Neighbors, Siblings Can’t Settle Flood Dispute
February 28, 2018 at 7:57 p.m.
By Mark [email protected]
SYRACUSE – Nearly every spring, yards in the northwest corner of Dewart Lake have some flooding, and everyone knows it.
But some people living along EMS D1, EMS D2 and EMS D3 lanes say a home built about 18 months ago makes flooding worse. And the issue has cause a rift between siblings.
William Shively Jr. and his wife, Cheryl, built a home on the south side of CR 1000N, to the east of EMS D2 Lane, after getting a permit in January 2017, according to records obtained from the Kosciusko County Area Plan Commission. Linda Miller, Shively’s sister and a three-decade resident of the area, said she and her husband Herman “begged him not to do it.”
How The Rift Started
The dispute began when a lot on the south side of CR 1000N was sold at a tax sale and divided into four separate parcels.
Shively purchased a lot and put up a two-story steel structure with storage on the lower level and a residence on the upper.
Miller feels that since the land won’t hold as much water, more is spread out over the other lots in the area, especially to the west.
“It didn’t used to cross the driveways (on EMS D2 Lane), but now it goes all the way down to EMS 1,” Miller said Monday night. “It didn’t matter to (Shively) that it had flooded for 30 to 40 years. He just brought in 30 to 40 tons of dirt and now he’s pushing the water off on other people. He’s got some of it, but not all of it. We begged him, ‘What’s this going to be like when it’s too late?’ And it’s too late now.
“He clearly knew it flooded back there, and the people in the courthouse knew it, too.”
“We took pictures of flooding to the health department, and our neighbors took pictures to the health department. Now, we’ve never had water set in there this long.”
When asked if the rain and flooding of the last week was an extraordinary event, Miller said, “It doesn’t matter. It doesn’t matter at all. I knew it was going to happen.
“This might be the worst it’s ever been, and it’s pretty bad, but (Shively) didn’t make any provision for something like this.”
Miller isn’t the only one upset with the situation. Neighbor Chris Speicher said it’s worse this year than any time before.
“I got a call at work (Feb. 19) telling me that the water was up past my garage,” Speicher said.
“I wish that house had never been built, but what are we going to do now?”
Making A Point
To Follow The Rules
Shively said he sought the advice of his contractor to do everything possible to minimize the impact his structure would have on the neighbors.
“We put in a two-tank septic system to avoid having to raise the house up another 3 to 4 feet,” he said. “If I’d have done that, the house would tower over every other home in the area.”
He added he made a point not to ask for any exceptions for the permit, as that would have required a hearing “and they would have fought it every step of the way.
“I don’t want to have any damage to homes around mine. If nothing else, that would take the value of my property down.”
Shively said this isn’t the first issue to come up between him and his sister, and the siblings do not speak to each other.
Why Was A Permit Issued?
State and federal regulations require that structures built in a flood plain be constructed on fill to keep them out of the water. The Shively structure fulfills that requirement, as well as standards for septic, well and driveway placement.
“Indiana does allow people to fill their own ground, elevate and raise (newly constructed homes),” said Area Plan Commission Director Dan Richard. “In fact, our own flood ordinance that we end up administering from the State of Indiana Department of Natural Resources, passed down to them from FEMA, it does require (new home constructors) to fill and elevate their property to get them out of the flood zone.
“In this case they did fill, and they got rid of the water on the water on their property. What they’re not allowed to do is to shoot (water) off, or collect and divert it in a channel or funnel it off directly on to someone else’s property. It’s the same way with their neighbors out there; they’re entitled to fill their property to get it up and out of the flood zone, as long as they don’t collect it, divert it and shoot it off through a channel on to someone else.”
What Can Be Done Legally
The reason the county will not, and can not, do anything about flooding is called the Common Enemy Doctrine. Basically, water runoff is a common enemy among all landowners.
In its 1982 ruling on such matters, the Indiana Supreme Court said: “It is not unlawful for a landowner to improve his land in such a way as to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land even where his land is so situated to the land of an adjoining landowner that the improvement will cause water either to stand in unusual quantities on the adjacent land or to pass into or over the adjacent land in greater quantities or in other directions that the waters were accustomed to flow.”
In other words, as long as water isn’t gathered and then discharged onto an adjoining property, gravity is free to do its work on the water. There are similar standards in 20 other states.
The Solution
Miller sees a simple solution, and hopes it can be handled without hiring an attorney.
“I’d like to see a ditch put in. We have the land to do it. That’s all that’s needed,” she said. “I hope we don’t have to sue anybody, because that’s a lot of money going out.”
Shively said, “If the people want to install a tile system, I’d be willing to pay my fair share.”
Richard said, “It would be for the best if all the people could come together and figure out what the best plan is for relief. At some point other houses will go in, and those homes will have to be built up out of the flood plain, too.”
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SYRACUSE – Nearly every spring, yards in the northwest corner of Dewart Lake have some flooding, and everyone knows it.
But some people living along EMS D1, EMS D2 and EMS D3 lanes say a home built about 18 months ago makes flooding worse. And the issue has cause a rift between siblings.
William Shively Jr. and his wife, Cheryl, built a home on the south side of CR 1000N, to the east of EMS D2 Lane, after getting a permit in January 2017, according to records obtained from the Kosciusko County Area Plan Commission. Linda Miller, Shively’s sister and a three-decade resident of the area, said she and her husband Herman “begged him not to do it.”
How The Rift Started
The dispute began when a lot on the south side of CR 1000N was sold at a tax sale and divided into four separate parcels.
Shively purchased a lot and put up a two-story steel structure with storage on the lower level and a residence on the upper.
Miller feels that since the land won’t hold as much water, more is spread out over the other lots in the area, especially to the west.
“It didn’t used to cross the driveways (on EMS D2 Lane), but now it goes all the way down to EMS 1,” Miller said Monday night. “It didn’t matter to (Shively) that it had flooded for 30 to 40 years. He just brought in 30 to 40 tons of dirt and now he’s pushing the water off on other people. He’s got some of it, but not all of it. We begged him, ‘What’s this going to be like when it’s too late?’ And it’s too late now.
“He clearly knew it flooded back there, and the people in the courthouse knew it, too.”
“We took pictures of flooding to the health department, and our neighbors took pictures to the health department. Now, we’ve never had water set in there this long.”
When asked if the rain and flooding of the last week was an extraordinary event, Miller said, “It doesn’t matter. It doesn’t matter at all. I knew it was going to happen.
“This might be the worst it’s ever been, and it’s pretty bad, but (Shively) didn’t make any provision for something like this.”
Miller isn’t the only one upset with the situation. Neighbor Chris Speicher said it’s worse this year than any time before.
“I got a call at work (Feb. 19) telling me that the water was up past my garage,” Speicher said.
“I wish that house had never been built, but what are we going to do now?”
Making A Point
To Follow The Rules
Shively said he sought the advice of his contractor to do everything possible to minimize the impact his structure would have on the neighbors.
“We put in a two-tank septic system to avoid having to raise the house up another 3 to 4 feet,” he said. “If I’d have done that, the house would tower over every other home in the area.”
He added he made a point not to ask for any exceptions for the permit, as that would have required a hearing “and they would have fought it every step of the way.
“I don’t want to have any damage to homes around mine. If nothing else, that would take the value of my property down.”
Shively said this isn’t the first issue to come up between him and his sister, and the siblings do not speak to each other.
Why Was A Permit Issued?
State and federal regulations require that structures built in a flood plain be constructed on fill to keep them out of the water. The Shively structure fulfills that requirement, as well as standards for septic, well and driveway placement.
“Indiana does allow people to fill their own ground, elevate and raise (newly constructed homes),” said Area Plan Commission Director Dan Richard. “In fact, our own flood ordinance that we end up administering from the State of Indiana Department of Natural Resources, passed down to them from FEMA, it does require (new home constructors) to fill and elevate their property to get them out of the flood zone.
“In this case they did fill, and they got rid of the water on the water on their property. What they’re not allowed to do is to shoot (water) off, or collect and divert it in a channel or funnel it off directly on to someone else’s property. It’s the same way with their neighbors out there; they’re entitled to fill their property to get it up and out of the flood zone, as long as they don’t collect it, divert it and shoot it off through a channel on to someone else.”
What Can Be Done Legally
The reason the county will not, and can not, do anything about flooding is called the Common Enemy Doctrine. Basically, water runoff is a common enemy among all landowners.
In its 1982 ruling on such matters, the Indiana Supreme Court said: “It is not unlawful for a landowner to improve his land in such a way as to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land even where his land is so situated to the land of an adjoining landowner that the improvement will cause water either to stand in unusual quantities on the adjacent land or to pass into or over the adjacent land in greater quantities or in other directions that the waters were accustomed to flow.”
In other words, as long as water isn’t gathered and then discharged onto an adjoining property, gravity is free to do its work on the water. There are similar standards in 20 other states.
The Solution
Miller sees a simple solution, and hopes it can be handled without hiring an attorney.
“I’d like to see a ditch put in. We have the land to do it. That’s all that’s needed,” she said. “I hope we don’t have to sue anybody, because that’s a lot of money going out.”
Shively said, “If the people want to install a tile system, I’d be willing to pay my fair share.”
Richard said, “It would be for the best if all the people could come together and figure out what the best plan is for relief. At some point other houses will go in, and those homes will have to be built up out of the flood plain, too.”
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