January 14, 2008
VIA CERTIFIED & REGULAR MAIL
Mr. Mark Ennes
Chairman of the Board of Directors
Valparaiso Lakes Area Conservancy District
1805 Burlington Beach Road
Valparaiso, Indiana46383
RE:Susan & Frank Powers, 4101 Chickadee Lane, Valparaiso
Tanna Burnett, 1308 Oriole Road, Valparaiso
Elsie Taylor, 4121 Wildwood Road, Valparaiso
Jerry & Nikki Pollard, 1504 Redwing Road, Valparaiso
Dear Mr. Ennes:
Please be advised that I represent the above-referenced individuals who own real property within the Valparaiso Lakes Area Conservancy District (VLACD) and are paying customers of VLACD.
As you are well aware, my clients have been dealing with severe stormwater drainage and flooding problems on their property for many years despite repeated requests for VLACD to take corrective action. Unfortunately, they also have suffered significant property loss and other damages and are forced to live in substandard living conditions due to VLACD’s inaction.
VLACD was established to provide certain services to its customers under the Indiana Conservancy Act including: providing water supply, including treatment and distribution, for domestic, industrial and public use; providing for the collection, treatment, and disposal of sewage and other liquid wastes; improving drainage; preventing the loss of topsoil from injurious water erosion; and flood prevention and control. Ind. Code § 14-33-1-1(a) (emphasis added). Furthermore, the Conservancy Act imposes a mandatory, non-discretionary duty on VLACD’s Board of Directors to “exercise the powers granted under [the Act] to accomplish each purpose for which the district is established.” Ind. Code § 14-33-5-20(11) (emphasis added). Indeed, Indiana case law recognizes the “clear duty” of the Board of Directors “to construct the necessary fixtures to fulfill [the district’s] purposes and to maintain those fixtures properly.” See In re: Middlefork Watershed Conservancy District, 508 N.E. 2d 574, 579 (Ind.App. 1987).
In addition to its non-discretionary duties, VLACD can be held liable in tort for “erecting, maintaining or contributing to a nuisance” within its district. See Fairwood Bluffs Conservancy District v. Imel, 255 N.E. 2d 674, 684 (Ind.App. 1970). The large volumes of stormwater, often containing garbage and raw sewage, that continuously discharge and collect on my clients’ land, due to VLACD’s inaction, clearly constitute a nuisance for which VLACD is liable.
Accordingly, the VLACD Board must take meaningful, corrective action and compensate my clients for their related losses. In that regard, if I do not hear from you or VLACD’s attorney within two weeks from the date of this letter, I will have no alternative but to file an action for mandate and for damages.
Thank you for your prompt attention. I look forward to reaching a mutually agreeable resolution to this critical problem.
Very truly yours,
LEGAL ENVIRONMENTAL AID FOUNDATION
Kim E. Ferraro
KEF:mac
cc:Robert Minarich, General Manager
Bob Harper
Susan & Frank Powers
Tanna Burnett
Elsie Taylor
Jerry & Nikki Pollard