Clark Cnty. Drainage Bd. & Clark Cnty. Bd. of Comm'rs v. Isgrigg

• Decision Date: 11 January 2012
• Docket Number: No. 10A05–1102–PL–68.,10A05–1102–PL–68.
• Parties: CLARK COUNTY DRAINAGE BOARD and Clark County Board of Commissioners, Appellants, v. Robert ISGRIGG, Appellee.
• Court: Indiana Appellate Court

963 N.E.2d 9

CLARK COUNTY DRAINAGE BOARD and Clark County Board of Commissioners, Appellants,

v.Robert ISGRIGG, Appellee.

No. 10A05–1102–PL–68.

Court of Appeals of Indiana.

Jan. 11, 2012.

C. Gregory Fifer, Applegate Fifer Pulliam LLC, Jeffersonville, IN, Attorney for Appellants.

Douglas B. Bates, Bruce B. Paul, Stites & Harbison, PLLC, Jeffersonville, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

The Clark County Drainage Board (“the Drainage Board”) appeals the trial court's entry of summary judgment in favor of Robert Isgrigg. The Drainage Board raises three issues for our review, which we restate as follows:

1. Whether Isgrigg had standing in his official capacity as Clark County Surveyor to seek a declaratory judgment of his statutory rights and obligations vis-á-vis the Drainage Board with respect to two Drainage Board projects;

2. Whether the Drainage Board acted in a manner contrary to law when it engaged in a subdivision drainage project without the participation of the County Surveyor; and

3. Whether the Drainage Board acted in a manner contrary to law when it removed an obstruction from a natural surface watercourse without the participation of the County Surveyor.

We hold that Isgrigg, in his official capacity as County Surveyor, had standing to seek declaratory relief from the Drainage Board's actions. On the merits, we hold that the Drainage Board's subdivision project did not establish a regulated drain under the Indiana Code and, therefore, the Drainage Board was not required to utilize the County Surveyor. However, the Drainage Board's removal of an obstruction from a natural surface watercourse without the County Surveyor's participation did violate the Indiana Code. Accordingly, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY¹

In April of 2000, the Clark County Board of Commissioners (“the Board of Commissioners” or “Commissioners”) formally organized the Drainage Board by enacting an ordinance. The Drainage Board consists of three members, with the County Surveyor acting as an additional ex officio and nonvoting member of the Drainage Board. Under Indiana law, “[e]ach regulated drain in a county is under the jurisdiction of the [drainage] board and subject to this chapter, except as otherwise provided by this chapter.” Ind.Code § 36–9–27–15. Shortly after its creation, the Drainage Board enacted a policy that required drainage complaints to be filed, in writing, with the County Surveyor, who would then “review and obtain information about the complaint” and present it to the Drainage Board. Appellee's App. at 48.

In January of 2007, Isgrigg took office as the duly elected Clark County Surveyor. As County Surveyor, Indiana law conferred the following duties and responsibilities on him:

The county surveyor is the technical authority on the construction, reconstruction, and maintenance of all regulated drains or proposed regulated drains in the county, and he shall:

(1) investigate, evaluate, and survey all regulated drains or proposed regulated drains, and prepare all reports, plans, profiles, and specifications necessary or incident to any proposed construction, reconstruction, or maintenance of regulated drains;

(2) prepare and make public standards of design, construction, and maintenance that will apply to all regulated drains and their appurtenances, taking into consideration in preparing these standards the published recommendations made by Purdue University, the American Society of Agricultural Engineers, the American Society of Civil Engineers, the United States Department of Agriculture, the department of natural resources, the United States Army Corps of Engineers, and other reliable sources of information;

(3) supervise all construction, reconstruction, and maintenance work performed under this chapter;

(4) catalog and maintain a record of all surveying notes, plans, profiles, and specifications of all regulated drains in the county, and of all mutual and private drains when available; and

(5) perform the functions set forth in sections 67 through 69 of this chapter concerning all urban drains under his jurisdiction.

In preparing plans under subdivision (1), the surveyor shall, when feasible, include the seeding of the banks of all open drains. The surveyor shall, when feasible, use United States Geological Survey data on plans and profiles prepared under subdivision (1).

I.C. § 36–9–27–29. Further, as relevant here,² Indiana law requires the County Surveyor to give an estimate for the cost of construction or reconstruction of a drain to the Drainage Board (with the final contract price limited to the amount of the County Surveyor's estimate plus 10%), I.C. § 36–9–27–77, and to “promptly investigate” the existence of an obstruction, if a petition is filed to the Drainage Board for removal of such obstruction from a “mutual drain,” and to “report the existence of the obstruction to the [D]rainage [B]oard,” I.C. §§ 36–9–27.4–1, –12.

On October 18, 2007, the Board of Commissioners passed Ordinance No. 13–2007 (“the 2007 Ordinance”). That ordinance provided as follows:

WHEREAS, a need exists to better identify the scope of designated duties to the [Drainage Board] in a manner that serves the best interests of Clark County citizens;

WHEREAS, a further need exists to authorize the Drainage Board to perform duties of inquiry, within the parameters and limitations of law, to evaluate reported “drainage problems” in the County, place them in proper context, and refer them to the appropriate agency (if any) for addressing or curing a situation when it is the responsibility of the County, distinguished from the responsibility of private landowners or other contractors or developers;

NOW, THEREFORE, BE IT ORDAINED by the Board as follows:

1. That each and every recital set forth hereinabove is made a part of this Ordinance;

2. The scope of functions of the [Drainage Board] ... is hereby designated to include the following additional duties and responsibilities:

(a) To perform inquiries into reports of drainage defects, incidents or drainage problems in the unincorporated County that is not within any remaining two-mile fringe jurisdiction of any city or town in Clark County, Indiana, regardless of when the reported event or problem arose;

(b) To make reasonable businesslike inquiry into situations described within subparagraph (a) above, without limitation by the date upon which the Drainage Board was formally created.

(c) To engage and authorize any professional persons under contract with the Drainage Board (in a contract approved by the Board of Commissioners) to render written reports of inquires made concerning the subject matter of subparagraph (a) above.

(d) To take official action of referral to any agency that has/had legal supervisory authority over persons, contractors or circumstances in the area where the drainage defect, drainage incident or drainage problem has been reported and has been made the subject of the written report referenced above.

(e) To render all technical and professional assistance, as is reasonable and necessary, to the agency subject to the above referral, that is dedicated to the goal of reasonably and efficiently remediating the situation under inquiry to the extent it is within the legal jurisdiction of Clark County, Indiana [,] government[ ] and its Drainage Board pursuant to this Ordinance.

Appellants' App. at 63–64.

In July of 2008, Isgrigg filed a complaint for declaratory judgment and permanent injunction against the Board and the Drainage Board. Isgrigg filed an amended complaint in March of 2010. According to Isgrigg's amended complaint:

1. Isgrigg is a Clark County resident and taxpayer who is the duly elected Surveyor for Clark County....

* * *

44. In ... responding to ... alleged drainage problems, the Drainage Board and/or [the Board of] Commissioners have separately paid [Brian] Dixon[, a drainage engineer,] to perform drain assessments rather than deferring to Isgrigg's technical authority, opinions, cost estimates, and general expertise on drainage issues as is required, by statute, at no additional expense.

45. The Drainage Board and/or [the Board of] Commissioners have then acted on Dixon's representations without either involving Isgrigg as required by the statutes or holding the appropriate hearings required by the statutes.

46. In further responding to these alleged drainage problems, the Drainage Board and/or [the Board of] Commissioners have relied on Dixon's assessments and awarded contracts without inviting or requesting bids from companies qualified and desiring to perform the work.

47. In another instance, at an additional cost to Clark County, the Drainage Board and/or [the Board of] Commissioners engaged the services of another engineering firm to draft a new drainage ordinance, and this act by the [Board of] Commissioners and/or Drainage Board was again performed without the input and technical expertise of Isgrigg.

48. Once Isgrigg learned about this practice by the [Board of] Commissioners and/or Drainage Board, he publicly objected on the record to the Drainage Board's failure to comply with the Indiana Code statutes governing the Drainage Board.

Id. at 343, 350–51. Isgrigg then asked the trial court to declare the respective roles of the County Surveyor and the Drainage Board and to enjoin the Board of Commissioners and the Drainage Board “from acting in any way that contravenes the Indiana Code.” Id. at 355.

In between the filing of his original complaint and the filing of his amended complaint, Isgrigg filed three separate requests for a temporary restraining order (“TRO”) against the Drainage Board under the same cause number. In his first request, Isgrigg sought to prevent the Drainage Board “from paying or ordering another county official [to pay] any bills for work ordered by the Drainage Board including ... $8,800 to Team Contracting of Memphis.” Id. at...