COMMISSIONERS MEETING ROOM
June 8, 2005
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 for the Board; James E. Niemeyer, Surveyor, David K. Zengler,
Attorney for the Board and Robert Wilson, Deputy Surveyor.
Minutes recorded by Cheryl D. Embry.
President Carl Conner brought the meeting of June 8, 2005 to order.
APPROVAL OF MINUTES:
Carl Conner: The first order of business will be approval of the minutes from May 25, 2005, is there any questions or concerns from the Board relative to the minutes of May 25th?
Don Williams: No
Phil Baxter: Have none
Don Williams: I move that we approve the minutes of May 25, 2005.
Carl Conner: Have a motion on the floor to approve the minutes as presented of the May 25, 2005 meeting, 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. The next order of business is a Legal Hearing in regards to Reburn and Jacobs. Iíll turn that over to you, Jim.
LEGAL HEARING: REBURN VS JACOBS:
Jim Niemeyer: Yes, I have the data that concerns this hearing, Reburn Vs Jacobs and if they would care to come to the podium.
Carl Conner: Would you please state your name sir, for the record.
Bill Reburn: Bill Reburn
Carl Conner: Do you have any comments or follow up that you would like to make in regards to this issue?
Bill Reburn: No, just what I told you guys in the past, when I came up here the first time and filed the complaint, that is still my complaint.
Carl Conner: Jim, do you have any follow up?
Jim Niemeyer: Yes, we have been out there a few times and nothing has changed, in fact, we were out there this morning and it remains the same as the last time I saw it, which was probably a couple of weeks ago. The drainage has been blocked, you could see it when I was out there, drainage is to the South and it is blocked on the South as you can see in the pictures I have provided for you.
Bill Reburn: Like I told you guys, that one time, my yard never did drain from the beginning right after I bought my property, they were going to try and work it out, but then Meeceís sons and ott got together, Meece said he would do it and Ott said he wasnít coming on his property, so I basically had a little bit of a swamp here in my yard for about 15-16-17 years, now weíre having Lake River Bluff in my backyard when it rains. Like I told you that one day I had 14 steps of muddy water in my yard that was running backwards to where the clear water was running the other way.
Jim Niemeyer: It was running North of his residence, instead of South toward the river.
Bill Reburn: Running North into the middle of my backyard.
Jim Niemeyer: The drainage map did show the swale thereís the drainage easement that runs along the North side of the entire subdivision. Thatís the direction the water was proposed to flow is to the South.
Carl Conner: So, I guess Jim, my question is, that if that drainage easement was cleaned out, that drainage would flow properly as it should.
Jim Niemeyer: Yes.
Phil Baxter: Thatís looking at his house?
Jim Niemeyer: Yes.
Carl Conner: How many feet do we have there? Do you have any idea?
Jim Niemeyer: Iím going to estimate 50-feet.
Bill Reburn: What from his property to the ditch or I mean to the bank? I donít know
Jim Niemeyer: Yes, to clean it up. We didnít measure it, but itís outlined on the photos there, the problem area.
Carl Conner: Is there anyone else here who would like to address this issue before this body? Come forward please and state your name for the record.
Othmar J. Jacobs: †Iím Othmar J. Jacobs and I am a builder, developer. I developed three subdivisions in Indiana, two in Kentucky and a professional designer and I have been since 1947. Iím allowed to design, but I have to get a Engineer or Surveyor to finalize and Okay it. So, Iíve had a lot of experience and Iíve done this at least eight times, probably developed fifteen hundred to two thousand lots. I had developed one subdivision in Warrick County and am very well acquainted with Indiana law and Kentucky law which is somewhat different. The procedure is that you present a plan and the first thing you do is get a drawing of the drainage. That was done in Boonville. Would you like me to give you a copy so that you can follow along?
Carl Conner:† Itís up to the other two, I donít want a copy, but if they would like a copy, thatís fine.
Othmar J. Jacobs: Okay, thatís fine, thatís fine with me, but I have it if you need it. What had happened, the developerÖa developer is required to post either a bond or some type of sewer surety and Mr. Meece, who developed this property posted an irrevocable line of credit, that line of credit is for two years, if the developer doesnít complete the work then that line of credit is attacked, the work is completed before approval is given and he actually could require one more year and he chose to do that because the work was not completed. I bought the lot from him after this time, first time run out, the second time had not run out. When IÖbeing a builder, understanding exactly whatís required of me, when I got ready to do the grading, I had my men check and found that there is eight inches of fall toward the street from the back of the property, that is adequate for drainage. There was a total of 23 Ĺ inches of rise toward the South, there was no drainage toward the South and when I had my contractor, Mr. David Young, do the grading, before he did the grading, as I do all my jobs, when I design for anybody else or design my own plans, I drew a drainage plan and in the drainage plan I specified and I set up grade stakes from the 8-inch rise to the 0 edge of the sidewalk which was adequate. That was the only drainage possible, there was no drainage toward the back, there is a 10-foot drainage easement provided, as it should have been. This was not done and whenever the final approval came out, the County did not attack Mr. Meeceís line of credit, so the County in essence accepted a 23-inch rise. So for all intents and purposes, that is the drainage plan. The original drainage plan which was presented in September 2, 1986 by Alvin Paul, he certified all the measurements and the drainage plan by Paul Gore was September 2, 1986. The Board accepted that drainage plan September 2, 1986, his line of credit continued, 86 is when he posted it and it continued on until 89, ample time to complete the drainage, all right, the drainage was not completed and that can be verified by bore tests as you all know. At the time when I graded my yard, being sure that I followed all the rules, we built a lot of houses, Iíve probably built 250 houses, what you donít do is mess with the County, anyway, there was a swale, which is proper, that is part of drainage. Mr. Reburn built a house next door and Mr. Meece who I bought the lot from, I discussed with him that the swale there and asked him if he was going to maintain it and he said Yes I am and he did. They came out and he had piled the dirt which was normal procedure in front of the house and the distributed the dirt around the front of the house and to the side. I showed him the stakes were there and he respected the swale, which would have given very good drainage until that time Mr. Reburn correctly said, immediately after he graded his yard there was a swamp back there. Then after that happened which was the dirt that was moved was a sandy loam, there was quite a discussion between Mr. Reburn and the developer, Mr. Meece, which I could see from my house, I had no part of it, nor should I have. The next morning I came out and a great deal of very good excellent quality black dirt was brought in and it was many truckloads, I donít know how many, they proceeded to grade, when they graded they graded all the way across the swale and onto my property, which meant that they effectively trapped the water, Mr. Reburn had effectively trapped the water behind his house and I thought now this is bad. Mr. Meece was there and I asked Mr. Meece how he was going to address the fact that there was no drainage, He said Iím going to dig a swale and I said your not going to dig a ditch back across my property and I said well, you know you have a 10-foot easement and your required to stay on the easement, not on my property. He said no, I canít do that, he said (if you had this plan, but you donít want it) he would have had a 60-inch fall within about 6-feet, that was 60 % grade. The Surveyors, Engineers, who I design for only allow me a 20% grade and I think 30% is theÖ..but a 60% grade would never have stayed there and I informed Mr. Meece that he could do what he wants to, itís a drainage easement you cannot alter my property, but you can do what you want to and he said well, it wonít work. It would not have worked, it would have failed. Well, your option then Mr. Meece is to tile it, he said no, tile was not figured, Iím not going to do it and I said well, youíll do just what you want. Then the next morning a group of surveyorís show up, set up on my property, which was improper and I didnít say anything, they surveyed and then they talked. Then they went and if you had the plan in front of you, there was installed in the original subdivision to prevent water from coming into that subdivision a berm and its there now you can see it, proof of the berm is the stake between Mr. Reburns lot and it was on that berm on the edge of it about 8-inches deep. A normal lot stake protrudes 6-inches under at lease 14-inches of dirt had been placed on the former berm, that was done because there is a large swale across the adjoining property belonging to Mr. Williams and at one time I believe it probably drained toward the East, however, a new subdivision was developed to the East and blocked that swale and water would form there. I assume though I donít know for sure, the swale or the berm was placed to prevent water from coming into the subdivision, so that the water could go down follow the back drainage, follow the swale to the street and there is a drain, to the street and then follow that same drain, and I donít think its proper but nobody asked me. All right, it would have worked, but however, Mr. Reburn chose to improperly fill his lot, the R401-3 in the drainage code that says surface drainage shall be diverted to a storm sewer conveyance or other approved point of collection so that not to create a hazard, lots shall be graded so as to drain surface water away from the foundation of the walls, the grade from the foundation walls shall fall a minimum of† 6-inches within the first 10-feet. Mr. Reburnís property, I have a drawing if you would like to see it, has only 2-inches in 12-feet, which will not drain his foundation, his house is not in compliance. If he wouldíve not takenÖ.overfilled the swale and if he would now go out and re-establish the swale his house would be in compliance, the subdivision would drain. If , in fact, the drainage was not (un-intelligible) constructed on the easement, that was not my responsibility as a builder, I had no part of developing that subdivision, my only concern was I bought the lot, I wanted to build a house and I wanted to be sure that my lot was not affected. Mr. Reburn has now caused all this problem, the solution is toÖÖfor Mr. Reburn to re-establish the swale and to properly establish the drain away from his house. If he attempts to sell the house in this condition, which the foundation according to the code book has been damaged because water with deep grass will not drain 2-inches in 12-feet, it will saturate down, attack the foundation in two ways, it will actually go underneath the footing causing cracking, if Iím called on, which I do occasionally since I am a designer, toÖ.people ask me what to do about cracks in a wall invariably the problem, they think itís the footing falling away, the problem invariably is drainage. It attacks it in two ways, by softening under the footing and by standing, freezing and thawing collapsing the foundation in. Then after he decided, which I had the drawing showing the grade and everything, he decided he didnít want to do that because of expense, they went and shot grade, they went and removed, improperly the berm that protected River Bluff from the adjacent property allowing all the water on approximately 15-20 acres approximately to now enter River Bluff and it was done, put there so that the single drainage line provided, which was not done properly, which the County was involved in this past year to go out and correct it. Now, I donít know exactly what it was, because it was not installed properly, the code and the method of putting in this type of pipe is to wrap and seal the joints or in other words, well there are a number of ways, but you do seal the joint, that was not done, he simply took galvanized pipe and put them together causing leaks and the leaks attacked my drive-way. It cost me $23,000.00 worth of damage, now I havenít done anything to the County or anything else, however, that was part of the very bad things they done. Now, you have in front of you a drawingÖ..a photograph of the fill, the fill actually goes onto the drainage easement approximately† 2 Ĺ feet in places, thatís the maximum, most of that fill is on my property, which is myÖ.I am allowed to do anything on my property as long as it does not block the water and so thatÖ.I did not remove that fill. If the County required meÖIímÖ.the only time I have to remove any dirt from the drainage easement is not propertyís easement is if it blocks the flow of water, it did not block the flow of water, because the flow of water is North not South, so thereís no reason for me to remove it. I think if you go out there and Mr. Niemeyer has been out there and if you go to the next lot North of Mr. Reburn, you will see that itís very obvious, the cut on that berm, that is improper cut and Mr. Reburn or his agent caused that cut. That should be filled back in. And to re-inerate the County accepted the subdivision, accepted the drainage in 1980ÖÖI think it was 1989 and the drainage was not South, whether it was supposed to be South, I donít know. I simply had my lawyer very carefullyÖ..Iíve had all this recorded, you can easily check out what Iím saying by running core tests, as you well know. You can find that Mr. Reburn bought this extremely good black soil, heís got the best lawn in the subdivision, makes me ashamed. But, that would show up very well if you would run a core test and show you exactly what he has done. But, the problem to solve is either the County by placing a tile, which is the property way of doing it and a concrete causeway down the bank, donít just dump it on the bank and cause erosion or another and better solution and one I assume was meant to be, is for the County or you to cause Mr. Reburn to properly dig a swale, which you will have to have before he can sell his property or heíllÖ..If he does sell hisÖÖ any good home inspector, I guarantee you thatís the first thing they look for is proper drainage from foundation drainage, unless you get a very poor quality home inspector, this is all a matter of record that he knows it, 4 times heís asked me what could be done and 4 times I offered toÖ.I drew this plan originally to help him solve this problem, cause I know he has a very serious problem, much more than the drainage, which is a serious problem. His biggest problem is improper drainage away from the house. These two problems can be solved by one action, if the County chooses to put a pipe across the drainage , thatíll solve the biggest part, it will not solve the damage Mr. Reburn has done to his house. The only solution is to cut a bigÖ.for Mr. Reburn to remove the dirt he placed in the swale. Any questions?
Bill Reburn: †Yes (approaching the podium)
Don Williams: Iíve got a question first if I could? Mr. Jacobs, now why did you put the dirt in there again, for what purpose?
Othmar J. Jacobs: Because when Mr. Reburn caused the trap-age of the water, actually it was flooding my yard also and I could not sit on myÖ.I have a balcony on the left side, immediately adjacent to that swale and the mosquitoes† were horrible, we had a terrible mosquito problem, which I called in to ask at one time or another to ask what could be done about it. I should have brought this to the attention of the Drainage Board, but didnít do it because I thought that is not the action of a good neighbor. What I was doing basically was to take the water standing off my property, I did not stop any water from Mr. Reburn thereís plentyÖon my plan and I had my people shoot the grades, thereís 23-inches of rise above this point at the curb, so that means that that is blocked, its been blocked and its never been open and the reason it never was opened was Mr. Meece would have had to put a 60 % grade which is notÖwould not be accepted. I mean, youíre the Surveyor and you can tell me that, so does that answer your question?
Don Williams: Yes, thank you. I have no other questions.
Carl Conner: Yes, sir you want to come back up to the mike.
Bill Reburn: I just want to state that Mr. Reburn never requested that dirt, I just asked Meece to open up the swale and everything. I talked and talked and talked to him probably for 3 or 4 months that summer, he said itís over nothing is going to happen. A week or two later, I come home from work and my son says, go around to the backyard, there is a pile of dirt in my backyard with a dump truck sitting out in the field. I asked his son, I said where did that come from and he said we decided there was a problem here and weíre going to fix it. I never asked for that.
Mr. Jacobs: I didnít say you did.
Mr. Reburn: You said I asked for it and caused your problem and I didnít cause your problem, bud.
Mr. Jacobs: I said you or your representative, Mr. Meece was your representative.
Mr. Reburn: I didnít ask him to do that. He did it. So when he put that dirt out there, I asked Mitch, his son whatís happening here and he said well, Iíve got a problem here and Iím going to fix it. So Ott said, donít do nothing,† I called Jerry down the street, Jerry got so mad when he found out his son over-road him and put dirt in my backyard, he didnít get in his car and drive down to my house, he ran down there and took Mitch out in the field for about 20 minutes and chewed his *#*# out real good. I didnít create this problem and I didnít ask for it, I bought a house with drainage and never got it. I was told two weeks ago no water was going over that hill, Iím going to do what I want to do.
Mr. Jacobs: NoÖ..
Mr. Reburn: Yes, thatís exactly what you said, Ott, my son was standing right thereÖ
Mr. Jacobs: I said, itís not crossing my property, it can crossÖ..
Mr. Reburn: Itís funny now I can stand at my property and look at it like this now and your talking about the good neighborÖÖ
Carl Conner: Sir, if you two want to discuss thisÖthatís fine but you are now discussing personal issues in my opinion that have absolutely no impact on any decision to be made here, so if you would like to continue your discussion you are more than free to go out in the hallway, but your not going to do it here in this meeting.
Mr. Reburn: No, Iím done talking about it, whatever you guys decide, Iím done with it.
Carl Conner: Ok, thank you. Jim, do you have any last comments or remarks that you would like to make?
Jim Niemeyer: No, the only thing is, if you want we can go down there and run a grade, but you can sure see the swale going up toward his house.
Carl Conner: Well, basically from the pictures, I mean anyway from what Iím seeing here and I would ask my attorney or one of the other Board members, correct me if Iím wrong in my comments. As a County, we do have a responsibility to see that the drainage easements in the County are open for purposes of handling drainage water and I think that is the primary issue thatís before us today and it looks like that based upon the pictures that I see anyway is based upon, Jim, your input that drainage problem would be resolved if what perceives to be an obstacle in there is cleaned out and you said it was about 50-foot, is that correct?
Jim Niemeyer: Thatís an estimate?
Don Williams: The State Statute reads it really doesnít matter whether itís in a drainage easement or itís right across private property, you cannot obstruct a natural drain, period.
Mr. Jacobs was saying something off the microphone about it not being his responsibility and that it would be very expensive, but all he said could not be heard.
Don Williams: I know of no drainage in the County that doesnít either drain in the Ohio or a tributary going to the Ohio.
Robert Wilson: Don, if I can I talked to the County Engineer about this because as Mr. Jacobs mentioned the 23-inches of drop from the back of their lots to the curb and on the plat there is no drainage easement to take water towards the curb and as Steve had mentioned, it makes no sense to run water back North thatís already almost at the river back to the street around the curb and back South again.
Carl Conner: If no one has any further comments, I would ask the Board in regards to their opinion how they would like to pursue this and handle this issue or would you prefer toÖ.
Don Williams: I am prepared to make a motion as far as the Board finding.
Carl Conner: Go right ahead.
Don Williams: My motion would be, as far as finding, that we find that there has been an obstruction of a natural surface water course, that is alleged in the petition, that obstruction indeed exists and that it was intentionally created by the respondent Mr. Jacobs. Further, that the removal of the obstruction will do two things, (1) it will promote better drainage of the petitioners land and (2) it will not cause unreasonable damage to the land of the respondent. That will be my motion.
Carl Conner: You do not want to include in yourÖÖ..
Don Williams: I would further move that the obstruction of the natural drainage be removed.
Carl Conner: And do you have aÖ.
Don Williams: That would be in accordance with Indiana Code 37-9-27.4 State Law.
Mr. Jacobs started to speak
Carl Conner: Sir, could you wait one minute please, and you will have your opportunity to speak. I guess I would ask the Attorney, who from a legal perspective has the responsibility then, should we not include that in the motion that basically agrees with the findings, that has the responsibility to clean out that easement.
David Zengler: I understood that he included that.
Carl Conner: That Mr. Jacobs would be responsible.
Don Williams: I did, that the respondent remove the obstruction that heís created.
Carl Conner: Okay, we have a motion on the floor, do we have a second?
Phil Baxter: Second.
Carl Conner: Okay, we have a motion on the floor and we have a second, now we will have discussion, Mr. Jacobs, if you would like to come back before us before we take a vote.
Mr. Jacobs: At the high points of this obstruction, I placed no dirt. What happened also, if you would have accepted a plan, Mr. Meece and Iím sure Mr. Reburn is aware of it, had a problem when he built the street and they came out and the street wasnít draining down the road drain, it drained into one exit and it wasnít draining, it was stopping water North of Mr. Reburnís house and they came out and sawed a piece of the street out and thatís the only place that the street continues roll curb. Thatís the only place that is sawed and (unintelligible) they removed concrete, that was before I did my grading and everything and they bought it without asking me or anything else and they dumped it over the bank and Mr. Reburn was aware of that, he saw it, and they actually put pieces on the back of myÖof that property. I very carefully did not put dirt on that piece, that is right at the crown, I have not put any dirt on it. I have no way obstructedÖÖas far as removing the dirt off the drainageÖit doesnít make any difference itís about 2-inches except it will do no good and it will look worse. It looks better if I leave it, itís only a few inches, maybe 27-inches or 18, but itís a very small amount is on the drainage easement. The rest is on my property which you canít attack which you are aware. So, if they require me to remove it and they can only legally require me to move it if in fact I have stopped the flow of water and that little bit of dirt at the edge of the easement does not stop the flow of water and Iíll be glad to meet anybody out there and show them exactly why I have a drawing showing exactly what is there and what I havenít done. I did not add any water in any way to change the flow.
Carl Conner: Thank you for your input, Mr. Jacobs. We have a motion on the floor and we have a second, all in favor state by saying aye.
Don Williams: Aye
Phil Baxter: Aye
Carl Conner: Aye, passes three to zero. Thank you very much. Jim, a review of the Hay complaint that was tabled from May 25, 2005.
HAY VS HANDCRAFTED HOMES-MR. TONY TOOPES:
Jim Niemeyer: I revisited the site at different times and what I did was, I contacted the Hay family and Mr. Toopes and also Mr. Holweger and I explained the situation to them and as you recall from the pictures that I presented at the last meeting, there was an obstruction to the flow of water. Anyway, Mr. Toopes said that he would attend the meeting today and Mrs. Hay is here so I would like to hear what your proposals are and I also wrote each of them a letter describing what I saw, a berm was constructed which was never approved in the original drainage plan and the berm probably occurs about behind 3-4 homes, but thatís not really a problem if they address it and they can get around it in a couple of ways. They can simply drain it out or cut another swale and redesign the berm and I think these folks should have a chance to present their case.
Carl Conner: Who would like to go first? Please come up to the podium and state your name please.
Linda Hay:† Linda Hay, I live at 4455 Frame Road in Newburgh. Mr. Toopes built a home in Asher Estates and on a corner of that property, he built a dam, he built a berm up to where our water cannot access down to the drain. I did call Mr. Toopes on May 9th and tried to talk with him in order to try to you know see what we could resolve to get the water off of our property, that came to a dead end. So, I called Mr. Niemeyer to come out and† look because since that time we had heavy rain and so the water broke through the berm, which he built up, I mean the water is still standing, itís just causing problems. In order for us, we did have Jerry Aigner come out to re-look at our property to see if we could redesign or to put a pipe, but in order for us to go to the corner of our property to access the drain, all the utilities are there at the corner of our properties, which is Vectren, Adelphia & SBC. All weíre asking is to redesign the berm or to let our water access off to that drain.
Carl Conner: Any other comments?
Don Williams: Is this your home that the water is in front of in the picture?
Linda Hay: No, No we own close to 5 acres and Mr. Toopes informed me that we had enough land to do what we chose to do, but thatís not the problem. All this water that was the original drain and thatís the way it had always been, thatís where the water went out and even the pictures that I have got where the waterÖ..when we had the last heavy rain, it broke over the berm in order to get to it. Thatís allÖ.you know, the other berms behind the houses have not caused the problems.
Carl Conner: Okay, do you have any other comments?
Linda Hay: Mr. Toopes has stated that our lake was our problem, our lake is not leaking, two years ago, I have the receipts where we had Mr. Jerry Aigner come in there and do extensive work, you know, re-sow everything to where we could cut back there and which we canít cut back there.
Carl Conner: Thank you for your comments. Sir
Tony Toopes: Iím Tony Toopes with Handcrafter Homes. I bought the last lot, which is probably not the place to be on this particular issue, Lot 22 from Alan and Danny, A & D Investments. What we have experienced here is that the berm came down like Jim said to the property next door, which gives me 72-feet, the back yard that Iíve got and I really didnít see any problem with what I did when I graded up the yard, cause I was grading up the yard, so nothings there, no established yard yet, so when we graded it up we just continued the flow of the back along the property line and this did block the flow of water from her, which the flow comes from my property from Outer Lincoln, the low point of her property is 51-feet in. The grate to drain this is 47-feet down from my property, almost even to the back of my house, so this water wants to cut across the whole backyard, it doesnít want to follow the drainage easement because itís so high and that is what I was discussing with Jim and the same as with the gentleman that was here, Iím afraid from 51-feet now from what Iíve left with the neighbors up the street, I am going to have a 5-foot deep, 10-foot wide ditch to try to carry everybodyís water. Weíve drained it now, I just took it around from the point 51 from the low point for the whole subdivision above me and down to the drain, so it drains in, Iíve put rip-rap around it and Iíve got to redo it and spruce it up. But, its carrying the water for the subdivision but, its not carrying all of their water. Every bid of water on their property comes down to this point 51-feet in on this lot. Thatís a tremendous amount of water and the lake does leak. It never dried, when I had the original flow of water in there 24/7, now thereís a piece of property Iím sure sheíll tell you just right by that big tree and Jim and I sat there and looked at it that cannot be mowed and as we both agreed that itís leaking, there is running water coming down there. So, itís just not when it rains that there is any kind of problem and that standing water is going to be there with what I have now. But, what Iím concerned with is just not dealing, when I deal with a normal rainfall, but I donít think anyone can expect you to put up with water draining across your property 24-hours a day, 7-days a week, especially when itís got to go across the property. I just donít think Iíve got the room to on this particular lot to go in, go from their low spot and get to Outer Lincoln without it being 4-5 feet deep and a 10-foot wide area and thatís what I would be stuck with. I can dig that out, I can move the dirt, I might even have to have the utilitiesÖ.I donít know how deep the utilities are, because theyíve got those in that easement. They were marked for some work done another company did, an oil company or something, cause I saw basically where the lines were. They cut them across the corner, they already moved my gas line once because they encroached on the lot, Vectren was too far in, so they had to move the gas line and put it back in, so Iím just concerned and I want to do the right thing and we donít have a yard to destroy. We just have to work with it, so whatever you gentlemen want me to try to do, but if you tell meÖ..you know the only thing I want everybodyÖ..I have a house to sell and Iím concerned with this 10-foot wide area having to come up being the last lot and deal with everything. I donít have anyway to re-slope for the people above me, theyíve got me kind of left with 70-foot to deal with and itís a bad situation that I really didnít see it when I purchased the lot. It was in winter time and didnít really noticeÖ.you could kind of see the way the water was going, but on a vacant flat weed filled lot, you just canít see everything that you do when you get everything out of there and all graded up. But, Iíve taken care of the drainage, itís dry behind my house for the first time since I built it and it only dried outÖ..and that water did come across that berm and it dried even during that heavy rain, so I am getting drainage off of their property and I think a lot of it isÖ.my worry is just this thing never being dried up. This lakeís leaking, weíve seen it, we see theyíre not mowing the entire property, itís not where the water is standing but up by the lake there is an area there by a big tree and trees are notorious for lake problems and thatís where the water will come out and itís just running all the time. So, if we can figure out a way to do it, Iíll work with anybody the best I can and I just want to get it to look the best I can too for the sale of my property, thatís what worries me about trying to get everything down to Outer Lincoln and 70-feet and take care of Mr. & Mrs. Hay.
Don Williams: Is it draining into a roadside ditch along Outer Lincoln there, is that normally what it was doing?
Tony Toopes: No, it was kinda coming across my property.
Don Williams: Yeah, but I mean was that the ultimateÖ..
Tony Toopes: That was the plan, that 47-foot from the back of my property down Outer Lincoln towards the front of my house, thatís the grate everything was going into.
Don Williams: But it ended up in a roadside ditch there at Lincoln?
Tony Toopes: Yes, thatís where it goes to and thatís what I told Mrs. Hay, theyíve got so much fall and itís in the very back of their property that even to help thereÖ..theyíve got so much fall just to get their water out to Outer Lincoln and take some of it off the lot next door or behind them with that much land and I understand what Jerry said, but the utilities come across on the back of that, come across on my property. From what I saw by the utility markers, I donít think the utilities are an issue with the back of that 5-acre plot of property there, cause I didnít see any utility marking lines back there. The utilities service that subdivision so they would be on our side, so that indicates that we could have them marked and find out, but I think thereís a way for them to aid us in drainage too, when your draining 5 acres to one place and expecting that to deal with it.
Carl Conner: Do you have any other comments?
Tony Toopes: No, thatís fine.
Carl Conner: Any comments or questions from the Board?
Don Williams: I donít know that I have any questions, you admitted that you cut off their drainage, I mean you told us that you stopped their drainage.
Tony Toopes: Yeah, Iím not Ö.I just carried the berm across, I really wanted to stop the water from the lake.
Don Williams: Thatís why I have a couple of question and maybe a little discussion.
Tony Toopes: Sure
Don Williams: My assumption and of course you always have a problem when you make those, but when you look at this pool of water is that what your calling a lake?
Tony Toopes: Oh, no, Iím talking about aÖ.I donít even know if Jim would have a picture of it, itís a big lake.
Don Williams: Now, is this the house that you build that weíre looking at in the picture?
Mr. Toopes approached the Board to point out on the drainage plan.
Tony Toopes: Yes, this basically is what we established to go behind, this is a berm, a raised portion, I donít know what you would call it, Allen said it was originally that way, but, that when I continued on down and thatís what caused this. But, hereís the big lake up here and thereís the point that itís leaking (showing on the drainage plans) there is a ditch that comes..you can barely see it, it comes all the way down here and it was just runningÖ.. so Iím thinking the drainageÖ.you can just barely see it through that back yard down to that grate you were talking about.
Don Williams: Well, you can see where it broke across the berm there, that thatís kind of a natural area. I donít know if you could cut it, If you would please come back, ( Mr. Toopes had walked away) I donít know if you could and I donít know if this is part of your property or not, but if it could be drained down to that roadside ditch here, it might be an answer. It sounds to me like we have two problems. (1) you have impeded the natural drainage, which you have stated and the other problem (2) with the Hay lake where it is leaking and they need to take some actions to stop the leaking unless its an overflow. Is it an overflow or a repair that needs to be done? Because I think both parties have a right to stay dry.
Linda Hay: †(not at the podium, still in the audience)
Right, but 2 years ago we had Mr. Jerry Aigner come in there, the high grass that he is talking about was up above this water that is ponding and all that is, is a drain that Jerry Aigner placed, that does not run off from the lake, it doesnít even reach this pool of water. We canít cut back there, in the pictures that I have here we just cut Sunday. Weíve cut all the way up to this point (showing on plan) but we cannot cut this area here because of the standing water. We had the lake repair done and had all this done in 9-02-03 of the lake by Jerry Aigner.
Carl Conner: Any other comments, Don?
Don Williams: I donít have any, other than I would really like to see this worked out between the two parties. Has Jim investigated this fully, have you looked at the lake and see if there is indeed seepage or if its overflow?
Jim Niemeyer:Well, there is seepage on the West side of it, you can see it and I donít know how large of an area that is concerned with, but it does leak.
Don Williams: I mean this isnít a hearing and we donít have to make a finding or anything like that at this time, but weíve come to that and my thoughts are if the two parties can work together to try and get it straightened out, it seems to me like both of you might have to take some action to get it worked out.
Mr. Toopes:† Does it make any sense in saying Iím new at this too, Iím not a developer, I just build the homes on them. My main concern is, Iím willing to deal with the idea that from that 51-foot mark of doing something on my property, hopefully the utilities are deep enough I could maybe do what you suggested there and try to narrow down the distance to Outer Lincoln and down that drain. But, then what transpires if that lake isnít fixed, I agree with you, thatís my main concern, I donít think when I sell that house Öand when there is grass that canít be mowed 500-feet up next to a lake, it just tells me, now wait a minute here it canít be mowed for a reason, its wet and thereís a ditch draining down to that natural drain. So, I mean somehow if Iím back here if it continues to drain, once I get down to that point where her land is dry and mowable?
Don Williams: The attorney may correct me if Iím speaking out of turn here, but, it would seem to me that the impedance has to be taken care of on the other hand, if their lake is damaging your property and their not willing to do anything about it, you probably have a civil action. It wouldnít be a matter for this Board, it would be of going to court and having a judge take care of it. I mean, thatís my thought. Iím not suggesting that by any means, but to me I see two issues here.
Mr. Toopes: Well, I can take care of my part.
Don Williams: This is not a legal meeting today like the previous one was, where we had to make a finding and had to say either you do this or you do that and we prefer that we not have to do that. We donít enjoy doing that.
Mr. Toopes: I think that if I had 30-days depending on the weather, I canÖ. Iíll work anyway I can to alleviate that problem back there, but then, Iím just like her to know that if water keeps coming down that ditch and I do that and that impedes the sale of my home, I donít care if Jerry Aigner fixed it or what if itís still leaking and you canít mow it, then we need something done. We donít want to be left out there either if we do our part. So if that makes sense to you gentlemen, I donít know how you do this, but weíll do our part, say within 30-days if that makes sense to everybody.
Carl Conner: Phil, do you have any questions or comments?
Phil Baxter: No, I like his suggestion. Iíd like to see it worked out.
Carl Conner: Jim, do you have any further questions or comments?
Jim Niemeyer: No, I mean if we can help them, we will do that.
Carl Conner: Madam, would you like to come forward and state your name for the record.
Carolyn Toopes: Iím Carolyn Toopes the wife of Tony Toopes, the only thing that we are concerned about is that from the 47-feet back where theyíre coming over, itís cutting across the yard. If that drain by the street was moved back where the property line is and if we put a swale in, I donít think we would have a problem. The problem is them coming across, you know, where the lakeís leaking, its coming across the back and almost up to the corner of our house. The only thing that scares me is if the lake would burst or even leak worse, it would be in our house. Thatís the only comment Iíve got.
Don Williams: Then youíve got a major civil action, if that lake bursts. The County owned some property with a lake on it that was seeping and we chose to tear out the lake and dry it, killing the legal liability.
Carl Conner: And if you would like to buy it at some point and time we would like to get it on the market and sell it. I think basically the finding of this Board, anyway or our suggestion is both of the land owners try to get together and resolve the drainage issue we know that the berm has to be removed because is it inappropriate, also Mrs. Hay we would suggest that you have that lake or your lake looked at. Itís really in my opinion not a lake, itís a pond, itís not that large, to have it looked at by an Engineer and come back to us and let us know what the Engineerís findings are in regards to whether or not there is any leakage. What I would like to do is calendar this issue for the meeting in July so we can just follow up with both of you to determine where each party is in regards to both of the issues. (Mrs. Hay started speaking again) If you would like to address us would you please come back up to the mike.
Mrs. Hay: I mean, I donít have a problem if the drain can be moved to access both the waters, but they are going to start widening Outer Lincoln.
Carl Conner: Starting in 2006 supposedly, yes.
Mrs. Hay:† And I think weíre in the second phase to where that even if we try to put s pipe to drain, theyíre going to tear it all out.
Don Williams: but, they would have to put it back in.
Carl Conner: But, that wouldnít be a financial issue for you, that would be a financial issue for the County, since the County is the one that is doing the improvements on Lincoln Avenue. But, if you all wouldnít mind just sitting down and trying to resolve both matters and if you can get some Engineerís input. Then weíll put it back on the agenda, Jim for next months meeting, so Jim can at least follow up and the probability is very good that neither one of you will even have to be here if we have something in writing, this matter is pretty much resolved.
Don Williams: I believe thatís the 13th of July.
Carl Conner: July? Don said he thinks thatís July 13, 2005. Thank you very much. Jim, Kelly Lake Estates.
KELLY LAKE ESTATES:
Robert Wilson: Weíve got Kelly Lake Estates, itís a 12-lot subdivision in Skelton Township bordered by Polk and Phillips Road. Itís fairly large lot sizes, from 2 ĺ† acres up to 8 acres is the largest lot size. Their drainage plans meet all our minimum requirements. We recommend approval for the drainage plan subject to minor change in the plat denoting that Warrick County will not maintain the lake dam and subject to a Hold Harmless Agreement as Mr. Zengler suggested for the lake dam that they will be building.
Don Williams: No problem with that.
Carl Conner: Sir, do you have anything to add?
Bill Bivins: †Bill Bivins, Engineer, we have no problems with making those changes.
Carl Conner: You have any other comment?
Robert Wilson: No sir.
Carl Conner: Any comments or questions from the Board? Hearing none I would ask for a motion.
Don Williams: I move we approve the drainage plan for Kelly Lake Estates.
Carl Conner: I have a motion on the floor to approve the drainage plan admitted for Kelly Lake Estates, do I have a second?
Phil Baxter: Second.
Carl Conner: I have a second, all in favor, state by saying aye.
Don Williams: Aye
Phil Baxter: Aye
Carl Conner: Aye, passes three to zero. Thank you, sir. Okay reports in regards to Little Pigeon Creek.
LITTLE PIGEON CREEK:
Jim Niemeyer: Little Pigeon Creek is now on hold but I have applied for permits to work from U.S. Army Corp of Engineers and thatís all been done and sent.
Carl Conner: Jim, do you have any time frame in regards to when youíll have all that back so we can go ahead and proceed?
Jim Niemeyer: Approximately 60 days.
Carl Conner: Okay, and thatís going to be a joint effort or is that the one with Spencer County?
SALE OF AERIAL PHOTOGRAPH DISCS:
Jim Niemeyer: Yes, joint effort. The two remaining items the sale of aerial photoís which was tabled.
David Zengler: And I think itís ok to do that, I think as long as you set a reasonable, I mean, fee, I donít think you make a profit on those.
Don Williams: But, we can charge the price per frame that we paid for it?
David Zengler: The price you paid for it.
Carl Conner: Jim, what were you suggesting?
Jim Niemeyer: In terms of?
Carl Conner: Charge?
Robert Wilson: I think the cost came out to $20.00 and some change per tile.
Don Williams: Do we have to have an ordinance to do that?
David Zengler: I donít think so.
Carl Conner: It doesnít have to be in an ordinance and passed by the County Commissioners?
David Zengler: I guess it would, yeah, yeah.
Carl Conner: Any questions or concerns from the Board in regards to the proposed fee?
Don Williams: I donít know but I was thinking that we could charge cost plus a buck for the handling, I would suggest that be the price.
Carl Conner: I would look for a motion that this Board then makes a recommendation to the County Commissioners to approve an ordinance that needs to be drafted by Jim including the cost for us to act upon as a Board of Commissioners.
Don Williams: So moved
Carl Conner: Have a motion on the floor 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: Aye, passes three to zero. So, Jim if youíll get that ordinance drafted and get the dollar amount in there and run it by our attorney before you submit it to the Commissioners I would greatly appreciate it.
Jim Niemeyer: Okay. The last item is a Drainage Ordinance, have a tentative meeting set up between the Surveying Department and the County Highway Engineer and Bernardin & Lochmueller for Monday of next week.
Don Williams: Whatís the time on that?
Jim Niemeyer: 9:00 a.m.
Carl Conner: 9:00 a.m. when?
Jim Niemeyer: Monday.
Carl Conner: Whereís it going to be held?
Jim Niemeyer: At the offices of Bernardin & Lochmueller.
Carl Conner: Okay, do you have any other reports, Jim?
Jim Niemeyer: No, I do not.
Carl Conner: Weíll move on to claims
Don Williams: Mr. President, I move that we pay claims in the sum of $1,933.79.
Carl Conner: Have a motion on the floor to approve claims in the amount of $1,933.79, do we 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. Do either one of the other board members have any issues to bring before us?
Don Williams: None
Phil Baxter: None
Carl Conner:† Does the attorney have any issues to bring before us, hearing none I would look for a motion to adjourn.
Phil Baxter: So moved
Don Williams: Second
Carl Conner: All in favor state by saying aye
Don Williams: Aye
Phil Baxter: Aye
Carl Conner: Aye, passes three to zero. Meeting adjourned. Thank you.