C. Requirements of a Petition Adequate to Confer Jurisdiction C. Requirements of a Petition Adequate to Confer Jurisdiction

C. Requirements of a Petition Adequate to Confer Jurisdiction

1. General Petition Requirements

A petition that meets the statutory requirements is essential to the establishment of jurisdiction in a drainage proceeding. Every type of drainage proceeding petition must include certain elements, which are discussed in the following sections. Elements that are specific to a certain type of drainage proceeding are discussed in Section IV of Chapter 2.

2. Adequate Land Descriptions

Petitions must be signed by a requisite number of owners of 40-acre tracts or government lots and property that the drainage project passes over, or by property owners that equate a requisite percentage of the total property area affected by the petition.¹⁵² Therefore, petitions for some projects must specifically describe the land in terms of 40-acre tracts or government lots. This assists the county auditor, drainage authority, and county or drainage authority attorney in determining whether the number of petitioners is adequate.

Petitioners for the following drainage projects should specifically describe the 40-acre tracts or government lots over which the drainage project passes or which are affected by the drainage project:

• construction of new drainage systems;
  
• improvement of established and constructed drainage systems;
  
• improvement of an existing drainage system as an outlet; and
  
• construction of a lateral to an existing drainage system.
  

Note, however, that except for petitions for an improvement, the law does not require the petition to describe the property affected by the proposed project.¹⁵³ A summary of the drainage code requirements for adequate land descriptions is found in Appendix 2A.

One method of meeting the requisite number of signatures on a petition for improvement of a drainage system is to have the petition signed by the owners of at least 26 percent of the property area affected by the proposed improvement.¹⁵⁴ This is problematic in that when a petition is proposed it is sometimes difficult, if not impossible, to know what property will be affected. That determination is not made until the final hearing. Further, the term “affected” is defined to mean “benefited or damaged by a drainage system or project”¹⁵⁵ and is often susceptible to varying interpretation. It is recommended that the property affected test not be used by petitioners unless it is clear that the whole system will be affected by the proposed improvement.

For each 40 acre tract or government lot, the petition must also include the names and addresses of the property owners most currently on record with the county assessor’s office.

3. Counting Signatures

When counting signatures on a petition, one really counts 40-acre tracts or government lots. Each tract or government lot counts as only one signature no matter how many co-owners exist for the tract or government lot.¹⁵⁶ All co-owners of a tract or government lot must sign the petition in order to have a valid signature as a fractional owner cannot bind the entire property. Together, all co-owner signatures are counted as one signature.¹⁵⁷

If a proposed drainage project passes over highway property, the Commissioner of Transportation or a political subdivision with jurisdiction over the highway may be a signatory on the petition.¹⁵⁸

The drainage code requirements for counting signatures are summarized in Appendix 2A and more specifically discussed in this subsection.

The requisite number of signatures on a petition depends on the type of drainage proceeding being petitioned:

• NEW DRAINAGE SYSTEM PROJECTS: For petitions to establish a new drainage system, the percentage of owners who must sign the petition is measured strictly by the “passes over” test.¹⁵⁹ The concept of “property affected” by the new drainage system has no bearing on the validity of the petition.
  

To reach the requisite percentage of petitioners, one must count the total number of owners of property which the proposed system passes over or the total number of parcels that the proposed system passes over. Jurisdiction through the requisite number of petitioners can be achieved in two ways: (1) by signatures of a majority of the total number of owners of property that the proposed drainage system passes over; or (2) by signatures of owners of property that comprise at least 60 percent of the area the proposed drainage system passes over.¹⁶⁰

In all other proceedings under the drainage code, the test for the percentage of owners who must have signed the petition is 26 percent. Twenty-six percent of what? In each case, the petitioners must check the statute.

• IMPROVEMENT OF DRAINAGE SYSTEM: For petitions to improve drainage systems, the 26 percent test is applied 4 different ways:
  

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.¹⁶¹
   

“Affected” is defined by the public drainage code as meaning “benefited or damaged by a drainage system project.”¹⁶² The petitioners generally do not know at the time they file the petition what area will be “affected” by the improvement unless the proposed improvement will affect the entire system; consequently, the first and third tests above are not very useable. The second and fourth tests above are workable and are most often used to meet the jurisdictional requirement for signatures on an improvement petition.

• IMPROVEMENT OF OUTLETS: Petitions for an improvement of a drainage system as an outlet may be signed by the board of an affected county, by at least 26 percent of the owners of adjoining overflowed property, or by the owners of at least 26 percent of the area of the overflowed property.¹⁶³
  

Calculating the area of “overflowed property” is a nebulous test because the statute does not specify how far downstream one may go in calculating that area, or how frequently the area must overflow to fall within the statute’s meaning. The vagueness of “overflowed property” and the possibility that one could get into an argument about whether the drainage authority has jurisdiction decreases the use of this type of drainage proceeding. An alternative to this proceeding is the more familiar improvement proceeding, which allows the extension up to one mile of an existing system to a more adequate outlet.¹⁶⁴

The petition must describe the property that “has been or is likely¹⁶⁵ to be overflowed,” including the names and addresses of the property owners from the records in the county assessor’s office.¹⁶⁶

• LATERAL: Persons that own property in the vicinity of an existing drainage system may petition for a lateral that connects their property with the drainage system if the petition is signed by at least 26 percent of the owners of the property or by the owners of at least 26 percent of the area of the property that the lateral passes over.¹⁶⁷
  

• IMPOUNDING, REROUTING, AND DIVERTING DRAINAGE SYSTEM WATERS: Any person, public or municipal corporation, governmental subdivision, the state or a department or agency of the state, the commissioner of natural resources, and the United States or any of its agencies, may petition to impound, reroute, or divert drainage system waters for beneficial use.¹⁶⁸ Therefore, the petitioner may be one person.
  

Likely, such an individual would be a person who is assessed for benefits, one who owns the property upon which the diverted water will be ponded, or an agency of the state or federal government. The statute, however, does not specify what relationship, if any at all, the petitioner must have to the drainage system.

• REPAIRS: While most repairs are performed without a petition, a petition process does exist under Minn. Stat. § 103E.715. Repairs by petition require only one petitioner, who must be an individual or an entity interested in or affected by a drainage system.¹⁶⁹
  

4. Public Benefit, Use, Utility, and Promotion of Public Health

Petitions for drainage projects must always state that the proposed drainage system will be of public benefit, will be useful to the public or be of public utility, and will promote the public health.¹⁷⁰

An act done in the interest of the public welfare or for public benefit is defined by the drainage code as:

an act or thing that tends to improve or benefit the general public, either as a whole or as to any particular community or part, including works contemplated by this chapter, that drain or protect roads from overflow, protect property from overflow, or reclaim and render property suitable for cultivation that is normally wetland needing drainage or subject to overflow.¹⁷¹

“Public health” is defined to include:

an act or thing that tends to improve the general sanitary condition of the community by drainage, relieving low wetland or stagnant and unhealthful conditions, or preventing the overflow of any property that produces or tends to produce unhealthful conditions.¹⁷²

It is not always intuitive how a public drainage project can promote the public health or be of public benefit or utility. By these definitions, however, the legislature has provided that the construction of drainage projects can provide benefits to the public, namely through flood control, reclaiming wetland for cultivation, and removal of unhealthful conditions.¹⁷³ Approval of the petition and establishment of jurisdiction requires the drainage authority to make a finding that the system or project will be of public benefit, will be useful to the public, and will promote the public health. Facts specifically related to the proposed drainage project supporting the findings add value to the administrative record for any judicial review challenging jurisdiction.

5. Petitioners’ Obligation to Pay Costs of Dismissed Proceedings

Petitions for drainage projects, including establishment and construction of new drainage systems, improvements to drainage systems, improvements to outlets of a drainage system, and laterals require the petition to state that the petitioners will pay all costs of the proceedings if the proceedings are dismissed or the contract for the construction of the proposed drainage system is not awarded.¹⁷⁴ Petitions for impounding, rerouting, or diverting drainage system waters and petitions for repair do not require the petitioners to state their obligation to pay costs of dismissed proceedings.¹⁷⁵

Bonding requirements are an additional cost that may apply to petitioners. Requirements for filing a bond with drainage project petitions are discussed in Paragraph G of this Section.

FOOTNOTES

^152. Minn. Stat. § 103E.202, subd. 2 (2015).
^153. Compare Minn. Stat. § 103E.212, subd. 2 (2015), and Minn. Stat. § 103E.221, subd. 2 (2015), and Minn. Stat. § 103E.225, subd. 1 (2015), with Minn. Stat. § 103E.215, subd. 4 (2015).
^154. Minn. Stat. § 103E.215, subd. 4(a)(3) (2015).
^155. Minn. Stat. § 103E.005, subd. 2 (2015).
^156. Minn. Stat. § 103E.202, subd. 2(b) (2015).
^157. Minn. Stat. § 103E.202, subd. 2(b) (2015).
^158. Minn. Stat. § 103E.202, subd. 2(a) (2015).
^159. Minn. Stat. § 103E.212, subd. 2 (2015).
^160. Minn. Stat. § 103E.212, subd. 2 (2015).
^161. Minn. Stat. § 103E.215, subd. 4(a) (2015).
^162. Minn. Stat. § 103E.005, subd. 2 (2015).
^163. Minn. Stat. § 103E.221, subd. 2(a) (2015).
^164. Minn. Stat. § 103E.215, subd. 3 (2015).
^165. Note that while the statute requires the petition to describe the property that “is likely to be overflowed,” the statute specifies that the requisite number of signatures is met if the owners of at least 26 percent “of the area of the overflowed property” sign the petition. Compare Minn. Stat. § 103E.221, subd. 2(a)(1), with Minn. Stat. § 103E.221, subd. 2(a) (2015).
^166. Minn. Stat. § 103E.221, subd. 2(a)(1) (2015).
^167. Minn. Stat. § 103E.225, subd. 1(a) (2015).
^168. Minn. Stat. § 103E.227, subd. 1 (2015).
^169. Minn. Stat. § 103E.715, subd. 1 (2015).
^170. See Minn. Stat. §§ 103E.212, subd. 3(4) (describing petition requirements for a new drainage system); 103E.215, subd. 4(c)(5) (describing petition requirements for improvement to a drainage system); 103E.221, subd. 2(a)(6) (describing petition requirements for improvement of an outlet); 103E.225, subd. 1(a)(4) (describing petition requirements for a lateral) (2015).
^171. Minn. Stat. § 103E.005, subd. 27 (2015).
^172. Minn. Stat. § 103E.005, subd. 25 (2015).
^173. See Titrud v. Achterkirch, 213 N.W.2d 408, 412 (Minn. 1973).
^174. See Minn. Stat. §§ 103E.212, subd. 3(5); 103E.215, subd. 4(c)(6); 103E.221, subd. 2(a)(7); and 103E.225, subd. 1(a)(6) (2015).
^175. Compare Minn. Stat. §§ 103E.212, subd. 3(5) (2015) (new drainage systems); 103E.215, subd. 4(c)(6) (2015) (improvements); 103E.221, subd. 2(a)(7) (2015) (improvement of outlets); and 103E.225, subd. 1(a)(6) (2015) (laterals) (stating that the petition for each respective project must state that the petitioners will pay all costs incurred if the proceedings are dismissed or if a contract for the construction of the project is not awarded), with 103E.227, subd. 1 (2015) (impounding, rerouting, and diverting drainage system waters) and 103E.715, subd. 1 (2015) (repair petition) (stating the requirements for a petition, which do not include the statement that petitioners will pay all costs incurred if the proceedings are dismissed or if a contract for the construction of the project is not awarded).