FEBRUARY 25, 2004

3:00 P.M.






MEMBERS PRESENT:†††††††††††††††††††††††††††††††††† PHILLIP H. BAXTER, PRESIDENT;

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† CARL JAY CONNER, VICE PRESIDENT;

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† DON WILLIAMS, SECRETARY;

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† DON ASHLEY, ATTORNEY FOR BOARD;

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† KARAN BARNHILL, SURVEYOR

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ROD MADDEN, DEPUTY SURVEYOR



ALSO PRESENT:†††††††††††††††††††††††††††††††††††††††††† JASON D. GUESS

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† JEFF WHITAKER, BLA



President Baxter brought the February 25, 2004 Drainage Board meeting to order.




President Baxter stated the first order of business would be the approval of minutes from February 11, 2004.


Commissioner Williams made a motion that the minutes of February 11, 2004 be approved as presented, 2nd by Commissioner Conner. Motion carried 3-0




Karan explained that this wasnít actually a quote opening, that there are some trees down in Barrenfork Ditch and Rod called a couple of contractors, Aigner Construction and Warrick Excavating as they are close to the job site. She added that Rod met them at the job site and got estimates from them to remove the trees out of the ditch, Aigners quote was $500.00 and Warrick Excavatingís quote was $400.00. She stated that they would like to get the project done as they are afraid the rain will start.


President Baxter asked if both contractors agreed to do the job soon?


Commissioner Williams also explained that this is kind of an emergency situation, is it not?


Karan answered that it was.

President Baxter asked if there were any other comments or questions? There being none, he asked for a motion?


Commissioner Conner made a motion to approve the bid from Warrick Excavating in the amount of $400.00, 2nd by Commissioner Williams. Motion carried 3-0.






President Baxter stated the first approval to Hold Harmless is for permission for Jason D. Guess to place a privacy fence and a pool in the Right-of-Entry of Gardner-Webb Ditch.


Karan stated that Mr. Guess came into the Area Plan Commission to get an improvement location permit for his pool and it was discovered that the pool extends into the Right-of-Entry which last year at the time the plat was approved it was re-designated as an Urban Drain. She added that this relaxes the ditch to 50-foot from top of bank. Karan explained that the pool would not actually be located within the Right-of-Entry but the concrete surrounding it would be extending 33-foot from the top of bank.


Commissioner Williams asked if that would be a 17-foot infringement, which would take the top of bank down to 33 feet?


Karan also stated that Mr. Guess would like to put a fence within that same Right-of-Entry which would make it 20-feet off of the top of bank. She showed the Board a copy of Mr. Guessís plan.


Mr. Jason Guess approached the podium and introduced himself to the Board and stated his address is 2394 Brandolin Drive, Newburgh.


Karan also stated that Mr. Guess has signed a covenant to hold the County harmless and this is the procedure when someone extends into the Right-of-Entry.


Commissioner Williams stated that answers some of his questions, but he would like Mr. Guess to understand that if for some reason the County has to go in and do something to the ditch that the fence would have to be moved and also there is a possibility that the concrete of the pool could be damaged by the heavy equipment. He asked Mr. Guess if he understood the Hold Harmless?


Mr. Guess answered that he understood.


Commissioner Conner asked Karan if there was any infringement in that Right-of-Way presently by any of the other residents or adjacent neighbors?


Karan answered that she did not think so, as she recalls the reason this came up to begin with was Alan Bosmaís house was going to have a pool and it would have extended into the Right-of-Entry as well and that is when the issue came up to make this portion an Urban Drain and relax it to 50-foot. She added that there are cases on other ditches where the entry has been relaxed further but in her opinion there was not sufficient room to reduce it any further than 50-foot. (She was talking about the ditch through the entire subdivision being reduced less than 50-foot.) She stated that this would be in case they would have to get any equipment in there to work.


Commissioner Conner asked so if there is a problem that occurs it would be directly related to access?


Karan answered yes, access and machinery destroying Mr. Guessís property.


Commissioner Williams asked Mr. Ashley the Boardís Attorney if there would be any liability issues since Mr. Guess has signed a Hold Harmless?


Mr. Ashley answered ( as he was passed a copy of the Hold Harmless to read) this is all right and that is the purpose of the Hold Harmless to shield the County from any possible liability.


President Baxter asked Mr. Ashley that if Mr. Guess should sell the property would the Hold Harmless go with the property?


Mr. Ashley answered that this is a covenant that would run with the title to the real estate.


Commissioner Conner stated that educated him also and the Hold Harmless doesnít belong to just Mr. Guess it belongs to whoever buys the property?


Commissioner Williams asked if there was something that would go on the plat that would indicate this?


Mr. Ashley answered that this covenant would be recorded and it would show up when record searches are done.


Commissioner Williams made a motion to approve Mr. Guess request for the Hold Harmless, 2nd by Commissioner Conner. Motion carried 3-0.


Karan stated she would make a copy and take it to the Area Plan Commission.




Karan stated that she was contacted by Bernardin, Lochmueller & Associates who are doing the plans for the upgrade of Telephone Road for the County Commissioners and in doing so there are two structures that are going to have to be altered. She added that the Angel Ditch structure is going to be replaced with a 16 x 6 foot concrete box and the Edwards Ditch structure, the bridge is ok, they are going to widen both ends and also put in an 8 x 4 structure at one end to give it more capacity. She stated she has reviewed all plans and has no problem with any of them, but she told BLA they had to be approved by the Drainage Board as it is in a regulated drain.


Commissioner Conner stated he was trying to picture where this was located?


Karan showed Commissioner Conner on a map where the bridge and ditches are.


Commissioner Williams made a motion to approve the structure replacements on Telephone Road in Angel and Edwards Ditches, 2nd by Commissioner Conner. Motion carried 3-0.




President Baxter asked if there were any questions on the claims?


Commissioner Conner made a motion to approve the claims as submitted in the amount of $960.32, 2nd by Commissioner Williams. Motion carried 3-0.




Commissioner Williams stated that the Board should discuss Pigeon Switch, he added that the ditch has been done and asked Karan to show the Board the pictures. Karan stated she gave all members of the Board a letter with the pictures attached.


Commissioner Conner stated he did not remember receiving any pictures.


President Baxter told Rod that the ditch looks nice.


Karan showed on the plan where the upstream and downstream ends were and showed them the field tiles that would hold water. She added that there is about a foot & three inches on the upstream holding water because the culvert is too high.


Commissioner Williams stated that at the last meeting he made a motion to table this andhe was now aware that in doing this he was shutting down the contractor and that was not his intent. He also stated that it was determined by the County Engineer that it needs to be lowered 1 foot 3 inches and that his whole premise here is that we spend a lot of time and money as Commissioners and Drainage Board members repairing mistakes that previous administrations have made. He added that there is a lot of money spent where there are drainage problems and are talking about some personal peopleís property down in the Newburgh area and his thought is that if we are going to do this, lets do it right where nobody after us is going to have to worry about this. He also stated that he knows that this property right now does not flood often, but if a fifty year storm happens it wonít handle it, so the Engineer has recommended (4) different options and he suggests that we put in a 112 x 75 inch CMPA at the proper level and this would handle twice the capacity that the current pipe would handle even though it is slightly less than a fifty year storm.


Commissioner Williams explained that if we are going to do this, we are going to tear up the road anyway we should put in the bigger pipe at the cost of $5,700.00 and the work would be done by the Highway Department. He also suggested using Cumulative Drain Fund or Cumulative Bridge Fund.


Karan answered that Cumulative Drain Fund could not be used in the road Right-of-Way.


Commissioner Williams stated we just used it at Eskew Road on a flap gate, didnít we?


Karan answered that was because it was controlling flood waters.


Karan stated that if you replace a structure in the road Right-of-Way that entity has to pay for that structure, is that right Mr. Ashley?


Mr. Ashley answered that was correct.


Commissioner Williams asked, even if its impacting the ditch?


Commissioner Conner stated that it seems to him that if there is some type of relationship between that being in the roadway and the flow of water outside of the roadway that it would be an option that we could charge it to Cumulative Drain or to the Surveyors Budget instead of charging it to the County Highway, but he is not going to argue the legal point with the attorney.


Commissioner Williams asked what the legal read out is there?


Attorney Ashley stated that he could read the statute that Cumulative Drain is strictly for maintenance and construction of regulated drains, he supposed that the only one who would question would be the State Board of Accounts in an audit if it was used for something like this.


Commissioner Williams stated he didnít want his actions questioned, he just wants the attorney to tell him if itís the improper thing to do.


Attorney Ashley stated it is also a matter of interpretation.


Karan stated that she thought there was a statute that simply says any work to a public Right-of-Way, that work is incurred by the entity, that was how she remembers reading it.


Commissioner Williams stated that the only reason he brings it up is because he wants to get the work done before the Highway Department gets too busy.


Attorney Ashley stated he did not know which statute Karan was talking about, but what he is basing his opinion on is enabling statute for the enactment of the Cumulative Drain Fund and to him it is rather limited as to construction and maintenance of regulated drains and again youíre not straying too far from that and if the Board should decide this is not a real stretch, he thinks the only body that would question it would be the State Board of Accounts and then again they may not.


Commissioner Williams said if there is any question he doesnít want to do that.


Commissioner Conner agreed and also stated that is why he is asking the attorney because to him from a logical perspective it appears it could probably be paid but if the Attorney says the law says we canít do that, then that is the way we have to go.


Mr. Ashley answered the law doesnít say you canít use it for a road ditch, it just says the funds are to be used for construction and maintenance of a regulated drain.


President Baxter stated that it could be questionable.


Commissioner Conner said that the definition is pretty blunt and he thinks the attorney is correct when he says that it is left to a matter of interpretation.


Commissioner Williams stated that if this Board deems that this is not a Drainage Board issue then the Commissioners need to deal with it instead of this Board. He added that he would like to see this project get done as soon as possible and since the Drainage Board Attorney feels that it may bring some aspersions, if itís legal to use Cumulative Drain Funds he would like to do it simply because there is a lot of money in that fund. He added that since it is only $5,700.00 it could probably come out of Cumulative Bridge Fund.


Commissioner Conner asked Commissioner Williams if he was going to bring it up at the Commissioners Meeting to be held tonight?


Commissioner Williams answered that it is not on the agenda but he would probably bring it up under his business.


President Baxter asked if there was any other discussion or business to be brought before this meeting.


Commissioner Conner made a motion to adjourn, 2nd by President Baxter. Motion carried 3-0.