107 W. Locust Street Courthouse

May 25, 2005

3:00 P.M.



The Warrick County Drainage Board met in regular session with President Carl Jay Conner presiding, also in attendance were Phillip H. Baxter, Vice-President; Don

Williams, Secretary; James E. Niemeyer, Surveyor; David K. Zengler, Attorney for the Board and Robert A. Wilson, Deputy Surveyor.


Minutes recorded by Cheryl D. Embry.


President Carl Conner brought the meeting of May 25, 2005 to order.




Carl Conner: At this time we will handle the approval of minutes, it appears that the minutes related to April 27th of 2005 were tabled from the last meeting, whatís the will of the Board?


Phil Baxter: Iíll move that we approve the minutes of April 27, 2005.


Carl Conner: Have a motion on the floor for approval of April 27, 2005 minutes, do we have a second?


Don Williams: Iíll second it.


Carl Conner: We have a second, all in favor state by saying aye.


Don Williams: Aye


Phil Baxter: Aye


Carl Conner: Aye, passes three to zero.Approval of minutes of May 11, 2005.


Don Williams: Motion to approve.


Carl Conner: Have a motion on the floor to approve May 11, 2005 minutes, do I have a second?


Phil Baxter: Second


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


Phil Baxter: Aye


Don Williams: Aye


Carl Conner: two ayes and one abstention. Okay, Jim, I will turn the rest of the agenda over to you.


Jim Niemeyer: The first thing I have on the agenda here is a removal of an obstruction.




Jim Niemeyer: This occurs in Asher Estates, which is South of the intersection of Outer Lincoln andÖ.. its West pardon me and Frame Road. Iíll just pass this over and what happened is there is a lot, I believe its Lot 22, there is a home on it built by Handcrafted Homes, which is Mr. Tubes, I believe, he built the home and put a berm behind and blocked all drainage from the East which is drainage that runs downhill for approximately five acres or so or more and during the last rain, it breached the berm and went right on out, but still there is a pool of water that was remaining and Iíve taken several photos for you to look at. (he passes the pictures out) Thereís a lot of relief on the property to the East that goes West toward Asher Estates and the berm definitely blocks the drainage of the flow of water off. It would appear that the method to remedy that would be to redesign the berm or install a drain where you see the water pooling on the East side of the berm there.


Don Williams: Did we not have an approved drainage plan?


Jim Niemeyer: Yes, we actually did, but for some reason I think he changed it and he was approached by Mrs. Hay to stop, but he said Iíll do what I want to, its my property. But, without any regard to drainage.


Don Williams: So, it looks to me like the natural drainage is about where it washed out?


Jim Niemeyer: Yeah, it almost breached it right there.


Don Williams: It looks like it did breach it.


Jim Niemeyer: Well, I mean all the way through, I went by it last night and there has been no changes made to it.


Carl Conner: Is that on the backside of Mrs. Hays property?


Jim Niemeyer: Yes.


Carl Conner: She lives on Frame Road, doesnít she?


Jim Niemeyer: Yes, they likewise have a pond and when I was out there, their pond was leaking near the toe of the slope and they were to have it repaired this week.


Carl Conner: My question would be if he has an approved drainage plan and he did not follow that approved plan, can we hold him liable to make any corrections to resolve this

Matter of the standing water?


David Zengler: Yes, I feel, I meanÖ I think this is the whole purpose of following the plan, if heís not going to follow the plan, I thinkÖÖÖ.


Phil Baxter: I donít think he probably brought a plan in for approval, this is someone elseís subdivision and Iím saying he probably just bought a lot there with this home.


Don Williams: Oh, this is the home owner that did this?


Phil Baxter: No, this is the contractor.


Jim Niemeyer: This is the contractor that built the home, Mr. Tubes and he goes under the name of Handcrafter Homes.


Phil Baxter: I think Holweger owns part of this subdivision.


Jim Niemeyer: Yes, Asher Estates.


Phil Baxter: The way it looks to me, thereís a swale, there should be a swale where you see the utility boxes there, going to the South probably and it looks like he bermed off where the water canít get to the swale. Thatís the way it appears to me, is that right, Jim?


Jim Niemeyer: Thatís right.


David Zengler: Jim, has there actually been a petition filed?


Jim Niemeyer: Yes


David Zengler: Okay, do you have that with you?


Jim Niemeyer: I do.


Phil Baxter: Jim, is this inlet here, is that fromÖÖ.


Jim Niemeyer: Thatís right along the road, you see the culvert, it goes along the edge of the road. I donít think it would be very difficult to repair it, but it needs to be done.


Phil Baxter: It looks as if itís not been there very long, thereís no vegetation on it.


Jim Niemeyer: No, it was freshly done.


Carl Conner: So, what is your suggestion, Jim?


Jim Niemeyer: Well, I think before we actually go through the complaint, we go back and revisit the drainage plan and make sure, but I would contact him first.


Carl Conner: The builder or the developer?


Jim Niemeyer: Both


Carl Conner: Both of them, okay and see if they can resolve the problem.


Don Williams: Make sure he understands that he cannot block a Natural Drainage Way.


Jim Niemeyer: He was told that by Mrs. Hay that you cannot.


Don Williams: Well, she doesnít have any authority.


Jim Niemeyer: I know and I will.


Carl Conner: Is there any further discussion?


Don Williams: No, I donít, but it looks like weíre getting several of these all of a sudden.






Jim Niemeyer: This is just a report, I have filed a permit to do work in the Little Pigeon Creek Legal Drainage area for a total of, that we have found right now of six log jams. This area is all in wetlands and most of it is owned by the State of Indiana and I have had both Presidents of the Joint Drainage Boards sign the application and I expect it will be sixty days before it is approved.


Don Williams: Send a letter to the Governor and get a direct ok from him, tell him its an emergency.


Jim Niemeyer: We may have to, it is pretty bad, I was out there the day after we had the 1-inch rain and the next day it was flooded. The log jams have really done the job and backed it up over considerable area.


Don Williams: See thatís a legal drain, we either have control over legal drains or we donít as far as Iím concerned if we canít do anything in it then the state needs to take it. I donít understand the law on that.


Jim Niemeyer: Itís the feds in this case.


Carl Conner: Any other questions or comments?


Jim Niemeyer: I have one set of data here if you want to see it, itísÖÖÖ


Carl Conner: Ok, Jim, why donít you go to the next item.




Jim Niemeyer: We finished work on the Gardner-Webb Ditch, it was work that was started last year, but not finished and we installed some additional matting and it is all complete now and we have some new projects that we are getting underway.




Jim Niemeyer: It involves dressing down the bank.




Jim Niemeyer: This is an area North of the Alcoa Plant and trees need to be ground and brush needs to be ground as well.




Jim Niemeyer:Repair slips on the banks.




Jim Niemeyer: Tomorrow we will begin surveying and finishing that up, so we can get it ready to straighten out that ditch. The area north of the Elberfeld Septic Plant, the trees have been removed, so we are ready to go on that.


Carl Conner: I want to make a trip up there next week and see how thatís looking, cause thatís going to be a real plus for the Elberfeld Community especially the Industrial Park, hopefully.


Jim Niemeyer: We got all of those jams removed and it lowered the water in there about two feet. It really did help down there.




Carl Conner: It appears that we have claims in the dollar amount of $4,234.37, do you have any questions or comments in regards to the claims?


Don Williams: I have none.


Phil Baxter: I have none, I move that we approve the claims.


Don Williams: Second

Carl Conner: Have a motion on the floor to approve the claims and have a second, all those in favor state by saying aye.


Phil Baxter: Aye


Don Williams: Aye


Carl Conner: Aye, passes three to zero. Any other business, Jim?


Jim Niemeyer: Yes, first item is Oak Grove Subdivision and I think Mr. Bivins would like to make a comment.




Bill Bivins: I have a request to reduce the drainage easement on the North side of Lot 169 from 10-feet to 6-feet. Thatís basically sheet flow there and would not amount to too much water coming down. They need the extra footage to put a bigger house on it


Sherri Rector: These plans were originally approved June 4, 2003.


Don Williams: Weíre talking a legal drain and all weíve got is 10-feet?


Bill Bivins: No, just a Drainage Easement.


Sherri Rector: Really, weíre just asking to amend the drainage plans that were approved on June 4, 2003from a drainage easement being 10-feet to 6-feet. Mr. Niemeyer went out and did an inspection and it is supposed to be a small swale, is that right? So it would be within the 6-feet.


Carl Conner: Does that just pertain to the one lot?


Bill Bivins: Yes


Jim Niemeyer: I have photos, if you care to see those.


Bill Bivins: Carl, you and Don probably remember that because the people back behind there had some problems with drainage and Kenny Ubelhor put some French drains in there.


Don Williams: I remember that, I remember the French drains.


Bill Bivins: There is hardly any water, what we have is sheet flow.


Carl Conner: Jim, do you see any problem with it?


Jim Niemeyer: No, other than they should put a swale on the North side.

Carl Conner:And thatís not a problem, I assume?


Bill Bivins: Not a problem.


Carl Conner: Any comments or questions from the Board?


Don Williams: I have none


Phil Baxter: No


Carl Conner: I would look for a motion that we change it from a 10-foot to a 6-foot.


Phil Baxter: I move we approve the Drainage Easement on Lot 169 from 10-feet to 6-feet.


Carl Conner: I have a motion on the floor to approve the request of Lot 169 from 10-feet to 6-feet for a drainage easement, do I have a second?


Don Williams: Second.


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


Phil Baxter: Aye


Don Williams: Aye


Carl Conner: Aye, passes three to zero.




Jim Niemeyer: At the last meeting we discussed Orth and Schmitt. Yesterday I went out there and I took a contractor out there to look at removing that obstruction and from the last meeting, I know I have permission to do it and I wasÖ.but my question to you was do I have to have a full fledge bid party as it is just a small job and I can get it done for $450.00.


David Zengler: You donít have to, no.


Carl Conner: What is the cut-off, $25,000.00? Is that right?


David Zengler: Yes, he is well under it.


Carl Conner: I just wanted to be sure that I understood what the dollar amount was?


Don Williams: Who are you looking at, Jim doing the work?


Jim Niemeyer: He did the work at Elberfeld, Strahle.


Phil Baxter:Heck and Strahle? From the claims here?


Jim Niemeyer: Yes, he said they could do it for $450.00.


Don Williams: Did he say when he could get to it?


Jim Niemeyer: When? Almost any time


Don Williams: Does that include removing the dirt?


Jim Niemeyer: Whatever it will take to remove the dirt and put it on Orthís property.


Don Williams: In the woods and Mr. Orth is ok with that?


Jim Niemeyer: Yes, he said he would take the dirt and all that we would need to do is cut one root loose from that tree and that ought to do it. That whole stream, the ditch to the East there is all clogging up, it looks to me like its really filling up with debris. Really, the best thing to do and you can call it whatever you want, but I call it a berm ditch, but if that was cleaned out and properly graded down to that Lip-night Ditch, that would really be the thing to do.


Don Williams: But, in order for us to go in and do that, I think we have to make that a legal drain and I donít think we have anyÖÖÖÖ.


Carl Conner: Any other comments or questions?


Phil Baxter: Are crops planted in there now?


Jim Niemeyer: Yes, its all in corn, but he never did remove the brush pile that he had taken out this winter, they are still there.


Phil Baxter: Will you inform him of work being done orÖ.you just canít go in there can you?


Jim Niemeyer: Iím not sure that we will get on his property?


Don Williams: No, we wonít.


Jim Niemeyer: Weíll sit right there with a tractor on Railroad Right-of-Way and can reach out into it. Before we start though, Iíll give Mr. Orth a call and also Mr. Schmitt if he will come out there, but he just definitely does not want toÖ..he will not remove that obstruction, he told me that.


Carl Conner: Well, I think for $450.00 if that is going to resolve that issue, it is probably $450.00 well spent.


Phil Baxter: I agree with that.


Don Williams: Agreed. I move that we giveÖ.Iím sorry, Dave, did you have something to say.


David Zengler: I think youíve actually given him authority, but thatís fine.


Don Williams: I move that we authorize Jim to spend the $450.00 with Heck-Strahle Excavating to remove that obstruction.


Carl Conner: I have a motion on the floor to approve the expenditure of $450.00 with Heck-Strahle to remove the obstruction in that Schmitt-Orth Drain, do I have a second?


Phil Baxter: Second


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


Don Williams: Aye


Phil Baxter: Aye


Carl Conner: Aye, passes three to zero. Anything else, Jim?




Jim Niemeyer: I have here Plan C which you are all anxious to receive concerning Storm-water Quality Management, this was submitted to IDEM on the 20th on last Friday and there is a letter of transmittal in the front cover here and I also made some notes in there for you to read.


Carl Conner: When are we to give you a report?


Jim Niemeyer: Iíll just sum it up this way, it all has to be done by the end of the year and it is mainly concerned with the ordinances.


Phil Baxter: 05?


Jim Niemeyer: Yes and if you have any questions, these are the things that have to be done.


Carl Conner: By the end of the year?


Jim Niemeyer: By the end of this year. This is just a heads-up


Carl Conner: Anything else, Jim?


Jim Niemeyer: No, sir, that concludes everything I have.


Carl Conner: Phil, do you any business?


Phil Baxter: No, sir.


Carl Conner: Don?


Don Williams: No




Carl Conner: I have one issue that I would like to inquire about and maybe have some discussion on and that is that Stollberg Ditch, where are we from the standpoint of determining whether or not that is a legal drain, I understand that Jim brought all the documentation over to your office, Dave?


David Zengler: I didnít bring all my files, since it wasnít on the agenda, but my recollectionÖÖit is my understanding that it was a legal drain, Stollberg Ditch is and it crosses Fuquay Road. I think the issue that Iíve always felt is whether you could build or do anything on the West side of Fuquay Road. As a Drainage Board, it was my deterÖ..

I didnít feel as a Drainage Board that you could do anything on the West side of Fuquay Road.


Carl Conner: Because it was not a Legal Drain on the West side?


David Zengler: Because it is not a legal drain on the West side, it is a legal drain on the East side and where you would be doing it does not extend into the Right-of-Way of the legal drain, now, as we talked about in a previous meeting, you may have some way to go on the East side as part of your duties as a Highway and your County Commissioner duties. I referred you to the County Attorney, but I donít know and I think that weíve discussed, I donít know if there is anyway to do anything on the West side of Fuquay Road.


Carl Conner: I donít think working on the East side is a problem, I think itís working on the West side and based upon the last discussion with Chandler Town Attorney, they are in the process of condemning that property on the West side up to that ditch and the had indicated to me that as soon as all that is completedÖand one of the Town Board members also, Bob Hess, that they would give us permission to move in there and to do the work as we saw fit on that ditch. Now, does that create a problem?


Don Williams: If itís not a legal drain it probably does.


David Zengler: Well, if its not a legal drainÖ..


Don Williams: Could we make it one?


David Zengler: Unless you make it one, I guess you could make it one.


Carl Conner: Even with them owning the property up to the top of that bank, we still from a legal stand point, with their permission canít go in there and work.

Don Williams: Are you talking about Chandler?


Carl Conner: They are in the process of buying it and the City of Chandler said they would give us permission to go in there and do whatever we felt was necessary to that ditch.


David Zengler: It would seem to me there would not be any problem if everybody is in agreement, you could make it a legal drain, but you would have to have everybody in agreement to do that, which is what you are saying might happen.


Don Williams: We could make it a legal drain and Chandler would have the same benefits as any other property owner on the ditch.


David Zengler: Yes


Carl Conner: Well, can we make it alegal drain without the approval of the people that would own the property to theÖ..I guess thatís to the South of the ditch? Cause they are only going to buy the North side of the ditch.


Don Williams: I think we would have to any other procedure wouldnít we, the same procedure we would use for any otherÖ..


Carl Conner: Like we did for Bluegrass in Elberfeld.


David Zengler: Yes, you would have to make it a legal drain.


Don Williams: Have to have a hearing and findings.


Carl Conner: So, then this Board would need to recommend to the Commissioners to proceed or the recommendation of this Board would be to proceed with making Stollberg Ditch to the West of Fuquay Road a legal drain.


Jim Niemeyer: Thatís the area currently owned by the Beards and theyÖMrs. Beard told me it was staked and they were going to sell it to settle the estate.


Carl Conner: Well, the City of Chandler, my understanding is buying to the North.


Jim Niemeyer: Yeah, their area is to the South too, they own the whole 40 acres.


Carl Conner: Right, thatís what Iím saying though, how do we get onto their property and it appears that the only way to get onto their property is to make it a legal drain from a legal stand point.


David Zengler: AndÖ..nowif they are not in agreement, I think its gonnaÖ.the issue may become whether its actually a drain, you know, I mean if everybody agrees itís a drain, itís aÖ.you know you could make it a drain, but Iím not so sure itsÖÖ.

Carl Conner: Well, I guess then what we need to do is if we want to be sureand be on legal ground to do the work in there, I guess the next thing for this Board would be to entertain a motion to make a recommendation to the County Commissioners to start the process of making it a legal drain.


Don Williams: Are we going to wait until Chandler has possession?


Carl Conner: I personally myself would just like to go ahead and get this thing moving, so we can get something done in there because I understand they condemned it, Chandler did.


Don Williams: Because of the ditch?


Carl Conner: No, I donít know what they are going to do with the ground, but they couldnít come up with the price that the owners wanted, so they whatís it called a condemnation on it and it hasnít been resolved yet. I just feel like that if we can work in tandem with what they are doing to get it a legal drain, I mean, if thereís support to do that, then it probably doesnít matter what Chandler does, if we can get it a legal drain then we can move in there and work on it. This project has been going on for four plus years and if we have an opportunity to expedite it in whatever way I would like to see us do that.


Don Williams: Are you talking about widening the ditch on the West side?


Carl Conner: Yes, that improvement would be part of that entire plan there to put in a new drain under the road and on the North side pipe that and cover it up and have about a six inch swale on top of it and keep the water out of those homes based on the Engineers input, I think we have about three different options, but I think it was one option of the three that he recommended. So, what do you think, Phil?


Phil Baxter:Iím not in agreement at this point.


Carl Conner: To recommend to the Commissioners toÖÖ.


Don Williams: Do you want to wait until Chandler gets possession before we look at it?


Phil Baxter: Iíd rather


Don Williams: Well, at least it would be clear that way, we wouldnít be dealing with more than one property owner, why donít we wait until Chandler has possession and see if we can get it done.


Carl Conner: Okay, did you have any other comments in regards toÖ..


Don Williams: No


Phil Baxter: No


Carl Conner: If there is no other business to come before the Drainage Board, I would look for a motion to adjourn.


Don Williams: So moved.


Phil Baxter: Second


Carl Conner: Have a motion on the floor to adjourn and a second, all those in favor state by saying aye.


Don Williams: Aye


Phil Baxter: Aye


Carl Conner: Aye passes three to zero. We are adjourned.