February 5, 2008
VIA FACSIMILE & FIRST CLASS MAIL
Mr. David L. Hollenbeck
Blachly, Tabor, Bozik & Hartman, LLC
56 South Washington, Suite 401
Valparaiso, IN 46383
RE:Susan & Frank Powers, 4101 Chickadee Lane, Valparaiso
Tanna Burnett, 1308 Oriole Road, Valparaiso
Elsie Taylor, 4121 Wildwood Road, Valparaiso
Jerry & Nikki Pollard, 1504 Redwing Road, Valparaiso
Elizabeth Fordham, 1405 Oriole Road, Valparaiso
Dear Mr. Hollenbeck:
Thank you for your letter of January 28, 2008 and follow up phone call yesterday.
It is my understanding from our conversation that you have asked Haas and Associates to provide a more detailed report regarding the three potential remedial actions identified in their preliminary report of January 16, 2008. You expect to receive the updated report tomorrow, February 6th, at which time we will arrange a time to meet with David Burrus, an engineer and Porter County Drainage Board member, who has agreed to consult on this matter and provide us with his expert analysis. I appreciate the steps you have taken in this regard and to make certain we have considered all reasonable options, I will retain a consulting engineer as well.
In response to your letter and to ensure we are on the same page with respect to the Conservancy District’s legal obligations in this matter please note:
- The Conservancy District’s duty to address and correct the drainage problem in the “Kettle Lake” area is not dependent on whether the District Plan “specifically targets Kettle Lake for special consideration.” Rather, the Conservancy Act requires the board to implement the district plan by constructing and maintaining works for the benefit of all property within the district unless specifically stated otherwise. See I.C. §14-33-12-1. Indeed, the Indiana Supreme Court recognized that landowners within a conservancy district are assessed and taxed in proportion to the special benefits they receive. Martin v. Ben Davis Conservancy District, 238 Ind. 502, 153 N.E.2d 125, 133 (1958). Where landowners receive “exceptional benefits” they must pay accordingly and when property is injured the landowner is entitled to payment for damages. Id. Accordingly, while the District Plan in this case may not “specifically target Kettle Lake,” the landowners in this area, including my clients, are entitled to the same special benefits that inure to all other property owners within the district. Instead, they have received little to no benefit with respect to flood prevention and control or drainage improvement despite the fact that they have paid their share of assessments.
- To assert that my clients “moved to the nuisance” because their homes were built prior to the conservancy district’s creation is inconsistent with the facts. Although this low-lying area may have been “prone to flooding” at the time my clients’ homes were built, the area did not flood after every rain event bringing the City of Valparaiso’s stormwater runoff, garbage and sewer overflow into their basements as it does now.
As you correctly point out, land use decisions by the County Drainage Board, Plan Commission and others over many years have significantly increased drainage and flooding into this area. These decisions were made after my clients’ homes were built and were certainly outside of their control. However, the Conservancy District could have exercised its eminent domain power outside the boundaries of the district, performed necessary construction and maintenance work outside the district, and/or made contracts or entered into agreements with other government agencies, including the County, and persons to address the problem and accomplish the District’s established purposes.
Although the Conservancy District has been aware of the problem for nearly 20 years (reference to 1989 engineering study and 1990 project), it has taken no further action despite my clients’ repeated pleas for help. During that time, the fair market value of their real estate plummeted and they are now unable to sell their homes even if they wanted to. Based on these facts, a court could easily find the Conservancy District liable for maintaining a nuisance within its boundaries that over 20 years has evolved into a public health and safety threat.
- It is my understanding that the Conservancy District claims it has been unable to take necessary action in part because an adjacent landowner, namely Elizabeth Fordham, refused to provide necessary easements. Ms. Fordham, now my client, informs me that she has not been approached by the Conservancy District since 1990, has never refused to cooperate in providing necessary easements and, in any event, is willing to cooperate now.
Clearly, the primary goal is to employ a meaningful solution without creating new problems for other landowners or further degrading Flint Lake, and to reasonably compensate my clients for their related damages. I agree with you that cooperation and coordination of effort is critical but, please understand, that my clients will not tolerate any further unnecessary delay in identifying and implementing a real solution.
I have enclosed my firm’s check in the amount of $31.70 for VLACD’s costs to copy the 317 pages of documents responsive to my public records request. As for the 55 photographs and 6 engineering prints, I will make arrangements with Katie Kostantios to view them to determine which if any should be reproduced.
Thank you for your candid and cooperative approach thus far. I look forward to hearing from you.
Very truly yours,
LEGAL ENVIRONMENTAL AID FOUNDATION
Kim E. Ferraro
KEF:mac
cc:Bob Harper
Susan & Frank Powers
Tanna Burnett
Elsie Taylor
Jerry & Nikki Pollard
Elizabeth Fordham