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Wednesday, January 19, 2011

Ind. Gov't. - "Clark drainage rules violate Indiana law, suit argues"

Ben Zion Hershberg reported in a lengthy Jan. 14, 2011 story in the Louisville Courier Journal:

A couple has sued the Clark County Drainage Board and the developer of a subdivision next to their property, claiming the subdivision has sent thousands of gallons of extra water onto their land, repeatedly destroying their driveway and turning much of their five acres into a swamp.

“We’ve been here 40 years, and we had no problems” before the Forest Hills subdivision was built three or four years ago, said John Nicholson, who lives with his wife Charlotte on Ind. 60 near Bennettsville.

The couple’s lawsuit strikes at the heart of drainage regulation in the county, and if successful, it could have a big impact on the county, with at least half a dozen simlar lawsuits “waiting in the wings,” according to former County Surveyor Bob Isgrigg.

Such a victory, Isgrigg said, could require a rewriting and toughening of the county drainage ordinance, which would affect many new subdivisions as the county grows.

The lawsuit argues that the county regulation “is in direct violation” of the state’s drainage laws because it allows “drastically increased amounts of storm water to be discharged onto the down stream land owners after any normal rainfall.”

Greg Fifer, the Clark County Attorney and lawyer for the drainage board, agreed that a successful lawsuit by the Nicholsons could raise quiestions about the county’s drainage regulation and how it complies with state law. But he believes the lawsuit should be considered on much narrower grounds — simply as an example of county government enforcing its rules.

In contrast with the Nicholsons and Isgrigg, he believes the county drainage ordinance protects the public better than state law. * * *

The Nicholsons’ fired back with their lawsuit in Clark Circuit Court, claiming the water flow onto their driveway isn’t natural but “was artificially manufactured” by the subdivision’s development.

Isgrigg, who was county surveyor until his election loss last year, said he believes the Nicholsons are correct in pointing out a conflict between the county ordinance and state law.

Ironically, he issued the order requiring the Nicholsons to remove the curb along their driveway because he believes it meets the definition of “obstruction” to water flow that should be removed.

But, Isgrigg said, he thinks the Nicholsons’ drainage problems were caused by a flawed county drainage ordinance, which he believes exceeds state limits on how much water can be drained across a neighbor’s property when a subdivision is built.

He pointed to state statutes that say a subdivision drainage plan “must maintain the amount of drainage through the tract that existed when the tract was created,” before it was developed.

Isgrigg and the drainage board, of which he was a non-voting member, disagreed so much during his tenure as surveyor that he sued the board, saying it violated his authority to review and approve drainage repairs planned by the agency.

Clark Superior Court Judge Vicki Carmichael agreed with Isgrigg in a ruling last year, but Fifer has asked the court to reconsider

Fifer contends Isgrigg’s interpretation of state drainage law is incorrect. He argued in a telephone interview that it’s impossible for a subdivision, with its streets, rooftops and other hard surfaces, which prevent rain water from being absorbed by the earth, to not increase the water flowing from the area after it rains.

Fifer said that he interprets the language in state law to mean water flowing through a subdivision can’t be blocked by development, and that a drainage plan must provide culverts, drains and other features that will allow water to keep flowing through the area.

In contrast to the state law, Fifer said, the county drainage ordinance says the rate of water flow after development can’t exceed the rate of water flow before a subdivision is built.

So the increased water flowing from a subdivision after its houses and streets are built must be slowed by ponds or basins so that the rate of runoff after a storm, isn’t greater than it was previously.

Water will flow from a subdivision for a longer time after development, Fifer explained, but it must flow at the same rate as it did before the land was developed.

That means, Fifer said, that under the county ordinance, a neighbor’s property may “be wetter, longer” after a subdivision is developed next door.

For background, start with this ILB entry from Dec. 11, 2010.

Posted by Marcia Oddi on January 19, 2011 10:18 AM
Posted to Indiana Government