Jackson Drain Comm'R v. Stockbridge

• Decision Date: 19 January 2006
• Docket Number: Docket No. 258008.
• Parties: JACKSON County DRAIN COMMISSIONER, Henrietta Township, Tompkins Township, Leoni Township, Rives Township, Waterloo Township, Jerry Runciman, Glenna Runciman, Gary Baldwin, Linda Baldwin, Judy Faye, Thomas Back, Elma Back, Shawn Fitzpatrick, Terry Fitzpatrick, Robert Hannewald, Lewis Wild, Margaret Wild, Marvin Everly, Norma Everly, Richards Eaden, Leean Burmingham, Dean Katz, Marilyn Katz, Jamie Batdorff, Cheryl Batdorff, and Gerald Kot, Plaintiffs-Appellants, v. VILLAGE OF STOCKBRIDGE, Grand River Intercounty Drainage Board, Ingham County Drain Commissioner, and Jacobs Lake Drain District, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

717 N.W.2d 391

270 Mich. App. 273

JACKSON County DRAIN COMMISSIONER, Henrietta Township, Tompkins Township, Leoni Township, Rives Township, Waterloo Township, Jerry Runciman, Glenna Runciman, Gary Baldwin, Linda Baldwin, Judy Faye, Thomas Back, Elma Back, Shawn Fitzpatrick, Terry Fitzpatrick, Robert Hannewald, Lewis Wild, Margaret Wild, Marvin Everly, Norma Everly, Richards Eaden, Leean Burmingham, Dean Katz, Marilyn Katz, Jamie Batdorff, Cheryl Batdorff, and Gerald Kot, Plaintiffs-Appellants, v. VILLAGE OF STOCKBRIDGE, Grand River Intercounty Drainage Board, Ingham County Drain Commissioner, and Jacobs Lake Drain District, Defendants-Appellees.

Docket No. 258008.

Court of Appeals of Michigan.

Submitted January 10, 2006, at Grand Rapids.

Decided January 19, 2006.

Approved for publication March 16, 2006, at 9:00 a.m.

Released for Publication May 24, 2006.

COPYRIGHT MATERIAL OMITTED

Mika Meyers Beckett & Jones PLC (by Douglas A. Donnell and Ronald M. Redick), Grand Rapids, for the Jackson County Drain Commissioner and others.

Foster, Swift, Collins & Smith, P.C. (by Stephen O. Schultz and Kirsten M. McNelly), Lansing, for the village of Stockbridge.

Hubbard, Fox, Thomas, White & Bengston, P.C. (by Geoffrey H. Seidlein and Stacy L. Hissong), Lansing, for the Grand River Intercounty Drainage Board, the Ingham County Drain Commissioner, and the Jacobs Lake Drain District.

Before: OWENS, P.J., and SAAD and FORT HOOD, JJ.

PER CURIAM.

Plaintiffs appeal as of right an order granting summary disposition pursuant to MCR 2.116(C)(8) to defendants. This case arose when the village of Stockbridge contracted with the Ingham County Drain Commissioner to discharge its excess wastewater into the Jacobs Lake Drain, which flows through the Wild River and Portage River drains and ultimately the Grand River Drain. We affirm.

The Wild River, the Portage River, and the Grand River intercounty drains all flow through Jackson County. The Jacobs Lake Drain is located entirely in Ingham County. The village, which is also located in Ingham County, is outside any of the previously mentioned intercounty drainage districts. Plaintiff Geoffrey Snyder, the Jackson County Drain Commissioner, testified that flooding had historically occurred along all three drains before he was first elected in 1976, and that the flooding had worsened every year since. He admitted that no assessments had been levied since 1918, and that maintenance had not been performed on the drains during the time he had been in office. One of the landowners along the drain testified that one of his parcels flooded seven out of ten springs. He stated that he used to farm other properties along the drain, but abandoned them when he could not harvest a crop as a result of the flooding. He also said he had observed frequent flooding on others' properties. Another landowner along the drain testified that a couple of times a year—usually after a heavy rain— the Wild River Drain would back up, and the tributaries would overflow their banks.

According to Richard Grant, Jr., a professional engineer hired by the village, the village had historically disposed of its treated effluent by spraying it over crop fields. When the village began having trouble with its existing system's ability to accept new flow, it hired Grant's firm to explore other discharge alternatives. The firm investigated several alternatives, including discharge into the Huron Lake Drain and Snyder's proposal. The firm recommended continuing to dispose of the wastewater by spray irrigation during the warm months and discharge into the Jacobs Lake Drain during cold weather. After five public meetings and hearings before the Department of Environmental Quality (DEQ), with Snyder participating in at least one of the five, the DEQ issued a finding of no significant impact, the project plan was approved, and funding was received. Although Snyder claimed he objected to the proposed plan, he acknowledged that he did not formally appeal the DEQ's finding of no significant impact. He wrote the village a letter on October 6, 2002, advising the village that it needed to add its lands to the intercounty drainage district pursuant to MCL 280.433. The DEQ issued the village a discharge permit on June 17, 2003.

On September 3, 2003, the village and the Ingham County Drain Commissioner entered into an agreement that allowed the village to discharge into the Jacobs Lake Drain. The village agreed to pay the Jacobs Lake Drain a one-time tie-in fee of $30,000 and annual maintenance fees of $1,500. It further agreed it would not discharge at a rate of more than three cubic feet a second and would not discharge when the Jacobs Lake Drain was at 90 percent capacity. The commissioner reserved the right to temporarily suspend the village's discharge when, in his discretion, he determined that an emergency situation existed. The agreement contained no specific provisions for downstream flooding or payments to the various intercounty drains.

On October 16, 2003, the Grand River Intercounty Drainage Board voted two to one that a permit pursuant to MCL 280.433 was not required, and voted two to one to not require any other type of permit from the village. On October 24, 2003, plaintiffs filed a complaint seeking superintending control, mandamus, and declaratory and injunctive relief. The village and the drain defendants filed respective motions for summary disposition pursuant to MCR 2.116(C)(8) and (10). Plaintiffs moved for summary disposition pursuant to MCR 2.116(C)(10) on counts I, IV, and VI of their amended complaint. The trial court granted defendants summary disposition pursuant to MCR 2.116(C)(8).

Plaintiffs essentially argue that the Jacobs Lake Drain, the Wild River Drain, the Portage River Drain, and the Grand River Drain all comprise a single intercounty drain, and that defendants were required to extend the intercounty drain pursuant to either MCL 280.511 et seq. or MCL 280.433 before the village could discharge into the Jacobs Lake Drain.¹ We disagree.

This Court reviews a trial court's grant of summary disposition pursuant to MCR 2.116(C)(10) de novo, Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003), to determine whether a genuine issue of material fact exists or whether one of the parties is entitled to judgment as a matter of law, Scalise v. Boy Scouts of America, 265 Mich.App. 1, 10, 692 N.W.2d 858 (2005). Summary disposition granted pursuant to MCR 2.116(C)(8) is also subject to review de novo to determine whether a claim is so clearly unenforceable as a matter of law that no factual development could justify recovery. Adair v. Michigan, 470 Mich. 105, 119, 680 N.W.2d 386 (2004), quoting Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999).

The specific language of MCL 280.433(1) refers to an agreement between the appropriate drain authority and a landowner. No mention is made of a municipality. Had the Legislature intended to include municipalities in this provision, it could easily have done so in a manner similar to MCL 280.71, which provides the procedure for freeholders to petition for a county drain, then provides a separate procedure for a municipality to petition for a drain. Moreover, the agreement referred to in MCL 280.433 is for the purpose of providing drainage service to lands. There is no indication in the instant case that the village intended to drain any lands. Therefore, MCL 280.433 is not applicable.

Instead, MCL 280.423 is the more applicable authority. MCL 280.423(6) requires a person to apply for and receive written approval and pay a fee before being allowed to connect sewage to a county or intercounty drain. MCL 280.423(1) provides certain standards the person must meet before discharging sewage and waste matter into the county or intercounty drain. One of these requirements is to obtain a discharge permit from the DEQ pursuant to MCL 324.3112, which the village did. Moreover, unlike MCL 280.433, MCL 280.423(11) specifically provides that a "person" includes a governmental entity.

Because plaintiffs were not challenging the DEQ discharge permit, to withstand summary disposition, they had to present sufficient evidence to raise a genuine issue of material fact concerning whether the proposed discharge was "capable of producing in the drain detrimental deposits, objectionable odor nuisance, injury to drainage conduits or structures, or capable of producing such pollution of the waters of the state receiving the flow from the drains as to injure livestock, destroy fish life, or be injurious to public health." MCL 280.423(1). "Detrimental" is defined as damaging or harmful. Random House Webster's College Dictionary (2001).

The discharge permit issued by the DEQ provided that "[t]he receiving water shall contain no unnatural turbidity, color, oil films, floating solids, foams, settleable solids, or deposits as a result of this discharge." It also proscribed the discharge of "solid or viscous pollutants in amounts which will cause obstruction to the flow in the sewerage system resulting in interference. . . ." It allowed a discharge of suspended solids from March 1 to April 30 of up to 100 milligrams a liter a day, not to exceed an average of 70 milligrams a liter a day, and a discharge of suspended solids from November 1 to December 31 and in February of up to 45 milligrams a liter a day, not to exceed an average of 40 milligrams a liter a day. A milligram equals 0.001 grams, there are 1,000 grams in a kilogram, and one kilogram is about the mass of one liter of water. Therefore, at the highest rate, the permitted discharge of total suspended solids was 0.01 percent of the total discharge.

Snyder testified that the village was authorized to discharge effluent at an average rate of 2.7 cubic feet a second. The design capacity for the Jacobs Lake Drain was 650 cubic feet a second. And the Jacobs Lake Drain contributed merely one to five percent of the total...