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Settlement paves way for erosion correction

November 17, 2010
A settlement has been reached by the state of Indiana with a Crawford County developer whom officials say excavated a Leavenworth hillside, causing erosion that threatened the stability of homes in a subdivision at the top of the hill.

The Indiana Attorney General's office, in a press release, indicated the settlement would transfer ownership of the hillside from the developer, David Carter, to the hilltop homeowners in Ohio Vista Subdivision, and locks in other protections to preserve the stability of their properties.

"State statutes and regulations exist because erosion from excavations and grading operations can create a domino effect on surrounding landowners," Attorney General Greg Zoeller said in the release, "particularly in terrain as wooded and rugged as along our Ohio River valley near the Hoosier National Forest. By enforcing the laws and rules, we were able to reach a settlement that protects the homeowners and their properties, curtails further erosion and is fair to all."

The issue dates back to the fall of 2007, when Carter sought to build a subdivision, containing 72 lots, on wooded property he owned near the Ohio River at Leavenworth. The town council rejected the plat plan that was submitted by Carter because the slope was too steep where he wanted to build the subdivision, but Carter, the Attorney General's office claimed, proceeded with excavating the hillside for the project.

The press release stated, "Carter cut a path across the hill with a bulldozer and removed vegetation which caused soil erosion and undercutting of the hill, potentially impacting a group of homes on the top of the bluff in the adjacent Ohio Vista subdivision."

An Indiana Department of Environmental Management inspector issued a violation that ordered Carter to obtain a permit and take immediate corrective action. An erosion control and engineering plan also was required to address the active erosion and potential for hillside failure and impact to the hilltop houses. The excavation stopped but Carter, according to the press release, took no action to address the concerns identified by IDEM and the local homeowners.

"Carter never had the infrastructure in place for water run-off," said Chuck Carpenter, who, with his wife, Carole, owns one of the homes on the hilltop affected by the erosion. "We still have some slippage and more erosion. But the settlement should be final in a few weeks when the title work is all done. We really appreciate IDEM's input. My wife, Carole, went to Indianapolis and testified against Carter, but it's been a long process."

The Carpenters and some of their neighbors formed an association — Carpeck LLC — to help protect the hillside and their homes. Some of the homeowners have thought that their lives are in danger due to the possibility of their homes slipping down the hill. The ruling gives them a chance to correct problems caused by the excavation before more damage is done.

"I thought the ruling was fair," Carole Carpenter added. "It actually was decided according to Rule 5, which states that if more than an acre is to be excavated, certain rules must be followed."

Rule 5 is a state law regulating construction site runoff control. In order to comply with Rule 5, site owners, developers and builders must file a Stormwater Pollution Prevention Plan, fit the development to the existing terrain and soil, retain existing vegetation (including trees) whenever possible and inspect and maintain erosion control measures weekly and after every half-inch precipitation event.

The Attorney General, representing IDEM, lodged a civil-compliance complaint against Carter in May 2008. The court found Carter in violation and ordered him to cease and desist excavation, implement an erosion-control plan and pay a $49,685 civil penalty. Carter appealed the civil compliance order to the Crawford County Circuit Court, but it agreed with the Attorney General and IDEM and supported the earlier order and civil penalty against Carter.

According to the press release, Carter then claimed indigency and neither paid the $49,685 fine nor corrected the erosion. The Attorney General then started negotiations with Carter and the homeowners to resolve the issue permanently. Carter eventually agreed to turn over the deed to the hillside property, about 8.1 acres, to the hilltop homeowners and paid the back taxes owed on the property. The deed was then conveyed to Carpeck LLC, the homeowners association.

The agreement requires the homeowners to control the soil erosion on the hillside below their homes and maintain the vegetation in a natural state to preserve the slope. The hillside may not be developed. Because Cater is relinquishing ownership of the property, IDEM will forgive the nearly $50,000 fine he owed under the agreement.

The owners of the hilltop properties hope to, with assistance of the town of Leavenworth, secure a grant to repair the damage to the hillside and stabilize it, stopping the threat of erosion.

"Now, the homeowners have control of the property," Carole Carpenter said. "That gives us access to the land and maybe we can begin to manage the run-off. IDEM worked for the people this time."

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