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Couple fear home may go into Ohio River

Developer says worries unwarranted, appeals IDEM commissioner's order

April 09, 2008
For Chuck and Carole Carpenter, their dream retirement home has turned into a nightmare that is making it difficult to sleep at night.

The Carpenters, who moved from Flint, Mich., into their home at River Bluff Estates at Leavenworth last August, are worried that the house, which they purchased for $237,000, in part, because of its bird's-eye view of the Ohio River, could fall down the hillside because of action taken by the developer from whom they bought their home.

The problems, they say, are a result of work done by David Carter, who owns the property down the hillside to the Ohio River. The Carpenters point to work he did below their house after they moved into their new home.

Leavenworth erosion
Parts of two dirt roads — one is flat on a ledge just below the homes belonging to the Carpenters and their neighbors, the other is sloped and connects the first road with Indian Hollow Road at the base of the hill — have eroded extensively following recent heavy rains.

The Carpenters, along with the Indiana Department of Environmental Management, which has visited the site three times, most recently last Wednesday, and ordered work on the roads to stop, allege that activity by Carter, done in preparation of plans of building cabins along the hillside, has led to the erosion.

Chuck Carpenter below his Leavenworth home that overlooks the Ohio River, worries that erosion that he and his wife, Carole, believe is the result of action taken by developer David Carter will cause their home to slide down the hillside (below). (Photos by Chris Adams)
They claim that he failed to file a Notice of Intent with IDEM and provide a proper plan to deal with storm water runoff.

"What he was in violation of was Rule No. Five, which is the storm water run-off management (plan)," Carole Carpenter said. "He did not file a plan before beginning construction."

After an initial on-site evaluation for erosion and sediment control on Sept. 12, 2007, IDEM alleged Carter:

•Failed to implement erosion and sediment control measures to minimize sedimentation from sediment-laden water which would flow from the project site.

•Failed to implement appropriate measures to minimize or eliminate wastes or unused building materials from being carried from a project site by run-off or wind.

•Failed to plan and install appropriate measures as part of an erosion and sediment control system.

•Failed to ensure that all storm water quality measures were designed and installed under the guidance of a trained individual.

•Failed to temporarily or permanently stabilize unvegetated areas that were inactive for 15 days or more with measures appropriate for the season to minimize erosion potential.

•Failed to maintain in working order all storm water quality measures necessary to meet the requirements.

•Failed to implement a self-monitoring program that includes the requirements.

After a follow-up on-site evaluation on Nov. 8, IDEM alleged that Carter failed to take corrective measures and a 36-inch diameter plastic culvert he installed to convey storm water run-off from the site into the Ohio River was more than 50-percent clogged from sediment and resulting in severe gully erosion.

Following the second evaluation, IDEM issued a Notice of Violation, which provided Carter an offer to enter into an Agreed Order containing actions required to correct the violations.

IDEM, claiming that Carter didn't respond, then issued a Notice and Order of the Commissioner on Jan. 31. The notice, which Carter has appealed, orders Carter to take several actions. Highlights include:

•Immediately addressing erosion and sedimentation issues associated with land grading at the site through a Corrective Action Construction Plan.

•Ceasing all land disturbing activities at the site, except those involving implementation of the Correction Action Construction Plan, until he has: received all necessary approvals and permits, submitted a final Construction Plan that complies with the appropriate Indiana Code, received written approval of the final Construction Plan by IDEM and the Crawford County Soil and Water Conservation District, and submitted a complete and approvable Notice of Intent to IDEM.

•Paying a civil penalty of $49,685 for violations.

Carter has the right to file a petition for administrative review of IDEM's charges by the Office of Environmental Adjudication, which he has done. An OEA representative said a pre-hearing conference is scheduled for April 15.

"There was no knowing or intentional violation," Carter's attorney, Marcus Burgher III, said on Friday, noting that massive amounts of requirements by IDEM can sometimes lead to confusion. He said there may be issues along the hillside, but "nothing there can't be corrected in time with effort and money."

However, Burgher said the problems at the site are due to "rain we've had in the last six months like no other."

Carter, during a visit of the site Thursday evening, admitted he wasn't aware the flat road just below the Carpenters' home had eroded as much as it had, and said he will repair it "as soon as it's dry enough to work on it." However, he claimed that wasn't the area on which IDEM wanted him to take corrective action.

Carter said he put in a storm sewer several yards east of the Carpenters' home and may install one by their home or put in rocks to help prevent further erosion.

Regarding the sloped road, Carter said it was just a temporary construction road and the real road would be farther away from the river, on solid rock.

The Carpenters, however, not only want Carter to take corrective action, they want him to stop developing the hillside. They pointed to the findings of Dr. Terry R. West, a geological and engineering consultant who is also a professor at Purdue University whom they paid $1,700 to conduct a study last fall.

In his report, West concluded that: "No further land disturbance related to the proposed River Bluff Estates or to any future construction below the homes described above should be allowed as this would most likely affect the integrity of the houses located above on the bluff along Ohio Vista Drive, River View Drive and Horseshoe Bend Blvd."

The Carpenters have appeared before the Leavenworth Plan Commission to request a zoning change, but are frustrated that Carter and one of his employees, Ralph Lindauer, are members of the plan commission. Lindauer is also a member of the Leavenworth Town Council, which would make any final decision regarding a zoning change.

Leavenworth Town Council President John Stutzman said there isn't a conflict of interest with a developer being on the plan commission, which just makes recommendations to the town council. He noted that the employee of another developer also sits on the plan commission.

Stutzman said he expected the zoning concerns to be addressed at the plan commission's meeting, which was to be held Monday night. (The meeting occurred too late to be included in this week's newspaper.) He expected the plan commission to review an updated comprehensive plan.

Stutzman said zoning changes are being considered that would bring the requirements back into line with where they were a decade ago, before being changed during the town's attempt to get a riverboat casino. He said they were supposed to revert back to their original form if the town didn't get a casino, but didn't.

The zoning change, Stutzman said, wouldn't prevent Carter from developing on the hillside, but it would increase the requirements he would have to meet, including getting a licensed geotechnical engineer to indicate that any work wouldn't cause erosion.

Stutzman said the town can't force Carter to take corrective action. The only thing the plan commission could do, which it did, was tell him to stop work until he secured the approval of a licensed geotechnical engineer.

Carter said he has had a geotechnical survey conducted.

"They haven't found any problems that can't be handled," he said. "I don't think we'll have a problem."

The Carpenters, however, disagree. They said if corrective action isn't taken soon and the hillside collapses, taking their house with it, they won't be able to seek financial recourse outside of suing Carter.

"We spoke with our insurance agent … and she replied there's no coverage for any (man-made) erosion and there's no endorsement to add to the policy for this coverage," Carole Carpenter said. "We can't get coverage for it. If the house slides, it's our loss, period, and everything in the house, no matter what he does, even if it's his fault."

"Any man-made erosion, we're not covered," Chuck Carpenter added. "Our neighbors checked with their insurance agents and they have the same thing."

The Carpenters already have a suit against Carpenter regarding a different matter. They claim the deed to their home included a dedicated boat slip along the Ohio River that Carter was supposed to have ready in a timely fashion but has failed to do so.

Carter, noting he has been a developer for more than 40 years, said some people just can't be pleased and the Carpenters appear to be such people.

Carter said he has submitted a Rule 5 application with IDEM and still believes in the development, pointing to what he says is 75 feet of solid rock in the hillside. He said he intends to move forward with the development of the cabins after getting the matter with IDEM resolved.

(Information for this article was also gathered by Wade Bell.)

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