JANUARY 26, 2005
MEMBERS PRESENT: Phillip H. Baxter, Vice-President
Don Williams, Secretary
James E. Niemeyer, Surveyor
Robert A. Wilson, Deputy
David K. Zengler, Attorney
ALSO PRESENT: Cheryl D. Embry, Recording Secretary
Mr. & Mrs. Dennis Orth
Vice-President Baxter acting as Pro-Tem for President Conner who was absent from the meeting brought the meeting to order.
The first order of business is the approval of minutes from January 12, 2005.
APPROVAL OF MINUTES:
Commissioner Williams made a motion to approve the minutes from January 12, 2005, 2nd by Commissioner Baxter. Motion carried 2-0.
ORTH & SCHMITT HEARING:
Mr. Niemeyer, Surveyor reported that he went to Mr. Orth’s residence this week and reported that the job is not completed. He added that there is approximately a 200-300-ft span that has not been cleaned out. He stated that he thinks the problem could be eliminated fairly easily and there is a blockage there that needs to be removed from the waterway as it is eventually going to tangle up with the other vegetation as it grows and the debris washes downstream.
Commissioner Williams asked Mr. Niemeyer if he agreed that the debris was intentionally placed in the waterway?
Mr. Niemeyer answered that he believes it was as it looks to him (as also explained by Mr. Orth to him) like Mr. Schmitt removed an old railroad bridge and inserted a culvert in its place while also placing the excess dirt at the head of the ditch which is opposite of a 2 ½ foot culvert that crosses beneath the railroad. He also told the Board that he had taken pictures.
Commissioner Williams answered that he would like to see the pictures.
Mr. Orth explained that with the previous pictures and the pictures that Mr. Niemeyer took it would represent the current status.
Commissioner Williams asked if this was the portion that was left to be cleaned?
Mr. Niemeyer answered yes as they looked at the pictures Mr. Niemeyer had taken and he also explained that this is where it was plugged up as the water comes from the railroad track and this is where the culvert is located and it is also eroding at the base of the tree. He also stated that if it were removed it might not cure it but it would improve the situation.
Mr. Niemeyer explained that when it overflows it goes across into the woods and its low there so it stays wet. He stated that it would be a simple procedure if Mr. Schmitt would just do it or even hire someone to do it, it could be done in one day with maybe the cost being approximately $1,000.00.
Commissioner Williams asked if the Board had ordered Mr. Schmitt to clean this out?
Mr. Orth answered that on November 10, 2004 the Board ordered him to clean this out, in return Mr. Schmitt stood before this Board and gave his word that it would be cleaned out and the Board even gave him extra time to do so.
Commissioner Williams stated that he thought the Board gave Mr. Schmitt until the end of the year.
Mr. Orth stated that they were both to appear before the Board at the 1st of the year, but Mr. Schmitt did not attend.
Commissioner Baxter stated that he could see where he would have had trouble probably in the last couple of weeks of the year and also into the 1st of the year. He would like for Mr. Schmitt to be notified and give him until the last meeting of next month if not the Board would like to have him appear before them and explain why it has not been done.
Commissioner Williams asked if that was a motion, Commissioner Baxter answered that it was.
Commissioner Williams explained to Mr. Niemeyer that he needs to send Mr. Schmitt a letter stating that he had until the end of the year and it has not been cleaned as yet, so they are giving him until the end of February and he will need to appear before the Board on the 1st meeting in March. He stated that he is getting to the point that if it is not done then the Board should contract the job to be done (asking attorney) and bill Mr. Schmitt for the work done, then if Mr. Schmitt does not pay, the Board can let Mr. Zengler, the attorney handle it through court.
Commissioner Baxter asked Commissioner Williams if he would second the motion that was made. Commissioner Williams 2nd by motion. Motion carried 2-0.
Mr. Zengler, Attorney for the Board asked the Board that before they proceed he would like to explain that actually what the Board has done has continued the meeting and have never really made a finding. (He explained that he has reviewed the minutes from all of the previous meetings) He suggested that the Board go ahead and make the finding or continue the Hearing.
Commissioner Williams stated that he thought the Board had done that, but Mr. Zengler said that he does not think they did by reviewing the minutes and the Statute requires some specific things that have to be done and someone really needs to make a motion that the Board finds that the natural watercourse has been obstructed and the removal of the obstruction will promote better drainage of the Petitioners, which are the Orths, and will not cause unreasonable damage to the land of the respondent, which would be Mr. Schmitt. Mr. Zengler stated that for an attorney the language was not there.
Commissioner Williams asked if the Board had to go back to a Hearing to do this?
Mr. Zengler answered that the Board has actually continued the Hearing from November.
Commissioner Williams asked do we have to go back into the Hearing to take action on this?
Mr. Zengler suggested that the Board go back and show that the Hearing was continued from November 10 to the first meeting in January 2005.
Commissioner Williams asked if anyone has to be notified before we do this?
Mr. Zengler answered no, the Board can go forward, reopen the Hearing and make the motion. There was also discussion that this was the 2nd meeting in January, but Mr. Zengler stated that the Hearing was continued then also.
Vice-President Baxter re-opened the Orth-Schmitt Drainage Hearing on January 26, 2005.
Commissioner Williams stated that in November even though the Board did not state a legal finding the evidence was permitted and the view of the Board was that Mr. Schmitt did in fact have the drainage clogged, so due to the Hearing back in November and due to the fact that the particular drainage is still impaired he would like to make a motion that the Board find that the obstruction of a drain actually a Natural Water Course that is alleged by Mr. Orth and found to be accurate back in November that removal of that obstruction would:
A. will promote better drainage for the petitioners land being Mr. Orth
B. and that it will not cause unreasonable damage to the land of the respondent which is Mr. Schmitt.
Commissioner Williams would like to make this a motion that this be entered into record as the Board’s findings and that secondly that this Board also finds that the hindrance to that waterway was caused intentionally by Mr. Schmitt and that the burden of clearing that waterway should be his and that should be the finding of this Board, 2nd by Commissioner Baxter. Motion carried 2-0.
Vice-President Baxter stated the Drainage Board has claims in the amount of $599.25.
Commissioner Williams asked if the sums for the Commissioner were for the January Meetings?
Cheryl D. Embry answered no, it is for February. There was also discussion about when the claims were advertised and turned in. She also stated the total would have to be changed since Commissioner Conner was not present. Commissioner Williams pointed out that these claims were for February and this is still January, she answered that he was correct and she stands corrected.
Commissioner Williams made a motion to pay claims in the amount of $599.25, 2nd by Commissioner Baxter. Motion carried 2-0.
DRAINAGE ORDINANCE CODE:
Mr. Niemeyer stated that he needed to discuss this drainage code which was approved by the Commissioners sometime in October and Bernardin Lochmueller Assoc., was supposed to send him a fax of the draft. He stated that as soon as he receives it he will put it in their mail boxes.
Commissioner Williams stated the Board has not passed the ordinance as yet.
Mr. Niemeyer stated that it was discussed and he thought it was approved.
Mr. Wilson stated that he was talking about the contract.
Commissioner Williams stated that yes the contract was approved, but not the final product.
Mr. Wilson stated that he does not think the contracts were ever signed.
Mr. Niemeyer stated that April is the deadline set by IDEM for submittal of Part C of the Storm water Quality Management Plan, he added that he had talked to Mr. Don Larson of Commonwealth Engineering and he would like a date to be set within the next 2 weeks so that he could come down and go over various parts of this plan.
Commissioner Williams stated that he is also a part of this plan and he would also need to be there so they need to get together and select a date except for Wednesdays.
Mr. Niemeyer stated that Mr. Larson wants to discuss the basis of funding for the program.
Commissioner Williams stated that they need to invite some Council members to that meeting also.
Mr. Niemeyer agreed.
Commissioner Williams stated this is kind of outside this Board, it is more of a Commissioners issue. He added that previously they asked the previous Attorneys to draw up an ordinance establishing a Storm Water Board and that was not done so we will have to get the new Attorney working on it. He explained that there will have to be a Storm Water Management Department of some kind and there will probably have to be an employee in that department. He added that that part of it was approved by the Board of Commissioners to form the MS4 Board.
Mr. Niemeyer also stated that a point of contact needs to be appointed as Karan Barnhill’s name needs to be removed from the list.
Commissioner Williams stated that it would either have to be the Surveyor or the Engineer.
Mr. Niemeyer also stated that a discussion needs to be had on who the assistant operator is going to be and Mr. Larson had some suggestions.
Commissioner Williams stated that the only one that needs to be changed is Karan Barnhill’s position. He also stated that if Mr. Niemeyer wanted to accept this position, there is a lot of research.
Mr. Niemeyer stated that he would call Mr. Larson tomorrow and also stated that he would like to try the position of operator.
Commissioner Williams stated that the appointment would have to be officially changed at a Commissioners Meeting and added that he will probably bring it up under his business at this evenings meeting.
Commissioner Williams made a motion to recess, 2nd by Commissioner Baxter. Motion carried 2-0.