JULY 28, 2004

3:00 P.M.



MEMBERS PRESENT:                                               Phillip H. Baxter, President;

                                                                                    Don Williams, Secretary

                                                                                    Karan Barnhill, Surveyor

                                                                                    Don Ashley, Attorney for Board

                                                                                    Rod Madden, Deputy Surveyor



ALSO PRESENT:                                                       Mr. & Mrs. Dennis Orth and

                                                                                    Mr. William Schmitt



President Baxter brought the meeting of July 28, 2004 to order.




President Baxter stated the first order of business was the approval of minutes from the July 14, 2004 meeting. Commissioner Williams made a motion to approve the minutes from July 14, 2004, 2nd by President Baxter. Motion carried 2-0.






Karan stated she had received only 1 quote as the other tree services had not responded. She added that these trees are along Coal Mine Road and Jeremy Lane with the ones that are in the ditch with their roots exposed and stated that home owners are fearful of the trees falling on their houses.


Mr. Don Ashley opened the quote and stated it was from S & S Tree Service to remove small and medium sized trees along the ditch bank on Coal Mine Road and Jeremy Lane, there are 13 trees on the North side and 5 trees on the South side, leave the stumps, clean up and haul away debris for the total amount of $1,500.00.


Commissioner Williams stated he has not had a chance to look at the site and he asked Karan if she thought this was a fair price?


Karan answered she thinks it is, as they are all on the roadway and we even considered taking them out with our crew, but the trees North of Jeremy are large, so she thinks it is a fair price.


Commissioner Williams made a motion to approve the removal of the trees on Coal Mine Road and Jeremy Lane and award the quote to S & S Tree Service for the amount of $1,500.00, 2nd by President Baxter. Motion carried 2-0.






Karan stated that this amendment was submitted by Morley and Associates and this is basically a section of Talbert Ridge which is being developed  by Jagoe Homes and they are just make some small changes in drainage swales and removing some small pipes and putting in larger ones. She added that they are also deepening the retention which will allow more storage. She recommends approval of the changes.


Commissioner Williams asked where the #1 retention was located as he only sees #2?


It was answered that the other retention basins were not numbered on this particular plan.


Commissioner Williams made a motion to approve the request for the amendment of the drainage plans, 2nd by President Baxter. Motion carried 2-0.






Karan explained that a couple of meetings ago Mr. Orth was present at a Drainage Board Meeting, submitted pictures and requested that we do an investigation and possibly  correct an ongoing drainage problem. She added that she had contacted Mr. Schmitt a couple of times but he was unable to meet with her at the site. She explained that she has been to the site, she had an aerial photo of the Orth property in which she used to show the Board where the trees had been cleared and placed inside the Scales-Lipnight Ditch. She added that Mr. Schmitt has also done some clearing South of the Railroad track and pushed the debris over to the ditch also which forced the storm water to drain elsewhere and also in back of Orth’s property there has been some dirt and debris moved and is blocking the drainage from going into the Scales-Lipnight Ditch.


Karan stated that since she was unable to meet with Mr. Schmitt and get this matter resolved she sent a letter to both property owners and asked them to come to the Drainage Board Meeting to discuss this matter so that both parties are here to explain their side to the Drainage Board so that it may be resolved. She also added that both parties were present.


President Baxter asked the parties involved if they would like to speak?


Mr. Orth stated that he had more photographs and Karan stated she had the original photographs.


Commissioner Williams stated that he would like to see the photographs.


Karan stated that one area is a regulated drain and the Board could have that cleared and moved from the regulated drain. She also explained the photo’s to the Board as they are lettered.


A gentleman (assume it was Mr. Schmitt) gave the Board a photo of the un-natural drain that the Surveyor is calling a natural drain and stated to him the law states that natural run-off cannot be dammed up but whenever you dig a hole and run field tile, he does not have to dig a ditch to drain field tile. He added that there was never a ditch there.

The gentleman (again assuming it is Mr. Schmitt) stated that what the Board is looking at in the photo’s is where Mr. Orth went down through Mr. Schmitt’ corn field with a plow.


Karan asked the gentleman to please step up to the microphone and state his name for the record.


He stepped up to the microphone but still did not identify himself and stated that the pictures were where Mr. Orth had driven through his corn field with a plow and plowed a path through there. He added there is no ditch there so he decided to put one and he added that there has never been a ditch there.


The Board was trying to see how the pictures related.


Karan stated she did not understand them either, but explained it the way she would think it would drain but it could not because of the debris along the natural drainage way.


Rod Madden asked Mr. Schmitt if the pictures were of the left side of his field next to the tree line.


Mr. Schmitt answered the South side North of the railroad tracks.


Karan stated that is why she wanted to meet at the site before the meeting so this issue could be discussed on the site.


Mr. Schmitt stated that he had called the office twice and was told by her secretary that she was unavailable also, so he did try and get back with her. He stated that she made it sound like he would not get with her but he did call.


Karan answered that she did not mean it that way, she just meant that they were unable to get their schedules together, so she just decided to have everyone discuss this matter in the meeting.


Mr. Schmitt explained that he was busy the times she called as he was on the tractor planting beans.


She answered that she understood that.


Mr. Schmitt stated that the other matter is a different one. He stated that he was not aware that it was a County ditch and pointed to a ditch on an aerial or a picture.


Karan answered that one is not a regulated drain.


Mr. Schmitt answered that is the one where the trees are in, so what is she talking about?


Karan stated that it was probably back in April when she was there and there was a lot of debris piled up.


Mr. Schmitt asked if it was a County Ditch?


Karan answered no, but it is a natural drainage area as there is a pipe underneath the trestle that drains that to the ditch.


Mr. Schmitt stated that is all filled in and when they dug the ditch out, this was all dammed up and pointed to an area that he stated was like a lake with water standing about 2-foot deep.


Commissioner Williams asked how the ditch became dammed?


Mr. Schmitt answered when they dug the ditch out, this was all dammed up.


Commissioner Williams asked when the County cleaned the ditch out it was dammed?


Karan asked how long ago that had been?


Mr. Schmitt answered approximately 5-6 years ago and added that the ditch has always drained down through here as the culvert comes around and turns and the water has always went down on the south side of the tracks, it never went the way they are saying.


Karan stated she did not know as that is the first time she has ever been there.


Mr. Schmitt stated he has had this land quite a few years.


Karan explained that is why she wanted everyone to come to the meeting so they could get it straightened out here.


Mr. Schmitt also pointed to another place where it is dammed and said it has been for years, so the water couldn’t go down.


Karan stated that is one of the problems that was discussed.



Mr. Schmitt stated that it has been dammed ever since he has lived there, it has always been dammed, he then showed the Board how the water comes down and the levee was put there not as a natural drain but to keep the water from running over in the field.


President Baxter asked if Mr. Schmitt and Mr. and Mrs. Orth would be willing to meet with Karan at the site at the same time.


Mr. Schmitt stated he would not meet with the Orth’s as Mrs. Orth has threatened his handicapped son and he will not meet with her as she is very violent.


President Baxter asked Mr. Schmitt if he would meet with Karan at the site?


Mr. Schmitt agreed to meet with Karan.


Karan asked Mr. Schmitt when was a better time for him, mornings or afternoons?


Mr. Schmitt answered as late in the afternoons as possible as he also works construction.


The meeting was planned for Monday August 2, 2004 at 3:00 P.M.


Commissioner Williams asked Karan if she had time after the meeting he would like her to explain the pictures to him as he cannot make them out as to where they are located. He then made a motion to table this discussion until the Surveyor and her Deputy has had a chance to meet with the parties about this problem as it does not seem that the trees were laid down by the wind naturally and he does have a problem with that.


Mr. Schmitt answered that is not a natural run-off that both ends of it were dammed up and it was full of water, now since then it has opened up again, he does not know who opened it, but when the County came through that was dammed up.


Karan asked that if when they meet out there and she sees that there is a remedy to the situation and can be worked out, are you willing to do that?


Mr. Schmitt answered that he would discuss it with her.


Commissioner Williams made a motion to table this until the second Wednesday in August, 2nd by President Baxter. Motion carried 2-0.




Karan stated that she wanted to report to the Board that she met with the F.E.M.A. representatives and she is trying to get the figures together to get reimbursement for the storm damage. She added that there was damage to some of the projects that were already underway or else just completed. She explained that as long as the County can show proof that our contract was completed they would be willing to reimburse us for the price of the contract.

Karan also stated that she took to representative to other sites where trees were down and blocking the regulated drains, two of which is Stollberg Ditch which is off of Fuquay Road and Whitaker Ditch which is between Grimwood Road and Fuquay Roads. She also added that Rod met with Jerry Aigner at the site yesterday to get estimates as they have to have estimates from contractors and of the two that do our grinding and tree removal, Henry Bigge and Jerry Aigner, Henry is out of town. Mr. Aigner’s quote for removal and because there is very little access to Whitaker Ditch because of the trees, we might have to grind the whole ditch just to get to the trees that are down in the ditch.


Karan stated she had talked to the F.E.M.A officials this morning and they talked like they would reimburse the County because it is an access issue because of the problem of getting the trees out of the ditch. She added that the estimate from Jerry Aigner Construction for Whitaker Ditch, which is approximately 992 linear feet is for $3,500.00 and Stollberg Ditch is approximately 993 linear feet with the estimate being $4,200.00 and the reason it is a little higher is because there are more trees. She also explained that one property owner who resides on Fuquay on Whitaker Ditch has already removed some of the trees and has about 6 large piles to be removed which is an additional $990.00. She would like the Board’s approval to accept the one quote so that we can get the information to F.E.M.A. by the end of the week as they are on a deadline.


Commissioner Williams stated the entire estimate is $8,690.00 and he would like to see this project go ahead and try to be reimbursed with the F.E.M.A funding, so he made a motion for Karan to get this submitted to F.E.M.A in the amount of $8,690.00, 2nd by President Baxter. Motion carried 2-0.




Commissioner Williams asked if the Erosion control is the spray that we give out?


Karan answered that is actually the Blanket for the ditch banks and stated that there will be more to come.


Commissioner Williams asked if a lot of it was still being done in-house?


Karan answered all of it but we were stopped because of the rain and it can’t be laid down when it is muddy.


Commissioner Williams made a motion to pay claims in the amount of $1,913.81, 2nd by President Baxter. Motion carried 2-0.




Karan explained that on construction of Willow Pond Ditch, the contractor damaged one of the property owners drive-ways as he was on their property a lot and she thinks that the contractor could have taken more care. She stated that there was a new concrete approach built when S.R. 662 was done and the owner had also just asphalted his drive-way and that the property owner called and stated that the contractor had done a lot of damage.


Karan stated she contacted Don Ashley to see if it would be the County’s responsibility to repair and replace it or would it be the contractors. She added that she was under the impression that it would be the contractor’s as he should have used care not to damage anyone’s property. She also stated that he should have been on that side just a short period of time, not long enough to do any damage as was done.


Commissioner Williams asked if the driveway was in the same 5-foot limit?


Karan answered that it is in the Right-of-Entry and she needs permission from the Board to instruct her whether or not to contact the property owner and let them know that the County will repair the driveway or have the contractor repair it.


Commissioner Williams asked how many dollars are we talking about?


Karan answered she did not know as she has not had a chance to go look at it and she has not received an estimate as yet.


Commissioner Williams stated that would be hard to determine and asked Mr. Ashley’s opinion on the matter?


Mr. Ashley answered that the applicable statute involved says that any persons exercising the right of entry is to use due care to avoid damage, so on and so forth. He added that he thinks the contractor is primarily liable for causing the damage, but the County may be secondarily liable.


Commissioner Williams stated that at the very worst maybe there would be a possible split, but he can’t see the County being responsible for all of it. He asked if it would be all right for the property owner to get quotes so we would know what we are dealing with?


Mr. Ashley asked if the property owner had submitted an estimate?


Karan answered no they had not.


Mr. Ashley stated the property owner needs to submit an estimate.


Commissioner Williams stated that they should submit it to the Contractor first to get his response and asked who the contractor was?


Karan answered that it was Dave Gillium, owner of DG Construction.


Commissioner Williams stated she needs to get the owners to submit the estimate to DG Construction as he agrees with the Attorney that if the contractor was careless then they need to take care of it.


Karan stated she would also take pictures of it so they would know what they are dealing with.


Commissioner Williams answered that he thought that would be very advisable and asked that was just for discussion purposes not to take action is that correct?


Karan stated that was correct.


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