COMMISSIONERS MEETING ROOM
March 22, 2006
The Warrick County Drainage Board met in regular session with President Don Williams presiding, also in attendance were Phillip H. Baxter, Vice-President; Carl Jay Conner, Secretary; Jim Niemeyer, Surveyor and David K. Zengler, Attorney for the Board.
Also in attendance was Sean M. Owen, Deputy Surveyor.
Minutes were recorded and transcribed by Cheryl D. Embry.
Audience attendance was Sue Harkins, Beth Browning, Jim Farney, Nick Cirignano and Mark Ferris.
President Don Williams brought the meeting of March 22, 2006 to order.
APPROVAL OF MINUTES:
Don Williams:† The first item on the agenda is the minutes from March 8, 2006. Mr. Baxter you were not here, so I guess it is up to Mr. Conner and I. Have you had a chance to look these over, Carl?
Carl Conner:† Yes, I move that we approve the minutes as presented.
Don Williams: Iíll second that motion, all in favor say aye, Motion approved 2-0
Mr. Baxter did not vote.
RIGHT OF ENTRY REQUEST-HOWARD-WILLIAMS DITCH:
Don Williams:† Next item is the Right of Entry request, Jim?
Jim Niemeyer:† This is a request for a reduction of Right of Way of Entry for the Gillman Subdivision on the Howard-Williams Ditch. Would you state your name and address, please?
Beth Browning:† My name is Beth Browning and I am with Kahn, Dees, Donovan and Kahn. I am actually helping Jim Farney who is with Bernardin Lochmueller & Associates, who is supposed to be joining me, but he is not here yet.
Jim Niemeyer:† Heís in our office.
Sean M. Owen was showing the Board pictures and plans
showing where it is located by ITT and underneath
Carl Conner: What direction are we going here, are we going south? And it is presently 75-foot?
Sean M. Owen:† Yes
Beth Browning: We would† likeÖwe are only interested in the eastern half, we are looking for a 35-foot easement instead of 75-foot on that side.
Carl Conner:† A 40-foot reduction, why are you requesting to have a 40-foot reduction on the east side of the legal drain.
Beth Browning:† We actually represent, my office represents the buyer of this westernÖ.this is being subdivided and we are going to buy....our client is going to buy the western half of this property. 75-foot easement which we didnít realize was there until we started doing our diligence work on this purchase takes up a substantial, I mean itís almost a quarter of this property, the client is obviously not thrilled to find out that there is an easement thatís encroaching onto almost a quarter of the property that he is looking to purchase for a pretty substantial sum and we would like to be able to use this for some purpose.
Don Williams:† Did your client purchase that propertyÖÖ..
Beth Browning:† Weíre in the process.
Don Williams:† without knowing this? Will that affect his decision to buy that?
Beth Browning:† †It could, I mean they are paying a substantial price per acre and this is a pretty good chunk of theÖ.I donít know if you can tell from that, I have a map of theÖ..
Don Williams:† I know where itís at, as a matter of fact I was out there in the last two months myself, driving right through there.
Beth Browning:†† Yeah, itís a pretty good section of the property and it goes all the way down, so they are a little bit concerned about that. because between the purchase of the property and what they are going to build on it, itís almost a $14 million dollar investment in this area so we are hoping that we can satisfy them and get them to come in and put this development here. We think that a 35-foot easement still gives the County plenty of room to get in and clean that ditch, I mean your still going to have 75-feet on the other side, so that is a pretty good size easement there.
Don Williams:† Jim, what are your thoughts as the Surveyor on this?
Jim Niemeyer:† Well, of course weíre going to have a problem with the West side at all, but on the east side, I would say that 35-foot would just give us the minimal clearance.
Don Williams:† What would you feel comfortable with if we allow a reduction at all?
Jim Niemeyer: 40 to 50.
Don Williams:† Howard-Williams is one of our problem child ditches, I donít know how else to put it, but it drains so much of the area that I guess that is why we have concerns. Because I see it perhaps getting even larger than it is now by a degree in the future. I donít know how the Surveyor sees that, but I certainly see that happening.
Jim Niemeyer:† That ditch plays an integral part of the Countyís drainage.
Phil Baxter:† How wide is this ditch from shoulder to shoulder?
Jim Niemeyer: I would guesstomate about 20 feet.
Don Williams:† Yeah, I would say about 18 maybe 20. Sir, if you have some input would you please state your name?
James Farney:† My name is James Farney, I am with Bernardin Lochmueller and the consulting engineer on this project.
Don Williams:† Any other thoughts, gentlemen? Carl, do you have anything? Phil, is there anything else you would like to ask?
James Farney:† She was asking me (Beth) if I knew what the width of the existing ditch is from top of bank to top of bank and I told her I donít know exactly, but looking at the drawing it looks like probably about 30 foot.
Don Williams:† We were thinking more like 20, but you may well be right.
Beth Browning:† Then of course that 35-foot would just run from the center over.
James Farney:† Well, the 75-foot by statute is from the top of the bank.
Don Williams: If there are no other questions, what are your thoughts gentlemen? What do you want to do with this? We can approve it, we can decline it, we can ask if they will accept less or simply say no.
Carl Conner:† Basically, if we take no action, we have said no, soÖÖ.
Don Williams:†† I would just as soon take action than be adamant about it.
Beth Browning:† What is your feeling on theÖÖ
Don Williams:† Our feeling is that we have a ditch here that has a huge amount of drainage from multiple areas and subdivisions that go into it and for us to go down knowing what is going on with the subdivisions in that area especially those south of that area that drain into Howard-Williams, that makes it very difficult to take any action that would impede us from getting in there and cleaning that if we had to and I for one would never go down to 35-feet for sure and I would have to really think about reducing it, I never really thought about it.
Carl Conner: I think one of the biggest problems in this County is drainage and it is basically our standard is 75-feet. I think about 90% of the appeals that we have had like this we have denied, because of the fact that we feel that 75-foot is appropriate and especially in this area where you are going to have a heavy concentration at some point and time of development and that water needs to drain somewhere. We need the ability and we have just proven that recently with this latest rain weíve had of getting in there and doing what work that has already been done on this ditch has helped alleviate the flooding to some degree in the residential areas. So, personally, myself and the reason I didnít say anything is because Iíve been pretty vocal about my position, I will not support a reduction, I mean it would have to be extenuating circumstances above and beyond before Iím going to vote to reduce them. We had a gentleman in here about 3 weeks ago that is developing 70 some odd acres on Highway 66 and he wanted us to reduce and we did not and I think thatís something else that we need to be concerned about. We need to be consistent in how we treat all these projects that come before us, so there is no way Iíll support anything less than what the standard is 75-foot.
Don Williams: †This is your district, so why donít you just make a motion and weíll act on it.
James Farney:† If I could just make one comment, as a point of reference I do know there is a subdivision that was recently approved north of Stahl Road which would also be impacted by the same Howard Ditch and I think there was a request, I donít know if it was granted or not. Do you remember if there was a relaxation on that ditch?
Carl Conner:† To the best of my knowledge I havenít supported any relaxation on the 75-foot requirement.
James Farney:† I saw in your file that there was a request and I saw where you had obtained some response from some ditch excavators so to speak and their opinion as to why they werenít in favor of it, but I couldnít see in the file whether it was ever granted or not.
Carl Conner:† Iím sorry, I donít recall them being here at a meeting.
James Farney:† This may have been back to like, you know, correspondence is probably dated back around 2000.
Carl Conner:† Iím sorry, I thought maybe you meant recently.
James Farney:† Well, the recent subdivision was an addition onto the original subdivision which was filed in December of last year, but the original, some of the original drainage work I was looking at in that folder went back to 2000.
Carl Conner: I wasnít here in 2000.
Don Williams:† There was a section not too long ago and I donít know if you were here or not that we relaxed about a 120-foot section because it was attached to an area that was already reduced. It was on Willow Pond Ditch.
James Farney:† Iím speaking of Howard-Williams immediately north of Stahl Road, I think thatís called Stahl Road Business Park or something like that is the name of the plat.
Sean Owen: I donít believe it was reduced, I know they were allowed to have their retention pond within the 75-foot Right of Entry. I just looked at the plat the other day and I donít think it was reduced down past 75.
Don Williams:† Okay, any action. Carl, do you want to make a motion or not?
Carl Conner: As far as Iím concerned, there is really no need for me to make a motion because of the fact that Iíve stated my position and if it is not acted upon its dead anyway.
Don Williams:† I move that we disapprove the request, do I have a second?
Phil Baxter:† Iíll second it.
Don Williams:† All in favor say aye, (there were 3 ayes) your request is denied.
Okay, we have a complaint,
VICTORIA MANOR- FLOODING COMPLAINT:
Jim Niemeyer:† Yes
Nick Cirignano:† My name is Nick Cirignano with Zeimer, Stayman, Weitzel and Shoulders. Iím here with Mark Ferris and his wife Pam regarding a complaint as you knowÖ
Don Williams asked Mr. Cirignano to please repeat his name.
Nick Cirignano: Weíve been in contact with Mr.
Niemeyer about this, so if he wants to fill in any relevant facts, feel free.
The background is that the Ferrisís live at
Carl Conner: Thatís where we were standing yesterday afternoon.
Jim Showed them on the aerial picture where the culvert is located.
Don Williams:† Is that a legal drain, Jim?
Jim Niemeyer:† Yes
Nick Cirignano: †Iím not sure how much background Mr. Niemeyer has given you, but our complaint today is that down stream in Hines Ditch is a culvert which allows for Victoria Nationalís Road to go back to its service barn and that culvert is 36-inches wide. Weíve tried to determine whether or not thatís permitted and our decision is that itís a non-permitted culvert, then further downstream from that culvert are two 8-foot wide twin culverts which never seem to have a problem. Our contention is that it is this 36-inch culvert which the access road to Victoria National service barn goes over the top of causes a back-up of Hines Ditch and as a result of that, my client Mr. and Mrs. Ferris have flooding that has gone into their backyard and a little bit into their basement and this has happened twice in the last six months. Their next door neighbors yard floods as well, it hasnít quite reached her basement yet, but their yard floods also. We recently took pictures on 3-11-06 at 11:30 a.m. and you can see after that rain we had, here is where the 36-inch culvert were (showing pictures) you can see the road leading back to the service barn and then further downstream you can see where the twin 8-foot culverts are located on Hines Ditch and you can see there is plenty of capacity there, in fact there is excess capacity. Whereas this one this culvert is full, completely full and causing backup.
Don Williams:† I think we are supposed to keep pictures as evidence when they are given to the Board.
Carl Conner: We can keep them or are we required to keep them? That is the question.
David K. Zengler: †Youíre not required to keep them.
Nick Cirignano:† We believe there is a statute that provides you with the authority to remedy this situation and the remedy being to send notice to Victoria National asking them to remove the un-permitted culvert and put in something that would accommodate the water flow. I have copies of that as well.
David K. Zengler:† I probably need to look at this.
Carl Conner: Weíll have to rely on you to tell us whether we can do that or not.
Sean Owen:† One night I actually went out and inspected it and it was higher there than what it is in the pictures, it was within probably 6-inches of the roadway and was actually causing on the one side a swirling, something like a whirlpool effect that was sucking things down through and then shooting out the other side of the culvert.
Don Williams:† At the same time what was the water height on the other side of the culvert?
Sean Owen:† It was quite high as well, it was flooding, but it was moving and a little lower
Don Williams:† So, itís definitely being hampered at that point.
Sean Owen:† It is causing quite a back up.
Carl Conner: So, Jim, are you of the opinion that the culverts were not built to the standard that was required for purposes of handling the drainage in that area?
Jim Niemeyer:† I think so, we went through all of our files regarding and we find nothing in regards to that.
Carl Conner:† You mean there is nothing in your files relative to anything being filed?
Jim Niemeyer:† No
Sean Owen:† It was not part of the initial drainage plan for Victoria Subdivision, we donít have any type of approval for it.
Carl Conner:† It looks like to me there should have been something filed and approved.
Jim Niemeyer:† Probably, my feelings are it was done when they were building the service facility.
Carl Conner:† Like the golfer being in the Right-of-Way, we saw yesterday.
David K. Zengler:† You said it wasnít in the initial was there a subsequent approval or is this the initial?
Sean Owen:† In any of the drainage plans, that weíve got, it is not included in them.
Don Williams:† In other words they just stuck this in without coming to the board and making sure it was sized right or anything?
Jim Niemeyer:† Yes, that is our feeling.
David K. Zengler:† I
think the statute allows you to, I mean if there is an obstruction that is
caused by the owner, the procedure is that the
Don Williams:† HowÖa question for the Surveyor, how long is that culvert? Are we talking 20-foot?
Jim Niemeyer:† Probably 15-20 feet.
Don Williams:† Thatís what I thought cause I have been over that culvert at least once when I looked at that entire facility out there.
Carl Conner:† I was going to ask our Attorney, so we have the legal right to establish the size that they need to put in there and require that to be done, is that what you are saying?
David K. Zengler:† Yes.
Nick Cirignano:† †Thatís our understanding and that is why I copied it and brought it in.
Don Williams:† Well, in a legal drain, I think we have total authority when it comes to legal drains.
Carl Conner:† And you think that will resolve your problem?
Mark Ferris:† We are hopeful, we certainly think it will help tremendously. One of the reasons that we are here is that we are in the middle of the spring rain season and we would like to move as quickly as we can to avoid any further problems.
Carl Conner:† Sure
Nick Cirignano:† We had Jim Morley take a look at it and that was his recommendation as well, that that would remedy the problem.
Don Williams:† That was my next thought that we have an engineer look at that and determine the proper sizing and have that included in the letter when we send it.
Mark Ferris:† †He did not say anything about what the sizing should be but he said that that road and the drain were the approximate cause of the flooding that we had not this last time but previously which would have been in November of last year.
Carl Conner:† Jim, do you have a copy of that letter that I assume Morley put in writing?
Mark Ferris:† This one I do have to have back.
Carl Conner:† Yes, sherry can make a copy you a copy right now, or make us a copy and give you back the original.
Don Williams: †This is something that
Nick Cirignano:† We did send them a letter.
Mark Ferris:† I met with them initiallyÖ.
Don Williams:† How long ago was that?
Mark Ferris:† It
would have been in January, I believe, we tried to get ahold of them sooner, but
everyone was out of town because of the holidays, so in January I sat down with
Lisa Freedman at
Don Williams:† When they bought that property, I donít believe there was anything there but some strip mine squalls.
Nick Cirignano:† You think it would have been put in whenever they built the service barn.
Mark Ferris:† Then subsequent to that when I did contact Attorneys for them, we did send another letter repeating our request which they didnít respond to.
Carl Conner:† I mean the coal company I guess could have put it in.
Don Williams:† See who owned that, what coal company was out there?
Carl Conner:† They sold it to Stu Phillips and that group I think and then they are the ones who sold it to Freedman.
Mark Ferris:† But from our viewpoint weíd like to see a remedy regardless of howÖ..
Carl Conner: I understand, but he may be right from the standpoint that they were not aware that it wasÖÖ.
Don Williams:† I still donít know if that alleviates them from† (undecipherable)
Carl Conner: Oh no I donít think it does based upon our attorneyís opinion.
David K. Zengler:† The statute says that if an obstruction or damage is caused by an owner of land affected by the drain, I guess we could get into a problem whether this caused the problem or not. But I would say lets proceed with it and see what happens.
Carl Conner: I make a motion that our attorney work
Phil Baxter:† Iíll second that.
Don Williams:† Motion made and seconded, all in favor say aye. All three members voted aye. Motion carried 3-0.
Nick Cirignano:† Thank you and we want to thank Mr. Niemeyer for helping out with the sandbags.
There was discussion on the sandbags and the barrier they built to keep the water out.
Don Williams:† Gentlemen, the next item on the agenda is claims and you might take a second look at it as Mr. Niemeyer has decided to spend a little more money on item 10 and I would ask what item 10 is for?
Jim Niemeyer:† I donít know what that item is?
Don Williams:† Itís to Bernardin Lochmueller for $21, 613.00.
Sean Owen:† Allen Ditch
Carl Conner: Is that the engineering work?
Jim Niemeyer:† Thatís for to install our control points.
Sean Owen:† No, this is for Allen Ditch.
Jim Niemeyer:† Yes, we got our first installment on that and we will be getting some more here shortly.
Don Williams:† I just wondered what we were paying an engineering firm $21 grand for.
Jim Niemeyer:† We will get a final estimate on the cost of the repair of that which looks like right now itís going to exceed $200,000.00 and I have found more broken concrete. We need 167ÖÖÖ..
Don Williams:† $200,000.00 to repair that?
Jim Niemeyer:† Oh, itís big.
Don Williams:† Phil would do it for $50,000.00, heís got an excavator.† (Laughter)
Carl Conner: I understand it keeps getting bigger every day.
Jim Niemeyer:† So, weíll get that put to bed as soon as we can and weíll also need 3000 tons of rip rap.
Don Williams:† Well, you know there are options of rip rap. Do we have any concrete thatís been torn up anywhere that can be used?
Jim Niemeyer: Yes, Iíve already gotÖÖÖ.what I have is we bought last year 60 tri-axle truck loads and estimate at the county prospect yard there is probably 20 tri-axle loads there and I had a request to allow someone to bring another 20, which I did.
Don Williams:† Yeah, that concrete can be used for that.
Jim Niemeyer:† Thatís 100 loads and then weíll need to pick up another 60 which I found today. So that will take care of that and then weíll top dress that all with #1 rip rap 3000 tons.
Don Williams:† Is that for looks, cosmetics.
Sean Owen:† They estimated the velocity of that ditch to be between 10-20 feet per second.
Don Williams: †That will tear it up in a hurry. Ok gentlemen, do I have a motion to pay the claims for a total of $31,465.06?
Carl Conner: I would move that we approve the claims in the amount of $31, 465.06.
Seconded by Phil Baxter, 3-0 motion carried.
Sue Harkins:† Iím Sue Harkins and I just wanted an update, I guess on how things are going. I know he spent a lot of time in our area in the rainy season.
Things are going pretty well, we are cleaning out the Howard-Williams
Ditch and weíll be up to
Sue Harkins:† It certainly did help but the blessing was it didnít rain steady, it would slack off.
Don Williams:† We had almost 9 inches of rain there in 36 hours which is by far more than the time it got across the road, that was like 5 inches.
Sue Harkins:† Well, the time it got across the road it rained pretty hard and solid for a long period of time, whereas this rain rained hard and then it would stop and give it a little time and then it would rain hard. So I think that was the difference, but the lake got high, but when it gets high it backs up into all the drains, you know those large drains all in our whole subdivision. So it has to fill those up before it gets out of its banks, so they were pretty full, but it didnít get out of the bank.
Jim Niemeyer: The ditch was full all the way along and the box culverts in passing beneath the box culverts it went the maximum height.
Sue Harkins: How does it get out of there to get into the ditch?
Jim Niemeyer: To get out of where?
Sue Harkins: Out of our lake, that pond or whatever.
Jim Niemeyer:† It goes under the highway. There is a drain that goes underÖÖ
Sue Harkins:† But the water wasnít coming out over on the other side.
Jim Niemeyer:† Thatís a buried drain, itís enclosed, and you canít see it. I spent a lot of time looking for it cause I couldnít find it either, cause its connected in a subsurface drain and it drains out into those other impoundments there in the office park.
Sue Harkins:† Did you get Mr. Mattingly, so you could get on that side of the ditch?
Don Williams:† Havenít yet, I havenít been able to make contact.
Jim Niemeyer:† Well, it needs to be cleaned definitely and weíll do it. So the next will be the third hitch and I donít think we measured that all together.
Don Williams: †Right now weíre looking for Mr. Mattinglyís Right-of-Entry to get the equipment in there to reach over the fence and clean the ditch.
Carl Conner: The fence is in the Right-of-Way, isnít it? So really heís sitting there illegally.
Don Williams:† So he doesnít have a leg to say no you canít come in, soÖ..
Carl Conner:† Absolutely not.
Jim Niemeyer: Weíre just trying to find the agreement to see what agreement was made.
Carl Conner:† It was probably, I would speculate it wasnítÖ..Sheís smiling I bet there was never anything in writing.
Cheryl Embry: I just remember it being discussed but I canít find anything in writing.
Jim Niemeyer:† Well, there is supposed to be one.
Carl Conner: Well, even if there is, it still should not be in the Right-of-Way.
Sue Harkins:† The fence definitely goes across where the ditch is over towards the interstate and then the other fence goes down behind his building, so that just blocks off the ditch, it looks like.
Jim Niemeyer:† Weíll get it out.
Don Williams:† That entire ditch is in the process of being cleaned and it will be cleaned.
Sue Harkins:† I guess Mr. Sterchi is not required to have to do anything at this time?
Carl Conner:† We donít know that yet, that is still part of the problem.
Don Williams:† We have to investigate his lake to see if it was actually put in according to the standards that we are supposed to be.
Sue Harkins: †I did pick up the print like you suggested, which I already had one but itís smaller and when our plan was submitted for the subdivision that weíre in, it was approved by this Board, I think it was in 1992 with a six acre pond, which is what ours is for the 31 houses which was very sufficient. So, I know his pond is not that large and it definitely has to drain, right, I mean if there gets a drop of water in his pond its coming through to ours and I couldnít find anything either where it was of to put anything into that pond because that is an entirely different subdivision.
Jim Niemeyer: Our next attempt will be to see how the whole system functions as a whole, because nobody knows yet until a study is done.
Sue Harkins:† Iím like that other man, the spring rains scare you to death. I do want to thank you again for all the hard work youíve been doing.
Don Williams:† Youíre quite welcome, thank you for coming and we will keep on the job, we are committed to get it done. Any other business to come before the Board?
Phil Baxter: I move we adjourn, seconded by Carl Conner. Vote was 3-0 Motion carried.