Drainage Problems Are Bringing Tom and Me To Court
by Carolyn Hasenfratz Winkelmann
In the spring of 2018, before Tom and I were married and I wasn’t yet living at his house, I started making a garden plan and beginning work on what would become our garden. I could see right away that drainage was a big problem in his yard and the garden plan would need to address it. Tom and I were also very concerned about the state of his basement. There were numerous large cracks and a couple of small rivers that ran across the floor every time it rained. Shortly after our marriage in August of 2018, we hired an engineer to tell us how serious the problems were and what should be done about them. The engineer confirmed our opinion that we needed to keep water away from the the house foundation and seal the cracks. He said this would probably be enough repair if we fixed the drainage problems on the outside of the house. If it got worse, we might need about $10,000.00 worth of pier work. We had the cracks fixed and next went to work on fixing the drainage issues.
Here are three photos of cracks in Tom’s basement that I took on July 29, 2019. The left photo shows a repair that was done some time before I knew Tom. The two right photos are repairs that were done in September 2018.
The garden plan I came up with is mostly my idea and I take responsibility for it. I based my plan on the following sources of information:
1. 16 years of personal experience gardening.
2. Completion of training to be a St. Louis and Missouri certified Master Gardener in 2016. (Link to photo of certificate). I have kept my certification current which involves at least 10 hours of continuing education and 40 hours of volunteer work per year.
3. I have attended workshops put on by MSD to learn proper techniques for managing stormwater runoff. Here is an article I wrote after one of the sessions I attended – MSD’s Project Clear and Our Local Water Issues
Relevant quotes from the MSD web page on Rainscaping (link here):
- “Stormwater runoff is created by hard surfaces that cannot absorb water, like concrete, the footprint of a house, and compacted soils.”
- “This (rainscaping) can be done through any combination of plantings, water features, catch basins, and permeable pavement, among other activities.”
- “In a properly designed rain garden, water will soak into the ground within a day or two, long before mosquitoes have the opportunity to breed. They can be designed to attract the kinds of insects and wildlife that feed off mosquitoes, reducing their numbers around your property. Rain gardens can also help eliminate yard ponding, in which water can pool long enough for mosquitoes to multiply.”
- “A rain garden gives water runoff a beneficial and safe place to go, helping to keep it away from your foundation where water problems can occur. It can also help reduce or eliminate water ponding on your property. Since rain gardens reduce the amount of stormwater entering the sewer system, they can help prevent basement backups and sewer overflows.”
4. I have read over the suggestions for controlling water runoff on the Missouri Botanical Garden web site.
- “Plant a rain garden or develop a swale to help retain water in the soil and prevent runoff.”
- “Incorporate rainscaping features such to manage stormwater.”
Here are the rainscaping features we have added so far:
- Rainwater harvesting – We have installed two rain barrels so far.
- Rock weirs – I have installed two of them at the Southeast corner of the property so that if there is any runoff that overtops the dry well at the end of the rain garden, soil will not be lost into the street.
- Bioswale/Rain Garden – I have made several of these and am in the process of planting them with rainscaping plants to absorb more of the rainwater than the clay soil can currently absorb. Quantities and names of rain garden plants that I have added:
- Lawn alternatives – we are allowing four different kinds of water-loving groundcover grow in place of turfgrass in parts of the lawn close to areas that collect water.
- Soil amendments and mulching – we have added 13 cubic yards of soil (that’s a whole dump truck load) from St. Louis Compost that is 50% compost to improve the water absorption ability of our clay soil. So far we have added half a pickup truck bed full of mulch with more to come.
5. I read over the St. Louis County guidelines for land disturbance. We are within the guidelines because we are disturbing less than 30 square yards, less than 2000 square feet, are doing residential landscaping in a one family dwelling and have provided safeguards against erosion (the dry well and rock weirs).
6. I consulted with the owner of a landscaping company that I worked for part time for two years doing consulting and labor on client’s properties.
Here are some pictures that document what the yard looked like before we started working on it:
North West and North areas of our yard on March 27, 2018 showing that we had problems with standing water before I started any rainscaping. Also note that the neighbor’s yard accumulated standing water before I did any rainscaping. Here is a link to the shared photos to prove the date I took the pictures:
Tom’s Yard March 2018
The image on the left of this pair shows water collecting around the house foundation on March 27, 2018. The right photo shows water collecting around the house foundation on November 1, 2018. Here is a link to the shared photos to prove the date I took the picture on the right:
Tom’s Yard November 2018
Here is a graphic that shows where the neighbor’s water discharge pipes are located (red) and the area of our yard that was prone to collect water (blue) before I started rainscaping.
Yes I drew on the satellite picture where the neighbor’s drainpipes are and where the water collecting areas were. Don’t just take my word for it. Here are some videos showing the water flow happening in real time during a rainstorm. These videos were shot on July 1, 2019.
https://youtu.be/UIGlDAK3McY – the two back downspouts in the neighbor’s backyard are shown. I don’t know if you can tell from the video, but in addition to the drainpipes being aimed at our yard, the neighbor’s yard is sloped downward to drain directly into our backyard.
https://youtu.be/usO0kYKr7Ko – this video shows how the front drainage pipe is aimed right at our driveway. We had to have our driveway replaced in November of 2018 due to cracks and damage caused by years of this water flowing over it and freezing and thawing in the cracks.
Here is a link to photos I took on November 1, 2018 showing new driveway and other pictures around the house foundations. November 1, 2018
https://youtu.be/Up2nHlhyf_c – here is a video showing how wet the backyard gets and how I connected the neighbor’s low spot to ours to faciliate drainage of her yard and to avoid interrupting the flow from one yard to another.
These photos were both taken on July 1, 2019. As you can see, the area was dry before it rained. Here is a link to the photos I took on July 1 before and after it rained so you can verify the date and that the photos were taken on the same day and that the rain garden areas do drain in between rains like they are designed to. Also note that the neighbor’s yard and our yard drain better than they did before I did any rainscaping work and the areas of standing water are smaller than they were on the March 27, 2018 photos. As I get more plants in the bioswales and rain gardens and the existing plants get bigger and the soil continues to improve, the ground will absorb water even faster in the future. As I add plants I add humus and the plant roots penetrate the clay below to facilitate drainage. The 235 plants I already have are doing a good job. More are coming, but it’s not easy to get anything to grow in clay and you can’t do transplants into clay and expect them to live during the hottest time of summer. July 1, 2018
My garden plan was designed to help alleviate the following problems:
1. Soil is almost all clay and absorbs very little water.
2. Clay soil not only resists absorbing water, it expands and shrinks in wet and dry weather causing cracking in the foundation.
3. The existing soil cannot absorb the runoff from our own house. In addition, the majority of the drainage from the neighbor’s property to the west is directed onto our property so that we not only have our runoff to deal with, we have most of hers too.
4. Our back patio and back sidewalk were tilted toward the foundation directing water right into the cracks and making them worse. In addition, since they were solid concrete they inhibited water from being naturally absorbed into the soil.
I decided to draw up a plan that addressed these issues and employed rainscaping techniques because my conscience will not allow me to direct water right into the storm sewers when I know that MSD is spending billions of dollars to try to alleviate flooding in our area caused by too much storm runoff AND I’m well aware of how to manage our own storm water responsibly and avoid contributing to flooding and poor water quality downstream from us. How much damage has been done across the Midwest this spring and summer by floods? We’re trying to deal with our excess storm water in a way which does not just push the problem onto someone else. I know most people don’t take our neighbors downstream from us into consideration when making landscaping choices but we are not those kind of people.
Here is a 3 page PDF file showing the first citation, the summons to go to court, and the second citation. We took care of the invasive honeysuckle within two weeks, and the bricks before sundown the next day. Please note the dates of these three documents – May 20, June 25 and July 23. I am confused about why we have to go to court when we fixed the problems mentioned in the first citation in the time limit set by the county. The court summons was issued on June 25 when the work was completed by May 31 (to clarify, the bricks were fixed by sundown May 4 and the invasive honeysuckle trimmings by May 31 as required in the first citation). Furthermore, I also don’t understand why we got another citation before even having the court date yet.
Here in summary here are the reasons why I do not believe we deserve any citations or fines from St. Louis County:
- The next door neighbor who called the county to say she doesn’t like our garden admitted to me that she called because she thinks it’s ugly, not because it was causing her any problems. She revealed this after I offered her some of the dirt we bought from St. Louis Compost to help her raise her wet spot (which existed before our rainscaping as you have seen) and some premium grass seed with really long roots to help absorb water. You can’t get this grass in big box stores, the hybrid is only sold in select garden centers. I couldn’t understand why she was refusing and she said she just thought our garden was ugly. Her yard is much uglier in my opinion and one of the reasons I’ve planted plants along the fence is to hide the view of her yard. You can see from the videos that her yard is full of invasive weeds, concrete, trash cans, brush piles, yard tools and the like.
Ugly is kind of in the eye of the beholder isn’t it? This photo was taken on July 30, 2019. On the left is a very nice Assumption Lily in our neighbor’s yard with invasive weeds (Mimosa, Japanese Honeysuckle) around it. On the right we have an unplanted area on our side of the fence in the foreground and an herb garden barely begun behind it. So far we’re growing in this section Bronze Fennel, Garlic Chives, Peppermint and Korean Hyssop and protecting the soil in the unplanted areas with mulch. Which side is uglier? If different people were to give different answers it would not surprise me.
- We could have sued this neighbor for ruining our old driveway. We didn’t do this because we thought peaceful relations with neighbors were more important. This is what we get in thanks for that. I never spoke to her until I went over to ask her why she called the county on us instead of just asking us to fix what she didn’t like. It’s not like I went out of my way to cause problems with her. My computer desk faces her back yard and I’ve observed her glaring at me before through the window but since we never spoke I had no idea what her problem was.
- We have improved the drainage in her yard and the neighbor on the other side of us no longer has our runoff going over his driveway, therefore we have helped the lifespan of his driveway and possibly saved him thousands of dollars. (We know how much it costs because we just got one.) We disagree that we have caused a drainage nuisance to our neighbors, rather we have provided a solution to an existing problem and both of their properties have been helped at no cost to them.
- Water does not stay in the rain garden areas long enough to grow mosquito larvae so we don’t agree that we have caused a nuisance there either. As you can see from the photos I showed you, we already had a worse standing water problem BEFORE the rain garden was started. Some breeds of mosquitoes can breed in as little as a teaspoon of water. You can see from the photos that we had a lot more than a teaspoon of standing water BEFORE I started the garden. It also hung around a lot longer than one or two days. As a precaution I also treat the water when it occurs with BTI (Bacillus thuringiensis serotype israelensis) just in case we have more than a normal amount of rain for a few days. This makes our yard and neighborhood SAFER from mosquitoes than before we did anything – therefore we believe we should receive commendations for what we have done, not citations. Since we have improved the existing situation, we don’t agree that we have created a nuisance.
Here are three areas of the rain garden that I consider finished or nearly so. These photos were taken July 30, 2019. They have been planted with plants that can take varying water levels and clay soil. Their roots improve water penetration into the ground. I also added some better soil and mulch after planting. As you can see there is no standing water, even though it rained at least three times yesterday.
- The day before we received our first notice from the county, (May 2) I was out in the front yard working and I saw a St. Louis County work truck slow down in front of our house. The driver stared me down and gave me a foul look. She stepped on the gas and sped off. She didn’t even stop the truck all the way. If this is what passes as an inspection it’s no wonder the inspectors don’t understand the drainage situation and how the rain garden fixed most of it (still have to work out the driveway pipe situation so our new driveway doesn’t get ruined – was hoping to do it peacefully but quickly losing hope for that.) Note that the first inspection document says the yard was inspected on or around May 20, but the day we actually got the citation on our door was on May 3. (Strangely enough, on a Friday, the only day of the week we are both gone all day at the same time, and also the day after the county truck came by – suspicious enough behavior that I made a note of the date.) If everything is above board, why is stealth necessary? How do the inspectors know if there is standing water if they “inspect” on May 2 or 3 but claim it’s really May 20, when we go through long periods when it rains nearly every day? If the inspectors make a point of only coming on days when it rains or are not truthful about what days they come of course they can make claims that are misleading (if that’s what they are trying to do). Yesterday (July 29) it rained three times. There will probably be a time when we won’t have any standing water even during rain – when our soil is better. Remember we were starting with clay – we did not strip off good soil and cause these problems, the problems were decades in the making and started when these homes were built (in the 1950s). We paid over $350.00 to St. Louis Compost to ADD good soil.
Improving our soil. From left to right: Taking delivery of a full dump truck of 50% compost soil from St. Louis Compost on May 2. A full dump truck load is 13 cubic yards. 2nd photo – Tom spreading soil over where the old concrete patio was on May 6. We took out the concrete patio to make the ground more permeable so there is less standing water. Soil and mulch will be here until we are ready to install a new patio. It will be made of permeable pavers or mulch so we don’t bring back the previous drainage problems. 3rd photo – Picking up mulch in a rented pickup truck. Mulch makes soil drain better and protects it from erosion and compaction.
- The large hole next to the future patio will become our new pond and waterfall area. We will stick to the county determined limit of 24″ of depth. It will have a liner, filter, aquatic plantings, two waterfalls and all the bells and whistles. We wish it was done already too. It takes time and money to build. For example I could have been working on that the last couple of days but so far I have spent 9 hours working on a defense for our court date and I’m not done yet. Plus there is the time we have to actually go. That’s a lot of hours that we aren’t getting useful work done. Edit: total time I spent on defending us in court was 17.4 hours.
- The inspectors, if they come at all, seem to only come by when we aren’t home. Our neighbor can easily tell when we aren’t home and can tip them off. Therefore they can’t ask us questions and we can’t explain. That makes me suspicious about what is really going on. Yes completing our garden plan takes time. I don’t know of any construction sites that look good during the whole project. If construction sites had to be shut down every time it rained and there was a puddle or it looked ugly to someone nothing would ever get done. I think we are being treated unfairly and unethically and are not guilty of any violations. I’m considering setting up a webcam to see what the county people look at in our yard assuming they come at all so that we can defend ourselves more effectively. Should I spend this money on more garden improvements or more surveillance technology? Which will protect us more from fines and having to go to court? Questions I’m asking myself.
We don’t mind dealing with our neighbor’s runoff responsibly when she won’t, because the most important thing is that it gets done, but I think it’s wrong for us to be punished for it. When I talked to her to try to work out what she was really upset about she complained that our garden was ugly, that she had water in her basement, and her property taxes were too high. I can do something about making the garden less “ugly”, but I can’t do anything about her basement or property taxes. I don’t see why we should be punished for those things. We had the same problems in our basement and instead of attacking her we just fixed it and now we are being dragged into court for it. I have a co-worker who lives a few houses away and has water in his basement too. The whole neighborhood probably does because the whole neighborhood is built on clay. We’re trying to do something proactive and neighborly about it.
Here is a link to this document online if you ever want to refer to it and follow the live links:
If we have not already addressed all the court’s concerns please inform us of how you would like us to proceed in order not to be fined. We’d rather spend the money on garden and property improvements. We still have a lot to do. My garden plan was intended to be a multi-year project. Phase 1 was expected to take three years. The more times we have to stop and go to court the longer it will take.
Update July 31, 2019
Last night in court the charges against us were dismissed. As for the second citation from July 23, it appears that our neighbor waited until we were on vacation and there was a day with a lot of storms to call the county inspector again and say there was standing water in our yard. Of course there is when she has directed nearly all her runoff to our yard. I thought of filling the bioswale areas that didn’t have plants in them yet with mulch so this didn’t happen when we were gone, but I wanted to be home when I tried this in case the storm water pushed the mulch around too much and made dams that would cause worse problems. I did expect her to try something when we were on vacation but I’m surprised the county inspectors go along with it and don’t see what she has done to us by directing her runoff to our yard. The county is displeased that we interrupted the flow of water from her yard to ours, but her entire yard is a barrier to water flow. You can see from the satellite photo that it is concrete from one end of the yard to the other, and we got taken to court for about 10 bricks in a raised bed that took 10 minutes (or less) to remove. Well the inspector was also on vacation last night, so the county inspector helping out in court last night gave me his email address so I forwarded the this article to him. I had no way of contacting him before to explain what is going on. I hope after this he will just talk to us. In the meantime, I have no problem with putting some mulch in the bioswales that don’t yet have plants and don’t yet absorb water very well. They would still be porous and function as designed until I can get more plants in. It will take a little time for new mulch to get “sticky” and “spongy” and absorb water well so I’ll need to keep a close eye on it.
Update August 15, 2019
This was left on our door August 15. This is promising. I have a specific person I can contact with a phone number. I’m going to call him tomorrow morning. How do you think the conversation will go? Any predictions? I’ll let you know what happens!
Update August 19, 2019
I called and left a message for Anthony V. and he called me back within an hour or two. He sounds like a great guy, nice and reasonable and professional like the other inspector who helped us out in court on July 31st. At first he was talking to me about a different property and then he remembered which was the right property and told me I have to fill in the rain garden. It’s clear he didn’t read the article above that I emailed to him, or if he did he didn’t remember it. I explained to him the drainage issues the rain garden was designed to repair. I explained the damage to our house and driveway and how we had already spent thousands and were trying to prevent spending thousands more. I explained how the neighbor’s runoff is directed into our yard. I asked him to email to me a copy of the St. Louis County policy on rain gardens so that I could see what I was in violation of because I know of many rain gardens in St. Louis County and some of them are huge and they don’t seem to be a problem. He said that was covered under the land disturbance guidelines and I told him I had read those and I was following the restrictions in there. (I have a link to the Land Disturbance Guidelines above). He said he’d talk to his supervisor and get back to me. I missed his next voicemail which was not too long after and I gave him a return voicemail message so we are playing phone tag. I don’t know what the message is other than to call him. I gave him my email address so he can email me the statute I’m violating (assuming there is one). If I’m going to fight it in court I need to know what it is first! I’m very glad we can communicate instead of Tom and I just finding “nastygrams” saying see you in court that are dropped off when we aren’t home.
Before we got off the phone, I asked him how to report the neighbor’s drainage pipes discharging onto our property. He said to report any that are closer than 10 ft to the main office. So I measured the four pipes in question and there are two closer than 10 feet. I opened my measuring tape to 10 feet and took these pictures to illustrate.
I reported to the Neighborhood Services main office. I know it seems incredibly stupid and petty to be measuring the neighbor’s pipes and reporting how close they are. This is what I’m forced to do because our neighbor was not content to let us deal with her excess stormwater at no cost to her. She is the one who involved the County, so now they are involved. I would have much preferred to not involve the government and waste taxpayer’s money, I’m sure they have much more important things to do. I’ll let you know what happens!
Total time I’ve spent up to this point on our defense: 18.5 hours
Update August 20, 2019
Here is the answer I got from St. Louis County about the neighbor’s pipes being too close:
“St Louis County has no jurisdiction in Marlborough you will have to contact Marlborough concerning this matter. St Louis County only covers unincorporated areas .”
I thought we were in an unincorporated area, but if we are not, why is St. Louis County hassling us about our garden? Why is St. Louis County in charge one day and not the next day? When I have time, I’ll put in calls to Anthony, St. Louis County main office at the County and Marlborough City Hall and see where that goes.
Turns out don’t need to the above that just yet – response from County is we are unincorporated, St. Louis County has jurisdiction, and the complaint has been entered.
A little later I got a voice mail message from Anthony saying he talked to his supervisor and we have to get rid of the rain garden. I left a phone message for him asking him to send me a copy of the specific law we are violating and the name, phone number and email address of his supervisor. That’s the second time I requested a copy of the specific law. I have searched for things like “rain gardens St. Louis County guidelines” and “rain gardens St. Louis County restrictions” and I have found nothing.
Total time I’ve spent up to this point on our defense: 19.5 hours