Samantha Drive Culvert Info
5U~~E
~Yk.~
MEMORANDUM
September 29, 2005
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Samantha Drive
At the September 6, 2005 City Council meeting, a group of citizens asked the City
Council to intervene in a dispute about drainage in their neighborhood. In support of
their position, the representatives quoted from Resolution #270-00, a Resolution
approving the Final Plat of Lots 1 thru 27, inclusive, Lots A, Band C of Embassy West
No.3 in the City of Dubuque, Iowa.
Corporation Counsel Barry Lindahl has reviewed this resolution and advises, "The
resolution approved the final plat of certain lots in Embassy West No.3 and required the
developer to construct certain public improvements and other work. The developer,
Moore Development, Ltd., completed the construction of the required improvements in
accordance with the resolution. I do not find any basis in the resolution for the City to
take any action with respect to the filling of the drainage swale by one of the property
owners."
Barry continues with "The only potential remedy available to the City, in my opinion,
would be a legal proceeding against the property owner who filled the swale to declare
the obstruction a nuisance and request the Court to order that the owner abate the
nuisance by removing the obstruction."
In 2000, Moore Development, Ltd. submitted improvement plans for the development of
the subdivision along the Northwest Arterial that includes Samantha Drive. As part of
this development the City of Dubuque required that the developer hire an engineer to
design a drainage channel to adequately handle storm water runoff from the NW Arterial
and Asbury Road. As designed, the channel crosses eight lots on Samantha Drive and
continues southward adjacent to private property to the NW Arterial Detention Basin.
The developer installed the drainage channel as designed. In addition, the developer
established covenants for the property crossed by the channel, including the restriction
that the drainage channel could not be altered.
The channel, located on private property is privately owned. There is no public
easement for the drainage channel.
A property owner has installed a small diameter (15-inch) drainage pipe and filled in the
remaining portion of the drainage channel through their property. Several of the
neighbors have raised concerns about this including concerns about flooding and runoff
during heavy rainfall and have asked the city to look into the matter. After reviewing the
matter with Corporation Counsel Barry Lindahl and City Engineer Gus Psihoyos it was
determined that 1) the new property owner did not need a permit from the City prior to
filling in the drainage channel and 2) although there are restrictive covenants that
prohibit filling the ditch, the City cannot enforce the covenants because it is not a party
to the private covenants. Therefore, only the residents of the subdivision can enforce
the covenants. The neighbors could also take legal action against the new property
owner on the grounds that the obstruction in the ditch is a private nuisance. The only
legal remedy available to the City would be if the obstruction to the ditch constitutes a
public nuisance, Le., it constitutes a threat to the health, safety or welfare of the public.
" 'I
/) //I, ' (. ( I;, ,_ Vi / / , If
Michael C. Van Milligen
I
',/pil
( -; I_I \
.J /
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Gus Psihoyos, City Engineer
Susan Meehan, 2465 Samantha Drive, Dubuque, IA
\.
8 A R R Y A. L I N 0 A H L, E 5 Q
CORPORATION COUNSEL, ITY OF DUBUQUE
MEMO
To:
Michael C. Van Milligen
City Manager
DATE:
September 22,2005
RE:
Samantha Drive
At the September 6, 2005 City Council meeting, a representative of the Samantha Drive
Neighborhood Association provided the Mayor and City Council with a copy of
Resolution No. 270-00. I have reviewed Resolution No. 270-00 with City Engineer Gus
Psihoyos. The resolution approved the final plat of certain lots in Embassy West No. 3
and required the developer to construct certain public improvements and other work.
The developer, Moore Development, Ltd., completed the construction of the required
improvements in accordance with the resolution. I do not find any basis in the
resolution for the City to take any action with respect to the filling of the drainage swale
by one of the property owners.
The only potential remedy available to the City, in my OpiniOn, would be a legal
proceeding against the property owner who filled the swale to declare the obstruction a
nuisance and request the Court to order that the owner abate the nuisance by removing
the obstruction.
The following is a short summary of the law of nuisance. The law of nuisance is based
on the motion that one must use one's own property so that the neighbor's comfortable
and reasonable use and enjoyment of their property will not be unreasonably interfered
with or disturbed.
Iowa Code S 657.1 (1) defines a nuisance as follows:
Whatever is injurious to health, indecent, or unreasonably offensive to the
senses, or an obstruction to the free use of property, so as essentially to
interfere unreasonably with the comfortable enjoyment of life or property,
is a nuisance, and a civil action by ordinary proceedings may be brought
to enjoin and abate the nuisance and to recover damages sustained on
account of the nuisance.
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113/ FAX (563) 583-1040/ EMAIL BALESQ@CITYOFDUBUQUE.ORG
However, the statutory definition of nuisance does not modify application of common
law to nuisances and the courts will look to the common law to fill in the gaps.
There are two kinds of nuisances: private and public. A private nuisance is an
actionable interference with a person's interest in the private use and enjoyment of the
person's land. Examples include vibrations, blasting, destruction of crops, flooding,
pollution, and disturbance of the comfort of the plaintiff, as by unpleasant odors, smoke,
or dust.
A public or common nuisance is a species of catchall criminal offenses, consisting of an
interference with the rights of a community at large. This may include anything from the
obstruction of a highway to a public gaming house or indecent exposures.
The same circumstances may create both a public and private nuisance. The facts may
create a nuisance to the general population and also a nuisance to individual plaintiffs.
The elements of public nuisance are: (1) unlawful or anti-social conduct that (2) in some
way injures (3) a substantial number of people. The determination of private nuisance
rests upon whether there has been "an actionable interference with a person's interest
in the private use and enjoyment of his land."
Iowa Code S 364.12(3) provides that "A city may . . . Require the abatement of a
nuisance, public or private, in any reasonable manner." Section 657.1 can also be used
as the basis of both public and private nuisance actions.
I would suggest that it would be inappropriate for the City Legal Department to take on
the responsibility for prosecuting private nuisance actions for a nuisance that affects
only an individual or small number of property owners when the property owners are
capable of bringing such an action on their own. This would also put the Legal
Department in the unusual position of representing private property owners.
Thus, the question is whether the filling of the drainage swale on Samantha Drive
constitutes a public nuisance - whether it in some way "injures a substantial number of
people" - and, if so, whether the City should bring a public nuisance action.
There is authority in Iowa that the obstruction of a water course constitutes a public
nuisance. In City of Waterloo v. Waterloo, C.F. & N. Ry. Co., 125 N.W. 819, 149 Iowa
129 (1910), a public nuisance action was brought by a city against a railroad for
obstructing a stream. The Supreme Court described the conditions created by the
obstruction:
The petition sets forth the matters and things hereinbefore mentioned, and
alleges that the effect of maintaining the fill constructed by defendant is to
obstruct a natural water course; that such obstruction tends to increase
the height of the floods above the crossing, and thereby fill the low places
with water, which remains after the floods have subsided and create
stagnant pools; that the debris and foul matter thus deposited create
..
unhealthful conditions, and materially interfere with the health, comfort,
and convenience of residents and visitors in that neighborhood; that the
floods so caused injure the public highways, and at times extend to the
Westfield addition, depositing mud, sand, and other materials in its streets,
and that the conditions complained of will continue indefinitely if the
defendant is permitted to continue the obstruction of the cut-off.
In order to answer the question of whether the filling of the drainage swale constitutes a
public nuisance, I would suggest it is first necessary to have an opinion from an
engineer as to the scope and extent of the consequences of the obstruction.
If there is a basis, based upon an engineer's opinion, for concluding that the obstruction
in the drainage swale is a public nuisance, then the two alternatives available would be
to bring an action in District Court asking the Court to declare the obstruction a nuisance
and ordering that it be abated, or in the alternative, bringing a municipal infraction
complaint for the public nuisance and ask the Court to assess a penalty and require that
the nuisance be abated.
cc: William G. Blum, City Solicitor
Cindy Steinhauser, Assistant City Manager
vGus Psihoyos, City Engineer
{k;~~E
~~~
MEMORANDUM
September 28, 2005
TO:
FROM:
Michael C. Van Milligen, City Manager
Gus Psihoyos, City Engineer _ oQ
Samantha Drive Culvert Installation
SUBJECT:
INTRODUCTION
The purpose of this memo is to provide information with regard to the issues
surrounding the installation of the culvert in the waterway near Samantha Drive.
BACKGROUND
In 2000, Moore Development, L TD submitted improvement plans for the development of
the subdivision along the Northwest Arterial that includes Samantha Drive. As part of
the development the City of Dubuque, required that the developer hire an engineer to
design a drainage channel to adequately handle storm water runoff from upstream. The
channel crosses eight privately-owned lots on Samantha Drive, terminating at the
Northwest Arterial Detention Basin.
As is the case with the majority of drainage ditches, creeks, etc. within the City, there is
no public easement for the channel because the channel is the responsibility of the
owner of the property that it crosses and common law requires property owners to allow
upstream stormwater to pass through his or her property.
A homeowner has installed a small diameter (15-inch) drainage pipe and filled in the
remaining portion of the private drainage channel that runs through their property.
Several neighbors are concerned that flooding will occur because of the culvert and
they asked the city to look into the matter.
There is a restrictive covenant for the subdivision that prohibits "adding any permanent
or semi-permanent structure that would obstruct the drainage way or create an erodible
situation." Only the property owners within the subdivision who are a party to the
restrictive covenants can enforce the covenants. To enforce the covenant without a
large expense ($50 filing fee and $8 for a certified letter) or lengthy legal process, a
homeowner could take the matter to small claims court.
DISCUSSION
Citizens raised several issues at the September 6th City Council meeting with regard to
the modifications done to the ditch by Joyce and Aren Merrick.
1) "The Merricks were told before they altered the waterway that not only was the
alteration against our neighborhood covenants, but more importantly, the city
ordinances. We feel this is an issue that should be handled by the city since
permits were not granted."
Installing a culvert on private property does not constitute an ordinance violation.
There are ordinances applicable during the development of a subdivision. But
they do not apply to the individual lots once sold. Other ordinances might apply
during the development of an individual commercial lot, as a site plan may be
required.
There is no ordinance requiring or authorizing the use of a permit to regulate the
installation of a culvert. In addition, public funds have not been established for
the resolution of a drainage disputes between private property owners.
2) "Just one year ago, other homeowners along the same waterway were told if
they disturbed the waterway, the city would seek legal action against them."
Because the citizen did not identify the City employee who promised legal action,
and the Engineering Department staff has no recollection or documentation of
the statements to that effect, it is unknown what ordinance the promised legal
action was based upon. Again, installing a culvert on private property does not
constitute an ordinance violation.
3) "Based on this correspondence from the city, all improvements made to the
waterway were done with a formal engineering study, proper permits, and the
city's permission."
The present waterway design was produced in 2000, prior to approving the
proposed final subdivision plat and improvement plans. Engineering required a
study that outlined the waterway's ability to convey stormwater in a non-erosive
fashion before approving the final plat and the improvement plans.
4) "Calls to the city engineer confirmed the drainage tile is insufficient, and a real
problem exists."
While it is readily apparent that "a small plastic drainage tile" is insufficient to
carry the same flow as the waterway, the full extent that the drainage tile will
impact surrounding properties has not been quantified. That would require
surveying the area and doing engineering calculations, an effort estimated
between $1,000 and $2,000.
5) "We have been informed that the city does not want to spend the time or money
to fight this case."
Only the homeowners can enforce the case that the culvert installation is a
violation of the restrictive covenants established for the subdivision. To enforce
the covenant without a large expense or lengthy legal process, a homeowner
could take the matter to small claims court.
6) "We are asking the city to intervene as it has done in the past. As voters and tax
payers, we request the city's assistance in resolving this matter."
The Engineering Department and the Legal Department have visited the site and
met with several of the concerned neighbors. As presented to the City Council in
September, and again herein installing a culvert on private property does not
constitute an ordinance violation.
But an ordinance is not required to have the waterway "returned to the state it
was in when the Merricks purchased the land" because a restrictive covenant
exists that prohibits "adding any permanent or semi-permanent structure that
would obstruct the drainage way or create an erodible situation." Although the
City cannot bring the case of the covenant violation, the homeowners have it
within their power to utilize small claims court to have the "waterway returned to
the state it was in when the Merricks purchased the land" as they desire.
7) There was a discussion about Resolution 270-00, approving the final plat of
Embassy West No. 3 and that the installation of the culvert violates the agreed
upon terms of the resolution.
In the resolution, then developer, Moore Development, Ltd., agreed to the
following stormwater related items:
a. To install storm sewers and catch basins, to install erosion control devices
all in a manner acceptable to the City Engineer. (Section 2, Part b)
The storm sewers and catch basins were installed according to the
approved subdivision improvement plans. In addition, adequate erosion
control was utilized during the development of the subdivision.
b. To construct a storm water detention facility in a manner acceptable to the
City Engineer. (Section 2, Part c)
While discussions between Engineering and Moore Development, Ltd.
continue about the acceptable nature of the detention facility, it is
downstream of the culvert and it does not impact the homeowners along
Samantha Drive.
c. To construct erosion control measures in the drainage swale in Lots 17
through 24 in a manner acceptable to the City Engineer in accordance
with the improvement plans approved by the City and inspected by the
City. (Section 2, Part d)
In the spring of 2005, Moore Development, Ltd. constructed the waterway.
Inspected by Engineering personnel, it was constructed in accordance
with the improvement plans.
d. To maintain the public improvements for a period of two (2) years from the
date of acceptance of those improvements by the City. (Section 2, Part f)
The owners of Lots 17 through 24 own the waterway. It is not a public
improvement.
e. That the final acceptance of all public improvements shall occur upon
certification of the City Engineer that all public improvements have been
completed in accordance with the improvement plans. (Section 4)
The public improvements have not been accepted by the City Council.
However, the waterway is not a public improvement.
ACTION TO BE TAKEN
I respectfully request direction with regard to this matter.
attachment
Prepared by Deron Muehring
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Laura Carstens, Planning Services Manager
Ken TeKippe, Finance Director
Kyle Kritz, Associate Planner
Deron Muehring, Civil Engineer II
August 30, 2005
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Private Drainage Channel Near Samantha Drive
In 2000, Moore Development, L TO submitted improvement plans for the development of the
subdivision along the Northwest Arterial that includes Samantha Drive. As part of this development
the City of Dubuque required that the developer hire an engineer to design a drainage channel to
adequately handle storm water runoff from the NW Arterial and Asbury Road. As designed, the
channel crosses eight lots on Samantha Drive and continues southward adjacent to private property
to the NW Arterial Detention Basin. The developer installed the drainage channel as designed. In
addition, the developer established covenants for the property crossed by the channel, including the
restriction that the drainage channel could not be altered.
The channel, located on private property is privately owned. There is no public easement for the
drainage channel.
A property owner has installed a small diameter (15-inch) drainage pipe and filled in the remaining
portion of the drainage channel through their property. Several of the neighbors have raised
concerns about this including concerns about flooding and runoff during heavy rainfall and have
asked the city to look into the matter. After reviewing the matter with Corporation Counsel Barry
Lindahl and City Engineer Gus Psihoyos it was determined that 1) the new property owner did not
need a permit from the City prior to filling in the drainage channel and 2) although there are
restrictive covenants that prohibit filling the ditch, the City cannot enforce the covenants because it is
not a party to the private covenants. Therefore, only the residents of the subdivision can enforce the
covenants. The neighbors could also take legal action against the new property owner on the
grounds that the obstruction in the ditch is a private nuisance. The only legal remedy available to the
City would be if the obstruction to the ditch constitutes a public nuisance, Le., it constitutes a threat
to the health, safety or welfare of the public.
Michael C. Van Milligen
City Manager
MCVM:cs
CC: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Gus Psihoyos, City Engineer
Page 1 of 1
Jeanne Schneider
cc.::;J2
From: Susan [susancj@mchsi.com]
Sent: Tuesday, August 30,20059:37 PM
To: jschneid@Cityofdubuque.org
Subject: City council agenda
Dear Ms. Schneider,
I am writing to you as a member of the SIifiII_1 Drive Neighborhood Association. We are requesting to be
added to the City Council Meeting on Tuesday, September 6, 2005. We are wishing to speak of drainage issues
that are affecting our neighborhood. I'm also sending you a copy of the letter I am sending each member of the
city council. If you should need to contact me, my name is Susan Jewell and I live at 2400 SRi_ Drive. My
phone number is 583-4834.
Thank you,
~lfIi Drive Neighborhood Association
08/31/2005
Page 1 of2
Jeanne Schneider
From: Susan [susancj@mchsi.com)
Sent: Wednesday, August 31,200510:59 AM
To: jschneid@cityofdubuque.org
Subject: Samantha Olive Drainage ditch issues
Honorable Mayor Duggan,
We the concerned citizens of Samantha Dr write to you to ask for your assistance. New land
owners, Joyce and Aren Merrick have filled in the drainage way that we are all collectively
responsible. A small plastic drainage tile has been buried and the waterway filled in. This
drainage tile is insufficient to meet the demands of the several sources that drain into it. In
the short time since the drainage tile was placed into the creek, neighbors downstream have
experienced minor flooding and increased debris. During rainstorms, the water that flows
through the tile does so under intense pressure creating a brisk, dangerous current. The small
size of the pipe cannot accommodate all the water. Much of it flows around the pipe onto
surrounding land. The flooded land then dumps water into the creek at the same spot as
where the drainage tile empties into the creek. The creek then floods and also has a very
rapid current. In addition, there is a pile of dirt sitting on top of the filled in area that is
eroding into the creek and polluting it.
Prior to the Merrick's alteration of this creek, there were no problems with standing water or
swift currents, even after large rains.
The Merricks were told before they altered the waterway that not only was the alteration
against our neighborhood covenants, but more importantly, the city ordinances. Just one
year ago, other homeowners along the same waterway were told if they disturbed the
waterway, the city would seek legal action against them. Based on this correspondence from
the city, all improvements made to the waterway were done with a formal engineering
study, proper permits, and the city's permission.
We have asked for help from the city in this matter. Calls to the city engineer confirmed the
drainage tile is insufficient, and a real problem exists. He has been very helpful and has seen
the waterway along with the city attorney . We have been informed that the city does not
want to spend the time or money to fight this case. We feel this is an issue that should be
handled by the city since permits were not granted.
We are asking the water way be returned to the state it was in when the Merricks purchased
the land. We are asking the city to intervene as it has done in the past. As voters and tax
payers, we request the city's assistance in resolving this matter.
08/31/2005
Page 2 of2
Sincerely,
The Samantha Drive Neighborhood Association
08/31/2005