Clouse v. Noble County Drainage Board

809 N.E.2d 849, 2004 Ind. App. LEXIS 1047, 2004 WL 1231567
CourtIndiana Court of Appeals
DecidedJune 4, 2004
DocketNo. 57A03-0310-CV-430
StatusPublished
Cited by8 cases

This text of 809 N.E.2d 849 (Clouse v. Noble County Drainage Board) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clouse v. Noble County Drainage Board, 809 N.E.2d 849, 2004 Ind. App. LEXIS 1047, 2004 WL 1231567 (Ind. Ct. App. 2004).

Opinion

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

In September 2002, the Noble County Drainage Board ("the Board") issued its final order regarding maintenance of the Hosler Watershed System ("the Watershed"), in which the Board assessed periodic maintenance rates to be paid by persons who own land within the Watershed. Thereafter, Terry Clouse, Helen Clouse, Michael Clouse, Jaqueline Clouse, Charles Eugene Akers, and Edna Akers (collectively, "the Petitioners"), owners of land within the Watershed, filed a Petition for Judicial Review of the Board's final order under Indiana Code Section 86-9-27-106. Following an evidentiary hearing, the trial court issued findings and conclusions affirming the Board's order. The Petitioners now appeal and present several arguments, which we consolidate into a single issue: whether the evidence supports the trial court's determination that the Board complied with Indiana law when it assessed the periodic maintenance rates.

We affirm.

FACTS AND PROCEDURAL HISTORY

The drains located within the Watershed were constructed around the year 1900. The Watershed is comprised of approximately 2,854 acres and 164 separate parcels. For all relevant periods, the drains in the Watershed have been regulated drains 1 and have been characterized as [851]*851drains in need of periodic maintenance. See Ind.Code § 86-9-27-34(a)(2) (stating county surveyor shall classify all regulated drains in county as either drains in need of reconstruction, drains in need of periodic maintenance, or drains that should be vacated).2 Specifically, in 1985, the county surveyor at that time classified the drains as drains in need of periodic maintenance, but the Board ordered no assessment fees.

In 2001, flooding occurred in the Watershed along County Road 800 East. Noble County Surveyor Scott Zeigler investigated the flooding and determined that a portion of the Veazey tile had collapsed and was blocking water traveling downstream. The surveyor's office replaced approximately twenty feet of tile. Thereafter, Zeigler began to inspect the status of the remaining portions of the Veazey tile, in addition to other drains in the Watershed. He then prepared a Periodic Maintenance Report of the Hosler Watershed System, as required by Indiana Code Seetion 36-9-27-38, in which he proposed that the Board assess a per acre and minimum parcel fee to pay for several proposed maintenance projects in the Watershed. That report clarified that although the Watershed had been classified as a drain in need of periodic maintenance for several years, no maintenance had been performed. Zeigler agreed with the classification and suggested that the system "be placed on maintenance at a level sufficient to perform necessary maintenance on the regulated drains within the system." The report also provided in relevant part:

I have attached hereto a list of all lands that I feel are benefited by the Hosler Watershed System{;] the list is labeled as "The Hosler Watershed System Schedule of Assessments." [3] This list includes the parcel number and the name of the owner of each tract of land as shown in the record of transfers kept by the Noble County Auditor. Also included within said list are the proposed annual assessments of each tract of land being benefited by the periodic maintenance [of] said drain. The percent of the total annual assessment of the system is also shown for each landowner.
The annual assessment for each tract of land is based on the reimbursement of work that was performed at the end of 2001 and the beginning of 2002 on the Veazey Tile. This work included the removal of some obstructions to the tile and some minor repairs in order to correct a severe road flooding problem on County Road 300 East. The final bills have not been received for this project as of this date. However, the estimate for this work is approximately $2,500.00.
The proposed work for this system would include first de-brushing and bottom dipping of the Veazey Open ditch and replacement of the Veazey Tile to [852]*852resolve the road flooding problem on County Road 300 East. Then the Hosler Ditch would be de-brushed and bottom dipped beginning at the bottom end and working upstream to the top end of the system. The maintenance funds that are collected would also be utilized to replace and repair any other regulated tile within the system. At the proposed rates and at today's costs, it will take approximately fifteen years to de-brush and bottom dip the open ditches and to replace the regulated tile within the system.
The annual cost of periodic maintenance for the Hosler Watershed System is estimated to be $87,221.65. This rate, if established by the Noble County Drainage Board, would continue until such time that the system balance is equal to four times the annual assessment. At that point the system would stop collecting until the system balance drops below four times the annual assessment when it would begin collecting again. The Noble County Drainage Board could also determine that once a given amount of work has been performed or at a certain time that the rates for the system would be reduced to a lower amount.
In the process of establishing the proposed periodic maintenance rates, I have considered all benefits (including those identified in I.C. 36-9-27-112) aceruing to each parcel of land within the Hosler Watershed System. Different parcels of land may derive different benefits from the maintenance of the regulated drains within this system. It is my opinion that each acre of land benefits by the below mentioned rate per acre and that all tracts of land benefit by the minimum rates as shown below.

Zeigler recommended in his report that each landowner pay $12 per acre, with a minimum rate of $75 per parcel.

On February 11, 2002, the Board conducted a hearing concerning maintenance of the Watershed.4 During the hearing, Zeigler reported on the status of the Watershed. The minutes of the hearing provide in relevant part:

Zeigler explained some of the problems in [the Watershed]. Recently, Zeigler walked the main open [drain] in this watershed except for the portion south of 550 [South] and rode the 4-wheeler to inspect the [Veazey] Tile. The bottom end of the open [drain] has [a] large amount of brush and has about 2-feet of sediment in it. There are several log jams and bank slides along the very winding open [drain]. Landowner, Eugene Akers[,] has done some work privately on the tile and open drains on his property. There were a few blowholes on his ground.
* * *
Zeigler stated that the proposed assessment sent out is $12.00 an acre, with a $75.00 minimum. This would bring in $37,221.65 a year. This assessment will replace or repair every county drain in the system over a course of 15 years. This assessment rate could be cut depending on what amount of work the Board and{/lor landowners would like to have done and how soon. There are some tiles that could be opened up and made into an open drain and this would save some money. There was an emer-geney repair under county road 300E on [853]*853the [Veazey] tile due to flooding over the road. This needed to be done before someone was hurt.

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809 N.E.2d 849, 2004 Ind. App. LEXIS 1047, 2004 WL 1231567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clouse-v-noble-county-drainage-board-indctapp-2004.