D. The Final Hearing D. The Final Hearing

D. The Final Hearing

The final hearing may not be held until the engineer has filed the engineer’s detailed survey report, the viewers have filed the viewers’ report, and the Commissioner of the Department of Natural Resources has filed a final advisory report.⁶⁸⁵

1. Notice

The drainage authority in consultation with the auditor or secretary of the watershed district, sets the time, place, and location for the final hearing on the petition, the engineer’s detailed survey report, and the viewers’ report.⁶⁸⁶ The hearing must not be set less than 25 days nor more than 50 days after the date of the final hearing notice.⁶⁸⁷ A sample Order Setting Time, Place, and Location for Final Hearing is found in Template A .

The final hearing notice must state the following:

1. That the petition is pending;
   
2. That the detailed survey report is filed;
   
3. That the viewers’ report is filed;
   
4. The time and place set for the final hearing;
   
5. A brief description of the proposed drainage project and affected drainage system, giving in general terms the starting point, terminus, and general course of the main ditch and branches;
   
6. A description of property benefited and damaged, and the names of the owners of the property⁶⁸⁸; and
   
7. The municipal and other corporations affected by the proposed drainage project as shown by the detailed survey report and viewers’ report.⁶⁸⁹
   

For a joint county proceeding, separate notice may be prepared for each county affected, showing the portion of the proposed drainage project and the names and descriptions of affected property in the county.⁶⁹⁰ A sample Notice of Final Hearing is found in Template B.

It is the auditor’s or secretary’s responsibility to notify the drainage authority, auditors of affected counties, and all interested persons of the time and location of the final hearing by publication, posting, and mail.⁶⁹¹

1. POSTING: A printed copy of the final hearing notice for each affected county must be posted at least three weeks before the date of the final hearing at the front door of the courthouse in each county.⁶⁹²
   
2. PUBLICATION: The final hearing notice must be published at least once a week for three successive weeks in a legal newspaper in general circulation in each county affected by the notice.⁶⁹³
   
3. MAILING: A copy of the final hearing notice and property owners’ report must be mailed to all interested persons (i.e., members of the drainage authority, auditors of other affected counties, petitioners, all owners of property benefitted or damaged by the project, and the Commissioner of the Department of Natural Resources) within one week after the notice of the final hearing is first published.⁶⁹⁴
   

After the final hearing notice is properly given⁶⁹⁵, the drainage authority has jurisdiction of all property described in the engineer’s and the viewers’ reports, of the persons and municipalities named in the reports, and of all persons having an interest in a mortgage, lien, or encumbrance against the property described in the reports.⁶⁹⁶

2. Final Hearing Procedures

At the final hearing, the engineer or the engineer’s assistant and at least one of the viewers must be present.⁶⁹⁷

The meeting should again be convened by the chairperson of the drainage authority. The petitioners’ representative should then be given the floor to review the proceedings. The technical aspects of the proposed project should be left to the engineer.

The petitioners’ representative should then return the floor to the chairperson, and the chairperson should give the floor to the project engineer. The engineer, using maps and profiles, should then explain the proposed project. The hearing should then be open for questions for the engineer.

Following the engineer’s presentation, the chairperson should call for the reading of the Commissioner of the Department of Natural Resources’ (“DNR”) final advisory report.⁶⁴⁹ The Director of the DNR Division of Ecological and Water Resources, or the Director’s designated representative, typically summarizes and highlights the report.⁶⁵⁰ If the Director is not present, the final advisory report should be read verbatim during the hearing.⁶⁵¹

Following the engineer’s presentation, the chairperson should call for the reading of the Commissioner of the Department of Natural Resources’ (“DNR”) final advisory report.⁶⁹⁸ The Director of the DNR Division of Ecological and Water Resources, or the Director’s designated representative, typically summarizes and highlights the report.⁶⁹⁹ If the Director is not present, the final advisory report should be read verbatim during the hearing.⁷⁰⁰

Following the final advisory report one of the viewers, as spokesperson, should present the viewers’ report. It is recommended that copies of the viewers’ report be available for review at the hearing. In any case, owners of property benefitted or damaged by the project will receive a summary of the viewers’ determination of benefits and damages as part of the property owners’ report mailed in advance of the hearing.⁷⁰¹ The viewers’ presentation should not be a line by line review of each item of benefits and damages. Rather, it should be a discussion of the approach to viewing adopted by the viewers, any special problems encountered, and a statement of the total amounts of benefits and damages found.

When the hearing is opened to questions from the floor, specific questions or disputes regarding benefits or damages determinations for particular tracts must be allowed to be stated for the record and, where possible, should be addressed to the satisfaction of the drainage authority during the hearing. If such concerns cannot be satisfactorily addressed during the hearing, the drainage authority may recess the hearing in order to allow landowners and the viewers an opportunity to meet on an individual basis in an effort to resolve disputes. In some cases, if there are numerous disputes, it may be appropriate to recess the hearing to a new date and time in order to allow for landowner meetings with the viewers and to allow the viewers to make any revisions to their report. In any case, the viewers should provide resolution of the landowner concern, even if such resolution is a justification for the originally determined benefits or damages.

Small adjustments and compromises frequently will satisfy a landowner’s concerns. Giving the landowner an opportunity to discuss the benefits or damages privately before the establishment order comes out may lead to better understanding of the basis of benefits or damages and will go a long way toward avoiding appeals. When everyone has had a chance to talk to the viewers, and the meeting is reconvened, the viewers present their adjusted report.

FOOTNOTES

⁶⁸⁵ The drainage code gives the DNR Commissioner 30 days to file its final advisory report. See Minn. Stat. § 103E.301(a) (2015). The drainage authority must ensure that the DNR Commissioner has been afforded, at least, 30 days from the date it receives the engineer’s detailed survey report in which to review, prepare, and file a final advisory report with the drainage authority. Before establishing a project, the drainage authority must determine that “the reports made or amended are complete and correct.” Minn. Stat. § 103E.341, subd. 2(2). If the DNR Commissioner fails to make a report, despite having the opportunity to do so, the drainage authority may proceed with adopting a final order finding that the reports actually made are complete and correct.
⁶⁸⁶ Minn. Stat. § 103E.325, subd. 1 (2015).
⁶⁸⁷ Minn. Stat. § 103E.325, subd. 1 (2015).
⁶⁸⁸ Names may be listed in narrative form and property affected may be separately listed in narrative form by governmental sections or otherwise. Minn. Stat. § 103E.325, subd. 2(b) (2015).
⁶⁸⁹ Minn. Stat. § 103E.325, subd. 2(a)(1)-(7) (2015).
⁶⁹⁰ Minn. Stat. § 103E.325, subd. 2(c) (2015).
⁶⁹¹ Minn. Stat. § 103E.325, subd. 3 (2015).
⁶⁹² Minn. Stat. § 103E.325, subd. 3 (2015).
⁶⁹³ Minn. Stat. §§ 103E.325, subd. 3 and 103E.005, subd.24 (2015).
⁶⁹⁴ Minn. Stat. § 103E.325, subd. 3 (2015).
⁶⁹⁵ If proper notice has been given to some parties but the notice is defective or not given to other parties, the drainage authority has jurisdiction of all parties that received proper notice. Minn. Stat. § 103E.035 (2015). The proceedings may be continued by order of the drainage authority for the time necessary to publish, post, or mail a new notice. Minn. Stat. § 103E.035 (2015). The new notice needs only to be given to those not properly notified by the first notice. Minn. Stat. § 103E.035 (2015).
⁶⁹⁶ Minn. Stat. § 103E.331 (2015).
⁶⁹⁷ Minn. Stat. § 103E.335, subd. 1 (2015).
⁶⁹⁸ Minn. Stat. § 103E.335, subd. 1 (2015).
⁶⁹⁹ See Minn. Stat. § 103E.335, subd. 1 (2015).
⁷⁰⁰ Minn. Stat. § 103E.335, subd. 1 (2015).
⁷⁰¹ Minn. Stat. § 103E.323 (2015).