board of
commissioners fails to approve or reject a person recommended by
the drain commissioner within 45 days after receipt of the
recommendation, the person shall be considered to be approved as a
member of the pool. A person shall serve as a member of the pool
for a term of 2 years after the date that person was approved or
considered to be approved by the county board of commissioners. A
person may serve for successive terms, subject to reapproval by the
county board of commissioners.
(3) If 1 of those appointed to the board of determination
fails or refuses to serve or is disqualified, the drain
commissioner shall appoint a successor.
(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 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 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 person to whom notice is required to be mailed pursuant to
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 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 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 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 commissioner the board of
determination shall incorporate
its finding that the drain is necessary in a preliminary order of
necessity and shall file the preliminary order of necessity with
the drain commissioner.
(8) If the board of determination files a preliminary order of
necessity under subsection (7), the drain commissioner shall
prepare an estimate of the cost of the proposed drain and submit
that estimate to the board of determination. If the board of
determination finds the drain is necessary considering cost and
practicality, it shall file with the drain commissioner a final
order of necessity to that effect.
(9) 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 of necessity 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 board of
determination 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 board of
determination files the order of necessity, the drain commissioner
shall notify each 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
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.
(10) If the board of determination finds the drain is not
necessary considering cost and practicality, it shall enter a final
order of no necessity to that effect. Costs incurred since the
filing of the preliminary order of necessity shall be spread to the
drainage district.
Sec. 154. (1) The commissioner shall give notice for the
receiving of bids for the construction of the drain and for the
holding
of a public meeting . At the meeting a review shall be made
of
to review the apportionment of benefits. The notice shall
specify
the time and place of receiving bids , and the time and
place
of the meeting for to review of the apportionment. The
meeting shall be held not less than 5 nor more than 30 days after
the date set for receiving bids. The notice shall be given by
publication
of at least 2 insertions twice
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.
The drain commissioner shall also send notice by first-class mail
of the time, date, and place of the meeting, at least 10 days
before the date of the meeting, 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 stating
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 shall be 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 shall does
not constitute a
jurisdictional defect invalidating a drain proceeding or tax. 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 the
mailing of individual notices to persons owning land within the
special assessment district as otherwise provided in this section
shall
not be is not required.
(2) The notice shall also contain the names of the counties,
cities, townships, or villages to be assessed at large, and 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. The notice shall contain 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 or to describe the drain further than by
reference to it by its name or number. The notice shall also state
the number and length of sections, the average depth and width of
each section, and in case of closed drains, the amount and
specifications of all tile or pipe required. The notice shall
contain the location, number, type, and size of all culverts and
bridges and the conditions upon which the contract will be awarded.
The notice need not contain minutes of survey or table of cuttings
which shall be kept on file in the office of the drain
commissioner.
(3)
Bids shall be received and computation of the total cost
of
the drain shall be made completed
before the time set for review
of the apportionment, and 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, 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
shall
be are let at a higher price, a corrected computation shall
be
made and a new review held with a similar notice. At the time
and
place fixed in the notice, or at another time and place to
which
the county drain commissioner may adjourn the hearing
(4) If the computation of the total cost of the drain exceeds
by more than 25% the estimate of cost submitted to the board of
determination under section 72, the drain commissioner shall
reconvene the board of determination under section 72. The board of
determination shall make a new determination of whether the drain
is necessary considering cost and practicality. The procedures for
the new determination of necessity, including, but not limited to,
appeal and review, are subject to the same requirements as the
initial determination of necessity under chapter 4.
(5) Unless under subsection (4), if applicable, the board of
determination determines that the drain is not necessary
considering cost and practicality, the apportionment of benefits
and the lands comprised within the special assessment district
shall be subject to review for at least 1 day. The review shall be
held at the time and place specified in the notice or at another
time and place to which the drain commissioner may adjourn the
proceedings. The review shall be held open from 9 a.m. until 5 p.m.
On
For the review, the county clerk or the county road
commission
may appear on behalf of the county or a road district; the
supervisor
or commissioner of highways 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 and 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.
(6) (4)
When If an apportionment of benefits is made against a
state
trunk line highway, unless the state highway director of the
state transportation department consents in writing to the
apportionment, the drain commissioner, at least 20 days before the
day
of review, on the trunk line, shall
notify by registered mail
the
state highway director of
the state transportation department
of the percentage apportioned against the highway and the date,
time, and place fixed for a review of apportionment of benefits. If
the
state highway director of
the state transportation department
desires to have the apportionment of benefits reviewed by the
director
of the department of agriculture, the state highway
director of the state transportation department, within 10 days
from 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 of the date, time, and place fixed for 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, listen to
the proofs and allegations of the parties, and may view the highway
benefited. The action and decision on the apportionment reduced to
writing shall be final.
Sec. 221. (1) At the time and place fixed in the notice
therefor
under section 154, the commissioner shall receive bids for
the construction of the drain. The commissioner may in any case,
and shall for all drains having an estimated cost exceeding
$5,000.00, advertise for sealed proposals, to be opened on the day
of letting.
(2) All sealed proposals received by the commissioner shall be
publicly
opened by him the
commissioner in the meeting and may be
there
examined by any person interested at the meeting. As soon as
practical after the opening of bids for the construction of any
drain, the commissioner shall determine the lowest responsible
bidder
and award contracts, or he may reject all proposals and
readvertise
as in the first instance. , and in In cases where the
commissioner determined that the taxes assessed for benefits shall
be
collected in more than 1 installment, he the commissioner shall,
subject
to the provisions set forth in section 275, of this act,
determine the amount, form, maturity, and rate of interest of bonds
to
be issued. In counties having a board of county auditors, no
drain
bonds shall not be sold and no drain contracts shall not be
let without the written consent and approval of the board of county
auditors
, but However, the approval of said the board
shall not be
of county auditors is not required in proceedings relative to
intercounty drains.
(3) If
no a contract shall be is not let
within 5 2 years
after
the date of filing the petition to locate, establish and
construct,
or deepen, widen, straighten, tile, extend or clean out
a
drain establish a drainage
district and establish and construct a
drain or to maintain or improve a drain, the drain commissioner may
determine
that the petition shall be deemed is abandoned and no
issue an order to that effect. No further action shall be taken to
construct
the drain. Time during which any litigation shall be is
pending
to contest the validity of such the
proceedings shall not
be
counted as a part of such 5-year that 2-year period. If
the
drain
commissioner determines the petition shall be abandoned, he
shall
issue his order to that effect; provided, that such
determination
of abandonment shall not be issued within the 5-year
period.
Notice of the order shall be given
by publishing a notice
published
in a newspaper of general circulation
in the county. The
provisions
of this This section shall apply applies to
all
petitions which are in full force and effect on the date of January
1, 1973, or thereafter.
(4) The
board of county road commissioners, when if authorized
by
a committee of supervisors appointed by the county board
of
supervisors,
is hereby authorized to commissioners,
may bid for the
construction, cleaning, deepening, and widening of drains within
the
county, and, if such the bid is accepted, shall be authorized
to
perform the work called for therein
in the bid, and may
receive
payment
therefor for the work. A bid tendered by such the board
of
county
road commissioners shall not be accepted unless such the bid
shall
be is at least 15% lower than any other bid tendered. The
moneys
money received by the county road commission shall be
credited to the county road fund, and expenditures incurred by the
county
road commission shall be in
performing the work are proper
disbursements
therefrom from the fund.