VANDERBURGH COUNTY

DRAINAGE BOARD

FEBRUARY 14, 2006

The Vanderburgh County Drainage Board met in session this 14^th day of February, 2006 at 3:55 p.m. in room 301 of the Civic Center Complex with President Bill Nix presiding.

President Nix: We’re ready to start. I would like to call to order the Vanderburgh County Drainage Board meeting, Tuesday, February 14, 2006. It’s 3:55.

President Nix: I will entertain a motion to approve the minutes of the previous meeting.

Commissioner Shetler: So moved.

Commissioner Musgrave: Second.

President Nix: All in favor?

All Commissioners: Aye.

President Nix: Mr. Jeffers?

Bill Jeffers: The first order of business is Mystic Creek PUD, which is located on Green River Road, south of the Timbers apartments, across the street from the new Schnucks development, and also across the street from a large church right here. Sugar Mill Creek Apartments is down in this area. It’s a planned unit development. The developer is Jack Tubbs, who’s here in the audience. Andy Easley Engineering is the design engineer. This is a preliminary drainage plan, it’s on your table up there for your viewing, if you wish. It will come back in it’s final form I would say in a month or so, after John Stoll has had time to review the street plans. It will have much greater detail at that time. The area being developed into a residential PUD condo development is back here in the rear portion. The commercial area is up front. If you have any questions of Mr. Tubbs, the developer, he’s here for you. The County Surveyor has recommended, excuse me, has reviewed the plan and recommends approval of the preliminary plan for Mystic Creek PUD.

President Nix: Any questions? I will entertain a motion.

Commissioner Musgrave: I move approval.

Commissioner Shetler: Second.

President Nix: All in favor?

All Commissioners: Aye.

Bill Jeffers: Mrs. Musgrave, you had asked for a signature block on the title sheet, and Justin Shofstall is preparing that on a transparency for you to sign. So, your signatures will become a part of the permanent record. I am asking the subsequent developers to bring that same thing to you.

Commissioner Musgrave: Will that be available today? Or at a later time?

Bill Jeffers: Mr. Tubbs said that Justin is on his way. He may have been held up by traffic or something along the way.

Commissioner Musgrave: Alright.

Bill Jeffers: But, it should be here today, yes.

Commissioner Musgrave: Okay, thank you.

President Nix: The next item on the agenda is, is that all you had, Mr. Jeffers?

Bill Jeffers: Yes, sir.

President Nix: Okay, the next item is resume hearing on the Stephen R. Schnaus petition. Mr. Jeffers?

Bill Jeffers: To briefly bring you up to date, Mr. Stephen R. Schnaus of 4109 Gayne Street on Evansville’s west side brought a drainage problem to the County Surveyor’s attention in the summer of 2005. We suggested, since it was private property and involved a mutual drain that serves five parcels of property, Mr. Schnaus and his neighbors, we suggested that Mr. Schnaus contact his neighbors and request that they remove the obstructions that he alleged existed in that drain. Mr. Schnaus then did contact his neighbors, and one of the neighbors removed, cleaned the ditch out, and two of the neighbors did not clean the ditch out. So, Mr. Schnaus filed a petition with the Drainage Board in accordance with state statute, requested the Drainage Board to order the removal of the obstructions that he alleged at 4123 Gayne Street, 4129 Gayne Street, and 4121 Gayne Street. In response to his petition, the County Surveyor conducted an investigation and confirms the existence of materials and conditions in the drain exactly as alleged by Mr. Schnaus, and thereby confirming the obstruction. That report is in your hands. I have a hard copy of it if you need an additional copy. In response to that report, the County Drainage Board held a hearing on December 20, 2005, at which time you gave the opportunity to everyone in the neighborhood affected by this situation to speak. You heard their comments, and as a result of their comments you recessed the hearing and had a field meeting with the neighbors and viewed the conditions yourself, and took additional comments from the neighbors at that time. Subsequent to that field meeting, it was decided to resume the meeting today, the hearing. Madelyn Grayson notified the affected property owners of all five of the properties. She can speak to whether or not they certified their receipt of those notifications.

Madelyn Grayson: All five were mailed, by certified mail, on February 8^th. I only received one green card back as of today.

Bill Jeffers: We do have one person in the audience–

Ted C. Ziemer, Jr.: Excuse me, the addresses you used for those were according to the Assessor records?

Madelyn Grayson: They were supplied by the Surveyor. I think, he did get them from the Assessor’s office. These were the same addresses that we used for the initial hearing on December 20^th.

Bill Jeffers: Those addresses are in the Surveyor’s report. They were obtained from the Assessor’s records.

Ted C. Ziemer, Jr.: Then I’m just going to say that I’m not concerned about not having the green cards back. They were notified.

Bill Jeffers: Okay, so that brings us to the point that the board may, at this time, decide to render your findings, whether the obstruction is intentional or unintentional. If you wish to ask me what my feelings are, you may. I would say that since the obstruction viewed and reported in my report, basically is sediment, trees, brush, debris, so forth collected there by the washing down of sediment from above, and the collection in the pipes, and then the growth of the brush and the trees is all natural or the result of natural actions. I would say that all of that material is unintentional. It meets the definition in the statute of unintentional. The pipes themselves, yes, they were placed intentionally by two individuals, the property owners, at the locations where they exist, however, they were placed, by all evidence, indicates that they were placed prior to 1996, at which time this statute became effective. So, you may wish to ask your attorney whether you would want to rule or find that a condition that pre-existed the statute could be, would meet the definition of intentional.

Ted C. Ziemer, Jr.: I understand that they were placed there prior to the enactment of the statute. What about removing them after the enactment of the statute? Would that be intentional, in your mind? For example, would they be aware that they were not to do that, and then it would become intentional if they didn’t remove them? In other words, it was not intentional, in my opinion, if they did it prior to the enactment of the statute. I understand they are still there today.

Bill Jeffers: Yes, sir.

Ted C. Ziemer, Jr.: In your opinion, or what’s your thought, they had knowledge of it after the enactment of the statute in 1996 and have done nothing about it since that time. Would that be considered intentional? Or do you believe that they don’t know that the statute existed?

Bill Jeffers: I doubt they knew that the statute existed. It’s their opinion that the pipes, the persons who own the pipes, it’s their opinion that they do not represent an obstruction anyway. It’s my opinion that they are undersized and they are filled with sediment. So, I guess, I’m leaning towards the obstructions, in their entirety, being unintentional.

Ted C. Ziemer, Jr.: And I think, based on the facts that we have, and the fact that the statute was not enacted until 1996, after the pipes were placed there, that you could correctly find that it was not intentional.

Bill Jeffers: Then if you do find that the obstructions exist, according to this statute the way I read it, if you determine that the obstructions do exist as is alleged in the petition that they exist, and you find that their existence in unintentional, but that their removal will promote better drainage of the petitioners property, without unduly damaging the property of the respondents, then the statute states that you must find for the petitioner and order their removal.

Commissioner Musgrave: Must, shall, may?

Bill Jeffers: If the Drainage Board finds for the petitioner, under section 14, which says, well I’ll paraphrase–

Ted C. Ziemer, Jr.: It says shall.

Commissioner Musgrave: Okay.

Bill Jeffers: The Drainage Board shall enter an order under section 19 of this chapter. Shall.

Commissioner Musgrave: During my ten years as Assessor, the word “shall” in a statute meant that you had no choice but to do what the statute says. Is that your interpretation of this as well?

Ted C. Ziemer, Jr.: Absolutely.

Commissioner Musgrave: Okay.

President Nix: Mr. Jeffers, do you have anything else?

Bill Jeffers: If you enter an order to remove the obstruction, because it exists in a drain, and this ditch does meet the definition of a drain, as opposed to a natural surface watercourse. Because it does serve two or more properties owned by two or more individuals, and it was placed with the consent of all individuals across who’s property it lies. If you enter an order to remove the obstruction from this drain, as an unintentional obstruction, the Drainage Board shall enter an order authorizing either one of the four following: the petitioner to remove the obstruction, the respondent to remove the obstruction, or directing the County Surveyor to remove the obstruction, or directing that the obstruction be removed through the joint efforts of at least two of the persons referred to above.

Ted C. Ziemer, Jr.: Mr. Jeffers? Before we get to the issue of whether the Drainage Board shall find for the petitioner, two conditions need to be met; one, that the removal will promote better drainage of the petitioners land, and that not cause unreasonable damage to the land of the respondents. I think the Commissioners need your recommendation regarding that.

Bill Jeffers: My opinion is that the removal of the obstructions will promote better drainage of the petitioners land. My opinion is that it will damage the respondents in that their driveway pipes, from the alley to the rear of their garages will be removed.

Ted C. Ziemer, Jr.: Is that unreasonable damage? That’s what the statute says.

Bill Jeffers: I would say if those driveway pipes are replaced with larger pipes of better structure, that the unreasonable damage would not exist. If the ditches were left open there may be some unreasonable damage in denying the right of access or entry on to their property from the alley.

Ted C. Ziemer, Jr.: I don’t know about the Commissioners, but I am not certain I understand what you’re saying. Again, you’ve already said that you believe it will promote better drainage. That’s one finding.

Bill Jeffers: Yes, sir.

Ted C. Ziemer, Jr.: The second finding is that it will not cause unreasonable damage to the land of the respondents, and it either will or it won’t. That’s the finding the Commissioners have to make, and I think they look to you for direction on that.

Bill Jeffers: If the respondents tell you that they must access those garages from the alley, I would suggest that a pipe be replaced in place of the pipes that are removed. If they tell you that they don’t any longer use the access to the rear of their garages from the alley, then to leave the ditch open would not unnecessarily or unreasonably damage their property.

President Nix: So, basically, what you’re saying is that cleaning the pipe out is not necessarily the answer? It’s actually enlarging the pipe?

Bill Jeffers: I believe two things. I believe the pipes are undersized, and even after they were cleaned out they would remain undersized, and there is evidence of damage to the pipes, deterioration of the pipes. There is some evidence suggesting they are deteriorated.

Commissioner Musgrave: Who is financially responsible for replacing, removing these pipes and the cleaning of the ditches? Which I believe you say we can order the petitioner, the respondent, the Surveyor, or a joint effort of any or all of the above. Who is financially responsible for that?

Bill Jeffers: The landowners shall jointly and severally be responsible for the cost of the obstruction removal. Because it’s unintentional, each of the properties served by the drain are equally responsible for the cost of this project, should it go forward, to the percent, I mean, the percentage of their responsibility is calculated on the footage of the drain over their property. So, I’m saying there’s five properties, somewhere in my report I had the footages, but, basically, some of them were 50 feet, some of them are 100 feet, and the total length of the drain is 400 feet. So, it’s very easy to calculate a percentage that each property owner would be responsible for.

Ted C. Ziemer, Jr.: I think in your presentation you indicated that would be 25 percent for each of three landowners, and twelve and a half percent for the other two, is that correct?

Bill Jeffers: That’s correct, because some of them are 50 feet wide, some of them are 100 feet wide.

Commissioner Shetler: I want to go back to that adverse effect that we were talking about on the property. It seems to me that if the statute might really be implying that after the improvements are made, if there is an effect that is negative, an adverse effect to it, then there would be, that wouldn’t be proper to enforce them to do it. But, on the other hand, if it is enhanced, if there is an improvement made to that property owner, then after those improvements are made, then, therefore, in other words, by putting a new pipe on there that is larger and more substantial, that would actually enhance the property, not be an adverse effect, even through the construction or whatever. You would have to replace somewhat like for like. In other words there’s a pipe there now, so it wouldn’t be a matter of just leaving it open so that that would adversely affect the owner, he would have to replace like for like. I mean, I would think that you were kind of keeping the same definitions there. So, I’m thinking that we’re not dealing with something that would really take away, but would add to enhancement.

Ted C. Ziemer, Jr.: I think, Commissioner Shetler, that’s a correct observation. You know, if, for example, we were going to make it that they had no access to their property after the obstruction was removed for some reason, that would certainly be unreasonable damage to their property. I don’t think anything like that exists in this case.

President Nix: That would be the case if the pipe is removed and the drainage ditch is in place and there’s no pipe put back in, because there’s, how many garages are there?

Bill Jeffers: Two.

President Nix: There’s two garages, so, in other words, if the pipe is removed, and the ditch is left in tact without the pipe, these people wouldn’t be able to get in and out of their garages.

Bill Jeffers: That’s why I was questioning it, because I agree with everything that’s been said, Mr. Shetler, Mr. Nix, and Mr. Ziemer has said. I was trying to avoid, I was trying to present a scenario, possibly, of avoiding putting the pipe back in, because removing the pipe and cleaning the ditch might cost $2,000. Putting a new pipe in place might cost a couple of thousand more, and we’re dividing this up amongst people who aren’t benefitting from the pipe. So, I’m trying to determine whether Mr. Darden and Mr. McCaslin, I believe it is, whether they actually use the pipe. Whether they actually entered those garages any longer from the back.

President Musgrave: But, does the statute speak to damage to the land? Adversely affecting the land itself? Or adversely affecting someone’s entry on to the land?

Bill Jeffers: Well, whenever I look at that, I always consider personal, or private property rights. If you deny someone access to their property, you are lessening their use of the property, and I think that’s a damage.

President Musgrave: You know, after thinking about it, I don’t know if the doors faced to the ditch, or do they face to the front, or to the house? I don’t remember.

Bill Jeffers: Right.

Commissioner Shetler: I was shivering.

Bill Jeffers: You know, maybe this is like nitpicking or something.

President Nix: Right.

Bill Jeffers: In other words, if you direct me to engage a contractor to remove the obstruction, the pipes are coming out. If we find out that new pipes need to go back in, it will probably double the cost of the project. I mean, that’s the brass tacks right there. I don’t want to burden all the, all four of the property owners with any more expense than I have to.

President Nix: And I agree.

Bill Jeffers: So, if there’s no reason to put a pipe in the ditch, there’s not going to be one put in there.

President Nix: Okay.

Commissioner Shetler: Let me put a little disclaimer on here for you. You’re not saying for any means that you think it’s going to be a $2,000 project or a $4,000 project. In fact, this is a project that could perhaps be even done by hand by the people out there, as opposed to really having to have a contractor or anyone, wouldn’t you think?

Bill Jeffers: Possible, but not likely.

Commissioner Shetler: Okay.

Bill Jeffers: I’ve been through this before where, you know, it’s just, where people said I’ll have my son-in-law come out and help me dig the ditch out and it never happened, and we had to hire a contractor. None of these have been done by hand yet. It’s possible.

President Nix: Anything else, Mr. Jeffers?

Bill Jeffers: No, sir.

President Nix: Thank you very much. Is there anyone in the audience that wishes to speak to this issue? Please step forward. Sir, in the, I would like to remind you that this is being televised, and also I would like to set a five dollar...five dollar, a five minute time limit on any remonstrators. State your name and your address please.

Bruce Darden: Bruce Darden, 4121 Gayne.

President Nix: Okay.

Bruce Darden: You guys were out there, I don’t know, a couple of weeks ago. Wayne could drive in to his garage from out there, but not my garage.

President Nix: Okay.

Bruce Darden: I’ve got seven foot of ditch there, and it’s not stopped up, you looked at it. But, if you want me to dig it up, I will. But, when do you rule on this?

President Nix: Well, we may or may not today. That’s up to the board.

Bruce Darden: Well, I’ve done contacted Rick Stevaly, the attorney. So, I’m going to have him involved in this too. Wayne’s got his own lawyer. But, my ditch, water on his property runs down to my property. So, that ditch is not the problem. If I dig it out, I’m just going to have more water back there. But, I’ll take the pipe out. There’s seven foot of pipe there.

President Nix: Okay.

Bruce Darden: But, then I can’t use my gate to go out back there to cut the grass there. Then I would be getting on somebody’s property. So, that’s what I got to say about it.

President Nix: Anything else at all?

Bruce Darden: That’s it.

President Nix: Thank you. Is there anyone else here that wishes to speak to this issue? Mr. Jeffers, would you like to respond to that?

Bill Jeffers: Again, I don’t want to deprive anyone from enjoying the full use of their property or access thereto. So, there may have to be some pipe put back in the ditch. In as far as the remonstrator, or, excuse me, the respondents being represented by attorneys or disagreeing with your findings and your decisions, the statute also allows for judicial review and remedies, whereby the respondents may pursue it in Circuit or Superior Court, with their attorneys present.

President Nix: Okay. Thank you, Mr. Jeffers.

Bill Jeffers: Yes, sir.

President Nix: Appreciate your work on this too.

Commissioner Shetler: You know, I will say, Commissioner Nix, we were out there that very frigid afternoon, the weather had turned cold that afternoon, but, and walked through that neighborhood, and there’s real serious drainage problems, a lot of which have been caused over a number of years by different property owners that have filled things in and covered things up and the like and created really a serious problem there for the neighborhood. Although, what our specific job is today, is to decide whether or not there is, in fact, a drainage problem at that particular residence, and if there is something that’s impeding the flow of drainage and stuff. My own opinion is that after looking at it particularly and seeing everything that Mr. Jeffers has done in a technical way, you know, everything that he’s provided us has been very correct and right on board, as usual, and I would, do we need to make a motion to....I would make a motion that we approve the petition?

Ted C. Ziemer, Jr.: No, yeah, that you find for the petitioner.

Commissioner Shetler: Find for the petitioner? So moved.

Commissioner Musgrave: I’ll second.

President Nix: All in favor?

All Commissioners: Aye.

President Nix: The ayes have it.

Commissioner Musgrave: Are you ready for a motion to adjourn?

President Nix: I’ll entertain a motion to adjourn.

Commissioner Musgrave: So moved.

Commissioner Shetler: Second.

President Nix: All in favor?

All Commissioners: Aye.

(The meeting was adjourned at 4:20 p.m.)

Those in Attendance:

Bill Nix                                      Cheryl Musgrave                      Tom Shetler

Ted C. Ziemer, Jr.                    Bill Jeffers                                 Madelyn Grayson

Bruce Darden                           Others Unidentified                   Members of Media

VANDERBURGH COUNTY

DRAINAGE BOARD

Bill Nix, President

Cheryl Musgrave, Vice President

Tom Shetler, Jr., Member

Recorded and transcribed by Madelyn Grayson.