107 W. Locust Street Courthouse

Boonville, Indiana

March 23, 2005

3:00 P.M.




The Warrick County Drainage Board met in regular session with President Carl Jay Conner; Vice-President Phillip H. Baxter; Secretary Don Williams; Surveyor James E. Niemeyer; Deputy Surveyor Robert A. Wilson and David K. Zengler, Attorney for the Board.


Minutes recorded by Cheryl D. Embry.


President Carl Conner called the meeting of March 23, 2005 to order.




Carl Conner: Is there any questions or comments from the Board relative to the minutes of March 9th, hearing none, I would ask for a motion to approve.


Phil Baxter: I make a motion to approve the minutes from March 9, 2005.


Carl Conner: Have a motion on the floor to approve the minutes of March 9, 2005, do I have a second.


Don Williams: Second


Carl Conner: I have a second, all in favor state by saying aye.  “Aye”


Don Williams: Aye


Phil Baxter: Aye


Carl Conner: Passes three to zero. 


Carl Conner: Reports from Surveyor.




Jim Niemeyer: Yes sir, We’ve investigated Esche Ditch program as you know and we recently about 2 weeks ago sent out a petition forms to all of the landowners along the ditch-way, so up to this time we have had 4 respondents and we have until early May before we need to do anything. So we have the rest of this month and all of April.


Carl Conner: Okay, any questions or comments from the Board?


Carl Conner: Stollberg Ditch




Jim Niemeyer: We made a field trip to inspect the facility out there, as I mentioned I passed to you a memo to describe what was done and I reviewed our field trip with Mr. Zengler to obtain his comments and it appears that we can do that work if we remain where we are, that’s my feeling, but I am not the legal expert so I’ll turn it over to Mr. Zengler.


Carl Conner: Dave, do you have any follow-up?


David Zengler: yeah, Jim had apparently been out there and investigated and my question concerned whether the other side of the road was within our right-of-way and he has determined that it is not, which means that, as a Drainage Board, I think your probably forced to stay on the east side of Fuquay Road. Now, I say as a Drainage Board because as a Drainage Board you don’t have the right of eminent domain, as County Commissioners you may have some remedy with eminent domain with the road, that’s probably not our function here as a Drainage Board. But, you would have that function. I also, there is somewhat if you do something in the municipality, there would be a question somewhat that Don Ashley, I read one of his memos addressed as far as funding and maybe we shouldn’t get into that because the question is whether we could even go on the west side anyway. There is some issue of funding, I think even if we tried to do something on the west side, but we won’t go into that.


Carl Conner: Dave, what you are saying is we cannot do any work to the west side of Fuquay Road because it is not a legal drain or it is a legal drain but because it’s in the City limits?


Jim Niemeyer: Could I help here just a minute. It is a legal drain from the present position  where the drain crosses Fuquay Road from there on west, that is a legal drain, but not on the west side of Fuquay Road as indicated on the Engineering drawing, you know, where the Engineer would like to place the new box culvert, no, we don’t have that on that side.


Carl Conner: So, I guess my question is, what would we have to do from a legal perspective to be able to work on the west side, Dave?


David Zengler: I guess the first assumption would be if you could get anything done voluntarily with the landowner, that would make everything a lot easier. If you have to do it by….against the wishes of the landowner, if they don’t agree, then I think your basic option is taking it through a process of eminent domain, which, like I said this Board can’t do that, you may have some ability to do that as County Commissioners with the road and a road ditch.


Carl Conner: Well, I know that in the past, the landowners, if I’m looking at this correctly, have been opposed to us doing anything. So, I guess what I’m understanding is that, if the landowners are not cooperative with us, then there’s basically nothing we can do with the problem down there because a part of resolving that problem is being able to work west to Fuquay Road to get the drainage put in according to what the Engineer has proposed as a solution.


David Zengler: I think and Jim you could correct me, the Engineer did have some proposals for the east side, but that wasn’t as effective or…….


Jim Niemeyer: The cost would be considerably more and I think, but I’m not real sure what his intentions were, but possibly to make a box culvert, do you remember, Robbie? You were down there.


Robert Wilson: No


Jim Niemeyer: That would be the only thing I would know because right now the way it stands, when the water hits that….flows from the east and hits the highway embankment it makes an immediate right turn, goes north to the next drain and then goes west, so there is almost two ninety degree turns, right there.


Don Williams: Is this between two pipes there going under the road?


Jim Niemeyer: One is 68 inch and the other is 36 inch and the Engineering Office calculated that based on the flow of water from that watershed would require an opening of 6-feet by 10-feet to handle that kind of flow and that was based on, I believe a 50-year storm.


Don Williams: I think that’s probably, you know  that type of culvert’s probably more in line with what it was like when it was actually a bridge there before they closed it up and put the pipes in.


Carl Conner: Sounds like to me, Don, that’s where they made their real mistake, was taking the bridge out?


Don Williams:  I agree.


Jim Niemeyer: They commented that they didn’t have any problem before they took the bridge out.


Don Williams: I used to ride my bicycle there as a kid and I never saw any water.


Carl Conner: I remember you saying that there was never any water there. Well, I guess I’m just throwing this out for I guess as a suggestion, but it appears to me that we really only have one option that’s viable and reasonable and that is to request that the County Surveyor make contact with the landowners to see if they have changed their position relative to cooperating in regards to doing this and if they haven’t, then I guess its just a problem down there that we as a Drainage Board and as County Commissioners really cannot address. We’re just going to have to leave it as it is.


Don Williams: I think the culvert’s an option, so it might open up that flow where it could get through there quicker.


Carl Conner: Do you mean put in a new culvert under the road?


Don Williams: Get rid of the two pipes and put in a 6 x 10 or 8 x 10 culvert, whatever it takes to ………


Carl Conner: And then fill in that ditch in front of those two houses there.


Don Williams: I don’t know how we’d do that.


Robert Wilson: Well, you could angle the culvert to get it where some of the ninety degree……it’d make the culvert longer, but……


Jim Niemeyer: It probably……modify that design, you know of the emplacement of it  you know where it……


Don Williams: It would be something worth investigating I think, cause that would help carry that water away quicker, if it didn’t have that right degree angle through those two smaller pipes.


Jim Niemeyer: And then also to clean that drainage way, there’s quite a bit of growth in it, lots of grasses and brush and if that were cleaned out that would make the flow go away quicker.


Carl Conner: All right, I would make a motion that we contact the landowners and while we’re in the process of doing that, then follow up on the suggestion that Don made in regards to, I assume, getting the Engineers input relative to that suggestion and then lets just keep it on the agenda for next months meeting, if that’s ok. So, I’ll put that in the form of a motion, do I have a second?


Don Williams: I’ll second the motion.


Carl Conner: Have a second, all in favor state by saying aye  “Aye”


Don Williams: Aye


Phil Baxter: Aye


Carl Conner: Passes three to zero.


Carl Conner: Bluegrass Creek




Jim Niemeyer: We had a call from Mr. Dwayne Erwin from Elberfeld to determine if we could come down and have a look at the Bluegrass Creek Ditch for purposes of straightening and cleaning it out. Robert Wilson and I made that trip and we covered quite an area, but and we’ll have I would say 100% cooperation with the City who owns part of the land as well as the landowners. So we don’t anticipate any problems there, some of the trees and brush will have to be removed, if not nearly all of them or another alternative may be to cut a new ditch and to leave everything as is. But, anyway we haven’t been able to get out there to ride it out and to check all of the log jams and whatnot. But, as soon as the weather is fit we’ll be out there. Mr. Erwin said they would accompany us as well.


Carl Conner: So, your going to be basically working up that ditch from Seven Hills Road through the Industrial Park up to St. Johns.


Robert Wilson: That will be part of it.


Jim Niemeyer: Yeah, now it’s a large one and I don’t think we’ll have the funds to do it all in one year.


Carl Conner: My question is, so you have any idea of how much of that your going to be able to do this year or will you not be able to tell until you go out there?


Jim Niemeyer: Well, the first thing we’ll need to go out there and make that assessment, but I’d say that the initial phase would run 1500 to 2000-feet wouldn’t it? Somewhere there in that neighborhood of 2000-feet would be an approximation of what we should do. Mr. Erwin also indicated that he may be able to find individuals or companies to remove lots of those trees and cut them up as he mentioned earlier and all we would have to take out is the stumps.


Carl Conner: So you feel like that you’ve got some resources that the City of Elberfeld has that can work with us in regards to getting that ditch cleaned up?


Dwayne Erwin was in the back of the audience and stated something about having people who live in Elberfeld and are in the timber business, he has talked to them about clear cutting it.


Carl Conner: Okay, so will you be ready Jim at next months meeting to give us an update and some time tables and costs in regards to when we are going to get started and what the estimated cost is going to be.


Jim Niemeyer: Yes, I can


Don Williams: To remind you Jim, you do have plenty of money to do that whole project. There’s $600,000.00 in CD’s.

Robert Wilson: Right, but they only appropriate $200,000.00 for this year though, but we could get more probably.


Don Williams: There’s no problem in cashing those in and appropriating them.


Jim Niemeyer: We reinvested them for 6 months, but we had at least 300 and maybe another one besides that, because Charlie called and asked me what we wanted to do with it. I said we may need it so lets just put it in there for six months.


Don Williams: Looks to me like you need it now.


Jim Niemeyer: Well, we’re going to use it.




Carl Conner: Now we have Hold Harmless.


Jim Niemeyer: You should have two Hold Harmless Agreements and I would like Robert to present those to you.



(High Point Center)


Robert Wilson: Basically we have two of them with the first one being for Wynntree Villas, Morley & Associates met with us on the site and basically they want to extend the concrete drive to make access easier for automobiles in and out of building 5, so they are going to want to encroach that 40-foot drainage easement by…..is it a foot or two total that they are wanting to encroach?


Matt Wallace: I am Matt Wallace with Morley and Associates, I was the Design Engineer on the project and I am here to represent the owner, yes, that was the intent, was where approximately a foot off of the Drainage Easement line at this point and they were discussing possibly pouring another 2-3-4 feet of concrete. There are some existing trees that they did not want to remove, so I think it would be a minimal amount of concrete poured within the easement.


Robert Wilson: All right, those trees are only, what 2 or 3 feet the most off of the concrete, so your looking at a foot or two encroachment total and we saw no adverse effect to allow them to do this, they are far enough off of the ditch bank that’s a pretty healthy…….


Don Williams: What is it 75-feet?


Robert Wilson: Well, this is not a legal drain, this is just a platted Drainage Easement on a regular ditch, it’s not a regulated drain. They are just wanting to encroach the platted Drainage Easement.


Don Williams: I’m not sure that anything this Board would even deal with.


David Zengler: I don’t know…..


Don Williams: The only time we get involved in natural drainage is when there is some kind of a blockage.


Robert Wilson: Well, I talked to Sherri and she acted like it would be the Drainage Board and not….. because I thought maybe it needed to come up under her business, at a Planning Commission Meeting.


David Zengler: Well, your doing a plat…..yeah., I would think it would come up before the Planning Commission.


Don Williams: Well, basically your changing a plat isn’t it?


Robert Wilson: Well, they’re not exactly changing it, they’re just encroaching it.


Don Williams: I don’t think this Board has….that’s just me, I don’t see where we have any dog in the fight.


Carl Conner: Dave, what’s your legal opinion?


David Zengler: I’m agreeing with that, I’m not so sure what…….


Carl Conner: So, what direction then Dave, from the legal perspective should they go?


David Zengler: Did the Planning Commissioner send you to us?


Matt Wallace: No…. did they?


Robert Wilson: Well, they did on the second one at Interstate Office Park which is the same type of deal, they are wanting to encroach the Drainage Easement for a parking lot, you know and they wanted to know if we had any problem and how we wanted to handle it. So I assumed it didn’t come up under Sherri’s (Plan Commission) business if she was sending it to me.


Don Williams: So, in other words, they are encroaching Drainage Easements which we approved when they submitted them for drainage approval?


David Zengler: Wouldn’t you be doing it as part of your…..as County Commissioners under the plat approval, I would think.


Robert Wilson: So, is it just a matter that he needs to wait until 4:00 and get on the sign-in sheet and see if he can get this addressed?


Don Williams: I personally don’t have a problem with it at all, but I just don’t think this is a determination this Board would make.


Carl Conner: Well, but we need to have the appropriate Board make the decision.


Don Williams: I agree


Carl Conner: It’s a good point to bring up. Okay, Sorry we can’t help you.


Matt Wallace: That’s ok, should I stay until 4:00 or….really those encroachment agreements, I believe we have done them between the owner and the Warrick County Drainage Board, do I need to prepare a different form?


Carl Conner: I am going to assume that it needs to go through Area Plan and come before the Board of Commissioners in an Area Plan Meeting, now whether or not it can be handled today on the agenda will be left up to Mr. Baxter because he is President of the County Commissioners.


Dwayne Erwin:  Does he not need your ok, though that the drainage will not be harmless before it goes on to the Planning Commission, because that is your job to look at that plat as far as drainage is approved or not, as long as this doesn’t upset the drainage there, then it should go to the Planning Commission. But I would think they need your approval on that.


Carl Conner: But, based upon the input of our attorney, though, what he is saying is that, it’s not an issue that this Board deals with.


Don Williams: If there’s no problem, its saying we don’t have a problem with it, probably, that is also what he is saying.


Carl Conner: Well, we can make a comment, but, it can’t be put in the form of a motion, I wouldn’t think.


Don Williams: We could give a consensus from the Drainage Board and I for one have no problem with it.


Carl Conner: Just as long as we’re not legally responsible.


Matt Wallace: So unless it’s a legal drain……?


Don Williams: We don’t usually deal with it, natural drains, I mean, like if you out and fill it up with dirt, then we’re going to be talking to you. But normally just legal drains.


Carl Conner: So, Dave, what is the direction that he needs to go?


David Zengler: I think he could do it in your next…in your 4:00 meeting as County Commissioners, you could do it there.

Carl Conner: Through the Area Plan?


David Zengler: Yes


Don Williams: Just line out Drainage Board and put Board of Commissioners.


Carl Conner: It’s up to Mr. Baxter


Phil Baxter: I have no problem with, but, I’m not sure if we have anything on the sign-in sheet. But, I don’t mind taking you the last thing.


Matt Wallace: Ok, I don’t have a personal problem with changing the Drainage Board to Area Plan Commission, it has been signed and notarized by the owners, I’d be glad to give you the ones I’ve got and then have new ones prepared and signed and notarized just so its all clean and bring it……..


Carl Conner: My suggestion would then be that probably you need to go back to the owners and get it corrected and resigned and come back to the next County Commissioners Meeting with this.


Matt Wallace: Which will be in two weeks, you say?


Carl Conner: Yes, ok thank you.


Don Williams: Be a week from next Wednesday, two weeks from today.




Carl Conner: March claims to be paid.


Phil Baxter: I move we approve the claims….


Carl Conner: Excuse me a minute, Phil. Don said I missed something here.  (on the agenda)


Don Williams: We had Wynntree and Mental Floss.


Robert Wilson: No, he was representing both of them, it’s the same issue, Mental Floss is in the Interstate Office Park.


Carl Conner: Okay, March claims


Phil Baxter: I move we approve the claims in the amount of $2,417.74.


Don Williams: I second that motion.


Carl Conner: All in favor state by saying aye.  “Aye”


Don Williams: Aye


Phil Baxter: Aye


Carl Conner: Passes three to zero, any other business?


Don Williams: Yes, Mr. President I have just a question……


Carl Conner: Wait, one second, Do you have any other business Mr. Surveyor?


Jim Niemeyer: I would, but the only thing I would like to ask and I do this respectfully, that we be able to hopefully get our requested computer equipment upgraded to do that because our problems are beginning to mount and our systems are slowing up and I will refer this to Robert, because he is my computer expert.


Robert Wilson: I did discuss with Erik the possibility of upgrading what we have versus buying new and……


Don Williams: That’s a surveyor issue, right?


Robert Wilson: No, the line item is in Cumulative Drain, the Council appropriated money in Cumulative Drain for this.


Carl Conner: Well, it is a Surveyor’s issue is it not, it’s in the Surveyor’s office.


Don Williams: He has line items for his office and there is line items for the Drainage Board and I was under the impression these were under his office, he’s telling me its under the Drainage Board.


Carl Conner: Okay, go ahead.


Robert Wilson: Erik said that due to proprietary hardware and other factors, he didn’t feel upgrading was a good way to go, he didn’t feel like in the end you wouldn’t have as good a piece of equipment and you still would not have any warranty and you would have spent almost the same amount…maybe not the exact same amount of money, but close to the same amount of money and you don’t have the same equipment that you could have had if you had just bought new. Where if we buy new, we will have the three years warranty and obviously brand new equipment.


Jim Niemeyer: Plus we have a license issue.


Robert Wilson: Right, and we do have some software issues where we are not technically meeting the license agreement.


Don Williams: Would you have to transfer everything from the hard drive’s you presently got to a new system or….

Robert Wilson: Well, we can use our server to do that, to transfer anything that we need to keep we can put it onto our server temporarily.


Don Williams: Are you going to be able to use the same hard drive you currently have, how many have you got?


Robert Wilson: No, actually……we’ll have enough space in what we buy to do everything we need and a couple of our computers have hard drive problems and that is why they need to be replaced.


Jim Niemeyer: And that will also give us all the same operating system windows.


Carl Conner: How long will it take because I know you got the money available?


Robert Wilson: To get them?


Carl Conner: Yeah, to get everything in and installed.


Robert Wilson: Erik’s already got a quote saved for us to lock us in at a price and its just as soon as I tell him that he can order it, that we have a consensus that its all right to do so.


Carl Conner: I personally don’t have a problem with it since everybody’s in agreement that the changes need to be made, I mean we’ve got Erik’s input and he’s willing to work with you and you all feel that you need it and we’ve got the money, as far as I’m concerned….


Robert Wilson: Erik actually saved us some money, he refigured some things and re-priced them and saved us about $1,000.00.


Don Williams: Its his job.


Robert Wilson: He did a good job of it too.


Jim Niemeyer: We feel like our system is growing and its going to get worse, because we’re really beginning to add data to it.


Carl Conner: Do we need a motion just on the agreement.


Don Williams: I think just a consensus would be ok by me.


Robert Wilson: Consensus would be fine.


Carl Conner: Is that all you have, Jim?


Jim Niemeyer: Yes sir.


Carl Conner: ok, Don?

Don Williams: I just wanted to ask Jim a question on the Schmitt-Orth situation. Did you have a chance to visit with Mr. Schmitt?


Jim Niemeyer: I did, I went out there last week and met with he and Mr. Orth and I told Mr. Schmitt what we wanted done. He agreed to do part of it but not all of it. I wanted him to remove that obstacle where the water comes out of the railroad drain to remove that tree because the water hits there and has to make an immediate left turn and go to the east, during periods of heavy rain the water is also going around the tree and starting to cut a new ditch that are so ineffective, the tree will eventually become an island and that would relieve the pressure on that. The ditch at the time I was out there was full of water and I would say that within fifty feet or so of what is known as the Lip-night Ditch, the drainage way tapers up so that the water really can’t run out, but if it were cut down a little bit then it would all drain. Something I didn’t know when I was out there before and I did observe this the last time I was out there was the fact that Mr. Orth’s and Mr. Schmitt’s property line…Mr. Orth had a stake in the ground, a steel pipe that identified the location of a property corner that was set by a surveyor, Mr. Chandis, which is west of that ditch, I am going to estimate 8-10 feet and maybe a little bit more. So really, everything is on Mr. Schmitt, you see and maybe we’ve not made the right determination. He is within his bounds and I don’t think that he’s really preventing any run-off cause its low and its wet. So, maybe it’s a matter that needs to re-visited again and look at it kind of hard.


Phil Baxter: So, you thought sure that it is Mr. Schmitt’s.


Don Williams: Did he clean the trees out where its now doing what its supposed to? Cause he did do some cleaning?


Jim Niemeyer: Well, he did some work there but, no its not clean, but you know….its on his property, you know and he’s done with the equipment that he has, which is a tractor and a front end loader.


Don Williams: It’s not holding up the watershed?


Jim Niemeyer: No, that ditch would drain if it would taper down on the south end to where……


Don Williams: Your talking about the Scales-Lipnight Ditch? So it sounds like then the task is for your office to lower that.


Robert Wilson: He’s not actually talking about the Scales-Lipnight Ditch, he’s talking about this same ditch, he’s saying as you get towards Scales-Lipnight Ditch it intersects it, that the grade needs to be lowered and the ditch in Mr. Schmitt’s field.


Jim Niemeyer: Because it was standing full of water except for the last 50-feet, so it just needs to be tapered down, I think.


Don Williams: But that’s his property….Is he willing to do that?


Jim Niemeyer: Didn’t ask him, he said its not a ditch and he’s steadfast in that belief, he said that water runs out of there, goes along the railroad to the east to the property corner and then it turns right and goes south and it enters the Lipnight Ditch on the southeast corner of his property, that the water goes like this, goes to the Lipnight ditch and then it goes east along the railroad it turns makes a right goes south and they meet at a common point.


Don Williams: We are supposed to what, re-hear that matter again on the 13th? I need to go out there and look. Next week we’ve got Road School, so that’s out, I’m not sure I can do it before the 13th, but I would like to go look at it so I can see what your talking about.


Carl Conner: You’ll be back Thursday, won’t you?


Don Williams: Yeah


Carl Conner: And then you’ve got that following week.


Don Williams: Yeah, I’ve got Monday and Tuesday that following week before we meet again, so…..


Carl Conner: No, that would be the first week of the month.


Don Williams: Oh, that’s right


Carl Conner: You’ve got ten days .


Don Williams: Yeah, ok, I’ll get with you, if not one of you call me and remind me a week from Monday anyway.


Carl Conner: Don, do you have anything else?


Don Williams: That’s all I have, Sir.


Carl Conner: Phil, do you have anything?


Phil Baxter: No


Carl Conner: Dave, Did you have anything?


David Zengler: No, nothing


Carl Conner: I would look for a motion to adjourn


Phil Baxter: So moved


Carl Conner: Have a motion on the floor to adjourn, do I have a second?


Don Williams: Second


Carl Conner: Have a second, all in favor state by saying aye.  “Aye”


Don Williams: Aye


Phil Baxter: Aye


Carl Conner: Passes three to zero. Meeting is adjourned.