HF 2324 (LSB 5699YH (6) 88)

HOUSE FILE 2324

BY  BAXTER, MAXWELL, SEXTON, GASSMAN, and BLOOMINGDALE

A BILL FOR

An Act relating to the management of drainage or levee districts, including by providing for objections by landowners and for procedures to make a repair or construct an improvement within a district. 
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 468.28, Code 2020, is amended to read as follows:
   468.28  Dismissal on remonstrance objection.
   1.  If, at At or before the time set for final hearing as to the establishment of a proposed levee, drainage, or improvement district, except subdrainage district, there shall have been an objection may be filed with the county auditor, or auditors, in case the district extends into more than one county, a remonstrance signed by a majority of the landowners in the district, and these remonstrants must owning in the aggregate own seventy percent or more than fifty percent of the lands land to be assessed for benefits or taxed for said improvements, remonstrating. The landowners may object to the establishment of a proposed levee, drainage, or improvement district, by doing any of the following: 
   a.  Filing a remonstrance against the establishment of said levee, drainage, or improvement district, setting forth the reasons therefor, the for the objection. The remonstrance must be signed by all landowners making the objection. 
   b.  Conducting a vote on the matter, if authorized by the board or boards. The auditor or auditors must mail a ballot on the question to landowners in the same manner as provided in section 468.14. A landowner shall return the ballot in the same manner as filing a remonstrance as provided in paragraph “a”. The auditor or auditors shall only count the votes of landowners who answer the question on the ballots returned to the auditor.
   2.  If a remonstrance is filed or a majority of landowners voting disapprove the proposed district, the board or boards as the case may be, shall assess to the petitioners and their sureties or apportion the costs among them as the board or boards may deem just or as said parties may agree upon. When all such costs have been paid, the board or boards of supervisors shall dismiss said proceedings and cause to be filed with the county auditor all surveys, plats, reports, and records in relation to the proposed district.
    Sec. 2.  Section 468.119, subsection 4, Code 2020, is amended to read as follows:
   4.  The right of remonstrance objection, as provided under in section 468.28, does not apply to the owners of lands being involuntarily annexed to an established district.
    Sec. 3.  Section 468.126, subsection 1, Code 2020, is amended to read as follows:
   1.  When any levee or drainage district has been established and the improvement constructed, the improvement shall be at all times under the supervision of the board of supervisors except as otherwise provided for control and management by a board of trustees and the board shall keep the improvement in repair as provided in this section.
   a.  The board at any time on its own motion, without notice, may or acting upon a petition of one or more landowners in the district, may order done whatever is necessary to restore or maintain a drainage or levee improvement in its original efficiency or capacity, and for that purpose may remove silt and debris, repair any damaged structures, remove weeds and other vegetable growth, and whatever else may be needed to restore or maintain such efficiency or capacity or to prolong its useful life.  The board shall determine whether a proposed project meets the requirements to be classified as a repair or whether it should be classified as an improvement. The board shall determine the difference between a major and minor repair based on a dollar amount for making the repair as determined by the board.
   b.  If the board considers a petition for a major repair, the petition must include the signatures of at least thirty percent of the landowners in the district. There shall be filed with the petition a bond in an amount fixed and with sureties approved by the auditor, conditioned for the payment of all costs and expenses incurred in the proceedings if the petition is not approved.
   b.  c.  The board may at any time obtain order an engineer’s report be prepared and submitted to the board regarding a repair, only if the board makes an initial determination that the estimated cost of the repair could exceed three hundred thousand dollars. The board may adjust the determination at any time. The board shall not order a report until it approves a preliminary estimate of the scope and cost of the repair prepared by an engineer to be appointed by the board. If an engineer’s report is ordered, the report shall describe the most feasible means of repairing a drainage or levee improvement and the probable cost of making the repair. If the engineer advises, or the board otherwise concludes that permanent restoration of a damaged structure is not feasible at the time, the board may order temporary construction it deems necessary to the continued functioning of the improvement. If in maintaining and repairing tile lines the board finds from an engineer’s report it is more economical to construct a new line than to repair the existing line, the new line may be considered to be a repair.
   c.  d.  If the estimated cost of the repair does not exceed The board may order a report from the soil and water conservation district conservationist in lieu of the engineer’s report. The board may waive the report requirement if a prior report concerning the repair is less than ten years old.
   e.  (1)  The board shall hold a hearing regarding a repair under any of the following circumstances:
   (a)  The scope of the repair exceeds the engineer’s preliminary estimate as provided in paragraph “c” by more than fifteen percent. The engineer or soil and water conservation district conservationist preparing the report shall pay all expenses related to conducting the hearing, unless the enlarged scope was ordered by the board.
   (b)  The estimated cost of the repair exceeds fifty thousand dollars, the board may order the work done without conducting a hearing on the matter. Otherwise, the. The estimated cost of the repair shall be based on the board’s determination, unless a report is ordered pursuant to paragraph “c”. In that case, the estimated cost shall be based on the preliminary estimate or, if available, the report. 
   (2)  The board shall set a date and time for a the hearing and provide notice of the hearing to landowners in the district by publication in the same manner as provided in section 468.15. However, if the estimated cost of the repair exceeds the adjusted competitive bid threshold, the board shall provide notice to the landowners pursuant to sections 468.14 through 468.18. The board shall not divide a proposed repair into separate programs in order to avoid the notice and hearing requirements of this paragraph.  At the hearing, the board shall hear objections regarding the feasibility of making the proposed repair.
   d.  If a hearing is required under paragraph “c”, the board shall order an engineer’s report or a report from the soil and water conservation district conservationist regarding the matter to be presented at the hearing. The board may waive the report requirement if a prior report on the repair exists and that report is less than ten years old. At the hearing, the board shall hear objections to the feasibility of making the proposed repair.
   e.  f.  Following a hearing, if required in paragraph “c” “e”, the board shall determine whether the repair is necessary or desirable, and feasible.
   f.  g.  Any interested party has the right of appeal from such orders in the manner provided in this subchapter, parts 1 through 5.
   g.  h.  The right of remonstrance objection as provided in subsection 4 does not apply to a minor repair as provided in this section subsection.  In the case of a major repair, an objection shall be made in the same manner as provided in that subsection.
    Sec. 4.  Section 468.126, subsection 4, Code 2020, is amended to read as follows:
   4.  a.  For the purpose of this subsection, an “improvement” in a drainage or levee district in which any ditch, tile drain, or other facility has previously been constructed is a project intended to expand, enlarge, or otherwise increase the capacity of any existing ditch, drain, or other facility above that for which it was designed.
   b.  When the board determines that an improvement is necessary or desirable, and feasible, the The board shall determine whether a proposed project meets the requirements to be classified as an improvement or repair. The board, at any time, on its own motion, or upon a petition of one or more landowners in the district, may order an improvement be constructed. The board shall appoint an engineer to make surveys as seem appropriate to determine the nature and extent of the improvement, and to file a report showing what improvement is recommended and its estimated cost, which report may be amended before final action.
   c.  The board shall determine the difference between a major and minor improvement based on a dollar amount for making the improvement as determined by the board.
   d.  If the board considers a petition for a major improvement, the petition must include the signatures of at least thirty percent of the landowners in the district. There shall be filed with the petition a bond in an amount fixed and with sureties approved by the auditor, conditioned for the payment of all costs and expenses incurred in the proceedings if the petition is not approved or the proceeding has been dismissed due to the filing of a remonstrance.
   e.  The board shall order an engineer’s report be prepared and submitted to the board regarding the improvement, only if the board makes an initial determination that the estimated cost of the improvement could exceed three hundred thousand dollars. The board may adjust the determination at any time. The board shall not order a report until it approves a preliminary estimate of the scope and cost of the improvement as prepared by the engineer to be appointed by the board.
   f.  The board shall hold a hearing regarding the proposed construction of an improvement under any of the following circumstances:
   (1)  The enlarged scope of the improvement exceeds the engineer’s preliminary estimate as provided in paragraph “e”. The engineer appointed by the board shall pay all expenses related to conducting the hearing, unless the enlarged scope was ordered by the board.
   c.  (2)  If the The estimated cost of the improvement does not exceed exceeds fifty thousand dollars, the board may order the work done without conducting a hearing on the matter. Otherwise, the. The estimated cost of the improvement shall be based on the board’s determination, unless a report is ordered pursuant to paragraph “e”. In that case, the estimated cost shall be based on the preliminary estimate or, if available, the report. 
   g.  The board shall set a date and time for a the hearing on whether to construct the proposed improvement and whether there shall be a reclassification of benefits for the cost of the proposed improvement.
   (1)  (a)  The board shall provide notice to landowners in the district by publication in the same manner as provided in section 468.15. However, if the estimated cost of the improvement exceeds the adjusted competitive bid threshold, the board shall provide notice to the landowners pursuant to sections 468.14 through 468.18.
   (b)  Notwithstanding subparagraph division (a), and in lieu of publishing the notice, the board may mail a copy of the notice to each address where a landowner within the district resides by first class mail if the cost of mailing is less than publication of the notice. The mailing shall be made during the time the notice would otherwise be required to be published.
   (2)  The board shall not divide proposed improvements into separate programs in order to avoid compliance with this paragraph “c” subsection.
   d.  h.  At the a hearing for the approval of the construction of an improvement, if required in paragraph “c” “f”, the board shall hear objections to the feasibility of the proposed improvements and arguments for or against a reclassification presented by or for any taxpayer of the district. Following the hearing, the board shall order that the improvement it deems necessary or desirable and feasible be made and shall also determine whether there should be a reclassification of benefits for the cost of the improvement. If it is determined that a reclassification of benefits should be made, the board shall proceed as provided in section 468.38. 
   e.  i.  (1)  If the estimated cost of the improvement exceeds the adjusted competitive bid threshold, or the original cost of the district plus the cost of subsequent improvements in the district, whichever amount is greater, a majority of the landowners, owning in the aggregate more than seventy fifty percent of the total land in the district, may file object to the proposed improvement by doing any of the following: 
   (a)  Filing a written remonstrance against the proposed improvement, at or before the date set for hearing on the proposed improvement as provided in paragraph “c” “f”, with the county auditor, or auditors in case the district extends into more than one county.
   (b)  Conducting a vote on the matter, if authorized by the board or boards. The auditor or auditors must mail a ballot on the question to landowners in the same manner as provided in section 468.14. A landowner shall return the ballot in the same manner as filing a remonstrance as provided in subparagraph division (a). The auditor or auditors shall only count the votes of landowners who answer the question on the ballots returned to the auditor.
   (2)  If a remonstrance is filed or a majority of landowners voting disapprove the proposed improvement, the board shall discontinue and dismiss all further proceedings on the proposed improvements and charge the costs incurred to date for the proposed improvements to the district.
   j.  Any interested party may appeal from such orders in the manner provided in this subchapter, parts 1 through 5. However, this section does not affect the procedures of section 468.132 covering the common outlet.
    Sec. 5.  Section 468.184, subsection 3, Code 2020, is amended by striking the subsection and inserting in lieu thereof the following:
   3.  At or before the time set for said hearing as to such classification or reclassification, an objection may be made by a majority of the landowners owning more than fifty percent of the total assessed value of the lands plus land improvements in said district as shown by the taxing records in said county or counties in which said district is located. The landowners may object to the classification or reclassification by doing any of the following:
   a.  Filing a remonstrance with the auditor, or auditors in case the district extends into more than one county. The remonstrance must be signed by all landowners making the objection.
   b.  Conducting a vote on the matter, if authorized by the board, or boards in case the district extends into more than one county. The auditor or auditors must mail a ballot on the question to landowners in the same manner as provided in section 468.14. A landowner shall return the ballot in the same manner as filing a remonstrance as provided in paragraph “a”. The auditor or auditors shall only count the votes of landowners who answer the question on the ballots returned to the auditor.
    Sec. 6.  Section 468.184, Code 2020, is amended by adding the following new subsection:
   NEW SUBSECTION.  3A.  a.  If a remonstrance is filed or a majority of landowners voting disapprove the proposed improvement, the board or boards shall abandon the alternative method of classification or reclassification herein authorized.
   b.  The board or boards may then proceed to classify the lands in said levee district as authorized under sections 468.38 through 468.44 or may proceed to reclassify the same as authorized under section 468.65 unless the remonstrance or vote objects to any reclassification. In that case, the board shall not reclassify the lands within the district under the provision of this section nor shall the same be reclassified under the provisions of section 468.65.
    Sec. 7.  Section 468.258, subsection 4, Code 2020, is amended by striking the subsection and inserting in lieu thereof the following:
   4.  At or before the time set for the hearing, an objection may be made to the dissolution of the contained district, or to the acceptance of that district’s improvements and rights-of-way by the overlying district, by the owners of land and land improvements in either district aggregating more than fifty percent of the total assessed value of the land in that district as shown by the taxing records in the county or counties in which that district is located. The landowners may object to the classification or reclassification by doing any of the following:
   a.  Filing a remonstrance with the county auditor, or auditors if either the contained or overlying district extends into more than one county, or with the board of either district. The remonstrance must be signed by all landowners making the objection.
   b.  Conducting a vote on the matter, if authorized by the board, or boards in case the district extends into more than one county. The auditor or auditors must mail a ballot on the question to landowners in the same manner as provided in section 468.14. A landowner shall return the ballot in the same manner as filing a remonstrance as provided in paragraph “a”. The auditor or auditors shall only count the votes of landowners who answer the question on the ballots returned to the auditor.
    Sec. 8.  Section 468.258, Code 2020, is amended by adding the following new subsection:
   NEW SUBSECTION.  5.  If a remonstrance is filed or a majority of landowners voting disapprove the proposed improvement, the board to which the objection is made shall abandon its proposed action.
    Sec. 9.  Section 468.534, Code 2020, is amended to read as follows:
   468.534  Remonstrance.
   Remonstrances signed An objection may be made by the same persons who are qualified to sign the petition may, which objection must be filed in the office of the auditor and if. If the same persons petition and remonstrate object they shall be counted on the remonstrance only for the objection. Such remonstrances shall The objection shall be made in the same manner as provided in section 468.28. However, the objection must be filed with the auditor not less than five days before the time set for hearing.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   GENERAL. This bill amends Code chapter 468 by providing for repairs made and improvements constructed to a drainage or levee district (district) as ordered by a board managing the district (board). It also provides for remonstrances filed with the board that seek to dismiss an action to be taken by the board.
   OBJECTION. The bill provides that a landowner may object to a proceeding affecting a landowner’s rights in a proposed or established district. First, it provides that a majority of landowners owning more than 50 percent rather than 70 percent of the total land in the district may file a remonstrance. Second, it provides that the board may allow the question to be placed on a ballot mailed to the landowners and filed with the auditor who counts the votes of landowners who answer the question on the ballots returned to the auditor. 
   REPORT REGARDING A REPAIR OR IMPROVEMENT —— INCREASE IN THRESHOLD AMOUNT. The bill increases the threshold amount from $50,000 to $300,000 before a board may order a report from a civil or drainage engineer (engineer) or soil and water conservation district conservationist (conservationist) regarding a proposed repair (Code section 468.126(1)) or a report from an engineer regarding a proposed improvement (Code section 468.126(4)). The board may determine whether a project meets the requirements for either a repair or improvement. The board must distinguish between major and minor repairs or improvements.
   PETITIONS REGARDING A REPAIR OR IMPROVEMENT. The bill provides that a board may consider a petition for a repair or improvement submitted by one or more landowners in the district. If a petition seeks a major repair or improvement, the petition must include the signatures of at least 30 percent of the district’s landowners. If a remonstrance against a proposed improvement succeeds, the petitioners are liable for costs incurred by the board in taking action on the petition.
   HEARING REGARDING A REPAIR OR IMPROVEMENT. The board must conduct a hearing regarding the repair or improvement if the scope of the repair exceeds the scope of a preliminary estimate prepared by the engineer or conservationist by more than 15 percent. The costs of the hearing are to be paid by the engineer or conservationist, unless the enlarged scope was ordered by the board. The board must still conduct a hearing if the estimated cost of the repair or improvement exceeds $50,000 but that amount is based on the expected cost as provided in the board’s initial or adjusted determination or as provided in the preliminary or reported estimate.
   BACKGROUND. Generally, there are two types of projects authorized under Code chapter 468, a repair which refers to restoring a facility to its original design or efficiency and an improvement which enhances or enlarges the district’s facility. Before a board managing a drainage district may order an engineer’s report or a report from a conservationist regarding a proposed repair or improvement, the estimated cost of the repair or improvement must exceed $50,000, the board must conduct a hearing of landowners, and the report must be presented at the hearing. There are several types of boards that may have jurisdiction to decide whether or not to order a repair or improvement, including a board of supervisors, a joint board of supervisors, or an elected board of trustees. A landowner is provided a right of remonstrance under a number of circumstances, including when a new drainage district is proposed to be established (Code section 468.28), an improvement is proposed (Code section 468.126), land in the district is classified or reclassified for purposes of determining the benefit received from the board’s action and therefore the amount of tax imposed on the land (Code section 468.184), and the dissolution of a district (Code section 468.258).