Kent Circuit Court LC No. 08-005778-CZ.
The opinion of the court was delivered by: O'connell, J.
Before: OWENS, P.J., and SAWYER and O'CONNELL, JJ.
Plaintiffs Arath II, Inc., and Arath IV, Inc., appeal as of right from the final order of the Kent Circuit Court granting summary disposition in favor of defendants Heukels County Drain District (the drain district) and Kent County Drain Commissioner pursuant to MCR 2.116(C)(8) and (10). We affirm.
The drain district, located in Kent County, was established by a final order of determination on August 28, 1937.*fn1 When the drain district was established, a special assessment district was created that encompasses approximately 217.3 acres in Sections 22, 23, and 27 of Grand Rapids Township. The special assessment district is bounded on the north by Bradford Street, on the west by Leffingwell Street, on the south by Michigan Street, and on the east by East Beltline. Interstate 96 cuts through the district, which is located immediately to the west of the East Beltline/I-96 interchange. The Kent County Drain Commissioner (drain commissioner) has jurisdiction over the district pursuant to the Drain Code of 1956 (the drain code), MCL 280.1 et seq.
Plaintiffs Arath II, Inc., and Arath IV, Inc., are related Michigan corporations.*fn2 Arath admits in its complaint that it owns property located within the drain district. Apparently, this property is in an industrial park immediately south of I-96 and north of the Mid-Michigan Railroad line. There is a wetland subject to the regulatory authority of the Michigan Department of Environmental Quality (MDEQ) located on part of Arath's property.
Arath filed its complaint in this case on June 6, 2008, alleging that the design of the drain district caused flooding on its property. According to Arath, the Heukels Drain diverted storm water exceeding natural flow volume and rate from the area north of I-96 through 48-inch-diameter culverts under both westbound and eastbound I-96 to Oak Industrial Court. When the water entered Oak Industrial Court, it apparently traveled south over a portion of Arath's property and through a 24-inch-diameter culvert under the Mid-Michigan Railroad. From here, the water would continue to flow south to 2925 Michigan Street, a parcel of land owned by the City of Grand Rapids, and exit under Michigan Street, where an overflow structure had been installed.*fn3 In its complaint, Arath claimed that the culvert under the Mid-Michigan Railroad and the overflow structure at Michigan Street were inadequate, causing water to be retained on Arath's property.
In its complaint, Arath first sought an order for superintending control to compel the drain commissioner to construct a 48-inch-diameter culvert under the Mid-Michigan Railroad and to remove the overflow structure under Michigan Street. Arath also argued that defendants' failure to undertake the maintenance and improvements necessary to prevent excess storm water from being diverted onto and detained on Arath's property constituted a trespass on Arath's property. In its request for relief, Arath asked that the trial court "enter an Order in Plaintiffs' favor enjoining Defendants from continuing their trespass, and further Order Defendants to complete the necessary maintenance, repair and improvements more specifically identified above."
Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), claiming, in pertinent part, that Arath could not seek an order for superintending control to compel the drain commissioner to act. Instead, defendants argued, the drain code required Arath to petition the drain commissioner to act before the drain commissioner would have the authority to make repairs and improvements to the Heukels Drain. Defendants then provided information indicating that Arath had never pursued a petition under the drain code to obtain work on the Heukels Drain. Douglas Sporte, the deputy drain commissioner for Kent County, noted that in November 2004, he provided Arath's attorney with the form of the petition needed to initiate a drain project pursuant to the provisions of the drain code, as well as a form listing the procedures needed to accomplish drain work in accordance with the code. However, Arath never filed a petition seeking to initiate a project on the Heukels Drain. Because no petition had ever been filed, the drain commissioner never convened a board of determination to consider whether a project on the Heukels Drain would be necessary.
In 2007, Arath's president, James Azzar, apparently attempted to install a 48-inch-diameter culvert near the Mid-Michigan Railroad in order to address the flooding on Arath's property. The MDEQ issued a public notice regarding the project on June 26, 2007. When the drain commissioner's office received the notice, it informed Azzar that he was required to receive a permit from the drain commissioner's office in order to continue the project and enclosed a permit application. However, on August 21, 2007, the MDEQ refused to permit the project and denied Azzar's request for a permit to install the 48-inch-diameter culvert. In explaining its decision, the MDEQ noted that "the proposed project will have a greater adverse impact to regulated resources than is required to achieve the project purpose." Azzar petitioned for reversal of the denial, but the record does not indicate whether this petition was successful.
The trial court granted defendants' motion for summary disposition pursuant to MCR 2.116(C)(8) and (10), finding that summary disposition was appropriate because Arath "did not follow the law and did not file a petition with the drain commission[er]."
On appeal, Arath claims that the trial court erred by dismissing its underlying cause of action in this case. According to Arath, it was not required to file a petition with the drain commissioner before commencing this cause of action because it did not seek the repair or maintenance of an existing drain. Instead, Arath appears to argue that because there is no "public drain" on its property, it is somehow exempt from filing a petition and, instead, is entitled to seek injunctive relief requiring defendants to repair and maintain the drain in order to prevent an overflow of storm water onto its property.
However, in its complaint, Arath indicates that it is simply seeking an injunction to force defendants to make repairs and improvements to certain portions of the Heukels Drain that it believes are necessary to prevent the overflow of storm water onto its property.*fn4 In claiming that defendants are "trespassing" on Arath's property by "detaining" and "diverting" excess storm water in the drainage district onto its property, Arath appears to assert that the alleged "trespass" is simply the overflow of water onto its property, as opposed to a more overt act. Although Arath presents its cause of action as a plea to protect infringement of its property rights, the relief it seeks reveals the true nature of the case: Arath simply wants the court to order defendants to improve the Heukels Drain so that excess water no longer overflows onto Arath's property.
However, the Drain Code of 1956, MCL 280.1 et seq, makes clear that when a landowner whose property is in a particular drain district wants the drain to be cleaned or improved in some manner, that landowner, in conjunction with a certain number of other landowners whose lands would also be liable for assessment to pay for such work, should petition the drain commissioner to perform the requested work. MCL 280.191.*fn5 The drain commissioner can then undertake a review process, including the appointment of a three-member "board of determination" to review the proposal and an opportunity for a public hearing. MCL 280.191; MCL 280.72. Once the board makes a determination regarding the necessity of the proposed improvement or repair, MCL 280.72(3), "any person feeling aggrieved by the determination may institute an action in the circuit court for the county in which the real property is located for a determination of necessity," MCL 280.72a. If a determination is made that a ...