Brownstown Creek Drain Improvements Drainage Dist. v. City of Woodhaven
| Decision Date | 08 January 1982 |
| Docket Number | 52607,52608 and 52673,52605,Docket Nos. 52606 |
| Parties | BROWNSTOWN CREEK DRAIN IMPROVEMENTS DRAINAGE DISTRICT, a Body Corporate, Plaintiff-Appellee, v. CITY OF WOODHAVEN, City of Gibraltar, Township of Brownstown, Township of Huron, Michigan Municipal Corporations, Defendants-Appellants. BLAKELY DRAIN IMPROVEMENTS DRAINAGE DISTRICT, a Body Corporate, Plaintiff-Appellee, v. CITY OF WOODHAVEN, City of Gibraltar, City of Romulus, City of Southgate, Township of Brownstown, Township of Huron, Michigan Municipal Corporations, Defendants-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
Jeffrey A. Supowit, Detroit, for plaintiff-appellee.
Daniel J. Andrews, Dearborn, for defendant-appellant City of Woodhaven.
Kurt E. Riedel, Flat Rock, for defendant-appellant City of Gilbraltar.
Charles J. Lowther, Southfield, for defendant-appellant City of Romulus.
James A. Kandrevas, Southgate, for defendant-appellant City of Southgate.
William J. DeBiasi, P. C., Taylor, for defendant-appellant Township of Brownstown.
Richard G. James, Taylor, for defendant-appellant Township of Huron.
Before MAHER, P. J., and WALSH and RILEY, JJ.
Defendants appeal as of right from writs of mandamus issued by the trial court ordering defendants to levy assessments for engineering fees and administrative costs incurred as a result of two drainage projects. Although the drainage districts were separate and involved separate drainage areas, our statement of facts to follow applies to both drains.
The Blakely Drain and the Brownstown Creek Drain are major drains which cross the several communities involved in this litigation. In 1967, Brownstown Township and the City of Woodhaven petitioned the Wayne County Drain Commissioner for improvements in the two drains which involved widening and relocation, pursuant to the provisions of Chapter 20 of the Drain Code of 1956, M.C.L. Sec. 280.1 et seq.; M.S.A. Sec. 11.1001 et seq. Although these were separate drainage areas and, thus, treated as separate drainage districts, it was anticipated that both drains would be constructed at the same time.
The Blakely Drain Improvements Drainage District was established in March, 1967, with the cities of Trenton, Woodhaven, Gibralter, Riverview, Romulus, Southgate, and Taylor and the townships of Brownstown and Huron participating. Some units of government paid the first installment due under each district assessment roll in 1979 and are not involved in this appeal.
The Brownstown Creek Drain Improvements Drainage District was established in April, 1967, with the cities of Woodhaven and Gibralter and the townships of Brownstown and Huron participating.
Early in 1968, the two drainage boards contracted with Angelo J. Marino, a civil engineer, for the preparation of plans and specifications for the improvements to each drain. Thereafter, in 1969 and 1970, hearings were conducted for the purpose of apportioning the costs of the projects among the various communities. These hearings adjourned with several communities voicing objections to the apportionment of costs proposed. In 1971, Environmental Engineers, subcontractors to Marino, filed a notice of lien on each district, alleging Marino's failure to pay for services rendered, and terminated their services as of December, 1970.
In the succeeding 2 1/2 years, the engineers engaged in negotiations with the boards to settle the matter. In July, 1973, each district hired Consulting Engineers Associates, Inc., who provided a status report in December, 1974, which reported that plans for the Brownstown and Blakely drains were available to both districts in June of 1969 and that Marino had substantially completed his work. The consulting engineers concluded that any delay in beginning construction was not attributable to Marino but rather to the substantial cost of the project and other difficulties which had been encountered.
Soon thereafter, in mid 1975, each district contracted with another engineering firm, Canton Engineering Associates, Inc., to complete each project. The record indicates further that in November, 1976, the drainage boards and Marino reached agreement as to the value of the services rendered under the contract: $528,623.01 for the Blakely Drain and $245,818.50 for the Brownstown Creek Drain.
In March, 1978, Marino brought two suits, one against the drain commissioner and the drainage districts to enforce the agreement for payment of fees and costs, and a second suit to require that a final order be adopted and a special assessment roll be prepared and levied.
In the fall of 1978, while the Marino suits were pending, final apportionment orders were entered after hearing and notice in the two drainage districts. In December, 1978, each district adopted a special assessment roll assessing the total costs of each project against defendants, including the monies owed Marino. The defendant communities were assessed $310,000 for engineering fees and administrative costs for the Brownstown Creek Drain and $697,451 for the Blakely Drain. The assessments were payable in five annual installments, commencing April 1, 1979.
In January, 1979, the trial court entered an injunction in each of the Marino suits which substantially set forth the arrangements made at the hearing in December, 1978, and ordered the projects closed out after payment of fees, costs, and assessments levied in accordance with the final apportionment orders.
In March, 1979, each of the participating communities were notified of the due date for the first (of five) annual installments, i.e., April 1, 1979. In October, 1979, those communities which failed to make the first annual payments were ordered to show cause in the Marino suits. In January, 1980, the plaintiffs started these suits to compel defendants to levy the taxes and pay the assessments.
On March 7, 1980, after hearing arguments on defendants motions for accelerated and/or summary judgment, the trial court held that the districts each had the capacity to sue by virtue of the statute, even though the project was abandoned, that the defendants failed to make a timely objection as provided for in the statute, and, finally, that they failed to object to the apportionment orders by utilizing certiorari proceedings.
Three weeks later, the trial court held a hearing on the plaintiffs' complaints for writs of mandamus to require levying the assessment. The court concluded that, under the statute, defendants were obligated to pay for the expenses of the project and that they were obligated to pay for the engineering and other expenses incurred by the districts.
Before us, therefore, are defendants' consolidated appeals from the trial court's denial of their motions for accelerated judgment and their appeals from the court's grant of plaintiffs' motions for writs of mandamus.
We first must decide whether the defendant communities were barred from contesting the apportionments or levy of assessments by the statute of limitations set forth in the Drain Code of 1956.
M.C.L. Sec. 280.469; M.S.A. Sec. 11.1469 states:
The tentative apportionments were set by the drainage boards on June 14, 1978, for both districts. The minutes from the Brownstown Creek Drainage Board meeting on August 23, 1978, and the Blakely Drainage Board meeting on September 6, 1978, indicate that an affidavit of publication and notices of hearing were presented, thereon, for publication in various newspapers. Further proofs of service of notice by registered mail were presented, evidencing a mailing to all parties in interest.
Therefore, it is concluded that, pursuant to the statute, defendants received notice of the tentative apportionments. At the meetings of August 23, 1978, and September 6, 1978, there were no objections to the final apportionments.
M.C.L. Sec. 280.483; M.S.A. Sec. 11.1483 states:
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...were the same as they are now.71 Further, this Court reaffirmed these principlesin Emerick v. Saginaw Twp. and Blakely Drain Improvements Drainage Dist. v. City of Woodhaven.72 In Emerick, this Court interpreted a different provision of the Drain Code, MCL 280.483, which provides as follows......