HB-6376, As Passed Senate, December 19, 2018

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 6376

     A bill to amend 1956 PA 40, entitled

"The drain code of 1956,"

by amending sections 72, 105, 122, 123, 154, 247, and 307 (MCL

280.72, 280.105, 280.122, 280.123, 280.154, 280.247, and 280.307),

section 72 as amended by 1987 PA 60, section 154 as amended by 2010

PA 339, and section 307 as amended by 2016 PA 115.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 72. (1) As soon as practicable after the filing of a

petition, the 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 commissioner is disqualified

or chooses not to appoint the board of determination, the

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 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, unless he or she has a conflict of interest, 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 conflict of interest in

the proceedings, the drain committee of the county board of

commissioners shall appoint the board of determination. Members of

boards of determination shall be residents of the county but not of

a township, city, or village affected by the drain, and may shall

not be members of the county board of commissioners of the county.

     (2) A The drain commissioner shall call a meeting of the board

of determination shall be called at a convenient place within the

drainage district at a convenient place to be designated by the

drain commissioner. The board of determination meeting also may be

held or at a public building within the a city, village, or

township in which the drain is located. If 1 of those an individual

appointed to the board of determination fails or refuses to serve,

the drain commissioner shall appoint a successor. The per diem

compensation , and the mileage , and expenses expense

reimbursements of a member of the board of determination shall be

the same as the county board of commissioners of the county. In

counties where commissioners are not paid on a per diem basis, the

compensation , and the mileage , and expenses expense

reimbursements shall be fixed set 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. 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.

(3) (2) The drain commissioner shall give public notice of the

time, date, and place of the 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, and 1976 PA 267, MCL 15.261 to 15.275.

The commissioner shall also give such notice, not less than 10 days

before the meeting, by publication all of the following means:

     (a) Publication in a newspaper of general circulation in the

county. at least 10 days before the meeting. Notice also shall be

served

     (b) Service on the county clerk and on the clerk of each

township, city, and village a member of the board of county road

commissioners of the county and on the supervisor of each township

and clerk of each city and village in the drainage district,

personally or by registered certified mail. , at least 10 days

before the meeting. The drain commissioner also shall send notice,

     (c) Service by first class first-class mail , of the time,

date, and place of the meeting, to on 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 to 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 under this section. The

failure to receive a notice by mail shall is not constitute a

jurisdictional defect invalidating a drain proceeding or tax, or

both, drain assessment if notice has been was sent by first class

mail as provided in this section. subdivision.

     (4) Expenses All expenses of notification shall be paid by the

drainage district when created.

(5) (3) At the time and place fixed specified in the notice,

the board of determination shall meet, elect a chairperson and

secretary, and, proceed to after considering the evidence offered,

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

drain is not necessary and conducive to public health, convenience,

or welfare, the board of determination shall file with the

commissioner an order dismissing the petition, and a further

petition for the drain shall not be entertained filed within 1 year

after the determination. If the board of determination finds, by a

majority vote, finds that the proposed drain proposed to be is

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. 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 townships, the order shall set

forth the determination giving the names of the municipalities

receiving benefit for health. If the board of determination

determines that the whole cost, except that to be levied against

state or county highways for highway benefits, is necessary for the

public health, the cost shall be levied against the townships,

villages, and cities at large, and it shall 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, Not more than 10 days

after the board of determination files an order finding the

proposed drain to be necessary and conducive to the public health,

convenience, or welfare, the drain commissioner , within 10 days of

filing, shall determine the cities, townships, and villages within

the drainage district benefiting from the drain for public health

and shall notify each municipality such city, township, and village

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 20 days

after receipt of the notification by registered mail from the drain

commissioner, may appeal the order of the board of determination to

the probate court having jurisdiction in the county in which the

township, city, or village is located. Upon Within 20 days after

the commissioner's receipt of the order of the board of

determination, and if an appeal has not been taken by a

municipality to the probate court, the commissioner, after 20 days,

under section 72a, the drain commissioner shall make his or her a

first order of determination in writing, giving the name or number

of the drainage district . The commissioner shall establish the

commencement, and a general description of the route, terminus, and

type of construction of the drain. , a copy of which order he or

she shall file, within 15 days, the drain commissioner shall file 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.

Sec. 105. (1) The chairman of the After considering the

recommendations of the surveyor or engineer under section 104, the

drainage board shall thereupon prepare an order designating a

drainage district, giving it a determine all of the following:

     (a) A designation for the drainage district, by name or

number. and describe therein

     (b) A description of the drainage district, which shall

comprise all the land that would be benefited by and liable for

assessments for the construction of the drain. The drainage

district may be described by either of the following methods:

     (i) By its boundaries of streets and highways or tracts or

parcels of land. or by

     (ii) By a description of all land included in the drainage

district, by tracts or parcels of land, included therein and the

counties, townships, cities, villages, and or state trunk line

highways including therein all highways, townships, counties,

cities and villages, which would be benefited by the construction

of such drain and would be liable to an assessment therefor; also a

of which the district is comprised.

     (c) A description of the drain according to the plans and

specifications prepared by the surveyor or engineer and determined

by the drainage board, showing the beginning, route, terminus, type

of construction and the estimated cost of the construction.

Notice of filing of the order shall be given by the state director

of agriculture by publishing a notice

     (d) The percentage of the cost for laying out a drainage

district tentatively apportioned to each county in which any part

of the drainage district is located, subject to redetermination

under section 123. If a member of the drainage board would be

disqualified under sections 381 and 383 from making an

apportionment of benefits, both of the following apply:

     (i) The drainage board member is disqualified from

participation in the determination of tentative apportionments.

     (ii) A special commissioner shall be appointed pursuant to

section 382 to serve as a member of the drainage board to determine

tentative apportionments.

     (2) The chairperson of the drainage board shall prepare and

execute an order designating an intercounty drainage district as

determined by the drainage board under subsection (1). Within 10

days after the order is executed, the chairperson of the drainage

board shall file a copy of the order in the office of the county

drain commissioner of each county in which any part of the district

is located. The drainage board shall publish notice of the filing

of the order in a newspaper of general circulation in each such

county, affected, once in each week for 2 successive weeks. , which

The notice shall give a general description of the route of the

drain and of the drainage district as shown by the order. A copy of

the order shall within 10 days be filed by the state director of

agriculture in the office of the county drain commissioner of each

county in which lie lands included in the district.

     At any time after the order designating an intercounty

drainage district, giving it a name or number, has been filed in

the offices of the county drain commissioners of the counties

within the district, the order may be amended as to the name or

number of the drain by a written request of a

     (3) The drain commissioner of 1 of the counties a county

traversed by the drain , which may request in writing that the name

or number of a drain as designated in an order filed under

subsection (2) be changed. The request shall state the then present

name or number of the drain and the change to be made in the name

or number. Upon filing of the request, the The drain commissioner

shall file the request in his or her office and mail a copy of the

request , to the state director of the department of agriculture

and rural development and also to the drain commissioner of each

county in which lie lands liable for assessments for the drain. The

state any part of the drainage district is located. The director of

the department of agriculture and rural development or the

director's designee shall call a meeting of the drainage board. and

if, in the opinion of the drainage board, it is found advisable to

change The drainage board may file an order changing the name or

number of the drain. , they shall file an order designating such

change. The drainage board shall also designate the number of signs

to be posted may also order the posting of signs upon the drain as

they may deem advisable for public notice of the new name or

number. Copies of the order changing the name or number of the

drain shall be filed with the drain commissioner and the county

treasurer of each county liable for assessments of such drain.in

which any part of the drainage district is located.

     (4) If the commissioners of the counties affected drainage

board cannot agree as to the apportionment of costs for laying out

a drainage district, the director of agriculture or any deputy

appointed by him chairperson shall apportion the costs and the

counties affected shall pay the same costs as provided in section

302. of this act.

     Sec. 122. (1) Upon filing of Within 20 days after a petition

to locate, establish, and construct an intercounty drain the

commissioner receiving the petition, within 20 days, is filed under

section 121, the drain commissioner shall notify by registered

certified mail the drain commissioners interested commissioner for

each county in which any part of the drainage district is located

and the director of the department of agriculture , who and rural

development. The chairperson shall call a meeting of the drainage

board within the time set forth in section 102.

     (2) The commissioners and the director of the department of

agriculture, or the director's deputy, who constitute the drainage

board shall jointly take all steps and perform all acts and sign

all papers as commissioners are required to do singly in the case

of other drains, drainage board has the same powers and duties as a

drain commissioner with respect to a county drain, except as

otherwise provided in this act.

     (3) At a meeting of the drainage board, the director of the

department of agriculture, or the director's deputy, chairperson

shall not vote, except that the director or the director's deputy

chairperson may cast the deciding vote in case of a tie. Notice

shall be given of

     (4) Not less than 10 days before the meeting, the drainage

board shall give notice of the time, date, and place of the meeting

by publication all of the following means:

     (a) Publication in a newspaper of general circulation in the

county at least 10 days before the meeting. Notices shall also be

served drainage district.

     (b) Service, personally or by registered certified mail, at

least 10 days before the meeting on the county clerk and a member

of the board of county road commissioners of each county and on the

clerk supervisor of each township , and clerk of each city , and

village in the drainage district. The drain commissioner also shall

send notice by first class mail of the time, date, and place of the

meeting, not less than 10 days before the date of the meeting, to

     (c) Service, by first-class mail on each person whose name

appears upon on the last city or township tax assessment roll as

owning land liable to assessment for benefits, in the 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 to all of the persons whose names and addresses

appear upon the tax rolls as owning land liable to assessment for

benefits. in the drainage district. The affidavit shall be is

conclusive proof that notice was mailed to each person to whom

notice is required to be mailed by under this section. subdivision.

The failure to receive a notice by mail shall is not constitute a

jurisdictional defect invalidating a drain proceeding or tax, or

both, drain assessment if notice has been was sent by first class

mail as provided in this section.

     (5) All expense expenses of notification shall be paid by the

drainage district when created.

     (6) The drainage board shall act as the board of determination

and shall determine by majority vote the necessity of drains

proposed to be located, established, and constructed under this

chapter.

     (7) The drainage board shall consider the petition and

evidence offered, and if it is determined that the drain is

necessary for the good of the public health, convenience, or

welfare, it shall proceed to determine the percentage of the whole

cost of construction which each county shall bear, and determine

the number of installments in which the drain taxes shall be

collected. If commissioners cannot agree on the apportionment

between counties or the number of installments, the chairperson

shall determine the apportionment or the number of installments. An

order shall be prepared, make an order to that effect and file the

order with the drainage board. If the drainage board determines

that the drain is not necessary and conducive to the public health,

convenience, or welfare, the drainage board shall file an order

dismissing the petition, and further petition for the drain shall

not be filed within 1 year after the determination. Not more than

10 days after the drainage board files an order finding the

proposed drain is necessary and conducive to the public health,

convenience, or welfare, the drainage board shall determine the

cities, townships, and villages within the drainage district

benefiting from the drain for public health and shall notify each

such city, village, and township that is liable to pay a percentage

of the cost of the construction of the drain by reason of benefits

at large for public health. Within 20 days after an order

determining that the drain is necessary is filed, if an appeal has

not been taken under section 122a, the drainage board shall make a

further order, signed by the chairperson, to be known as the first

order of determination. , showing the determination of necessity,

determination of percentages, and determination of number of

installments, and a The first order of determination shall give the

name or number of the drainage district and a general description

of the route, terminus, and type of construction of the drain. A

copy of the order shall be filed in the office of the county drain

commissioner of each county into which any part of the drainage

district extends. The drainage board shall be the board of

determination and shall determine the question of necessity for

drains located, established, and constructed under this chapter. If

the drainage board cannot agree unanimously on the apportionment

between counties, the matter shall be submitted to the board of

arbitration in the manner prescribed in section 106 and that

board's decision shall be final.is located.

     (8) If a member of the drainage board would be disqualified

under sections 381 and 383 from making an apportionment of

benefits, both of the following apply:

     (a) The disqualified drainage board member shall not

participate in the determination of necessity.

     (b) A special commissioner shall be appointed pursuant to

section 382 to serve as a member of the drainage board to determine

necessity.

     Sec. 123. (1) After securing releases of right of way as

herein provided, the necessary property rights or interests as

provided in this act, the drainage board shall determine the

percentage of the whole cost of the drain to be apportioned to each

county and shall include the determination in the final order of

determination. If the drain commissioners cannot agree unanimously

on the apportionment between counties, the chairperson shall

propose the apportionment. If the drainage board cannot agree

unanimously on the apportionment of benefits proposed by the

chairperson, the matter shall be submitted to the board of

arbitration in the manner prescribed in section 106 and that

board's decision is final.

     (2) After the apportionment of benefits is made under

subsection (1), the commissioner of each county affected in which

any part of the drainage district is located, unless disqualified

under section 381, shall apportion the benefits for the

construction of such the drain to each tract or parcel of land, to

any county, township, city, or village, and to any state trunk line

highway within said the drainage district, in the manner provided

in chapter 7. , being sections 151 to 161, inclusive, of this act.

Such per cent The percentage so apportioned when finally approved

shall be assessed against such counties, townships, cities,

villages, highways, and lands according to such the apportionment

of benefits. , as herein provided. The apportionment of benefits so

made shall be is subject to review and correction and may be

appealed from as provided in said chapter 7.

     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 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. If the board of determination drain commissioner 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.

     (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, a member of the board of county road

commissioners of the county and on the supervisor of a each

township , the mayor of a city, and the president of a and clerk of

each city or 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.

     (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.

     (6) The notice under subsection (1) need not contain minutes

of 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,

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 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; 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, 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 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,

the 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 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. 247. (1) The county drain commissioner or drainage board

acting under the provisions of this act may employ an attorney when

he deems the same if the drain commissioner or drainage board, as

appropriate, considers it necessary. and any legal expense If an

attorney is employed, all attendant expenses and costs shall be

charged to the several drain drainage districts in on behalf of

which he shall be the attorney is employed. All such attendant

expenses and costs shall be paid out of the drain fund of the

drainage district or the revolving drain fund. which shall be

reimbursed out of the first moneys available: Provided, That the If

the attendant expenses and costs are paid out of the revolving

drain fund or if the drain fund of the drainage district does not

have sufficient funds to pay the attendant expenses and costs, the

attendant expenses and costs shall be assessed to the drainage

district in the same proportion as costs of the drain were assessed

as provided in chapter 7 and the collections of these assessments

shall be used either to reimburse the revolving drain fund or to

pay the attendant expenses and costs, as appropriate.

     (2) The county board of supervisors commissioners for a

county, by resolution, may cause provide for the prosecuting

attorney to give such legal assistance to the county drain

commissioner as part of his the prosecuting attorney's duties.

     (3) As used in this section, "attendant expenses and costs"

means those expenses and costs incurred for a drainage district in

furtherance of the duties and responsibilities of a drain

commissioner or drainage board, including, but not limited to, 1 or

more of the following:

     (a) Actual attorney fees.

     (b) Expert witness and consultant fees.

     (c) Money and costs expended in connection with litigation or

the threat of litigation.

     (d) Payments made in satisfaction or partial satisfaction of

any orders or judgments entered against a drainage district.

     (e) Money and costs expended to obtain a release, waiver, or

other settlement of claims.

     Sec. 307. (1) If The drainage board shall apportion the cost

between counties if revolving fund money has been expended or a

drainage district is obligated to pay expenses for engineering,

legal, or administrative services or to pay principal and interest

on notes and if an any of the following apply:

     (a) An improvement has not been completed within the latest of

the following:

     (i) 5 years after the date of the drainage board's order

designating an intercounty drainage district under section 105. ,

     (ii) 5 years after the entry of the first order of

determination under section 122. , or

     (iii) 2 years after the filing of a petition, if a petition

has been filed and ordered abandoned. , whichever is later, the

drainage board shall apportion the cost as between counties.

     (b) A petition to locate, establish, and construct an

intercounty drain is not filed within 2 years after the date of the

drainage board's order designating an intercounty drainage

district.

     (2) If requested by a drain commissioner feeling aggrieved by

the apportionment, the board of review shall review the

apportionment under section 106. The decisions of the board of

review are final. Thereafter the The amount apportioned to each

county by the board of review shall be recovered by the county as

provided in section 306. for the recovery of expended revolving

fund money or indebtedness for which a drainage district is

obligated.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.