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August 15, 2005 Tape #016

The White County Drainage Board convened at 10:30 A.M., EST in the Commissioners’ Room of the White County Building, Monticello, Indiana with Board Members Steven Burton, O. D. Ferguson and John C. Heimlich, Attorney George W. Loy, Surveyor Dennis W. Sterrett, Engineer Todd Frauhiger and Secretary Romana Kiser in attendance.

Others attending were Douglas E. Zimpher, Cathy Gross, Greg Vogel, Charles Mellon, Don Ward, Linda Forsythe, Mr. Forsythe, Walter Hough, J. R. Smith and Howard Ruemler.

Chairman Burton opened the meeting. Board Member Heimlich made a motion to approve the minutes of the August 1, 2005 meeting. Board Member Ferguson seconded the motion. The motion carried unanimously.

Surveyor Sterrett reported on the Harp-Helfrick Drain silt issue that was discussed at the last Board meeting. He stated that the Board went out and looked at the site. Chairman Burton stated, “We had an on-site meeting and discussion, and for my information, an obstacle that we need to deal with is encroachment. The property owner that has the shed on it is Mr. Looney. We discussed the shed and the trees and the encroachment on that side, but also there is an encroachment issue on the other side of that ditch. My question was do we need to settle that encroachment issue and the Surveyor advised me that needs to be addressed. For my information, I would be uneasy on moving any dirt there until we come to some kind of agreement or something about the encroachment because of that house being so close to the right-of-way of the ditch.” Surveyor Sterrett said the house is right on the bank.

Chairman Burton stated, “After viewing the site on Thursday, even if we did dip out into the area it may affect that dirt anyway.” Surveyor Sterrett said, “I’m sure if we dipped out, even south of there that would wash the sand on down.” Board Member Heimlich asked when that house was built. Mr. Forsythe answered 1995. J. R. Smith stated, “It was there when it was dug the last time. I have just a little bit of input in this. When that addition was put on I had some concerns about that and I called the Health Department and also Area Plan. I know the Health Department showed up and that was just before, they poured the footing for that on a Saturday morning and they showed up and Flora was in there (Health Dept.) at that time and I didn’t pursue it any further. I know that there was a big hard look at it at the time and my concern was the encroachment on that right-of-way, but it still went ahead and went, we were within the Area Plan. They let them go ahead with that even with all concerns or anything else according to that, you know, what that lot size was and everything. And then it was after that addition was built on, that was originally a small cottage.”

Chairman Burton asked the name of the gentleman who has the blue house. It is Forsythe. Chairman Burton asked if anyone else wants to address this. Board Member Heimlich said there has been no Consent to Encroach agreement. Surveyor Sterrett said he cannot find one. Attorney Loy said, “And of course, permanent structures are not to be constructed within seventy-five feet of the crest of any drain. Does anyone know when this house was built?” Board Member Heimlich said somewhere around 1995. Board Member Ferguson said that has been a County Drain all the time.

Board Member Heimlich reviewed, “Our concern, this was dug out around 1995, 1996 and from the minutes it was dug a little deeper and it mentioned the term silt trap in there and that digging it deeper it would be cleaned out periodically. We had looked at how that could be done and that would involve right-of-way on the opposite bank from that house. But there is a storage shed, which I guess is portable that could be moved and probably a tree or two removed in order to get trucks back in there to carry dirt away because there really wasn’t room enough in there to just pile it on the bank. Or, the concern was, if you pile it on the bank it would wash right back down. So, we could do that but then the concern is, what’s our liability if we are moving that dirt with that house that close to the bank.” Attorney Loy repeated that by law no permanent structures or improvements are to be constructed within seventy-five foot of the crest of any regulated drain. He stated, “From time to time we give consent to encroach for individuals who might want to build a driveway or fence or something like that. This house was apparently constructed without that consent having been obtained. Consequently, if it is encroaching within our maintenance right-of-way, I think the Board wants to try to do something, perhaps clean it out, but their concern is justified. Now that there is a structure where it really shouldn’t be, if we go to clean this out, what is it going to do to the foundation?”

Linda Forsythe said, “I thought they just said cleaned it out since that house was built though.” Board Member Heimlich said, “That is why I asked when it was built. It has been cleaned out once.” Board Member Ferguson asked if they cleaned it out from that side or the other side. Board Member Heimlich said they cleaned from the other (east) side. Chairman Burton said, “That was then and we are here, today.” Surveyor Sterrett said, “And, there was, I don’t know if that sheet metal retaining wall was there. (Forsythes said it was there.) If you take a dip out of there I think that wall is going to continue to fall in and the bank is going to slide. Because that retaining wall is not in that good of shape right now.” Board Member Heimlich said, “That was the other concern. I’m not sure without doing something with the retaining wall whether it would hold or not.”

Chairman Burton said, “Whether we have a retaining wall or not, I assume we need to clear up the encroachment issue regardless if it was cleaned before when the house was there. That’s my input on the situation. As Chairman, I would advise that we not move forward on the cleaning until the encroachment issue is resolved.” Linda Forsythe asked, “What do you mean by encroachment, what are you talking about doing?” Attorney Loy explained, “I guess what needs to be ascertained, what needs to be done? From what angle can you come in to do it? Then my advice to the County is going to be, don’t dare touch a thing unless the adjoining landowners waive any kind of damages. If the bank caves in and your foundation cracks, it’s not our fault.”

Mr. Forsythe asked, “Why can’t they put a seawall in there, right there by that culvert.” Attorney Loy said, “That would be at your cost. It is a seawall protecting a house that shouldn’t be there quite frankly.” Linda Forsythe asked how they managed to build it if they didn’t get the permits. Attorney Loy said. “Somebody is probably building a shed on a drainage right-of-way today as we speak.” J. R. Smith stated, “This was a cottage that was added on to. And when this cottage was added on to, they started digging in the middle of the week and I had health concerns being right on the water there. I called it in myself. I know for a fact that Betty Flora (Health Dept.) was up there. And Area Plan was notified and everything went forward.” Surveyor Sterrett asked and J. R. answered that Liberty Township was in Area Plan at that time. He said, “The ditch was there and it has been cleaned out and I don’t know why we’re talking about digging so close to that foundation or why we’re digging up in there. They didn’t before.”

Linda Forsythe said, “We have like an island with grass and everything. When we bought that it was all water.” J. R. Smith said, “I’ve been out there since 1974 and when I moved there, this area that she’s talking about right now was nineteen foot deep.” Linda Forsythe said it was a lot deeper when they bought it. Chairman Burton said that on the aerials taken in the 70’s it does not show the depth of the water to be that deep. But still, what happened then you can’t change that. The seventy-five foot right-of-way, that is not something the Health Dept. would kick over to the Drainage Board and unfortunately the Drainage Board wasn’t notified at that time so I can’t predict what they would or would not have done at that point and time. All I can do is where we are at today and where we chose to proceed from this point and time.” Attorney Loy stated, “That is State Law and has been State Law for some time. It is up to the individual landowner to ascertain whether or not they are within an obvious ditch right-of-way. The law doesn’t make it up to Area Plan or anybody else to enforce it. It’s a law that every landowner is somewhat aware of it.”

Board Member Ferguson said there’s no way you could clean it out from the east side, you’d have to go down and clean it out from that side. Board Member Heimlich said, “Yes, that’s how it would have to be cleaned out. There would be an encroachment issue there, too, because there’s a shed there that would have to be moved.” Board Member Ferguson said someone told him it could be moved. Board Member Heimlich said, “It would have to be moved and there’s also at least one, possibly two trees there that would have to be cut. I mean you wouldn’t want big heavy dump trucks right on the ditch bank or there would be the danger of them caving in. They’d have to get far enough away to make it safe. What we’re talking about is if you dig out where that silt is now, some of that is fairly close to the bank of this house. You know, would that be a problem?” Board Member Ferguson said, “Where the water changed its course there somebody went down and shoveled that out there.” Linda Forsythe said, “Our son did that because the water was all going in front of our pier and eventually we wouldn’t be able to get our boat out of there. It was all flowing this way. At one time it all flowed out this way and then it started to build that big island and then it broke off and everything was going towards our pier. If he hadn’t dug it a couple of weeks ago we would’ve been sitting on ground.” Mr. Forsythe said at the time he moved in there three years ago it (water) was at least 8 foot deep in front of his house and now it is right around two foot deep from the sand and everything flowing through that culvert.

Howard Ruemler stated, “You are talking about digging in front of that culvert right there, they never dug in front of the culvert when they dug the other time. They dug a big hole out there. I’ve been there since 1969 and that water has always flowed. The problem is out there where that sand is. It flows through that culvert but when it hits that spot that’s the end of it.” Board Member Heimlich said, “I’m not talking about that culvert, but right where the lawn of that house starts there is sand in front of that to the south and that’s what we are talking about would be part of what would be dug out. At least I thought that was what we were talking about.”

Surveyor Sterrett said, “Mike (Contractor Ezra) went back and looked at it and thought there should be a little come out of there and then he got to thinking about if he digs the bank will slide in.” Chairman Burton said regardless of where we dig he feels the Drainage Board needs to have some kind of agreement.

Mr. Forsythe stated, “There is no way I can put a waiver on that. My insurance wouldn’t even take care of the house.” Chairman Burton said, “And that’s where we are today. You are wanting us to stand for it.” Mr. Forsythe stated, “That sheet rock, right there by the culvert, if that’s going to be the hold up on us having this dug out, I’ll put that in, but as far as putting a waiver, no way. We got the right permits and everything else when we built this house. I don’t think it’s right that I should have to do that, but if I have to put sheet metal in, if that’s what’s going to be a hold up on having this dug out, I’ll put it in.”

Chairman Burton said, “I understand that, but I’m sitting up here with the responsibility today to represent the County. We have just been advised that we need to have some kind of encroachment agreement regardless of whether the wall is there or not. Is that your understanding?” Board Member Heimlich said, “Well, I’m not sure but I wanted to ask George (Loy) that. Basically you are granting the right after the fact, the building is there.” Board Member Ferguson said really it is the one they bought it off of that did it. Board Member Heimlich agreed, “Right, but I’m talking about from the County’s standpoint, is it better to have the agreement after the fact or not to agree to it. We’re not talking about thirty, thirty-five feet off of the bank. We’re talking about basically right on it.”

Charles Mellon stated, “In 1998 that was cleaned out and there was over a hundred tri-axle truck loads of dirt came out of there. I’ve been up in that area since 1957. That bank is not very high along there and all of them came out of there along those two trees. And in the meantime that fella on the east side put in that shed on skids that can be moved and probably would be better if he would let you cut those two trees down. It could still be done the way it was the last time. If the fella that owns the house there on the west side would take it on his own to build it up around there. They wouldn’t have to dig over there. They didn’t dig around on the south side of his house any the last time. They just went out in there. That hydra hoe got down in there. That’s a gravel bottom. He got down in there and started on the south side, just so he could swing to those trucks over there.” J. R. Smith said that when they dug this before they probably never got within 30 feet of the culvert or the house. He explained how it was done (see tape). Board Member Heimlich asked, “Are you saying that he wouldn’t take out everything that was to the west there?” J. R. Smith said what they did before was nothing west, actually they didn’t take anything out even just south of his house. Board Member Heimlich said, “I thought we were told that area was water before.” J. R. Smith said, “There was water there, yes.” Board Member Heimlich said, “Maybe it is just the fact that the river is lower now. That’s what I’m trying to get clear, whether they reached out and took all that silt where there’s grass and silt to the west there now.” J. R. said, “They went out there where you see land and at the time there was a lot more of it, He literally drove it out there on top of it. He reached everything he could from there, piled it up, then backed up and loaded that out and dug everything more or less as you are standing there looking off to the left and straight out.”

Board Member Heimlich asked, “Do we ask for a Consent to Encroach now that it’s already been done? I can’t see us granting that consent that close had it been reported.” Attorney Loy agreed and recommended (inaudible, see tape) having some kind of an agreement which dissolves any liability for the county and the retaining wall would be at their cost and the County’s specs. Chairman Burton said that Mr. Forsythe says his insurance would not cover if he gave a waiver.

Engineer Frauhiger suggested there should be a GEO tech engineer out there to assess the situation, to take some soil borings and they should come back with a properly designed retaining wall to protect that house. Board Member Heimlich said that was what he was thinking. He said, “Whether we dig or not, I would think that could be a problem the way that bank is there and how close the house is to it. You could get flood waters through there and get problems too.”

Board Member Heimlich explained encroaching to Mrs. Forsythe. Mrs. Forsythe asked why their plat says they own so many feet to the water’s edge. Attorney Loy asked if she read the statute that he gave her. She answered yes. Attorney Loy explained, “The ownership of your property goes that far. That statute provides that the Drainage Board has a drainage easement or right-of-way within seventy-five feet of the crest on both sides. Your house is sitting on top of that.” Mrs. Forsythe said their easement is on the other side of their garage. Attorney Loy said, “That has nothing to do with it. You read that statute. It says that no permanent structures are to be constructed within that drainage easement. It was drafted that way to avoid this very situation. It is on the landowner, when you see a ditch that is right beside your house or where you are going to build a house, is that a County regulated drain or is that my own private waterway? I don’t think the landowner thought it was his own private waterway.”

Mr. Forsythe still didn’t think he should be responsible for putting up a retaining wall. Board Member Heimlich explained, “The retaining wall is not for the drainage. The retaining wall is to protect your property. The retaining wall does not in any way have anything to do with our ditch or our water.” Mr. Forsythe said he doesn’t see why the have to do any digging there. He said the digging should be on the south end. Board Member Heimlich said, “I thought what I was told before was that this south mound there was dig out (before). (Mr. Forsythe said it was.) I’m saying, if we get out there and dig that then it is awfully close to the corner of your addition. Maybe it’s not a problem. That’s why I agree with Todd (Engineer Frauhiger) that we should have someone come and look at that and see what is needed.” Mr. Forsythe came forward and pointed out where he thought if this was dug out it would take years for it to fill back in. (See tape for discussions.) Mr. Forsythe said all the dirt is coming from someone upstream having something dug out and just piled it on the bank.

Board Member Heimlich stated, “I think we have two or three things here to clear up. On the Consent to Encroach issues I don’t think that we would grant a consent on something that has already occurred. If we are going to do this we do need to contact the property owner on the east side about that shed and the trees.” Board Member Ferguson said someone at the other meeting said that shed could be moved. Board Member Heimlich said, “But it wasn’t that landowner.” Chairman Burton said we have issues on both the east and the west side before we proceed on that. He said, “We are suggesting we can go in on the east side without any problem but that is not a known fact at this point.” Board Member Heimlich said we have not discussed anything with the property owner and you don’t just go in without contacting him. He said the trees are on our property but you don’t go in and bulldoze without talking to him. Walt Hough said he would get the address of that property owner to the Surveyor.

Board Member Heimlich thought we need to contact someone about the seawall, someone with more expertise. Charles Mellon wondered who was going to pay. Chairman Burton said he thinks we can stay within our budget. Surveyor Sterrett asked if he wants the property owner to come to the meeting. Board Member Heimlich said, “If possible, we definitely need to contact him.” The Forsythes said the renter stays in touch with him. Attorney Loy asked the Forsythes if they have the most recent survey of their property.

Attorney Loy asked for pictures to be taken of the shed area. Board Member Heimlich explained that ordinarily the regulated part of a ditch ends before it gets that far (to the river or lake). Surveyor Sterrett asked if they wanted him to get an engineer and whose expense would it be. Engineer Frauhiger thought the fee would be $2,500.00 to $3,000.00 at which point the landowners said they don’t need that. Chairman Burton said, “Then the property owner would have to sign off that he is not going to hold the County responsible for digging that out of there.” Mr. Forsythe stated he will not sign a waiver. Chairman Burton said we obviously need to pursue more information.

Surveyor Sterrett presented a request for an exemption from the Drainage Ordinance from CAC Farms Addition. Arnold Dahlenburg is the owner. It is south of Reynolds on Meridian Road. It is in the city limits. Engineer Frauhiger said they went out and looked at it. He said it is a two lot subdivision, there are no drainage issues and it doesn’t involve a ditch.

Board Member Heimlich made a motion to grant an exemption from the White County Drainage Ordinance for the CAC Farms Addition. Board Member Ferguson seconded the motion. The motion carried unanimously.

Engineer Frauhiger recommended exempting The Farmers State Bank in Brookston from the White County Drainage Ordinance. He explained they are adding on to their existing building. He said there is a drainage pipe that comes out from under the building and dumps into a low area. So what the Town of Brookston has approved putting in a new inlet and storm sewer around the parking lot and tie into the existing city storm sewer on Ripley Street which eventually works its way on down to Moots Creek. He said we are exempting them from the Drainage Ordinance; they are not putting a detention pond in. Board Member Heimlich asked if we should have paperwork from the Town of Brookston for all of this. Engineer Frauhiger said this was submitted by the town and then the engineering firm dropped off the plan and profile. Board Member Heimlich said, “It seems to me we should have something official from the town that they are doing this.” Mr. Zimpher representing the engineering firm said that at the previous meeting of the town board they had approval to do this subject to engineering plan, which they now have since then approved that plan. Engineer Frauhiger said he talked to Max Eldridge directly and he confirmed that it has been approved at town council. Attorney Loy said he will have the Ginger, the town clerk fax over a copy of the minutes.

Board Member Heimlich made a motion to grant the exemption to the White County Drainage Ordinance to the Farmers State Bank at Brookston for their building addition. Board Member Ferguson seconded the motion. The motion carried unanimously.

Greg Vogel was present to discuss the off-site detention pond for the Tribbett Addition, in particular, the subdividing of Clark’s Subdivision of Lot 4 Tribbett Addition. Engineer Frauhiger explained, “This was right before the Drainage Ordinance was passed. It was basically right at the time. Dr. Tribbett said that for his subdivision, he master planned it, he hired C & S Engineering and they put in a detention pond over in this area (north of West Washington Street at Eighth Street) for all of the lots to drain to. We reviewed this set of drainage calculations and this plan per the Ordinance right before it was adopted. They gave us permission. They said they would like to go ahead and meet the Ordinance because we know it is coming. There was a master plan submitted and a detention pond was constructed. All of these lots were designed to drain into the detention pond. If I remember right, the gas station and the Bank of Wolcott, everything gets over to this detention pond and releases into Buss Ditch. At the time we reviewed it, Tribbett owned all the property. He owned all the lots; he owned all the property over here (north side of the street) that the detention pond has gone in. Now he has sold all the lots so each lot has moved to an individual owner but the detention pond is still sitting out there on his property, on the (Buss) ditch right-of-way which is fine. I guess what has to happen is an easement granted to someone.”

Greg Vogel questioned the need for an easement since it is on a court drain now and it was approved as a subdivision for the Drainage Ordinance. Engineer Frauhiger suggested, “Suppose a year from now Mr. Tribbett says I don’t want that pond there. It is on his property and Lot 4 has a right to drain to that pond on his property. Suppose he decides to change his land use. I’m surprised that someone didn’t, I didn’t catch it, Paul (Engineer Couts) didn’t catch it. This (detention pond area) should’ve been a drainage easement.” Board Member Heimlich asked if anyone has contacted him. The answer was no. Greg Vogel said the pipes are already in. Engineer Frauhiger said, “Yes, the pipes are in, the detention pond is in, the outlet control pipes are in. What brings this up is that Lot 4, you want to divide, which drainage-wise there is no impact at all, the only concern is what about the detention pond being off-site.” Surveyor Sterrett said that came up in Area Plan meeting also. This is a subdivision by Jim Milligan and the drainage by Paul Couts. Board Member Heimlich said NOW the detention is off-site for all lots in the subdivision.

Attorney Loy advised that an easement attached to all of those lots is needed. Greg Vogel said that Lot 1 was redirected and is not draining that way. Engineer Frauhiger said to make it an easement for all lots in the Tribbett Addition for drainage purposes and access to the detention pond. Engineer Frauhiger said it should be inclusive of the regulated detention pond. It was decided he should not include Tribbett’s other twenty or twenty-five acres because it is not known what it might be used for when sold. Surveyor Sterrett said they are subdividing Lot 4 and we have already approved the drainage on that. It is Clark Subdivision of Lot 4.

White County Treasurer, Cathy Gross addressed the Board concerning a letter she received from INDOT, Patricia Doyle from the Crawfordsville District. Cathy said, “She included an excerpt from an Appellate Court, Indiana Court of Appeals, stating INDOT is no longer responsible for any ditch assessments. That includes maintenance and reconstruction. I think it is not only going to affect INDOT property, the way I am understanding it, it will probably affect the Division of Wildlife, any State owned land.”

She said she and Surveyor Sterrett are working together on it. She contacted State Board of Accounts and they did not know about it. State Board of Accounts is also in contact with Local Government Finance because this is going to affect fees and how they come in. They have not heard back from the Department of Local Government Finance. State Board of Accounts suggestion is to begin removing any INDOT assessments through certificate of error through the Surveyor to the Auditor to the Treasurer.

Treasurer Gross said, “Basically today I don’t want to jump into anything because State Board of Accounts has also said it may be appealed again and ruled differently. If before November 10 the State Board of Accounts gives me something in writing that says let’s start removing these, we of course will do whatever they tell us to do. The other big issue is reconstruction. That is even more complicated than the maintenance fees as far as recalculating. Basically it is going to be a big load on the Surveyor and his office. We’re just the final link and we just get the information. I do know that The Association of Indiana Counties, after my contact with them, and the State Board of Accounts are now fully involved and hopefully we can get this addressed before the next collection in November. I am not encouraging anyone to write anything off until we absolutely have to. Council may advise us differently.” Discussion on some of the State’s assessments – see tape. Board Member Heimlich said the County Highway pays ditch assessment. Attorney Loy stated this decision apparently came out July 26 and he will be getting that shortly and would like to read the whole decision. Engineer Frauhiger was familiar with the case and explained his understanding of what happened (see tape). Board Member Heimlich said he feels the State should be assessed because the water off of their roadways are still going into drains.

Surveyor Sterrett addressed the Board concerning Indian Creek assessments. Board Member Heimlich is a member of the Fulton, White, Pulaski and Cass Joint Board on setting maintenance on Indian Creek. Surveyor Sterrett stated, “We got this letter from Cass County, a Certificate of Assessments. They want us to turn it in to the Auditor. But, isn’t it under Judicial Review?” Board Member Heimlich said he’s not sure what that means but he thinks you still go ahead with your procedure. He said, “We had the hearing, we set the assessments and we had a petition for Judicial Review.” Attorney Loy said, “Everything is stayed.” Board Member Heimlich said, “That’s what Denny is asking. Does he do anything with this? I’m remembering back to the last meeting, one of the things the petitioners were saying was that not everything had not been published yet. I think this is one of the things we said we were going to go ahead and publish. So I think you go ahead and, that’s what this represents. But if you start collecting while it is under Judicial Review, I don’t know.” Attorney Loy stated, “I know the contracts and bidding process and all that is stayed.” Board Member Heimlich said none of that has been done. Surveyor Sterrett checked with Fulton County Surveyor and he said he wasn’t going to do anything. He was just going to hold it until he found out about Judicial Review. Attorney Loy said it is dated April 7th. Board Member Heimlich said the meeting was April 7th when this was finalized. Secretary Kiser said, “We called Cass County and said we don’t have a Findings and Order and this is what she sent. She said she just got it signed and was sending it to us. This is what we got.” Attorney Loy will check the statute. He said he really thinks it is stayed. Surveyor Sterrett asked if they filed the petition in due time. Board Member Heimlich knew for a fact something had been filed in court.

Attorney Loy presented the Consent to Encroach document for Hendrickson Chrysler (The landowner name is actually HMB Property Management, Inc.) parking lot addition project for the Board to sign. Surveyor Sterrett asked how close he made the encroachment. Attorney Loy answered, “As close as ten feet from the top of the east spoil bank.”

Chairman Burton adjourned the meeting.