Wednesday, December 15, 2010

Who's in Charge of the Drainage?

HARBESON: A draining issue

> SOUTHERN INDIANA — Clark County Surveyor Bob Isgrigg appears to have come out on top in two skirmishes with the Clark County Drainage Board.

Isgrigg contended that the Drainage Board spent funds improperly and a State Board of Accounts report backed up this claim. Isgrigg also won a lawsuit against the Drainage Board, accusing them of not following proper procedure when they bypassed the Surveyor to fix two drainage issues.

I’m on Isgrigg’s side as far as the SBOA report is concerned, particularly on the issue of government money being spent where private owners may have been responsible. According to current Drainage Board attorney Greg Fifer, when this issue came to a head, all parties agreed mistakes were made but by that time checks were deposited and the work was done so for various reasons it was declared moot.

(I’m starting to wonder if this is the preferred method of getting things done for our local governments. Just charge ahead, do what you want, ignore any laws or regulations and then when the work is done, shrug your shoulders.)

So, Isgrigg seems to be right on target in relation to the SBOA report. But when it comes to this lawsuit and any possible implications, I’m not so sure.

According to state law, the surveyor is the “technical authority” of all regulated drains in the county. However, for state law to be applicable, the county needs to have “regulated drains.” This is where the important controversy exists.

Does the county have “regulated drains” as defined by state law or not?

Isgrigg says yes. Judge Vicki Carmichael’s judgment, at least as it pertains to the two drains in the lawsuit, agrees. However, it’s the position of the drainage board and its lawyer Greg Fifer that the county does not have “regulated drains.”

Here’s my position: I have no idea. It’s complicated. All I know is that whether or not we have “regulated drains,” we certainly do have what I would call “regulated drainage” because developers are required to submit drainage plans and get approval before they can build in this county. So drainage in general is obviously regulated, but whether or not that has anything to do with “regulated drains” as defined by state law no one seems to know.

Maybe forcing the developers to pay fees and get drainage plan approval does transfer responsibility to the government. If so, that certainly doesn’t sound right. Surely we don’t want to have instances where the developers aren’t responsible for their actions. Yet this appears to be what Isgrigg is celebrating.

Isgrigg sounds giddy when he says homeowners can now sue the county for violating state law. He seems to want the county to be financially responsible for subdivision drainage problems. But why should government be responsible?

Isgrigg says the way the county has been operating meant homeowners needed to get help from developers. But that makes perfect sense. Developers perform the drainage work so naturally they are the responsible party.

If people are having trouble with developers on drainage issues, how does that make the government responsible? Doesn’t that just mean the homeowners need to pursue action against the developers? If class-action lawsuits are a good idea now, against the county, why weren’t class action lawsuits filed against developers?

Who does he think is going to pay if there are judgments against the county? Governments have no wealth; they can only take wealth from the private sector.

Will the taxes the developers paid in drainage approval fees be enough to pay for any drainage responsibility that Isgrigg thinks this lawsuit covers? If not, will only those who directly benefit be the ones to pay? Or will any action drag in others who had no part in any of this and receive no direct benefit? If so, then this is not a win.

— Sellersburg resident Debbie Harbeson is wondering how to handle her own current drainage issue: Should she just sniff or go get a tissue?
Photo courtesy wikimedia

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