Circuit Judge"
88.34(3) (3)The court shall make an order organizing the drainage district and direct the board to proceed with all convenient speed if on such hearing the court finds each of the following facts:
88.34(3)(a) (a) That the petition or petitions have sufficient signers.
88.34(3)(b) (b) That the lands described in the petitions together with any additional lands recommended by the board for drainage will be improved by the proposed work.
88.34(3)(c) (c) That the public health or public welfare will be promoted thereby.
88.34(3)(d) (d) That the cost of construction will not exceed 75 percent of the benefits to be derived from the proposed work.
88.34(3)(f) (f) That the proposed work will not materially injure or impair fish habitat or wildlife habitat or scenic beauty or the conservation of natural resources or other public rights or interests.
88.34(4) (4)If the court finds the facts stated in sub. (3) (a), (b), (c) and (f) but finds that the cost of construction will exceed 75 percent of the benefits to be derived from the proposed work, the court nevertheless shall organize the drainage district if, within 10 days, petitioners file with the court a bond with sufficient sureties to be approved by the court and conditioned for the payment of the excess or deposits and leaves with the court a sum of money that the court determines will cover the excess.
88.34(5) (5)Unless the conditions specified in sub. (3) or (4) are met, the court shall deny the petition and shall tax the taxable costs of the proceedings as provided in s. 88.08.
88.34(6) (6)The court may include in a proposed drainage district any lands requiring drainage and lying adjacent to the lands described in the petition and shall not lose jurisdiction by reason of bringing in lands not described in the petition.
88.34(7) (7)If there are petitions before the court to organize 2 or more drainage districts and the court is of the opinion that the territory in the proposed districts should be included in one district or in a lesser number of districts than the petitions call for, the court may by order organize such territory into such number of districts as it deems will best conform to the purposes of this chapter, or the court may annex any territory asking to be organized as a drainage district to a district already organized.
88.34(8) (8)The territory in a district need not be all in one body if:
88.34(8)(a) (a) It is so situated that the public health or public welfare will be promoted by drainage of each separate body thereof; and
88.34(8)(b) (b) The cost of construction in each separate body thereof will not exceed 75 percent of the benefits to be derived from the proposed work therein; and
88.34(8)(c) (c) The court is satisfied that the proposed work can be more cheaply done or maintained in a single district than otherwise.
88.34(9) (9)The order organizing a drainage district shall be recorded with the register of deeds of each county in which lands of the district are located.
88.35 88.35 Laying out drains, assessment of benefits and award of damages in newly organized district.
88.35(1)(1)Upon the organization of a drainage district, the board shall with the aid of an engineer having the qualifications specified in s. 88.21 (5):
88.35(1)(a) (a) Lay out drains of sufficient depth to adequately drain the lands proposed to be drained, including the preparation of profiles showing the grades of all drains and a map showing the boundaries of the drainage district and the proposed location of all drains;
88.35(1)(b) (b) Assess the benefits that will accrue to each parcel of land benefited;
88.35(1)(c) (c) Award damages to such lands as will be damaged;
88.35(1)(d) (d) Estimate the cost of construction;
88.35(1)(e) (e) Assess the cost of construction against the benefited lands in proportion to the benefits received by each;
88.35(1)(f) (f) Estimate the annual cost of maintenance and operation of the drainage district.
88.35(2) (2)In laying out the drains the board shall not be confined to the points of commencement, routes or end points of the drains or the number, extent or size of the drains, or the location, plan or extent of any drain as proposed by the petition under s. 88.28, but shall locate, design, lay out and plan the drains in the manner that seems best to the board to promote the public health or welfare and to drain or to protect the lands of the parties interested with the least damage and greatest benefit to all of the affected lands. In determining the sufficiency of the depth and capacity of the drains, the board shall consider whether other lands lie above and drain in the direction of, through and along the general course of the proposed drains.
88.35(3) (3)If the board finds that the drainage district, as described in the petition under s. 88.28, will not embrace all the lands that will be benefited by the proposed work or that it will include lands that will not be benefited or do not need to be included in the drainage district for any purpose, it may extend or contract the boundaries of the district so as to include or exclude all such lands using the procedures in s. 88.78 or 88.80.
88.35(4) (4)In assessing benefits to farm lands, the board shall ascertain and consider the depth, quality and character of the surface and subsoils, the thoroughness of drainage, the difficulty of drainage, the uses to which the land when drained will be adapted, and all other material elements entering into the increase in the value of such land resulting from the proposed work.
88.35(5) (5)If the damages to any land exceeds the assessment for cost of construction levied against such land the excess shall be paid out of the assessment for cost of construction levied against all lands.
88.35(5m) (5m)If navigable waters are affected by the proposed drainage, the drainage board shall obtain a permit under s. 88.31. This subsection does not apply to the Duck Creek Drainage District.
88.35(6) (6)Upon the completion of its duties under subs. (1) to (5m), the board shall prepare a written report, including a copy of any maps, plans or profiles that it has prepared. The assessment of benefits and awards of damages shall be set forth in substantially the following form: [See Figure 88.35 (6) below]
88.35(7) (7)If the area of the district exceeds 200 acres, the report shall be submitted to the department of agriculture, trade and consumer protection. Within 45 days after its receipt, the department shall return it with a copy of the report prepared under s. 88.11 (3) and the department's approval or disapproval of the report prepared under sub. (6). - See PDF for table PDF
88.36 88.36 Hearing on report.
88.36(1)(1)Upon the completion of the report provided for in s. 88.35, the drainage board shall fix the time and place of the hearing on the report and shall cause notice of the hearing to be given under s. 88.05 (2) (b) to the persons specified in s. 88.05 (4) (c).
88.36(2) (2)At the hearing on the report the drainage board shall hear all objections to the report by any person who feels aggrieved.
88.36(3) (3)With regard to objections relating to assessment of benefits against or award of damages to specified lands, any evidence may be introduced which tends to establish what assessments or awards would be equitable as compared with other lands in the district.
88.36(4) (4)If the drainage board finds that the report requires modification or amendment, it shall modify or amend the report as the facts warrant.
88.36(5) (5)Upon a determination by the board that the report is final, the board shall proceed with the work as provided in s. 88.62.
88.36(6) (6)The board may not proceed with the work unless it finds that the cost of construction of the work necessary under the order will not exceed 75 percent of the total assessment of benefits against those lands whose assessments of benefits and awards of damages are sought to be confirmed by the order.
88.36 History History: 1977 c. 135 s. 19; 1993 a. 456; 1995 a. 225.
subch. IV of ch. 88 SUBCHAPTER IV
88.40 88.40 Assessments for costs to be certified to register of deeds; assessments are lien on lands.
88.40(1)(1)Immediately after the issuance of a drainage board order levying any assessments for costs, whether original or supplemental, the drainage board shall record in the office of the register of deeds in each county in which the assessed lands are situated a certified copy of the order, including a true description of each parcel of land in that county that was so assessed and the amount that it was assessed.
88.40(2) (2)From the time of recording the order confirming such assessments for costs until they are paid, such assessments and the interest thereon are a first lien upon the lands assessed and take priority over all other liens or mortgages except liens for general taxes and liens under ss. 292.31 (8) (i) and 292.81, regardless of the priority in time of such other liens or mortgages.
88.40(3) (3)When any assessment which is a lien on land has been fully paid, the board shall execute in writing a satisfaction of such lien. Such satisfaction may be recorded in the office of the register of deeds.
88.40 History History: 1993 a. 453, 456; 1995 a. 227; 1997 a. 27.
88.405 88.405 Assessment for connection to district drain. When any new drain is connected to an existing district drain, whether or not the area drained by the new drain is within the drainage district, the drainage board by order may assess against the newly drained land a reasonable share of the cost of constructing the existing district drain. If an assessment is made under this section and the area drained by the new drain is not within the drainage district, the drainage board shall proceed under s. 88.78 to annex the land to the drainage district.
88.405 History History: 1993 a. 456.
88.405 Note NOTE: 1993 Wis. Act 456, which created this section, contains extensive explanatory notes.
88.41 88.41 Payment of assessments for costs.
88.41(1)(1)All assessments for costs are due and payable 4 months after the date on which the order making the assessments is issued unless the drainage board by order directs that the assessments may be paid in installments. Assessments shall be paid to the county treasurer as treasurer of the drainage district.
88.41(2) (2)At the time of issuing an order making assessments for costs, or at any time after issuance of the order but before the issuance of bonds or notes which are a lien on the assessments, the drainage board may order the assessments for costs to be payable in annual installments. The drainage board shall order the installments to be payable in such amounts and at such times as will be convenient for the accomplishment of the proposed work or for the payment of the principal and interest of the notes or bonds of the drainage district, subject to the following limitations:
88.41(2)(a) (a) The number of annual installments may not exceed 15 in the case of assessments for cost of construction or 3 in the case of assessments for cost of repairs.
88.41(2)(b) (b) The first installment is due and payable on September 1 following the drainage board's order directing payment in installments and one installment, together with all accrued interest, is due and payable on September 1 of each succeeding year, except that the drainage board in its order may direct a delay in the commencement of the payment of installments for the cost of construction to September 1 of some year not more than 5 years after September 1 of the year in which the first payment otherwise would be due.
88.41(3) (3)Any owner of land assessed for costs may, at any time before the board contracts to borrow money upon notes or bonds based upon such assessment, pay to the county treasurer as treasurer of the drainage district the amount of the assessment against the owner's land or any tract thereof, together with any interest due thereon.
88.41(4) (4)The following rules govern interest on assessments for costs:
88.41(4)(a) (a) All assessments for costs shall draw interest at the rate of 6 percent per year unless the drainage board orders a different rate.
88.41(4)(b) (b) Interest shall run from the date of confirmation of the assessment unless the drainage board orders the interest to commence at a later date, but interest shall be waived if the assessment is paid within 60 days after the date of confirmation.
88.41(4)(c) (c) If installment payments have been authorized pursuant to sub. (2), interest shall be computed as of September 1 and is payable annually on that date.
88.41(4)(e) (e) Interest shall be collected in the same manner as the principal of the assessment.
88.41(4)(f) (f) If it becomes necessary to certify past due assessments to the clerk of the town, village or city for collection, the provisions of s. 88.42 relating to interest also are applicable.
88.41 History History: 1979 c. 110 s. 60 (13); 1991 a. 316; 1993 a. 456; 1997 a. 27.
88.42 88.42 Unpaid drainage assessments to be collected as taxes.
88.42(1)(1)The secretary of the drainage board shall, in accordance with s. 88.19, keep a separate record of all assessments in each drainage district under the board's jurisdiction. On or before December 1 of each year, the secretary shall certify all past due assessments for costs, including past due installments, to the clerk of the town, village or city in which the delinquent lands are located or assessed, specifying the amount due from each tract, parcel or easement. The amount certified shall include interest at the rate of 6 percent per year computed through December 31 of the current year.
88.42(2) (2)Each town, village and city clerk shall insert in the tax roll for each year, but in a column separate from the general tax, the amounts certified to that clerk by the secretary of the board under sub. (1). Such assessments and interest shall be collected in the same manner as general taxes, except that the personal property of natural persons and private corporations, and all lands except those against which assessments were made, are not liable to seizure and sale therefor.
88.42(3) (3)In case of failure to certify or collect the unpaid assessments in any one year or if mistakes are made in certifying or collecting assessments, the same may be certified, corrected and collected in any subsequent year.
88.42(4) (4)All drainage assessments collected by the city, village or town treasurer shall be settled under s. 74.23, 74.25 or 74.30 with the county treasurer of the county in which the drainage board with jurisdiction of the district is located, and the city, village or town treasurer shall obtain and file the proper receipt for the assessments. The county treasurer shall promptly credit the amounts received under this subsection to the drainage districts entitled to the amounts.
88.43 88.43 Collection of assessments as delinquent taxes.
88.43(1)(1)If the amounts certified to the town, village or city clerk under s. 88.42 are not collected by the town, village or city treasurer, such treasurer shall return them to the county treasurer, in the same manner and at the same time as delinquent taxes, but separately therefrom. The county treasurer shall collect unpaid drainage assessments under subch. VII of ch. 74.
88.43(4) (4)Unless in conflict with this chapter, the rules of law in chs. 74 and 75 which are applicable to the collection of general taxes apply to the collection of delinquent drainage assessments.
88.43 History History: 1987 a. 378; 1989 a. 56.
88.44 88.44 Contesting validity of assessments.
88.44(1)(1)If an interested person petitions the drainage board for review of the validity of any order assessing benefits or costs, correcting omitted assessments, reassessing benefits or apportioning benefits upon division of a parcel, the drainage board shall fix a time and place of hearing and require all interested persons to show cause why the assessment should be modified. The order to show cause shall be served as provided in s. 801.11 upon such persons as the court directs.
88.44(2) (2)Any person objecting to the validation of the assessment shall, on or before the day fixed for the hearing, file a written statement of the person's objections with the drainage board. The drainage board shall hear the objections at the time fixed for the hearing and shall enter an order directing all necessary amendments and curing all defects in the former proceedings or shall render valid and binding the former order.
88.44(3) (3)No drainage assessment is void or voidable for irregularity in the proceedings unless it is shown that the assessment is inequitable.
88.44(4) (4)An interested person shall submit a petition under sub. (1) and obtain either the decision of the drainage board under this section or a denial of the petition for a hearing before seeking judicial review of the drainage board's order levying an assessment.
88.44 History History: 1991 a. 316; 1993 a. 456.
88.45 88.45 Procedure upon discovering omitted assessments.
88.45(1)(1)Upon learning of an omission to assess benefits or to assess costs or to award damages to any lands in a district, the board shall issue an order making the assessments or awards that the board considers just.
88.45(2) (2)No omission to assess benefits or to assess for costs or to award damages to any lands in a district renders any assessment in the district voidable.
88.45(3) (3)This section is retroactive.
88.45 History History: 1993 a. 456.
88.46 88.46 Reassessment of benefits.
88.46(1)(1)At any time after the expiration of 5 years from the order of the board assessing benefits in a drainage district, owners of land in the district may petition the drainage board for a reassessment of benefits on the ground that the original assessment of benefits is inequitable and unjust. The petition shall be signed by at least one-tenth of the owners of land within the district or by the owners of at least one-tenth of the lands within the district.
88.46(2) (2)Upon receipt of a petition meeting the requirements of sub. (1), the board shall either schedule a hearing on the matter to be held within 60 days after receiving the petition or issue an order denying the petition within 60 days after receiving the petition. If it appears to the board that the original assessment of benefits throughout the drainage district was uniformly low or substantially so, by reason of the application of a substandard evaluation or other cause, the board shall issue an order adjusting all benefits in the district so as to correct the inequities and injustices.
88.46(4) (4)A reassessment under this section supersedes all prior assessments of benefits, subject in every case to s. 88.02.
2021-22 Wisconsin Statutes updated through 2023 Wis. Act 272 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on July 9, 2024. Published and certified under s. 35.18. Changes effective after July 9, 2024, are designated by NOTES. (Published 7-9-24)