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Chapter 6137 | Drainage Improvement Maintenance Fund

 
 
 
Section
Section 6137.01 | Drainage improvement maintenance fund definitions.
 

As used in this chapter:

(A) "Owner," "benefit," "lead county," and "improvement" have the same meanings as in section 6131.01 of the Revised Code.

(B) "Force account" has the same meaning as in section 5543.19 of the Revised Code.

Section 6137.02 | County drainage improvement maintenance fund.
 

(A) The board of county commissioners of each county shall establish and maintain a fund within each county for the repair, upkeep, and permanent maintenance of each improvement constructed after August 23, 1957, under Chapter 940., 6131., 6133., or 6135. of the Revised Code.

(B) If the improvement affects only a single county of the state, the board of county commissioners of that county shall establish and maintain the fund. If two or more counties of the state are affected by the improvement, the joint board of county commissioners organized under Chapters 940., 6133., and 6135. of the Revised Code shall establish and maintain the fund.

Section 6137.03 | Annual drainage improvement maintenance assessment.
 

(A)(1) The maintenance fund shall be maintained, as needed, by an assessment levied not more often than once annually upon the benefited owners apportioned on the basis of the estimated benefits for all costs of the improvement.

(2) An assessment shall represent such a percentage of the estimated benefits as is estimated by the engineer and found adequate by the board or joint board to effect the purpose of section 6137.02 of the Revised Code, except that at no time shall a maintenance fund have an unencumbered balance greater than twenty per cent of the permanent assessment base for maintenance established under section 6137.11 of the Revised Code.

(3) The minimum assessment shall be two dollars.

(B) A maintenance assessment shall be made by the board of county commissioners or the joint board of county commissioners upon the substantial completion of a drainage improvement. The maintenance assessment shall be certified by the clerk of the board or joint board to the county auditor in case of a single county improvement, and to the county auditor of each affected county in a joint county improvement. The auditor or auditors shall place the assessment on the next succeeding tax duplicate to be collected and paid as other special assessments are collected and paid.

(C) With respect to a single county improvement, the county engineer shall inspect the drainage improvements in the county. On or before the first day of July of each year, the county engineer shall report to the board of county commissioners both of the following:

(1) The county engineer's findings regarding the present condition of the drainage improvements in the county;

(2) An estimate of the amount of funds necessary to repair and maintain the improvements for the following year.

With regard to a joint county improvement, the county engineer of each applicable county shall make such a report to the joint board.

(D)(1) The board shall use the county engineer's estimate to determine the annual drainage maintenance assessments, which shall be based on a percentage of the permanent assessment base.

(2) On or before the second Monday of September in each year, the board shall direct the county auditor or auditors, as applicable, to place the maintenance assessments on the tax duplicate.

(E)(1) With respect to a single county improvement, the county auditor shall place maintenance assessments received for a drainage improvement into the maintenance fund designated for the drainage improvement.

(2) With respect to a joint county improvement, the county auditor of each county that is not the lead county shall place maintenance assessments received for a drainage improvement into the maintenance fund designated for the drainage improvement. Twice a year, each county auditor of a county that is not a lead county shall transfer money in that fund to the county auditor of the lead county, who shall deposit the money into the joint drainage improvement's maintenance fund. The county auditor of the lead county shall place maintenance assessments received in the lead county for the drainage improvement into the joint drainage improvement's maintenance fund.

Section 6137.04 | Drainage maintenance district.
 

(A)(1) The board of county commissioners, upon recommendation of the county engineer, may combine improvements into a drainage maintenance district, in which the maintenance assessment shall be the same percentage of original cost for each improvement to be maintained.

(2) In combining improvements into drainage maintenance districts, the county engineer and the board of county commissioners shall consider similarity of costs, topography, and soil types so that improvements within the same district present substantially the same maintenance issues and costs. The county auditor shall maintain one drainage maintenance fund for each such district.

(3) A maintenance district may include all or any part of a county.

(B) The board of county commissioners, upon recommendation of the county engineer, may combine improvements in accordance with the type of improvement into one drainage maintenance fund so that ditches or drains that are enclosed in tile, or other improvements having similar maintenance costs, may be administered for maintenance under the same maintenance fund.

(C)(1) In the case of each joint county drainage improvement, the county auditor of the lead county shall maintain a separate maintenance fund for the improvement.

(2) The owners subject to the original assessment for the improvement shall constitute one maintenance district for the purpose of repair, upkeep, and maintenance of the improvement.

(3) The county engineer of the lead county shall serve as the county engineer in charge of maintenance and, after consultation with the engineer of any other county affected, shall annually file a report of inspection with a recommendation as to the amount of the maintenance assessment by the same procedure as provided by section 6137.03 of the Revised Code for assessment in the case of a single county drainage improvement.

Section 6137.05 | Repair or maintenance projects.
 

(A) The maintenance fund established under section 6137.02 of the Revised Code shall be subject to use of the board of county commissioners or joint board of county commissioners for the necessary and proper repair or maintenance of any drainage improvement constructed under Chapters 940., 6131., 6133., and 6135. of the Revised Code.

(B) Whenever the board, or the joint board, from its own observation or the recommendation of the county engineer or the lead county's county engineer, or on the written complaint of any owner of land subject to the maintenance assessment, has identified a need for the repair or maintenance of a drainage improvement, the county engineer shall inspect the condition of the drainage improvement.

(C) If the county engineer finds that the drainage improvement is in need of repair or maintenance, the county engineer shall do all of the following:

(1) Make an estimate of the cost of the necessary work;

(2) Determine the most efficient and economical manner to complete the work, including conducting the work in various phases if determined necessary. The county engineer shall take into account local conditions that may pertain to a maintenance program such as excavation, snagging, clearing, cleaning, physical and chemical control of vegetation, and reparation of banks and structures. The county engineer may determine whether the work shall be performed by force account, contract, or a combination of the two. However, if a contract is used for the work, the county engineer shall comply with sections 307.86 to 307.92 of the Revised Code.

(3) Determine a schedule for completion of the work subject to the availability of funds in the appropriate maintenance fund;

(4) Certify the actual cost of completion of the work to the county auditor or lead county's county auditor for payment from the appropriate maintenance fund.

(D) The board or joint board and the county engineer may contract with a soil and water conservation district for the repair, upkeep, and permanent maintenance of any drainage improvement for which the county engineer is responsible, whether as the county engineer or as the lead county engineer.

Section 6137.051 | Drainage repair upon complaint of assessed owners.
 

(A) Whenever the owner of any lands assessed for construction of an improvement authorized prior to August 23, 1957, files a written complaint that the improvement is in need of repair, the county engineer or the county engineer's designated representative shall make an inspection of the condition of the improvement within sixty days of receipt of the complaint and shall request the owner to be present at the inspection.

(B) If the county engineer finds that a need exists, the county engineer shall make an estimate of the cost of the necessary work and material required for the repair.

(C) The board of county commissioners, if it finds the work to be necessary and feasible, may authorize the county engineer to make the repairs at a cost not to exceed twenty-four thousand dollars.

(D) For the purpose of paying for the necessary work and materials, the board of county commissioners may establish a drainage repair fund for the improvement to be repaired. The county engineer shall prepare and submit a schedule of assessments upon the benefiting lands to the board of county commissioners in the amount of the actual costs of the repair. The board of county commissioners may revise the estimated assessments as they consider equitable and shall certify the assessments to the county auditor for collection.

(E) Not more than ten semiannual installments, as taxes are paid, shall be given to owners to pay for the repair assessments, and if any such assessment is twenty-five dollars or less, or whenever the unpaid balance of any such assessment is twenty-five dollars or less, the same shall be paid in full, and not in installments, at the time the first installment would otherwise become due.

Section 6137.06 | Count and joint county drainage improvements.
 

(A) With regard to a single county improvement, the county engineer has general charge and supervision of the repair and maintenance of all county drainage improvements constructed under Chapters 940., 6131., 6133., and 6135. of the Revised Code.

With regard to a joint county improvement, the lead county engineer has general charge and supervision of the repair and maintenance of all joint county drainage improvements constructed under Chapters 940., 6131., 6133., and 6135. of the Revised Code.

(B) The duties of the county engineer with respect to maintenance of any drainage improvement begin upon the substantial completion of the improvement. In preparing plans and specifications for repair and maintenance of a drainage improvement, the county engineer shall provide for necessary clearing of tree and brush growth, removal of silt bars, spreading and leveling of spoil banks, and the preservation of a sod or seeded strip as provided in the case of new construction under section 6131.14 of the Revised Code.

(C) Any person owning land along a drainage improvement may form an advisory committee for the purpose of notifying the county engineer of any repair and maintenance work that needs to be performed on the improvement. A committee formed for this purpose shall submit recommendations to the county engineer not later than the first day of May of any year in which its members desire to notify the county engineer of needed work. In determining the condition of the improvement in accordance with this section, the county engineer shall consider the committee's recommendations.

(D) Before issuing a warrant for any moneys expended by the county for repair or maintenance of any drainage improvement, the county auditor shall require of the county engineer the assignment of the expense to the improvement or the drainage maintenance district in connection with which the expense was incurred. The county auditor shall keep such records as are necessary to show clearly at the close of each year the amount of money expended from the drainage maintenance funds on each drainage improvement or each drainage maintenance district.

(E) The county auditor may establish and maintain a rotary fund for the purchase of equipment, materials, and labor related to the general maintenance of drainage improvements under this chapter. The county auditor shall establish and maintain the fund by a proportionate withdrawal from the funds of each drainage improvement or each drainage maintenance district.

(F) The county engineer shall establish a rental rate for equipment purchased with the rotary fund. This rate shall be used in charging the equipment, along with material and labor, to the drainage improvement upon which it is used in order to reimburse the rotary fund.

Section 6137.07 | Drainage equipment.
 

(A) As used in this section, "drainage equipment" means machinery, tools, conveyances, or other equipment for the repair and maintenance of drainage improvements a board of county commissioners considers necessary.

(B) The board of county commissioners may do both of the following:

(1) Purchase drainage equipment;

(2) Provide a suitable place to house and store the drainage equipment.

The county engineer shall be responsible for the care and custody of the drainage equipment and shall plainly and conspicuously mark it as the property of the county.

(C) The county engineer shall annually, on the second Monday of January, make an inventory of the drainage equipment, indicating each article and stating its estimated value, and deliver the inventory to the board of county commissioners. The board shall keep the inventory on file. The county engineer may file written recommendations with the board for drainage equipment that should be purchased for use in the county drainage maintenance program during the ensuing year and its estimated cost.

(D) All expenditures authorized by this section shall be paid out of the drainage maintenance fund or funds. If the drainage maintenance fund at any time is inadequate for such purchase or other expenditure, the board of county commissioners is authorized to make the payment from the county general fund, which sum so paid from the general fund shall be a charge against the drainage maintenance fund or funds to be repaid to the general fund as soon as adequate funds are available in the drainage maintenance fund or funds.

Section 6137.08 | Reduction in maintenance assessment application.
 

(A) An owner may make application for reduction in the owner's maintenance assessment due to work the owner proposes on any portion of a public ditch, watercourse, or other improvement. The application shall be filed with the county engineer on or before the first day of May in any year and shall state the nature of the work to be done, such as clearing brush, removing silt or debris, repair of structure, or other work necessary to preserve the improvement.

(B) The county engineer, in making inspections of the drainage improvements, shall note the extent to which any owner that has applied for a reduction of the maintenance assessment under division (A) of this section has carried out such repair and maintenance work.

(C) In making the annual report and estimate to the board of county commissioners, the county engineer shall include a schedule containing the name of each owner who has applied for reduction of maintenance assessment under division (A) of this section and the percentage reduction, if any, that the county engineer recommends be granted to each owner.

(D) The board of county commissioners shall either confirm or reject the allowances recommended by the county engineer. The allowance confirmed as to each owner shall be certified to the county auditor, who shall reduce the next annual maintenance assessment of the owner by the percentage so certified.

Section 6137.09 | Certificate for reduction in maintenance assessment.
 

(A) The board of county commissioners may grant to any owner a reduction of not more than fifty per cent of the owner's annual maintenance assessment provided that the owner shall have filed with the county engineer a certificate of the board of supervisors of the soil conservation district of the county in which the land is located, certifying that the owner is following practices in the cultivation or management of agricultural land that will reduce the runoff of surface water and the erosion of sediment and silt into drainage channels. The certificate shall be signed by the president and the secretary-treasurer of the soil and water conservation district board of supervisors and it shall remain in effect until canceled by the board of county commissioners.

(B) The county engineer may inspect the premises of any owner claiming assessment reduction due to soil and water conservation and to ask the soil conservation district for review of any certificate on file.

(C) At the time the county engineer makes the annual report and estimate of maintenance costs, the county engineer shall transmit to the board of county commissioners all soil and water conservation certificates that were filed with the county engineer.

(D) The clerk of the board of county commissioners, on or before the first day of August in each year, shall file with the county auditor a list of owners who have been granted a reduction in maintenance assessment for the current year under this section.

Section 6137.10 | Additional repair assessment for damages.
 

If the cleaning out or repair of a ditch, drain, or watercourse, repair or replacement of tile, or repair of any abutment, catch basin, retaining wall or other improvement is made necessary in whole or in part by the negligent acts or omissions of an owner, the board of county commissioners shall conduct a hearing regarding the acts or omissions. The board shall give notice of the hearing thirty days prior to the hearing pursuant to the provisions of section 6131.07 of the Revised Code. After the hearing, the board may add to the maintenance assessment of the negligent owner an additional repair assessment in an amount sufficient to rectify the damage. The added assessment shall be made on recommendation of the county engineer and certified to the county auditor at the same time the annual maintenance assessment is certified by the board.

Section 6137.11 | Permanent base for maintenance assessments.
 

(A) The original schedule of benefit assessments upon owners for the construction of any improvement shall be maintained by the county auditor as the permanent assessment base for maintenance. The county auditor shall levy the maintenance assessments in such percentage of the permanent assessment base as is authorized by the board of county commissioners.

(B) Before certifying the percentage of the permanent assessment base to be levied in any one year for the maintenance fund, the board of county commissioners shall consider any recommendation by the county engineer and any application by an owner for increase or reduction of the permanent assessment base as it applies to an owner.

(C)(1) After six annual maintenance fund assessments have been made upon the owners benefiting from an improvement, the board of county commissioners shall review the permanent assessment base and may increase or decrease the respective benefit apportionments in accordance with changes in benefits that have occurred during the intervening six years.

(2) Any increase or reduction of the permanent assessment base with respect to an owner shall be made for the purpose of correcting an inequity that has arisen due to increase or decrease in the proportionate share of benefits accruing to the owner as the result of the construction and maintenance of the improvement.

(3) If the board of county commissioners proposes changes to the permanent assessment base of an owner, the board shall conduct a hearing on those changes. The board shall conduct the hearing not less than twenty nor more than thirty days from the date the proposed changes are to be adopted.

(4) The clerk of the board shall send to each owner in the area benefited by the improvement a notice by first-class mail in a five-day return envelope with the words "Legal Notice" printed in plain view on the face of the envelope. The clerk shall include in the notice a statement of the amount of the present permanent assessment base, the proposed new permanent assessment base amount with respect to each owner so changed, and the date of a hearing on the change.

(D) At the expiration of six years from the date of the first review of the permanent assessment base, and at six-year intervals thereafter, the board of county commissioners may again review the permanent assessment base and shall set a hearing on any proposed changes in accordance with the procedures established in division (C) of this section.

(E) The board of county commissioners at any time may add to the schedule of benefited owners any other owner who, in the judgment of the board, is benefited by the operation and maintenance of the improvement as the result of new conditions that have arisen since the improvement was constructed. The clerk of the board shall provide such an owner notice in writing of the owner's permanent assessment base and the date of a hearing in accordance with the procedures established in division (C) of this section for any owner whose permanent assessment base has been changed by the board. Notice to such an owner shall be sent by the same type of mail as the board uses for owners whose permanent assessment base has been changed.

(F) A hearing on the changes in, or additions to, the permanent assessment base may be adjourned from time to time by the board of county commissioners and, upon conclusion of the hearing, the revised permanent assessment base shall be certified to the county auditor and shall become the permanent assessment base, except as changed from time to time with respect to individual owners.

(G) If the board of county commissioners finds that any owner was not assessed for the construction of an improvement, but now is receiving substantial benefit therefrom, or was assessed for construction, but now is receiving substantially greater benefits therefrom, the board, after providing a thirty day notice pursuant to section 6131.07 of the Revised Code, may hold a hearing and determine an equitable amount as an equalization assessment to be paid by the owner. The equalization assessment shall be divided into the same number of payments as the assessments for the construction of the improvement, and the payment shall be added to the next succeeding maintenance assessments of the owner until the entire amount of the equalization assessment has been paid.

(H) Any owner affected by an increase in the permanent assessment base as it applies to the owner, or who has been added to the schedule of benefited owners, or who has been determined to be subject to an equalization assessment, all as provided in this section, may appeal to the court of common pleas from a final order made by the board of county commissioners, in the manner provided by sections 6131.25 to 6131.36 of the Revised Code, the question of whether any such assessment is levied according to benefits.

(I) In the case of drainage maintenance districts for which the board of county commissioners has authorized a single maintenance fund, a review of the permanent assessment base shall be made not later than six years after the creation of the drainage maintenance district, and at six-year intervals thereafter, by the same procedure as provided by this section for review of the permanent assessment base with respect to a single improvement, and it shall not be necessary to review the entire permanent assessment base for any improvement included in the maintenance district until the board reviews the permanent assessment base for the entire district.

Section 6137.111 | Alternative levy of assessments apportioned according to tax value.
 

(A) In lieu of the permanent assessment base and procedure specified in section 6137.11 of the Revised Code, the board of county commissioners may by resolution levy upon the benefited property assessments apportioned according to tax value. The assessments shall be in the amount determined by the board to be necessary to obtain funds for the maintenance fund.

(B) Prior to the adoption of a resolution levying the assessments, the board shall give at least ten days' notice in one newspaper of general circulation in the county, which shall state the time and place when and where the resolution shall be taken up for consideration. At that time and place or at any adjournment thereof, of which no further published notice need be given, the board shall hear all persons whose properties are proposed to be assessed, shall correct any errors and make any revisions that appear to be necessary or just, and may then pass a resolution levying upon the properties determined to be benefited such assessments as so corrected and revised.

(C) Any owner of property to be so assessed may appeal to the court of common pleas from the resolution made by the board of county commissioners, in the manner provided by sections 6131.25 to 6131.36 of the Revised Code, the question of whether any such assessment is levied according to benefits.

(D) The assessments levied by the board's resolution shall be certified to the county auditor for collection as other taxes in the year or years in which they are payable. Any increase or reduction of the assessments levied under this section shall be made at the regular six-year reappraisal of all property in the county under section 5713.01 of the Revised Code or through adjustments made for property divisions, improvements, and changes.

Section 6137.112 | Permanent base review of improvements; estimation of construction cost.
 

(A) At the time that the board of county commissioners reviews the permanent assessment base of an improvement after six annual assessments have been made as provided in section 6137.11 of the Revised Code, the board may request the county engineer to estimate the construction cost of the improvement if that improvement were to be constructed at the time of the permanent assessment base review. Not less than thirty days prior to a hearing at which the board will consider the estimate as the construction cost of the improvement, the clerk of the board shall send to each owner that would be affected a notice by certified mail, return receipt requested, or by first class mail in a five-day return envelope. For each improvement, all individual notices shall be sent by the same type of mail. Whichever method the board chooses, the words "legal notice" shall be printed in plain view on the face of the envelope. The notice shall state the amount of the present permanent assessment base, the proposed new permanent assessment base amount with respect to the owner, and the date of the hearing on the proposed change.

(B) The board of county commissioners, by adoption of a resolution at the hearing required under division (A) of this section, may approve the permanent assessment base, as determined by the county engineer according to division (B)(5) of section 6131.14 of the Revised Code in lieu of the original cost of the improvement. If approved, the total estimated cost of the improvement shall be the permanent assessment base that is used to calculate maintenance fund assessments for owners benefiting from the improvement. The approved estimate of the improvement shall serve as the permanent assessment base for the purposes of this chapter until such time as it is revised in accordance with this section.

Section 6137.12 | Permanent easement for maintenance and cleaning of drainage improvements.
 

(A) In the cleaning, repair, and other maintenance work on drainage improvements, the persons whose duty it is to perform the maintenance work may go upon the adjoining or abutting lands within the permanent easement necessary for proper operation of the required machinery, tools, motor vehicles, conveyances, or other equipment.

(B)(1) In the case of open ditches, the permanent easement so used shall be not more than twenty-five feet from the top of the bank, measured at right angles thereto, and wherever practical the area so used shall be on one side of the ditch only.

(2) In the case of an open ditch log-jam removal project within a wooded riparian corridor, a maintenance easement may be created from the top of the bank to twenty-five feet outside of the edge of the wooded riparian corridor.

(3) When the county engineer determines that an emergency situation exists at an open ditch needing maintenance, the county engineer may, with the approval of the board of county commissioners, temporarily extend the easement to not more than seventy-five feet from the top of the bank, measured at right angles thereto, in order to conduct the necessary maintenance work and alleviate the condition or conditions causing the emergency situation.

(C) The maximum width of permanent easement for closed ditches shall not exceed eighty feet centered on the centerline of the improvement.

(D) The permanent easement for all other improvements shall be as located and the width as specified by the county engineer.

(E) When the performance of maintenance requires the damage of existing crops beyond the permanently established sod or seeded strip, the owner of the crops shall submit a written request for payment for damages to the county engineer. The county engineer shall award the crop owner damages equal to market value, to be paid from the permanent maintenance fund established for the improvement.

(F)(1) Under contract work, the county engineer may specify the right-of-way to be used within the permanent easement. Where the nature of the surface of the adjoining or abutting land does not prevent it, and there are growing crops on one side of the ditch but none upon the other, the right-of-way provided for shall be used on that side of the ditch on which there are no growing crops.

(2) In using the right-of-way, the persons performing maintenance shall, as far as possible, avoid damage to the owner of the adjoining or abutting lands.

(3) If in the doing of this work it is necessary to damage or temporarily remove any fences, poles, or wire lines, the cost of repairing, removing, and replacing the fences, poles, and wire lines shall be included in the total cost of the maintenance.

(G) This section does not authorize passage across, along, or between railroad tracks until thirty days after notice has been mailed in accordance with section 6131.07 of the Revised Code.

Section 6137.13 | Cleaning or repair of interstate ditches.
 

That part of interstate drainage improvements within the state may be cleaned or repaired pursuant to sections 6137.01 to 6137.12 of the Revised Code.

Section 6137.14 | Inspection for violations by county engineer.
 

The county engineer, in inspecting drainage channels, shall note any and all apparent violations of sections 6111.01 to 6111.04 of the Revised Code, as such sections refer to the pollution of drainage channels. Whenever it appears to the county engineer that there may be a violation of section 6111.04 of the Revised Code, the county engineer shall notify the director of environmental protection, setting forth any thing or act done or omitted to be done or claimed to be in violation of such section. The director shall immediately pursue the alleged violation to its legal conclusion.

Section 6137.15 | Agreements with local soil and water conservation districts.
 

The board of county commissioners with the advice of the county engineer may enter into agreements with local soil and water conservation districts for the purposes of planning, constructing, or maintaining works of improvement constructed under Chapters 6131., 6133., 6135., 6137., and 6151. of the Revised Code.