Judge intends to lift stay on Walton Lake drawdown, but appeal expected

FAIRFIELD – An administrative law judge is poised to lift the stay on the City of Fairfield’s plan to drain Walton Lake, but it won’t necessarily mean the end of litigation.

Fairfield resident Ed Noyes filed an appeal of the Iowa Department of Natural Resources’ decision to award a permit to the city to draw down the lake, which the city is pursuing to replace the golf cart bridge that was deemed unsafe. On Monday, Sept. 15, Administrative Law Judge Thomas Augustine of the Iowa Department of Inspections and Appeals heard arguments from Noyes, the DNR, and Fairfield City Attorney John Morrissey in a teleconference.

At the conclusion of the hearing, Augustine announced that he agreed with the city’s argument that the DNR’s stay on the project should be lifted effective 5 p.m. Thursday, Sept. 18 so the city could proceed with the lake drawdown. He told Noyes that he would have until 5 p.m. Wednesday, Sept. 17 to appeal the decision, and Noyes told The Union that he plans to do just that.

Noyes said his appeal will be based on his argument that the judge did not follow proper procedures because the Sept. 15 hearing was held before the public comment period had expired, which he claimed should be no sooner than 14 days after letters went out notifying residents of the drawdown, letters that were mailed on Sept. 7 but which Noyes said were not received until Sept. 10.

In a phone call with The Union Wednesday morning, Noyes said he disagreed with Augustine’s verbal ruling, as well as arguments made by Morrissey. He said the DNR’s awarding of the drawdown permit was based on incorrect information about the depth of the lake. He also said he disagreed with Morrissey’s contention that the city was exposing itself to being sued by Drish Construction for breach of contract by delaying the project.

“I tried to explain to the court that environmental concerns can stop these projects,” Noyes said.

Noyes said Drish could not file suit against the city if the DNR withholds the permit for drawing down the lake.

Morrissey disagreed with that contention, and said the city is at risk of a lawsuit.

“We’ve had a $198,000 contract since last March, which has been hanging out there with extensions and delayed start times agreed to with the contractor,” Morrissey said. “The Aug. 18 start date has passed, and we’re concerned we’re a target. We’ve been interfered with since last spring, and not able to do what we need to get the contract started.”

Morrissey also disagreed with Noyes’ characterization of the debate over the lake depth. He said it’s true the depth of the lake was incorrectly calculated at first, but that the calculations were “quickly corrected” and that Noyes has “at no time acknowledged this was corrected.”

In a letter shared with The Union, Morrissey said he believes opponents of the bridge project have misled the public, such as incorrectly stating the project would cost $371,000 instead of $198,000 that is in the contract, and that they have claimed the Walton Club Board is willing to take on responsibility for the bridge.

In a letter addressed to the mayor and members of the city council sent Sept. 11, Walton Club board member Jennifer Stever wrote that the board’s attitude toward the bridge had been misrepresented by numerous sources.

“The Walton Club/Board has never stated or insinuated that we would take on the bridge project or the financial burden, as Tom Twohill stated at Monday’s meeting,” wrote Stever, referring to Twohill’s comment at the Sept. 8 meeting, saying exactly that. “Larry Padgett’s presence at any of the meetings has not been on behalf of the Walton Club/Board.”

During the Sept. 8 council meeting, Padgett spoke favorably about a company called Overman Steel and Fab of Joplin, Missouri, which makes prefabricated bridges. Others who spoke at the council meeting, including Noyes, recommended the city pursue a bridge from Overman instead of the box culvert design that Drish intends to build as part of its contract with the city.

The Union asked Noyes to respond to Stever’s letter, and he said the wrong questions have been asked of the Walton Club board.

“The right question is, ‘Would they [fix the bridge] if they were required,’ and the answer is obviously yes,” Noyes said. “What the city should have done is say, ‘Listen Walton Club, if you want another bridge, it’s your responsibility to do this.’”

Morrissey contends the city is responsible for the bridge because the lease between the city and Walton Club indicates that the city is responsible for maintaining all bridges on the property.

“The duty to ‘maintain’ in the 2015 lease logically encompasses the responsibility to replace unsound infrastructure,” Morrissey wrote in his brief. “This is a lawful expenditure for the preservation of public property, not a gift.”

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Call Andy Hallman at 641-575-0135 or email him at andy.hallman@southeastiowaunion.com

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