The Vanderburgh County Drainage Board met in session this 24^th day of June, 2002 at 6:55 p.m. in Room 307 of the Civic Center Complex with President David Mosby presiding.
 

Call to Order

President Mosby: Call to order Vanderburgh County Drainage Board for June 24, 2002.
 

Approval of Minutes

President Mosby: Do we have approval of the minutes?

Commissioner Fanello: So moved.

Commissioner Mourdock: Second.

President Mosby: Motion and a second, and so ordered.
 

Hearing on the Suitt petition

President Mosby: Hearing on the Suitt petition.

Bill Jeffers: Bill Jeffers, Vanderburgh County Surveyor. The Suitt petition hearing is canceled. Mr. Suitt has withdrawn his petition. Mr. Suitt's neighbor removed certain components of his waterway improvements that extended vertically above the flow line grade and there is no obstruction in the waterway at this time. Mr. Suitt plans to make improvements to halt erosion and stabilize the channel on his property. Mr. Suitt will work with SWCD and the County Surveyor to use methods recommended in the Indiana Handbook for Erosion Control. The county has not incurred any cost beyond ordinary postage for two letters that I sent to Mr. Suitt and to his neighbor and the County Surveyor recommends that the Board refund the $100 filing fee to Mr. Suitt to help him pay for the waterway improvements.

Commissioner Mourdock: Suits me. So moved. I couldn't help myself.
 

Commissioner Fanello: Thank you.

President Mosby: I have a motion and a second, so ordered.
 

Report on Windham Hill Subdivision

President Mosby: Windham Hill, is that the one that Les wanted to continue?

Les Shively: No, that's the one further down under Old Business.

President Mosby: Oh, Millay, okay. I got confused.

Commissioner Mourdock: Windham Hill is that off of Kansas Road, Bill?

Bill Jeffers: Right, this report that I just handed you is exactly the same thing that I have in my script that I handed out earlier, but it just refers to Windham Hill, it's the portion that refers to Windham Hill. Windham Hill is located on Green River Road between Millersburg Road and Kansas Road. It's north of Green River Estates, and was the subject of discussion the last couple of Drainage Board meetings with regard to flooding incidents on neighboring properties during this spring's heavy rains. On Thursday, June 20, 2002 at about 4:00 p.m. the County Surveyor inspected Windham Hill subdivision, drainage improvements and erosion control measures. The developer Scott Railey and his legal counsel, Jerry Atkinson, both of whom are in the audience today, accompanied the County Surveyor. This was in reply to the Drainage Board's request that Mr. Railey appear tonight. The report begins with comments on Windham Hill, Section One which is the recorded subdivision within which construction of streets, utilities and housing is occurring at this time. The drainage system for Windham Hills, Section One including roadways, curb and area inlets, pipes, yard swales, perimeter swales, primary conveyance swales, detention lake, lake outlet structure, and the outlet channel to Green River Road all appear to be installed appropriately. The inspection did not include detailed measurements, so the exact sizes and locations of these improvements is not determined at this time, but will be determined upon final inspection. Appropriate erosion control measures are in place within the roadway and drainage system for Windham Hill, Section One. The developer has established a grass cover over most of the exposed areas of Section One, and the grass cover appears to be adequate, being 50% to 70% sprouted and growing in areas seeded last year, and is becoming adequate in areas seeded this year. The developer has installed appropriate silt fencing along the property line separating Windham Hill, Section One and the Hass property to the south. The developer has installed operating check dams in the discharge channel from the detention lake to Green River Road. The developer is advised that he must make periodic inspections, and maintain and repair his drainage improvements and erosion control measures in Windham Hill, Section One. The developer should closely inspect his drainage system and erosion control measures, especially after each heavy storm, to assess their performance, and determine their need for maintenance and repair. The county retains the developer's letter of credit, which guarantees completion of the streets and drainage system in Section One. The letter of credit will not be released by the County until final inspection determines correctness of installation, and the stability of the lake banks and the stability of the various open channels. Now that covers the inspection of the recorded Section One where the development is going on at this time. Now with regard to the unrecorded, undeveloped part of the project adjacent to the Hass property, the Rueger property and Green River Estates properties. The developer is not required to install and maintain storm water drainage and detention facilities for property not under development. No letter of credit is held by the county to guarantee completion of streets and storm water facilities for the property adjacent to the west line of the Hass and Rueger properties or adjacent to the north line of Green River Estates, because no plat has been recorded for this part of the future development. Because land in the undeveloped area of the project was disturbed in association with construction activities in Section One, the disturbed area is covered by the requirements of state "Rule Five", but it is not subject to requirements of the county's drainage ordinance. Simply for sake of convenience, this report calls this part of the developer's property Section Two. I am not sure if that will be Section Two, but tonight it is. The County Surveyor inspected, and reports on Section Two as a result of drainage complaints called directly to or referred to the Surveyor's office over the past three months. A record exists in the County Surveyor's office of drainage problems and drainage related complaints in Green River Estates that predate the initial planning for the development of Windham Hill subdivision. During the planning for development of Windham Hill, adjacent property owners shared their drainage related concerns with the Drainage Board. That is a matter of record. The developer's design engineer developed a plan that he says will capture up to 60% of the storm water from Section Two that otherwise arrives in Green River Estates, and the plan will convey the run-off to the southwest corner of Section Two, where it will discharge into an established ditch. During heavy storms in the spring of 2002, excess storm water left Section Two through natural surface watercourses on the Hass and Rueger property. Upon arriving at the north line of Green River Estates, this excess storm water spilled out of the Rueger's woods and overloaded the ditch along the rear of the lots on Wethersfield Drive. The County Surveyor made certain suggestions, delivered in writing, to the developer of Windham Hill, asking him to intercept excess storm water from Section Two, and to convey it away from the Hass, Rueger and Green River Estates property in a manner that would approximate the planned future drainage system. Thursday's inspection of Section Two reveals; the developer has installed temporary swales along the boundary of Section Two adjacent to the Hass property, the Rueger property and Green River Estates property. The developer has installed earthen berms directly behind the temporary swales to contain excess storm water in Section Two and together the swales and berms intercept the storm water from Section Two, and convey the flow into a long, narrow sediment control basin located along the south boundary of Section Two. An earthen berm separates the sediment control basin from Green River Estates so that any overflow from the basin will not spill into the ditch along the north line of Green River Estates. There were three unfinished rock check dams in the sediment control basin on June 20, 2002. The developer expressed his intent to have the rock check dams property installed as soon as possible. The sediment control basin is located where the future lake will be in Section Two, and releases the accumulated storm water into the established ditch along the west line of the project all as shown in the approved drainage plan for Section Two. The disturbed area of Section Two has been heavily seeded and grass is becoming established on previous farm crop land. The developer showed me pictures in the hallway just before the meeting that clearly demonstrate the statements that I have just made, and I am sure that he will present those to the Board. During the inspection, the County Surveyor advised the developer that temporary drainage and erosion control measures should be inspected after every significant rainfall to determine the adequacy of performance and need for the maintenance and repair. Two particular locations exist, both identified to the developer during the inspection, where temporary drainage and erosion control measures are most likely to be over-topped if not carefully maintained and periodically repaired. Both these locations are where natural surface watercourses historically enter the Hass and Rueger properties. The rock check dams in the temporary sediment basin must be finished correctly to insure proper operation and discharge into the established ditch at the southwest corner of Section Two. The pictures that I mention clearly shown that the work had been finished since Thursday and the developer acknowledged each of the three advised items above. That concludes the Surveyor's report. Like I said, the developer is here at your request. He is represented by Jerry Atkinson, and also by Morley Associates as the design engineer. Mr. and Mrs. Hass are here, Mr. Rueger is here, and I think I see people from adjacent Green River Estates are here also in the audience.

Commissioner Mourdock: Bill, before you step away from the microphone, if you start on what is the, I guess, third page here that starts with that line, Thursday's inspection of Section Two reveals and then you have the developer has, when were those things put in place? It is something that was done on the Wednesday before the Thursday or is it something that was put in place in the coming, several weeks prior, were those last minute developments?

Bill Jeffers: On the individual report that I broke out of the meetings script I attached to it an on-site evaluations to the back of that. These evaluations come from Soil and Water Conservation District staff. One of them is dated 6/13 which shows, at that time, most of the items were satisfactory on the 6/13 inspection. They did say the appropriate perimeter sediment control is marginal, and that the storm drain inlets, meaning the ones on the streets, are unsatisfactory but this shows that work was conducted earlier than last Thursday. I believe Mr. Railey, the developer, had begun work to address the situation possibly greater than 30 days ago, but it is just now coming to the point of being very satisfactory.

Commissioner Mourdock: Okay and on that same report you just referred to from June 13^th , there are status of sediment retention on-site, two boxes are checked today, site conditions present a high potential for off-site sedimentation and there is evidence of off-site sedimentation, so both of those are a direct result. I must assume that only one of those "M"s that are circled up above.

Bill Jeffers: That is not necessarily a complete statement. If you look at the next page under the very last item, other requirements, SWCD is recommending a restrictive flow inlet on the basin discharge. In other words, they have a large lake out there but it has a direct discharge pipe and as soon as it starts raining water is immediately discharged.

Commissioner Mourdock: There is not enough free board?

Bill Jeffers: There is for detention purposes. It is perfectly designed and implemented at this time. What Soil and Water Conservation District is recommending there is a temporary stand pipe to allow more time for silt to settle out. There is arguments for and against that. Obviously, if it is a slotted riser, whatever goes out through the slotted riser is just as muddy as what is kept in the lake, and, well, there is various arguments, but that is the Soil and Water Conservation Districts recommendation that a slotted riser be installed on a temporary basis. That is not an item that would fall under the drainage code. However, Soil and Water Conservation District would like for the Drainage Board and the County Surveyor to agree with them on that, because it does fall within a drainage easement. There were also, with regard to your question, there were some perimeter locations, not associated with the complaints here tonight, where mud was discharged near the entrance of Green River Road. There was some mud on the street, and there is some silt that leaves Windham Hill and goes under Green River Road and into Windfield Farms on the other side, or whatever it's called over there.

Commissioner Mourdock: Which is the same developer.
 

Bill Jeffers: So the silt is leaving this site, yet it goes immediately across the street into his next system from which hardly any water is being discharged, at this time, because his lake is so large in that system that it's containing the silt over there. However, the way that they write the Rule Five is that it's leaving one site entering the right-of-way for Green River Road and then immediately going into the second site. So it is a matter of interpretation. Personally, if the right-of-way could be considered public property he is just conveying his somewhat silty water directly to his next series of silt containment measures. Any other questions?

President Mosby: Any other questions? 

Bill Jeffers: How would you all like to? Would you like to hear the persons who voiced the complaints first? Or would you like to hear from Mr. Railey who you invited to come tonight?

President Mosby: Does anybody from the neighborhood want to speak? Okay, that is what we will do. We will take comments from the neighbors and then we will let the developer speak.

President Mosby: Are you representing the neighbors?

Les Shively: Yes, I am. Mr. and Mrs. Hass and Mr. Rueger, two of the neighbors. My name for the record is Les Shively. What I would do, Commissioner Mosby, is give an overview, and then they have some specific comments and observations on current conditions that they would like to provide you this evening. I appreciate all of the work that Bill has given to this particular project, but I respectfully disagree with him on one little part in terms of the fact that you don't have any jurisdiction over Section Two. The answer is, yes, you do, and I will tell you why you do. When Mr. Railey came here on October 23, 2000, one of you were here, two of you were not here at that time. There was a very lengthy discussion about drainage, at that time, in conjunction with preliminary approval of the drainage plan for the entire project. The Hass's were here, the Rueger's were here, and looking at page one of those minutes, Mr. Daniel Hass, who you will hear from in a moment, expressed a concern that we are having here. You have heard a lot of verbiage here, but pictures speak a thousand words, so let me show you from Mr. Jeffers map that he provided to the Drainage Board last month. This is the Hass property. This is the Rueger property, okay. This is Phase One over here, and this is Phase Two. The problem areas are basically here, here, and here. I am going to come back to these in a moment with a time line as to what has been done, and what hasn't been done. But, essentially, this was the area of concern back on October 23 of 2000, when this matter came before this body for preliminary drainage approval. At that time their engineer, Morley and Associates, stated the following: they acknowledge they need to intercept the water, what we need to intercept the water. Yes, and Mr. Hass specifically asked about berms. Mr. Morley stated, "there will be a berm at all locations where we need it to intercept the water that comes from this. If it is an area where we don't need a berm to intercept the water then there won't be a berm". So, it's like, and then there was more discussion. Mr. Morley then reiterated exactly,"so we'll have a berm every place that we need one to capture the water". Let me tell you what has been done, and what needs to be done. Mr. Daniel Hass explains it a lot better than I do, and he'll do a good job here in a second. Right along here, this border here, they put in a ditch, and with the, about a 3 ½' ditch, and with the excess dirt they have created that berm effect in here which is working. Okay, but they stopped it right here. Essentially what needs to happen is that theme, an idea consistent with what their engineer said, is that we are going to put this in all places where it is necessary. It needs to be continued where this orange part here down here through the yellow. Now this pink area, Mr. Hass will tell you, the pink area they have, in fact, and this was very much a concern a month ago, they have ,in fact, done the appropriate, corrective measures there, and it seems to be working at this time, but, again, picking up from comments Mr. Jeffers made, that is a dynamic situation out there. What we want, these folks will tell you, they want what has been done up here to continue along this line here, the orange and yellow. Now, when I, when the Hass's and Rueger's first contacted me I wrote a letter to Mr. Railey and what I referred to in that letter on May 1^st was the report of Mr. Jeffers of April 25^th, then updated April 26^th, where he listed all of his concerns, things that needed to be addressed. We requested a copy of correspondence or a plan of how they are going to meet the County Surveyor's concerns that had been addressed. I received a letter on May 23^rd from Mr. Atkinson simply saying that everything had been addressed, and everybody should be happy, and a bunch of money had been spent. However, it was not really responsive to my letter. I didn't get a detailed plan of what they were going to do. Now again, that date is important, May 23^rd and it goes back to one question that I think Mr. Mourdock asked. This analysis done by Mr. Jeffers which he has dated 5/21/02 indicates that nothing had been done in the pink area, and this was marginally sufficient in the orange, and in the yellow area it was temporarily sufficient. What you will hear this evening is the fact that the problem has not been fully addressed, and these folks who have lived out there know how water drains, know the problems, experienced the flooding, told this body in October of 2000 that would be a problem and the developer's engineers acknowledged that, and said where they have to hold water back and handle it they will put up berms or some type of structure to that extent. That needs to be done, and all we ask them to do is continue that theme consistent with the representations they made two years ago. With that, I am going, in my comments to kind of give you an overview, this is my only copy, but I will leave this up here for you to refer to as these folks talk with you. Like I said Mr. Rueger is here, the Hass's are here, and some folks from Green River Estates on the other side and I will be more than happy to answer any questions you have of me right now.

President Mosby: Any questions?

Bill Jeffers: Before we go on, if that's sufficient that is fine, but Morley and Associates has a larger map that shows an aerial photograph, don't you? Of the same area if you need to refer to that.

Les Shively: That's fine. I just want to make sure I get that back because I actually borrowed that from Dan over here.

President Mosby: Mr. Hass do you want to go next?

Daniel Hass: My name is Daniel Hass, and I live at 8900 North Green River Road. This is the first time that I have seen this report, June 20^th, and when you went through the area over there, and one thing I can say, when I received this paper on May 21^st, the orange part here that you have hasn't been touched since May 21^st. From the time that you were out there on May 21^st to this June part, that part that was marginal then has not yet been touched today. So, if it was marginal then, I don't understand how it is corrected now. 

Commissioner Mourdock: Let me field that one for Bill, because I want to be sure that I understand it, but I don't think that is what Bill is saying. The date of this entire document was -

Daniel Hass: June 20^th.

Commissioner Mourdock: Was June 20^th, but you also heard him refer to the report that was here from June 13^th , which is the Soil and Water Conservation, and it is indicated as marginal there. So, it was marginal on June 13^th , which was after May 21^st.

Daniel Hass: It still hasn't been touched today.

Commissioner Mourdock: Okay.

Commissioner Fanello: I think we are all in agreement with that.

Commissioner Mourdock: Yeah, okay.

Daniel Hass: I mean, when I read this it said it was sufficient on the very front of his comments.

Commissioner Mourdock: Well, then he, well I don't know where you see the word sufficient in that, but he goes on to speak about Section One, and then speaks about Section Two, and I think that all of the issues here are effectively Section Two. Bill, is that correct?

Daniel Hass: We are still on Section One, and that's why-

Bill Jeffers: The orange area that Mr. Hass is pointing to is what I am calling Section Two. It's not part of the recorded subdivision. It is a temporary diversion channel with a berm behind it and silt fencing, all of which is considered temporary by anyone that is familiar with construction and development. Those are temporary features in an area that's not currently under development, and is not a part of a recorded plat, and the report here from Soil and Water Conservation District is a report that is the result of an inspection by Lynn Miller, who is Indiana's Soil and Water Conservation, Department of Indiana Department of Natural Resources. Mike Wathen, Norma Duckworth, both from SWCD, Bill Jeffers and Tom Nix, both of whom are board members of SWCD, and it says marginally. Appropriate perimeter sediment control measures have been implemented and are marginal.
 

Daniel Hass: So, the west side of the street that he has in here is Section One or Section Two?

Bill Jeffers: The streets are in Section One. The orange area that you pointed out adjacent to your property with the berm and the temporary ditch is what I am calling Section Two, undeveloped, unrecorded area.

Daniel Hass: The berm stops right around this street.

Bill Jeffers: I saw what I saw.

Daniel Hass: The real reason why we're here is the promises that we were made two years ago. What we have a problem with is that we were told that they would be installed. The only reason they were installed is after contacting Bill and having Bill go back. Nothing was installed in advance. All of the damage to our properties, Green River Road Estates III property, the Hass property, the Rueger property, all of the damage was done before, any soil or water conservation measurers were put up. Now, I couldn't be the minutes from last months's meeting, which I did have Bill make a comment on that, and he supported my thought with that, and that is the only reason that we are still here. Scott wanted to be a good neighbor, and he was going to install all of this stuff, but he wouldn't install it until he was forced to install it. Thank you.

President Mosby: Any questions of Mr. Hass? Sir, do you want to speak? Then I will take you next.

Reginald Gibson: Yes, I am Reginald Gibson, 4110 Wethersfield Drive directly, property directly south, I think, of the development Section Two, the under developed part. Our concern, of course, is, I have some pictures to show you the results of the flood before. The water is about 8" deep. I was taking them from the steps/stoops of my back, back door looking out over the field there, and you can see the background there. Of course, the erosion control was not in place that you mentioned earlier, and that was my concern all along and didn't know who to contact at the time but of course they had the big rains there and all the big mud and the silt just came through and it uprooted our whole, our brick patio, uprooted that and it subsequently has partially collapsed and cracked as a result of all that water pressure underneath there and being there for that long period of time. We have been in the area since 1998 and of course it hasn't rained since then and what water was coming through or over that particular property at the time was clear water you know coming off of the farm land because it only had plants and other things there to check the erosion or whatever it was, it was minimal but there was water coming through but the ditch that we had did contain it at the time up until this last time when they cleared all of the land off of there and just left the soil bare. It just came down in torrents, and you could tell where the brunt of the water was coming onto our particular property is where it mainly came through and mixed with the clear water that was coming in off of other people's property there. So you can see the difference from where it was originating from. I just want to mention the fact that it did cause some damage, which we have not looked into as far as repairing is concerned, but we are going to have to do something. I just wanted to make my point.

Commissioner Mourdock: Did I hear you say, Mr. Gibson, that you have lived there two years.

Reginald Gibson: '98.

Commissioner Mourdock: Four years.

Reginald Gibson: Four years.

Commissioner Mourdock: And did I hear you say that it had flooded before?

Reginald Gibson: No, it had not flooded before. We never had water. Any rains that we have had since we moved here were within that particular ditch that is on our side, I guess if you want to call it that. There was some concerns of previous neighbors had about the grading of the ditch, and I think maybe the Surveyor came out and put some stakes out there and us and the Cobourns next door to us and a couple of houses down followed the stakes that the surveyors put out and leveled our ditch accordingly, and apparently it met satisfaction of the surveyors. We never heard any more about it, but that was a year before, and then they scraped all of the soil off, vegetation off, and then let them lay fowl, and that is when the rains came.

President Mosby: Any questions? Thank you very much, sir.

Dave Rueger: Hello, my name is Dave Rueger. I own the property at 8800 North Green River Road. Folks, we can really simplify this thing. In the first meeting that I came to, Drainage Board meeting, we were assured by the developer and by the engineer that we would not have these problems. Mr. Mourdock, you were present, we expressed our, we knew that water come off that hill like hell. We were concerned about it then. We're concerned about it now. All we are asking is simply for the developer to keep the excess water running off of his development onto our ground. The last meeting that I was here, I think, Mr. Mourdock you were absent. I had the Indiana State Forester come look at approximately 10 to 15 acres of woods that I have. He said that it would take 5 to 10 years to assess if there is permanent damage from flooding of that woods. But, what he did tell me is if we don't stop it now, I can kiss that woods goodbye, and it is one of the few remaining woods and we value it highly. So, all we are really asking folks is not a big bunch of discussion, we are asking what they promised us they'd do from the very first thing. Thank you.

President Mosby: Thank you. Any questions? Mr. Railey, Mr. Atkinson, who wants to speak.

Jerry Atkinson: My name is Jerry Atkinson, and I am representing the developer tonight. Let me apologize first to the difficulty of communication. Since this first came to your meeting or attention in a meeting I believe back in April. As I understand the circumstances, on April 21^st there was a heavy deluge of a storm that flooded the area. On the 25^th of April, Mr. Jeffers sent out a letter to Scott Railey. On the 29^th of April that was received by Jim Morley, the engineer for Mr. Railey, and on the 3^rd of May, Mr. Railey became ill with a debilitating (I can't say the word) disease called labrynthitis. He was forced to stop working for a period of three to four weeks. He was with his parents and they provided care for him. He was unable to function on any effective basis. He turned the matter of dealing with the drainage issue over to the Morley firm, and they interacted with workmen who, in fact, have now put a perimeter around the entire area. As you see in the photographs that were taken today there is old growth of grass. He started immediately by virtue of giving the direction to go forward and help solve the problem. There are two sections of this land. One is a section that is being currently developed. It is platted, as Mr. Jeffers has indicated, pretty well permanently bermed, and permanently established with regards to drainage. The second area is an area that the developer is not yet developing. The water has for a long time come down the hill. We don't disagree with that. Mr. Morley did say that the development would interdict the water, and we don't disagree with that. Mr. Railey has, in fact, done what he said he would do. He didn't get it done as quickly as he would have liked it done. He did not respond in writing to request a schedule from Mr. Jeffers because it simply wasn't within his ability to do at that time. The work of putting a temporary perimeter of his property has been done. It is in place, and if I could pass some photographs around. The very first photograph is a photograph of the orange area as it exists today with an existing silt fence, with an existing trench with dirt piled up, with existing grass that has been growing for several weeks.

Commissioner Mourdock: Let me define today, Mr. Atkinson. Has it been since June13th?

(Inaudible)

Commissioner Mourdock: No, that wasn't my question for the photographs. I want to be sure. You said the work has been done, all of this has been done. Has any of this been done since June13th? Which would have been a week ago.

Jerry Atkinson: Yes, what has been done, the rocks catch, sediment in the drainage ditch has been directed. We met with Mr. Jeffers. As he pointed out they needed to be reshaped.

Bill Jeffers: All of that seeding and straw mulching that you see has been done since, most of it has been since the 13^th. Some of it was done prior to the 13^th. Basically it has been beefed up since the 13^th and the silt basin that Mr. Mosby is looking at was constructed approximately during the middle of June.

Commissioner Mourdock: Bill, you were out there on the 20^th?

Bill Jeffers: Yes, sir, I was out there on the 13^th and the 20^th. 
 

Commissioner Mourdock: In your opinion, do the things that were lacking in the report that Soil and Water did on the 13^th, have they been fully mitigated? Or maybe that is not the right word. Have the fixes required under the June 13^th document been put into place as of your visit on the 20^th? 

Bill Jeffers: Number five, the storm drain inlets being adequately protected. They show those as unsatisfactory. I believe those are the street inlets and I think they are referring to sand bags. I can't tell you truthfully at this time if those sand bags have been put around the inlets. Because I generally look at ditches and so forth.

Commissioner Mourdock: How about number two?

Bill Jeffers: Number two. Appropriate perimeters, sediment measures have been implemented. They were assessed on the 13^th as marginal. Basically those are, that is silt fencing and that is always marginal. In my estimation silt fencing has to be constantly monitored because even a deer or a dog can knock silt fencing out of place. So even the people that tell you have to have silt fencing, the Department of Natural Resources will tell you that it is only 30% effective because of this marginal nature.

Commissioner Mourdock: Has the area in orange on Mr. Shively's map, has that been worked on to a state that would otherwise allow it to have the water pass through there where apparently it was previously not doing that?

Bill Jeffers: The area that you show in orange there along the north line of the Hass property adjacent with Section Two is one reason why it is called marginal. That is a natural surface watercourse where historically water has passed from the McCutchan farm onto Mr. Hass's property, and what we are trying to do is reroute water so that it doesn't take its natural course at that point, and Mr. Wathen and I both say it is marginal, because every time it rains, like it is doing right now, he will have to go out there tomorrow, and if any erosion has occurred uphill and deposited enough silt into what Mr. Railey had done that I say was sufficient yesterday could be insufficient tomorrow, because of the amount of silt that fence has trapped. If that swale and silt fence has trapped enough sediment, it's got to be reset. So, it is always marginal, especially in a place like that, and he realizes that. The Department of Natural Resources realizes that, and I think that we all have to realize this is something that has to be monitored after every significant rainfall.

Commissioner Mourdock: Okay.

B.J. Farrell: Can I make a tape change, please?

(Tape change)

Commissioner Mourdock: Let's cut to the chase here, and sorry to disrupt an attorney, but, Mr. Atkinson, can I call Jim Morley? Or whoever from your firm, Jim, to talk about the orange line on the map? Thank you. The comment has been made and you have heard it said here about the representations that were done in October of 2000. I do recall those to some degree. What is it going to take to get that system to work? Is it at that point, do you think, now? And what is going to be done to make it work?

Jim Morley: Well, that is the location of the natural flow of the water coming that way. We had not intended that they would construct all of the, we match, we match development, the portion of the development with all of the berms and the diversion structures with that portion of development. Sometimes future phases never, ever get recorded. Now, in this particular instance we would not normally have expected any sort of berms or erosion control or anything else out in the area of the farm field. In fact, he could have went ahead and farmed the field, is what Bill calls Section Two. You know that could have been farm ground and nothing would have normally happened. Now, what did happen is that across that field, Mr. Railey installed a sanitary sewer force main. There is a trench across it and they disturbed it. Also the contractor in clearing trees, moved trees and root wads out into that area. We did not, it would have been sufficient from a standpoint of what he was doing to simply mulch and seed the disturbed sanitary sewer area as quickly as he had gotten, as he disturbed the area, re-vegetated it and he would have been fine. There was no reason for him to go out and build a berm in that future section until he got ready to do that because he would not be increasing any flow from houses and streets and any other development. So the flow of water coming that direction is exactly the same. Nothing changed the flow of water but what he did do is that he went out and disturbed the area which would not change the flow of water but it would change the amount of sediment that was impacted on that. So, he proceeded, I guess, first of all without our suggestion of continuing across that area with berm and silt fence and then John Kipling who is with us here tonight went out and made some inspection and we had Scott come into the office and said, look as long as, since you've disturbed this area, and knowing that there is a problem down in Green River Estates with the grades on that ditch, which you heard about earlier, and the problems, by the way, still exist today on that ditch in Green River Estates, we ask Railey why don't you go ahead and do this anyway? Do the diversion ditch, complete the diversion ditch on around and he went ahead and did it. So, you know, I, you know I think, what you have heard here tonight is moving things, you know he starts work over here and you know apparently the neighbor thinks that okay everything is finished. It doesn't mean that everything is finished.

Commissioner Mourdock: I understand. But, I also understand the neighbors position and they may not recognize Phase One and Phase Two, they just recognize water in their back yard.
 

Jim Morley: Sure.

Commissioner Mourdock: It is not a bad thing to recognize. I would also recognize that they did hear the statement made that all of these things were going to be put in place, and I understand what you are saying in that they would be done in phases, but I also know what they heard which is that they are going to be put in place and, obviously, they weren't. All that being said, is it your engineered opinion that the structure that is now in place along that orange line is going to prevent any more occurrence of what has already happened to the Hass's, Rueger's and to Mr. Gibson?

Jim Morley: I can't, John, can you, did you address the height of that section along there with anything? I can't answer that Mr. Mourdock. Perhaps John can. Do you have a picture of it John?

John Kipling: Yes. This is one view of the area. This is another view from another direction.

Bill Jeffers: That's John Kipling from Morley and Associates.

John Kipling: The attempt to put in our typical swale, one foot deep with a one foot berm. Basically he removed the material from where this ditch is and placed it here to create the berm and then installed the silt fence, and, of course, you can also see it's grassed, 50% to 70% grass. So an attempt has been made to put in a typical swale section that we promised.

Jim Morley: Let me show them on this.

John Kipling: Oh, yeah. This is the orange area that you are talking about. It is shown here as Phase One. The area in question, this is the orange area, and then,

I guess, this is what he's got highlighted in yellow. But the view of the two photos are right in here looking at this, and this here is a photo looking that way, and just to give you reference, this is Green River Estates right here. You are kind of looking down this way.

Commissioner Mourdock: Where is Mr. Gibson at?

John Kipling: Gibson?

Bill Jeffers: That is on the west side of the power easement. First house on the west side of the power easement.

Commissioner Mourdock: Is that Wethersfield Drive?
 

John Kipling: Right. The statement was made that they knew that water was coming down the hill. I can't remember the exact statement. We know that water is coming down through here. It has been farm ground and it's now being seeded and we've got temporary structures in and until he starts to develop this area we can't get a permanent fix on where everything is going to be. He started to do something and once Lynch Road is finalized we can come in here and finish the work as shown per planning for that drainage for that section. But, we did have a typical detail of one foot ditch with a one foot berm.

Commissioner Mourdock: Is this line fairly accurate?

John Kipling: Yes.

Commissioner Mourdock: So, you've cleared, I presume, through this area?

John Kipling: No, the other promise was not to do any tree clearing. So, we moved our easements for drainage are up here in the street line and you've some utilities that are scurbing drainage also.

Reginald Gibson: Are there any berms going down through there?

John Kipling: Yes, let me see if I have a photo here.

Commissioner Mourdock: Let me jump to where I think Mr. Gibson is going with his question.

John Kipling: This is a silt basin with a ten foot wide ditch, basically.

President Mosby: How deep?

John Kipling: It is about one foot, and you've got a one foot high berm here, and then you have a silt fence that's behind it.

Reginald Gibson: And this is going, all of the drainage goes down here?

John Kipling: This is the other view looking this way. 

Reginald Gibson: Where are those rocks?

John Kipling: These are right in this area right here and these are rock check dams and that's the discharge point.

Unidentified: Okay, so that is where the water hits the berms again?

John Kipling: Right here.

Unidentified: To the same ditch?

John Kipling: Yes. Well, it's going not to the ditch that's along your, the north property line.

Unidentified: Does that restrict that ditch at all?

John Kipling: Which ditch?

Unidentified: The flow of that water, does it restrict the ditch?

John Kipling: Yes, it restricts the velocity, not your ditch. 

Unidentified: Does it impede the flow?

(Inaudible)

John Kipling: All we are trying to do is stop the water from getting to your all's ditch.

President Mosby: We are going to have to get everybody back on the mike though because we are not going to pick up parts of this.

Unidentified: I don't have to be on the mike here. Question for Mr. Morley. I want to ask you -

Commissioner Mourdock: State your name please.

Steve Batthauer: Steve Batthauer, 4224 Wethersfield Drive. One of the questions that I have had. You are the expert at this. From this north, south ditch right here, you've got a lot of water, if I understand it, and this is just watching this when you have a huge down pour. You have got a lot of velocity of water going down this ditch, okay? It just appears to me that not only do you have the problem of water coming off of the field this way, you have a lot of water coming down this way, and to me you can see it, the water, there is so much velocity here that it almost acts as a dam and what it does is that it backs up the water in this ditch? Now, is that possible? I mean I am seeing it.

Jim Morley: No, sir.

Steve Batthauer: Are the dynamics possible?

Jim Morley: No, sir. When Green River Estates was built, and I don't know if John has them with us here tonight, but the original drainage swale went south across Green River Estates. The developer of Green River Estates dug a diversion ditch along the north line of Green River Estates in an attempt to divert the flow to the west to the main ditch. Whether or not, yeah, here's, why don't you show them that. Here is the original 1964 contours before there was a Green River Estates, and you can see from the flow arrows how the water flowed straight south across that subdivision. That diversion ditch may never have been constructed at a proper grade to the west. 

Steve Batthauer: You said it never was constructed?

Jim Morley: It may have never been constructed right, but I don't have the personal information to know that for sure. There have also been various landscaping and lawn improvements in the back yards of homes along that area, and there were obstructions, and we took shots along the ditch. It has a very inadequate slope, the west end of the ditch needs to be deepened by a minimum of one foot in order to make that ditch slope properly to the west, and that was the reason early on when we were presenting the original information on this subdivision we said that we did no plan when we developed this portion to use that ditch at all because we recognized its inadequacy. It is not right now, and the Green River Estates ditch is not right now, and hasn't been for a long time. I think that Bill's office may have set some stakes, and I don't know if you guys hand dug it or how you worked on it, but in all honesty you need quite a bit more work to get good drainage there, and that's the reason. Those photographs of the flooding that they have around the houses, that is due to that ditch, and we had a profile along that ditch, and it only takes a drop when it gets there to the extreme west end right there approximately where that other ditch ties into it at that location.

Steve Batthauer: It takes a what route?

Jim Morley: It only drops good at the extreme west end of the ditch.

Steve Batthauer: Where one end intersects the other?

Jim Morley: The slope on that ditch needs to be rebuilt all along there. All the way back to, it needs to be rebuilt all of the way back to the Roll property. All the way back to the Roll property and if it is graded back to the Roll property then that will solve the water ponding issue. Now, there are some encroachments in the easement, it's going to be somewhat difficult with sewers in there and so. It is not an easy job. It's a kind of a neighbor thing.

Steve Batthauer: That's just it. Who do we call? Who do we call to get the proper perimeters set up?

Jim Morley: It is a recorded drainage easement. It is a recorded drainage easement. Therefore, it would appear to me, and I would assume that the County Surveyor could assist you in that, and it is a drainage easement in your subdivision. You have a right to make sure that the drainage easement is maintained. 

Steve Batthauer: So what, what I'm saying, I'm not being defensive, what I am asking is that you're saying that it's inadequate now and it has been inadequate. So, we do we contact a firm like yours to figure out what the proper slope is? Because almost what you are telling me now is-

Jim Morley: We could do it, maybe even Bill could do it. Bill has done so much preliminary work on it, but he may not be willing to go out.

Jeremiah Roll: My name is Jeremiah Roll, I actually have the property that you were speaking to earlier. I filed a petition in 2000 with the Drainage Board.

Commissioner Fanello: We need him to.

Commissioner Mourdock: State your name please, and stay close to the mike. 

Commissioner Fanello: Or you can take it with you.

Jeremiah Roll: No, that's fine. It seems to me that we went through this, the surveyors were out and surveyed the properties out back there. I had to put fill in behind my property in order to bring it up to a level because it was pulling behind my property and it wasn't just a heavy rain, it was just normal rains and it would fill up and would pull back there. I moved in, in 1996 and that is when I started noticing the problem, the next spring in 1997 and it was every spring after that. So, I petitioned because I thought something was wrong. The ditch wasn't right and the surveyors came out and shot it and I was required to basically. I put some fill in and everybody else dug out according to what the stakes were set and shot, they lined it and shot it. So, I am hearing Morley, Jim say that it is not right. Were you not the same firm that shot that originally?

Jim Morley: No, no. It is not enough and it needs more.

Jeremiah Roll: Did you have surveyors come out before you started that construction project? It apparently wasn't adequate? I guess I am confused as why we proceeded without implementing?

Jim Morley: No, the ditch, when we took shots on it originally, we found that ditch was not adequate. We never intended to use that ditch.

Jeremiah Roll: Okay.

Commissioner Mourdock: Let me interrupt here for a question here. The ditch that is running east, west along the north side of Green River Estates is the one that was inadequate and therefore you never planned on using it, correct? 

Jim Morley: Right, that's right.

Commissioner Mourdock: And what you were intending to do as part of Windham Hill future whatever that means, you were basically going to put in a separate ditch parallel to it on the north side of the line. 

Jim Morley: Right.

Commissioner Mourdock: If you put that ditch in and it intercepts the water does that not logically seem to take the burden off the ditch that's presently there not doing it's job because most of the watershed is on the north side of that line.

Jim Morley: There are some grade shots that we shot along there that you can see, we will be diverting a lot of the water that flows into the ditch. I believe that it will create a reduction in the flooding and the ditch is so poorly graded that there will be sections of the ditch where the water is just going to stand. If you will follow along the highlighted spots that I have shot, that we show along there, you will see points that are six inches downstream, that are six inches higher than points upstream.

Commissioner Mourdock: Okay, time out for a moment. You are saying that there are spots where the water will stand in the ditch. And I said, is that true now? And I think, sir, you said it is true.

Jeremiah Roll: Well, it stood after this August, April rain, it stood sometime in the back.

Commissioner Mourdock: Okay, that being the case, though, I want to keep us on focus here as much as I can. What happens south of that property line and with that ditch is somewhat beyond the scope of what we are talking about here, not that it isn't a legitimate issue but from the Drainage Board point of view, the drainage that we need to deal with is the what is going to be intercepted on the north side of that line. North side?

Unidentified: Since October of last year I have been watching silt my property is 4242, I watched the silt and water and I have been looking at this because I had the drainage problem, I filed the petition, I watched water flow through this woods and carry silt into this ditch.

Commissioner Mourdock: And I agree and that is what we are trying to deal with because it is not in this case, it's not this ditch that we are talking about, it's the ditch up here that is the orange line.

Unidentified: You are talking about this line here?

Commissioner Mourdock: No, at the moment I am talking about the line up here. What you are getting is drainage here, isn't flowing this way, it's coming from up here and through the woods.

Steve Batthauer: And it is coming through this. 
 

Commissioner Mourdock: And that is what Mr. Morley is saying. They are going to put a separate ditch, and already have, through here that should be intercepting the flow that is coming through what he is deeming and you all are saying is inadequate here.

Steve Batthauer: I will not disagree. Let's say our ditch over here and it's not adequate but the point I want to ask and Mr. Morley and I am trying to get to the root of the problem, you say go to the county and get the specs from the county and cut the ditch to the county specs, but it sounds like you are saying that the county specs aren't even right.

Jim Morley: I don't know that the county has prepared any specs for you, and in a way I don't know if it is really appropriate for you to expect the county to do that.

Steve Batthauer: I am not expecting the county to do anything. All I am expecting, I just need the specs. I want the specifications as to what the ditch is supposed to be.

Bill Jeffers: I believe in the minutes of last month's meeting, said that plan, I said it last month and I am going to say it again today right now, the plan for Green River Estates is on file in Andy Easely's Engineering office , 1133 Mill Road, 424-2480, the plan I said that last month and now you have the address and phone number again.

Commissioner Mourdock: Did Mr. Easley do the original design work on that? Is that what you are saying?

Bill Jeffers: Yes, he did and I have sent copies of portions of that plan to people who are asking the question here tonight. Did you receive a cross section that shows?

Steve Batthauer: Yes.

Bill Jeffers: Those were excerpted from Mr. Easley's plan for Green River Estates.

Steve Batthauer: Do you think that's adequate?

Bill Jeffers: The ditch that's there today is not adequate. It is not built to those specifications.

Unidentified: I agree with that.

President Mosby: Okay, we have to get one person back at the mike here so we can get some, come to a solution.

Jim Morley: I will stay up here but I think I was finished.

President Mosby: I guess the one and only question that I have and I am confused. Is everything in place? I mean everything that we are talking about. The orange line, the green line, is everything in place tonight as it is raining?

Bill Jeffers: Yes, sir, everything is in place as witnessed by the photographs and the report that I submitted and other testimony here tonight.

President Mosby: And the gentleman that is here at 4242 where the water is coming I guess through the woods, I guess he would be protected by the orange line?

Bill Jeffers: Yes, sir. The watercourse would extend from that orange line straight south through the woods to Mr. Roll's property.

Jim Morley: He will still get the water off his back yard, but he shouldn't get as much as he would have gotten before the diversion.

Commissioner Mourdock: But, let's pick up on Bill's point earlier that what we are calling here the orange line is an artificial structure that is going to require over a long period of time a lot of maintenance to make sure the grade is maintained, so that water is taken from its original course westward-

Bill Jeffers: And southward to the basin.

Commissioner Mourdock: And southward.

Bill Jeffers: That is correct and after what we are witnessing outside right now, I would say let's all pray that it dries up this week so that he can get out there and dress it up again for the next storm.

Commissioner Fanello: So, is this a temporary solution then?

Bill Jeffers: Yes, ma'am.

Commissioner Fanello: Okay.

Jim Morley: All erosion control measures are temporary and they are part of the Rule Five commitment. That you continue and if any part fails you work on that and you know you fix it, you can't refer to a plan and say, well I did whatever the plan work and if it didn't work, it didn't work. You are never exempt from finishing the job.

Commissioner Mourdock: I would just say, Catherine, it's permanent, it is not temporary, it is permanent but it requires regular maintenance.

Commissioner Fanello: That is what I was kind of thinking.

Bill Jeffers: Continual, regular maintenance.

Commissioner Mourdock: And the area that is on Mr. Shively's map here that is pink where uncontrolled ponding area. That structure has now been put in place as well, running east, west.

Jim Morley: There will be with the Phase Two and actual basin, or pond built there. Today, there is a swale created across it with some control structures as it goes to the west. It is in place today.

Commissioner Mourdock: And that swale was sized for the watershed that was out there?

Jim Morley: That is the most recent and the-

Bill Jeffers: There is also a berm south of and parallel to the swale that seals off the three pink shaded cuts that I showed. One which went directly into Mr. Gibson's back yard. Those have been sealed off, those are cuts that were made by the farmer prior to Mr. Railey's acquisition to drain his field into Green River Estates. Those farm cuts have been sealed off by a berm as well.

Commissioner Mourdock: And does the farmer understand that is not to be cut through again.

Bill Jeffers: There is no farmer now, he's gone.

President Mosby: I have a question. You say this is temporary but permanent and that is it going to require maintenance. Ongoing for, let's just say-

Bill Jeffers: Until the permanent swales and ditches are cut in with the final drainage plan for Section Two which is not.

President Mosby: Okay, I guess that was my question because that is what I was getting to. If Section Two was done would that still be there just like it is today?

Bill Jeffers: It would be improved. There would be a lake where the sediment basin is and those temporary channels that skirt the woods would be up against the property line and the woods would be cleared, the hedge row would be cleared and those structures would be put permanently in place rather than skirting the woods and vegetated area because right now, the adjacent property owners enjoy a screening of woods and vegetation that would later be removed.

President Mosby: I guess it is impossible for him to put this in place now?

Bill Jeffers: Personally, it's economically unfeasible. I wouldn't do it and I don't think anybody sitting here today would spend their money on an undeveloping piece of ground when they have a development to care to.

Jim Morley: Well, remember there are always the temporary things. The silt fence, the silt fence is temporary, it is never permanent. You know it is one of those things that you put up. I mean that's part of the, that is why we use the terminology temporary, it just means that it is not going to be there forever. But, it is the right thing to do the job at any certain given time but requires constant maintenance.

Bill Jeffers: He is operating under Rule Five, which is an erosion control requirement by the state. I really don't want to get into a situation where we are asking developers to go into an unplatted area and make permanent improvements that may later be completely torn out when he changes his marketing layout. I just don't think, I am not going there.

President Mosby: I am not going there either as long as they keep the water out of these peoples yards.

Bill Jeffers: Exactly, exactly as long as the temporary measures suffice.

President Mosby: But, if they don't keep the water out of their yard we're going to go there.

Jim Morley: I think that Mr. Railey has gone ahead and he has moved ahead and done diversions that aren't even on the sections that he is working yet. So, that should, you know, we will see in the morning and we listen to the rain fall outside, we will find out if all of the swales work properly and if they don't we will set some grade stakes for him to rework the areas.

Commissioner Mourdock: But, it is your opinion that the things that have been done out there to date, and if we were standing in Mr. Gibson's back yard right now, we wouldn't be looking at a backyard full of muddy water and that the other things.

Jim Morley: We should have our diversion all the way around that takes most of the flow away. Mr. Gibson will still receive water from portions of the land outside of the project, you know, and his back yard, so it may be ponded in his backyard.

Commissioner Mourdock: Outside of the project meaning?

Jim Morley: The woods that drain over onto there, all of that area drains that way. But, we should have intercepted most of the water and taken it right around and we will find out when the rains end tomorrow.

President Mosby: And if we haven't?

Jim Morley: We'll go back and check. Then we will set new grade stakes and he'll re-cut the ditch. Right? Right.

President Mosby: Okay, that is what I want to hear on the record.

Jim Morley: Yes, sir absolutely. Absolutely.

President Mosby: Comment?

Unidentified: You know there is really a simple solution to this damn thing. If he would have went up to the corner, the high corner, which would be on the map there, and built a berm say fifty yards down the, each side of the property, all of this water could have been deflected from coming onto Hass and Rueger and ending up in these peoples back yard. I don't understand, Scott, or Mr. Railey, why you would go ahead and develop the thing without taking precautionary moves to start with? I am not an engineer and I'm not a lawyer but it looks to me like there has always been a simple solution to this. If the berm would have been built to make a ninety degree up at the corner of the property the water would have to go two different directions. Thank you.

Commissioner Mourdock: For the record that was Mr. Rueger.

Jerry Atkinson: The photographs show that the berm he is referring to is there now.

Dave Rueger: It is not adequate.

Unidentified: No, it's not adequate.

Daniel Hass: My name is Daniel Hass and I want to use their pictures for a second. The orange part that we are talking about is right here and you can see these electric boxes and his berm stops right as the electric boxes and that is someone's back yard.

Commissioner Mourdock: Wait a minute, I am confused. You are saying that there are electric boxes up here at this corner?

Daniel Hass: No, I am saying electric boxes right here on this corner. 

Commissioner Mourdock: Okay.

Daniel Hass: Here are the electric boxes. Here is the sufficient berm. That is the way that would be. The berm stops right here. This is where we will have the water problem, this is where we have lost two big oaks.

Commissioner Mourdock: This is why I have asked the question five times now. As to the dates as to how all of this comes together. They're telling, wait a minute, let me, let me make my point. They are saying all of these things are in place, so that the way it's raining out there right now, Mr. Morley's expert engineering opinion that every thing out here is going to work, and you are telling me these things are not in place.

Daniel Hass: The orange line is right here, and as you can see where he said was sufficient stops right here, and that is what we've got left. All we are talking about is making it over your silt fence and that is why it was marginal. This is his picture.

Commissioner Mourdock: And you are Mr. Hass, right?

Daniel Hass: Yes, I am.

President Mosby: And do you disagree with Mr. Morley?

Jim Morley: It will be inspected in the morning. If there is any part of the system that has failed, Mr. Railey has just given his assurance that it would be fixed.

Commissioner Mourdock: Mr. Atkinson?

Jerry Atkinson: The photographs, if I may, shows that the berm does not stop.

President Mosby: Go ahead while he is looking.

Mind Hass: May I go ahead. Okay, Mind Hass, I live at 8900 North Green River Road. We have heard from the very start of this project, Scott Railey assured us that there would be absolutely no damage to our property. All along again he is saying this. Who is going to make him accountable? He has not been accountable yet. Dad's property, five or six acres, was under water, absolutely flooded. He is a realtor and he knows that you can't sell swamp land. Let me point out that right now we are still getting drainage right now. Here is where my house is. I walked back there to do, there is a flow, a ditch that is etched in out of nowhere, that was never there before, guys, never there before, come here and I will show you. It is wet now. It inches right through here, and if you want you can come to my house in the morning and I will show you. It's wet, they are saying oh, they stopped it, they stopped it, they stopped it but I am tired of all of this, oh I will fix it, I will fix it, yeah it's right. Where is my house from here, right here.

Unidentified: This is your house?

Mind Hass: Okay, is this where the house is or where the lake is?

Unidentified: Wait a minute, I have a better photograph.

Commissioner Mourdock: That's a lake, here's a house.

Mind Hass: I am way up here in this corner. I am wet right now. How long has it been dry. I still have this little etched road. I mean I don't understand this, he keeps making these promises. Mr. Jeffers says that he is accountable, what he says to you guys and what he is saying to us, I'm sorry, it's been two different things. I don't understand this.

Commissioner Fanello: Okay, that's what I want to know. What is our possible solution and what is our course of action? Because these people need to have some kind of relief and if they are not happy what's going to make them happy? What kind of compromise can we come to here?

Commissioner Mourdock: Bill has been uncustomarily quiet tonight because I think he knows the (Inaudible). The recourse from what Ms. Hass just said is basically take it to the courts and let the courts decide. From the point of view of the Drainage Board, our jurisdiction in this thing and, Bill and Kevin, correct me if I am wrong, our jurisdiction in this thing is to make sure that the construction plans that were submitted are built. Again, I have asked the question a number of times, I have been told by the builders representative that the structures that are out there are in place as originally designed and as put in the original drainage plan. Is that correct, Bill?

Bill Jeffers: In Section One, the platted portion of the project.

Commissioner Mourdock: Okay and Section One stops before the drainage gets to the orange line, correct?

Bill Jeffers: That is correct. The orange line is the boundary between an undeveloped portion of the project and the Hass property north line.

Commissioner Mourdock: For the area for which no drainage plan has been approved they are still working under the auspices of Rule Five.

Bill Jeffers: There has been a preliminary drainage plan approved which was represented as being capable of being able of intercepting up to 60% of the water and conveying it to a lake that I am saying is in the approximate location of the sediment control basin that they have temporarily put in along the north line of Green River Estates. There is a preliminary plan as you know, preliminary plans are subject to modification as they come to us later as a final plan.

Commissioner Mourdock: But, as a preliminary plan was issued-

Bill Jeffers: A preliminary plan is reviewed for sufficiency as if it were implemented. If it were implemented it would be sufficient. If the preliminary plan was finalized and implemented it would be sufficient, and we approve it on that basis. Then we encourage phase development. The state encourages phase development, the United States EPA encourages phase development, everybody concerned with clean water standards and development practices encourages phase development to minimize the overall impact of development on off site properties. That is what he is doing he is in Phase One now.

Commissioner Mourdock: And what was permitted in the preliminary plan you are saying has been built to specs?

Bill Jeffers: What was shown in the final plan for Section One-

Commissioner Mourdock: I am talking about what you call Section Two.

Bill Jeffers: What was shown in the preliminary plan for Section Two has been approximated. It is a facsimile of what is shown on the preliminary plan for Section Two. However, it skirts the edge of the woods, in other words the woods that you can see on these aerial photographs is going to be removed all the way back to the Hass and Ruegers actual property line that has not been removed yet. So, his berm and diversion swale skirts that woods at this time. It is not finished in absolute final form that it will be finished in when he plats and develops Section Two.

B.J. Farrell: Excuse me, can I make a tape change, please?

(Tape Change)

Scott Railey: My name is Scott Railey and I would like to refer to these photos one more time and as far as the issue of me not being accountable, those ditches didn't happen by themselves, you can look at see that this has been placed. This goes down hill, there is higher ground behind it. This ditch continues, there is the corner of this transformer and there is the ditch that continues down into this large permanent ditch above the ditch is a mound of dirt and above that is the silt screen. Now if we get a rain that is going to go through that then we all need to get an ark instead of a house because during that last rain, in April, that we had, there were people killed during those rains in Illinois and there were severe rains and a lot of ground in this entire community that was under water and it was a very abnormal heavy rain. We went out there and began working on it right after that and that is why see the grass is there. It hasn't rained substantially in several weeks now so that grass didn't just start growing. We put a lot of effort into this and if there is something else, you can see the straw bales out there and we have been working on this for a long time. The comment made that I was not accountable is just, I am going to stand up for myself here. Maybe they don't want the subdivision there, that might be it, but that is a ditch there to intercept the water and a berm behind it and while they are talking about being permanent, is whenever it's made deep enough and wide enough to carry the water. When it is made permanent is going to sloped real nice and pretty to be the back of someone's yard but right now it will carry the water same as any other ditch and that water would have to come up five feet down in this area and that is the low area and that is where it is going to run and that ditch does continue and that berm does continue through there. We've done all of the things that Bill has said we've done, we didn't wait until the last minute to do it, you can see that entire field has grass in it and you know sometimes Mother Nature creates situations that a lot of people don't like. That's, I appreciate everyone's time.

Commissioner Mourdock: Bill, in your opinion is there anything that is out of spec currently with the Phase Two area with the preliminary plan?

Bill Jeffers: Yeah, I think everybody is missing something here?

President Mosby: Well, tell us.

Commissioner Fanello: Well then, please tell us.

Commissioner Mourdock: Well, please direct us.

Bill Jeffers: I have tried to explain this. In other words, what I am calling Phase Two, the only reason that it is even under consideration is because legally, the only reason that it is legally under consideration is because he disturbed some land in what I'm calling Phase Two. He disturbed it to put in a sewer main and to store some grubbed out trees and root balls, and he disturbed it in association with Section One which has an erosion control plan. So he falls under Rule Five. Because that dirt was disturbed in association with construction activities, over here in a permitted area, it comes under Rule Five. So, all he really had to do was put up silt fence to contain the silt from flowing off of there. He did not have to dig any of these diversionary channels. What happened was because of the seriousness of the flooding that occurred due to natural causes, supersaturated soil in association with heavy rain falls one after the next is a natural occurrence and that caused excessive run off that carried silt from the disturbed area onto the neighboring properties, and because of the seriousness of it, our office felt it would be appropriate to suggest to Mr. Railey that he go ahead and install something that mimicked the preliminary drainage plan for Section Two in such a way to intercept this estimated 60% of the water that will travel across that ground before he crossed onto neighboring properties, that he would capture it as represented by his design engineer two years ago. But, only in a temporary fashion. Because as he just pointed out, he will have to come back when he goes into that Section Two with a final plan he will have to in there as if he is building houses and streets and move all of this back right up against the property line, re-grade it and establish it in a condition that looks like a lawn not a cornfield and that is all that really is right now, a cornfield that is being grassed over. Like I say you can go out there and crop it right now but the farmer who was cropping last year doesn't want to touch it because of all of this. And can you blame him? In fact, 99.9% of all the silt that runs off into the streams into this state comes from farm ground. None of which has a silt fence around it. Here is a farm that has a silt fence around it and it was done because we suggested it. We felt it was appropriate because of the concern of this Drainage Board for the neighboring properties and because of the stated intent, long term intent, and the ability to intercept 60% of the water. We asked him, would you consider going ahead and doing that now on a temporary basis? And he has done that and I would like for anybody to point to another development or farm field that has this type of perimeter protection for neighboring properties. It ain't there.

Commissioner Fanello: So you are satisfied?

Bill Jeffers: Yeah, but tomorrow morning the first thing that I would do is go out and make sure that the silt fence along that orange area was adequate tonight and will be adequate again as soon as possible. Because it will be filled with silt. These are all temporary measures that are taken in accordance with the Indiana Handbook on Erosion Control, which is published by DNR, which says silt fence is only 30% effective. But, these are the directions that they give us to follow and it's all we got folks. I mean, it is what they give us and it's what we got. I mean, what, the next thing I guess would be a concrete wall. Let's just keep the water from taking it's natural course. Put up a concrete wall, I mean, that is the degree of my frustration at this point. But, that is not the intent of Mother Nature and there is no, I mean, we are going to get into some legal ground that you don't want, I'm telling you folks, you don't want to go there.

Les Shively: For the record again, my name is Les Shively. It seems to me that what Bill is saying is that the rest of the drainage plan involves Section Two does not have to go in until Section Two comes before you for final plans etc. and is ready to go. Until that time, Bill has recommended that they put in a system that mimics what the Section Two drainage plan would do. Is that a fair assessment?

Bill Jeffers: That is exactly correct Mr. Shively.

Les Shively: So, he thinks that has been accomplished but I also think that I am not going to put words in his mouth, he is not here to tell you tomorrow that he is going to see something different than he saw on the 20^th of June. Is that fair to say, Bill?

Bill Jeffers: I said it in my report. I said in report that I specifically pointed out to Mr. Railey and I will add that Mr. Atkinson was in our presence at the time that I pointed to the specific area marked in orange that this will be an ongoing problem area and it will have to be monitored, repaired and maintained over the entire period of time that it's got this temporary erosion control and diversionary channel. 

Les Shively: I don't know what kind of action this Board is going to take but I would ask that what part of whatever this Board decides to do this evening, this matter be continued for review next month. We have all spent a lot of time on this, we have Exhibit A outside to both Exhibit B tomorrow the inspection and I don't know whether the motion has been made but I would please ask that you continue your review of this matter for next month's meeting, so that we will have some fresh data to look at.

Commissioner Fanello: I think that is all we can do at this point. I mean, I really do, at this point.

President Mosby: And I agree.

Bill Jeffers: I don't want, we had this last month, we had it this month, and I would like to respectfully submit that next month we don't come in here beating dead horses.

Les Shively: And I think one thing-

Bill Jeffers: Can we say to the specific issues at hand? In other words there are issues down in Green River Estates that date back to 1986. There is a long record of a drainage problem along that ditch. I don't want to beat that dead horse next month.

Les Shively: What I would suggest to, so that we can save that horse, that what we might want to do also before next month, and if everybody can be cool, and do it in an appropriate time that and interested parties meet on site to discuss not the problem of Green River Estates, because I do agree with Mr. Jeffers that is a separate issue, and I am familiar with that issue with other representation, and he is correct in his assessment of that. I think it would behoove everyone, the interested parties in particular, the Hass interest, the Rueger interest, as well as the folks with Mr. Railey's development, that we meet on site with Mr. Jeffers and possibly Mr. Wathen or somebody from his office and everybody physically be there and look at it so that we can narrow the issues and come back here and report in a little more insightful way post rain storm tonight.

Commissioner Fanello: I think that is a very good idea and I think that is all we can do. Mr. Gibson?

(Inaudible - not at microphone)

Commissioner Fanello: Do we need a motion to that effect, to continue it over?

President Mosby: I would say we need a motion of some sort.

Commissioner Mourdock: I will move that we be prepared to continue this next month depending on the results and the effectiveness of the structures that have been put in place.

Commissioner Fanello: I will second.

Commissioner Mourdock: I do want to say as Bill was saying, this isn't about what the Green River Estates issue is on the south side of that line, it is a separate issue. But, I know and understand that most of the people are angry because the original representation that was made in October of 2000 was that these problems wouldn't be in place and that these problems wouldn't be in place. That these problems would be otherwise intercepted. They weren't hearing Phase One and weren't hearing Phase Two, they were hearing that water wouldn't run off of this project onto my property and I hope that the structures are in place today, be them final, be them temporary, be them intermittent, to meet that objective because I think that is why most of the people in this room are mad. I don't blame them.

President Mosby: I have a motion and a second, so ordered. We will see what the results of tonight rains brings. We will move forward to drainage plans, Wabash Plastics. Bill, do we have anything else that is going to require any legal? He has to get to Indianapolis yet tonight. 

Bill Jeffers: No.

President Mosby: Do you think we will be okay without legal, sir?

Bill Jeffers: That will be fine and have a safe trip, Kevin. I hope it is not raining as hard up there as it is down here.

Commissioner Fanello: Your pictures are right here.
 

Drainage Plans Wabash Plastic Warehouse Addition Modification @ 3711 Arrowwood Court. Lot 38 Arrowwood Sub Old Boonville Hwy Bridge over Boesche Ditch Cross Pointe Section E; Final Plan

Bill Jeffers: All of the plans before you tonight have been reviewed by the County Surveyor and are available on this table over here for viewing if necessary. Wabash Plastics is a site drainage plan for a warehouse expansion and the Surveyor recommends approval of the plan.

Commissioner Fanello: So moved.

Commissioner Mourdock: Second.

President Mosby: So ordered.

Bill Jeffers: 3711 Arrowwood Court is Lot 38 in Arrowwood Subdivision. The homeowner is wishing to pipe an open drain, the plan contains a great amount of detail intended to preserve the protective grain around the house and to address a very sensitive site and the Surveyor recommends approval with caution to the homeowner to observe every minute detail provided by his design engineer in this plan and recommends approval.

Commissioner Mourdock: Is that prelim or final, Bill?

Bill Jeffers: That's final.

Commissioner Mourdock: So moved on final.

Commissioner Fanello: Second.

President Mosby: So moved.

Bill Jeffers: Old Boonville Highway Bridge over Boesche Ditch is a replacement bridge over a regulated drain proposed by the County Engineer. The Surveyor recommends the County Engineer's bridge plan.

Commissioner Fanello: So moved.

Commissioner Mourdock: Second.

President Mosby: So ordered.

Bill Jeffers: Cross Pointe, Section E is a final plan for commercial subdivision. The Surveyor recommends approval of the final plan for Cross Pointe, Section E.

Commissioner Fanello: So moved on final.

Commissioner Mourdock: Second.

President Mosby: So ordered.
 

Old Business: Millay Petition

Bill Jeffers: I inadvertently scheduled Les Shively to speak about the Millay petition but his request for next month. 
 

Regulated Ditch Maintenance Claims

Bill Jeffers: On your desk are several claims submitted for payment for work completed in 2002 on various regulated drains, the required paperwork accompanies the claims, the work has been inspected by our office for completeness and the County Surveyor recommends approval of the claims.

Commissioner Mourdock: So moved.

Commissioner Fanello: Second.

President Mosby: So ordered.
 

Encroachment Agreements

Bill Jeffers: Next item is relaxation of the separation distance from a lake to a dwelling in Wolf Creek Subdivision.

Commissioner Mourdock: Which is Wolf Creek, Bill? That sounds familiar.

Bill Jeffers: Wolf Creek is located on Eickhoff Road on the west side, south of Hogue, north of the University. Okay, basically what's happened here is the developer of Wolf Creek enlarged his lake for water quality and beautification reasons which reduced the distance that separates the lake from the building pads for the homes. Our drainage ordinance requires a fifty foot separation. The developer is requesting the Drainage Board exercise his discretionary power given you in the Drainage Ordinance to reduced the required separation from fifty feet to twenty-five feet between the lake and the closest wall of a dwelling. The fifty foot requirement is in the Drainage Ordinance as an arbitrary separation distance. The requirement was put there basically recommended from a model ordinance back in 1994. Some Indiana communities have officially reduced the required separation distance to twenty-five feet in their local ordinances. Legal counsel for the developer, Mr. Atkinson, has prepared documents to be recorded in the Recorder's office and become a part of the chain of title for all of the effected lots in Wolf Creek sub. The document language is designed to indemnify the County for all liability for any loss or damage that may result from your action. Here is the indemnification agreement, it is modeled after one that the Board exercised several years ago in another subdivision where the exact same thing occurred and the Board reduced it to twenty-five feet, The surveyor recommends the Board to allow this request and give these documents to your legal counsel to find their sufficiency and they protect the county against all liability associated with this discretionary move.

Commissioner Mourdock: Do we need to act on this tonight?

Bill Jeffers: Yeah, I would like for you to, the County Surveyor recommends that you act on this by reducing the separation distance from fifty feet to twenty-five feet for Lots 2,3,4,5 of Wolf Creek Estates. Take that action but just make sure that the County Attorney looks at this before it is recorded. 

Commissioner Fanello: Can we make it pending his approval?

Bill Jeffers: Yes, ma'am.

Commissioner Fanello: I will so move to that effect.

Bill Jeffers: And.

President Mosby: Hold on.

Commissioner Mourdock: Mr. Atkinson rose to his feet, I don't know, are you involved in this one?

Jerry Atkinson: Yes, I am. I represent Haas Development, Developer, Inc. and we prepared the indemnification agreement, a private covenant that also burdens the lots so that the owners of the lots as well can not sue the County and are obligation to identify the County. I also have, for your counsel, a paragraph that we are inserting into the restrictions that also puts everybody on notice that the obligation on the indemnification does exist and it runs as a covenant to the title.

Commissioner Mourdock: Well, I, because Kevin left, I think Catherine quite appropriately made the motion that we pick this up pending his review. I would obviously want to go ahead and do that, so I will go ahead and second that motion.

President Mosby: So ordered.

Bill Jeffers: Along the same lines, James A. Peters and Albert Bromm, trustees of the Bromm children and Peters land trust agreement, etc., submitted this last month, you approved it based upon Mr. Winternheimer's review, he has reviewed it, found it sufficient as has the County Surveyor and I am just letting you know this is going to need recording and that has to do with a piece of property on Sonntag Ditch. We took the same action there as we were asking for at Wolf Creek, reducing a set back. 
 

Receipt of Petitions

Bill Jeffers: Richard E. Smith petition, all we need to do tonight is acknowledge the receipt of Mr. Smith's petition to remove an obstruction in a watercourse, initiate the site investigation by the County Surveyor and set a hearing date of August 26^th to receive the report and hear Mr. Smith and other people's statements to the Board so that you can make a finding and determination regarding this obstruction petition.

Commissioner Mourdock: I move acceptance of the petition and scheduling as requested.

Commissioner Fanello: Second.

President Mosby: So ordered.

B.J. Farrell: Bill?

Bill Jeffers: Is that okay with you then? I will be out to look at your sight in the next month and we will have a hearing on August 26, 2002 to hear your side and your neighbors side.

B.J. Farrell: When do I need to advertise this?

Bill Jeffers: Two weeks ahead of time. We will have to give you a list of affected property owners.

B.J. Farrell: Just advertise one time?

Bill Jeffers: You just send notices directly to the affected property owners. It doesn't have to appear in the paper.

(Inaudible)

Bill Jeffers: Mr. Smith had initially requested his neighbor, four years ago, to remove the obstruction, the neighbor has not yet removed the obstruction and he includes that letter with his petition. He has some pictures but those would more appropriately be shown at the hearing . Tonight we just need to acknowledge receipt of the petition along with the fact that Mr. Smith submitted his $100 filing fee check on June 11, 2002 at the Auditor's office and everything has been stamped received down there in the Auditor's office as well. You got your pictures back that you dropped outside, didn't you?

Richard. Smith: Yeah.

Bill Jeffers: Okay, I will be in contact with you in the next 30 days and we will get set up for that hearing. Thank you, Mr. Smith.

Richard Smith: Thank you. It has been an educational experience.

Commissioner Mourdock: We do this once a month, come back anytime.
 

Report on McCutchan Court

Bill Jeffers: Okay, brief statement regarding McCutchan Court because this is an ongoing issue with SWCD, the drainage improvements installed at McCutchan Court remove out of conformity with the approved drainage plan, out of compliance with the requirements of the Drainage Ordinance. The developer has not responded to any correspondence from our office. His contractor continues to install fixtures that are out of compliance with the improved drainage plan. The contractor complains that a modified plan is forthcoming but no modified plan has been discovered to exist. The Soil and Water Conservation District Board is very apprehensive regarding this project as reports that I have submitted to you for the past two months reflect.

Commissioner Mourdock: Who is the builder?

Bill Jeffers: Ken Fischer. Kenneth Fischer.

Commissioner Mourdock: And we have sent him legal notice?

Bill Jeffers: I have sent him some pretty strongly worded documents to which he has not replied, I wouldn't call it legal notice. I have asked to discuss this situation with Mr. Winternheimer on how to proceed regarding possible fines, etc. and now that Mr. Winternheimer is more available than he was in the past two weeks, I will be discussing it with him again. Indiana Department of Natural Resources representative, Lynn Miller, indicated a hefty fine from IDEM, along the lines of $40,000 for this project are possible. That is why we go through certain legal steps before it gets to that point.

President Mosby: I say we proceed with Mr. Winternheimer and go for it.

Bill Jeffers: I mean really, I didn't mean to get out of hand earlier but we've got to follow certain procedures when we are involved in this because we are talking about issues like $40,000 fines and things like that.
 

Correspondence

Bill Jeffers: Anyway, under correspondence, I sent a letter that's attached or should have been attached to the back of your reports. It is a letter to Mr. Patel, the developers of Elpers Industrial Subdivision, the downstream neighbors, if you'll remember, I gave you a handwritten petition a couple of months ago asking the Board to require the developer to complete his drainage facilities according to the approved plan. The petition is a part of your record at this time, I believe it was in April. The developer remains out of compliance. The Surveyor sent a letter warning the developer of a potential of a fine from the Drainage Board of $100 a day per violation. There is at least one violation. I did get a green card, returned receipt, acknowledging his receipt of that letter and a copy of the letter is submitted for the record. I just need to locate it.

President Mosby: I have one right here.

Bill Jeffers: You have one, okay. I will see that the Recording Secretary has one as well.

President Mosby: Do you want this one?
 

Any Other Person Wishing to Address the Board

Bill Jeffers: You could pass it to her, I guess. Seeing no other persons wishing to speak in the audience, I would only ask if you guys have any questions before you adjourn.

President Mosby: None.

Commissioner Mourdock: None here, except I wish when the Morley's of the world stand before us and say that will all be taken care of and all of that will happen, that even when they don't, they may think of Phase One and Phase Two, but the neighbors don't hear such specifics and I think that would have saved us a lot of this. Motion to adjourn.

Bill Jeffers: I do agree with you, but we do encourage phase development.

Commissioner Mourdock: I understand.

Bill Jeffers: And it is unfortunate that people don't fully understand it at the same level as the Board and the Surveyor are operating. I do understand their frustration when they see a wall of muddy water coming down their hill.

Commissioner Fanello: Second.

President Mosby: So ordered. 

Meeting adjourned at 8:43 p.m.
 

Those in attendance:
David W. Mosby 
Catherine Fanello 
Kevin Winternheimer
Bill Jeffers 
B.J. Farrell 
Richard E. Smith
Richard Langston 
Reginald Gibson 
Gloria Gibson
Yvonne Cobourn 
Oscar M. Haas 
Mind Hass
Daniel Hass 
Dave Rueger 
Jeremiah Roll
John Kipling 
Steve Batthauer 
Jennifer Batthauer
Jim Morley 
Jerry Atkinson 
Les Shively
Scott Railey 
Others Unidentified 
Members of the Media
 

VANDERBURGH COUNTY
DRAINAGE BOARD

______________________________
David W. Mosby, President

______________________________
Catherine Fanello, Vice President

______________________________
Richard E. Mourdock, Member
 

Recorded and Transcribed by B.J. Farrell.