NOVEMBER 10, 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: Phillip E. Arend, Jim Niemeyer,
Jeff Ryan, Glen Meritt, Jr.,
Dennis Orth, Sandra Knight and
President Baxter brought the November 10, 2004 meeting to order.
APPROVAL OF MINUTES:
President Baxter stated that the minutes for October 27, 2004 were not finished. They would be tabled until next meeting.
DRAINAGE DISCUSSION: RE: SCHMITT & ORTH:
President Baxter asked Karan to explain about this drainage discussion.
Karan stated that as the Board was aware about 2 months ago Dennis and Tanna Orth filed a petition for removal of obstruction of a natural surface water course and the Board had tabled this until such time as court action was taken. She explained that the time has elapsed and it is now back on the agenda for the Board to discuss and in talking to Mr. Orth the obstruction has been removed, however now Mr. Schmitt has dug a hole and it is ponding and holding water instead of allowing it to drain away. She added that the other issue along the field line where the trees were is still exactly the same way as before. Her recommendation is that the Board proceeds with the petition for the removal of obstruction to get this matter taken care of since Mr. Schmitt is not going to work with the Orth’s to correct the matter.
Commissioner Conner asked what the cost was going to be?
Karan answered she did not know as the Board has to make a decision whether or not to proceed with the petition and then we would get a cost to have it removed, she then asked Mr. Ashley if that was correct.
Mr. Ashley answered that this was actually set up for a hearing on this matter today and asked if Mr. Schmitt had been notified by certified mail?
Cheryl Embry the recording secretary answered that he had and showed the Board the mailing receipts.
Mr. Ashley stated that then the hearing could continue as long as Mr. Orth is present and Mr. Schmitt has been notified by certified mail. He then asked Karan if there was an obstruction in this natural surface water drain?
Karan answered that there was.
Mr. Ashley stated that the hearing is for the purpose of determining whether the removal of the obstruction will promote better drainage on Mr. Orth’s property and not cause unreasonable damage to Mr. Schmitt, this is the first determination and to make that determination the Board needs to hear evidence. Mr. Ashley then asked Rick Martin if he was representing Mr. Schmitt?
Mr. Martin came to the podium and stated that technically he was not representing Mr. Schmitt before the Drainage Board but he does represent him in a civil case involving a dispute with the Orths and he understands that the matter that is before the Drainage Board may have some bearing or relation to that so he is hear to observe and asked questions if necessary if this somehow does affect that case.
Mr. Ashley asked if the pending litigation resolve the issue between the two parties?
Mr. Martin answered that it may he is not absolutely certain what the Drainage Board issue is.
Mr. Ashley explained that Mr. Orth has filed a petition asking that the Drainage Board determine whether or not there is an obstruction in this natural water course and if there is then to determine whether it was intentionally placed and if so to assess the cost of removing it. He added that if this is a matter that can be resolved with the pending litigation there is no point in our proceeding any further.
Mr. Martin stated that he needs to see a plat map to see what drainage way the Board is referring to.
Karan showed him on the plat map where it was located and explained it was the one along the railroad tracks and also the one going into Scales-Lipnight which goes along the field. She added that there were tree branches and also the berm has been removed and is now causing a ponding effect.
Mr. Martin stated that the one along the railroad track is the one that at issue in the litigation, but he doesn’t believe that the ditch running along the Western edge of the property is an issue of the litigation.
President Baxter asked how big the ponding effect was?
Karan answered that she did not know she had not been there since the berm has been removed.
President Baxter asked if this should not be looked at before this is decided.
Karan stated there is still the other issue and she has determined that it is blocking a natural water way and it was intentional.
Mr. Martin requested that the Board defer any action on the ditch that is pending in the litigation and he would let Mr. Schmitt address the Board on the other issue on his own.
Mr. Schmitt stated that he had talked to Karan about the ditch with the debris and told her that when he was finished cutting his bean fields he would remove the obstructions and clean it out, he added that he has approximately 300 acres to go. He stated he has intentions and he has talked to a man about going down through there with an excavator and moving the ditch over to the property line and cleaning all of the trees out and straightening out the ditch.
Karan asked if the beans along the field in question were still there?
Mr. Schmitt stated that field has been cleared of beans.
Karan stated so there is nothing keeping you from clearing the debris out now?
Mr. Schmitt answered just getting the rest of his beans cut. He added that he did agree and he has not changed his mind and he again stated about getting an excavator in there to clean up and put the ditch on the property line. He added that he would get Karan involved in this so that they could shoot grade and see if this is what she wants.
Commissioner Williams asked Mr. Schmitt what time frame he was talking about being about to get to the ditch?
Mr. Schmitt answered that he was hoping to get it finished before Christmas unless the weather hits me, he added that he would get the trees removed whether he gets the ditch dug or not. He thinks that he could probably get the debris removed within the next two weeks or by the Thanksgiving weekend.
President Baxter asked Mr. Schmitt if all of this would be taken care of by the end of the year?
Mr. Schmitt answered that it would be done before the end of the year. He stated that he would have the brush out but he would not guarantee that he would have the ditch re-dug.
Commissioner Conner asked if the brush is the only issue relative to the ditch or is it also straightening the ditch up.
Karan stated that the ditch needs to be shoot and a good grade put on it to get it to drain and the trees are a problem.
Mr. Schmitt stated they had dug a berm not a ditch to keep the water from running over and in digging it there is now a low spot which ponds water and it always has. He stated that he was not trying to block a water way as he did not know there was a ditch there. But he does want to straighten it out and clean out the trees.
Karan told the Board that her suggestion would be to put a time limit on this project and have the brush out and the ditch dug with a reasonable amount of time as we are getting into winter.
Mr. Schmitt answered that they may not be able to dig the ditch until spring or until it dries up a little bit.
Karan stated that there are still some good days in winter season and we even do our ditch project so she feels confident that he will be able to get it within the next month.
Mr. Schmitt replied that he would have the brush out but he can’t promise that the ditch will be dug out?
Karan answered that she thinks it could be done, but that is up to the Board to decide.
Mr. Schmitt stated it would depend on the contractor and if he can get in there and do it.
Commissioner Williams stated that he was willing to give him some time to get the brush out and time for him to get his beans out, but he also agrees with Karan as we are not talking about a lot of ditch here. How much are we talking about?
Karan answered about 600 feet.
Mr. Schmitt stated that getting the brush out is not a problem it is getting the ditch dug and straightened and that may take a little time.
Karan stated it does not have to be a large ditch its just dipping out the bottom and getting it to where it flows.
Mr. Schmitt stated that he wants to move it over to the property line.
Karan stated she was not giving him any authority to move a ditch onto somebody’s property line, so she is not going to get involved in that, she just stated that the ditch needs to be uniform.
Commissioner Williams stated that he is willing to continue this matter until the hearing is over and by that time the debris should be gone and maybe both issues will be done close to the same time, and if a motion is needed he will make a motion to continue this matter.
Karan asked Commissioner Williams if he was talking about the Court hearing and that if he was she suggested that a time limit be set. She also explained that she is talking about the one that runs South along the common boundary of Orth and Schmitt, the North-South ditch.
Mr. Orth approached the podium and stated that the issue of getting the trees cleaned out and the ditch straightened but not relocated is an excellent suggestion and he would like to see a time frame. He added that in the past dealing with Mr. Schmitt time frames seem to be an issue, so if a reasonable time is 30 days he will agree but if it is going to be 60 days he would like to see a time set so that we will all know when it is supposed to be finished. He also stated that the litigation suite is in a stall now and he does not know the reason except maybe for some mediation.
Mr. Orth stated that to him this looks as though it deals with local government as well even though we are talking about a civil suit it is still an obstruction of a natural course waterway and he would like to see the Board act upon that as well and if it conflicts with the Civil Suit, then he needs to learn more about it as to why and how it would. He added that because basically it is an obstruction as defined in the local government and it was intentionally done and we proceeded with the petition and the steps that go along with it, so he would like to see action taken on both of them with a time set for removal or the elevation shot by trained professionals, so that it will drain properly as it did before.
Commissioner Conner asked Mr. Martin if he had any idea about the time frame would be relative to the Civil Suit?
Mr. Martin answered that he thinks Mr. Orth is correct as the Court has ordered us to mediation on that issue and we have selected a mediator and are in the process of getting mediation scheduled. He added that with his, Mr. Long’s and Mr. Dewey’s (the mediator) schedules there could possibly be mediation by sometime after the 1st of the year the mediation could be completed.
Commissioner Conner asked if what he was saying is he feels comfortable that there will be a decision after the 1st of the year without going through the courts?
Mr. Martin stated if an agreement could be reached, but if mediation can’t do it then a court date will have to be set and it could be late spring.
Mr. Orth stated that anyone may come out and look, he would like to be notified so that he can show them what is being discussed.
President Baxter asked the Board if they wanted to set a time frame on this?
Commissioner Williams stated that he thinks the South issue should be finished by January 1, 2005 and we will look at the other issue at this time.
President Baxter stated that it will be discussed at the first meeting in January.
Commissioner Williams made a motion to put this back on the agenda at the first meeting in January of 2005.
Commissioner Conner asked for a clarification the Mr. Schmitt has until January 1st 2005 to clean out the trees and straighten out the ditch which is approximately 600 feet and that this will be reviewed at the first meeting in January and also take a look at where the Civil suit is?
Commissioner William stated he thinks that there needs to be a progress check on January 1st on both issues.
Commissioner Conner 2nd the motion. Motion carried 3-0.
PARK PLACE III: DRAINAGE PLANS: HIGH POINT CENTRE NORTH
Karan stated this is actually Lot 10 in High Point Centre North that they are platting as a P.R.U.D. and they did take into consideration in the original drainage plan for High Point North to handle the drainage so they are basically asking that no drainage plans be required. She added that since it is a P.R.U.D they did have to come back to the Drainage Board for a statement that it is all right. She also stated that all of the drainage was taken care of in the original plat of High Point Centre North and she recommends approval.
Commissioner Conner made a motion that at their request the Board not require drainage plans to be filed for Park Place III, 2nd by Commissioner Williams. Motion carried 3-0.
THE VILLAS OF WOODFIELD:
Karan stated this is about the same situation the Villas at Woodfield is a planned residential unit development that is located on 261 on Jenner Road and this was also an approved subdivision and all of the retention is provided for in that subdivision. She added they have done a drainage report that indicates the basin that was provided in the original subdivision which is Woodfield and the basin is along the East side of the development.
Mr. Jim Morley, Jr. stated that it all drains to the basin and it discharges underneath Highway 261.
President Baxter asked if there was anyone in the audience who would like to speak against this development?
Mr. Phillip Arend introduced himself to the Board and stated that he had 16 acres from the East side of 261 where all of this water will drain to, he also stated that he already has problems with drainage. He stated that whoever approved this did not look closely at the drainage plans or look that the stripper pits are filling in. He added that they enlarged the 2 to 36 inches underneath his pasture that goes across the Highway to Jenner Road from the North side to the South side and that does help some, but if they are going to do this they will rush water directly from roofs and pavement, not going into the ground anymore. He stated that his mailbox has been underwater before.
Mr. Arend stated that he has talked to Commissioner Conner and if someone is going to do this they need a double culvert but the ditch needs to be opened to the stripper pit because if that isn’t done this is going to flood him out.
Commissioner Conner stated that he went to the site after their discussion and he thinks this is a real issue along the Highway to the Victoria Golf Course. He then stated that he thinks the ditch is owned by Rolling Hills Country Club and they cleaned out under the road at Anderson.
Mr. Phillips stated that they need a bigger tube there, but they can’t do that because of the height of the ground so they would have to put in a double tube which would be a 36 inch tube.
Commissioner Conner stated that he thinks what needs to be done is to work with the owners of the ditch that runs to the stripper pit as it needs to be cleaned out.
Mr. Arend stated that he thinks Victoria Golf Course has the first section of it and Miss
Woolsey has the last section of it. He also stated that the ditch itself is in pretty good shape except that it has a beaver dam in it. He added that the holding pond is also a joke as when it fills up he will be flooded as it will not hold any more water than the ground will. He stated that then they built the road up higher when they took that hill down but the main thing is that he wanted to voice his opinion and get on record that he is not satisfied and to see if anything can be done.
Commissioner Conner stated that he does have a problem and addressed to Mr. Morley the Engineer of the development if he understood what Mr. Arend was talking about. He also stated that the County Highway Department just cleaned the ditches on both sides of the road with a grade-all as far as it would reach.
Mr. Morley asked about the obstructions in the ditches that Mr. Arend is talking about and is it something that the Drainage Board could do something about?
Mr. Arend stated that the ditches being discussed are on private property.
Commissioner Conner asked Attorney Don Ashley his advice.
Mr. Ashley stated that this is the same kind of operation that they just had with the Orths and Mr. Schmitt as it is a private drain but also a natural water course. He explained that if there is an obstruction that is creating a problem there are certain rights the Drainage Board has.
Mr. Morley stated that the situation is an existing problem now.
Mr. Arend stated that with a normal rain he is ok, but anything like wintertime build-up and spring rains he is flooded out, he also has a Ram Charger with water marks on the tail lights.
Mr. Conner asked if Mr. Morley asked if he would mind going out and visiting with Mr. Arend and look at the situation. He added that he understands his concerns with now more water that may be coming over on him.
Mr. Morley asked to speak on these at two different fronts. He stated that number 1 he would recommend Mr. Arend to approach the Drainage Board about the down stream obstructions to get them removed if they have the ability. He then stated that the development of the property across the way, he then explained that the original subdivision was made up of single family lots and then an out lot area where a club house was going to be then changed into condominiums. He explained that the lake was oversized for drainage for Woodfield and it still has excess capacity in it today.
Mr. Arend stated that he was going to stop Mr. Morley right there as he owns a lake and he knows that when a lake is full it does not catch anything.
Mr. Morley answered that he agrees with Mr. Arend that when a lake fills there is only so much capacity in a lake. He explained that with the drainage ordinance in place to protect the citizens of Warrick County downstream of developments to make sure that we don’t increase the water on them and that anything at the 5-year rainfall and up. He added that therefore the entire subdivision of Woodfield and Woodfield Villas will release at or less than what the 5-year releases as it sits today, the lake will come up and go back down as that is the whole purpose in the way that retention basins work and that is what your ordinances have set out. He also added that in addition to this it has also been reviewed by INDOT as it comes underneath the highway before it reaches Mr. Arends property and the County has a 50 versus 5 where INDOT has a 50 versus 10 so Warrick County’s retention is more strict than what the States are.
Mr. Morley stated that this subdivision has been approved once by INDOT and once by Warrick County Drainage Board, the difference in run-off created by this property is insignificant in the amount of water that goes in and out of that basin compared to the entire watershed that goes into it, however there is still excess storage in this basin.
Mr. Arend asked Mr. Morley that he stated the basin was going to go up and down, are you draining this lake back down for holding for water to come in or are you going to let it evaporate.
Mr. Morley answered that it drains out.
Mr. Arend stated that he was asking Mr. Morley a question, are you going to valve it down after it fills up to have a holding capacity or are you just going to let it fill up and let mother nature take it down like a lake which is what he is understand that Mr. Morley is saying.
Mr. Morley answered no, he is saying that he has 3 36-inch pipes coming into the basin and one 36-inch pipe coming out so water comes in fills the basin and water comes out and as the discharge pipes which is throttled down to equal the 5-year undeveloped will take it and will drain it back out, so its not a lake that fills up at top of bank all the time so that when it rains it goes right on through, this lake fills, drains down.
Mr. Arend asked so someone is regulating it?
Karan answered that it is a control structure that is going out.
Mr. Morley answered that it is an open discharge pipe that is open all the time and it is smaller than the inflow, which creates the storage.
Mr. Arend asked what if it overflows, it will still come down on him.
Mr. Morley answered that it is created for a 50-year storm and the definition of that is a storm that has a 2% chance of happening every 50 years.
Mr. Arend stated that what your saying is that once in a while there is going to be a storm like that.
Mr. Morley answered maybe once every 50 years, this lake has capacity over that but in truth if we would get a 1000-year storm that lake would go up over the top and then it would hit the highway and if wouldn’t make any difference if there were houses or just land.
Mr. Arend stated that he has seen that happen.
Mr. Morley answered that all they can do is design by the ordinance and the ordinance requires 5 versus 50 retention.
Mr. Arend asked who you would see if this doesn’t work as it sounds good on paper but when the water is coming at you it isn’t worth a darn.
Karan stated that this is what is required all over the County and to date it is working, if the basin is built according to plans we have never had any problems. She added that it keeps the storm water contained where it won’t run at you as it goes to the basin and is released at a slower rate.
Commissioner Conner stated that based upon the Attorney’s input he would like to see the Board make a motion and get it 2nd and approved that we direct the County Surveyor to begin contacting the landowners for purposes of giving the Drainage Board a legal right to that ditch from Hwy 261 down to Anderson and beyond. He added that he does not think they would have a problem with Victoria. He also asked Mr. Ashley that the Board does have the right to contact the landowners for access to that ditch?
Mr. Ashley asked if he was talking about making it a regulated drain which would then be under the jurisdiction of the Drainage Board.
Karan asked Mr. Ashley if they could not also just contact the landowner and see if they would remove the obstruction?
Mr. Ashley stated that he thinks that if it is Victoria that they would cooperate with the Drainage Board.
Karan stated that in most cases the landowners will remove the obstructions as it is cheaper to remove it than to go into litigation.
Mr. Arend asked how he would know if this is going to happen?
Commissioner Conner answered that the Board would continue to follow up and to keep him updated and give him a report from time to time. He also added that they would get the matter resolved.
Karan asked for his name and address for the record.
Phillip E. Arend and he resides at 6144 Jenner Road.
President Baxter asked Karan to contact the property owners.
Commissioner Conner stated that Karan could initiate this matter and if it is not finished could be followed up in January.
Commissioner Conner made a motion to approve the request of the developers of Woodfield that they not be required to file a drainage plan.
Karan stated there is a drainage plan they just needed to file an addendum to it that they don’t require additional retention.
Commissioner Williams 2nd the motion. Motion carried 3-0.
Commissioner Conner also made a motion that the Drainage Board request the County Surveyor to begin the process relative to the ditch that runs from Hwy 261 down to Anderson Road for purposes of cleaning the obstructions out of the ditch, 2nd by Commissioner Williams. Motion carried 3-0.
CANTERBURY HOUSE APARTMENTS:
Karan stated this development is located at Lincoln Ave. and SR 66, they are proposing a planned residential unit development on this property in which the streets and drainage structures within it will be private. She added that they have provided 2 dry drainage basins and this meets all requirements. She also stated that they are relocating a ditch which is a tributary to Summer-Pecka Ditch but is not a regulated drain through the development and this will make it drain into the basin to help capture storm water some of which a small portion will be released and detained, but are making up for this with the off-site that is coming through the development. She does recommend approval.
Glen Meritt, Jr. with Morley and Associates and explained that they are not going to relocate the tributary, they are just going to pipe it.
Commissioner Williams what the time estimate would be between phase I and phase II?
Mr. Meritt answered that it will depend on the market.
Commissioner Conner made a motion to approve the Canterbury House Apartment Drainage Plan as submitted, 2nd by Commissioner Williams. Motion carried 3-0.
President Baxter stated the Board had claims in the amount of $4,767.00.
Commissioner Williams made a motion to pay the claims, 2nd by Commissioner Conner. Motion carried 3-0.
President Baxter asked if there was any other business to come before this Board? There being none Commissioner Williams made a motion to recess, 2nd by Commissioner Conner. Motion carried 3-0.