Crowel v. Marshall Cnty. Drainage Bd., 50S03–1202–MI–71.

• Decision Date: 30 July 2012
• Docket Number: No. 50S03–1202–MI–71.,50S03–1202–MI–71.
• Parties: Thomas R. CROWEL, Appellant (Petitioner below), v. MARSHALL COUNTY DRAINAGE BOARD, Appellee (Respondent below).
• Court: Indiana Supreme Court

971 N.E.2d 638

Thomas R. CROWEL, Appellant (Petitioner below),

v.MARSHALL COUNTY DRAINAGE BOARD, Appellee (Respondent below).

No. 50S03–1202–MI–71.

Supreme Court of Indiana.

July 30, 2012.

Mark A. Bates, Schererville, IN, Attorney for Appellant.

James N. Clevenger, Plymouth, IN, Attorney for Appellee.

Bryan H. Babb, Stephen C. Unger, Indianapolis, IN, Attorneys for Amicus Curiae Association of Indiana Counties.

On Petition to Transfer from the Indiana Court of Appeals, No. 50A03–1011–MI–606

SULLIVAN, Justice.

Thomas Crowel appeals a Marshall County Drainage Board order assessing him a portion of a drain-reconstruction project's costs, contending that he receives no benefit from the project because his land was adequately drained before the reconstruction. We affirm the assessment because under Indiana law, all landowners whose surface water flows into a drain receive a benefit by virtue of that drainage.

Background

The Indiana Drainage Law, Ind.Code §§ 36–9–27–1 to –114 (2007), establishes an extensive and detailed regulatory scheme for addressing drainage issues. It creates a drainage board in each county, I.C. § 36–9–27–4, and gives the board jurisdiction over all regulated drains ¹ in the respective county, except as otherwise provided by the statute, I.C. § 36–9–27–15. The Drainage Law vests these boards with comprehensive regulatory authority to construct, reconstruct, and maintain public drains to alleviate problems associated with flooding, wetlands, and other accumulated surface water. I.C. §§ 36–9–27–38 to –69. It also empowers the boards to levy special assessments on properties benefited by drainage projects, provided that the assessments are apportioned to the benefits accruing to the particular parcel. I.C. §§ 36–9–27–39, –50, –62, –84(a), –112. The county surveyor assists the drainage board in the exercise of its statutory authority by providing specialized technical expertise. I.C. §§ 36–9–27–29, –34.

Myers Drain is a regulated drain in Walnut Township, Marshall County, Indiana. It was constructed between 1909 and 1913 and consists of an open ditch, called Myers Ditch, and eight clay-tile arms. The present case concerns the Marshall County Drainage Board's plans for reconstruction of Arm # 7 of the Myers Drain.

The watershed ² of Arm # 7 is approximately 358 acres and consists of commercial, residential, and agricultural properties. Pursuant to statute, Marshall County Surveyor Larry Fisher filed a report with the Board classifying Arm # 7 as a drain in need of reconstruction on the basis that the drain was inadequate to perform the function for which it had been constructed. SeeI.C. §§ 36–9–27–34(b)(1), –49. To reduce costs, Fisher recommended relocating and reconstructing the drain and using a drain with a wider diameter. Still, he estimated that the project would cost approximately $114,474, and he sent the Board a proposed schedule of assessments. The Board agreed with the surveyor's report and figured that assessments would be approximately $300 per acre for agricultural land, approximately $600 per acre for residential land, and approximately $900 per acre for commercial land. It also discussed the possibility of classifying the project as an “urban drain.” In compliance with the statute, the Board subsequently published notice that a public hearing would be held to discuss the reconstruction of Arm # 7, and it also mailed notice to the affected landowners who were to be assessed under the proposal. SeeI.C. § 36–9–27–52.

Petitioner Thomas Crowel owns 26 acres of farmland within Arm # 7's watershed. The proposed schedule of assessments called for his 26 acres to be assessed $7,055.41. After receiving notice to that effect, Crowel (and a few other landowners) filed written objections with the Board prior to the public hearing.

On March 15, 2010, the Board held a public hearing. Surveyor Fisher first discussed the reason for the proposed reconstruction, explaining that the existing tile was too small to drain the water that accumulated after a heavy rainfall. This was due largely to a substantial drop in elevation from the high points at the southern end of the watershed to the low points at the northern end of the watershed over a short distance—approximately 60 feet over the course of about a mile—which resulted in large amounts of rainfall racing toward a small outlet.

Crowel and his attorney were the first members of the public to speak at the hearing. Crowel maintained that he was not within the watershed of the Myers Drain because he paid a maintenance assessment on the Ballinger Drain. He also testified that he had never suffered the flooding problems afflicting the landowners at the lower end of the watershed and, as a result, that his property would not be benefited by the reconstruction. He admitted, however, that a small corner of his property occasionally had standing water, but he asserted that this was because a private tile drain that was supposed to drain into Arm # 7 had been blocked by a utility company's gas line. Crowel's attorney then posed questions to the Board concerning the benefit Crowel would receive from the reconstruction project, the procedures followed to arrive at the proposal, Crowel's private tile drain and the parties responsible for clearing it, and the criteria used to assess the lands within the watershed.

The Board, Surveyor Fisher, or both responded to each of these objections and concerns. Fisher explained that Crowel was paying a maintenance assessment on the Ballinger Drain because the Myers and Ballinger watersheds previously had been combined together for maintenance purposes. He also explained that the Board had no jurisdiction over Crowel's private tile drain and that, because it was blocked by a gas line, Crowel would have to talk to the gas company and the highway department about getting his private tile unblocked; but Fisher and a Board member also explained that Crowel's land would be benefited if the blockage were removed. Fisher and Board member Jack Roose also explained that, because Crowel's property is at the high end of the watershed, surface-water runoff from his land contributes to the flooding of lower-lying lands. Fisher explained that this project benefited Crowel because someone else was receiving his water. He also explained that, in determining the flow of water, he had looked at the topography of the land and had run a hydrology program to determine the volume of water entering the drain from each parcel. Fisher then testified that, in determining the assessment amounts, he and the Board had “look[ed] at the watershed and the use of the watershed,” “look[ed] at the potential for runoff,” and “determine[d] what the total watershed [was].” Ex. A, at 33–34. Finally, Fisher clarified that water drained from Crowel's property in two ways-his private tile (once cleared) and surface-water runoff.

At the conclusion of the meeting, the Board found that the schedule of costs, damages, and expenses of the proposed reconstruction would be less than the benefits accruing to the owners of land benefited by the construction, as required by statute, I.C. § 36–9–27–52(h). Therefore, it adopted the surveyor's reconstruction report and schedule of assessments and ordered that the reconstruction and relocation of Arm # 7 commence. And because the Board had designated Arm # 7 as an “urban drain,” it established a 20–year period for the payment of assessments.

On March 31, 2010, Crowel filed a petition for judicial review in Marshall Circuit Court, seeI.C. § 36–9–27–106, contending that the Board's decision and assessment was arbitrary, capricious, unlawful, and not supported by substantial evidence. The trial court heard counsels' arguments and considered the matter solely on the record of the Board proceedings. On September 30, 2010, the court entered its findings and order affirming the Board's decision. The trial court's relevant findings were as follows:

7. The evidence shows that the Petitioner's farm ground is at or near the higher end of the watershed area and the natural flow of storm water run-off carries the water from his real estate to that of the lower situated landowners.

8. The Court finds that flooding problems suffered by the affected (primarily residential) landowners at the lower portion of the watershed result in part from dealing with the water run-off from the Petitioner's farm ground and the other agricultural ground located at the highest point of the watershed area.

9. The Drainage Board found it to be appropriate for all parcel owners within the watershed to bear some cost of the project and established a tiered rate structure for agricultural acreage, residential acreage (double the agricultural rate) and commercial acreage (triple the agricultural rate).

10. The Petitioner alleges that the Board's decision was arbitrary, capricious, unlawful or not supported by substantial evidence in that the decision was not based upon any drainage study or any scientific method.

11. The evidence before the Board at the public hearing held on March 15, 2010, included detailed maps of the watershed area to include the Petitioner's acreage as well as profile and elevation studies of the newly proposed drain.

12. The testimony of the surveyor at the public hearing held on March 15, 2010, established that the Petitioner's property fell within the watershed of Arm # 7 of the Myers Drain and that surface runoff water from his property contributed to the flooding problems experienced by the homeowners at the lower end of the watershed.

13. The Petitioner did not present any credible evidence that his property was not within the watershed of Arm # 7 of the Myers Drain.

14. The Petitioner's primary allegation was that his property would not be benefited because his property did not flood when the parcels lower in the watershed flooded.

15. The Board's finding that his property contributed to the flooding problems of the...