VANDERBURGH COUNTY

DRAINAGE BOARD

JANUARY 23, 2007

The Vanderburgh County Drainage Board met in session this 23^rd day of January, 2007 at 4:32 p.m. in room 301 of the Civic Center Complex with President Bill Nix presiding.

President Nix: Good afternoon. I would like to call to order the Vanderburgh County Drainage Board, January 23, 2007 at 4:32 p.m.

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

Commissioner Tornatta: So moved.

Commissioner Musgrave: Second.

President Nix: All in favor?

All Commissioners: Aye.

President Nix: We’ll wait just a minute until Mr. Jeffers gets back to the podium.

President Nix: Mr. Jeffers, good afternoon.

Bill Jeffers: I’m sorry. I had left my report on the desk with the claims. Sorry. Okay, our first item of business is the drainage plan for Azteca milling plant expansion. This is an expansion of their existing operation. They’re adding some parking into an area that was previously assigned as grass area. What I’ve put on your desk is a storm water analysis by Bernardin Lochmueller and Associates, done by Jim Farney, certifying that the existing storm water detention area is still sufficient to handle this additional parking to replace the grass. This serves, I believe, one of their loading facilities. So, each time they come in now, they’re getting very close to having the maximum amount of paving that their storm water detention facilities would facilitate, or accommodate rather, and, so, each time they come in now they give us another storm water analysis from Bernardin Lochmueller, and show us where they’re going to compensate for detention. This one meets the requirements of the original plan and the ordinance. The County Surveyor recommends approval of the Azteca milling plant expansion.

President Nix: Is there anyone from the audience that would like to speak to this issue? Questions?

Commissioner Tornatta: I would like to accept the plan.

Commissioner Musgrave: I’ll will second based on the Surveyor’s recommendation.

President Nix: All in favor?

All Commissioners: Aye.

Bill Jeffers: By the way, the parking will be in this area right here.

Bill Jeffers: Okay, our next item of business is the Thomas Dowd petition, a hearing whereby Thomas Dowd is asking the Drainage Board to hear his evidence, and then you can hear the evidence of the respondents and make a decision on ordering the removal of the alleged petition, excuse me, the alleged obstruction.

Ted C. Ziemer, Jr.: Or denying the petition.

Bill Jeffers: Or deny the petition, whatever is your pleasure. The Surveyor’s report on the Dowd-Kemmerling petition is as follows. On November 21, 2006, the board received a petition from Thomas P. and Laurie Dowd, 2755 Wayside Drive, and E. Joyce Kemmerling, 2777 Wayside Drive, Evansville, Indiana, alleging an obstruction to a natural surface watercourse serving to drain their properties, and located on the properties of Gary D. Mason and Gary L. Feldmann, addresses 2619, 2621 and 2701 Glenn Avenue, Evansville, Indiana. Therefore, Thomas P. and Laurie Dowd and Joyce Kemmerling are the petitioners in this case, and Gary D. Mason and Gary L. Feldmann are the respondents.

Ted C. Ziemer, Jr.: Excuse me, just, you and I have talked about this some, can you just tell me, point out with your red marker there, your laser, where the petitioners property is and the respondents property, so I will know that.

Bill Jeffers: Okay. This roadway shown on the aerial photograph is Wayside Drive. It is ultimately connected over here to Oak Hill Road, north of Pigeon Creek. Thomas Dowd’s house, his home is right here. The yellow outline is Mr. Dowd’s property. He is the petitioner. E. Joyce Kemmerling, this is her home. The yellow outline is the Joyce, excuse me, the Kemmerling property. Ms. Kemmerling is a petitioner. This property here, this rectangle is owned by Gary Mason, 2701 Glenn Avenue. This rectangle here is owned by Gary Mason and Gary Feldmann. It’s address is 2619 Glenn Avenue. Then, this rather triangular piece is owned by Gary Feldmann, 2621 Glenn Avenue.

Ted C. Ziemer, Jr.: Thank you.

Bill Jeffers: These three are the respondents. The petitioners allege the obstruction consists of dirt, rock, debris, metal, wood, and possibly roofing material, the removal of which will cause better and more full drainage of the petitioners property. Subsequent to the board’s receipt of this petition, the County Surveyor visited the site and conducted an investigation as required by Indiana Code 36-9-27.1, with the following findings; county maps and aerial photographs confirm the historic existence of a natural surface watercourse serving the land owned by the petitioners and crossing the land owned by the respondents; the watercourse is a tributary of Pigeon Creek. Again, looking at the map, I have outlined, or traced the watercourse in red, and it runs down off of the petitioner’s property and through the property of the respondent, and then through this wooded area and to Pigeon Creek, which is this body of water here. Ms. Kemmerling’s property is drained by another watercourse that runs through, historically ran through the respondent’s property and joined together, and also went through this watercourse down to Pigeon Creek.

Ted C. Ziemer, Jr.: Which way does it drain?

Bill Jeffers: It drains, this over here is west, the top of the picture is north, it drains from northwest to southeast in this direction following the red dot. So, on your screen, what you’re looking at is a 2005 aerial photograph from our GIS department, showing the path of the watercourse as it drains the petitioner’s property down to Pigeon Creek. The light colored area, in the middle of the photograph, is the fill area. It’s light because there’s no trees growing on it. This area here is all wooded, that’s why it’s darker. This is basically dirt and some green grass. The heavy line drawn across that property, as I say, represents the historic route of the watercourse through the respondent’s property.

President Nix: Mr. Jeffers? Before you go on–

Bill Jeffers: Yes, sir?

President Nix: –when you say the historic course, how far back does that go?

Bill Jeffers: I have viewed maps in our vault from 1968, 1990, and aerial photographs in 2002 and 2005. The maps from 1968 and 1990 both show the watercourse as it’s drawn in red on this aerial photograph.

President Nix: Would it be safe to say that there wasn’t really any development out there in ‘68? Is that a safe assumption?

Bill Jeffers: In ‘68, the house is on the map for Gary Mason. A smaller house than exists here now is on the map for Gary Feldmann, and there is no house on the map for Mr. Dowd.

President Nix: Okay.

Bill Jeffers: Mr. Dowd’s home appears on the 1990 map.

President Nix: I guess, my question is, if you went back to a map that was produced in 1890, you would probably see the same thing, is that correct?

Bill Jeffers: I would imagine in 1890 this was all a wooded wetland adjacent to Pigeon Creek–

President Nix: But, I guess, the question–

Bill Jeffers: –and the watercourse would have followed generally the same path as it does on the red line shown on the aerial photograph.

President Nix: Thank you. Sorry.

Bill Jeffers: If at some point I’m requested to produce information like that, I will attempt to, to back that statement up. But, I’m making the assumption that it was a watercourse laid by nature for many thousands of years proceeding development of this area. The area of the obstructed flow is shown on the photograph along the north edge of the fill area. That’s this enlarged area here. This is an obstructed, there is water standing there, there is water standing here, along the north edge of the fill area. The historic watercourse route that’s shown on this photograph was determined by measurements transferred from one county map or aerial photograph to another county map or aerial photograph to cross reference. The hard copy maps used to do this are dated 1968 and 1990, and they are in my office on file should they be needed. The aerial photographs shown on this projector screen, this one is dated 2005, and there’s another one we can show you that’s dated 2000. That’s this black and white one. You can see from this one that the fill did not extend all the way to the north property line. In 2000 there was not as much fill as there is when she goes back to the picture in 2005. There’s a little bit more there. So, that shows some activity in those five years. The evidence from the maps and aerial photographs confirm placement of fill material on the respondent’s property over a period of several years into the historic route of the watercourse as it previously existed across land owned by the respondents. A visual inspection of the site by the County Surveyor confirms the existence of chronic standing water on the petitioner’s land at locations where the natural surface watercourse encounters a fill material placed in the watercourse on the respondent’s land, at or near its northern boundary, as I pointed out before. This is where the standing water occurs. That is troublesome and basically the subject of this petition. Okay, on the screen now we’re going to go to some photographs that were taken by the County Surveyor the first week of December 2006 in response to this petition. Slide two shows the standing water I’m talking about on Mr. Dowd’s property, just north of the fill. Slide three, oh, you can tell by the color of that water that it’s a chronic, stagnant standing condition. Slide three is the same view, but with the camera raised slightly to show several large trees that have died due to standing in stagnant water. You can see the bark’s falling off these trees. They are dead or dying because of the stagnant water. Slide four is a view of the same spot, from the same spot, except I’ve turned around 180 degrees, and I’m looking east across the fill, along the historic route of the watercourse, which would have entered this property right here and traveled to this open spot in the tree line. That’s where the watercourse would have gone. The visible break in the trees over there is where the watercourse again exists on its way to Pigeon Creek. I’ll show you that later. Slide five is taken while standing at the edge of the fill along its north edge. I’m standing on the Mason-Feldmann property, and I’m looking north into the Kemmerling property along the watercourse that serves to drain a lake through her property over on Wayside Drive. This is the low area that comes down to, or this is the watercourse. Slide six is the exact same view, but with the camera slightly lowered to show some standing water on the Kemmerling property where the fill intercepts the watercourse. Here’s some standing water that is a subject of concern to Ms. Kemmerling, which is why she joined the petition. Slide seven is a view to the north and to a spot where the previous photo was taken. In other words, that last photo you saw, I was standing right here, now I’m standing back here about 50 or 75 feet south, approximately at the spot where the watercourse from Ms. Kemmerling’s property would have intersected the main watercourse from the Dowd property, if this fill here had not been placed. Slide eight, okay, slide eight is taken at the eastern edge of the fill, and I’m looking east through a wet woodland and along an undisturbed watercourse as it flows away from this site and along its way to Pigeon Creek. Okay, so, you can see this, this is what the watercourse should look like going through the woods. Unobstructed, water is flowing, it’s just a natural, basically, clear color, it’s not stained by any stagnant, green algae. It’s just rainwater that’s running off. Slide nine is taken from that exact same spot, except now I’m turned around 180 degrees and I’m looking west back to where these slides started. This would have been the course of, this would have been the route of the watercourse from the first picture over here near Mr. Dowd’s property line, to the last picture 250 feet to the east, where you saw the watercourse in its correct position. Now, someone might contend that the runoff from the Dowd-Kemmerling properties can somehow find its way around the perimeter of this fill. Indeed, some of it does. Especially during high water conditions. However, the fact remains significant obstruction exists that impedes the low flow and prevents full drainage previously enjoyed by the petitioners. So, we look at slide ten through 16 and we see, basically, some of the water does trickle around the base, this is along the north edge of that fill, and, yes, some of it’s going around here, that’s slide 16. Slide 17 shows it continues around here until it encounters some debris, these are fallen limbs and trees that have fallen off the side of the fill and are tumbling down to the toe of the fill, and they’re, you know, the water stops right there. Slide, that’s 17, okay. Well, we can look at 11, 12,13, if you like. You all can look at those. You can see the water. This is just some more debris that’s fallen into, where the water’s trying to make it around, it just can’t make it. So, there really is no alternative route, at this time, that is efficiently draining the Kemmerling and Dowd properties. Okay, by this report the County Surveyor intends to confirm the following findings, one–

Ted C. Ziemer, Jr.: Could I ask you a couple of questions–

Bill Jeffers: Yes, sir.

Ted C. Ziemer, Jr.: –before we get to your findings?

Bill Jeffers: Yes, sir.

Ted C. Ziemer, Jr.: When, what was the condition....could we go back to the original one that shows all the properties?

Bill Jeffers: Sure. That would be the–

Brenda Jeffers: Aerial?

Bill Jeffers: –aerial photograph. The color, aerial photograph.

Ted C. Ziemer, Jr.: What was the condition of the respondent’s property before the fill was put in at all? Was it just a ravine? Or, why was the fill put in there? Do you have any idea? Or can you speculate about that?

Bill Jeffers: I can only speculate, because I’m not familiar with it other than to say, having looked at the 1969 map, it was just a low area, approximately 360 to 365 feet above sea level, which is well below flood plain for this area, which is probably, I’m going to guess 382 or so. So, it’s probably 15 feet below flood plain. By filling this in 15 feet, they’ve raised the elevation of that entire area that’s filled up to an elevation that is above flood plain.

Ted C. Ziemer, Jr.: To what benefit for them?

Bill Jeffers: Keep water out of their property when Pigeon Creek backs up.

Ted C. Ziemer, Jr.: And, over what period of time do you think this fill has been put in there?

Bill Jeffers: Well, I think, I believe it began occurring somewhat after 1990.

Ted C. Ziemer, Jr.: And, up to?

Bill Jeffers: At a large scale, there may have been some preliminary small scale dumping that occurred in that low area, for whatever period of time, but, as far as large scale filling on a regular and concerted basis, I would say it probably happened sometime between the late 1990's and 2002 or 2003.

Ted C. Ziemer, Jr.: Is there still fill being put there to your knowledge?

Bill Jeffers: Not to my knowledge. It looks like, from the grass growth that’s on the property, it looks like it probably stopped, the activity stopped in the last couple of years, but maybe some concrete debris here has been pushed around a little. There’s no grass growing in this area, but you can see that the grass here indicates maybe a year or two has lapsed since any concerted activity.

Ted C. Ziemer, Jr.: Did the petitioners live in their properties back in 1990 when this began?

Bill Jeffers: I’m not sure exactly when Mr. Dowd’s home was built, but it appears to have been built between 1968 and 1990, sometime in that period of time. We would have to pull a building permit to see when.

Ted C. Ziemer, Jr.: The reason I’m asking those questions, and, of course, the Commissioners make the findings here, but I’m just puzzled, as I expressed to you on the telephone, that this fill has been put in since 1990, and it’s now 2007, and a petition is just filed to remove the obstruction. I think you’re going to indicate to the Commissioners that it will cost a substantial amount of money to do that. Of course, it would have been much less had a petition been filed maybe in 1991 or 1992. But, that answers my questions, and we’ll want to hear the rest of your report.

Commissioner Musgrave: Mr. Ziemer, the Assessor records indicate that the Dowd property was built in 1987. So, they were there at that time. I can check the other one if you’re interested? The dwelling for the Kemmerling’s is year built of 1952. The Kemmerling’s moved in, or the deed transfer into their name was in 1982. The deed transfer into the Dowd, I keep saying the Dowd’s name, was in 1987. So, they’ve both lived there for quite some time. The Mason property, the one furthest to the left there, deed transfer was in 1980. The one in the middle is 1982. The one on the far right is 2002.

Ted C. Ziemer, Jr.: Okay, then, one other question, and I, you probably don’t have direct knowledge about this, but, from what you have seen out there, do you think the fill was put there to obstruct the stream? Or to raise the level of the respondents property and it inadvertently obstructed the stream?

Bill Jeffers: The respondents are here to answer that question, but I would surmise that the intent was to raise the elevation of the property. As a consequence, the stream became obstructed.

Commissioner Musgrave: To your knowledge were any permits obtained from any agency with oversight over any of these lots to change the course of the waterway?

Bill Jeffers: To my knowledge there were no permits acquired. I’m not sure there were any necessary. I would have assumed, from dealing with this type of activity in land development, that the Indiana Department of Natural Resources Division of Water may have had some interest in filling a wetland. I would have assumed from my experience with the U.S. Corp of Engineers that they would have had some interest in filling a tributary of Pigeon Creek, which is a water of the United States. Placing a fill in a tributary that may have an adverse affect on the quality of the water of the United States. However, I hold here a fax from the Indiana Department of Natural Resources when I inquired regarding any activity they may have had, and the summary states as follows; report date, violation reported March 25, 2005, received a report from Gary Feldmann of work being done in the floodway of Pigeon Creek. I’ve not confirmed that. I don’t know why it’s worded that way. This comes from DNR.

Commissioner Musgrave: That report was dated what date, sir?

Bill Jeffers: March 25, 2002.

Commissioner Musgrave: And that was a report of somebody complaining about work?

Bill Jeffers: That’s the way I read it.

Commissioner Musgrave: Okay, so that was in 2002.

Bill Jeffers: Then it says received, this is September 25, 2002, one month later. No, excuse me.

Commissioner Musgrave: Several months later.

Bill Jeffers: Six months later, Toby Adams, Engineering Assistant at Division of Water received a fax from Tom Dowd on 6/14/2002, concerning fill along an unnamed tributary of Pigeon Creek, Mr. Dowd states the fill has gone in along the tributary, blocking the flow and ponding water. The tributary is less than one square mile, so jurisdiction lies within the floodway of Pigeon Creek. The fill was found on the site does invade the water flow of the tributary, but there’s no way to tell if it can affect Pigeon Creek. We do not have a floodway for Pigeon Creek in the area. Then, again, on September 25, 2002, file closed, Toby Adams, Engineering Assistant, file closed per J. J. H., since the floodway is not delineated, and we believe it’s outside the floodway of Pigeon Creek, I called Mr. Dowd with this information and recommended he call the county Drainage Board.

Ted C. Ziemer, Jr.: What’s the date of that?

Bill Jeffers: September 25, 2002. Like I said, I’ve seen instances where a developer has done something like this, and the U.S. Army Corp of Engineers has ordered remediation of some sort, to plant trees, etcetera, but in this case they chose to pass it to the Drainage Board.

Commissioner Musgrave: What is the relationship between Mr. Mason and Feldmann, other than the fact that they own jointly on a piece of property?

Bill Jeffers: To my knowledge that’s the only relationship.

Commissioner Musgrave: Okay.

Bill Jeffers: At least one of those men is here and can answer that question.

President Nix: Anything else, Mr. Jeffers?

Bill Jeffers: Unless you want to hear the four findings at this time, at the bottom of the report.

President Nix: The board’s pleasure? Or would you rather hear the remonstrators first and get back to the findings?

Commissioner Tornatta: Yeah.

Bill Jeffers: Whatever your pleasure.

President Nix: Let’s do that. I’m sure we have remonstrators here today, if you want to go ahead–

Ted C. Ziemer, Jr.: Maybe the petitioner first.

President Nix: Oh, the petitioner, that would be fine. Sir, if you could, state your name for the record.

Thomas Dowd: I’m Thomas P. Dowd, the petitioner in the motion.

President Nix: And your address?

Thomas Dowd: 2755 Wayside Drive.

President Nix: Okay, thank you.

Thomas Dowd: Thanks for the opportunity to present the case and get this problem alleviated. I was listening to the conversation, and I think I can help fill you on some of your questions, as well as state why this is such a problem. First, just a general scope of the area here, I think Mr. Jeffers laid it out pretty well, but the reason this is such a problem is that you’ve got two lakes involved here. You’ve got about a four or five acre lake right here, and then a four or five acre lake right here. This lake here drains underneath Wayside Drive into this lake, and then it drains out a spillway into this, I’m sorry, into this area right here. So, you’ve got a lot of water going through here. This lake right here also has an overflow, where if it gets too high, the water dumps in and dumps down into this area here. Also, up here is Oak Hill Road, and the whole area just slopes dramatically downhill like that. So, you’ve got a lot of water flowing through there at all times. I grew up in this area. I grew up actually in that house there back in, I’m 47, so since 1959 I’ve basically lived in that area. We built our house there in 1987. So, I walked these woods when I was a kid, and I know how this used to be, and there used to be a very clear cut drainage path through there. In the summertime the drainage creek would actually get dry. Back in probably the late ‘90's or 2000 we kept hearing all this noise through the woods. The woods, before all this was dumped here was quite thick, you know, we lived here and some of it was dumped over here, so we didn’t really have a good view of anything. In the summertime there’s a lot of leaves on the tree, we just heard a lot of noise and we knew something was going on over there dumping wise. Well, we didn’t realize how out of hand it had gotten, and it happened over a period of probably about two or three years, probably ‘99 to 2002 or so. The report by Mr. Adams, that was me that contacted him in 2002 to see if we could get anything done about the situation. There was also a problem there, the other problem that makes this such an issue, this is an area of one of the city’s only above ground sewer lines. There’s an above ground sewer line that runs in the back of my house right through here, I would say right about where that yellow line is there, and then goes back this way, and then connects up to an in ground in there. The sewer line leaks, and it leaks 365. You know, 365 days a year there’s a little bit of water coming out of it. When it rains really hard in the neighborhood, the top of the sewer actually comes off. There’s like an adjoining area there, and water shoots out the top of it like a volcano. So, it’s sewage and rain water mixed. So, what happens is that sewage water actually gets stuck in this area here. You can go back there in the summertime and it won’t have rained for months, and there’s a bunch of stagnant water here, and you can see a couple of drops coming out of that sewer pipe, leaking in that water. Very unsanitary situation. We’ve all noticed a lot more mosquitos in the last five years. I know the question was why wasn’t anything done in 2002? As I mentioned, this happened over a few period of years, and I actually talked to a Sheriff because I was concerned about the dumping, he came out and there were some trees that they had knocked over on the sewer line, I was afraid they were going to bust the sewer line wide open, and they were knocked over from their property there. The deputy said that they quit dumping, and then, you know, a few months later here it goes again. So, I think that’s some of the information about the lay of the land there. I understand, you know, I’m guessing this land was put in to make more usable yard, you know, would probably be my idea, but he can answer that. I guess, the key thing is that I didn’t do anything in 2002, I sent them a letter in 2002 and I said, you know, if you don’t do something about this I’m going to take further action. He didn’t do anything. Nobody wants to pick a fight with a neighbor. I don’t have any relationship with the guy, but I gave him an opportunity to respond. He never responded. I know some of the neighbors are pretty upset about the situation too. In 2004 I sent another letter, I went through a divorce in 2004, my name is still on the house and still on the property and everything, and I actually live right around the corner on Trail Drive. But, finally this year my ex-wife said we really need to get something done about this, because it’s just a really bad situation. Our kids, my son is 12 years old, he likes to go walk in the woods, and, you know, you’ve got mosquitos, you’ve got a very stagnant, nasty looking area of water. I’ve got trees that are rotting out that could possibly fall from my land on to the sewer pipe caused by him dumping all that stuff back there. So, I realize it may cost a lot of money to pull all of that out, but it probably cost a lot of money to put all of that in there, and he had to see that there was a clear cut drainage path right there that was being dumped on. So, any questions?

President Nix: Thank you.

Thomas Dowd: Okay, thank you.

President Nix: Anyone else wish to speak to this issue?

Gary Mason: Hi, my name is Gary Mason. I live at 2701 Glenn Avenue. I’m just going to give you my story with this thing. I bought this house in January, 1980. The creek does flood up back in through there. Just last week it was about five, six feet deep back there. It was eroding away....okay, I live right there. It was about five to six feet deep just last week. It’s now down to about a foot, so, it still does drain back in through there. The reason why I started filling was because it was eroding away my property. I used to be able to walk out my back door about five feet and you would just fall 15 feet. That’s where the creek would come up. So, I bought a 1945 dump truck and a tractor, and I started bringing in fill. In the early ‘80's I hooked up with Industrial Contractors, did some wining and dining, and they started bringing me in the dirt from Dress Regional Airport. The deal that I had with them was that they had to bring in the junk first, and then as long as I got the good dirt next, I didn’t care. So, they brought in some big pillars and everything else from where they was building the new airport, and then they filled it in, and we got stopped. The reason why we got stopped was because of the size of the trucks. They was tri-axle trucks, and I had a neighbor who stopped the trucks because of the size of them. I came downtown because it was an opportunity of a lifetime, they said I could have more dirt than we could fill back there, and I felt like if I could get that all filled in it would just be more property for me. So, I came downtown here to talk to people on why I couldn’t get these trucks in there, they took me to a side room, told me that they knew everyday that these size trucks went down Oak Hill, but it was illegal, and as long as they have somebody in the Mayor’s office complaining personally, then they was going to have to stop. So, they stopped us from there. So, basically, I was finished at that time. But, people knew about this, so, they just kept bringing in more dirt, more fill. The city kept bringing some in, and we didn’t care as long as it was solid fill. In the early 90's, I’ll be honest with you, it caught on fire, and that was a big mess. The Environmental Protection Agency came out there. They said that as long as we got the fire out, we was doing nothing wrong and we could continue. So, we continued. In 2002 this Sheriff that Mr. Dowd apparently contacted came in and told us that we had to quit filling back there, so, we did. Then I met with this Toby Adams of the Department of Natural Resources, the gentleman that Mr. Jeffers was talking about, we met there at the property, Mr. Dowd was supposed to be there too, he did not show up. So, Mr. Adams did his test or whatever he was doing. I contacted him about six weeks later, and he told me that he had contacted Mr. Dowd, and said, as far as he was concerned we was doing nothing wrong. So, I continued once again. Well, I really didn’t continue, I had fill still there. In the next couple of years I had some other city officials come out there. They wrote me up for having fire wood on the ground. You’re supposed to have it 18 inches off the ground, so, I put it up 18 inches off the ground, and then the told me to push the rest of this fill over the hill. So, I pushed it over the hill, because that’s what I was told to do. I’ve been there for 27 years, I’ve tried to do everything that everybody’s asked of me to do, and I would never intentionally do anything wrong. You know, if we’ve done something wrong, I’ll fix it the best that I can. I hope that we have enough common sense to realize, as what these pictures have shown us and everything, that it is still draining back there. Like I say, it was about six feet deep just earlier last week, and it’s already down to a foot. Water does run around the embankment there. I hope that if nothing else, that we can get down there and maybe clear out some of this lumber that’s in the way and get a ditch going through there, and I think it would drain it. The last thing that I want to do is damage any of your property or anything. I try to be a good neighbor, and that’s what I’m here for is to, I’m going to do whatever you guys tell us to do. That’s what I’ve been doing for 27 years, and, you know, up until now I’ve been never told that we’ve been doing anything wrong. I don’t know if the reason why the Department of Natural Resources didn’t tell us to plant any trees or anything, but, I told him, as soon as we get this thing done, that’s what I would like to do, is plant some trees, have a little picnic area out there. Our intentions were never to sell it or anything, we just didn’t want anybody else to buy this property. So, that’s why me and Gary Feldmann went in and bought it together. I wonder about some of the rules here. I really don’t know. I’m a silly ol’ man here, but it’s to me what I call creek bottoms. You know, it floods every year several times. It recedes back into Pigeon Creek and everything. To me, I just, like I say, I guess, I’m silly, but I question how come if the city ordinance, weed control and the wood that’s on the ground back in that area is not under the city ordinance for those things, then why should the natural surface waterway be. I’m just kind of confused on this, because to me it’s nothing but creek bottoms. It was not that, you know, just not that good of property there. So, I felt like we made it into a little something.

President Nix: Sir, could you pause just a second here while we change the tape?

Gary Mason: Sure.

(Tape change)

President Nix: Okay.

Gary Mason: The only other thing I would like to add is that the majority of this fill on my property was done decades ago. You know, it’s just, I can’t believe now that somebody’s going to tell me that I have to dig it up. So, yes?

Commissioner Musgrave: You said that you had contact with various city offices, and, do they have jurisdiction here?

Gary Mason: The city? Yeah, I mean, we’re in the city, if that’s what you’re asking, yeah. I mean, I’m going to assume that Mr. Dowd contacted other people and they came out there, you know, to inspect it, once again. Like I say, the thing they wrote me up on was that I had firewood on the ground. According to city ordinance, you’re supposed to have your firewood 18 inches off the ground. So, now it’s on a metal rack, behind my house, it’s not on the ground anymore.

President Nix: Excuse me, do you remember what departments that were out?

Gary Mason: They was testing for the West Nile virus at that time.

President Nix: The Health Department, so, okay. But, as far as the drainage issue, did anybody specifically from the city say–

Gary Mason: No, like I say–

President Nix: It was more about firewood being off the ground and the health issue with West Nile and those types of things?

Gary Mason: Yeah, I mean, they told me to push the rest of it over the hill.

President Nix: But, nobody addressed any kind of drainage issues at all?

Gary Mason: No. No, like I say, all I’ve, like I say, I’ve tried to accommodate whatever persons have come back there, you know, and that. Whatever they’ve asked me to do, I’ve tried to do, you know.

Commissioner Musgrave: Your neighbor said that he sent you two letters. What was your response to the letters?

Gary Mason: I only received one letter. That was in March of 2002. I did contact an attorney at that time. In fact, I was, my parents, one of them had passed away, and I was in the process of doing their stuff, so, I was talking to them about it. They told me the last thing to do would be to write a letter, to put it down in writing, and that if I could work it out with them, to go ahead and work it out, but this was not only me, it was Mr. Feldmann, and I don’t think that me and him could get ever get on the same page with this, at that time. To be honest with you, I just let it go. You know, I didn’t bring in anymore fill, you know, I did not contact him on that.

Commissioner Musgrave: One more question, do you know on what grounds the Sheriff told you to cease further fill?

Gary Mason: Well, we couldn’t quite figure that out. Like I say, we’re, you know, I’m just a working, you know, person, and I didn’t know. It scared me to death. I’ve heard of this natural waterway, so, I mean, I’ll be honest, when I first heard about it, I was scared. So, Mr. Feldmann went out there, and he did clear off the trees that was on the pipe, and at that time we did stop bringing in fill. But, then, like I say, it was about six months later when I met with that Department of Natural Resource gentleman, and he told me we was doing nothing wrong. So, then some other people did bring some more fill out, because over the last 25 years people had kind of gotten used to bringing, you know, solid fill out there. So, then that’s what I was told to push over a couple of years later. Thank you.

President Nix: Any other questions? Thank you. Sir, if you would state your name and address for the record please.

Gary Feldmann: My name is Gary Feldmann. My address is 2621 Glenn Avenue.

President Nix: Thank you.

Gary Feldmann: I would like to make a correction that I’ve lived at that same address since 1980, January of 1980. Me and Mr. Mason bought those homes, by coincidence, at the same time. Because, the mother lived in my house, and the daughter lived in his house, and they bought a house up in Newburgh.

President Nix: Thank you.

Gary Feldmann: But, I went through a divorce in 2001, and I had the house put solely in my name. So, that might be why. I really don’t have a whole lot more to add than what Gary said. He pretty much summed it up as far as we’ve been going through this all these years, and everybody that’s come out to address this situation has basically said we ain’t doing anything wrong. Then all of a sudden, right when we’re basically almost done, well, we are done now, for sure, but, now we’ve got to dig it up. It just doesn’t make sense why it came to this point, and took so long to get to this point when you had a county sheriff out there, which should have contacted somebody with the county, the right authorities at that time, I would think. I mean, he acted like he knew what he was talking about. He put a stop to it, like Gary said, he scared us enough to stop us, until we found out, you know, Gary tried to call him and he never answered his call. So, I mean, it’s just been a mess. Personally, I would love to get down there and clean the brush and the trees out of this existing ditch, and, I believe that’s really all it’s going to take to get the water flowing better. I would like to have that opportunity.

President Nix: Sir, when you say existing ditch, are you talking about around the perimeter of where the fill was put in?

Gary Feldmann: Yes, because there is water flowing through there.

President Nix: It’s made a waterway, for all practical purposes, because the water can get through?

Gary Feldmann: Yes.

President Nix: Okay.

Gary Feldmann: I believe that will take care of the situation, and, if not, I’m willing to even do some digging down there to make sure it gets off of Mr. Dowd’s property.

President Nix: Sir, is that–

Ted C. Ziemer, Jr.: Can I ask, Mr. Jeffers, if you could come forward at the same time maybe. You’re gonna give the Commissioners two thoughts here, one on removing the fill, and another one on putting an alternate route for the stream. Would that be essentially what he is talking about?

Bill Jeffers: Yes, I believe that is what he’s talking about.

President Nix: Does this come off, where the green and the white just follow kind of along east-west?

Bill Jeffers: What we’re all talking about actually, is starting over here on Mr. Dowd’s property, where we’ve shown you stagnant water standing. Mr. Dowd brought some photographs, the reason I imagine he didn’t show them to you is because they look just like the ones I showed you earlier. And, as he pointed out, this lake, this large lake here drains right here out of this spillway, and runs along the outside of Mr. Mason’s property and around to this point, and then that water needs, you know, this area needs to be cleaned out so the water can continue around the outside of the fill and rejoin with the watercourse. Because, digging through 15 feet of fill would result in a ditch 15 feet deep, if you had three to one side slopes–

President Nix: And 150 foot wide.

Bill Jeffers: –you’re talking 100 feet wide.

President Nix: Right.

Bill Jeffers: It totally, I mean, I apologize to Mr. Ziemer for coming up with a half million dollar price tag, but what I forgot to do was divide the inches into the feet when I was calculating.

Ted C. Ziemer, Jr.: Right, but you got it corrected.

Bill Jeffers: I got that corrected, it’s down to about $75,000, but it would take about 600 loads, tri-axle loads, 600 tri-axle loads to be removed at $150 an hour. You’re still talking–

President Nix: And, when you consider that, are you, because I haven’t cumed it, but are you saying everything from there to the north would have to come out? Are you saying cut a ditch and leave everything else in place?

Bill Jeffers: There’s the possibility that we could simply put an excavator up on this fill bank–

President Nix: Whew!

Bill Jeffers: –and reach over 15 feet and pull the debris out of the toe of this slope, and clean out this area, because it’s really only about, it appears to be somewhere between one and two and a half feet that you would have to clean out to get this area to drain around.

President Nix: How stable is that, how is that, what kind of slope does that fall on?

Bill Jeffers: I don’t know.

President Nix: Is it a 45 degree angle?

Bill Jeffers: It’s a fairly steep angle here, but how stable it is, you would have to have a soil analysis done.

President Nix: But, you would need to pull some of that back so that you could cap it. So, you wouldn’t have–

Gary Feldmann: (Inaudible) concrete keep from washing out.

President Nix: Okay.

Bill Jeffers: Why have other agencies, other municipal agencies not told Mr. Feldmann and Mr. Mason about the drainage statute? The drainage statute took effect in 1996, and some of the other agencies are not yet up to speed, and just don’t know to tell them. Why are we telling them now? Simply because this statute covers the obstruction of watercourses, and, so, we’re obligated to move forward with it.

President Nix: Mr. Feldmann, did you have anything else at all?

Gary Feldmann: I guess not, if nobody else has anything to ask me.

President Nix: Questions? Thank you.

Gary Feldmann: Thank you.

President Nix: Okay, Bill. Wait, we’ve got one more remonstrator here.

Susan Harp: Susan Harp, president of the Oak Hill Neighborhood Association, but I also live right there. So, that’s my house, this is my lake, and this is the dam, and this floods here. I kind of feel like the water flows more this way, but it does all flood. It comes up to the top of my dam, and it has come into my lake, until we put a little check valve on it. So, my position in this is kind of two fold in that moving into, building that home in 1990, and then very soon after that becoming active in the neighborhood association, I had neighbors call me whenever something bothered them, that they didn’t want to address it themselves they called me. One of the complaints was a lot of the trucks on the road. I know we had talked to Gary about it, my husband talked to him, and, you know, you try to appease the neighbors, so, he backed off on some of the trucks coming in and dumping. We knew that he was wanting to fill that land in, because it was inusable as it was, and he had hoped to build something on there. So, in 2002, Mr. Dowd came to the Oak Hill Neighborhood Association meeting and asked, presented this problem, his concerns, and at that time the association agreed that he did have a rightful problem, and that he had to file something at that time and it would cost $100, and the association membership who were present agreed to give him that $100 if he chose to do that. He had to get a petition. I personally, as president, did not enter into that, because as also an abutting neighbor I just felt that it was best I stayed out of that.

Ted C. Ziemer, Jr.: That time?

Susan Harp: That was in 2002 when he first did that, October 6^th. October 6^th was when he came to the Oak Hill meeting. Then, as I looked back and read in my minutes, because time does pass, in November we had not heard anything more about it, the next mention I have of this in my minutes was in April 6, 2003 where a neighbor on Trail Drive had noticed that some water, we’d had some heavy rains, was standing up. Some of the people on Trail Drive had complained. Through the years after that, Mr. Dowd had contacted me once, I told him that I would prefer not to, as president, I really did not have the time to go out and seek petitions for such, but that as, per the previous agreement, Oak Hill would still fund him $100 to file whatever he needed to file. Then this past summer he had sent out a letter, because it revived again, and I just basically did not have time to deal with the issue at the time that it came out, and through the past I felt like that nothing had really transpired as far as actually any filing of any complaints being filed. But, we did have, Phil Bruner from, the Conservation Officer, come out as one of the first steps. Phil took some pictures and I have those, because he gave them to me because he submitted these to the Department of Natural Resources. We also had Joe Potts, because Steve and I were working on the combined sewer overflow at the time, and, as we said, there was an overflow area there. So, he came out and looked at this, but, it really, as we said, the Department of Natural Resources wrote it off. They didn’t do anything about it. So, that kind of left our hands that whatever they said, that was what was to be. That’s where we kind of left it as an association, that if the Department of Natural Resources said they had no problems with it, then there were no problems. But, I will tell you that Pigeon Creek does flow back up in where that red line is. Pigeon, where you see the bottom of my house, you see Pigeon Creek right there, Pigeon Creek, when it gets high, it comes back up in there and fills that up all the way to the top. So, I think that we may have here a problem of lack of communication between neighbors, maybe, through the years. From an association standpoint, looking out for streets that would be impaired by hauling all this stuff out, I would like to see something worked out that they make a drainage ditch, versus having them remove all of this. I say that from the association standpoint that our streets are in need of repair, and they would really be in need of repair if we have all those truckloads of stuff hauled out.

President Nix: You would be at the road hearings then. No wait, this is city though, isn’t it?

Susan Harp: This is city. No, this is city, and it did come to you–

President Nix: Okay.

Susan Harp: –because of this. But, you know, I would like to see that it could be worked out in a good way between the neighbors. I do believe that if we could get down in there and move some stuff, I personally would never put an excavator on that and reach down in there. I would go down in there and try to pull stuff out myself, because I just feel like with the flood water as much as it comes up and down it might not be good, stable soil. But, that’s just because I live there and that’s what I think.

Ted C. Ziemer, Jr.: One question, you mentioned that Pigeon Creek comes up to where your lake is.

Susan Harp: Right.

Ted C. Ziemer, Jr.: But, that hasn’t been affected by this fill in anyway? I mean, that looks to me like–

Susan Harp: The only thing that it–

Ted C. Ziemer, Jr.: I mean, that drain is there–

Susan Harp: Right.

Ted C. Ziemer, Jr.: –and it’s, that is unimpaired, isn’t it? From–

Susan Harp: It’s unimpaired–

Ted C. Ziemer, Jr.: Yeah.

Susan Harp: –except for the fact that when Pigeon Creek rises, all that goes here–

Ted C. Ziemer, Jr.: Yeah.

Susan Harp: –it can’t go as far as it used to, because it used to go way back up in here and fill. It would be high, as Mr. Mason said. It would be very high.

Ted C. Ziemer, Jr.: Uh-huh.

Susan Harp: So, now, it can’t go up that high, so, it stops about right here. So, the brunt of that water fills up Pigeon Creek higher–

Ted C. Ziemer, Jr.: I see.

Susan Harp: –going down the road. That is with many developments. I might add that, this was brought up, Mr. Jeffers is so kind to keep us informed of things in our neighborhood. We’ve had another case of, I forget how many loads of asphalt that were dumped along the creek on Lake Drive. Troy may have even heard about that one. It’s been dumped there for years. It was when they were doing the Weinbach section. The company was going and dumping the asphalt along the creek bank. Also in that case the Department of Natural Resources has not made a final ruling, to our dismay. But, we thought, you know, maybe, people who need to fill in, there is a reason they need to fill in, but there needs to be an ordinance where you have to get a permit of some sort, meet with people such as Mr. Jeffers, the Building Commissioner, and get a permit so that everybody knows where you’re dumping so things like this don’t come up and bite you after the fact. So, that might be another good ordinance.

President Nix: Thank you, Mrs. Harp.

Susan Harp: Yeah.

President Nix: Any questions? Mr. Jeffers? I’ve got, before you present your closing here, I would like to, just a couple of questions. If this were to be rerouted, more than likely there would need to be some engineering, some professional engineering take place, is that your, would that be something that you would think would have to happen?

Bill Jeffers: Yes.

President Nix: I guess, that’s one question. Okay, the second question is, it doesn’t appear that DNR is all that interested in this waterway or this flow line, if you will, would they need to be contacted if that, in fact, would take place?

Bill Jeffers: You really know how to ask the questions, don’t you, Mr. Nix?

President Nix: It’s my job.

Bill Jeffers: Yeah, okay. Well, with this document they closed the case, but you can be sure there’s a catch 22 when it involves someone else, the case will be re-opened.

President Nix: We’ve been there before, haven’t we?

Bill Jeffers: We’ve been there many times before. I would expect someone may make a call, and here comes another guy with a, from a different bureaucracy, or a different level of bureaucracy with another idea of what permit we should have applied for.

President Nix: And my third, and, hopefully, last question, there would have to be some easement work to be done? Because this basically covers three pieces of property. I mean, if it’s as close as it appears on this, or could it be done all within the confines of the Mason-Feldmann and whoever owns that pie-shaped, could it all be done within the confines, with the exception of maybe a little bit of work up on the Dowd, on the south end of the Dowd property there?

Bill Jeffers: I’m truly thinking from how close to the top, I mean, what you’re seeing there is the outline of the top of the embankment, and you know it has some sort of slope since it’s 15 feet tall. Even a two to one slope it would be 30 feet out from that white area into the wooded area.

President Nix: The concern I have is construction debris, especially the stuff that was put in there, what I understand, the type of material, you’re not just going to pull it out and just replace it with dirt. You’re going to be taking some things out that are going to be rather bulky.

Bill Jeffers: I believe some of what you take out will be very large, bulky pieces of concrete and other debris.

President Nix: Okay.

Bill Jeffers: And, I, to go further with your question, I truly believe that much of the work, or at least 50 percent of the work will occur on the Dowd and Kemmerling properties, and the resulting channel would be at least half on their property and half on the Feldmann and Mason property. So, it would require the consent of the petitioners, as well as the respondents.

President Nix: One more and I’ll shut up. How much engineering would have to take place to, I mean, would you have to do calculations all the way back up to any watershed to this drainage ditch? In your estimation.

Bill Jeffers: I think it would be fairly simple we would set some grade, set grade out there and determine how deep the water is standing on Mr. Dowd’s property, and match that grade with the undisturbed watercourse over here. Then the contractor could use a laser to stay on grade. That part would be relatively simple. I think the complicated part of the engineering would be to ensure that work surfaces were stable, the soil stable enough to put vehicles and equipment on that embankment and work. Because that embankment is going to have to be pulled back to some extent just to clean up the face of the slope and keep things that are on the face of the slope from tumbling down. It’s going to need to be just, you know, cleaned up and stabilized some.

President Nix: And that material could be managed on site somewhere then for all practical purposes?

Bill Jeffers: I’m hoping that all that material could be disposed on site, rather than hauled off.

President Nix: You’ve got the floor.

Bill Jeffers: Rather than go through all four of these points, I did turn those in to you by e-mail. Simply say that in the words of the, in the language of the statute itself, the County Surveyor, upon investigation, finds an existing obstruction in a natural surface watercourse in the location alleged by the petition, and the County Surveyor reports the existence of that obstruction to the Drainage Board. That’s the sum total of my finding, at that point. I gave you some estimated costs. Those are just right off the top of my head. I consulted with one professional engineer on that. They’re based on hourly rates and the tonnage we anticipate. The estimated cost of restoring the watercourse would be $48,000 to $50,000. The estimated cost of rerouting the watercourse around the toe of the slope, and partially on the petitioners land and partially on the respondents land would be somewhere between $6,000 and $10,000, not including engineering or soil borings or such as that.

President Nix: Right.

Bill Jeffers: Just the work.

President Nix: Mr. Dowd?

Thomas Dowd: I just had–

President Nix: Could you step up, you need to step up to the podium please.

Thomas Dowd: I just have a concern about, I’ve already got a bunch of dead trees on my land from this problem here that, you know, I didn’t cause, and now we’re talking about rerouting the creek, I guess, or the drainage ditch personally through my land, and there’s a bunch of thick trees back there. We really love the woods. We like our privacy. It’s a beautiful woods. A lot of its been destroyed. That was all woods there where all that fill is dumped there. I think the key thing is too, you’ve got that sewer line going through right here, so, this stuff runs right up to the sewer line, above ground sewer line. I’m very concerned about that thing getting busted and having a huge mess back in the woods there. So, I do feel that some of that fill will have to be pulled back, and I really don’t want a big creek and a bunch of more trees of mine taken out through there, because we’ve already had enough damage to that. You know, I want to see, I just want to see the problem get alleviated. You know, it’s a health hazard, it’s a concern, the neighbors are concerned as well. That’s all I’ve got.

President Nix: But, you wouldn’t necessarily have a problem, if this was rerouted, as long as it doesn’t affect your property?

Thomas Dowd: If it’s rerouted, as long as it doesn’t affect my property, that’s fine, and they get the water drained off of my property, that’s great. Then the only other thing I would say too, is that we’re talking about how the creek does rise, right back now, right now there’s a lot of water right back in here, and, then again, the problem is after the creek recedes then we’ve got a huge pool of water back there. That stuff’s gotta drain.

President Nix: Well, and if this was accomplished, that would take care of that problem. Because you would have a good flow, as the water in Pigeon Creek starts down–

Thomas Dowd: Then the water will flow out. I did have one picture, and that’s the other reason that I wanted to come up here. If I could present this to you. This kind of gives you a little, just a little different view from what Mr. Jeffers had. This shows, this is taken from my property, and that’s, you can see how it kind of slopes downhill. (Inaudible). It’s just right off the sewer line.

Madelyn Grayson: Can I keep those for the record?

Thomas Dowd: Yeah, you can go ahead and have that one.

Bill Jeffers: My take on that was that Mr. Dowd would not consent to the work taking place on his property. Is that your impression?

Commissioner Musgrave: He’s nodding his head yes.

Bill Jeffers: Okay.

President Nix: So, basically, what would happen then is that everything would have to be pulled back from the property line and then started from that point then, is that correct?

Bill Jeffers: Right.

President Nix: Is that the way you see that?

Bill Jeffers: So, the cost estimate would fall somewhere between the $10,000 and $50,000, because of the amount of, because of the volume that you would have to remove, and the hours it would take to remove them. I would have hoped that there could have been a compromise, but, apparently, that’s not the case.

President Nix: Mr. Ziemer?

Ted C. Ziemer, Jr.: Well, let me just tell the members of the Drainage Board what your options are. First, under the statute you need to make a finding, you’ve got to find three things to find in favor of the petitioner. You’ve got to find, number one, that there is an obstruction of the natural watercourse, that that exists. Number two, you’ve got to find that the removal of that obstruction would promote better drainage of the petitioners land, that would be Mr. Dowd’s land. Number three, that that would not cause unreasonable damage to the land of the respondents. So, you’ve got to find all three of those things to be able to find for the petitioner. Excuse me, if you don’t find those three things, then you find against the petitioner, and the petition is denied, and the matter rests where it is. Mr. Dowd could do whatever he wants to do on his property to alleviate the situation, and the respondents could do whatever they want to on their property. That’s if you denied the petition. You have further the option of finding, well, no, if you find for the petitioner, that is you find those three things exist, and you find for the petitioner, you next need to consider whether the obstruction was intentionally placed there by the respondents. That is what the statute says;

“The board shall determine, based upon a preponderance of the evidence, whether the obstruction of the drain, or natural surface waters, was created intentionally by any of the respondents.”

That’s really a fact situation for you to find, but intentional, you know, you don’t know whether when they put the fill they were intentionally trying to obstruct the stream, or they were intentionally trying to raise the level of their land and inadvertently obstructed the stream. I don’t know, but you must make a finding whether you think they intentionally did it or not. If you find that they intentionally did it, then you must order the respondents to pay to repair the problem. If they won’t do it, then the county will do it through the County Drainage Board Fund, in which there are no funds, as I understand. But, the county would do that, and then bill the cost of that to the respondents, and if they didn’t pay that, you would sue them as any other private citizen would sue on a contract. If you find that the obstruction was not intentionally placed there, then the petitioner is to repair the obstruction. In that case it would be, he has the right, that gives him the right to go in and remove the fill, or do whatever is necessary to solve the problem, but at his expense.

Commissioner Tornatta: Is that mandatory at that point?

Ted C. Ziemer, Jr.: Yeah, if you make these findings.

Commissioner Tornatta: Okay.

Ted C. Ziemer, Jr.: So, number one, you have to decide whether your going to side for the petitioner or against him. To decide for the petitioner you’ve got to find those three things; a watercourse exists, that an obstruction has been placed in the watercourse, and that the removal of the obstruction will not necessarily, what is the words, I think it’s important, unreasonably damage the land of the respondents. So, if you make that finding, you find for the petitioner. The next finding you have to make is whether you believe he did it, the respondents did it intentionally or not. If you believe they did it intentionally, then it’s for the respondents to repair. If you believe that they did not do it intentionally, then it’s for the petitioner to repair. That’s what the statute says. Then, if anybody is dissatisfied with the finding of the Drainage Board, they can take it to court.

Commissioner Musgrave: That was one of my questions. So, there is an appeal process from this ruling?

Ted C. Ziemer, Jr.: Certainly.

President Nix: The, I lost my train of thought.

Commissioner Musgrave: I’m sorry.

President Nix: That’s okay. It happens. That happens in old age. Can you define “intentionally”. I mean, they intended–

Ted C. Ziemer, Jr.: I could certainly come up with cases, and that would be the most professional way for me to define “intentionally”, but I can tell you “intentionally” means to, number one, know that, in my mind, to do this intentionally, you have to know that the natural drainage course exists, and that by putting this obstruction in place you’re going to obstruct the natural drainage course. If you didn’t know that it was there, you could not intentionally obstruct it. If you knew it was there, but didn’t think your fill was going to intentionally obstruct it, then that wouldn’t be intentional. But, I’m not going to say, sitting here this afternoon, without looking at some cases, how a court might find is the definition of “intentional” in that case.

President Nix: Thank you.

Ted C. Ziemer, Jr.: I will suggest, that, obviously, the petitioners and the respondents are free to try to work out this situation. Mr. Dowd, while you are dead set against having anything done along the edge of your property, obviously, they are very hopeful they’re not going to have to spend $75,000 to remove fill that’s been there for the last ten years, almost. Maybe there is something that the petitioners and the respondents could work out among themselves, and then the Drainage Board would be delighted, if that were the case.

President Nix: Mr. Dowd? Could you step up to the podium please? I’m sorry, I hate to do that, but for the record.

Thomas Dowd: I don’t want to see anybody spend $50,000 doing this, but I want the problem fixed, and I didn’t cause the problem, and it is a big problem. What I would ask is if there’s anyway we could do this, you know, right here is where that sewer pipeline is, okay? Is there anyway that they could bring in a backhoe and just dig out right along there, maybe even put a pipe in to run it over to there, you know, that would suit me fine.

President Nix: I’m just wondering, Mr. Dowd, if that takes place to minimize the amount of work they would need to come on your property a little bit. I don’t know what kind of area we’re talking about, but to, I mean, would you be agreeable to meet with them and try to get, try to work this out?

Thomas Dowd: I would like to try to work this out. My other concern is that after they’re said and done, and they say everything is fine, you know, what if I’ve still got, what if it’s still backed up there?

President Nix: I think, at that point, we would need to address that. Because, you know, things always happen, you know, but, it would be great if you and your neighbors could sit down and try to work something out. I don’t know if we need to get that in some kind of a legal document, or some kind of agreement?

Ted C. Ziemer, Jr.: No, I think you would just take this under advisement–

Commissioner Tornatta: Right.

Ted C. Ziemer, Jr.: – and see if they can work something out. If they can, it’s solved. If they can’t, they have to come back, and then you’ll have to, eventually, make a finding.

Commissioner Musgrave: Mr. Dowd and Mr. Feldmann, would it be acceptable if we took this under advisement and asked you to come back to our next meeting, which I believe is in three weeks.

Ted C. Ziemer, Jr.: No, excuse me, the next meeting is next week. It’s February 6^th that we’re not having one.

President Nix: We don’t have a meeting-

Commissioner Musgrave: We don’t meet the fifth week in January.

President Nix: – it’s the fifth Tuesday.

Ted C. Ziemer, Jr.: Oh, that’s right, that’s next week.

President Nix: So, we don’t have a meeting for three weeks.

Thomas Dowd: When is the meeting? I’m sorry.

Commissioner Musgrave: Let me pull up my calendar. While I’m pulling it up, can she change the tape?

(Tape change)

Ted C. Ziemer, Jr.: So, that gives you roughly three weeks to–

Bill Jeffers: While you all are contemplating setting a new, or contemplating tabling this, I would like to bring yours and your attorney’s attention to subsection 18. Because after listening to your attorney’s, kind of his definition about what’s intentional and what’s not intentional, because I hadn’t looked at it that way. I always thought intentional was, well, they knew they were bringing the stuff in there, and they meant to do it. Whether they knew it was a watercourse or not, they meant to implement this fill.

President Nix: And, that was the reason for my explanation of intentional.

Bill Jeffers: I mean, I’m not a lawyer. So, I just thought, well, it was a willful act. So, it was intentional.

President Nix: Okay.

Bill Jeffers: However, after listening to a more astute definition of intentional–

Ted C. Ziemer, Jr.: Thank you, Mr. Jeffers.

Bill Jeffers: Well, that’s why you make the big bucks. And, having thought that unintentional was just natural, you know, just, oh, a tree fell down there. But, now that I listen to that, I would want to bring your attention down to this subsection 18, where if you were to find for the petitioner that all this is an obstruction, you know, the first three things that your attorney pointed out, and that removal of it would cause better drainage, but you find that it’s unintentional, then you can direct anyone among group (c) down here, the petitioner, the respondents and the County Surveyor, you can direct them to consult together and come up with a solution.

Commissioner Musgrave: That’s my motion. I would like to do that.

Ted C. Ziemer, Jr.: That’s what we’re doing.

Bill Jeffers: But, you don’t have to wait three weeks. You can do that right now, can’t you?

Commissioner Musgrave: That is what I would like to do, and I would like them to come back in three weeks, on February 13^th and let us know your progress. Hopefully, you’ll have a solution.

Ted C. Ziemer, Jr.: Mr. Jeffers? What they don’t want to do today is, that would be making a finding, and in finding that it is unintentional, or finding that, in fact, they’re finding for the petitioner, which means they have to find that this won’t cause unreasonable damage to the property of the respondents. So, they would rather not make any finding today, if the petitioner and the respondents are in a position to work this out. If, by three weeks from now, you come back to us and say that you can’t work it out, then you would put the Drainage Board in a position of having to make a finding, and they’ll find whatever they find.

Bill Jeffers: Okay.

Commissioner Musgrave: I can go either way at this meeting, go ahead and table it and let them have three weeks, or if they other two Commissioners would prefer to make a finding, I could go that way.

Commissioner Tornatta: The only trouble I have right now is the fact is that I don’t know if I could totally give all three yes’ to the petitioner, because I think that that would unreasonably damage what has been filled to that property. Mr. Jeffers, I don’t know if, do you think that that’s, at that point, that that would, because you’ve been out there, I wasn’t able to get out there, would that damage the property as it sits?

Bill Jeffers: To cause the total removal of everything it would take to create a 100 foot wide channel, I think would seriously detract from the value of the property as it is today. Because it’s a nice, flat piece of property now. I know what they did, they did. The state legislature has put you in the position of Solomon, put me in the position of prosecutor. We don’t like it, but we do the best we can, I think following Mr. Ziemer’s advice is your best path.

Commissioner Tornatta: Well, I, from what I’ve heard today, I think that we do have some willing souls to at least look at trying to come to some type of compromise. In the event that this couldn’t come to a compromise, then I think we could see this back before this board and we could make a finding and let the chips fall where they may. But, as I see it today, if we have two willing parties, or three willing parties in this intent, then I would like to see them try and work something out before coming back to this meeting, and then we can address something if that does not happen.

Commissioner Musgrave: So, the motion is to table?

Commissioner Tornatta: I make a motion that we table.

Commissioner Musgrave: And, I’ll second that.

President Nix: All in favor?

All Commissioners: Aye.

President Nix: Opposed?

Commissioner Musgrave: But, I would like to make a further motion that they come back on the 13^th, hopefully, with an agreement, or with a progress report, if they don’t have an agreement.

Commissioner Tornatta: I second that.

President Nix: All in favor?

All Commissioners: Aye.

Gary Mason: When we’re talking about coming back in three weeks, I mean, we’re not going to have this solved then, but we’re going to hopefully discuss and come up with game plan.

President Nix: Sir, if you can come up with a plan that you all are agreeable, you come tell us that–

Gary Mason: Okay.

President Nix: –and, basically, all bets are off then.

Gary Mason: Alright, alright.

President Nix: If you will.

Gary Mason: Alright, thank you.

Gary Feldmann: We don’t want this water back there either, we just keep getting shut down every time we try to make progress–

President Nix: Right.

Gary Feldmann: –and then we’re stuck, you know.

President Nix: Okay, thank you very much, gentlemen.

Gary Mason: Thank you.

President Nix: Mr. Jeffers?

Bill Jeffers: Well, I think it’s a real positive thing that you got three guys talking right here that weren’t able to talk before they arrived. So, that’s a good thing.

President Nix: Good.

Bill Jeffers: They are talking now over here off camera. That hasn’t happened before.

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

Bill Jeffers: Yes, sir, I have a supplemental agreement with Clark Dietz that your attorney has reviewed and given his blessing to. I would like for that, that’s for Pond Flat Main, it’s a first amendment–

Ted C. Ziemer, Jr.: Madelyn, you have that, don’t you?

Madelyn Grayson: I’ve got three copies of it.

President Nix: Okay, I’ll entertain a motion.

Commissioner Tornatta: And a second.

Bill Jeffers: Then, I have a whole–

President Nix: Hold, whoa, just a second.

Bill Jeffers: Excuse me.

President Nix: Just a second.

Commissioner Musgrave: You make the motion, and I’ll second.

Commissioner Tornatta: A motion and a second.

President Nix: All in favor?

All Commissioners: Aye.

Bill Jeffers: I have a big gob of claims for maintenance to regulated drains and other work that’s been done on our county ditches.

President Nix: I will entertain a motion that we approve those.

Commissioner Musgrave: Motion to approve.

Commissioner Tornatta: Second.

President Nix: All in favor?

All Commissioners: Aye.

Bill Jeffers: Thank you.

Commissioner Tornatta: Thank you for the effort, Mr. Jeffers.

President Nix: Now is the time for public comment. Is there anyone here that wishes to address this board at this time? Seeing none. I will entertain a motion to adjourn.

Commissioner Tornatta: Motion to adjourn, second.

President Nix: All in favor?

All Commissioners: Aye.

President Nix: Thank you folks.

(The meeting was adjourned at 5:40 p.m.)

Those in attendance:

Bill Nix                                      Cheryl Musgrave                      Troy Tornatta

Bill Jeffers                                 Ted C. Ziemer, Jr.          Madelyn Grayson

Thomas Dowd                          Gary Mason                              Gary Feldmann

Susan Harp                              Others Unidentified                   Members of Media

VANDERBURGH COUNTY

DRAINAGE BOARD

Bill Nix, President

Troy Tornatta, Vice President

Cheryl A. W. Musgrave, Member

Recorded and transcribed by Madelyn Grayson.