Kramer v. City of Dearborn Heights , 197 Mich. App. 723 ( 1993 )

197 Mich. App. 723 (1992) 496 N.W.2d 301

KRAMER
v.
CITY OF DEARBORN HEIGHTS

Docket No. 131994.

Michigan Court of Appeals.

Decided October 23, 1992. Approved for publication January 12, 1993, at 9:00 A.M.

Charles H. Noble, for the plaintiffs.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Milton E. Firestone and George M. Elworth, Assistant Attorneys General, for the State of Michigan.

Saul A. Green, Wayne County Corporation Counsel, and Thomas A. Neenan, Assistant Corporation Counsel, for the County of Wayne, the Lefler-Ready Consolidated Storm and Sanitary Drainage District, Edward H. McNamara, and James E. Murry.

Adam J. Dadaou, Corporation Counsel, for the City of Dearborn Heights.

Before: NEFF, P.J., and GRIBBS and SHEPHERD, JJ.

PER CURIAM.

Plaintiffs appeal as of right from the trial court's dismissal of this action challenging the funding of certain drain improvements and the consolidation of drainage districts. We affirm.

There is no merit to plaintiffs' claim that the trial court improperly granted summary disposition pursuant to MCR 2.116(C)(8) to defendant State of Michigan. Plaintiffs allege that "there is a disputed issue of fact as to whether the new effluent levels in the Federal Clean Water Act actually is [sic] what prompted the Water Resources Commission to order what it did." Plaintiffs claim that they stated a cause of action simply by pleading that the Water Resources Commission's order constitutes a "new state mandated activity." The mere statement of a pleader's conclusions, unsupported by allegations of fact upon which they may be based, will not suffice to state a cause of action. NuVision v Dunscombe, 163 Mich. App. 674, 681; 415 NW2d 234 (1987). In this case, plaintiffs alleged that "upon information and belief, said Compliance Orders are new requirements since 1978, the passage of the Headlee Amendment." As the trial court stated in its written opinion, the orders at issue were based upon a violation of an act that was in effect before the adoption of the Headlee Amendment (Const 1963, art 9, § 29). The trial court did not err in finding that the activities here were not a "new activity or service beyond that required by existing law."

There is no merit to plaintiffs' claims that the action in this case is violative of the Headlee Amendment because it was taken pursuant to a 1988 amendment of the Federal Clean Water Act, 33 USC 1251 et seq., rather than pursuant to the language of the pre-1978 act. The Headlee Amendment requires the state to pay for the increase in costs incurred by units of local government because of any new activity or service required by the Legislature or another state agency. Ann Arbor v Michigan, 132 Mich. App. 132, 136; 347 NW2d 10 (1984). By statute, a law that allows a local unit of government to perform an activity or service, but does not require it, is not a "requirement of state law." MCL 21.234(5)(h); MSA 5. 3194(604)(5) (h). The providing of a sewage disposal system is optional under the home rule cities act, MCL 117.4f; MSA 5.2079. Because sewage disposal by a home rule city is a permissive rather than a mandatory activity, the costs associated with implementing state requirements relative to sewage disposal systems operated by a home rule city are not subject to the provision of the Headlee Amendment.

There is no merit to plaintiffs' claim that the trial court erred in denying them declaratory relief. Plaintiffs argue that the petition of defendant City of Dearborn Heights to consolidate the three drainage districts was not properly brought under Chapter 20 of the Drain Code. We do not agree.

This Court's review of declaratory relief is de novo on the record. Michigan State AFL-CIO v Civil Service Comm, 191 Mich. App. 535, 548; 478 NW2d 722 (1991). However, we will not reverse a trial court's factual findings unless they are clearly erroneous. Wayne Co Sheriff v Wayne Co Bd of Comm'rs, 148 Mich. App. 702, 709; 385 NW2d 267 (1983).

Plaintiffs argue that consolidation should have been sought under Chapter 19 rather than Chapter 20 of the Drain Code. The trial court did not err in finding that Chapter 20 provides a basis for the consolidation. The statute relied upon by defendants specifically applies to drains located entirely within the limits of a single city, as is the case here. MCL 280.486; MSA 11.1486. Contrary to plaintiffs' claim, the statute also states that the petition need be signed by the city only. Id. As the trial court noted, MCL 280.482; MSA 11.1482 authorizes any improvement necessary for the public health and, thus, provides a sufficient basis for the consolidation here. We agree with the trial court that the petition and notice in this case (both individual and by publication) were sufficient. Moreover, MCL 280.484; MSA 11.1484, permits incorporation by reference of any consistent provisions in other chapters of the Drain Code. Thus, even assuming arguendo that some of the provisions of Chapter 19 could have been applied in this case as plaintiffs suggest, the trial court did not err in finding that Chapter 20 provided a basis for defendants' actions.

Plaintiffs also argue that consolidation of the drainage districts in this case amounts to an abandonment and that surplus funds must be refunded to plaintiffs. The trial court found that the drains had not been abandoned. We agree.

Drains that have "ceased to be of public utility and [are] no longer necessary or conducive to the public health, convenience and welfare may be declared to be abandoned." MCL 280.391; MSA 11.1391. Where drains are consolidated, abandonment is permitted but not required by statute. MCL 280.446; MSA 11.1446. Where abandonment is chosen, surplus funds are to be refunded to the people who paid into the fund or their heirs, not to the current property owners as plaintiffs suggest. MCL 280.393; MSA 11.1393.

In this case, abandonment was not required and was not declared by defendants. The trial court did not err in finding that no abandonment occurred. Plaintiffs are not entitled to a refund.

Plaintiffs contend that the surplus funds were confiscated in violation of their constitutional rights. The trial court found that no constitutional rights had been violated, and we agree. A special assessment is not subject to the constitutional requirement of uniformity of taxation, Const 1963, art 9, § 3. See Detroit v Weil, 180 Mich. 593, 599; 147 N.W. 550 (1914).

Plaintiffs argue that they are entitled to a refund because of the misconduct of the drain commissioner in failing to audit the accounts for over twenty-five years. The trial court found that plaintiffs had not been harmed by the lack of audits, because the funds in the drainage district accounts merely accumulated over that time. There is no allegation that the funds were misused or misdirected. The statute cited by plaintiffs, MCL 280.243; MSA 11.1243, does not apply in this case. By its express terms, the statute applies where there is a deficiency, and there is no deficiency alleged in this case. Moreover, although it is true that MCL 280.243; MSA 11.1243 provides for refunds where there is a deficiency caused by the fraud or wrongful act of a county official, that provision directs that the refund be made to the taxpayers who paid the assessment, not to later property owners such as plaintiffs in this case.

Finally, plaintiffs contend that the trial court erred in finding no incompatibility of offices with respect to defendant James Murray, who acts both as director of the Wayne County Department of Public Works and as chairman of the drainage district. There is no merit to this claim. The Drain Code specifically states that the powers, duties, and functions of the public works commissioner and drain commissioner may be combined. MCL 280.21; MSA 11.1021.

The decision of the trial court is affirmed.