Brenda M. Moore, Muskegon County Drain Commissioner, May 11, 2018

Bond proceeds for the Kuis Drain have been secured. Contracts have been signed for work to proceed. Because no appeals were made; 10 days after the “Day of Review” the project was solidified—even though I contemplated downscaling the subdivision work. Please read on.

Since the first public hearing for the Kuis Drain project in 2014, significant resources have been used to design and execute drain clean-out and a subdivision storm sewer project. There have been numerous mailings to individual property owners, meetings to discuss design, scope, and timing of the project. All hearings, including one with the state, were in the newspaper and properly posted in public places. Public input after the original hearing was scarce. At the time, few disputed the work needed to be done, most wanted to know the final cost. In 2015, we provided preliminary plans for subdivision work to the township asking for input—nothing. Where did everyone go after the 1st public hearing?

The perfect storm began to brew: 1) numerous homeowners sold their homes and did not tell new owners about the pending project; 2) Many new homes were built–still below the elevations required in recorded Master Deeds; 3) the basement elevations were not checked as part of the building permit process, and; 4) the area does not have sanitary sewer as housing density and groundwater discharges increase.

In the meantime, the project planning team proceeds in good faith. Rather than discharging sump water in their yards, at the road, or to a neighbor’s property the new storm sewer system will give each property owner a direct outlet for discharged sump water—right to the main branch of the Kuis Drain. The design was finalized, bids were taken, and the assessment roll presented. Now the project had a price tag. Numerous residents came out in full force. We made adjustments to the roll after Day of Review based on property owner comments, which seemed to upset even more people.

There were two points of appeal during the 4-year process. Four appeals were generated; all were dropped, one by the township under the previous supervisor, the others by property owners. We believe residents did not want to pay the court-ordered bond to help cover legal fees. It was suggested they “pass the hat” among dozens of vocal property owners to cover the cost. Instead, those opposed to the subdivision project went political in the 11th hour, after bids were let and it was too late to make changes without significant time delays and increased costs. These project opponents, though silent during the initial requests for project input, bombarded the office of the Drain Commissioner with calls, emails, flowers, drop-ins, even recall petitions. They also packed the township hall and County Board chambers trying to sink a ship that had already landed under the legal process.

In an ill-advised attempt to kill the project, all but two County Commissioners chose not to pledge the county’s full faith and credit as part of bond financing. I understood trying to advocate for a vocal public—but second guessing another elected official, her engineers, finance person and legal team, seemed to defy logic—accept for the fact the county does not appreciate their drain assessments either. It is also an election year for County Board members.

We investigated the possibility of cutting out a portion of the subdivision project (e.g., homes built after the petition process). I learned that the Drain Code is very clear about process, which cannot be skirted by the Drain Commissioner, citizens, or the County Board. The intent of the law prevents a Drain Commissioner from suddenly adding work and cost to a project after the Day of Review. This works in reverse as well, by not allowing certain individuals to “opt out” of a project that is already planned, bid, and on its way to financing. Either scenario can bring chaos to a public infrastructure project, put more financial burden on those who are left in the project, and damage future dealings with financial institutions and contractors.

In short the key legal facts are:

• A project cannot be fundamentally changed after apportionments (assessment ratios) after the appeal time sunsets on the “Day of Review”.

• Financing is based on bids received and a computation of costs for the entire project. Under financing rules, when funds are sought for a project, costs must be locked in. Bonds are sold based on a specific project and assessment roll.

• Property owners cannot be charged if they don’t derive a benefit from the work (i.e., the whole district does not help pay for isolated work in the subdivisions).

Other not-so-fun facts:

• PA 222 allows for lawsuits by property owners if public entities are aware of a problem but do nothing—i.e., there is no governmental immunity.

• The township was asked about laying sanitary sewer line while the ground was open for the storm sewer construction. They are not pursuing this because of the high cost of a lift station to serve the area.

• Even if we could legally reduce the scope of the project at this late juncture, those not getting storm sewer services would still be paying thousands for state and federal permitting, attorney and engineering fees. They would get no infrastructure, just a design if they ever needed it.

The Drain Commissioner was put in the unhappy position of making the best decision possible for current and future property owners, their property values, and septic fields. The law limits the options at this late juncture without “starting over”. Doing that is foolhardy.

Alternative financing has been secured for the entirety of this project despite the County Board vote. We were able to get a 20-year term vs. 10 years, but the interest rate is somewhat higher because the County Board did not pledge “full faith and credit” on the bond. All the efforts made outside of the law’s appeal process simply added cost to assessments in the entire drainage district. Finally, the people who disagreed with the project that remained quiet until the end, or sold their property without disclosure, and/or built without knowing proper base floor elevations helped create this unfortunate situation. For most, it’s too late to go after the contractor. Now, the office of the Drain Commissioner is in a “cursed either way” situation. However, the project must continue as planned.