C. Improvement of Drainage System Revision as of 20:50, 18 October 2016 by Bfische (talk | contribs)(diff) ← Older revision | Latest revision (diff) | Newer revision → (diff) C. Improvement of Drainage System

C. Improvement of Drainage System

An “improvement” means the tiling, enlarging, extending, straightening, or deepening of an established and constructed drainage system including construction of ditches to reline or replace tile and construction of tile to replace ditch.²⁹⁰ An improvement may extend an existing drainage system up to one mile downstream.²⁹¹ An example of a Petition for Improvement of a Drainage System is found in Template B.

1. Petition Requirements

A petition for an improvement must contain the following elements:

1. Designate the drainage system proposed to be improved by number or another description that identifies the drainage system;
   
2. State the drainage system has insufficient capacity or needs enlarging or extending to furnish sufficient capacity or a better outlet;
   
3. Describe the starting point, general course, and terminus of any extension;
   
4. Describe the improvement, including the names and addresses of owners of the 40-acre tracts or government lots and property that the improvement passes over;
   
5. State that the proposed improvement will be of public utility and promote the public health; and
   
6. Contain an agreement by the petitioners that they will pay all costs and expenses that may be incurred if the improvement proceedings are dismissed.²⁹²
   

2. Signatures on Petition

A petition for an improvement must be signed by enough landowners to meet one of the following four standards:

1. At least 26 percent of the owners of the property affected by the proposed improvement;
   
2. At least 26 percent of the owners of property that the proposed improvement passes over;
   
3. The owners of at least 26 percent of the property area affected by the proposed improvement; or
   
4. The owners of at least 26 percent of the property area that the proposed improvement passes over.²⁹³
   

The property area affected by the improvement can probably not be accurately determined until the improvement has been evaluated by an engineer and reviewed by the viewers as part of the improvement establishment proceedings. Thus, the test contemplated by the first and third options above present practical uncertainty to the petitioners and expose the petitioners to risk that not enough signatures have been obtained.

In the interest of certainty of jurisdiction, it is much safer to rely on the criteria set forth in the second and fourth options above. Petitioners should be capable of counting 40-acre parcels and government lots traversed by the proposed improvement project, and then determine with a fair degree of certainty whether 26 percent of the owners involved have signed the petition or whether the owners of 26 percent of the land traversed have signed the petition.

3. Filing an Improvement Petition

The public drainage code expressly states that the petition for an improvement and bond are to be filed with the county auditor.²⁹⁴ If the proposed drainage project affects land in two or more counties, the petition must be filed with the auditor of the county with the largest area of property in the proposed drainage system.²⁹⁵

However, if a new drainage system or an improvement to an existing drainage system is located within the jurisdiction of a watershed district, the petition must be filed with the managers of the watershed district.²⁹⁶

For a more detailed description on determining the correct drainage authority, see Chapter 2, Section II, Paragraph C.

Once the petition is filed with the correct drainage authority, preparations are made by the drainage authority for a preliminary hearing to review the petition.

A detailed description of the preliminary hearing procedures is found in Chapter 2, Section IV.

4. Petition for Improvement of Separable Part Only of Drainage System Needing Repair (“Separable Maintenance”)

Sometimes, improvement projects eliminate the need for a repair to the portion of the existing drainage system proposed to be improved. For example, where an open channel has become partially filled with silt and debris, but the improvement project is for widening and deepening of the open channel, the previously needed repair, of course, will not be necessary.

The cost to repair all or a portion of an existing drainage system is borne by the entire system in proportion to the benefits determined when the system was established or in the most recent redetermination of benefits.²⁹⁷ Conversely, the costs of construction of an improvement may be assessed only to the lands determined by the viewers to benefit by the proposed improvement.²⁹⁸ Thus, Minn. Stat. 103E provides for a procedure by which the cost to improve the separable portion of the drainage system petitioned for and avoided by the improvement may be assessed against all property benefited by the entire drainage system.²⁹⁹ This procedure is known as “separable maintenance” and is a unique procedure that may assist in reducing the improvement costs of a project.

In the detailed survey report prepared for a petition to improve a separable portion of an existing drainage system, the engineer may include a statement showing the proportionate estimated cost of the proposed improvement required to repair the separable part of the existing system and the estimated proportionate cost of the added work required for the improvement.³⁰⁰ If a separable maintenance statement is included by the engineer, then the notice of hearing on the detailed survey report for the improvement must be given by publication and mailing to all persons owning property affected by the existing drainage system, rather than just those affected by the improvement.³⁰¹

To order the repair portion of the improvement to be allocated as repair and assessed against all property benefited by the entire drainage system, the drainage authority must make a determination at the final hearing that (1) only a separable portion of the existing drainage system will be improved; and (2) that the separable portion is in need of repair.³⁰² While the public drainage code does not require that both required determinations be adopted as findings, it is good practice for the drainage authority to formally adopt them as findings as evidence that the drainage authority did, in fact, make the required determination. The final order, however, must direct:

1. The repair portion be allocated as repairs and assessed against all property benefited by the entire drainage system, as provided by section Minn. Stat. 103E.731; and
   
2. The balance of the cost of the improvement be assessed in addition to the repair assessment against the property benefited by the improvement.³⁰³
   

The separable maintenance procedures are helpful where the cost of the improvement is close to or more than the benefits of the improvement. Before a proposed improvement is established by final order of the drainage authority, the drainage authority must determine that the estimated benefits of the improvement are greater than the total estimated costs, including damages, of the improvement.³⁰⁴ In some circumstances, it is possible that the improvement may not be ordered without separable maintenance.

Example: Sample Ditch No. 1
• Total Improvement Project Costs = $930,000
• Net Benefits from Improvement = $760,000
• Cost to Repair Separable Portion = $320,000
• Costs Allocated to Improvement Benefits = $610,000
• Allocation to Entire Drainage System = $320,000

In conducting the cost-versus-benefit analysis required for the improvement under Minn. Stat. § 103E.341, subdivision 2 (a)(4), the costs allocated to improvement benefits ($610,000) are exceeded by the net benefits of the improvement ($760,000). $320,000 is allocated to the entire drainage system for the repair costs avoided by the improvement. Without separable maintenance, the total improvement project costs ($930,000) exceed the net benefits of the improvement ($760,000) and the project would not have been permitted.

Any time an improvement is to be established, it is a good practice for the drainage authority to also conduct a redetermination of benefits for the entire system. Once established, there will be a disparity between the improvement benefits which are based on current land values and land use practices and the prior benefits determined for the remainder of the drainage system that are based on the land values and land use practices occurring at the time of the prior benefits determination. Further, the Minnesota Supreme Court has hinted that the cost-versus-benefit analysis required to approve an improvement may also be required for the allocation of separable maintenance.³⁰⁵ If the cost-versus-benefit analysis is required, systems with old benefits may not exceed modern day repair costs allocated as separable maintenance.

FOOTNOTES

²⁹⁰ Minn. Stat. § 103E.215, subd. 2 (2015).
²⁹¹ Minn. Stat. § 103E.215, subd. 3 (2015).
²⁹² Minn. Stat. § 103E.215, subd. 4(c) (2015).
²⁹³ Minn. Stat. § 103E.215, subd. 4(a) (2015).
²⁹⁴ Minn. Stat. § 103E.202, subd. 4 (2015).
²⁹⁵ Minn. Stat. § 103E.235, subd. 1 (2015).
²⁹⁶ Minn. Stat. § 103D.625, subd. 4 (2015).
²⁹⁷ Minn. Stat. § 103E.728, subd. 1 (2015).
²⁹⁸ See Minn. Stat. § 103E.215, subd. 5 (2015) (“The benefits and damages determined must be as a result of the proposed improvement.”).
²⁹⁹ See Minn. Stat. § 103E.215, subd. 6 (2015).
³⁰⁰ Minn. Stat. § 103E.215, subd. 6(a) (2015).
³⁰¹ Minn. Stat. § 103E.215, subd. 6(a) (2015).
³⁰² Minn. Stat. § 103E.215, subd. 6(b) (2015).
³⁰³ Minn. Stat. § 103E.215, subd. 6(b) (2015).
³⁰⁴ Minn. Stat. § 103E.341, subd. 2(a)(4) (2015).
³⁰⁵ See In re Improvement of Murray Cnty. Ditch No. 34, 615 N.W.2d 40, 47, FN12 (Minn. 2000) (“While section 103E.215, subd. 6, does not explicitly state either way, harmonizing this section with the language in section 103E.341 requires a balancing of costs and benefits and leads us to conclude that the sections must be read together to avoid the absurdity of requiring different cost-benefit formulations for statutes within the same chapter.” (citations omitted)).