Topsoil displacement forgiven by Newton City Council

Although substantial topsoil runoff from a field inside Newton city limits was believed to have caused a number of issues to nearby properties during the May floods, council members decided at their meeting on July 15 to not punish the property owners with a more than $400 nuisance abatement fee.

It is not often the members of the Newton City Council review a specific item from the consent agenda — which is typically where a number of lower stakes actions are approved all in one vote and with no in-depth discussion — but last week they did just that, and it generated a lengthy dialogue over one abated nuisance.

Specifically, it was in regard to a 6-acre piece of vacant, cultivated land near the 1200 block of North 11th Avenue East. Heavy rainfall during the May 21 floods displaced a large amount of topsoil into citizen driveways on East 13th Street North and it was believed to cause an accident on North Eighth Avenue East.

Council member Randy Ervin requested the nuisance abatement fee charged to the property for the city cleanup to be removed. He felt it was unfair.

The City of Newton accused property owners Lisa and Justin Osborn, who live outside of town, of creating a public emergency that day by failing to install erosion control on the field. Newton Public Works Director Joe Grife said the city had no option but to have it cleaned up immediately the day of the flood.

Piles of topsoil were deep enough to block access to driveways, Grife said, and after the streets were cleaned up he contacted the Newton Police Department to have a citation sent to the property deed holder for the cost of the cleanup. The work order was $363.31, and the administration fee was $75.According to city documents included in the July 15 agenda, the total amount assessed for the nuisance abatement was $438.31.

“I understand this was an extreme weather event, but had the property owners taken erosion control measures, including but not limited to not cultivating the established waterway, this problem could have been avoided,” Grife said in a city correspondence that was later sent to Newton News.

Crews did have to perform additional cleanup some time after the floods, but by that time the field was established and the topsoil runoff was much less severe. It now appears to the city that the field is entirely established and should prevent future stormwater problems.

Lisa Osborn, who co-owns with the property with her husband, spoke to council during the citizen participation portion of the July 1 meeting. She showed photos of the flood damages around town — including a portion of a submerged First Avenue — and the damages her property was accused of causing.

She also explained that she and her husband acquired the property on contract in winter 2023. Since then her husband has spent many hours trying to clean the property, which has been overgrown with weeds and trees. In May, he prepared the land for seeding. Then the floods occurred all around the city and county.

In June, the Osborns were notified by the deed holder of the property who received an invoice in the mail for about $438. The invoice stated the property failed to comply with code requirements within the allotted timeframe, which forced the city to clean up the mud drained from the property.

“My husband and I didn’t receive any notifications via phone, mail or otherwise, so I called the city,” Lisa Osborn said. “I was then told this was a standard form that is filled out when there is an abatement performed. We were not notified and we did not violate any code.”

However, due to an emergency situation caused by the mud, the city had to take care of the issue and the property owners were subsequently charged. Lisa Osborn said this is especially frustrating because her husband performs dirt work for a living and owns dirt moving equipment.

Lisa Osborn noted the city storm drain dumps on the north side of the property and the topsoil ran off on the south side of the property onto a dead end road. Although the city stated driveways were negatively impacted, she also argued there are no driveways between the field and the end of the mud.

She then asked that the invoice be rescinded. Ervin responded the next meeting.

“After doing some research and taking a look, with all due respect to our city staff I do not believe we should charge this lady $438.31 for what’s a true act of God, which was a lot of rain in a hurry that was noticed all over town,” Ervin said. “If we’re going to start doing this, where do we stop?”

Ervin recalled an experience from a citizen who lives four houses down from him. Like so many back in May, the woman had a flooded basement. When she inspected the storm drain that was supposed to protect her home from the water damage, it was full of corn stalks and landscaping.

“Are we going to go to that farmer and charge him? Are we going to go to people that put the landscaping around it and charge them? I don’t think this is a fair representation of our city,” Ervin said before making his motion to remove the Osborn property from the list of expenses for nuisance abatements.

Council member Joel Mills worried it sets a wrong precedent charging the owner for the issue that was caused by the severe weather event. Mills also argued that the city does not know if the intake was fully functional at the north side of the property by the time Newton took on a devastating amount of rainfall.

“I think this one could be omitted,” Mills said.

Other council members were hesitant to agree. Council member Stacy Simbo wanted clarification about erosion control measures and whether the property owners, who were not present at the meeting, knew that removing a grassy area of the field would lead to drainage problems.

Grife said the field was tilled before the storm, and if he could go back in time he would recommend the property owners keep the waterway in place and install other protections to keep the topsoil contained. The public works director reiterated the property owners have since installed protections.

“That field has been farmed for decades,” Grife said. “And we’ve never seen anything like this before. So it was just bad timing all around. But if some protections had been put in place prior to the storm I believe it would have been much less severe than what it was.”

Ervin asked if the average citizen in Newton knows to put those in place. Grife relented an average citizen probably would not know to do that, but those with some farming knowledge would know. Grife also said he reached out to the local U.S. Department of Agriculture office, which echoed his sentiments.

Council members asked what part of city code the property owners violated. Newton City Administrator Matt Muckler said it was a violation of City Code 94.02, Public Nuisances Affecting Peace, Safety and General Welfare. In particular, it dealt with properties not seeded or sodded.

The code says a nuisance is created when a property in a residential district that is not fully seeded, sodded or otherwise planted with a ground cover more than 180 days after any disturbance, like construction or site grading, or any time prior to the 180 days if the property has inadequate stormwater pollution prevention.

If a property is causing erosion or drainage problems on nearby properties or streets, then city code considers that a public nuisance.

Mills added that if the property owners were notified by staff earlier they would have helped and complied with code. He questioned whether charging them was a correct course of action, and he said the city council can excuse a few of these types of cases during extreme weather events.

Newton Mayor Evelyn George said, “So, for clarification, it was OK for the city to address it immediately for the residents in the neighborhood, but inappropriate to charge the property owner who would have taken time to get there? I’m just thinking you’ve got residents in there trying to get in their driveways.”

In George’s opinion, the city was right in taking action immediately because staff was receiving multiple phone calls from people in that neighborhood. Ervin said nobody is disputing the action from city staff, but he contended many residents could not get to their houses that day, whether it was mud or high water.

“We shouldn’t take advantage of somebody,” Ervin said. “There isn’t anybody who is more upset about losing topsoil than they were. They didn’t want to lose that topsoil either. But I just think they were cited incorrectly and I don’t believe we should—that’s why I’m asking the council to please remove that from this list.”

Council voted 5-1 to approve the expenses for nuisance abatements excluding the Osborn property. Council member Steve Mullan voted no.