SEPTEMBER 24, 2003
MEMBERS PRESENT:†††††††††††††††††††††††††††††††††† Don Williams, President; Phil Baxter, Vice-
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† President, Don Ashley, Attorney for Board;
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Karan Barnhill, Surveyor and Rod Madden,
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Deputy Surveyor.
ALSO PRESENT:†††††††††††††††††††††††††††††††††††††††††† Monte Williams and Bruce Miller
President Williams opened the meeting.
APPROVAL OF MINUTES:
President Williams asked for a motion to approve the minutes of September 10, 2003.
Commissioner Baxter made a motion to approve the minutes of September 10, 2003, 2nd by President Williams. Motion carried 2-0.
URBAN DRAIN RECLASSIFICATION:
Surveyor Karan Barnhill stated that the Board should have
received some information that she sent up about a week ago to reclassify a
portion of Willow Pond Ditch to an Urban Drain classification. She added that
it would be the portion that runs from
President Williams stated he remembered a 3:1 slope.
Karan stated that it does have a 3:1 slope on it and she thinks that they are also going to do improvements to the ditch as they do their development as well. She stated that the report that she prepared is the same as was prepared for other reclassifications and she recommends reclassification of Willow Pond Ditch.
President Williams asked Attorney for his opinion on this project.
Don Ashley, Attorney for the Board stated that he had not seen it.
Karan stated it was the exact wording that he provided on the last one except for the legal description.
President Williams stated that he would rather keep it at 30 feet as he thinks that 25-feet is too narrow even though it is the minimum.
Karan stated the decision was up to the Drainage Board.
President Williams asked Commissioner Baxter how he felt about the 25-foot minimum since he is the one who runs that kind of equipment?
Commissioner Baxter stated that 25-feet is acceptable for him.
Attorney Ashley stated that he approves the reclassification as it is the same form that was used on the other ditches.
Commissioner Baxter made a motion to approve the Urban Drain Reclassification of 25-feet for Willow Pond Ditch, 2nd by Commissioner Williams. Motion carried 2-0.
DISCUSSION-GRANT FOR SMITH FORK:
Karan stated this was for information purposes only.† She stated that they were contacted by Rick Obenshain who works for 4-Rivers Conservation District and he is working on getting a grant for a portion of Smith Fork Ditch which runs off of 61 North of Lynnville. She added that the grant is basically for elicit discharges and bank stabilizations for farmers properties and the State would pay 75 % of the project and the Drainage Board would pay 25 %.
Karan stated there is an area there that has pasture land and when the cattle and horses† are grazing near the creek they are destroying the bank and also the feces are contaminating the storm water, so he wants to apply for a grant to rework the bank and use some live stakes, which she is interested in seeing how they work, stabilizing the bank, putting in a green area there and pull the pasture back away from it to keep the animals out of the creek. She added that the manure will wash thru the green area before it gets to the storm water whereas now it is just draining straight into the creek. She further added that Mr. Obenshain is going to make this into a presentation for the Board and she wanted to inform them of this.
President Williams asked if this was going to be presented to both counties or just Warrick County?
Karan answered that it is just in our County as he is the area manager in this district as he is State Appointed.
President Williams asked Karan if she knew what he would be asking from the Board, like signing the grant?
Karan answered that she assumed it would be that and to pay the 25% that the State requires us to pay and it will just be a short portion of the ditch. She also told the Board where the ditch ended up.
President Williams asked Karan if she would keep the Board informed on this matter and thanked Karan for the report.
President Williams read off the list of claims and stated they totaled $4,783.16, he asked for any discussion on the claims.
Commissioner Baxter made a motion to pay the claims as presented, 2nd by President Williams. Motion carried 2-0.
HUNTINGTON CREEK SUBDIVISION-HOLD HARMLESS-WILLOW POND:
Karan stated this business concerns Bruce Miller also as along with this he is going to be extending one of his cul-de-sac streets into the Right-of-Entry and the pavement and curve will not be in the Right-of-Entry, just the Right-of-Way. She added that he has presented an agreement and a Hold Harmless for Mr. Ashley to review and select the most appropriate way to request from the Board the encroachment of the Right-of-Way into the 25-foot Right-of-Entry for Willow Pond.
Mr. Ashley, Attorney previewed the agreements and advised the Board that he would recommend the acceptance of the Covenant to Hold Harmless.
Karan stated that with Mr. Ashleyís recommendation she would also recommend to the Board that they accept the Hold Harmless for the encroachment of the road Right-of-Way into the Right-of-Entry.
Commissioner Baxter made a motion to approve the Hold Harmless for Willow Pond, 2nd by President Williams. Motion carried 2-0.
Karan stated that she would bring this subject up for discussion only as Monte Williams is present and it was not on the agenda. She added that if you recall at the last meeting there was discussion that Mr. Williams had presented a plan to the Drainage Board wanting approval. She explained that the Board discussed the fact that the Drainage Plan would not function properly because of the ditch obstruction where the discharge was supposed to go.
Karan stated that she made an inspection last week and spoke with Monte Williams and made another inspection today and in her opinion the ditch is still not adequate to handle the drainage. She stated there has been a lot of earth moved, but there is a lot of high points, obstructions and it is still meandering. She add that she still does not feel that it is adequate to handle the discharge from the site.
Mr. Monte Williams identified himself to the Board. He stated that the ditch has had the same line for 10 years and all of a sudden it has to be relocated. He added that the ditch is not on his property, there is no drainage easement on his property for that ditch and he doesnít see how it can be meandering when itís all on his property when the easement is not even on his property. He explained last meeting that he was asked to do work on someone elseís property and he had done what he could reach from his side with an excavator which he had to lease for $720.00 a day to move this ditch. He said that his opinion is that this is just a continuing excuse for not giving him a building permit and the Surveyor agreed with his District Commissioner that the only thing that was holding up a building permit was the Stateís approval of drainage onto INDOTíS property and that has been obtained, then she brings this up. He added that itís been 2 Ĺ years since he has applied for a building permit and Karan has turned down 7 different drainage plans, all have been prepared by Indiana Registered Civil Engineers. He further stated she has not permitted any of these to go to the Drainage Board and he thinks that 2 Ĺ years is long enough and he thinks that this is nothing but an excuse.
Mr. Williams stated that the history on this ditch is that he has a drain that drains near the bottom of the ditch and the ditch was sedimented up. He stated he had notified the Surveyor of this a year ago when the Surveyor located it and at that time the invert of his drainage was 18-inches below the bottom of the ditch. He stated that he mentioned that to Karan and she decided not to do anything about it and a few months ago Ray Stradtner Excavating dumped a† tandem load of dirt on the location of his outfall of his 12-inch drain and he plugged it up. He added that he notified Karan and she told Stradtner to remove it and what he did was to take a back hoe and put it back on the bank as loose dirt and the next rain it was back in the ditch again. He explained that this past week he excavated the 12-inch corrugated culvert and it was sedimented up for 90-feet and was completely blocked, when he opened it up considerable mud came out, but he has had to remove the culvert as it would not drain. He stated that he feels he has done nothing to cause this ditch to clog up and that Stradtner Excavating is dumping loose dirt on the property North of him and within the Drainage Easement another neighbor is putting yard waste in the ditch and it is washing down. He said he has not put any dirt in the ditch and that the edge of the ditch has been that way for 10-years and the only reason it is displaced now is because he took the vegetation off so he could work on the ditch.
President Williams asked Mr. Ashley if he had seen the pictures and explained that they were not talking about a regulated drain, but about drainage approval.
Karan explained that #1 Mr. Williams indicated that all he had to do was meet INDOTíS requirements, that was when he talked to his District Commissioner and we met, that was about 1 year ago and that was a separate plan that was discharging straight into the Right-of-Way and she had no control over that situation. She added that since that time he has hired a different Engineer and this Engineer has redesigned it and the pipe that he is talking about being plugged with mud she wasnít concerned about any longer because he was plugging it off before he gets to the building and was going to run it to the retention basin and why that was dug up she has no clue as it has nothing to do with his drainage plan as it was going to be blocked off according to his drainage plan. She explained that the digging he did for the pipe was nothing that she required, all she wanted was the ditch unobstructed from the rock and boulders that Monte Williams admittedly last week said he placed in the ditch which caused it to meander around them because the blocks were put there in his words to her because it was eroding way. She stated that it was eroding way over near his property and when he put the rocks there it started meandering around them and now the ditch is located on the other lots, its obstructed the storm water and he has now dug a 4 x 6-foot deep hole in the middle of the ditch so when the water comes down the ditch it collects in this hole and in her opinion she cannot recommend to the Board the approval of a Drainage Plan that she feels will not function, but itís the Boardís call and they should review the Drainage Plan. She added that in her opinion it is severely obstructed and has no real basis for drainage and she cannot recommend it for a discharge point for anything.
President Williams asked for any comments from Commissioner Baxter or Attorney Ashley and stated it is not a legal drain but it is a Drainage Board issue?
Attorney Ashley stated that there is a statutory provision even though the ditch is not a regulated drain, the Board has jurisdiction to order obstructions removed and there is a separate procedure, is that what we are talking about here?
Karan answered that she assumed that would be it.
Mr. Ashley asked if they were just talking about erosion?
Karan answered no, it is concerning storm water being obstructed as it is coming from developments all around and this is a natural water course, but she doesnít know what it looked like 10 years ago, but in the last 5 years that she has been out there it is just a natural drainage ditch for that development around there and it is now obstructed. She added that when she went out there originally, the obstructions appeared to be dirt moving that appeared to be on Monte Williamís property as well as rocks and boulders being placed in the ditch obstructing the flow of the water. Since then he has came in for a building permit and in order to approve the permit we have a site review which requires drainage plans and his drainage plans are discharging his retention basin into that ditch which is obstructed.
President Williams asked so the Drainage Plans are in order but the ditch is not in order, but Mr. Williamsí contention is that the ditch is not on his property?
Monte Williams answered that is true, according to the Recorderís plot plan, the drainage easement is on the property North of him and he told Karan that at the last meeting and show her the drawing where the easement is located and she knows that it is not on his property.
Karan answered that she knows there is a platted easement in the High Ridge Subdivision however she has never researched his deeds to know if there are any easements listed but she knows there is an easement in High Point Ridge.
Mr. Williams stated that if you have a 12-inch corrugated storm sewer that is clogged up for 90-foot, what are you going to do but take it up? He added that it is an open ditch now and asked Karan if she had a solution other than to take the pipe up?
President Williams asked Don Ashley what would be the ramifications of the Drainage Board approving a Drainage Plan that is in order when the ditch it is draining to is not a legal drain but will not pass the flow, are we opening ourselves up for legal trouble?
Mr. Ashley answered yes, if the Board approves a Drainage Plan that you know in advance is not going to function then there would be some liability on the Drainage Boardís part.
President Williams asked what would be the reasonable answer to this situation, do we get all of the neighbors involved, would this be a civil matter? He added that he knows Mr. Williams wants to get his building built and he is getting tired of this being brought up at every meeting. He explained to Mr. Williams that he has to understand that for the Board to approve something that does not drain properly opens the County up for law suits and this is why we have to get a resolution on this ditch and he tends to believe there is a problem by the pictures he was shown.
Monte Williams stated that if this drainage plan is accepted he will not be using that ditch and it is plenty deep enough to handle the water from the subdivision.
Karan asked if he was going to discharge in a different area than what is shown on the drainage plan?
Monte Williams answered until he gets his drainage plan approved it will have to continue discharging through an open ditch into that ditch, but he had to take the pipe out because it is clogged up for ninety feet.
Karan stated that if the pipe was plugged off and not functioning and he was going to block it off when he did his retention basin anyway in her opinion there was no reason to have to dig it, but itís his property he can dig it up if he wants, but the only problem is that now we have a hole in the ditch where there wasnít a hole before, so that becomes a problem because now the ditch is holding water 4-feet deep in a hole 4 x 4 by probably 6.
Monte Williams stated that was on his property not on the ditch property.
She agreed that it was on his property and that he could dig up the whole pipe, she just didnít understand why he dug it up.
Monte Williams stated that it is simple enough to fix if he gets the drainage approved and get the building permit.
Karan asked that he said if he gets his drainage plan approved that he is not going to be discharging his storm water in that ditch?
Mr. Williams answered that is exactly right.
Karan asked where the storm water was going to go because that retention basin discharges into that ditch.
Monte Williams kept saying youíve got the plan. (He repeated it 3-4 times)
Karan stated that in the plan it is discharging into that ditch and that is why she is asking him where the water is going to go?
Monte said now or after the plan is approved?
Karan stated on the plan she has in front of her that his engineer Andy Easley submitted to the Drainage Board, his discharge pipe from his retention basin goes into that ditch.
Monte stated that it is discharging into the end of the ditch and the discharge is going to be on State property not on the ditch.
Rod Madden asked so if its not going into the ditch the plan is not correct, is that what you are saying?
Monte stated that it doesnít show that clearly but he can have him change if that would help, but that is probably 125 feet from the ditch in question. He added that itís at the very out-flow of the ditch.
Karan explained the arrows on the Drainage Plan to the Board indicating where the water would flow.
Monte Williams stated those plans are not the current way it all goes south.
Karan showed Mr. Williams the plan and it shows it going into the ditch, so if the Board approves a drainage plan that shows drainage going even if itís off-site itís going into a ditch that in her opinion canít handle the storm water she thinks the Board is liable.
President Williams asked where the clogged area was?
Karan showed President Williams on the drainage plan where the hole is that Monte Williams dug.
Monte Williams stated that all that is going to happen is itís going to be filled up with sediment, youíre not going to block that ditch because of a hole in it.
Karan stated that the ditch wonít be blocked, he is holding water in the ditch and the water gets stagnate and the water just stays there and then the neighbors start complaining because of the mosquitoes and then they will complain because he is holding water upstream because there are high points and rocks dug out of the ditch and put on another lot.
Monte Williams asked are the rocks on my property?
Karan answered not anymore you moved them to another lot.
Monte Williams stated that is not true and added that Karan did not know where the property line is.
Karan stated he said the ditch isnít on him its on the neighbor, but the rocks are on the other side of the ditch so they would have to be on him.
Monte Williams again disagreed.
It was then discovered that the rocks came from the edge of his drive-way not from the ditch and Karan stated that he was now putting rocks on someone elseís property.
Monte Williams stated that is his property and he doesnít care what he did, that Karan is just trying to find ways to keep him from getting his building permit, he knows it and she has brought up things from the past because she has a vindictive spirit about her. He added that as far as this drawing, this is the 7th (slapping his hand on the table in front of the Board) drainage plan that has been submitted.
President Williams asked Monte Williams to please return to the speaker stand. He added that if he remembers clearly that at the last meeting it was said that when the ditch was cleared and the plan was submitted we would approve the plan. He then asked Commissioner Baxter if he would like to go and look at the ditch with him. They decided to try and get together to look at the ditch. President Williams told Mr. Williams that he was going to be very up front with him and explained to him that he didnít want to hold up the building but there is too much liability if this would drain into an area that would not handle it. He added that if it takes him and half the neighbors but this is going to have to drain before it is approved and if he is the party thatís wanting to get this approved then he should coordinate that as it is not the Boardís job to do that.
Mr. Williams asked when President Williams and Commissioner Baxter would be out to look at the ditch?
President Williams asked for Mr. Williams phone number and will try to get a date set and call Mr. Williams.
Mr. Williams stated his phone number to the Board.
President Williams stated that he could not give Mr. Williams a time and day at this moment but they would try and make it out there and stated the bottom line is very simple, that the Drainage Plan is all right except for the fact that his outflow from his retention pond is in a ditch that is not clear and whoever owns that property is going to have to take care of that problem.
Don Ashley, Attorney for the Board stated that it is not a regulated drain but there is a procedure that is set out by the statute where there is a hearing and the Surveyor makes a report in a full blown hearing before the Drainage Board and if it is determined that it is an intentional blockage of the unregulated drain then the Board can order the person who caused the obstructions to remove the same. He added that if he or she does not do that then the Board can cause the obstruction to be removed and charge the cost to the person who caused the obstruction. He added that if the obstruction is determined that for the hearing to be an unintentional obstruction and this is in terms of erosion or sedimentation, then the Board can cause the problem to be remedied and of course the cost of the property owners benefited by that. He explained that there is one other solution and that is to go through the procedure and have it declared† to be a regulated drain, that would put it under the jurisdiction of the Drainage Board, but that is not all good because of the property owners might really object as they would be giving up Right-of-Way of 75-feet.
President Williams stated that there is no doubt that the property owners would object to losing 75-feet of their property going to an easement. He add that to him the simplest answer is to determine whether the obstruction is intentional or unintentional and that would be done at a hearing. He stated that him and Commissioner Baxter would go inspect it sometime in the next week or so.
Monte Williams stated that his problem is that he has all of his possessions that were in the building moved to another building and this was done by contracted movers and he is paying rent on this building and on March 1st the rent goes from $155.00 to $2,000.00 a month and he would like to have a building built before he has to pay that amount.
President Williams stated that the ditch would be looked at maybe Wednesday before it gets dark and he believes that they are allowed to look at it together if he read the open door policy correctly.
Monte Williams stated that in the meantime he would get the Drainage Plan changed so that it will show where the actual water drains rather than in that ditch.
President Williams stated that if this Drainage Plan is not correct he certainly does need to get it changed because if it is not draining into that ditch we need to know.
Mr. Williams stated that the plan was done in a hurry to try to expedite and it has just slowed it down.
President Williams stated that if they had taken their time and done it correctly the Board probably would not be going through this.
Mr. Williams answered that this is the 7th plan he has submitted.
Karan stated this is not the 7th plan it is only about the 3rd plan.
President Williams stated that it doesnít make any difference how many times there has been one turned it if it is not correct.
Commissioner Baxter made a motion to adjourn, 2nd by President Williams. Motion carried 2-0.