AUGUST 11, 2004
MEMBERS PRESENT:†††††††††††††††††††††††††††††††††††††††††††††† Phillip H. Baxter, President
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Carl Jay Conner, Vice-President
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Don Williams, Secretary
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Karan Barnhill, Surveyor
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Don Ashley, Attorney for Board
ALSO PRESENT††††††††††††††††††††††††††††††††††††††††††††††††††††††† Bill Bivins, James Biggerstaff
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Jim Morley, Jr. Mark Neff
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Kirby King
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Mr. & Mrs. Dennis Orth
President Baxter brought the meeting of August 11, 2004 to order.
APPROVAL OF MINUTES:
Commissioner Williams made a motion that the minutes of July 11, 2005 be approved, 2nd by President Baxter, motion carried 2-1. Commissioner Conner abstained as he was not present at the meeting.
DRAINAGE PLAN APPROVAL:
Karan stated that this development is located in
Bill Bivins introduced himself as the Engineer for the project.
Commissioner Williams asked if a portion of this drains into a ditch marked on the plan?
Karan and Bill Bivins both answered that everything drains to the West.
Commissioner Williams asked if that ditch actually abuts the property? It was answered that it does.
Commissioner Williams asked if there was going to be any problem with some of the drainage going toward S.R. 68?
Mr. Bivins answered that they have a permit from the State Highway that has been approved for the entrance.
Commissioner Williams stated that he was not talking about the entrance, he was talking about the drainage toward the State Highway.
Mr. Bivins answered that the drainage plan was also submitted to the State and that is how they received the permit.
Commissioner Conner made a motion to approve the drainage plan as presented for Lynn Ridge Estates Subdivision, 2nd by President Baxter. Motion carried 3-0.
HUNTER RIDGE SUBDIVISION:
Karan explained that this is a development with 14 lots that are located along Hunter Road which drains to an existing lake that is located on the South side of the property, plus the lots are all 2 Ĺ acres or larger. She added that no retention was required because they are larger lots and this development does meet all the requirements and she recommends approval.
Commissioner Williams asked how far away is this development from S.R.61?
Karan answered that it was approximately Ĺ mile.
Mark Neff introduced himself to the Board as the Attorney for the County representing Larry Rhoades and Kirby King who own the property. Mr. Neff stated that the drainage plans were drawn by Jim Morley, Jr. and all were present to answer any questions that might arise.
Sean Smith stated he resides at 5455 Hunter Road which is East of the proposed development and since a lot of his property is somewhat downhill from the development he would like to make sure that there is some sort of adequate ditching to catch the run-off. He stated that it does run this way now but with the loss of the trees and with the additional pavement he is afraid it will accelerate the velocity of the water. He also added that from what he has heard and seen it looks as though everything will be all right he just wants to be absolutely certain that for the record there is going to be some sort of ditch that will be constructed to catch the runoff instead of just pavement.
Karan explained to the Board that what she told Mr. Smith and Mr. Morley that there is a swale that is shown along the road way to direct the water to the pipe underneath the road, but there is no swale detail. She asked Mr. Morley if he would mind putting that detail on the plans so that it will be on record.
Mr. Morley answered that because they are roadside swales they show up on the street plans and not on the drainage plans, but they are on record.
Karan stated she had not received any street plans and was unaware of them being on the street plans.
Mr. Smith stated he was satisfied as long as they were shown somewhere on the plans.
Jim Morley, Jr. with Morley and Associates introduced himself also as the project engineer.
Commissioner Conner made a motion to approve the Hunter Ridge Subdivision drainage plan as submitted, 2nd by Commissioner Williams. Motion carried 3-0.
SCHMITT AND ORTH DRAINAGE:
Karan stated that at the last meeting Mr. Orth and Mr. Schmitt were both present to discuss the drainage complaint that she received from Mr. Orth about his property. She was instructed to meet with Mr. Schmitt at the site and she did so on the following Monday. She also stated that Mr. Schmitt did not agree that the drainage that we were concerned about along his West line actually went that way, he did not agree that the ditch there carried the water and he also did not agree to remove a berm that was placed there by Mr. Schmitt by his own admission to alleviate the impounding of the water on the Orth property. She explained that they walked the whole property and it was evident to her that was the way the drainage went.
Commissioner Williams asked if she or her crew shot levels?
Karan answered that after she got back to the office she sent a crew to shoot the elevations in various areas and all of the elevations indicate that the drainage goes to the ditch in question, travels south along the ditch and into Scales-Lipnight which is a regulated drain. She added that it also indicates that the pipe that Mr. Schmitt admitted installing directs the storm water to that ditch to drain South to Scales-Lipnight Ditch and so even Mr. Schmitt of his own admission (whether he confesses to it or not) of installing a pipe at an elevation to make it drain that direction and it is making the water drain that way now. She also had the crew shoot the back of the Orth property where they live as Mr. Schmitt was indicating that he did not think that the water drained in that direction either and he wasnít causing the Orthís any problems. She stated that the elevations show that the water does drain that way and the berm at 405 is impounding the water onto the Orth property.
Karan stated what she would suggest and Mr. Ashley may have to direct us in the correct legal way to handle this, is that the trees need to be removed out of the ditch running along the common boundary of the Orth-Schmitt properties South of the railroad tracks, so the water will drain freely and also the berm needs to be removed so the water along the Orthís South property line and North of the railroad tracks will drain to the East into the Scales-Lipnight Ditch. Karan added that Mr. Schmitt acted like he would be willing to remove the trees but it would be on his own time limits, which she does not agree with as with the first heavy rain the water will be impounded again. She stated that he did not agree whatsoever to remove the berm as he does not think that it is causing a problem at all.
Commissioner Williams asked if Mr. Schmitt admitted to placing the berms there?
Karan answered yes and he put it there so that the Orthís drainage does not go onto his property and he admitted that in the field.
Karan stated what she would like to see done is a time limit given to Mr. Schmitt to remove the obstructions from the natural drainage way or we will proceed in what ever legal fashion we have to get it removed and Mr. Ashley will have to guide us through that.
Commissioner Williams asked how long is the natural drainage way?
Karan answered that it is probably about 600 feet and maybe a little longer. She added that removing the berm would only be a matter of a couple of scoops with a backhoe and it would be flowing freely.
Mr. Orth asked if it would flow from there as he does not know what the elevation was?
Karan stated she is not sure either as she is not sure if the crew shot it on the other side of the berm.
Mr. Orth stated that would be the only thing is if we had an elevation that continued to fall, otherwise we would just create a lake as it did have a natural fall but that has long been modified.
Commissioner Williams stated that we are not talking about a legal drain here, we are talking about a natural water flow, is that correct and where do we stand on that issue?
Mr. Ashley answered that Karan has attempted to work this out informally and if we are going to have difficulty where this Board enters an order and makes certain specific findings then the Board is going to have to follow to the letter this statutory procedure outlined by the Drainage Code. He added that this is initiated by petition which is filed by the Board and the Surveyor then makes an inspection and a written report to the Board and the Board assigns the matter for a hearing and notice by certified mail is given to the affected property owners and there is then a hearing. But this Board canít make an order based upon findings of fact unless this procedure is followed. He added that what Karan has done is good as she has tried to get to the bottom of a problem and solve it without having to go through the statutory procedure, but to have any basis for enforcing an order of this Board the statute has to be followed.
Karan asked how long the procedure would take?
Mr. Ashley answered that it would take time to follow all of the procedures.
Commissioner Williams asked if that would also affect the drainage coming across Tennyson Road just West of Mr. Orth where the culvert is located in that area, he believes that a Mr. James Vincent owns that property. He added that he is asking because Mr. Vincent has complained a few times and he is wondering if possibly this had anything to do with that problem also and if it isnít corrected, will it have some impediment to the roadway as far as heavy rains?
Karan answered that it is in the same watershed and if it slows up in one area it would back it up on Tennyson Road as it is in the same watershed.
Commissioner Williams stated that the bottom line is that could this natural waterway be made a lateral off of the Legal Drain and if so then Mr. Schmitt would lose 75-feet Right-of-Way and could this be brought up in a discussion. He stated that as one member of the Board, he thinks that they need to make sure that the water drains properly and not just for the Orthís but for the other property owners who may also be affected by the water flow and also Tennyson Road. He asked if it was going to be tried and worked out without having to be legally involved?
Mr. Ashley answered that is what Karan has been attempting to do?
Commissioner Williams asked if the Board could make a formal request to Mr. Schmitt to (1.) Clear the debris out of the Natural Drainage way and (2) to remove the berm that is blocking the ditch?
Mr. Ashley stated that he thinks that Karan and the Board has already conveyed that idea to him.
Commissioner Williams stated that he had not received it in a letter.
Mr. Ashley stated that if the Board is going to proceed then all of the statutory rules have to be taken if it cannot be worked out by mutual agreement, then more time is being wasted by not having the petition filed, a report made by the Surveyor and a hearing set by the Board at which time the affected property owner is ordered to appear.
Commissioner Williams said that the first step then would be the petition and asked if the Board did that or the Surveyor?
Mr. Ashley stated that he would furnish what he thinks is appropriate for a petition and Mr. Orth could then file it with Karan.
Mr. Orth thanked the Board for their time and help to resolve this issue.
LINWOOD ESTATES SUBDIVISION:
Sherri Phillips asked for this issue to be put on the Drainage Board Agenda and explained that this is a primary plat of Linwood Estates an extension of Linwood Subdivision on Lincoln Avenue that is owned and developed by Greg Moore. She added that on the primary plat a 50-foot Amoco Gas line Easement is shown with a xylene pipeline that runs through the 50-foot easement.
Sherri explained that on the primary plat approval there was never shown a 10-foot drainage easement located within that pipeline easement. She stated that she received the final plat to record from Utilities Consulting and she always gives the secondary plats to Karan for her to review for drainage easements and to Steve Sherwood to review the streets, but when she received it back from Karan she had marked on there that they were not showing a drainage easement on the plat. She added that her concern is that on the drainage plans the Board is looking at, the easement is shown and Karan thought that the drainage easement was located outside of the pipeline easement not in it which calls for a swale to be put in there. She further stated that her problem is that BP has an easement that was entered into with Ed Tweedy back in 1977 in which there were conditions in the easement and she was subpoenaed to Federal Court over construction and things within this easement approximately 1 month ago between the developer and BP. She stated her concern is, were the drainage plans approved with the Boardís knowledge that there was a 10-foot drainage easement being located within a pipeline easement? She added that she is not an attorney and cannot interpret the easement but she basically wants to know if this was approved with the Boardís knowledge, if not it needs to come back before the Drainage Board for approval or she cannot approve the final plat.
Sherri stated that Mr. Biggerstaff who did the subdivision plat says that is the natural drainage, however, she does not know if they have to dig, but she does know that per the agreement from BP they have to maintain a certain amount of dirt at all times where the pipeline is located. She just needs to know what the Boardís stand is on the drainage plans.
Karan stated that the plan that is in front of the Board now shows that the swale is located there and without any dimensions she was not aware, by her own admission, that the swale was within their easement when she reviewed the plan. She added that on the cross section it does show a swale within the Amoco easement and it appears that it is a swale that is going to be constructed, that this is not just a natural drainage way. She stated that she also talked to Mr. Ashley, the Boardís Attorney this morning and whether or not it was on the drainage plans or not, in her opinion it was not her decision to decide whether or not the swale could be located within an Amoco easement. She further added that the swale was needed to carry the storm water to the basin, so it does not matter whether it is inside the easement or not.
Sherri Phillips stated that she and Karan are not sure who can legally tell them that the swale can be within the easement, she also added that the Plan Commission Attorney also represents Mr. Moore so she cannot ask him and she is not sure where to go with this matter.
Commissioner Williams asked if the developer received a release from the Amoco easement that they could place their swale within the easement?
Sherri answered that what he is saying is that the 1977 agreement gives him the right.
Mr. Biggerstaff stated that he would like to address the Board on that, he stated that basically it is an existing easement that is there and he thinks that it gets down to a legal opinion as to whether they have the right to use it as drainage or not, but the drainage is going there now and it is just a matter of the interpretation of the title work on the easement and who has prior rights. He added that as he understands they had a right to lay a trylene line and maintain a certain clearance above the line, but this is away from the trylene line so the question is, does that constitute a legal obligation between BP and the owner. He further stated as you know they are arguing about this easement now as some of the property owners have gone back and removed dirt on it but this should have nothing to do with this. He stated that they (?) go and remove dirt off of the easement so that BP has a legitimate argument and some of them have even encroached onto the individual property owners. He added that it is just a legal question and it is used now as a drainage easement.
Sherri asked Don Ashley for his legal opinion.
Mr. Ashley answered that this is a matter between the developer and the holder of the easement and added that he nor the Board is in a position to arbitrate this matter.
Sherri asked Mr. Ashley what do they do with the approved drainage plan?
Mr. Ashley asked if the plan had been approved?
Commissioner Williams answered it had, but they had no knowledge of the easement being there.
Mr. Biggerstaff said that he questions that as there is a detailed cross section on those plans that show those details as this was discussed where it was located and his plans show it.
Sherri stated that the primary plat does not show it.
Mr. Biggerstaff stated that is correct but the Drainage Board asked them to show all easements so they did that.
Sherri stated that you also have to show all easements on the primary plat and they are not on there, but she is not sure if the plans can be approved or not and that is why she asked Mr. Ashley?
Mr. Ashley answered that it is a matter of whether it was approved and if it was if the Board wants to rescind that approval, but he is not going to issue an opinion based upon the wording of an easement between a private owner and the pipeline.
Mr. Biggerstaff stated that he advised his client to get an attorney and get a professional opinion.
Commissioner Williams asked Mr. Biggerstaff if his clients have approached BP?
Mr. Biggerstaff answered that there has never been a problem with BP, but about 3 months ago with the private sector buying lots and grading the easement and not following the guidelines of the easement, so it has caused a lot of bad blood between BP and everybody.
Sherri answered that the owner has not contacted BP about the easement being put on the plat and she stated the owner, Mr. Moore told her that himself.
There was more argument about getting legal counsel and Sherri stated she did not know what legal counsel can answer it.
Mr. Ashley answered that he could not advise them.
Commissioner Williams stated that he thinks it would have to be between BP and whoever wants to put anything in their easement.
Karan said if nothing is going to be disturbed then why canít you go back to Amoco and have them send a release that says it is ok for the drainage to be there, but that she also thinks it is between the owner and Amoco.
Mr. Biggerstaff stated he thinks this is a new issue. There was much discussion on this subject.
Commissioner Conner stated that he thinks there is more than one issue being dealt with, (1) being between Amoco and the Owner and (2) about whether or not the Board took the right action and was the information sufficient for us to take the right action relative to approval of the drainage plans and for him it comes down to his asking the Boardís Attorney, is whether or not the Board has the legal right to do what we did at the time we did it by approving the drainage plans?
Mr. Ashley answered that it is a question of what was approved or what the Board would have objected to, how does that impact on the drainage. He added that the Board does not look at instruments of legality of written documents that are written in the plat.
Commissioner Conner said his question is, did the Board do anything in Mr. Ashleyís opinion that was illegal at the time?
Mr. Ashley answered, no.
Commissioner Conner stated that answered his question and as far as he is concerned, what the Board approved should stand and the other individuals who have a problem can fight it out between themselves as it has nothing to do with the actions of this Board. He added that was his opinion and said they could take a vote on it he would support the motion.
Commissioner Williams asked Sherri where it left her and her office?
Sherri stated she was going to take the primary plat back to the Planning Commission as it was not shown on the primary plat and we will go from there.
Mr. Biggerstaff asked where that left him?
Commissioner Conner answered that as far as this Board is concerned that as long as their attorney is on record saying that the Board did not do anything that was illegal at the time that we took under consideration the drainage plan and approved it, and our lawyer said we did not then the Board stands by its ruling.
Karan stated she received a petition from the Board of Commissioners to petition for the extension of Bluegrass Creek as a regulated drain and was signed by the Board of Commissioners and presented to the Surveyor. The Surveyor, in turn, is presenting it to the Drainage Board to proceed with the petition to send out notices for a Public Hearing to extend Bluegrass Creek to provide adequate drainage of Seven Hills Road which is a public highway in Greer Township, Warrick County. She also stated that all of the property owners are listed on the petition that this will affect and she would like to set this petition for Public Hearing for the last meeting in September.
Commissioner Conner asked if this takes care of the portion of the ditch that runs from St. Johnís over to Seven Hills Road?
Karan answered yes it does and it will extend the ditch from the end of the existing Bluegrass Creek all the way up past St. Johnís Road, almost to SouthLane Subdivision.
Commissioner Conner made a motion to approve the request of the Surveyor to have the Public Hearing in regards to the establishment of Bluegrass Creek as a legal drain up North of St. Johnís Road, 2nd by Commissioner Williams. Motion carried 3-0.
President Baxter stated this would be set for September 22, 2004 at 3:00 P.M.
Karan stated she would get all of this information to Roger so that notices can be sent out as the days have been counted and this will work out perfect.
Karan stated this is a ditch that is located in Ohio Township and runs along East Esche Drive, South along the Sharon School property, under Sharon Road and then runs South all the way to the river. She also stated there is a lateral that comes off of it that runs behind Riceland and Augusta Hills and over into Newburgh Town limits. She added that a few months ago she received several phone calls from many land owners that had trees down in ditches and the storms we have had with high winds and rains more trees have been damaged and blown down into the ditch. She further stated that this is not a regulated drain and she does not understand as it is a very large watershed and it carries a lot of water and runs directly into the Ohio River.
Karan stated that prior to the big storms she had contacted some of the owners who were anxious to extend this ditch into a regulated drain, however, when all of the property owners were contacted there were not enough that were willing to sign the petition to actually extend the regulated drain. She added that when F.E.M.A. came to assess the storm damage she discussed it with them and they agreed that it should be a regulated drain and because of the trees in the ditches it is obstructing the flow and there is a possibility that it could damage either Sharon Road or East Esche Drive, so her request to the Commissioners if they would be willing to do the same for Esche Ditch as they are doing for Bluegrass Creek because of the fact that it is a large watershed with there being a threat to roads and approximately 85 home that could be affected if the trees are not removed. She added that it is such a big job that she does not think it should be the property owners responsibility to go in and have trees removed from a ditch of that size and she is appealing to the Board for the property owners and also for the School and ask them if they thought this is something they would look at to do the same in making it a regulated drain.
Commissioner Conner said this is probably very logical and needs to be completed, but asked why wouldnít the adjoining landowners participate in signing a petition requesting that this be made a legal drain, what was their basis for not signing?
Karan answered that the ones she talked to want it to be a regulated drain and the ones she hasnít had a chance to talk to just donít understand what it means according to some of the neighbors.
Commissioner Conner said that she just didnít talk to anyone that gave her a reason why they did not want this to be a regulated drain?
Karan answered no, she just didnít get enough signatures back to go ahead and proceed.
Commissioner Conner said so this runs from Sharon School down to the river? He also asked if there is access to work on the ditch?
Karan answered yes to both questions. She explained that they probably would not do improvements to the whole ditch just the area that needed to be addressed to connect it to the legal drain.
Commissioner Williams asked if this ditch didnít split after it passes Sharon Road?
Karan answered that is the lateral she was talking about extending the ditch to.
Commissioner Conner asked if this ditch also ran through South Broadview?
Karan answered yes partially.
Commissioner Conner stated that was a mess through there and added that he did not have a problem with extending this ditch to become a regulated drain.
Karan stated that she would prepare the petition like she did with Bluegrass Creek if she could get the approval from the Board.
The Board agreed and told her to proceed with the petition.
President Baxter stated there were claims in the amount of $6,681.02.
Commissioner Williams made a motion to pay claims in the amount of $6,681.02, 2nd by President Baxter. Motion carried 3-0.
Commissioner Conner made a motion to adjourn, 2nd by President Baxter. Motion carried 3-0.