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Palo Alto Co. faces lawsuit

By Staff | Jan 15, 2015

By JOE SUTTER

jsutter@messengernews.net

EMMETSBURG – Four Nevada Township landowners are suing Palo Alto County over culverts that would go under a road upstream of their land.

They are also alleging a county official would benefit directly from the disputed project.

The drainage suit was filed by landowners south of 420th Street near Cylinder Creek, northwest of Rodman. It contends the landowners didn’t have the proper chance to object to the culverts that will drain onto their property.

Judy Knoer, Linda Koppie, Carolyn Larsen and Glen Moser filed suit on Oct. 6, 2014. They are represented by Dennis Knoer, of Minneapolis, who is Judy Knoer’s son; and Eric Eide, of Fort Dodge.

The suit was a point of discussion at Tuesday’s Palo Alto County Board of Supervisors meeting when the board voted 4-1 to terminate County Engineer Joel Fantz.

Fantz had previously opposed building the culverts, and suggested instead that unpermitted levees built along the drainage creek be removed.

The Board of Supervisors has said it has an obligation under Iowa code to not allow a road to act as a dam, and to let the water follow its natural course.

But Dennis Knoer said the water flow problems are caused by unpermitted levees both north and south of the bridge, not by the road itself.

According to the lawsuit, the Board of Supervisors decided to install the culvert following requests from Jim Crawford and Jim Moser, who own land north of the road.

Fantz is on record telling the Board of Supervisors multiple times that the flow problems were caused by the levees, according to court filings.

His concerns are detailed in letters to the supervisors dated Aug. 28, 2014; Sept. 29, 2014; and Nov. 24, 2014.

Fantz recommended that either the levees be removed or specific legal procedures be followed before the culverts were built.

On that he was in disagreement with the Palo Alto County drainage attorney, Jim Hudson.

Dennis Knoer alleges Fantz’s firing was related to the culvert issue.

“This poor guy got caught in the crossfire,” Knoer said.

Supervisor Ron Graettinger, the lone vote Tuesday against firing Fantz, asked at that meeting if the firing was due to the culvert issue.

Craig Merrill, chairman of the Board of Supervisors, told The Messenger that was not the case.

Culverts requested

Jim Crawford and Jim Moser requested culverts be installed through the road in late September 2014, and the county hired engineer Donald Etler, of Bolton & Menk Inc., of Spencer, to review the matter, according to the lawsuit.

Etler found the land to the north was damaged by floods this year, and the restricted floodway south of the road contributed to that damage, according to letters in filed with the lawsuit.

The bridge under the road is wide enough for much larger floods than required by accepted design standards, Etler wrote. However, shaped “spoil piles” south of the road on the ditch form an effective levee.

This levee protects the lands south of the road from lower-stage floods. However, it also confines the water, which means in a flood the water north of the road reaches a higher elevation, creating a larger flooded area and a slower drawdown.

The levees were not authorized under the state’s permitting system, Etler wrote.

“A state-permitted floodplain levee would have been first reviewed by the Iowa DNR (Department of Natural Resources) for its effect upon the channel,” he wrote. “Adjoining landowners would have been given direct notice of the permit application, and would have been given the opportunity to comment on the plan.”

Etler recommended two culverts be placed under the road to alleviate the flooding. County records show there were two small bridges or wooden culverts in these places in the past, he wrote in a later letter.

At the time, Fantz wrote that the simplest solution would be to remove the unpermitted levees.

“Culverts through the road will force the water not just through the road but across the Koppie/Knoer/Glen Moser property,” Fantz wrote in a Nov. 24 letter. “There is no other place the water could go.

“The second fact is that the bridge opening is more than sufficient to meet all DNR, Corps of Engineers and engineering standards so that the road is not classified as ‘holding back water.’ … The unpermitted levies, obstructing the flow through the bridge, do not, however, grant upstream land owners the right to force water across the land of others in a new location without the due process listed in (Iowa code).”

Code sections 468.63 and 468.149 establish the process that should be followed, he said.

Plaintiffs objected to culverts

The plaintiffs objected to the culverts during an informal meeting of Supervisors Wirtz and Noonan on Sept. 11 that was attended by Fantz, Carmen Moser, Hudson, Etler and Eide, Eide wrote in the lawsuit.

“Before concluding said meeting, the representatives of the county closed the meeting to the plaintiffs’ representatives and continued to discuss the culverts, ultimately deciding to install them over the plaintiffs’ objections and without any public hearing,” Eide wrote.

According to the defendants, Fantz and Hudson “had a very heated exchange” after the plaintiffs left the meeting. “Mr. Hudson clearly stated that Mr. Fantz was wrong, and that this matter was governed by Section 314.7 and the legal principle that roads cannot become dams, and that there must be openings in the roadbed to allow surface water to take its natural course,” according to affidavits filed by attorney Robert Goodwin, of Ames, who represents the Palo Alto County Board of Supervisors.

On Sept. 18 the board voted to install a 36-inch pipe under the road.

On Nov. 25 it voted to install two 36-inch culverts instead, as recommended by Etler.

On Dec. 31, Dennis Knoer filed a request with the board and with the Iowa DNR asking for the unpermitted levees to be removed.

The lawsuit was filed on Oct. 6.

Conflict of interest

Plaintiffs in the suit have also alleged a conflict of interest in the culvert project, and have filed an Iowa Open Records law request seeking all public records relating to the culverts.

“I note that Jim Moser owns the land immediately north and west of the bridge, and that the county auditor, Carmen Moser, is Jim Moser’s daughter-in-law,” Dennis Knoer said in an email. “It is my understanding that Carmen Moser and her husband, Jamie Moser (Jim Moser’s son), farm that land and so it appears that the county auditor will be a direct beneficiary of the action being taken by the Board of Supervisors regarding the installation of these culverts.”

Dennis Knoer filed a request under Iowa Open Records law on Dec. 31 seeking all costs and expenses connected to the proposed culverts, as well as communications related to Cylinder Creek drainage.

“I am particularly interested in learning how much money the board has spent on legal fees and consulting fees in its attempt to use its government power to take action for the benefit of private landowners,” Dennis Knoer said.

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