JUNE 9, 2004
MEMBERS PRESENT: Phillip H. Baxter, President
Carl Jay Conner, Vice-President
Don Williams, Secretary
Karan Barnhill, Surveyor
Don Ashley, Attorney for Board
Rod Madden, Deputy Surveyor
ALSO PRESENT: Mr. Dennis Orth
President Baxter brought the meeting to order.
DRAINAGE BOARD MINUTES:
President Baxter stated the minutes were to be continued.
Commissioner Conner stated he would like to ask a question on the minutes, he then asked the Surveyor about the minutes from the last meeting?
Karan replied that she was not at the last meeting and asked if they had been approved?
Commissioner Williams answered that the minutes for the last two meetings have not been approved.
Commissioner Conner stated that they were two meetings behind on the minutes and he made a recommendation that the County Surveyor make every effort to have the minutes done on a timely basis and also have those minutes submitted to each of the Board Members prior to the meeting for purposes of review.
Karan stated she would like to respond to that and stated that her secretary has health problems and has been off as she had surgery.
Commissioner Conner responded that he was sorry to hear that but he thinks that Karan needs to bring in someone that could do the minutes and get them updated. He said that was the only comment he had.
ELBERFELD INDUSTRIAL PARK:
Karan stated she was not at the last meeting and Rod the Deputy Surveyor is on vacation this week, so she is assuming that this drainage plan was continued again to discuss the possibility of the extension of the regulated drain. She added that they have begun researching the property owners and have found that the legal drain stops approximately almost 2 miles away from the Industrial Park and that it would take time for her office to notify property owners and get signatures. She further explained that Mr. Ashley can inform the Board with the exact process to go through to connect the ditch to the Industrial Park. Karan stated that her recommendation would be that the Elberfeld Industrial Park be approved subject to improvements to the ditch either by the County or by the developer with the plan profile sheet being changed to show those improvements. She further added the other issues can be addressed at a later date, after she has met with the property owners at the site and see what the discussions have been without her presence.
Commissioner Conner asked Don Ashley what the process was. He stated that at the last meeting the way he understands is that as County Commissioners they can initiate the process by having it on the agenda and brought up on the County Commissioners Meeting under some State law or regulation in which the Commissioners did.
Mr. Ashley, Attorney replied that the discussion was addressing the issue of how new drains were handled to become regulated drains. He added that there are several different standards, one of which (the one he believes Commissioner Conner is referring to) is where the County Executive which is the County Commissioners can initiate it to provide drainage for a public highway. He stated that he had assumed that Commissioner Conner was going to bring it up at the Commissioners Meeting which followed the last Drainage Board Meeting, is that correct?
Commissioner Conner stated that his understanding was that was the first step that the Commissioners needed to take for purposes of getting this drain classified as a legal drain.
Mr. Ashley answered that as Commissioners for that purpose you can initiate proceedings of preparing a petition which has to conform to the provisions of the State, which is then presented to the Drainage Board and then there is quite a procedure that follows that.
Commissioner Conner stated that the Commissioners basically have to have some sort of written document to bring back to the Drainage Board? He asked Mr. Ashley if he could give them a copy of a format that he would like to see this petition in for purposes of it being brought back to the Drainage Board.
Mr. Ashley answered that he thinks the terms of the pertinent statute are self-explanatory and he would be glad to furnish that.
Commissioner Conner stated that if we can get that done then we can bring it to the next meeting?
Mr. Ashley answered that it will have to be filed with the Drainage Board and then referred to the Surveyor who makes a report back to the Drainage Board and if the report of the Surveyor finds affirmatively that this is a proposed drain that conforms with the provisions of the Statute, then notice is given to the landowners effective thereby and a hearing is held before this body.
Commissioner Conner replied that the next step is to get a petition developed and bring it back to this Board for approval?
Mr. Ashley answered yes.
Commissioner Conner thanked Attorney Ashley for his help.
Sherri Phillips from the Area Plan Commission stated that the developer is wanting to get the drainage plan approved and the primary plat application is on the Plan Commission Agenda tonight and is waiting for drainage plan approval. She added that in speaking to Duane Erwin, he would like the Drainage Board to approve the drainage plans as is with the conditions that the Surveyor set the agreement on and then come back whenever the meet again for the legal drain meeting. She further explained that they would then do an amended plat to add on whatever is decided about the ditch as the Town of Elberfeld is wanting to get their plat recorded to build their road so that the industry that is there can have an entrance off of the County Road.
Karan Barnhill stated that was her recommendation to approve the drainage plan with the condition that the ditch be improved either by the Drainage Board or the Town of Elberfeld and a plan profile done to show the improvements to be done and with a time limit to get the improvements done through the park. She added that it wouldn’t have to be done by next week, it would be like road improvements as they develop the property by the County or by the Town, whatever decision is made concerning this legal drain process.
Duane Erwin, President of Elberfeld Town Council stated that he had talked to Karan earlier and which ever way it takes to get this done that is not a problem we will work with the County, the only thing is that this is holding the development up on getting it finished. He further stated the only reason he is in a hurry is because he has a gentleman that is not in compliance with the zoning, where he is now (Affordable Asphalt Co.) and he is needing to buy a couple of lots from us to put his equipment on so he will be in C-4.
He also added that to be honest he didn’t care if it took up to 3 years for the ditch he just needs his development approved.
Commissioner Conner stated that he would hope that just being out there and walking the site and visiting with some of the land-owners and with the bridge project also going in he is of the opinion that all of this really needs to be working together. He added that he does not have a problem with supporting his proposal, however he would hate to see us wait 3 years before declaring this portion of the ditch a legal drain and possibly moving that bridge because the steel for the bridge has already been ordered. He further stated that he thinks that we need to be working as rapidly as we can as we can’t let this project lie idle.
Mr. Erwin stated he was actually just using that hypothetically because Mr. Conner saw the situation with the bridge and how it goes and he was trying to explain it to Karan and wished she could have been present.
Karan stated that she would be glad to meet with them.
Commissioner Conner stated that there probably needs to be a meeting out there with Karan, Steve Sherwood and himself with whomever else would like to be present to take a look at the proposal of moving the bridge from its present location to a new location. He also added that the ditch needs to be looked at concerning straighten it along the railroad track and the people that live along there state that is one of the problems of the ditch.
Mr. Erwin stated that seems to be the problem with both Boards needing to make a decision and he is in the middle and can’t do anything until something is decided.
Commissioner Williams stated that based upon the Surveyor’s recommendation and what Mr. Erwin had to say, he would like to make a motion that the Board approve the Drainage Plans for Elberfeld Industrial Park contingent upon improvements either by the County or the developer.
Mr. Raymond Oeth from the audience stated that he did not know how the Board could approve this when there is nothing down to what is going to be done, it is all good to have some plans and talk about it but you will go ahead and approve this thing and then wait 10 years to do anything about it. He stated that he would not go along with that.
Commissioner Williams answered that it will not be 10 years.
Mr. Oeth said it has been 25 years and nothing has ever been done to it to keep it up since he can remember, so how can he say it won’t be another 10 years. He added that they haven’t declared it a legal drain, you haven’t gotten a contract to clean it out or anything like that, so when some of that is done, he will go along with the Board.
Karan stated, that is the Drainage Board that makes an approval subject to those conditions, those items have to be met and the developer has a letter of credit that will be held for the streets.
Sherri Phillips from Area Plan Commission stated that they will have a letter guaranteeing the construction, but that Mr. Erwin was just saying that the Town of Elberfeld does agree to clean the ditch.
Karan also stated that Elberfeld could clean out their portion of the ditch and the Drainage Board is going to proceed to make the rest of the ditch a regulated drain but it takes a few months do get that done, the County just can’t come out there and start cleaning it out.
Mr. Oeth stated that the Town of Elberfeld said they didn’t have the money to clean it out.
Commissioner Conner replied that is why the Board is trying to make it a legal drain so it can be maintained and also the County has the funds to do it. He added that just speaking as one voting member on the Board and he thinks the other members feel the same as they have visited the site and talked to the land-owners and they are willing to take that burden off of the Town of Elberfeld as we have the ability to do it. He further added that the Commissioners are willing to do it and the thinks that they have proven they are willing to do it because they have already initiated the process by following the instructions of the Drainage Board Attorney at the last Commissioners Meeting. He stated that the Commissioners will pursue doing the petition and the Drainage Board Attorney is going to give the Commissioners a format as to what to do and they will come back to the Drainage Board and this Board has to act upon it and then it has to go to the County Surveyor for her report and he knows that she has already started her research on the property owners. He added that in addition to that they are also trying to address the bridge project and this is when the County Surveyor, County Engineer and everyone else who wants to meet such as the neighbors, the town because the County has already ordered the steel to do this project and we need input as how to straighten out the ditch, but we can’t tell you that it is going to be finished in 2-3 months, but he will guarantee him that it will not be years.
Mr. Oeth stated that whenever the County makes it a legal drain then he will be satisfied when they do something about it.
Commissioner Conner stated that he should be satisfied in about 3 months.
Mr. Oeth stated then there shouldn’t be any decisions made until it is made a legal drain.
Commissioner Conner asked Don Ashley if it would take any longer than 3 months?
Mr. Ashley answered that he is not sure what the time table would be, but there has to be a public hearing after it is determined who the land owners are and the public hearing has to be 7 days after notice is given, so there are a lot of things leading up to that point. He added that the Surveyor’s Office will have to determine the landowners involved.
Commissioner Conner asked Karan if this hadn’t already been done?
Karan answered that her staff had most of the land owners, that this ditch was approximately 2 miles long.
Mr. Oeth stated that before any bridge work is done, the County should notify the land owner and see if he consents to moving that ditch over.
Karan stated that she was not at that meeting and she does not know where the bridge is or what they are wanting to line up and this will also all have to be discussed too and that is why it is being suggested that we all meet out there. She added that her office has to do the plans and specs and make sure it is going to work and it shouldn’t be any problem it is just getting everything pulled together.
Commissioner Conner stated that they could probably have that meeting within the next week to 10 days.
Mr. Oeth replied, are you not going to provide any way to control the water that is coming off of all that down there?
Karan answered that is why the improvements to the ditch are being made, so there wouldn’t have to be retention, however their plans were originally to provide retention in the ditch and she didn’t think that would work.
Mr. Oeth stated that is the trouble is that the ditch is the retention now.
Karan added that is why it doesn’t need to be retained anymore and why we were suggesting all the improvements to the ditch to provide more capacity for the storm water.
Mr. Oeth stated he thinks that if you would talk to some of the people that were at the meeting there in the last week or two with that rain you would find out that there is water everywhere and retention ponds might be in order to help control that water coming down through there.
President Baxter asked if there was a second for the motion on the floor? Commissioner Conner 2nd the motion. Motion carried 3-0.
Commissioner Conner asked Karan to call him with her schedule so that he could contact Steve and set a date.
Don Ashley, Attorney for Board opened the quotes and read them as follows
Description: Cut all trees, briars, grass, vines and weeds along specified areas to a maximum of five inches in height. All woody type plants including trees, vines and large brush will be shredded to mulch. Grindings shall not restrict or alter the flow of water in channel or overland.
President Baxter asked if there was any discussion on this matter?
Commissioner Williams asked if there was a pre-bid meeting?
Karan answered that there was.
Commissioner Williams made a motion to award the Polkberry contract to Bigge Excavating in the amount of $4,820.40, 2nd by Commissioner Conner. Motion carried. 3-0.
Attorney Ashley opened the first quote and read as follows:
Description: Reshape and align a portion of Caney Creek including the reshaping and aligning of the creek along with the installation of 3 concrete structures, 3 gabion baskets and a Tennessee crossing with rock being furnished by the contractor.
1. Bigge Excavation $ 16,300.00
2. DG Construction $ 37,350.00
Commissioner Williams asked if there was pre-bid for this also and asked if both were present?
Karan answered they were.
Commissioner Williams made a motion to award the Caney Creek quote to Bigge Excavating for the sum of $16,300.00 2nd by Commissioner Conner. Motion carried 3-0.
Karan stated that she needed to discuss this further what Rod had brought up at the last meeting about getting bids on the storm damage that occurred. She added that Henry Bigge is repairing the dyke along Little Pigeon which he had started prior to the storm, also Johnson Ditch which was finished right before the storm and is now silted up pretty bad with all of the heavy rain. She further stated that Mr. Bigge is going to have to go back to Pigeon Switch and do some clean-up there and the quotes to do all three of the clean-up added up to $2,500.00, which she thinks is quite reasonable.
Commissioner Williams stated that if he remembered correctly he was also going to drag the culvert that washed approximately ¼ mile down back to where it belongs. He further added that he had told Rod that Roger has sent you the form for FEMA and we need to look at all of our legal drains to see if there was any storm damage, including trees blown over and anything that the County spends will be reimbursed by FEMA.
Karan stated that she understands that also counts for man hours too, as she is having her crew clean out Otter Creek where there were trees blown down and it is being done in-house not bidding it out and was wondering if she could also turn in her man hours as well?
Commissioner Williams stated, that was his understanding, but she might also want to double check with Roger as he is the one that handled it the last time when we went through FEMA. He added that we really want to look at anything that was contributed to the storm and get it submitted.
ORTH & SCHMITT:
Karan stated that Mr. and Mrs. Orth are present and she explained that they contacted her about a month ago with a complaint of a neighbor blocking some ditches that adjoin their land. She added that her and Rod went out to examine the complaint and it is really nice of the gentleman to try and clean the ditch banks, but instead of pulling the debris back he is putting it back into the ditch and blocking the drainage way. She stated she contacted the property owner and he is willing to meet her at the site, however, he does not agree that he is blocking the drainage way. She added that there has been some previous history with him and Mr. Orth and it has also been through a court proceeding. She stated that Mr. Orth is here to maybe get some advice from the Board and our attorney on how to proceed. She knows that the Drainage Board can require the cleaning of a legal drain which she will pursue as there are two regulated drains that are involved, the rest of them are natural drainage ways. She then asked Don Ashley that if the Board
cleans it out they can charge the property owner the amount spent to clean it out or mandate the owner to clean it out.
Mr. Ashley answered that is a possibility, but there is a procedure that has to be followed to get to that point.
Karan stated that Mr. Orth has documentation from the courts that may need to be addressed, she just did not know how it should be handled.
Mr. Dennis Orth introduced himself and stated that the property is located at 667 E. Tennyson Road, Boonville and he has two issues, the first deals with the natural waterway and the second is what he believes is the legal drain, but no one ever got back with him so he is not sure if it is or isn’t.
Karan answered that the one in back is a legal drain, the one running north and south.
Mr. Orth stated that in 1994 he had a problem with the natural waterway being filled in and it was brought to his attention to seek an attorney, which they did and received a court order which should keep this clear and for the past 10 years, it has been filled in every year and he has taken it upon himself to plow it back open. He is hoping with the help of the Drainage Board this can be stopped. He explained that the property has a natural slope that goes Southeast and the surface water naturally flows to the East along a railroad right-of-way to what he believes is a legal ditch. He added that due to the last rain his back yard as well as many others has been holding water but more this year than normal. He stated that the obstruction that Mr. Schmitt provided for them is now holding water and during the hard rains it actually flowed over the dam (obstruction) and flooded Mr. Schmitt’s field also. He brought a copy of the court order for the Board and their attorney to see and added that they call the Sheriff’s department every year but they told him there is nothing they can do as it is not a law just a court order. They always recommend him to call his attorney. He added that he had never contacted the Surveyor or Drainage Board before and thought he would exhaust every possibility to try and resolve this matter. He stated that was his first issue and also gave the Board pictures of his backyard and of his neighbor, Mr. Schmitt obstructing the drainage way and also stated they had pictures for every year, these are the most recent.
Mr. Orth added that the court documents that he has are not worth the paper they are written on as every time he has called the police they just basically tell him to call his attorney.
Mr. Orth stated that his second issue is what he believes to be a legal drain runs North and South that is on a piece of property that is on the South side of the railroad tracks. He then gave the Board pictures of that portion also.
Karan stated that she believes that ditch is Scales-Lipnight Ditch and is the one that was just cleaned a while back.
Mr. Orth replied that is the ditch that runs East and West and is a huge ditch, this ditch that he is talking about getting water to that ditch as this flows east along the railroad tracks and goes under a culvert to the South and into the large ditch. He added this is the ditch that is now completely filled with trees and other debris that has been cleared from that area and also stated that the water is stagnant and is not moving, that Karan and Rod can verify that as they visited the site somewhere around April 14th. He also asked Karan if she had contacted Mr. Schmitt?
Karan answered that she had called Mr. Schmitt and he had returned her call but she was leaving on vacation and they have not had a chance to meet yet.
Mr. Orth also talked about the information in the local government pamphlet that Karan gave to him to read and stated that the obstruction is a problem. He added that he did not prepare a petition to remove the obstruction but he could if the Board would want him to.
He also invited the Board to come and inspect the site he is talking about that he would be glad to meet with them and walk the site.
Karan asked Don Ashley about the court order and can we enforce the court order?
Mr. Ashley answered that Mr. Orth could pursue it through the Court order and ask the Court to site the defendant with a citation for contempt for failing to adhere to the terms of the court order, he stated that would be one alternative.
Mr. Ashley added that the other alternative is to file the procedure outlined by statute and that is an action initiated by filing a petition for removal of an obstruction in a natural waterway and that is a matter that is filed with this Board.
Mr. Orth thanked Mr. Ashley and stated that it is good that he has two alternatives, but he thinks he would be looking at any type of recommendations that the Board or their lawyer could make that would be the least painful to get the water situation resolved. He added that if he needed to get with Anthony Long, Attorney again and go through the Courts, that is not a problem, he was just thinking there might be another alternative that would involve the Drainage Board. He also stated that his communication skills have fell upon deaf ears with Mr. Schmitt, they are pretty much in a non-communicative situation.
He also added that they unfortunately do not even speak anymore.
Commissioner Williams asked if Mr. Schmitt has ever said why he fills in the drainage way?
Mr. Orth answered that he has asked and has basically been told that he is not filling it in, but the advent of the pictures is pretty apparent that he is filling it in.
Karan replied that Mr. Schmitt told her on the phone that he has not filled in any ditches nor has he put any debris in them. She told him that she had seen it and the need to meet at the site so that she can show him what she feels is an obstruction, Mr. Schmitt told her he would meet her but they have not yet met.
Mr. Orth said that would be great and he would like to be kept informed about how the meeting goes and hope she has better luck.
Commissioner Williams stated that sounds like that would be the first step.
Mr. Orth also told of Mr. Schmitt using the 3-point rotary ditcher on back of the tractor on a high spot and that maybe Mr. Schmitt doesn’t understand drainage at all.
Karan stated she would meet with Mr. Schmitt and inform the Board and also call Mr. Orth about when it would be discussed again.
Mr. Ashley gave the Court Order back to Mr. Orth stating that if he would pursue that recourse the Drainage Board would not be involved.
There was some distortion on the tape so the remainder of the conversation with Mr. Orth was lost.
President Baxter asked if there was anything else to come before the meeting.
Commissioner Conner made a motion to adjourn, 2nd by Commissioner Williams. Motion carried 3-0.