Commissioners Discuss County Road Tax

The Washtenaw County road commission plans to request a countywide millage to help pay for road repair. It’s a tax that the county board of commissioners could impose without seeking voter approval. Road commissioners say the millage is needed because the county is faced with diminished funding from the state, increased costs for labor and materials, and a growing number of deteriorating roads.

The topic emerged at a Sept. 8 working session of the county board of commissioners, which would need to authorize the millage before it could be levied. The issue was not on the agenda, and was discussed late in the meeting.

Wes Prater brought up the issue of a possible road millage during the time set aside for items for current or future discussion. He said he’d received an email indicating that the road commission planned to ask the board to levy an 0.6 mill tax, and he wanted more details. The millage, if authorized, would raise about $7 million for more than three dozen proposed road projects.

County administrator Verna McDaniel reported that she and Curtis Hedger, the county’s corporation counsel, had met with road commissioner Ken Schwartz and Roy Townsend, the road commission’s director of engineering, regarding a possible county millage. Road commissioners believe the millage could be levied under Public Act 283 of 1909. Because that act pre-dates the state’s Headlee Amendment, it could be levied by the board and would not require voter approval.

The staff and board of the road commission have been discussing this proposal at their public meetings as well as privately with elected and appointed officials throughout the county, including county commissioners. At least one of those private meetings may have violated the state’s Open Meetings Act.

It’s expected that Townsend and Schwartz – a former county commissioner, who was instrumental in finding this possible funding source – plan to make a presentation at the county board’s Sept. 21 meeting. The county currently levies two other taxes in this pre-Headlee category, though they are for considerably smaller amounts: (1) 0.05 mills to support economic development and agriculture; and (2) 0.025 mills to support services for indigent veterans. Both were also put forward by Schwartz when he served on the county board. A final vote on renewal of those two millages will occur at the Sept. 21 meeting.

McDaniel said she asked Hedger to seek advice on the road tax from the state’s attorney general. The county needs to look at the statute carefully, she said, to determine what the board’s rights are.

Road Commission: Some Background

The county road commission is a public entity, funded primarily through Public Act 51 gas taxes and vehicle registration fees. Its 2011 budget is about $16.5 million, and employs about 130 workers. In Washtenaw County, the road commission is responsible for maintaining all the public roads outside of cities and villages, which pay for their own street repair and construction. In Ann Arbor, for example, voters will be asked in November to renew a five-year street repair millage of 2.0 mills.

In addition to handling repair and reconstruction for about 1,650 miles of roads, the road commission maintains more than 100 bridges and 1,000 culverts in the county. It also has a contract with the Michigan Dept. of Transportation to handle maintenance for 580 lane miles of state “trunkline” roads that run through the county, including Washtenaw and Michigan avenues. During winter months, road commission workers handle snow removal, salting and sanding on county roads and state trunklines.

The road commission has its own governing board of three commissioners. Currently, road commissioners are Doug Fuller (chair), Fred Veigel (vice chair) and Ken Schwartz. The county board of commissioners appoints the road commissioners, but has no authority over the road commission’s budget or activities.

But county commissioners in the past have attempted to address what they saw as problems with the road commission, including a lack of responsiveness and overly-weighted representation from the eastern side of the county. In early 2010, Jeff Irwin – who served a decade as county commissioner for District 11 in Ann Arbor before being elected as state representative in November 2010 – pushed to expand the number of members on the road commission. The board began that process by setting a public hearing for possible expansion, after vigorous debate. The hearing was held in June 2010. After another lengthy and sometimes heated discussion, the board majority voted to end the process, with dissent from Irwin and Conan Smith.

Road Millage: Public Act 283 of 1909

At their Aug. 16, 2011 meeting, road commissioners passed a resolution approving the 2012 Road Improvement Plan “consistent with Public Act 283 of 1909″ and authorizing the county highway engineer to present the plan to the Washtenaw County board of commissioners for consideration. [.pdf of the relevant section from Act 283. The document includes a summary written by Lew Kidder of Scio Township, who refers to the section as "one long, James Joyceian paragraph."]

The road improvement plan outlines 41 projects that could be paid for with millage funds. [.pdf of proposed projects] The list includes:

• Ann Arbor-Saline Road, from Eisenhower to eastbound I-94
• Ann Arbor-Saline Road, from Waters/Lohr to Eisenhower
• Ellsworth, from State Street to I-94
• Huron River Drive, from Bird to Foster
• Miller Road, from Maple to Newport
• Scio Church Road, from Wagner to I-94

The Aug. 16 resolution did not explicitly refer to a millage. However, the minutes of the Aug. 16, 2011 road commission working session – held prior to the regular meeting – indicate that the topic of a millage was discussed:

Commissioner [Ken] Schwartz stated that he had discussions with several County Commissioners and county representatives that seemed to be supportive of this proposed millage plan. The [Road Commission] Board was in agreement that Roy Townsend and Commissioner Ken Schwartz should present this plan to the County Board in September.

Schwartz was appointed to the three-member road commission by the county board of commissioners in December 2010, after he lost a November 2010 re-election bid in District 2 to Republican Dan Smith. While on the county board, Schwartz was instrumental in identifying two other pre-Headlee statutes. Among its many provisions, the Headlee Amendment requires voter approval of local government tax increases that weren’t authorized before November 1978, when Headlee was adopted.

Because of those two pre-Headlee statutes, the county board now levies taxes in support of: (1) economic development and agriculture (Act 88); and (2) services for indigent veterans (Indigent Veterans Relief Act). Those millages, which also do not require a vote by the public, received initial approval at the county board’s Sept. 7, 2011 meeting. A vote for final authorization will be taken on Sept. 21. If given final approval, the millages would be levied in December 2011.

Road Millage: County Board Discussion

At the Sept. 8 county board working session, Rob Turner – the board’s liaison to the road commission – reported that he’d been invited to lunch earlier this year with road commissioners Schwartz and Doug Fuller to discuss the millage issue.

This news prompted board chair Conan Smith to quip that the lunch had violated the Open Meetings Act. [Though joking, Smith's statement may have been accurate. With only three members on the road commission, two members constitute a quorum. The Open Meetings Act is violated if two road commissioners deliberate towards a decision on road commission business and their meeting has not been properly noticed as open to the public.]

Turner continued, saying Schwartz had found that the 1909 law requires the county road commission to present a report on its needs to the county board, including a request for funding. The road commissioners expressed a desire to do that, Turner said. After that meeting with the road commissioners, Turner said, he discussed the issue with Hedger and McDaniel. It was determined that Hedger would do research to see if the state’s gas tax legislation superseded the 1909 law.

However, Turner said, road commissioners have subsequently decided to move forward, without waiting for the county to weigh in. So in August the road commission passed a resolution to make a request at the county board’s annual meeting in September. Turner noted that the board doesn’t have to act on the road commission’s request – they have options.

Conan Smith said the road commission has a robust plan that needs to be shared. The plan seems to focus on projects at the boundaries between jurisdictions, he noted, and their prioritization process is worth hearing. The legalities are also interesting, Smith said. While he’s sorry the issue has been “sprung” on them, at the same time it’s fascinating.

Prater noted that there’s legislation pending in Lansing that would repeal Act 88 (the economic development millage), though it’s been held up in committee. He suspected that when people get wind of this road millage, there’ll be efforts to stop that, too.

In a phone interview this week with The Chronicle, Hedger said he’d had an informal conversation with an assistant state attorney general, who didn’t know of any other county that had passed such a millage. Hedger said he’d also called around to several other counties and road commissions in Michigan, and hadn’t found any place that levied this kind of millage. However, he said it would be premature for him to give advice on the matter before anything had been proposed.

Reached by phone this week, Schwartz told The Chronicle that the state law has been overlooked for decades, but that it remains in effect and makes it mandatory for the road commission to present a road improvement plan, with an estimate for the amount to fund that plan through a millage. A cap on the amount that can be raised is based on the size of the county’s taxable property value – for Washtenaw County, the cap is 1 mill.

The plan that Schwartz and Townsend expect to present to the county board recommends an 0.6 mill tax, which would raise about $7 million. The road commission’s current budget is about $16.5 million. Schwartz said the primary road commission funding, received via the state, hasn’t kept up with labor and material costs. Many roads in the county are in bad shape, he said, but the road commission lacks resources to repair them.

Many of the proposed projects span multiple jurisdictions, Schwartz noted, which often makes the work trickier to coordinate and fund. Examples include Ann Arbor-Saline Road near the I-94 interchange – parts of that stretch are the responsibility of the city of Ann Arbor, the Michigan Dept. of Transportation, and the road commission. As another example, a section of Grove Road in Ypsilanti, which is a feeder route into Ypsilanti Township, is seriously degraded, Schwartz said, but Ypsilanti doesn’t have the funds to pay for repair.

The millage would be collected countywide, but spent on projects in proportion to a jurisdiction’s taxable value, Schwartz said. He noted that unlike funding for things like human services, road repair is clearly measurable – commissioners can simply go out and drive the roads to see what kind of condition they’re in.

Schwartz also indicated that the work would likely be contracted out – the road commission doesn’t anticipate using the funds to hire permanent staff.

Like Hedger, Schwartz said he didn’t know of any other Michigan county that was levying this millage. He said the last time it was levied in Washtenaw County was in the late 1960s or early 1970s, for work that included roads around Washtenaw Community College, which opened its Huron River Drive campus in 1970.

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