MICHIGAN ASSOCIATION OF COUNTY DRAIN COMMISSIONERS Legislative Update VOLUME 9, ISSUE 1 W I N T E R 2 0 2 0 VOLUME 9, ISSUE 1 WINTER 2020 Appellate Court Decisions... I N S I D E T H I S Michigan Court of Appeals Rules ISSUE: City’s Water Fee Unconstitutional The Michigan Court of Appeals recently ruled that the City Ultimately, the court decided the stormwater service charge Appellate 1 of Harper Woods’ stormwater service charge was an uncon- was collecting more than needed for the actual project costs, stitutional tax because it was levied without voter approval. and that nonexempt residential properties had to pay assess- Court ments that were not proportional to services being provid- In 2014, The Michigan Department of Environmental Quality ed, or their costs. As a result, the court ruled that the Decisions mandated improvements to the Milk River Intercounty stormwater fee was a tax: “considering the totality of the Drain, with the City of Harper Woods responsible for ap- circumstances, the trial court did not err by concluding that proximately $17 million in attributed project costs. To pay the Storm Water Fee is not a valid user fee, but a tax that violates the Headlee Amendment.” 2 for its portion of the project, the city charged a stormwater In the fee under an ordinance it adopted in 1992 when the Milk Spotlight River Intercounty Drain required an earlier improvement. In 2017, the Plaintiff filed a class action in the Wayne County At the 2 Circuit Court alleging that the charge was a tax that violates the Headlee Amendment. The trial court agreed with the Capitol Plaintiff and ruled that the stormwater service charges were an unconstitutional tax. On appeal, the Court of Appeals upheld the trial court’s ruling that the city’s stormwater fee was an unconstitutional tax. 3 Misc. According to the Court of Appeals, the major issue was Matters whether the charges were fees or taxes. To decide this issue, the court examined many characteristics of the fee. Michigan Court of Appeals Decides Legislation 3 Lookout Easement Sufficient Ground Case In a recent unpublished Michigan Court of Appeals case, line of said drain for the construction thereof.” Daniel Stomber v. Sanilac County Drain Commission- Plaintiff argued that the drain commissioner was entitled er, trees that Plaintiff planted approximately twenty years under the easement to remove the trees within the ease- 4 previously along the southern portion of his property MACDC ment area, but not the trees outside the easement. The were removed as part of a drain maintenance project. The Mission & drain commissioner replied that the sufficient ground ease- trees were immediately to the north of a county drain that ment language allowed all trees to be removed if necessary Contact ran along the edge of Plaintiff’s for maintenance work. Information property, adjacent to the road. The Court of Appeals found that because the easement It was not disputed that one row explicitly includes “sufficient ground” for drain work and of the trees was inside the drain that if the maintenance work reasonably required it, the easement. Instead, the parties drain commissioner could utilize areas beyond the fifty feet disputed whether the second from the center-line of the drain that was specifically de- row of trees was within the scribed in the easement. Under the circumstances, the easement given the easement’s Court found that there was no clear error in the trial language “and also sufficient court’s finding that Plaintiff’s second row of trees was ground on either side of the center within the “reasonable maintenance area.” In the Spotlight... Michigan’s 64th Lieutenant Governor Garlin Gilchrist II Lieutenant Governor Garlin Gilchrist II, Michigan’s 64th Lieutenant Governor, started pub- lic speaking at the tender age of four at Dexter Avenue Baptist Church in Detroit, Michigan. Receiving his first computer when he was just five years old, Lt. Governor Gilchrist started learning to harness tech- nology to solve everyday problems. Fixing and building computers himself, he set up a computer lab in the community recreation center with computers that he built himself at age 16. He went on to study computer engineering and computer science at the University of Michigan, graduating with honors in 2005. Joining Microsoft in Seattle, Washington as a software engineer, Lt. Governor Gilchrist helped to build SharePoint into the fastest growing product in the company’s history. While in Seattle, he served as Social Media Manager for the 2008 Obama campaign where he helped to launch a national text message program to recruit volunteers. Later, he served as the first Director of New Media at the Center for Community Change in Washington, D.C.. He also served for three years as National Campaign Director at MoveOn.org, spearheading equity and justice campaigns, including fighting to expand Medicaid in states with Republican governors. Moving back home to his native Detroit, Lt. Governor Gilchrist became the first-ever Director of Innovation and Emerging Technology for the city of Detroit. In this position, he created an app for Detroiters to report problems they were facing every day, like broken fire hydrants, potholes, and broken street lights. Now, as a Lieutenant Gover- nor, he will have an opportunity to put his technology mindset and desire to solve problems to work in finding solu- tions to improve the lives of people across the great state of Michigan. Lt. Governor Gilchrist lives in Detroit with his wife, Ellen, six-year-old twins, Garlin III and Emily Grace (born on Garlin’s birthday in 2013), and one-year-old daughter, Ruby. At the Capitol... Senate Bill Seeks to Fund Michigan Geological Surveys State Senator Rick Outman (R-Belvidere Twp.) Senate Bill 403 has been recommended by the recently introduced a bill to fund future Michigan Senate Committee on Environmental Quality and geological survey work, especially surveys of awaits a vote by the entire Senate. groundwater contamination areas. More specifi- cally, Senate Bill 403 will amend MCL 324.60108 to appropriate three million dollars annually to the Michigan Geological Survey to conduct sur- veys of PFAS-contaminated areas and other areas the Michigan Department of Environment, Great Lakes, and Energy prioritizes. Further, these ap- propriated funds could be matched by federal programs such as the National Cooperative Geo- logic Mapping Program. Since its introduction, LEGISLATIVE UPDATE P A G E 2 Miscellaneous Matters... EGLE Eases the Permitting Process for Sandbags to Combat Shoreline Erosion The Michigan Department of Environment, Great Lakes, and Energy high water, the department has emphasized that sandbag projects are announced a new Minor Project category this past November that a temporary solution and will need to be removed eventually. For will make it easier for lakeshore property owners to secure permits long-term solutions, Property owners are encouraged to incorporate for temporary sandbag use to help protect homes and other critical more permanent designs into their properties, like physical barriers, infrastructure from high water levels. rocks, or potentially moving infrastructure away from the eroding coastline. Homeowners affect- ed by high water Interested Property owners who need more information or want to levels can secure obtain temporary project permits should visit EGLE’s MiWaters por- permits faster as the tal. In addition to increasing overtime for field staff to quickly process public notice period shoreline permits, EGLE has also made other resources available for is being suspended shoreline property owners: and the fees are being Michigan.gov/HighWater for the latest information, links to helpful reduced. While sand- topics, a list of contractors, and beginning the permitting process. bags are an effective Environmental Assistance Center 800.662.9278, available between solution to mitigate 8:30 a.m. and 4:30 p.m., Monday through Friday, with answers to erosion and keep out inquiries at [email protected]. Legislation Lookout... Update on Current Drain Code Legislation HB 5060: Maintenance Expenditure Limit Increase Representa- Proposed amendment: Financing Non-Petitioned Mainte- tives Garza, Eisen, Coleman, Kennedy, Hood, Brenda Carter, Bolden, nance Projects Rep Lowers is expected to introduce a bill that Sowerby, Brixie and Stone introduced HB 5060 on October 8, 2019. would allow Drain Commissioners to borrow for non-petitioned The bill proposes to increase the maintenance expenditure limit within maintenance costs and levy the assessments for a period of up to ten Section 196 of the Drain Code to $10,000 per mile or fraction of a years. mile in any one year, with the limitation on pre-assessments for MACDC anticipates introduction of this bill in February and referral to maintenance increased to $5,000 per mile annually. the House Committee on Local Government, where testimony is also HB 5060 has been referred to the House Committee on Local Gov- anticipated in February. MACDC supports this legislation. ernment where testimony is anticipated in February. MACDC sup- SB 185: Restrictions on Drain Maintenance On March 7, 2019, ports this legislation. Senator Jim Stamas introduced SB185 which proposes to greatly limit HB 5126: Day of Review Notices On October 17, 2019, Repre- the Drain Commissioners’ authority to perform drain maintenance. SB sentatives Steven Johnson, Sabo, Brann, Howell and Miller introduced 185 proposes amendments to Section 196 of the Drain Code that HB 5126 which proposes to amend Section 154 of the Drain Code by prohibit assessment-funded drain maintenance projects if 10% or more removing the requirement to mail or publish the notice of letting, the of the property owners within a proposed assessment district are description of the drainage district and project specifications. Instead, currently paying drain assessments for prior drain projects, unless the bill would require bid letting information to be posted on the emergency conditions exist.