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144166 - Township of Elba v Gratiot County Drain Commissioner

Township of Elba,
 
Elian E.H. Fichtner
 
Plaintiff-Appellee,
 
and
David L. Osborn, individually and as Trustee of the Osborn Trust, Mark Crumbaugh, Cloyd Cordray and Rita Cordray,
 
 
 
Intervening Plaintiffs- Appellees,
 
 
 
 
v
(Appeal from Ct of Appeals)
 
 
(Gratiot-Tahvonen, R.)
 
Gratiot County Drain Commissioner,
Defendant-Appellant.
Stacy Hissong

Summary

​This case involves the consolidation of 47 drain districts located in Gratiot County. The consolidation and maintenance project covers over 30,000 acres of land and over 80 miles of drain, and spans six townships and one village. The consolidated drain system is known as the No. 181 Consolidated Drain.

In March 2009, the Gratiot County Drain Commission received a petition signed by five freeholders from North Star Township. The petition sought the consolidation and maintenance of “181-0 Drain and all established tributary drains, located and established in the Township of Northstar, Washington & Elba, in the County of Gratiot, State of Michigan.” The petition added that “flooding and erosion problems are occurring and that the consolidation” and maintenance “of the drains is [sic] necessary and conducive to the public health and welfare of the North Star, Washington & Elba Townships.” The drain commission had earlier received similar petitions for the consolidation and maintenance of other drains in the No. 181 system.

A study concluded that maintenance and improvements to the No. 181 Drain would not be effective without work on its established tributary drains, and proposed consolidating those drains. A board of determination appointed by the drain commissioner held a public hearing on May 4, 2010, on the proposed project. Before the hearing, all the municipalities located within the No. 181-0 Drain Drainage District—the townships of Elba, Fulton, Hamilton, Newark, North Star, and Washington, and the Village of Ashley—were notified of the date and place of the meeting, and notice of the meeting was sent to individual property owners and published in the Gratiot County Herald. The notice stated that the hearing concerned “the drain in Drainage District No. 181-10 Wolf & Bear known as the #181-10 Wolf & Bear Drain … and all established tributary drains, located and established in the Township(s) of Elba, Sections 18 & 19, North Star Sections 25, 26, 27, 28, 29, 32 and 36, Washington, Sections 1, 12, 23 and 24, County of Gratiot, State of Michigan.” The notice referred to the “public health and welfare of Elba, North Star and Washington Township(s)” and “the protection of the public health of the following: Elba, North Star and Washington Township(s).” The notice added that “persons aggrieved” by the board of determination’s decisions “may seek judicial review in the Circuit Court for the County of Gratiot within ten (10) days of the determination.”

Following a presentation on the drain consolidation project, the board of determination approved the project and filed an order of necessity in the Drain Commissioner’s office. The order listed the “#181-10 drain and all established tributaries located and established in the Township(s) of Elba, Sections 18 & 19, North Star Sections 25, 26, 27, 28, 29, 32 and 36, Washington, Sections 1, 12, 23 and 24, County of Gratiot, State of Michigan.” In September 2010, the drain commissioner mailed notifications of at-large assessments to Elba, Fulton, Hamilton, Newark, North Star, and Washington Townships, and the Village of Ashley.

After the notices were mailed, the drain commissioner determined that it might be necessary to add more land to the drainage district, so the board of determination scheduled a hearing in November 2010 to address that issue. The hearing notice, which was sent to all municipalities and property owners in the district, included a list of the 47 drains consolidated at the May 4, 2010 hearing “known as the No. 181 Consolidated Drain in the Townships of Elba, Fulton, Hamilton, Newark, North Star and Washington. . . .”

On November 8, before the second hearing, Elba Township filed a complaint in circuit court against the drain commissioner, seeking a preliminary injunction to halt the consolidation project. The township argued that the drain commissioner was required to reject the #181-0 Drain petition because it had only five signatures; according to the township, MCL 280.441 requires that at least 50 freeholders sign a consolidation petition. Moreover, the notice of the May 4, 2010 hearing was deficient because it listed only some, not all, of the districts that the proposed consolidation affected, the township maintained. A group of individual property owners later joined the lawsuit as intervening plaintiffs. They also argued that the notice was deficient and did not give them notice that their properties were subject to the drain project. But the circuit court denied the request for preliminary injunction and ultimately dismissed the plaintiffs’ claims.

In a published opinion, the Court of Appeals reversed that decision, concluding that the March 2009 petition lacked the necessary number of signatures, so the consolidation proceedings were void. Michigan’s Drain Code provides that, “When a drain or portion thereof, which traverses lands wholly in 1 county … needs cleaning out” or other work, “any 5 or at least 50 percent of the freeholders if there are less than 5 freeholders whose lands shall 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 ….” MCL 280.191. That section of the Drain Code does not refer to consolidation, but another section, MCL 289.441, does, the Court of Appeals noted. That section provides that “[t]he petition shall be signed by at least 50 property owners within the proposed consolidated drainage district.” Another section, MCL 280.194, deals with petitions and proceedings for maintenance, improvements, and consolidation; that section provides “In any petition filed under this chapter it shall not be necessary for the petitioners to describe said drain other than by its name or to describe its commencement, general route and terminus. For any work necessary to be done in cleaning out, widening, deepening, straightening, consolidating, extending, relocating, tiling or relocating along a highway, . . . and for any and all such proceedings, only 1 petition and proceeding shall be necessary.” The Court of Appeals reasoned that these sections, read together, require 50 freeholder signatures if the combined petition seeks both drain improvements and consolidation of drainage districts, so the drain commissioner could not proceed on the five-signature petition.

The Court of Appeals also held that the May 2010 meeting notice was misleading because it did not identify all the townships and sections affected by the consolidation petition. The circuit court had concluded that those who received the hearing notice “were in a position where they understood ... that the action contemplated in the notice might result in an assessment against [their] property ….” The drain commissioner also argued that the notice actually provided more information to identify the affected areas than was required by law. But the Court of Appeals disagreed, concluding that a “person not living within the specific sections mentioned in the notice would not readily understand that the project would affect his or her property as well,” and that therefore such persons “would be unable to make a meaningful and informed decision regarding his or her rights.”

The appellate court did uphold the circuit court’s determination that it had equitable jurisdiction over the plaintiffs’ claims because the drain commissioner’s failure to comply with the signature requirement deprived him of jurisdiction to proceed on the original consolidation petition. Under the Drain Code (MCL 280.161), those who object to a drain commission’s determination have 10 days to file a petition of certiorari with the drain commissioner. The statute further provides: “If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and the taxes therefor legally levied, and the legality of said drain and the taxes therefor shall not thereafter be questioned in any suit at law or equity.”

The drain commissioner had argued that the plaintiffs should have been limited to their remedies under the certiorari procedure, but the Court of Appeals disagreed, finding that the circuit court properly exercised equitable jurisdiction over the case. “Although the Drain Commissioner argues that Elba Township and the Osborn plaintiffs complained of mere technical defects in the proceedings, this argument is unpersuasive,” the panel stated. “As discussed above, a petition for consolidation requires 50 signatures. Here, the #180-0 Drain petition only contained five signatures. This is not the type of error that the Drain Commissioner can correct. Without the requisite number of signatures attached to the #180-0 Drain petition, the Drain Commissioner had no authority or jurisdiction to act on the petition, and the proceedings establishing the No. 181 Consolidated Drainage District are void. Certiorari was not the only remedy under the Drain Code, and the circuit court properly exercised equitable jurisdiction.”

The drain commissioner appealed. In an order dated May 23, 2012, the Supreme Court granted leave to appeal, directing the parties to address “whether, as the Court of Appeals concluded, ‘[w]ithout the requisite number of signatures attached to the #180-0 Drain petition, the Drain Commissioner had no authority or jurisdiction to act on the petition, and the proceedings establishing the No. 181 Consolidated Drainage District are void,’ thus authorizing the circuit court to exercise equitable jurisdiction.”