FEBRUARY 26, 2003
MEMBERS PRESENT:†††††††††††††††††††††††††††††††††† Don Williams, President; Phil Baxter, Vice-
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† President; Carl Conner, Secretary; Don
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Ashley, Attorney for Board; Karan Barnhill,
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Surveyor and Rod Madden, Deputy Surveyor.
ALSO PRESENT:†††††††††††††††††††††††††††††††††††††††††† Mark Barton, Toby Newmaster, Thomas E.
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Newmaster, Sherri Phillips and Roger Beard.
President Williams called the meeting to order.
APPROVAL OF MINUTES:
Commissioner Conner made a motion to approve the minutes of February 12, 2003 as presented, 2nd by Commissioner Baxter. Motion carried 3-0.
QUOTE OPENING-McCOOL DITCH:
President Williams stated the next order of business was the quotes for McCool Ditch.
The sealed quotes were passed to Don Ashley, Attorney for the Board. There were 5 quotes to be opened.
The first quote was submitted by Bigge Excavating for the project of McCool Ditch at 1,700 feet to straighten and slope ditch at a ratio of 2:1 dispose of stumps by grinding into chips, seed and install North American green cover on banks, the cost $17,850.00.
Mr. Ashley opened the second quote and stated the proposal was submitted by Ray Stradtner Excavating, Inc., for the project of McCool Ditch, straighten and shape ditch as directed by County Surveyor total proposal $27,890.00.
The third envelope opened by Mr. Ashley was a quote for McCool Ditch submitted by Jerry Aigner Construction and the quote is $25,706.00.
Warrick Excavating, Inc., submitted the fourth quote, the project is McCool Ditch and the bid is $5,800.00.
The fifth and final quote came from DG Construction for McCool Ditch and the quote per plans and specifications is $26,250.00.
Rod Madden, Deputy Surveyor stated that the fabric and materials for this job would exceed $5,500.00 and he believes that the Warrick Excavating bid for $5,800.00 is a mistake. He added that there is no way that job could be done for that kind of money, he stated that a representative from Warrick Excavating did attend the pre-bid meeting but there is something drastically wrong as this job cannot be done for that small amount of money.
President Williams asked Don Ashley, Attorney to please check the papers turned in by Warrick Excavating and make sure there are no other figures in there anywhere.
Rod Madden suggested that maybe the wrong quotes were inserted into the wrong envelopes, as it would be more in line with the quote for the Cypress Creek job.
Commissioner Baxter suggested that we lay aside the quotes on McCool and open the Cypress Creek quotes in case what Rod suggested has happened.
Commissioner Conner asked if Rod knows for a fact that Warrick Excavating turned in a quote for Cypress Creek?
Rod answered that he received two envelopes from Warrick Excavating, one for each job.
Commissioner Conner also recommended that before any action is taken on the McCool Ditch quote that we open the quotes for Cypress Creek and do a comparison there as it might be a mistake in putting the appropriate name on the correct envelope.
Don Ashley opened Warrick Excavating quote first for Cypress Creek and the quote for bank slide is in the amount of $5,800.00.
President Williams stated that it looks as though he has given the same quote for both jobs and asked Mr. Ashley to go ahead with the other quote openings.
The second quote Mr. Ashley opened for bank slide on Cypress Creek South of Jenner Road is from Jerry Aigner Construction in the amount of $7,391.25.
The third quote for bank slide on Cypress Creek submitted by DG Construction is in the amount of $3,100.00.
The fourth quote is a proposal by Ray Stradtner Excavating to repair bank slide and other work listed in specifications on Cypress Creek is $6,800.00
The fifth and last quote on Cypress Creek is submitted from Bigge Excavating for the bank reconstruction and is in the amount of $5,200.00.
President Williams stated he would like to take motions on the Cypress Creek job first and asked Mr. Madden if all concerned had been at the pre-bid meeting?
Mr. Madden answered that everyone that had turned in a quote had a representative at the pre-bid meeting.
Commissioner Baxter made a motion to award DG Construction the Cypress Creek job at $3,100.00 2nd by Commissioner Conner. Motion carried 3-0.
President Williams stated the issue of McCool Ditch where Warrick Excavating is the low bidder and asked Attorney Ashley what would happen if they would award this to Warrick Excavating for the amount of $5,800.00 and he says he canít do it for that, would the Board have to re-bid for McCool Ditch or take the next lowest bidder?
Mr. Ashley answered that he thinks in that event it should be re-bid, but this is obviously a mistake since he bid the same amount on both ditches.
President Williams stated this is the same person who writes letters about not giving him a contract when he is just $8.00 or $12.00 more.
Mr. Ashley answered that this is obviously not a correct bid and there is nothing to be gained by awarding it to someone who cannot fulfill the project work for the amount submitted.
President Williams agreed with Mr. Ashley that it is probably not a correct bid.
Mr. Ashley added that this would probably cause a delay in the project and he recommends that the quote from Warrick Excavating be disregarded as it is so far from the other quotes.
Mr. Rod Madden asked to address the Board and stated that he knows there have been situations where a job has been re-bid before but he doesnít like to do it and the contractors donít like it because by the time it is re-bid they already know what the other contractors bid on the job and it is not a fair situation.
President Williams asked Mr. Ashley if the Board had grounds to reject the $5,800.00 bid as it was so far out of line.
Mr. Ashley answered that it is obviously a mistake particularly since the quote is the same on another bid and he thinks he has just transposed the figure on both quotes.
President Williams asked for any comments or discussion from the Board.
Commissioner Conner made a motion to accept the bid of $17,850.00 from Bigge Excavating for McCool Ditch, 2nd by Commissioner Baxter. Motion carried 3-0.
BLUEGRASS RECREATIONAL DEVELOPMENT:
Karan stated this is not a subdivision but a recreational development, which does not require a subdivision approval. She further explained that the development plan is going to the Board of Zoning Appeals as a conditional use. Karan then turned the explanation over to the owner.
Mr. Tom Newmaster with Newmaster Development introduced himself and stated that since the purchase of the land in 1995 he has been working toward this and now it is finally in the beginning stages. He added that he wants to designate over 400 acres in this development as recreational use and will probably take 15 to 20 years to develop completely. He added that they have plans for an RV campground, a nine-hole golf course and driving range. They have also had meetings with a group that would like to build an indoor aquatic center with a verbal commitment to take to the bank on that and also will probably have some restaurants and service centers to add to these facilities.
Mr. Newmaster also added that just before coming to this meeting he had received a fax from the Black Buggy Restaurant and General Store with a commitment that they have chosen this site in Warrick County to build their first franchise.
Tom Newmaster stated that as far as the drainage plan Bernardin Lochmueller & Associates have prepared all of the current drainage flows and that they have been working on this for about 2 Ĺ years and want to make sure everything not only meets but exceeds expectations.
Karan stated that this development didnít require a drainage plan but she did have them submit a letter stating that with large tracts of land and since he is retaining ownership, the storm water is going to existing lakes and she is recommending that no drainage plans be required for this development as it is a recreational facility.
President Williams asked about the lots on Fisherville Road?
Karan answered that is a separate development.
Mr. Newmaster also told the Board that he sent out letters to all the adjoining property owners and had an open forum meeting so that the entire neighborhood would know what would be happening on the property.
Commissioner Conner asked what the target date was for beginning construction?
Mr. Newmaster answered that The Black Buggy wants to have their facility open by October 1, 2003 and he added that he wants to build facilities that will house wedding receptions, family reunions etc. and the Black Buggy will also cater to those buildings and events.
Mr. Newmaster added that he has experience in this type of development as he managed the French Lick Resort and the Shangri-La as well as hotels and his pricing will make it more affordable for family outings.
Commissioner Conner made a motion to approve the recommendation of the Surveyor that no drainage plans be required for the Bluegrass Recreational Development, 2nd by Commissioner Baxter. Motion carried 3-0.
LAKEVALE ESTATES LOTS 3,4,13 & 14.
Karan told the Board that they have asked for another continuance until the first meeting in March.
Karan also explained that Meadowlark and Three Lakes should not have been on the agenda, that she made an error and put it on the wrong date.
RECLASSIFICATION OF ANGEL DITCH-URBAN DRAIN:
Karan explained that this came before the Board at the last meeting and the minutes reflect that it was approved subject to the Attorneyís comments and she wanted it in the minutes that Mr. Ashley did approve of the reclassification of that portion of Angel Ditch.
Mr. Ashley stated he looked over the package that Karan had sent and it appears to be in order.
President Williams stated this was the ditch where they were going to put in a concrete seam so that the residents could mow it.
Mr. Kenny Ubehlor introduced himself and stated he was at the meeting hoping for an approval of the reclassification.
President Williams asked what footage the Right-of-Entry was going to be reduced to?
Karan answered that it would be reduced to 35 feet.
Commissioner Conner made a motion to accept and approve the reclassification of a portion of Angel Ditch to an Urban Drain, 2nd by Commissioner Baxter. Motion carried 3-0.
Karan stated that at the last meeting Commissioner Conner brought up a recommendation to allocate certain Cumulative Drain Funds to do a project that would relocate a ditch into the corporate boundaries of Chandler. She added that she has sent a package to all present explaining what her comments and problems were and she also asked for Mr. Ashleyís opinion in writing so that we could basically proceed or not. Karan stated that everyone should have received a letter from Mr. Ashley, which explains that the funds cannot be used, and she wanted to get it into the minutes that for that particular project the Cumulative Drain Funds could not be used.
President Williams asked Mr. Ashley what the Drainage Board can and cannot use the funds for?
Mr. Ashley answered that Cumulative Drainage Fund is set up strictly for construction, reconstruction and maintenance of ditches that are classified as regulated drains and only in the County but outside the limits of municipalities because the Cumulative Drain tax is imposed on all County property, except property within the corporate limits of municipalities. He added that it is logical that property that is not be subjected to tax cannot be benefited by tax imposed on a different unit of government.
Commissioner Conner asked Mr. Ashley if he had reviewed the entire project?
Mr. Ashley answered that he had received a package from Steve Sherwood and asked if that was the package Commissioner Conner is referring to, where he proposed acquiring Right-of-way adjacent to Fuquay Road for drainage purposes?
Commissioner Conner answered that was correct.
Mr. Ashley stated that as he pointed out in his letter the Drainage Board does not have any power of imminent domain and cannot condemn property. When a regulated drain is established there automatically follows this 75 foot Right-of-Entry and does not acquire title to the property as the State, City, Town or County could do in acquiring property. He added that the Drainage Board does not have that power, it only establishes a way for drainage and the statutory easement just follows the drain when itís established by the Drainage Board.
Commissioner Conner asked that if it was a Legal Drain we would not have to be concerned about acquiring Right-of-Way through, if ultimately had to be imminent domain because of the fact that the State Statutes to establish and address as drainage issues would give us the right or the prerogative to go ahead and go into that legal drain and do whatever was appropriate.
Mr. Ashley stated it would have to be within the 75 foot Right-of-Entry.
Commissioner Conner stated so if thatís the case then the first decision has to be is whether or not from the legal perspective that weíre dealing with a legal drain, I assume and his understanding is thatís presently classified as a legal drain.
Karan stated that where it is now it is a legal drain.
Commissioner Conner asked if it is a legal drain where it presently exists now, are you saying itís not a legal drain on the West side of Fuquay Road?
Karan answered no, the legal drain is on the East side?
President Williams asked if it ends when it goes under the road?
Karan answered that it enters the Town of Chandler when it goes under the road.
President Williams asked so its not a legal drain from where it goes under the road?
Karan stated not under the Drainage Boardís jurisdiction because it is in the Town of Chandler.
Commissioner Conner said if it is a legal drain even though itís in the boundaries of Chandler as a municipality, are you saying that it is inappropriate or it is appropriate for the Drainage Board to act to make any changes to that drain?
Mr. Ashley answered not in the corporate limits of Chandler.
Commissioner Conner asked even if it is designated as a Legal Drain?
Mr. Ashley answered that the Drainage Board has no authority to spend money within the corporate limits.
Commissioner Conner asked but do we not have authority to spend money outside of the corporate boundaries of Chandler?
Mr. Ashley answered on a regulated drain.
Commissioner Conner stated that it appears to him that what we have is a project that apparently is a part of it is outside of the boundaries of Chandler and a part of it is inside the boundaries of Chandler, is that correct?
Karan Barnhill stated she did not agree with that because you are relocating a ditch from the County to inside the corporate boundaries, thatís what your project is. She added that his project limits is taking a County drain that is in the County and relocating it into the corporate limits, thatís what you want to do.
Commissioner Conner stated that what they want to do is to address several issues that need to be addressed and can be addressed by making changes by what he understands is presently a designated legal drain that is outside of the corporate limits of Chandler, now to do that apparently, we are looking at based upon what you are saying he would want to verify through the City of Chandler because we have worked rather closely with representatives from the City of Chandler in regards to this project is that part of this project to be completed the way we want it completed is going to have to be done inside the City limits of Chandler and you are saying that because of that we cannot use any funding that comes under the jurisdiction of the Drainage Board.
Mr. Ashley asked if there was a drain that presently crosses Fuquay Road and goes into Chandler?
Commissioner Conner answered yes to Mr. Ashleyís question.
Karan stated that it runs along Fuquay Road and crosses under and then goes into the Town of Chandler.
President Williams asked if anyone knows what the footage is?
Karan answered it was about 300 feet. She added that what they want to do is take the drain that runs along Fuquay Road and move it to the other side of the road, which would then be in the corporate boundaries of Chandler.
Commissioner Conner asked Mr. Ashley if he had time to look at the specific details of the plans that Steve Sherwood sent you?
Mr. Ashley answered that he had and added that it seemed as if Steve was contemplating acquiring a Right-of-Way from landowners, which the County can do.
Commissioner Conner stated he understands that the County can, but he also understands from other conversations that he and Mr. Ashley had back in November that we as a Drainage Board could not do that but that if it was a legal drain that we had right to have entry to that drain to do whatever we had to do.
Mr. Ashley answered, correct.
Commissioner Conner stated that is why he hasnít really looked at the Drainage Board purchasing Right-of-Way that if ultimately a decision was made that we had to do that the County could pursue that.
Mr. Ashley stated we have talked about the same issue for the last 2 or 3 years with Howard Ditch along Epworth Road, you are talking about having to widen the road and that would be moving the ditch and he has always felt that the County can extend the width of a drive-way through either voluntary acquisition of the property or imminent domain and then you could move your regulated drain within that Right-of-Way, of course Cumulative Drain Funds can be used for that but not the acquisition but for the construction of re-location of the ditch.
Commissioner Conner stated that is basically what we are looking at doing here is relocating the ditch.
Karan stated but your relocating it into the boundaries of the Town of Chandler and that is where my problem comes in, if it was out in the County she could see the possibility but you are relocating it into the Town boundaries of Chandler without a Surveyorís report which she thinks by statute you have to get and she opposes it, she knows the use of the Funds is Donís call but she doesnít see how you can use County Cumulative Drain Funds to move a drain to put it into the corporate boundaries where the Drainage Board would not have any jurisdiction over it after that point, she asked if she was not right about this?
President Williams said to be hypothetical about this he wants to be sure that this is handled legally and if the County was to purchase the Right-of-Way which he realizes may or may not come about, but if it was to come about and the drain was moved in the corporate limits then we still couldnít use any funds nor could the Drainage Board clean it, it would be Chandlerís deal, so his next question is could the Drainage Board use any funds out of Cumulative Drain for anything within the Chandler limits, whether it be Right-of-Way or putting the ditch over there?
Mr. Ashley stated that it is his opinion that the Drainage Board cannot, the way the Cumulative Drain is set up by statute.
President Williams stated he had one other question, he stated he thinks the reason the water level raises as high as it does there primarily because that specific legal drain takes 2 90 degree turns and it slows the water down, he added there is an ďLĒ shaped pipe that goes under Fuquay Road now, (still hypothetical) if there was another pipe put under Fuquay Road, could the Drainage Board do that?
Mr. Ashley answered as long as it is outside the municipality boundaries.
President Williams stated one end of the pipe would be in the County and the other in the City?
Karan stated that the road is actually in the town, they annexed the whole road so itís not even a County Road.
President Williams stated that the Board may not be able to do what Commissioner Conner is wanting to do but there may be a possibility there is some problems, he added that he grew up in that area and he does not remember ever seeing the road under water but thatís not to say it has never been under water. He stated that there used to be a bridge across where that personís drive-way is now as he used to ride his bicycle over it as a kid and if putting the pipes in there instead of the bridge has impeded the water, which apparently they have done, he has no sympathy for the property owners because the ditch was there when they bought the property and its like buying a gravel road and saying pave it before we build a house on it. He also stated on the other hand if by taking the bridge out, if the County did that and he does not know whether it was the Drainage Board or the County and put the pipes across there and if the flooding is the main issue for safety it seems to me that the possibility of putting another pipe at an angle across there to help with the drainage might be appropriate and that was his question, could Cumulative Drain be used to put the pipe in?
Mr. Ashley asked if this was to replace a pipe?
President Williams answered to put another one in beside it; he asked if anyone knew who put the other pipe in originally?
Karan stated she thinks it was the County on a road project before they annexed it into the Town.
Mr. Ashley stated that he thinks the County can do it.
Commissioner Conner stated he thinks that as long as you are doing anything with that ditch if it is involved in drainage based upon what is being said that it is outside the city limits then we could use the Cumulative Drain Funds to do whatever we have to do.
President Williams said if it was in the County we could.
Karan asked does the Statute not say that if you have to replace or put in a pipe in a County way or in a Highway or a Roadway that entity has to pay for that structure.
Mr. Ashley answered that would be utilities.
President Williams stated he understands that is a County responsibility, he just wanted to make sure and he asked Mr. Ashley that he maintain that basically the Drainage Board has no legal authority to use Cumulative Drain Funds for anything in the municipality?
Mr. Ashley answered that actually it is outside the jurisdiction of this Board and to spend money where you have no jurisdictionÖ
President Williams stated that the Drainage Board canít legally do that, is he right or wrong?
Mr. Ashley answered that he was right.
President Williams stated that the Board was not going to break the law.
Commissioner Conner stated he was not in favor of breaking the law, but what he was asking is that if that is a legal drain and it is outside the County anything that we have to do to that drain to improve that site for purposes of flooding or whatever, that cost can be paid out of the Cumulative Drain Funds, is that correct?
Mr. Ashley answered that was his contention.
Commissioner Conner said he was asking if his interpretation of the law is correct?
Mr. Ashley answered to use those funds in an area over which we have no jurisdiction, he thinks is highly questionable.
Commissioner Conner asked when you speak of area of jurisdiction, are you speaking of the geographical area?
Mr. Ashley answered yes.
Commissioner Conner said and when you are speaking of the geographical area are you speaking of what falls within the boundaries of Chandler?
Commissioner Conner stated he was speaking now of what falls outside of Chandler because the drainage ditch presently is not in Chandler, that is his understanding, the present drainage ditch.
Karan stated no, it goes the Right-of-Way of Fuquay which would be the East Right-of-Way is the Town boundary whatever is outside that Right-of-Way line and she doesnít know what it is, is a legal drain. She doesnít know what the Right-of-Way for Fuquay Road is, Steve Sherwood would know that.
President Williams stated he was certain it was 33 from centerline.
Karan stated she wanted to add this for the Boardís information, she agrees that there is a problem with the ditch. She further stated she resents the fact that she has been left out of all of the discussions for a year and a half, that if there were improvements that need to be done to the drain she should be included in those discussions. Karan also stated the Board should come to her and ask her if she would review any regulated drain to see if there is anything the County Drainage Board can do to correct that problem, that is the normal standard procedure. She also stated that State Statute requires she do a report to the Board requesting improvements to any drain. She stated she agrees that there is a problem but it has been there for years and those people that built that houses there knew they were going to flood, she was here when they built them and they were well aware of that. She stated there might be things we can do but without being included and without any discussions to try to assist the people there itís hard for her to give the board a recommendation. She added that with all the meetings and discussions that have been had without her attendance for a year and a half is totally improper in her opinion. She also added that she would love to help the Board and help the people in the area but if she is not included she canít help.
Commissioner Conner stated he did not see where he owed Karan an apology for leaving her out of anything.
Karan answered that she did not ask for an apology.
Commissioner Conner stated that she was not going to get one, but he doesnít see where he has done anything inappropriate since he is in the position of being a member of the Drainage Board and he thinks that if Karan would recall, when he first came into office he did in fact take her out to look at this problem and he did talk to her about it.
Karan answered that he did not, that statement was a lie that she had never been to that site with him.
President Williams stated the discussion on Stollberg Ditch was concluded. He apologized to the gentlemen in the audience and told them they had the right to be there but not to speak to the Board, there may come another time, but today is not the right time.
MEETING DATE AND TIME CHANGE:
Karan stated the last meeting in March, which would be March 26, 2003, is scheduled during Road School and her recommendation is to postpone any business until the first meeting in April.
President Williams stated that would be feasible as they could continue the business until the first meeting in April.
President Williams asked for a motion to change the March 26, 2003 meeting.
Commissioner Conner made a motion to move the March 26, 2003 meeting or cancel it and move the business to the first meeting on April 8, 2003, 2nd by Commissioner Baxter. Motion carried 3-0.
President Williams asked for a motion to pay the claims, which added up to $3,026.00 and asked if the jobs were finished and approved on Seitz Ditch and Hachmeister Ditch? Rod Madden answered they were inspected and approved. Commissioner Baxter made a motion to pay the claims, 2nd by Commissioner Conner. Motion carried 3-0.
President Williams asked if there was any other business to come before the Board, as there was none he asked for a motion to recess.
Commissioner Conner made a motion to adjourn, 2nd by Commissioner Baxter. Motion carried 3-0.