Maxinkuckee Village PUD, district debated at hearing  

Impact of proposed development on Lake Maxinkuckee discussed last week

By Jeff Kenney, Citizen editor
Culver Citizen 11 Feb 2010 pg 1 & 9

Representatives from both sides of a debate over the development of land adjacent to Lake Maxinkuckee – as well as a roomful of Culver area residents – spent the better part of last Thursday and Friday at the Lions Club depot on Lake Shore Drive in Culver, hearing and giving testimony on the issue.

Gary Aker of Aker Properties, LLC, filed a petition last September in Marshall County circuit court to establish a conservancy district as required before setting up sewer or septic on the site of a proposed Planned Unit Development (PUD) tentatively named Maxinkuckee Village. The proposed project was given an initial green light in its first phase by Culver’s Plan Commission, a necessary step in the procedure.

The petition was sent to Indiana’s Natural Resources Commission, who set up the hearing for last Thursday at the depot, with Friday set aside for public comment and input on the matter (see accompanying article). The Commission will review the case and present its technical findings to the court, said Commission Judge Stephen Lucos, who oversaw the proceedings. The Marshall court, he said, will then determine whether the conservancy district may be established.

Lucos said a report may be prepared in time for the Commission’s March 16 meeting, but in the more likely event that the report won’t be complete by then, the Commission will review it in May.

The Commission, noted Lucos, will examine the conservancy district based on several criteria, including whether it appears to be necessary, holds promise of economic and engineering feasibility, will serve the public health, and can be established and operated in a manner compatible with established lakes other waterways, among others. Remonstrating against Aker’s petition was the Lake Maxinkuckee Environmental Council, represented by Syracuse-based attorney Steven Snyder, and Lake Maxinkuckee residents Bill and Jeanne Welch, represented by their son, attorney Brian Welch. Ecological services firm JF New of Walkerton acted as a consultant to the LMEC. More than half of Thursday was spent in testimony and cross examination of witnesses from Aker’s side of the issue, who described the background of the project and detailed methodology of waste and storm water treatment and collection within the 55.7 acres of property intended for development in the project. Following were witnesses opposing the establishment of the district, much of whose focus was on the adjacent Kline wetland, its importance to the Lake Maxinkuckee watershed, and opinions on potential threats to that watershed by the development of the PUD.

Background of the project

Plymouth-based attorney Fred Jones, representing the developers, said Aker Properties, LLC, family-owned by Gary and Yvonne Aker and their son and daughter, purchased the Culver Marina and adjoining land about six years ago. All marina operations, Jones noted, use the septic present at the time of purchase, though this would change and the marina would join the new district’s septic if the district is approved. The project, said Jones, would entail construction of 31 individually-owned villas and four quadro-plex townhouses (for a total of 47 housing units), tennis courts, a swimming pool, clubhouse, soccer and athletic fields, and other amenities. He explained the conservancy district is required for handling of effluent created by the PUD before the next phase can begin, adding the Planning Commission and Town Council will still have to approve the project before construction could begin. Jones emphasized the function of the hearing was not to make determinations concerning the PUD itself, but only concerned creation of the conservancy district. Opposing attorneys later pointed out, however, that the project must be proven economically viable and in the interests of public health in order to meet requirements, suggesting many facets of the PUD are relevant in a decision about the district.

On the stand, Plymouth and part-time Culver resident Gary Aker said the idea for the project grew from conversations with several customers seeking “economical housing” on Lake Maxinkuckee, which led him to contact Alan Collins of Construction Management and Design, who came up with plans for the PUD. South Bend engineering firm Lang, Feeney, & Associates created the design for the septic treatment plant and drainage handling and soil erosion control plans. Copies of the plans were displayed for the parties in the hearing and the audience.

Aker said responsibility for maintenance of the septic system would eventually fall on the co-owners association of Maxinkuckee Village, the creation of which he sees as a 36 month to five-year process. He also said individual unit owners would receive no rights or special privileges to lake access by virtue of ownership, but would pay the same pier and slip rental prices (or fees derived from the marina hoisting boats into the water) as non-owners.

The Army Corps of Engineers, Indiana Department of Environmental Management, and Indiana Department of Health all approved the plans, Aker said. He testified he had “no doubt at all it will work in conjunction with Lake Maxinkuckee...we’ve designed (storm and sanitary sewer) to be 100 percent contained within our property.”

There is provision for two more phases of theproject beyond what has been specifically proposed, said Aker, though no specific plans have been made. Under cross-examination by Snyder, Aker acknowledged he wasn’t sure the exact cost of operating the septic system. Disputing the claim that the proposed conservancy district and its septic system will be beneficial, attorney Snyder pointed out the current marina septic is cost-free and added the new system will create a monthly fee the marina will have to pay. He suggested the only benefit to the conservancy district would be to developers for creation of the PUD.

Snyder also noted sewers had been installed elsewhere on the lake’s east shore as a replacement for septic systems on the lake, asking Aker if he felt the proposed system was “a very large septic system” as opposed to a sewer system proper.

Detailing sewer treatment Aker replied the system would be a “treatment plant,” explaining there would be four retention ponds with weirs to contain emergency overflow should a heavy rainfall take place. Aker said he didn’t know if overflow from the site could leave his property via ground water, though he insisted it wouldn’t reach nearby Kline wetlands. He also answered a query from Snyder as to whether efforts for erosion control should go beyond the minimum requirements “because of the sensitive nature of the adjacent property (Kline wetlands),” that extra effort could be made during con struction if deemed necessary.

The PUD development team introduced three wit nesses to discuss specif ics of their plans to handle storm and sanitary sewer in the district. Registered soil scientist Tim Monaghan, of Lang, Feeney, & Associates, said he had identified wetlands on the property, and his findings had been concurred by the Army Corps of Engineers in In dianapolis. Monaghan detailed the proposed flow of storm water on the property already touched upon by Aker, noting storm water is treated for sediment control before entering on-site wet lands, which he said would be the “final repository” for storm water.

Monaghan also said the proposed system is designed to hold up under a 100-year storm event, defined in Marshall County as about 5.5 inches of rain in a 24-hour period. He acknowledged a “pretty small probability” the wetland areas could overflow, adding that would require threeto four and a half-foot of extra water to the area. Instead, he said, “it doesn’tappear the water overflow will leave the (Aker) site... it will percolate into the ground. None of the water will be channeled into Lake Maxinkuckee or the Kline wetland area.

Monaghan and Dan Papcyznski of Aerotech – the company which manufactures the system of sanitary waste disposal proposed for the site -- described the “cluster septic” setup there in some detail. They said the system is designed to handle up to 25,000 gallons of sewage per day and that the plan had been approved by Indiana’s Department of Health.

Papcyznski said Aerotech manufactures aerobicwastewater treatment systems nationally, adding a licensed operator will becontracted through Aker to regularly test for the amount of solids leaving the systemonce it’s in place, on an ongoing basis. On-site alarms will alert technicians at thePUD and the contracted inspector, should a pump or other major component inthe system fail, he said. The Aerotech system, Papcyznski added, is in place in municipalities throughout the country.

Attorney Snyder focused much of his questioning regarding the septic system on what would happen should it fail; Monaghan acknowledged any sanitary sewage overflow would end up in on-site wetlands. Papcyznski, questioned by Snyder, admitted the largest sewage flow handled to date by Aerotech is 3,000 gallons per day, a significantly lesser amount than the 25,000 gallons per day the Aker system is designed for. The Aker plan, said Papcyznski, ties together multiple 3,000-gallon systems in order to accommodate the large capacity here, a plan he said has not been put into action elsewhere.

Collins testifies

Also testifying at the hearing was contractor Alan Collins of Construction Management and Design, Inc., who said he’s been in the construction business for 39 years all across northern Indiana as well as in other states. Collins described the economic viability of the project, countering opposition attorneys’ suggestions that the PUD’s lack of lake access makes it less likely to sell to prospective buyers. He said the proximity to the lake, small lots maintained by hired help rather than owners, the PUD’s amenities, and a purchase price per housing unit (which he estimated between $450,000 and $500,000) considerably less than million-dollar plus lake homes all make the project likely to succeed economically. Attorney Welch had noted, during cross-examination of Aker, that some PUD-type projects in the Lake Maxinkuckee area had failed to sell in recent years, which Welch suggested is due totheir lack of direct lake access.

After asking Collins to escribe the multiple other construction projects he’s headed in the Culver area, attorney Welch inquired as to whether Collins has had any “litigation or administrative enforcement proceedings come out of these projects,” which Collins initially replied he had not.

Welch, however, queried him on specifics of a south shore project in which he said enforcement proceedings began against Collins. Collins defended his actions in that case as well as a disagreement between himself and IDEM last year at a Sycamore Road project, and an earlier pier dispute in which he was involved at Collins’ BaysideCondominium project in Culver.

Attorney Jones also shared with Lucos copies of a petition he said contained some 100 signatures of people supporting establishment of the conservancy district. Aker acknowledged, after be ing questioned by attorney Welch, that some signers were Aker’s employees. Remonstration Several employees of JF New took the stand, including Culver resident and JF New central regional office manager Chris Kline, who outlined the history of the Kline wetlands, adjacent to the proposed conservancy district.

Kline said JF New had been conducting work on the wetlands almost since the firm’s 1989 establishment, sampling the water there over the ensuing years and helping develop a watershed management plan for the entire lake in 2005. He said the wetlands existed on the lake prior to 19th-century European settlement here and that the earliest existent maps show the wetlands as well. He noted the wetlands appear to have been first ditched around 1930. The Indiana DNR purchased 80 acres of the wetland in 1976, he added. Studies from the 980s showed the Kline ditch was the main nutri ent source for lake-harming phosphorus, and a large project ensued to restore the wetland as a result.

The LMEC, Kline said, raised over $200,000 and the DNR some $20,000 for a restoration project at the wetlands completed in late 1991. Studies from 1999 showed “significant improvements” in water quality and clarity there, he continued, adding an additional $37,000 came from the state to stabilize the dyke there around 1999, he added. Kline also said agricultural runoff continues to stress Kline ditch at the wetlands’ inlet, though the wetlands remain an important filter for water coming into Lake Maxinkuckee.

Botanist and Ecological Resource Specialist for JF New, Scott Namestnik testified he was involved in a site assessment in 2009 at the Kline wetlands and discussed the overall quality of the area on a numberof levels. He said development in general in the “extremely fragile and interconnected” ecosystem of the area causes degradation of the wetlands, add ing the Kline wetlands are important in filtering harm ful sediments before theyreach Lake Maxinkuckee.

Asked by attorney Snyder, Namestnik said addition of nutrients or sediment on the proposed PUD property would likely have a negative effect to wetlands on that property.

During his cross-exam ination, attorney Jones pointed out Namestnik’s findings show the Kline wetland areas closest to the Aker-owned marina property are actually the highest quality areas. Namestnik also agreed with Jones that if proper steps were taken during construction of the PUD, the wetland would not be affected by the work.

JF New employee and professional engineer Andrew Bender testified had reviewed plans for the proposed district’s cluster septic system. He said a reserve area “to account for any kind of failure in the system” could be set aside by developers – though doing so, he said, is not required by law – to best protect the wetlands and local ecology.

“If there’s failure in the system,” he said, “(the waste water has) no place to go and would directly impact the folks living there.”

Bender also said some waste affluent from the district would likely enter the soil there and could migrate off the property to wards the lake, though he acknowledged he couldn’t tell whether it would do so or not. He also said the proposed septic system is “agood system” provided it’smaintained properly, adding it appears the majority of water runoff from streets and driveways at the PUD will stay on the site.

The small wetlands on the proposed PUD site, Bender added, are important parts of the health of the 8,000-plus acre Maxinkuckee watershed, add ing compliance with minimum state requirements during construction alone are likely not enough to protect the Kline wetlands and those on the proposedsite.

Attorney Jones noted Bender’s concerns were “not shared by the state board of health,” adding the users of septic systems currently on the lake pay for the maintenance and operation of those systems, just as would be the case at the PUD site.

The remonstrance side of the hearing also presented the Commission with petitions signed by over 700 people opposed to the con servancy district.