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March 5, 2001 Tape #005

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 Ronald Schmierer, O. D. Ferguson and John Heimlich, Attorney George W. Loy, Surveyor Rick Raderstorf and Secretary Romana Kiser in attendance.

Also attending were Engineer Todd Frauhiger of Samuel L. Moore and Associates, Dan Weese of CEI Engineering representing Walmart, Charles R. Mellon, Clarence Lopp, Denise Lopp, Karl Bick and Moe Hanif.

Chairman Schmierer called the meeting to order and recognized Moe Hanif who explained that he needed a Right to Encroach on the Kelyla Branch of the Esther Fraser Drain in Honey Creek Township so that he may subdivide on the east side of the ditch. He asked for a variance to take the easement down to 35 feet. Attorney Loy stated you can be as close as 35 feet. Chairman Schmierer said that 35 feet gives the County room to get in and do work on the drain. Surveyor Raderstorf explained that the drain goes along one side of Mr. Hanif’s property.

Attorney Loy asked, in order to clarify, “We are granting him permission to build anything he wants within 35 feet of the Kelyla Ditch.” Chairman Schmierer said, “Right.”

Board Member Ferguson made the motion to grant Mohammed “Moe” Hanif a variance through his property with the permission to build anything he wants on his property within 35 feet of the Kelyla Drain, a branch of the Esther Fraser Drain, in Honey Creek Township, Reynolds, Indiana. Board Member Heimlich seconded the motion. The motion carried unanimously.

Chairman Schmierer opened the Hearing on the Vacation of the portion of the Simeon Davisson Drain north of US Highway 24 in Union Township, White County, Indiana.

Surveyor Raderstorf explained and showed on a map that he understands that when Branch 2 of the Buss Drain was put in, it was put in because a portion of the Davisson Drain was not working. He said probably it was plugged with roots and that is why they put the Branch 2 in. When Branch 2 was put in, vacating the Davisson Drain should have been taken care of at that time, but it was not taken out of the records. He said he does not think that the portion to be vacated has worked for a long time.

He showed on the map where the joint efforts of the County Surveyor and the Soil Conservation Office put in an air well structure to the ditch and then the County had the Davisson tile hooked into it so we had relief through here but it was never rewritten or anything (in records). It was actually coming down and going through a tile that we didn’t own. Chairman Schmierer asked landowner Clarence Lopp if he thought that was the way the tile was. Tenant Karl Bick answered, “Yes, we have evidence and that is what I remember of it being in there before like that.” Clarence Lopp said, “The field usually drains, not great, but decent and now we’re getting a lot of water standing in the field. More than it has ever had.” Chairman Schmierer said, “You’re not getting any drainage at all now, I can tell you that.”

Engineer Frauhiger noted on the map, “We know this piece (of Davisson Tile) was taken out during (Walmart) construction, so there’s no drainage upstream from this piece.” Chairman Schmierer said there’s probably no drainage from wherever the Walmart property is this way (west), all the drains have been taken out. Board Member Ferguson said, “They probably damaged all of the tile when they took the dirt out and hauled sand in there, too. They took a lot of dirt out of there and then they went in with heavy trucks and hauled sand in there and might have broken that tile down then.”

Engineer Frauhiger showed on the map where the new church to the west of the Lopp property has a detention pond and constructed a new ditch along the tree line which ties into the open ditch so a lot of the surface water can now be picked up by that ditch and be taken to the open ditch. He said basically we think the tile just served the remainder of the property that wasn’t sold off to Walmart. Chairman Schmierer said, “For that tile to work, it is going to have to be picked up back here at the property line and brought down and across.” Engineer Frauhiger said that is correct; there is a ditch along the front of US Highway 24 along in front of Walmart. Chairman Schmierer said he didn’t think that ditch was deep enough; it would have to be tiled.

Clarence Lopp was shown on the map where the drainage used to be and where it is now and what is no longer there. Chairman Schmierer stated that he does not believe there is anything left under the blacktop (Walmart and Outlot 1 and Outlot 2); he thinks it has all been torn out. Karl Bick stated they cannot find the outlet.

Karl Bick added, “The other thing that has happened, when they (Walmart site) built their property level up, the water used to surface drain down to the air well that used to be down here (shown on map) and now what’s happened is they have made like a dam and the water is stopping at the edge of their property and holding water along the edge of the property.” Engineer Frauhiger asked if it helped any, he said he remembered that it used to be really bad and Bob Wrede went in there and did a little bit of grade work in there. Karl Bick said the road ditch is too high to drain the surface water off of the field; the field seems to be lower than the road ditch.

Karl Bick stated that they lost two-thirds of the crop in that field this year. He stated that he has photographs that he took this summer. Attorney Loy asked Dr. Lopp if there was any contractual obligation between himself and Walmart concerning drainage during the purchase of the land. Dr. Lopp said not that he was aware of. He stated that there were agreements for ingress and egress to the property, there were utility capabilities in case they decided to sell the adjacent property, but as far as tile there was no mention because there was no idea that tile would be an issue as far as drainage. He said the property was always kind of wet, but not under water all the time like it is now.

Dr. Lopp stated, “That’s our concern, the way it stands, is there any drainage there, is it all surface drainage, where is it going to go.” Chairman Schmierer asked, “Is there any drainage at all now, Todd?” Engineer Frauhiger answered, “No. I do think there was a minor improvement made for some of the surface water going this way when Bob Wrede went out and worked on this ditch but as far as on out here in the field I don’t think that there’s any drainage at all. Karl Bick said there must be headlands that’s holding water back in different places there in the field and just relying basically on evaporation to dry it out.

Karl Bick had with him a plan to tile that field that was proposed in 1966 that shows all the laterals through that field and two ten inch outlets. Karl said this was what was recommended but the Soil Conservation office didn’t have a record of what was put in. He said that in the aerial you can see the County tile draining across that field and the white lines showing quite a few laterals off of the County tile. Engineer Frauhiger said it is a real good exhibit, you can see the tile going under US Highway 24. Karl showed the drawing of what the Soil Conservationists did put in there in 1990. Off of Highway 24, sixty feet into the field, was a drop inlet and then they hooked into the County tile and brought it over to the Buss Ditch and that was the outlet for the County tile at that time.

Engineer Frauhiger stated, “Just so it is understood how this was not picked up when the original review of Walmart (Drainage Plan) was done, it was the former Surveyor’s understanding that this tile (Simeon Davisson) had been abandoned when the Buss Ditch was put in. Upon further checking by Rick that might have been the intent but it was never done.”

Chairman Schmierer said, “Well, there’s only one way to fix it, and that is to go out there and hook on to it and bring it down to the road and tile it over to the ditch."” Engineer Frauhiger agreed, he said, “That’s assuming there’s some drop there.” Surveyor Raderstorf said there is probably some drop there. Surveyor Raderstorf said the tile would go under the road ditch. Engineer Frauhiger said, “The road ditch ties in at the bottom of this ditch and your tile would stick out of the ground somewhere further upstream. It is my understanding that this was a fifteen inch tile that was taken out?” Karl Bick answered that he believed it was a fifteen inch tile.

Chairman Schmierer stated, “Murphy Oil is wanting to put a station in and they can’t get a drainage permit until they get the water taken care of where it’s at now.” Surveyor Raderstorf said, “Plus it would be inside the right-of-way easement of the County tile.” Chairman Schmierer said actually Wendy’s is built right over the easement where the air well was. Engineer Frauhiger stated that Wendy’s had a failure in the parking lot probably because the tile they built over was partially working, but not now because they filled it back up, covered it with stone and rebuilt the parking lot.

Clarence Lopp stated “We don’t want it (proposed portion of Simeon Davisson Drain) vacated. We are opposed to the vacation.”

Chairman Schmierer asked if anyone had any suggestions on how to fix the problem. Dan Weese of CEI representing Walmart stated, “Your suggestion is the best one, I think my concern is, I think that everyone agrees that what is there currently is not working. What you’re asking for is the vacation of that current location. Everybody agrees you’re not going to rebuild the tile; you’re not going to put it back where it was. Chairman Schmierer agreed it can’t be put back where it was.) So that’s why we’re suggesting that you can still vacate that and then resolve the drainage problem.”

Chairman Schmierer asked, “Is Walmart willing to pay for resolving the drainage problem since they created the drainage problem?” Dan Weese said, “I think we’re in agreement that the tile wasn’t necessarily working before Walmart got there.” Everyone disagreed with Mr. Weese’s statement and said it was working. Dan Weese said, “I guess I misunderstood what was said about the roots being in the line.” Chairman Schmierer said that was in the woods. Dan Weese asked when the line under the highway plugged. Chairman Schmierer answered, “1990, that’s when they brought it down to the ditch.” Dan Weese stated, “In answer to your question, will Walmart pay for that, I can’t answer that.”

Chairman Schmierer stated, “I guess we just shelf this.” Attorney Loy said, “What you are talking about, if you are considering something else, it will be a reconstruction project.” Dan Weese said, “What I’m trying to determine is, you’re going to vacate it at that location and reconstructing it somewhere else, not in place?” Attorney Loy said that vacating it doesn’t say that you are going to reconstruct it. Dan Weese said, “I understand, basically what you are saying is that you aren’t going to vacate it unless there is some agreement to reconstruct a section of it.”

Board Member Heimlich said, “If we vacate it, we would be giving up our jurisdiction.” Surveyor Raderstorf stated that at this point, the only ones involved are Lopps and Walmart, because the rest are all being serviced by another tile. He said that is why he thinks it was intended to vacate it when the open ditch was put in, otherwise it would have been kept on maintenance. Engineer Frauhiger said there are no assessments on the Simeon Davisson, everything is assessed on the Buss Ditch.

Attorney Loy said, “The point John (Heimlich) brought up is a good one, if you do vacate this today, then there is nothing to reconstruct.” Board Member Heimlich stated, “Then you would be starting with not a reconstruction but a new construction. If we maintain control over it, then we can change the route and it would be reconstruction.”

Attorney Loy told Dan Weese and Clarence and Denise Lopp, “Since you are the landowners, you come to some sort of consensus on how it would be paid for because ultimately the County does not pay for it but the landowners end up paying for it.”

Dan Weese asked, “Is there a consensus from everyone here that that fixes the problem? If there was a fifteen inch tile constructed up that ditch and went out into that field would it drain it?” Surveyor Raderstorf said, “It would take care of it probably as farm ground, agricultural, anything beyond that it wouldn’t.” Dan Weese asked, “Is there enough elevation change to the bottom of the ditch?” Engineer Frauhiger said he didn’t know. Dan Weese said, “Then we don’t know for a fact that will solve the problem.” Surveyor Raderstorf said that it drained it before. Engineer Frauhiger said we might not be able to go underneath the side ditch. He said the top of the pipe might be above the bottom of the ditch. Chairman Schmierer said there is still some buffer ground there between the side ditch and the parking lot, if we had to get into that area, and he doesn’t think there are utilities in there.

Clarence Lopp asked, “How are you saying it could be corrected or tied in, reconstructed?"” Engineer Frauhiger said, “If we can find this point, where it used to come across what is now Walmart property, and bring it down between the two properties, basically where Bob Wrede (contractor) graded the ditch, but there would be a pipe that comes underneath that ditch up to US 24 and then runs parallel to US 24 and then to the ditch (Buss Ditch).

Denise Lopp asked, “Whoever damaged the tile, who is responsible? We were using it, who came in to do the land work and didn’t know that they were going through those tiles? Who’s fault is that? We’re just stuck with water and what did we do? We didn’t do anything.”

Chairman Schmierer stated, “Basically speaking it has to be fixed if they’re going to farm that, we all know that. How can we tell where that pipe is at in there, Todd?” Engineer Frauhiger answered, “Well, we don’t know where it is, it is buried someplace. We can’t find it to get a shot on it.”

Karl Bick said, “If it happens to be under Walmart’s property now, if it is still good, it might still work with the laterals that are in that field.” Surveyor Raderstorf said, “You would have to run along the side and intercept them all, hook up with this one and come down here.” Chairman Schmierer said, “The problem is, they hauled so much sand and stuff in back there, there’s no way if that’s under the parking lot that it is any good.” Surveyor Raderstorf said, “But if you run a chaser and pick it up before it gets there……”

Charlie Mellon suggested they could find the big tile and take the water to the north. Surveyor Raderstorf didn’t think the ditch would be low enough. Dan Weese said he would like the option left open to go north if feasible and would solve it, versus going south because of road crossings and utilities involved if you go south. Engineer Frauhiger said it looked like it all went south before.

Engineer Frauhiger said we are going to have to get some surveying done on what the existing elevation is on the drainage system (existing) and determine if any can go to the north and what portion has to come to the south.

Dan Weese said, “The original survey for construction shows both ditches and I assume they have spot elevations of those ditches. If that ditch was built very flat, which typically drainage ditches are, I think you are going to find out that the elevation difference between here and here is fairly minimal. It may be uphill on the surface, but your pipe would get deeper as you go to the north.” Attorney Loy went to his office to get the original survey for construction of Walmart.)

Engineer Frauhiger asked if that ditch (to the north) is three or four foot deep. Surveyor Raderstorf said it is deeper than that. Engineer Frauhiger said, “Ok, so you could theoretically retile this field up to that ditch if you keep the tile three foot down.” Surveyor Raderstorf said you could for a ways, he didn’t know how far south you could go with it because the ground drops pretty fast. Karl Bick said where they dredged it there is quite a slope but it is fairly level after that the lowest part being towards US 24.

Dan Weese said, “From Walmart’s stand point, our interest is not to have a drainage easement under our parking lot. That was the purpose of requesting a vacation, trying to get that section vacated. If we need to get involved with the adjacent landowner in the solution of his drainage problems caused by that, we will address that. Our interest in the vacation was to not have it under our parking lot. We’re not saying we’re not going to fix anything.” Chairman Schmierer said, “It is pretty evident that’s what caused it.” Dan Weese said, “Oh, I’m going to have a hard time arguing with you. My understanding is that was all one landowner and you subdivided and sold us part of it?” (The answer was yes).

Dan Weese said the landowner did have an obligation to notify them that there was a tile there before selling them the ground. He said, “If I was selling property that I knew drained across another piece I was selling I would reserve some drainage rights across that. Had that been made known at that part of the transaction, we wouldn’t be standing here today, because that fix would have been designed in the original part of the project.” Clarence Lopp said, “There was discussion about what we were going to do with our half, we were supposed to be working in conjunction with one another. I’d have to go back…..” Dan Weese said, “None of us knew what was going on earlier at the time, I just know how the engineer in our office works and had we known it was there we would have addressed it, made an effort to do what we’re going now, try to come up with a solution. My only concern about going to the south is you have to deal with the DOT and any other drives that are in there you’re going to have to deal with. If you go to the north, that’s ultimately where it will go if somebody develops anyway.”

At this time, the original Walmart plans were studied to see the ditch elevations.

Chairman Schmierer said, “In the essence of time, we will shelf the vacating and plan on the landowners getting together and getting something straightened out and getting back with us.”

Board Member Heimlich made a motion to deny the Vacation of a Portion of the Simeon Davisson Drain at this time. Board Member Ferguson seconded the motion. The motion carried unanimously.

Clarence Lopp asked, “You mean we should get together and get a solution by a certain date?” Surveyor Raderstorf said, “You have to come before us to get it vacated.” Chairman Schmierer stated, “We would like for you to get a solution to drain it (Lopps’ field) before we try to vacate it (Davisson Drain).”

Surveyor Raderstorf reported that Benton County Surveyor Jack Steele plans to set up a maintenance project on the Curtis Creek. Surveyor Raderstorf explained, “He will collect $6.60 an acre for a while and then drop down to something. It has never been on maintenance so he wants to set it up and clear the open part of the ditch. The open part of the ditch doesn’t come into White County but we have tile that comes into White County. What he wants to do is clear the open and the tile then will be set up on maintenance. These are ballpark figures, but we have 1,856 acres and there is a total of 9,600 acres in it and 32 landowners. He asked if we want to waive our rights in this, I think to kind of speed up the project a little bit.” Board Member Heimlich said, “With that many landowners and that much acreage, I don’t think we want to do that.” Chairman Schmierer agreed and told Surveyor Raderstorf to tell Mr. Steele to set up a joint board. Board Member Heimlich stated, “We’ll work with him just as quick as he wants to get a meeting, I don’t think that’s a problem.” Chairman Schmierer said to put him and Board Member Heimlich on the joint board.

Surveyor Raderstorf showed on a map where development is planned in the Johnson-Tribbett Subdivision. Engineer Frauhiger voiced concerns and showed where a swale was to be put in and pipes were to be put in underneath what is going to be a cul-de-sac and will be going under Sixth Street and none of that has been put in. Surveyor Raderstorf and Engineer Frauhiger are in agreement that they can’t let further development happen in there until these things are accomplished. The Board was in agreement.

Engineer Frauhiger stated that since Paul Couts is revising it, he feels he should tell him that it opens it back up and we need calculations and need this thing built prior to starting new development in this subdivision. Surveyor Raderstorf said we at least need some calculations on what he has planned. Doug Barnard, builder for the owner, said he has not applied for a building permit yet, he has to go through City of Monticello first and he’s waiting for the State permit to come back. Doug Barnard said, “So basically we’re (builder) just dead in the water until these guys get their act together.” Chairman Schmierer agreed. (See tape on this portion – the discussion based on the subdivision not having a drainage plan was incorrect. It was researched after the meeting that there is a drainage plan on file and a drainage permit was issued for the subdivision.)

Surveyor Raderstorf reported that the Fry Ditch that was discussed with Mark Hines two weeks ago is set up on a Joint Board with Cass County. He said we have applied to Cass County to waive their rights on it since they have just very few acres on it, and we should hear from them on that today after their Drainage Board meeting. Then we will set up a hearing to raise the maintenance rates.

Surveyor Raderstorf discussed the Carter Hines Drain landowners’ meeting saying, “We talked about notifying the whole watershed which if that’s what we have to do, that’s what we have to do. But, if we’ve done work on part of that already I don’t know if we need to do the whole watershed, because I know we have done some work on it back through Bob Roth’s.” Chairman Schmierer said, “They’ve done some back there and they’ve done some down there through Tolley’s and all of that up there. But we’ve got the other end of it up there, probably ten or twelve miles. We have to go through DNR and everything else on that. So that’s the reason why I had told him (Surveyor) to notify all landowners since you were going to go clear back up.” Attorney Loy asked, “For a clean out?” Chairman Schmierer said, “Well, we’re going to have a landowners’ meeting.” Board Member Heimlich said, “To see what they want to do before we advertise it.” Chairman Schmierer said, “To give them a ballpark figure.”

Charlie Mellon stated that about half of that has already been cleaned. Chairman Schmierer said, “Well, it has but if it is over ten miles long we have to go through DNR, IDEM and everybody else.” Charlie Mellon said the landowners on the bottom end are going to growl, over fifty percent of them will be against it. Chairman Schmierer said, “We have to clean the upper end now, how can they be against it if they cleaned theirs and the other end up there needs cleaned. Somebody’s got to pay for it, those people up there helped pay for theirs. There’s big cottonwood trees up there right in the middle of the ditch. If you don’t do anything south of CR 600 N where are they going to dump the water?” Charlie Mellon stated that west of Hines’s house north of SR 16, there is almost eighty acres under water after a two inch rain.

Surveyor Raderstorf stated, “If we do this under construction and get Todd’s group involved (engineer and registered surveyor), if we don’t have a specific spot to begin, you know if we have to do that whole thing you’re talking a major project.” Chairman Schmierer said, “You’re talking about a lot of money but there’s a lot of acres but you could be into $40.00 or $50.00 an acre on this thing and these people need to know that up front, before you start spending any money.”

Surveyor Raderstorf asked, “So you want to go ahead and set up a landowners’ meeting for the whole thing.” Chairman Schmierer answered, “Yes, that probably should be set up for some evening.”

Surveyor Raderstorf said he doesn’t want it to get stopped and the upper end not get theirs done because the lower end has already got theirs done. Chairman Schmierer said “We went up there and looked at that and the tributaries coming into it are full of cattails and brush and if I was a farmer and I was paying on that big ditch and I had a tributary you didn’t clean I’d scream. I think it should all be cleaned at once. If anyone’s going to have advantage of it, you’ve got to have everybody get advantage of it.”

Attorney Loy reported that the Drainage Board won their appeal with the Tolley case in the Court of Appeals involving the Carter Hines Drain.

Board Member Heimlich made a motion to approve the minutes of the last meeting. Board Member Ferguson seconded the motion. Motion carried unanimously.

Jack Pherson was on the agenda but did not attend the meeting. Surveyor Raderstorf reported that Mr. Pherson still thinks the Brechbiel Drain tile is not working right. He said all we can do is try to go out and look at it after a rain. Contractor Mike Ezra has checked every claim Mr. Pherson has made and he doesn’t think there is anything wrong with it. Mike Ezra says he will go and check anything the board wants him to, but if it is not his problem or something he caused then he expects to get paid for it.

Chairman Schmierer adjourned the meeting.