O’Brien County DD #5 Involuntary Annexation Hearing Turns Festy

Part I
By
Loren G. Flaugh


Photo Credit Loren G. Flaugh
The primary agenda item at the Tuesday, June 20, 2017 O’Brien County Board of Supervisors meeting was the 10:00 a.m. hearing to begin addressing the contentious issue of involuntarily annexing land into O’Brien County Drainage District #5 (DD #5) north of Hartley.  These additional landowners annexed into the DD will help pay the cost of the clean out project approved last year.
The hearing was held in the Courthouse Assembly Room.  Because O’Brien County Auditor Barb Rohwer also serves as the DD #5 clerk, Rohwer mailed out notices to all the affected landowners on May 30, 2017 notifying them of the time and place.  
    DD #5 attorney Jim Hudson with the Hudson Law Firm from Pocahontas was present to discuss Iowa Code Chapter 468 about drainage district law.   DD #5 project engineer Richard Hopper with Jacobson-Westergard & Associates from Estherville was present to review his annexation report. Both men answer numerous questions about the 3,300 acre DD #5 Clean Out Project.
    Because county boards of supervisors are the trustees for all DD's in the state, this DD #5 issue has been an ongoing discussion topic at several O’Brien County supervisors meetings going back two years since the supervisors formally decided that an engineering firm needed to be hired to study the open ditch for a possible clean out.  This is the first time in the county’s history that the Board is required to resolve an issue in an established DD.
Hopper’s preliminary estimate came to $140,000.00 for removing 29,200 cubic yards of soil that’s silted in over decades.  However, at a Jan. 31, 2017 bid letting, the low bid was $93,734 from B & B Farm Drainage from Wallingford, Iowa.  B & B has moved in one long-reach excavator near the DD outlet where it empties into Waterman Creek a mile west of Hartley and a half-mile north of Highway 18.  
Hopper said shortly before the hearing was opened that the contractor was looking at the following day, Wed. June 21st, to begin the repair of DD#5 which was created in 1921.  That particular landowner at the DD outlet wanted to bale tall grass along the ¼ mile of open ditch. Hopper said the contractor was planning to finish the project in about two months
Due to the potential for contentious arguments, the O’Brien County Sheriff and one deputy were in attendance.  However, to everyone’s surprise, perhaps ten landowners from the affected area attended this hearing.  Nevertheless, arguments would get heated.
“Okay, we’ll go ahead and get started here and open the hearing for the annexation of land into DD #5,” said Board Chair Tom Farnsworth.  “I want to turn this over to Rick and Jim.  Jim, why don’t you go begin?”
“After the initial hearing last November, this is one more stage in a number of stages.  Today’s hearing is about annexation,” Hudson said.  “Let me explain what annexation is and isn’t.  In drainage parlance, what it is, it’s just an extension of an existing DD. The determining factor to bring more land into the DD is whether or not those parcels receive a material benefit, not an imagined benefit, but a material benefit from the DD facilities.”
    As far as getting into assessments, these are based upon a relative benefit.  The engineer and two commissioners form a classification commission.  They determine which parcels have the highest need for drainage and they give it a factor of 100.  Parcels with a lower need for drainage are given a factor of one, Hudson explained.  
County Auditor Barb Rohwer mentioned earlier that a few landowners had come into her office and were confusing annexation with condemnation.
Hudson explained, “This does not involve any condemnation whatsoever in an annexation matter.  That procedure isn’t part of this.  At a later date, it may become necessary, as part of this DD project, to acquire additional right-of-way for spoil storage.  It will be done through a hearing procedure following a landowners notice.  The landowners can still do whatever they want with it and not change the usage.  We’re not condemning land to bring into the DD today, we’re annexing it.”
Hudson continued, “It is important once again, I hope I stressed this enough at the November hearing, that you affected landowners file a written objection or a written supporting statement.  You’re objecting to the annexation and if the DD trustees make a final decision today or at a later date to annex you, then you have the right to appeal that to District Court in O’Brien County within 20 days of the trustee’s decision.”
Hudson briefly addressed the objections received at the auditor’s office.  Rohwer reported that she’d received numerous objections through two petitions with signatures and several hand-written objections from individual landowners totaling approximately 28 in all.  
“I like to read these objections and discuss the reasons for the objection and questions.  These objections are kept in a permanent record of DD #5.  When there’s a written objection, now you know exactly what someone’s concerns were,” Hudson said.
Hudson and Hopper reviewed each objection at length and answered many questions.  This Q & A session went on for an hour and it became rather belligerent at times with some landowners loudly expressing their concerns.  This lengthy Q & A session will be covered in greater depth in a follow-on story.
Hopper’s annexation report shows where land in Sections 1, 2, 3, 4, 5, 9, 10 and 11 of Lincoln Township, Section 6 of Hartley Township and Sections 33 and 34 of Baker Township in Osceola County are to be annexed.  Portions of land in this area are in the watershed of DD #5 and haven’t been paying assessments and should be annexed.  We have studied the topography of the area and have determined the area to be added.
Hopper’s report concluded, “The parcels are materially benefited by DD #5 and should be annexed.  This will ensure all parcels within the DD #5 watershed boundary will be sharing the cost of any assessments for DD #5.”
This means that DD #5 will increase from its originally established area of 3,371 acres to 7,075 acres in area.  Hopper stepped up to a large map and summarized what parcels would be included in the proposed annexation and how they would be assessed for the clean out cost of the DD, along with the landowners currently in DD #5.  
“Early on, as we got into this, we could see that there were other areas coming in to DD #5.  These are very well defined waterways or ditches that come in from further north and west.  One ditch, if you follow it, goes northwest to Melvin.  DD's 12, 38 and 8 in Osceola County have outlet ditches that flow south into the north end of DD #5.    O’Brien County is adding 3,370 acres into DD #5 and Osceola County will add another 334 acres,” Hopper explained.
“When all is said and done, and we complete the annexation, there will be a re-classification hearing that will describe that and a re-evaluation of who benefits,” Hopper explained.
With no more objections voiced, Hudson then asked that the Board consider the engineer’s annexation report for a vote and approval.  “It’s a simple vote up or down, or you can continue the hearing to a later date,” Hudson said.  
Farnsworth then closed the hearing.  “I’ll entertain a motion to approve the annexation report,” Farnsworth said.
Supervisor Dan Friedrichsen offered that motion with John Steensma seconding the motion.  The vote was unanimous to approve Hopper’s annexation report with the annexation of 3,700 acres of land into DD #5.
Landowner Larry Remmers asked one last question about appealing the Board’s decision today.
To wit, Hudson answered, “You now have 20 days to file an appeal notice with the auditor’s office.  The 20-day period starts tomorrow.  The auditor determines an appeal bond.  The purpose of the appeal bond is to abide by the order of the Court and obtain a cost associated with the appeal.  You’ll need a lawyer to prepare the notice in order for you to get it to the auditor.  As of now you are in DD #5.”


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