“They have no chance of getting any money out of me.”
Oxford Twp. Supervisor Bill Dunn didn’t mince words when it came to the Road Commission for Oakland County’s (RCOC) request for the municipality to pay 50 percent of the $360,000 that was spent replacing the failed culvert beneath Wood Trail, south of W. Drahner Rd., and rebuilding the section of road above it that collapsed in late February.
Dunn isn’t just talking tough. He’s got a three-page legal opinion from township attorney Gary Rentrop supporting his position.
“It seems pretty clear to me that not only do we not have to pay the road commission, but legally, we can’t do it because it would be unconstitutional,” Dunn said.
RCOC Spokesman Craig Bryson said the road commission had not yet received Rentrop’s letter, so “unfortunately, we can’t comment on its content yet.”
“I just spoke to the head of our legal department about it and she has not seen any sign of it,” he said on Tuesday afternoon.
Back in May, the township received a letter from Dennis Kolar, managing director for the road commission, stating the “RCOC must insist that the township pay 50 percent of the construction cost.”
Kolar cited Michigan Public Act 51 of 1951 as the basis for the county’s claim.
“(The law) only allows a road commission to expend Michigan Transportation Fund monies for construction purposes on local roads, like Wood Trail, to the extent the funds are matched by other sources,” he wrote. “To meet this statutory requirement, (the) RCOC must have a partner to share the costs of the construction project to replace the Wood Trail culvert.”
Following the letter, the township received a legal opinion from Dianne Hersey, general counsel for the RCOC, supporting what Kolar stated. She cited a section of state law that puts restraints on the way the RCOC uses Michigan Transportation Funds (MTF).
“Money distributed from the Michigan Transportation Fund may be expended for construction purposes on county local roads only to the extent (it’s) matched by money from other sources,” the law states.
“It appears unequivocal from the plain language of the statute that the Legislature has restricted the Road Commission’s use of MTF to no more than 50 percent of the total cost of construction on county local roads,” Hersey wrote.
Dunn was not impressed by the RCOC’s legal opinion because he said, “Rentrop shot holes all through that.”
In his Aug. 20 letter, Rentrop argued the Wood Trail repairs do “not require matching funds because they did not constitute ‘new construction,’ but rather were in the nature of ‘reconstruction,’ ‘restoration,’ or ‘rehabilitation.’”
“Further, there is another provision of the same statute quoted by the RCOC legal counsel, that permits a certain percentage of state funds to be expended on local roads ‘with or without matching’ (funds) and an additional amount that can be expended if there is an emergency,” he wrote.
“Beginning Sept. 30, 2010, no more than 30 (percent) per year of the amount returned to a county for use on the county primary road system may be expended, with or without matching (monies), on the county local road system,” the law states.
It also states, “An additional amount, not to exceed 20 (percent) per year of the amount returned to a county for use on the county primary road system, may be expended on the county local road system . . . if there is an emergency.”
Rentrop noted even if matching monies were required to use state road funds for this type of project, “there is no statutory requirement that any of the matching funds have to come from the township.”
The township attorney went on to point out both Michigan Court of Appeals’ decisions and state Attorney General opinions support the fact “there is no obligation at all for the township to pay any costs to the county for road repairs without a prior written contract to do so.”
When the road commission, on May 15, entered into a contract with the Warren-based Angelo Iafrate Construction Company to handle the Wood Trail project, Rentrop wrote it was done so “without any agreement from the township to pay any portion of the cost other than the water and sewer line replacement.”
Some water and sewer lines were destroyed as a result of the culvert’s failure.
Even if the township wanted to contribute, Rentrop explained it could not do so because without a prior written agreement, such action would violate the state Constitution.
He quoted Article XI, Section 3, which states, “Neither the legislature nor any political subdivision of this state shall grant or authorize extra compensation to any public officer, agent or contractor after the service has been rendered or the contract entered into.”
“Although we have not located a case directly on point, it is arguable that a township payment to the county, just like to any other contractor, would violate the above constitutional provision if it was not agreed to prior to the work being performed,” Rentrop wrote.
“I don’t think the township should be doing something unconstitutional just because the road commission doesn’t want to foot the whole bill for something that’s their responsibility anyway,” Dunn said. “We don’t own any roads. They do. When a culvert under one of their roads has a problem, it’s their job to fix it and pay for it, not ours.”
As part of Rentrop’s letter, he quoted portions of four RCOC safety inspection reports dating back to Jan. 28, 2015 that indicated there were “problems” with the Wood Trail culvert that “continued to grow worse” over a three-year period until the situation became “critical” just prior to the appearance of a sinkhole on Feb. 24 this year. (see related story “County knew culvert was in bad shape”).
“It is our understanding that the township was not notified of the condition of this culvert at any time prior to the sinkhole appearing,” the attorney wrote.
Dunn confirmed the road commission “never” contacted him about the culvert’s condition before it failed.
“I didn’t find out there was a problem until I was staring at a big hole,” he said.
In the 2016 and 2017 safety reports, the inspector wrote, “Budget for (the culvert’s) replacement.”
In the 2018 report, written just days prior to the sinkhole’s appearance, the inspector wrote the situation “requires immediate action” because “a section of the culvert is beginning to collapse.”
This reporter asked Bryson if the township would have been asked to share in the project’s cost if the work had been done prior to the sinkhole and the road’s collapse.
“The answer is yes,” he said. “Whether we did it as a planned project or as an emergency response, either way, we would have asked the township to participate.”
“On primary roads, we generally pay the full cost ourselves,” Bryson explained. “On the local roads (like subdivision streets) is where we ask the community to participate.”