Michigan Association of County Drain Commissioners Notices and the 5 W’s: Who, What, When, Where and WHHHHYYYY? Doug Kelly & Lauren Burton Clark Hill PLC July 17, 2019 macdc.us

WARM UP QUESTION Why do we care about notice? The Michigan Drain Code, Public Act 40 of 1956, as amended, contains notice requirements for certain public meetings and special assessment proceedings. Failure to provide certain notices implicates due process. Notices help to achieve governmental transparency. All of the above. macdc.us

ANSWER Correct Answer: D The Drain Code contains the word “notice” over 400 times. Certain notices are required throughout the Drain Code for petitioned proceedings and special assessment proceedings. The Michigan Supreme Court held that the failure to provide notice of special assessment proceedings deprives property owners of their constitutional due process rights. (Elba v Gratiot County Drain Commissioner) Notice provides property owners and municipalities the opportunity to participate in certain drain proceedings and better understand the role and responsibilities of the Drain Commissioner. macdc.us

QUESTION #1 I received a petition from Trash-Cat Township to abandon the Jackson Drain. I’m told I need to hold a hearing before I issue my order to abandon. What do I need to do? Post notice of the hearing in 5 public places in the Jackson Drain Drainage District at least 10 days prior. Mail notice of the hearing to all property owners and municipalities within the Jackson Drain Drainage District at least 10 days prior. Au contraire. A petition to abandon must be signed by at least 5 property owners. A and B. macdc.us

ANSWER #1 Correct Answer: A Section 391: “Any 5 freeholders of lands in a drainage district or the governing body of any public corporation in whose limits a drain or part thereof is located may petition for the abandonment and vacation of a drain or part thereof… The commissioner or drainage board shall hold a meeting to hear objections to the petition and to the abandonment and vacation of a drain or part thereof therein requested, and shall give notice of such meeting by posting in 5 public places in the drainage district and by publication in a newspaper of general circulation in the drainage district which posting and publication shall occur at least 10 days before the date of such meeting.” macdc.us

QUESTION #2 I’m holding a day of review of drainage district boundaries for the Jackson Drain next month and looking to save costs. What can I skip out on? Notice to the Road Commission. The second publication. No one really reads the paper anymore (RIP newspapers). Both of the above. None of the above. macdc.us

ANSWER #2 Correct Answer: C Section 197(6): “This notice shall be sent by first-class mail at least 10 days before the date of the review to each city, village, and township in the revised district, and each person whose name appears on the last city or township tax assessment roll as owning lands within the revised drainage district, at the address shown on the roll…. The drain commissioner or chairperson of the drainage board shall also cause the notice to be published once in a newspaper of general circulation in the county or counties in which the drainage district is located at least 10 days before the review.” macdc.us

QUESTION #3 Farmer Rog relocated the drain on his property and granted the Drainage District a new easement. I’m on my way to the Register of Deeds office to record a release of the old easement back since it’s no longer necessary. Cool? Cool, bruh. Wait a sec. You need to provide 10 days notice by publishing twice in the newspaper (the first publication at least 10 days prior). Hold up. You need to provide 30 days notice by publishing once in the newspaper. Not so fast. You need to provide 10 days notice by posting in 5 places within the Drainage District. macdc.us

ANSWER #3 Correct Answer: C Section 6: “The drain commissioner or drainage board shall give at least 30 days’ notice of the intention to release the excess easements by publishing a notice in a newspaper of general circulation in the county or a newspaper of general circulation where the drainage district boundaries are located.” macdc.us

QUESTION #4 I’ve got a maintenance project coming up where we are going to cut trees along the drain. I don’t need to provide notice of this since it is not a petitioned project, right? Roger that. Wrong. Before any tree removal, you must provide notice of expected entry by first class mail at least 7 days prior. Wrong. Before any tree removal, you must provide notice of expected entry by knocking on the property owner’s door and screaming that you’ve got a chainsaw and you’re ready to use it. Wrong. Before any tree removal, you must provide notice of expected entry by publication once in the local newspaper. macdc.us

ANSWER #4 Correct Answer: B Section 201: “At least 7 days before entering property for any excavation or tree removal to be performed … the drain commissioner or drainage board shall mail notice of the expected entry by first-class mail to the property owner.” macdc.us

QUESTION #5 I’m ready to bid my project and hold the day of review of apportionments. This notice seems like it is always 20 pages long, so what can I leave out? Minutes of survey or a table of cuttings 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 Date, time and place of receiving bids The location, number, type, and size of all culverts and bridges macdc.us

ANSWER #5 Correct Answer: A Section 154(6): “The notice [...] need not contain minutes of survey or a table of cuttings. These shall be kept on file in the office of the drain commissioner.” macdc.us

QUESTION #6 Great. Now my notice of letting and day of review of apportionments is down to 19 pages. Aside from publishing in the paper (twice) and mailing to property owners, who do I need to provide this thesis to again? Township Clerk Road Commission Board Member City Mayor Village President macdc.us

ANSWER #6 Correct Answer: B Section 154(4): “The notice [...] shall be personally served on the county clerk and a member of the board of county road commissioners of the county and on the supervisor of each township and clerk of each city or village to be assessed at large.” macdc.us

QUESTION #7 Uh oh. Ten property owners just filed an application to lay out and designate an INTERCOUNTY drainage district. Brady wants me to send out a notice of a drainage board meeting. What do I need to do? Send a copy to the Township Supervisor by personal service or certified mail. Publication once in the local newspaper at least 10 days prior. Maybe next time, Brady. An application to lay out and designate an intercounty drainage district requires way more than 10 signatures – try “a number of freeholders in the drainage district whose lands would be liable to an assessment for benefits, equal to 50% of any of the freeholders whose lands would be traversed by the drain or drains applied for or that abut on any highway or street along the side of which the drain extends, between a point where the drain enters the highway and the point where it leaves the highway and which lands are within the drainage district.” Duh. Post in 5 public places in my county. macdc.us

ANSWER #7 Correct Answer: A Section 102(2): “A notice of the meeting shall be served by the respective drain commissioner on the county clerk and a member of the board of county road commissioners of each county and the supervisor of each township and clerk of each city and village within the proposed drainage district personally or by certified mail at least 10 days before the public meeting. A notice of the meeting shall be published in each county in which lands liable for assessments for the drain are located once a week for 2 consecutive weeks before the meeting in a newspaper of general circulation in the county, if there is such a newspaper. The first publication shall be at least 10 days before the meeting.” macdc.us

QUESTION #8 It’s Chapter 8 Board of Determination time! Yay! What do I do with this notice again?? Publish once; serve county clerk, road commission member, township supervisor, city mayor, village president by personal service or certified mail; mail, via 1st class mail to property owners within the drainage district; post pursuant to the Open Meetings Act. Publish once; serve county clerk, road commission member, township supervisor, city clerk, village clerk by personal service or certified mail; mail, via 1st class mail to property owners within the drainage district; post pursuant to the Open Meetings Act. Post the notice in conspicuous places along the route and course of the drain. Publish twice; serve county clerk, road commission member, township supervisor, city clerk, village clerk by personal service or certified mail; mail, via 1st class mail to property owners within the drainage district; post pursuant to the Open Meetings Act. macdc.us

ANSWER #8 Correct Answer: B Section 72: “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, 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 all of the following means: (a) Publication in a newspaper of general circulation in the county. (b) Service on the county clerk and 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 certified mail. (c) Service by first-class mail on each person whose name appears on the last city, village, or township tax roll as owning land within the drainage district, at the address shown on the roll.” macdc.us

QUESTION #9 I’m only consolidating the Lauren Drain and the Jackson Drain (to be known as the Lauren and Jackson Drain) under Chapter 19 at this Board of Determination, who don’t I need to serve with notice? Township Supervisor Village Clerk Road Commission Board Member You don’t need to serve any of the above macdc.us

ANSWER #9 Correct Answer: D Section 441(2): “The drain commissioner shall give notice of the time, date, and place of the meeting in the manner prescribed by Act No. 267 of the Public Acts of 1976 and by publication twice in a newspaper of general circulation in the county or a newspaper of general circulation in the proposed consolidated drainage district, the first publication of which shall be at least 10 days before the meeting. Notices shall also be served on the county clerk and the clerk of each township or city in the proposed consolidated drainage district, personally or by registered mail at least 10 days before the meeting. 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 on the last city or township tax assessment roll as owning land within the existing drainage districts, a portion of which is proposed to be consolidated, or owning lands within the proposed consolidated drainage district whose land is not within an existing drainage district, at the address shown on the roll.” macdc.us

QUESTION #10 Five property owners traversed by the “Old Maid Drain” filed a petition to change the name to “Spinster Drain”, and I think it’s a fabulous idea, so I ordered the name to be changed. Do I have to provide notice of the name change? No, simply change the account in BS&A and call it a day. Yes, and you must publish notice once in the local newspaper. Yes, and you must post notice only at the local cat adoption facility or brothel. Depends. You can post notices along the drain as you deem worthwhile. macdc.us

ANSWER #10 Correct Answer: D Section 54: “The drain commissioner shall forthwith post such signs upon the drain as he [or she] may deem advisable for public notice of the new name or number.” macdc.us

BONUS QUESTION You recently discovered that Mr. Jackson tore down his shed and tossed the remnants into the Dog Drain on his property, causing the Drain to back up on Trash Cat’s property. Can you intervene? No, this is a private drainage dispute between Mr. Jackson and Trash Cat. Yes, you can remove the shed from the Drain and charge the costs to Mr. Jackson, but you must first provide Mr. Jackson 5 days’ notice to remove the shed from the Drain. Yes, you can remove the shed from the Drain and charge the costs to Mr. Jackson, but you must first provide Mr. Jackson 10 days’ notice to remove the shed from the Drain. Yes, you can remove the shed from the Drain and charge the costs to Trash Cat, as the sole benefitting property owner. macdc.us

BONUS ANSWER Correct Answer: B Section 421: “The person causing such obstruction shall be liable for the expense attendant upon the removal thereof, together with the charges of the commissioner, and the same shall be a lien upon the lands of the party causing or permitting such obstruction, and all of the expense shall by the commissioner be reported to the board of supervisors, together with the report of his doings in the premises, and by said board ordered spread upon the land of the offending party, should the same remain unpaid: Provided, That the offending party causing such obstruction shall be given a notice in writing of at least 5 days to remove such obstruction.” macdc.us