Maple Grove Twp. v. Misteguay Creek Intercounty Drain Bd.

• Decision Date: 23 October 2012
• Docket Number: Docket No. 304965.
• Citation: 298 Mich.App. 200,828 N.W.2d 459
• Parties: MAPLE GROVE TOWNSHIP v. MISTEGUAY CREEK INTERCOUNTY DRAIN BOARD.
• Court: Court of Appeal of Michigan — District of US

298 Mich.App. 200

828 N.W.2d 459

MAPLE GROVE TOWNSHIP

v.MISTEGUAY CREEK INTERCOUNTY DRAIN BOARD.

Docket No. 304965.

Court of Appeals of Michigan.

Submitted Sept. 6, 2012, at Detroit.

Decided Sept. 18, 2012.

Approved for publication Oct. 23, 2012, at 9:15 a.m.

Bauckham, Sparks, Lohrstorfer, Thall & Seeber, P.C. (by John H. Bauckham and John K. Lohrstorfer), for Maple Grove Township, Hazelton Township, Venice Township, New Haven Township, and Caledonia Township.

The Hubbard Law Firm, P.C. (by Michael G. Woodworth and Michelle M. Brya), for the Misteguay Creek Intercounty Drain Board.

Before: MARK J. CAVANAGH, P.J., and SAAD and DONOFRIO, JJ.

PER CURIAM.

The plaintiffs townships of Maple Grove, Hazelton, Venice, New Haven, and Caledonia appeal as of right the trial court's order granting summary disposition for defendant, Misteguay Creek Intercounty Drain Board (the Drain Board), in this action involving the Drain Code, MCL 280.1 et seq. Because a petition filed by Albee Township was sufficient to confer jurisdiction on the Drain Board to conduct proceedings pursuant to the Drain Code, a second practicability hearing was not statutorily required, and a hearing regarding the proposed addition of land to the drainage district was not required to be held before a hearing to determine the necessity of the proposed drainage project, we affirm.

This case involves the Misteguay Creek Intercounty Drain, located in the counties of Shiawassee, Genesee, and Saginaw. On April 13, 2010, Saginaw County's Albee Township filed a petition seeking the “cleaning out, relocating, widening, deepening, straightening, tiling, extending or relocating along a highway, adding branches, and/or installing, maintaining or repairing structures or mechanical devices to the drain....” Following a June 3, 2010, practicability hearing pursuant to MCL 280.192, the Drain Board determined that the drain improvements were practical and entered an order of practicability. Thereafter, the Drain Board scheduled a necessity hearing to determine whether the improvements were “necessary for the good of the public health, convenience, or welfare” pursuant to MCL 280.122. Because of the large number of attendees at the April 14, 2011, necessity hearing and applicable fire marshall regulations, the hearing was suspended and an announcement was made that the hearing would be rescheduledto occur at a facility capable of accommodating the large crowd.

On May 2, 2011, before the necessity hearing was rescheduled, plaintiffs ¹ filed a complaint and petition for an order of superintending control over the Drain Board. In their complaint and petition, and their first amendment thereto, plaintiffs asserted that after the practicability hearing, the Drain Board sought to increase the size of the proposed drainage district and increase the estimated cost of the project from $2.5 million to $6.1 million plus additional costs for contingencies. Plaintiffs alleged that a second practicability hearing must be held regarding the larger, more costly project. Plaintiffs also alleged that the failure of the petition to satisfy the requisites of MCL 280.121 and MCL 280.192 to properly petition for the drainage project divested the Drain Board of jurisdiction over the project.

In response, the Drain Board filed a motion for summary disposition pursuant to MCR 2.116(C)(5), (8), and (10). With respect to subrule (C)(5), the Drain Board argued that plaintiffs lacked standing to assert claims on behalf of individuals who were not parties to the action. Regarding subrules (C)(8) and (10), the Drain Board argued that the practicability hearing appropriately focused on whether the petition and proposed improvements were practicable and that the issue whether to add lands to a drainage district was not to be addressed unless and until a determination of practicability was made. Thus, the Drain Board contended that only one practicability hearing was required and necessary. The Drain Board also asserted that Albee Township's petition was sufficient to allow the Drain Board to proceed because MCL 280.192 permits a sole township to petition for maintenance and improvements to an intercounty drain. The trial court agreed and granted the Drain Board's motion.

We review de novo a trial court's decision on a motion for summary disposition. Oliver v. Smith, 290 Mich.App. 678, 683, 810 N.W.2d 57 (2010). A motion under “MCR 2.116(C)(8) tests the legal sufficiency of the claim on the pleadings alone to determine whether the plaintiff has stated a claim on which relief may be granted.” Spiek v. Dep't of Transp., 456 Mich. 331, 337, 572 N.W.2d 201 (1998). Summary disposition under subrule (C)(8) is appropriate “if no factual development could justify the plaintiff's claim for relief.” Id. A motion for summary disposition under MCR 2.116(C)(10) “tests the factual support of a plaintiffs' claim.” Id. In reviewing a motion under subrule (C)(10), we consider “the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh v. Taylor, 263 Mich.App. 618, 621, 689 N.W.2d 506 (2004).²

Plaintiffs first argue that Albee Township's petition was insufficient to confer jurisdiction on the Drain Board because it failed to comply with the requirements of several Drain Code statutes. We review de novo as a question of law an issue involving statutory interpretation. Johnson v. QFD, Inc., 292 Mich.App. 359, 364, 807 N.W.2d 719 (2011). “When interpreting a statute, this Court's goal is to ascertain and give effect to the intent of the Legislature by enforcing plain language as it is written.” Detroit v. Detroit Plaza Ltd. Partnership, 273 Mich.App. 260, 276, 730 N.W.2d 523 (2006). When statutory language is clear and unambiguous, courts must apply the plain language to the circumstances of the case, and judicial construction is unnecessary. Dep't of Transp. v. Tomkins, 481 Mich. 184, 191, 749 N.W.2d 716 (2008). Courts should avoid an interpretation that would render any part of a statute surplusage or nugatory and must give effect to every word and phrase in a statute. Dep't of Environmental Quality v. Worth Twp., 491 Mich. 227, 238, 814 N.W.2d 646 (2012).

Plaintiffs contend that Albee Township's petition failed to comply with MCL 280.121, which provides, in relevant part:

After an intercounty drainage district has been established and the order therefor filed as hereinbefore provided, a petition to locate, establish and construct a drain may be filed with any commissioner having jurisdiction of any of the lands designated in such order as constituting the drainage district. Such petition shall ask for the location, establishment and construction of the drain or drains, or any part thereof, as described in said order. The petition shall be signed by a number of freeholders in said drainage district, whose lands would be liable to an assessment for benefits, equal to 1/2 of the number of freeholders whose lands would be traversed by the drain or drains applied for, or abut on the part of any highway or street along the side of which such drain extends, between the point where such drain enters such highway and the point where it leaves such highway and which lands are within the drainage district. Such petition shall be accompanied by a description of the land in said district owned by each signer and by a certificate of the county treasurer as to payment of taxes and special assessments against such lands....

Plaintiffs argue that Albee Township's petition failed to comply with MCL 280.121 because it was not signed by any freeholders in the drainage district as required under the statute. The Drain Board correctly argues, however, that MCL 280.121 is inapplicable because it pertains to new drains rather than to preexisting drains. The statute explicitly applies to “a petition to locate, establish and construct a drain....” The petition filed in this case was not a petition to locate, establish, or construct a drain. Rather, it was a petition seeking the maintenance and improvement of an established drain. Thus, MCL 280.121 is inapplicable.

Plaintiffs also argue that the petition failed to comply with MCL 280.196(4) and (5), which provide:

(4) If an inspection discloses the necessity of expending money for the maintenance and repair of a drain in order to keep it in working order, the drain commissioner for a county drain, or the drainage board for an intercounty drain, may without petition expend an amount not to exceed in any 1 year $5,000.00 per mile or fraction of a mile for maintenance and repair of a drain, exclusive of inspection and engineering fees and the cost of publication and mailing. The determination of the maximum expenditure allowed without a petition or resolution shall be based on the total number of miles of the drain and not on the actual number of miles or location of the maintenance or repair.

(5) If the drain commissioner or the drainage board finds it necessary to expend funds in excess of the amount established in subsection (4) per mile or fraction of a mile in any 1 year for the maintenance and repair of a drain, the additional amounts shall not be expended until approved by resolution of the governing body of each township, city, and village affected by more than 20% of the cost.

Plaintiffs assert that both the initial estimated cost of $2.5 million and the increased estimated cost of $6.1 million exceed the $5,000–per–mile cap for proceeding without a petition under the above provisions. Because a petition was filed, however, the Drain Board was not proceeding without a petition, and MCL 280.196(4) and (5) are inapplicable.

Plaintiffs further argue that the Drain Board could proceed under MCL 280.196(9) if Albee Township pays the entire cost of the project. MCL 280.196(9) states:

Nothing in this section...