VANDERBURGH COUNTY

DRAINAGE BOARD

NOVEMBER 3, 2009

The Vanderburgh County Drainage Board met in session this 3^rd day of November, 2009 at 7:01 p.m. in room 301 of the Civic Center Complex with President Lloyd Winnecke presiding.

President Winnecke: Okay, at this time we’ll call to order the November 3^rd Vanderburgh County Drainage Board meeting. Attendance roll call, please.

Madelyn Grayson: Commissioner Tornatta?

Commissioner Tornatta: Here.

Madelyn Grayson: Commissioner Melcher?

Commissioner Melcher: Here.

Madelyn Grayson: President Winnecke?

President Winnecke: Here.

President Winnecke: Okay, yes, at this time I would entertain a motion to approve the minutes from–

Commissioner Tornatta: So moved.

Commissioner Melcher: Second.

President Winnecke: A motion and a second. Questions or discussion? All in favor say aye.

All Commissioners: Aye.

President Winnecke: Opposed?

(Motion approved 3-0)

President Winnecke: Thank you.

Bill Jeffers: Good evening. The first drainage plan that I have to bring before you is the Evansville-Vanderburgh School Corporation, the new North High School campus. It’s a final drainage plan. Basically it remains the same as the preliminary plan, which was a complete plan, but, excuse me, I had asked for a letter from EVSC explaining the need for them to use a particular pipe material that wasn’t covered by our 1994 drainage code. Because the drainage code has not been updated since 1994, there are new materials that are not covered by the code, but have been proven to work sufficiently in the application that was in the plan. In addition to that, EVSC is pursuing low impact development certification for the project, a green development in other words, and they get points for using these recycled plastic materials for some of the piping that’s not in high load areas, it’s not under pavement, it’s not in the roadways, it’s out in the lawns. So, you have on your desk a letter from Patrick Tuley, Chief Facilities Officer, and go all the way to the bottom line, the EVSC will hold the county, its agents and boards harmless for any loss or damage occurring related to the use and installation of the material not covered by the drainage ordinance. Otherwise, the plans are in full compliance with the drainage code, and all of this material is on their property, not in any public right-of-way. So, the recommendation is to put this in the permanent file. This is a copy, I’ll get an original signed by Mr. Tuley to go into the Auditor’s file, and the recommendation is to give approval to the final plan.

Commissioner Tornatta: On the recommendation of the Surveyor, I move approval.

Commissioner Melcher: Second.

President Winnecke: A motion and a second. Questions or discussion? Hearing none, all in favor say aye.

All Commissioners: Aye.

President Winnecke: Opposed?

(Motion approved 3-0)

President Winnecke: Okay.

Bill Jeffers: The second drainage plan is Dawn Ridge. It’s a simple modification of the area inside the red circle, along Hogue Road just east of Perry Heights School at Boehne Camp Road. That area experienced a minor problem that sent some water the wrong direction into Corpus Christi campus and into an adjoining home, across their driveway. The developer has come up with a scheme and a piping system that will take that water down the hill into the wooded area and spread it out more evenly so that it flows through the natural surface watercourses behind the school ground and down through the creek area, where you see the word Dawn Ridge, that’s a natural creek, it will carry that water down through that area in a more orderly fashion, without any unnecessary discombobulation to where it’s going right now. So, the recommendation is to approve that simple modification, that includes what we call a level spreader, and approve the modified final drainage plan for Dawn Ridge.

Commissioner Tornatta: On the recommendation of the Surveyor, I approve.

Commissioner Melcher: Second.

President Winnecke: There’s a motion and a second. Questions or discussion? Public comment? Hearing none, all in favor say aye.

All Commissioners: Aye.

President Winnecke: Opposed?

(Motion approved 3-0)

President Winnecke: Okay.

Bill Jeffers: Notices were sent out to interested parties regarding the Melissa and Fred Emory drainage issue that came before your Board at the last meeting. One of those notices went to Chuck Murphy, the developer of Falcon Ridge, and a green card came back that he received it. I see him here in the audience here tonight. I believe Melissa and Fred Emory are also here. Briefly, there was a problem with standing water in their, chronic standing water in their backyard this spring. I was notified in April of the problem. It occurred frequently over the summer because we had such a wet summer, basically standing water was not able to drain off through the assigned drainage system into the pond. The problem was caused because the grading plan that was followed, or the grading plan that was implemented did not follow the original drainage plan, which admittedly was a bit conceptual with regard to the backyards along the south of the subdivision, but the design engineer and the County Surveyor agreed that the plan did indicate a pattern of sheet flow from the backyards, between the homes and out to the front yards, which is standard procedure for the type of terrain that we’re dealing with, and the county drainage code specifically provides grading instructions and drawings from Housing and Urban Development that have been incorporated into our code and clearly show how to grade a yard in each situation that might exist in the field, including this one. The developer did not follow that particular plan, and so when I viewed the situation I suggested an alternate plan whereby the water would be gathered up and some minor regrading would happen to convey this water due east along the, I would say three or four backyards, until it arrived at Green River Road and was put into an existing drainage system at Green River Road. Briefly, the builder, the developer, Chuck Murphy, did accomplish the basic grading for this scheme, and the last time I went out there a week or so ago, one day after a fairly substantial rainfall, I only noticed one or two minor puddles in the backyard. We have to take into consideration that after any kind of regrading where you’re bringing in loose soil and applying it to already compacted soil and moving it all around and trying to regrade it, there will be some settling, and occasionally a little ponding area might pop up, a little pothole here and there. What I saw the day I was out there could be easily remedied with a shovel and a rake and a couple of wheelbarrows full of soil, some grass seed, maybe two or three hours work. That might be, that might happen again next spring after some settlement. There may be a puddle or two in the backyard, but, basically, the yard does now drain dry, or it appeared to have drained dry after the last substantial rainfall that I viewed. So, I suggest at this time, to bring it all to a conclusion, that, let me see what I do suggest, I sent it to you in an e-mail. I’m trying to skip through some of this. I’m saying that the yard now drains sufficiently, and that the developer, Chuck Murphy, who is here this evening to respond, owes us a modified drainage plan, with essentially a grading plan, plus some affidavits from the homeowners through who’s yards this grading occurred, this regrading occurred, and those affidavits should state that the various owners know of and agree to maintain, the need to maintain the grading plan, unobstructed forever, or until another plan is brought forward and approved. Then I would put those affidavits into the permanent record with the new drainage plan, the modified drainage plan, and I would ask that those affidavits be recorded in miscellaneous records so chains of title would pick those up in the future. Essentially, what Mr. Murphy has created, I would call a manmade natural surface watercourse. I don’t think it needs an easement at this time. That’s just too complicated, but it’s a watercourse that cannot be obstructed by gardens, filling, whatever in the future, and that if it is obstructed we’ll have to go through the obstruction process to have that obstruction removed. I think if everyone is sufficiently notified by signing an affidavit, that this will work. However, there may be some other issues, and I’ll turn the podium over to Mr. Winnecke’s direction, whether it be the homeowners first or the developer.

President Winnecke: Let’s hear from the Emory’s first, if it’s okay, and then we’ll get to Mr. Murphy.

Melissa Emory: Do you mind if I bring you pictures?

President Winnecke: No, absolutely.

Commissioner Melcher: Thank you.

President Winnecke: Thank you.

Melissa Emory: The pictures that I just handed you I took this past week. On the second page there’s two pictures, one occurred during a pretty substantial rainfall. If you notice in the back there’s a large puddle, and that’s actually a ditch that belongs to the property behind us. So, you can see that it was overflowing and it was a very substantial rainfall. The problem that we have is that two days after the rainfall you’ll notice there is still puddling back where this swale, or natural drainage path supposedly exists. That water sits there, it’s still sitting there today. I don’t believe that there’s a sufficient manner for that to drain. It’s just too flat. The scale of the yard is not sufficient to drain that to Green River Road. Additionally, on the front page you’ll notice there is a picture in the top, right corner, that picture is this natural drainage path that supposedly goes to the Green River Road ditch. As you’ll notice there is a significant amount of earth between the end of that water and the ditch that exists at Green River Road. Consequently that water is not going to leave the property. That property there, that lot actually belongs to Mr. Murphy at this time, but if you’ll, you know, just think about where the water is going, if it stops at the end of the property and cannot escape to the ditch, it’s going to remain on my property. The ground will settle, I understand that, as they put new dirt in, but it’s already settled to the point that it’s puddling in the back of our yard. I would also like to point out that Mr. Murphy has made these modifications to our property without a plan, without signed permission to be on our property making the modifications. He’s not, obviously, provided a finalized drainage plan to the county, let alone to us, and his means of making changes that would make the rest of our yard dry was by raising our patio eight inches, without our permission, while we were at work and unable to say anything. He even came back another day and filled in dirt to the top of that patio and within one inch of the bottom of the siding, which violates building code. I made this concern to Mr. Jeffers and let him know that that was obviously not something that we were fond of, because the building code is there to protect our home, and we now feel that it’s not protected. He felt, according to his e-mail that that was not within his jurisdiction, that the building code generally is addressed through the Building Commission within the first ten feet of the home. However, because I feel that this was modified in an attempt to take care of a drainage issue, and the assumption that the building code was in place when you’re modifying within the first ten feet of the home, you can’t assume that the building code (tape change) and not have a plan? It’s not being inspected, and it’s being modified, so the assumption that the drainage doesn’t need to take into consideration that building code seems to be a little bit flawed to me. So, those are our concerns right now. Yes, it is better, but it’s not corrected, and now we have the issue that our home is out of building code because Mr. Murphy chose to make modifications without permission and without a finalized approved plan from the county.

President Winnecke: Mr. Emory, would you like to add anything?

Fred Emory: No, that pretty much sums it up.

President Winnecke: Okay. Does anyone have any questions of the Emory’s? Mr. Murphy, would you like to come forward? State your name for the record, please.

Charles Murphy: Charles Murphy.

President Winnecke: I guess, first of all if you would–

Commissioner Tornatta: Did you want to–

Melissa Emory: (Inaudible. Not at mic.)

Commissioner Tornatta: Okay, she’s got one if you want to–

President Winnecke: I think, first of all I think it would be instructive for this Board for you to respond to the Emory’s presentation tonight, to begin with.

Charles Murphy: Okay, I became aware of having a problem with drainage on Mr. and Mrs. Emory’s property after they purchased it from another person that had bought the house three years ago, I believe. I wasn’t aware of any other drainage problems at that time until after the Emory’s purchased it. I since have tried to address their issue. As Mr. Jeffers stated, and I have met with the neighbors and they’re all in agreement to not only sign an affidavit, but also to grant an actual easement through the backs of their properties. The one area, let’s see, where the water is standing at present, that is my lot, which is the first lot in the subdivision, I didn’t dig on down to get it to drain because I was waiting for my engineer to come up with a final plan, and I wanted to make sure that the backs of the yards were draining before we proceeded with something that would have to be redone. So, if there are still some issues with the main drainage of which the Drainage Board is concerned with, you know, I’ll get Bill, or my engineer back out and take care of those issues. Now, I understand they have some issues with some work that we did around the house to try to get the water away from their residence, and I’ve talked with Mr. Miller, the Building Commissioner, and he said he would be more than happy to come out and meet with the Emory’s and myself and address those issues. So, that’s where it stands at present. It is a work in progress.

President Winnecke: You know, go ahead.

Commissioner Tornatta: I don’t like to stand in front of the works in progress, but I know there’s some frustration on this side of the room, and, I mean, there’s no doubt, I mean, I feel that you, it’s your intent to address their problems. I think they just want to know when that’s going to happen and in a timely manner. I can see both sides here, but what is good for the Emory’s, timing wise, to get this done, working with this developer to make sure they’re getting done, if this is a work in progress?

Melissa Emory: We don’t currently have any time line set. The concern we’ve had is Chuck has not followed through on his communications. He has not, clearly he’s done work in our yard without us even knowing it was going to occur. So, it’s not so much that we don’t trust that it’s going to happen, we don’t know how it’s going to happen, we don’t know that it’s going to happen in compliance with building code, which being a builder of the entire subdivision and also this Dawn Ridge Subdivision–

Commissioner Tornatta: Right.

Melissa Emory: –he should know the building code. We feel, and I don’t know that this is accurate, but we feel that the thought is, well, let’s just raise this patio, get the water out of the yard, they won’t know any different, we’ll move on. If it’s dry, it fixes the squeaky wheel, and we can move on. The reality is though, you should be aware that there’s a six inch requirement for the foundation of our home. One inch of rain, an inch of snow, it’s going to soak up under the siding and I’m going to have a mold issue. I’m going to have rotting boards. I’m going to have a much larger problem than simply fixing the yard. So, our concern right now is the time line is less of an issue than getting it done right. You know, I don’t care how long it takes if we do it right. We’ve been working on this since prior to April, trying to get a resolution, trying to work in a friendly manner just to make it work. We’re not the only home on the street, including the three, there’s other homes up the street that have a similar issue, they’re just not addressing it, they’re not willing to keep pushing the issue. We simply need it fixed. So, the time line’s really not a concern as long as it’s done right.

Commissioner Tornatta: Okay.

President Winnecke: Mr. Murphy, just out of curiosity, I mean, why would you go on their property and raise their patio without even notifying them?

Charles Murphy: I believe they were notified.

President Winnecke: By what manner?

Charles Murphy: Pardon?

President Winnecke: By what manner? How were they notified?

Charles Murphy: I called and talked to Mr. Emory to explain to him what I was going to do, that I needed to raise the patio to get enough dirt up against the house to get the proper drainage to the back of the main swale. I’m in, I don’t have it with me, but I do have an e-mail where Mr. Emory contacted Mr. Jeffers and even stated that I had called him and was going to raise the patio and add additional dirt to address the issues that they had. That’s exactly what I did.

President Winnecke: Then what about the issue of being out of building code?

Charles Murphy: There are some areas where the dirt’s a little high. I’m willing to address that, and as I stated just a little bit ago, Mr. Miller said that he would be happy to go out there, look at it, evaluate it, and indeed see if it is out of... I had explained to him how we raised the patio and he said it’s like about 600 other houses in the county that they’ve approved the last few years.

President Winnecke: What are the possible remediations on this issue?

Charles Murphy: The possible remediation?

President Winnecke: On the patio.

Charles Murphy: Well, on the patio, like I said, Mr. Miller comes out and states that it is in compliance, then a lot of it depends on what Mr. Miller has to say, since it’s a building issue, or appears to be more of a building issue now rather than a drainage issue.

President Winnecke: Mr. Jeffers, may I ask you a question? Just to clarify what I thought you said earlier that, in your opinion, Mr. Murphy owes this Board a modified grading plan with affidavits from the neighbors? Is that accurate?

Bill Jeffers: Yes, that’s accurate. I would say that I was reading through my e-mail that I sent you, basically, the summary of the events, I was reading through it rather quickly because of the lateness of the hour, and one of the paragraphs that I skipped over does say that the developer has finished the regrading through all the properties except through his own lot, and that’s the picture that Mrs. Emory shows you on the front page with water standing between the pine trees. He has not completed the grading all the way out to Green River Road, that is true. The fact that that’s not smoothly finished. The way I understand it is, from his engineer, is Mr. Murphy only wishes to pay once for one job, you know, the engineer comes out, that’s $150 an hour, for all the time that he spends in the field and redesigning and we only want to do it once. So, yes, Mr. Murphy owes the county Drainage Board and the County Surveyor a modified final drainage plan, which essentially would consist of a grading plan showing either what he intends to do, and then I will tell you whether it comports with the drainage code, or what he has already done, and in that case it would be an as built and I would tell you whether it comports with the drainage code.

President Winnecke: Okay.

Bill Jeffers: With regard to the–

President Winnecke: Before you move on, what would be a timely manner in which for us to receive that report?

Bill Jeffers: November 24^th, is that a date coming up for you.

President Winnecke: We meet the 17^th.

Bill Jeffers: The 17^th would probably be a little soon.

Commissioner Tornatta: Probably December, our first meeting in December, 30 days.

President Winnecke: We do what?

Madelyn Grayson: We do meet on the 24^th.

President Winnecke: We do meet on the 24^th.

Bill Jeffers: If you wish 30 days, what’s the first meeting in December?

President Winnecke: December 8^th.

Bill Jeffers: That would be reasonable. We’re already past the point where what has been seeded and mulched is going to sprout and grow this year. So, what we call that is dormant seeding. I would ask that he, you know, look at the NRCS recommendations for dormant seeding and accomplish that, because we’re past the point of growing grass this winter. So, anything he puts down, just like on Mrs. Phillips, whatever he puts down now will turn green next spring.

Commissioner Tornatta: I’m fine with sticking to the recommendation of the Surveyor at this point, and continuing on with the services that Mr. Murphy is providing, coming back December 8^th for a plan, grading plan, and, hopefully tying this all up in a neat little bow.

Bill Jeffers: Would you like to add to your motion that you direct the Surveyor to consult with the Building Commissioner and incorporate that into the report?

Commissioner Tornatta: And I will amend my motion to accept that.

Commissioner Melcher: Second.

Bill Jeffers: Okay, so I can bring that to you.

President Winnecke: Right.

Commissioner Tornatta: That’s the recommendation?

Bill Jeffers: Right, and along with the affidavits.

Commissioner Tornatta: That’s in the recommendation.

Bill Jeffers: And, the fact that he says that an easement would be agreeable to the persons signing the affidavit is just a plus, that would be great.

Commissioner Tornatta: And, I would submit your recommendation to the record.

Bill Jeffers: Okay, thank you.

Commissioner Tornatta: I make that in the form of a motion.

President Winnecke: Mr, okay, a motion and a second. Questions or discussion?

Commissioner Melcher: Yeah, I just wanted to make sure I got this straight, because that’s why I was raising my hand. We’re going to get with the Building Commissioner and them to see if it’s violated or not–

Charles Murphy: Yes.

Commissioner Melcher: –you’re going to fix it if it is violated?

Charles Murphy: Make any corrections.

Commissioner Melcher: That’s going to be part of this drainage plan?

Commissioner Tornatta: No, no.

Commissioner Melcher: No?

Commissioner Tornatta: That’s a building plan.

Commissioner Melcher: Yeah, but will that change the drainage though?

Commissioner Tornatta: That, he’ll have to have a drainage–

Commissioner Melcher: Is that making sense?

Charles Murphy: The area around the house?

Bill Jeffers: I will examine the drainage code as thoroughly as I possibly can and see that if there is anything in the drainage code regarding vertical separation between the earth and the lowest siding, crawl space vents, etcetera, I think this is a slab though, isn’t it? A slab house? It’s crawl space? I’ll look at that. Generally speaking, as I said in the e-mail, all of that I’ve relied for 15-20 years on the Building Commissioner to monitor the first ten feet away from the building.

Commissioner Melcher: And I agree with that.

Bill Jeffers: However, I will examine your responsibility pertaining to the drainage code and include that in my report.

Commissioner Melcher: Yeah, I just didn’t want us to agree on something and then there’s still another issue.

Bill Jeffers: Could be another issue, but it would go before the Commissioners.

Commissioner Melcher: Right, it wouldn’t be, right, I agree.

Ted C. Ziemer, Jr.: I guess, so that we legally conclude this matter, I think maybe what Commissioner Melcher is saying if we have to lower the patio in order to have adequate separation in the opinion of the Building Commissioner, is that lowering of the patio going to change the required drainage plan?

Bill Jeffers: It could.

Ted C. Ziemer, Jr.: If so, that ought to all be accomplished by–

Commissioner Tornatta: Well, he’ll have to have a drainage plan that works with compliance of the Building Commissioner. So, I mean, it wouldn’t be a good drainage plan if it didn’t comport with the Building Commissioner. So, I mean–

Bill Jeffers: In this instance.

Commissioner Tornatta: Yeah.

Commissioner Melcher: You said it better than I did.

Commissioner Tornatta: So, we need a second.

Commissioner Melcher: I seconded it.

President Winnecke: We have a motion, oh, you did. Okay, we have a motion and a second. Other discussion? Mr. and Mrs. Emory, would you have any other comment?

Melissa Emory: I just wanted to agree, Chuck did notify us that he was going to modify the patio, but he did not have our approval to do it because we told him that was not a good plan based on the building code. So, I mean, I’m agreeing we did have that conversation, but–

Commissioner Tornatta: Okay.

President Winnecke: Thanks for the clarification.

Commissioner Tornatta: Thank you.

President Winnecke: Everyone clear?

Commissioner Tornatta: Yeah.

President Winnecke: Mr. Murphy, are you clear?

Charles Murphy: At the moment, yes.

President Winnecke: Okay, we have a motion and a second on the floor. Roll call vote, please. Or, all in favor say aye.

All Commissioners: Aye.

President Winnecke: Opposed.

(Motion approved 3-0)

President Winnecke: Okay, thank you. Thank you for staying with us tonight.

Commissioner Tornatta: Anything to approve?

Madelyn Grayson: Yeah, yeah.

Bill Jeffers: Oh!

Commissioner Tornatta: Come on now. Now, you’re going to come to the office and try and catch us.

Bill Jeffers: Well, your attorney, Mr. Ziemer–

Commissioner Tornatta: Two minutes, Bill.

Bill Jeffers: –informed me that everything was in order with regard to the Vieira certificate of insurance attached to the typical, normal contract, and the recommendation is to sign the contract. They will begin work tomorrow.

Commissioner Tornatta: So moved.

Commissioner Melcher: Second.

President Winnecke: A motion and second. Questions or discussion? All in favor say aye.

All Commissioners: Aye.

President Winnecke: Opposed?

(Motion approved 3-0)

Commissioner Tornatta: Public comment?

President Winnecke: Any public comment before the Drainage Board? Hearing none.

Commissioner Melcher: Move to adjourn.

Commissioner Tornatta: Second.

President Winnecke: We are adjourned.

(The meeting was adjourned at 7:30 p.m.)

Those in Attendance:

Lloyd Winnecke                        Troy Tornatta                            Stephen Melcher

Bill Fluty                                    Ted C. Ziemer, Jr.          Madelyn Grayson

Bill Jeffers                                 Melissa Emory                          Fred Emory

Charles Murphy                        Others Unidentified                   Members of Media

VANDERBURGH COUNTY

DRAINAGE BOARD

Lloyd Winnecke, President

Troy Tornatta, Vice President

Stephen Melcher, Member

(Recorded and transcribed by Madelyn Grayson.)