FORT MADISON – The Lee County Board of Supervisors on Monday formally voted to file a lawsuit against the City of Fort Madison over drainage problems the county claims occurred as part of the P.O.R.T trail construction in 2020.
The county claims to be seeing damage to 302nd Avenue next to Gethsemane Cemetery due to water drainage as well as seeing icing in the winter due to water run-off.
The city counters with the fact that the county saw plans for the work, requested some changes which were incorporated into the plans, according to Mayor Matt Mohrfeld, and signed off on the work.
Mohrfeld said he was honestly at a loss to why the county was pushing the issue considering the addition of a wonderful path through the community.
Lee County Board Chairman Garry Seyb started his comments Monday saying the supervisors agree that the trail is a great addition to the community and doesn’t want the board to be portrayed as against the trail.
Lee County Attorney Ross Braden said he’s prepared to pursue any and all legal remedies, but said he would advise caution and careful consideration.
“This is a big decision and a big deal,” Braden said.
He said the county is seeing a lack of drainage where the city installed the walking trail. Braden said the county has done some work on the east side of 302nd Avenue to deepen the ditch and the city did install a storm drain at Gethsemane Cemetery to help pull water out of that facility.
But Braden said demands outlined in two letters to the city, at the request of the board of supervisors, have gone “largely unresponded to”.
The two entities have a 28E agreement in place as it pertains to maintenance of 302nd Avenue since the construction of the P.O.R.T. trail. The 28E outlines remedies to the county if any county structures are damaged by the construction. Braden said the drainage structures that were in place on the west side of 302nd were completely removed during construction.
He also said it’s important to consider what the goals are of the lawsuit.
“Namely to get those drainage structures back in place, or what we proposed to the city as an alternative, which I don’t think I can say was outrightly declined, as much as ignored, the taking over of routine maintenance,” Braden said.
County Engineer Ben Hull said the water that is draining over 302nd is causing damage to the road as well as causing icing conditions on the roadway during the winter. The city has been handling winter maintenance on the road for the past three years.
“We did not have a major amount of storage, and a ditch being storage for snow removal, to reroute some of the melted runoff. Now we have essentially none so when it melts it runs across the road and that’s a concern,” Hull said.
He said that water can refreeze when the sun goes down. He also said he had asked for something to be done differently with the drainage prior to, during, and after construction of the trail.
“This wasn’t something we waited until it was done to ask for. And those requests were not met,” he said.
Mohrfeld said the county did have a chance to review the plans for the work including the drainage and suggestions that were made by Hull were incorporated into the project. Then the county signed off on the plans.
Hull also claims the city is required to annex the west side of the road as it has a boundary with city property per Iowa Code 368.7A
“They need to annex this road regardless. That’s independent of this discussion. They have the abutting property and by code its improper for them to not have it annexed to the centerline of the road,” he said.
Hull said the board is responsible for bringing that to the attention of the state under the code, which gives the Iowa Economic Development Authority authority over the jurisdictional issue through its City Development Board. The code says counties will notify the CDB of any county secondary roads that have a common boundary with city property that aren’t annexed into the city up to the center line. The CDB, upon certification of the information, can declare the roadway annexed into the city.
Lee County Board chairman Garry Seyb said no one on the board would disagree that the trail system is a great thing and a great project.
“In this one instance, this one area of quite a lengthy trail, we are experiencing some issues,” he said.
Seyb asked what the board wanted the city to do either take over road maintenance, or is that separate to addressing the drainage issue.
Braden said contractually through the 28E the county could ask the city be required to replace the drainage structures that were there previously. He said the city has no legal obligation to take over the road, the county just offered that as an option.
He said the city could ultimately have to move the trail to reinstall the drainage structures that were in place prior to the improvements.
“This could get fairly ugly as far as requiring them to move the trail and reinstall the drainage structures. But that is our only legal remedy,” Braden said.
“The request for them to take over routine maintenance of that roadway was essentially offered as an alternative to resolve the issue. But we don’t have legal ability in court to force them to take over routine maintenance.”
Supervisor Matt Pflug said it sounded like the county needed to move forward.
Supervisor Tom Schulz said the county was told by the city there would be no further discussion.
Braden’s office would be handling the case internally for the county, and he said the case would be substantially more expensive to the city.
Supervisor Ron Fedler said he can’t remember ever when the county filed a suit against any city.
“I was hoping we wouldn’t set a precedent here in filing a suit against the city. Now that we’ve had this meeting and this discussion maybe the city will take us more serious in that we do intend to sue. Maybe we give them til next week.”
Schulz said the county has put the city on notice and they have walked away from it.
“And in my opinion, pretty arrogantly,” Schulz said.
Schulz added that having the city take over maintenance of the roadway may not be a proper response because they are doing it now and it’s causing continued problems for the homeowners in the area.
Braden said the county and city could still negotiate for a remedy despite the lawsuit being filed.
The case would have to be filed in North Lee County Courthouse.
Mohrfeld said he was at a loss as to why the county was pursuing the issue so heavily. The Mayor said the road isn’t in any worse shape than it was five years ago.
“This is a beautiful path along a meandering street that is in the same condition it was five years ago. The county engineer had a chance to review and sign off on the plans, which he did,” Mohrfeld said.
“I’m at a loss on this one. If you asked a supervisor five years ago they would be 50/50 on whether they knew they even owned that road.”
Mohrfeld said he thinks it’s a non-issue.
“I’m not sure what anybody wants. I only see an improved situation, better paths, better entrances. If anybody knows that road I would default to saying it’s me. That road is not different than it was five years ago. It’s just not. They need to take a deep breath and say this is a beautiful path.”
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