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February 2, 2009 Tape #03

The White County Drainage Board convened at 10:30 A.M. in the Commissioners’ Room of the White County Building, Monticello, Indiana, with Board Members Ron Schmierer, John Heimlich and Steve Burton, Attorney George W. Loy, Surveyor Dennis Sterrett, Drainage Assistant Mary Sterrett and Secretary Jamie Rozzi in attendance.

 

Others in attendance were Art Dragoo representing Dye Lumber, Greg Vogel Sr., and Alvin Cargill representing Horizon Wind Energy.

 

The first item on the agenda was to approve the minutes from the January 19th, 2008 meeting. Board Member Burton so moved. Board Member Heimlich seconded the motion. Motion carried unanimously.

 

The next item on the agenda was the hearing on the Vacation of a portion of the Simeon Davisson Tile.

 

Surveyor Sterrett explained, “We had a petition from Art Dragoo of Dye Lumber requesting to vacate part of the tile, not all of it, for about 751 feet south of US 24. We notified all landowners on Buss Ditch, which were 257 of them. We got quite a few calls and we tried to explain to them where it was at.”

 

“Isn’t part of the building on top of that tile?” Chairman Schmierer asked.

 

Mr. Dragoo replied, “Yes, it goes right under the whole east side of the building.”

 

Chairman Schmierer added, “Yeah, it probably hasn’t been functional for some time.”

 

Surveyor Sterrett showed several photos of the area.

 

“Was the Davisson…was it still called that north of US 24?” Board Member Heimlich asked.

 

Surveyor Sterrett replied, “Yes, it’s been vacated where Walmart is.”

 

“When we vacated that other part Walmart came in and did some drainage work to the Buss Ditch to alleviate some problems for some of the lots there,” Chairman Schmierer stated.

 

Chairman Schmierer asked, “We haven’t had any remonstrances against the vacation that is being petitioned today have we? Any letters?”

 

“No,” Surveyor Sterrett replied.

 

“I can’t see where it does anybody any good anyhow,” Chairman Schmierer stated.

 

Board Member Heimlich stated, “The only thing I asked Surveyor Sterrett the other day was whether we knew of any tile coming into that…”

 

Surveyor Sterrett explained, “We took a probe out there in September and found the tile at the highway. You can see where the outlet is back here in the private ditch and you see the tile continuing on the other side of the private ditch, but I don’t think there is any tile going in…I don’t know… There is a culvert under the highway that takes the surface water from both ways and goes under the highway and then down to the Buss Ditch on the north side.

 

Surveyor Sterrett showed the survey that Milligan did for the vacation. The section of tile to be vacated was 750.92 feet.

 

“If there aren’t any objections, I would move that we vacate that 750.92 feet of tile on the Simeon Davisson Tile, as proposed,” Board Member Heimlich stated.

 

 

THERE BEING NO FURTHER DISCUSSION OR EVIDENCE TO BE SUBMITTED IN THESE PROCEEDINGS, THE CHAIRMAN WOULD NOW CONSIDER A MOTION TO VACATE A PORTION (750.92 FEET) OF THE SIMEON DAVISSION TILE UPON THE FOLLOWING FINDINGS:

 

  1. THAT NOTICE OF INTENTION TO VACATE SAID DRAIN WAS PROPERLY SERVED UPON ALL OWNERS OF AFFECTED LAND.
  2. THAT SAID DRAIN DOES NOT PERFORM THE FUNCTION FOR WHICH IT WAS DESIGNED AND CONSTRUCTED, OR IT HAS BECOME INADEQUATE TO PROPERLY DRAIN ALL AFFECTED LAND UNDER CURRENT CONDITIONS.
  3. THAT THE EXPENSE OF RECONSTRUCTION OUTWEIGHS THE BENEFITS OF RECONSTRUCTION.
  4. THAT VACATION OF SAID DRAIN WILL NOT BE DETRIMENTAL TO THE PUBLIC WELFARE.

 

SO MOVED BY MEMBER HEIMLICH

SECONDED BY MEMBER BURTON

 

UPON A MOTION DULY MADE AND SECONDED, AND AFTER HAVING CONSIDERED ALL OF THE EVIDENCE AND OBJECTIONS (IF ANY) CONCERNING THE PROPOSED VACATION, THOSE MEMBERS OF THE

 

WHITE COUNTY DRAINAGE BOARD IN FAVOR OF THE MOTION OF THE VACATION OF A PORTION (750.92 FEET) OF THE SIMEON DAVISSON TILE BASED UPON THE BASE FINDINGS COMPLETE.

 

WHITE COUNTY DRAINAGE BOARD BY A VOTE OF THREE (3) IN FAVOR TO ZERO (0) OPPOSED NOW HEREBY VACATES A PORTION (750.92 FEET) OF THE SIMEON DAVISSON TILE PURSUANT TO THE WHITE COUNTY SURVEYOR’S REPORT.

 

Surveyor Sterrett stated, “There is still some of that tile that is still in use. We’ll have to talk about that…on the south side of Buss Ditch they are proposing to put in a nursing home or healthcare center. So, we’ll have to vacate it down at that end for that. I think there is a tile hooked to it that comes in from the boat place.”

 

“That doesn’t affect what the City of Monticello wants to do with the tile they were in here talking about at the last meeting, does it?” Chairman Schmierer asked.

 

“No,” Surveyor Sterrett replied.

 

The next item on the agenda was the J. C. Vanatta Branch #1 regarding the Certificate of Assessments.

 

Drainage Assistant Mary Sterrett explained, “We raised it 100% for two years only and then it was to go back to the old assessment.”

 

“That is the one that we cleaned, right?” Board Member Burton asked.

 

“Right,” Surveyor Sterrett stated.

 

“And there was almost enough money in there so we raised it to replenish it and then we were going to go back to the old rate…,” Board Member Burton stated.

 

Surveyor Sterrett stated, “Yes, there is money in there now. The job is done and has been paid. So, we are lowering it back down to the old rate which was variable. We have to turn in a new assessment roll to the Auditor for this.”

 

Board Member Heimlich made a motion to approve the Certificate of Assessments on the J. C. Vanatta Branch #1 Drain.

 

Board Member Burton seconded the motion.

 

Motion carried unanimously.

 

Surveyor Sterrett also explained that maintenance funds for each drain were reviewed to determine if they needed to be collected on in 2009. If the balance of a drain is not four times the amount that the drain brings in per year, that drain will be collected on.

 

Board Member Burton made a motion to approve the assessments for 2009 as presented.

 

Board Member Heimlich seconded the motion.

 

Motion carried unanimously.

 

The next item to discuss is Meadow Lake Wind Farm/Horizon Wind Energy. Alvin Cargill is in attendance representing Horizon Wind Energy.

 

Mr. Cargill explained, “I think what were asking…the landowners have reviewed this and what we are proposing and what we are asking from the board is that we are allowed to place our access road within the 75 foot easement of the drainage ditch. What we will do is place our road; the outer edge of the road at 75 feet, come 16 feet in which would bring us to 59 feet and that would be the distance from the edge of our road and we would maintain that from the edge of the road to the edge of the easement. That would still allow room for spoils and such to be placed. Martin has worked with most of the landowners on this as far as trying to work through it and this is really what the landowners wanted to happen.”

 

Chairman Schmierer stated, “I think if we’re going to give an encroachment on this that it needs to be stated on the encroachment that any damage done to the ditch with the roads being used, going in or going out, if anything happens from excess weight or such that the liability needs to lie with the wind farm, not with the county. Also, if the farmers want it in that right-of-way I don’t really have a problem with that, but when we get ready to clean that ditch and we got that spoil and we need some place to go with it everybody has to cooperate. It’s got to be covered so that we’re not coming along and fighting. I know everything is on a friendly basis now, but it can all change in three hours with farmers and their ground and ditches. This is one of my main concerns. Besides that, if you are taking heavy loads 50 feet away from the bank I’m not so sure some of the banks will stand that. We’ve got some ditches the where the banks wouldn’t stand that.”

 

Board Member Heimlich stated, “I think they will be far enough away.”

 

Surveyor Sterrett stated, “What they have planned is that it looks like they are staying…the outside of the easement will be the right-of-way and the rest of the road would be inside the right-of-way. The edge of the road would be 59 feet from the top of the bank.”

 

“Yeah, but 59 feet isn’t very far on some of those high banks,” Chairman Schmierer stated.

 

Board Member Burton stated, “And to be clear we are figuring 75 feet from the top of the bank and not the center of the ditch.”

 

“Right, top of the bank,” Mr. Cargill replied.

 

Board Member Burton stated, “Let’s go back a little bit, Mr. Cargill. When you construct a road, do you do soil testing on that road?”

 

“Yes,” Mr. Cargill replied.

 

“So, you will know what is underneath there. I’m addressing Chairman Schmierer’s concern in that they are going to know what’s under there and what is necessary to put that road in there and sustain it. So, it would have lead to his concern that…,” Board Member Burton stated.

 

Mr. Cargill stated, “There is geotech testing on the roads. We take a sample every X feet. I can’t answer that because I don’t know for sure. I know what we’ve done on past projects, but we gather geotech information so we know what we need to build the roads to in order to maintain the roads and ensure that when we bring our loads down them that they stand up to what we are doing.”

 

Attorney Loy stated, “Mr. Cargill sat in on some of our negotiations of the Road Use and Drainage Repair Agreement. I think some of this is done pursuant to that agreement which I heard has been approved by Meadow Lake, but we haven’t received…”

 

Mr. Cargill stated, “It has been signed, you should be receiving signed copies.”

 

Attorney Loy stated, “I want to make sure that has been done.”

 

“Yes, and as far as it goes….if it is something that we damaged, then we will repair it. It’s kind of spelled out in the agreement.”

 

Attorney Loy stated, “Right, but again I want to see that contract signed by Meadow Lake. I’ve heard through the grapevine that it’s been approved out in New Jersey or somewhere…I don’t know.”

 

“I was in Houston last week and they told us that you should see it this week,” Mr. Cargill explained.

 

Attorney Loy asked, “Is this all of the access roads that come near or within our…?”

 

“Yes, there is…did Martin ever update that? I think there was one station that was omitted and that was on the one on the very south end where you cross the ditch off of SR 18,” Mr. Cargill explained.

 

Surveyor Sterrett stated, “I don’t think I have that one. I haven’t looked through all of these yet.”

 

“I can make you a copy of that one, but it’s a road coming off of SR 18 at the Rayman Ditch,” Mr. Cargill stated.

 

“You are going to use an existing crossing?” Surveyor Sterrett asked.

 

Mr. Cargill explained, “Yes, we’re going to use an existing crossing and we’re going to modify that crossing to allow the components to be brought in. Once we get our components in then we will remove the modifications.”

 

Surveyor Sterrett asked, “Will that be modified permanently?”

 

“What we plan on doing with the permanent road is headwalls or rip-rap in treatments….,” Mr. Cargill stated.

 

Board Member Heimlich asked, “Attorney Loy, how will we deal with this? Would this be a Consent to Encroach or something different than that?”

 

Attorney Loy replied, “There ought to be…I just have some more questions, so I know what we’re talking about. The damages issues would be covered, I believe, by our road agreement.”

 

Mr. Cargill stated, “Here is the only sheet that is missing. Martin was to get it to you, I apologize for it not being here, but this is the only location where we are affecting crossing the ditch…or within the easement of the ditch.”

 

“That is Mr. Warner’s property,” Board Member Burton stated.

 

Chairman Schmierer stated, “So you are going to maintain that on his property?”

 

“Yes,” Mr. Cargill replied.

 

Attorney Loy asked, “So, just for my information…these 36 pages, these are maps of access roads that will come within our right-of-way either open ditch or tile drain? Or open ditches only?”

 

Mr. Cargill replied, “I think it is open ditches only.”

 

“I think the tile drains are drawn in there too,” Surveyor Sterrett stated.

 

“Well, tile drains that are in the vicinity of…,” Attorney Loy stated.

 

Board Member Burton stated, “If there is a county tile, I think you are going to be responsible for relocating, right? If there is a tile? Have you run into any of those?”

 

“It shows some of them there, I think…” Mr. Cargill stated.

 

Attorney Loy stated, “Our road agreement requires not only to map out any access road or traffic within 100 feet.”

 

“I think that is what these are here,” Mr. Cargill stated.

 

“Ok, so you are just crossing, you aren’t having to relocate. I didn’t know where all these sites were,” Board Member Burton stated.

 

Attorney Loy stated, “We’re getting this for the first time today and that’s great, but Surveyor Sterrett hasn’t had a chance to review it. There isn’t anything to be approve today, it’s just information…”

 

“What procedure will be used, will it be a Consent to Encroach or something different?” Board Member Heimlich asked.

 

Attorney Loy replied, “On that I would recommend a separate Consent to Encroach, again…this is access roads only…a Consent to Encroach that will refer to that as one composite exhibit, but of course they are to submit their…the drain map that shows everything within I think 100 feet of any tile drain or open drain.”

 

“And then when we get our finalized collection, it’ll show any where we are boring, how we would cross on those areas and once we get that exhibit then it will be presented also,” Mr. Cargill stated.

 

Attorney Loy stated, “Now, the access roads will be built and they will stay there.”

 

“Correct,” Mr. Cargill stated.

 

“And there will be some access roads that will be within 75 feet of either the crest of an open drain or perhaps the center line of a tile drain, right?” Attorney Loy asked.

 

“Correct,” Mr. Cargill replied.

 

Board Member Heimlich asked, “Do you have some document from each landowner that states that they are on board with this or how does this work?”

 

Mr. Cargill stated, “The way that worked…I’m sure we could probably get some feedback from the landowners, but the way that worked is Martin worked with them. We showed them how we proposed the access roads coming in and at their suggestion they asked if they could place it there and that way we’re minimizing the amount of land we’re taking out of production. A lot of guys are farming part of that as you can see…it doesn’t show that on that, but on the aerial it will show that they are farming a lot closer than that. What it does is minimizes the amount of land we are taking out of production. Secondly, it makes them happy.”

 

“Yeah, but I just wondered…should we have some sort of documentation that the landowner is aware of it before we grant the consent?” Board Member Heimlich asked.

 

Attorney Loy replied, “Sure.”

 

Surveyor Sterrett asked, “What happens to the ground between the bank and the road? Is it just going to grow up with weeds or are they going to farm that too?”

 

Mr. Cargill stated, “That is something we could look at. If it’s farmed…”

 

“Probably some of it is in the conservation program now and for a narrow strip that might make more sense than trying to farm it,” Board Member Heimlich stated.

 

“Are the roads laid out now with stakes?” Surveyor Sterrett asked.

 

Mr. Cargill replied, “Yes, they are laid out.”

 

Board Member Burton asked, “Landowners are aware of this, right Mr. Cargill? It’s not that they don’t know that this is going to happen. Percentage wise…it doesn’t have to be close, Tip Top Farms….and this particular ditch, 50 percent of the ground along there.”

 

“That they are losing?” Mr. Cargill asked.

 

“Well, that farms that now. Well, I’m just getting at that one landowner is going to be most of those,” Board Member Burton stated.

 

Mr. Cargill stated, “Probably 50 percent, maybe.”

 

“And he probably hasn’t got anything small enough to farm 59 feet,” Board Member Burton stated.

 

“At their request we are asking to do this. It makes no difference to us. We can come to the edge of the easement and go 16 feet outside of that,” Mr. Cargill explained.

 

Board Member Heimlich stated, “I understand that. It’s just that we need to know the procedure we’re going to go through to…”

 

Mr. Cargill stated, “What I can do in the interim is I will have Martin get with Tip Top Farms and the ones that you think you need something from them stating that this is their preference…I’m sure we can probably work something out to get some information from them.”

 

Attorney Loy stated, “Yeah, and identify the names of the drains on the document.”

 

“Right now Big Creek is the only ditch being affected in Phase One, right?” Board Member Burton asked.

 

“Actually, is there more? I think there is…” Mr. Cargill stated.

 

Chairman Schmierer added, “I thought it was the Rayman too.”

 

“Well, you’re crossing it; you’re not running parallel to it. This encroachment to me is specific with this one ditch where they are trying to put the road and leave it there,” Board Member Burton stated.

 

Attorney Loy stated, “And this Consent to Encroach; we have this right-of-way of 75 feet on each side and the law prohibits the construction of any permanent, or semi-permanent structure or improvement without the Drainage Board’s consent. So, what we are talking about is giving that consent, but it comes with a number of conditions to repair any damages. It is much the same thing that was discussed in negotiations with that contract. That would be a separate document which we can prepare, but again, we’ll need to know specific drain names.”

 

Mr. Cargill stated, “We’ll update that and get the specific names.”

Attorney Loy questioned, “Again, just for my own information…these are access roads only, right?”

 

“Access roads only,” Mr. Cargill stated.

 

“There will be, I suppose, some tracts that the access road will land lock and will cut off from production,” Attorney Loy stated.

 

“Well, I would say that would be up to them (Horizon Wind Energy) and the farmer,” Chairman Schmierer stated.

 

Attorney Loy asked, “Will landowners have access across your access roads or not?”

 

Mr. Cargill replied, “Typically, yes they do. I’m sure some of them are farming within that easement. I’m sure that once the road is put in and we place it on that easement…”

 

Chairman Schmierer asked, “Is there anything else you need to discuss on this, Surveyor Sterrett? Or are you clear on what you need on it or not?”

 

Surveyor Sterrett indicated that he had nothing further to discuss regarding Horizon Wind Energy and Meadow Lake Wind Farms.

 

Chairman Schmierer asked if there was anything further for the Drainage Board. Chairman Schmierer then adjourned the meeting.