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Fences Within Drainage Easements

Policy Regarding Encroachments of Fences within Drainage Easements and Lake Maintenance Easements

One of the most frequent complaints that are received by the County Surveyor's Office is the issue of obstructions of Drainage Easements within platted subdivisions. Since the Drainage Code was put into place requirements regarding the prohibition of fences within drainage easements are required to be placed on any new plat. This plat language became more enforceable when both the City and the County passed ordinances in 2015 which allowed the Building Commissioners to issue removal orders subject to fines if fences were not removed. With these increased prohibitions and with more due diligence on the part of some home buyers and realtors, there has been an increase in the number of requests for the placement of fences within drainage easements. The issue of fences within easements has become more problematic with the placement of fences within easements prior to the completion and release of a developers letter of credit. It is not uncommon that fences on newly completed homes require movement or submittal of an encroachment agreement. In order to bring some order to the encroachment process the following policy is now effective.

As stated on many plats, approval is required by the Drainage Board to place fences within drainage easements for areas located outside of the incorporated boundaries of Evansville. The approval process is for an encroachment agreement to be filed with the County Surveyor’s office. The encroachment agreement is a standard form that is available on the County Surveyor’s website. Once reviewed by the Surveyor’s Office the encroachment is taken to the Drainage Board for their approval or denial. If approved the agreement is then recorded.

Fences present a special problem in that in many cases homeowners desire to fence their entire property and therefore cross the easement with a fence. Unlike a utility easement in which a utility may need to remove a fence or other obstruction only if and when the utility needs to run new infrastructure or repair existing infrastructure, a drainage easement, especially for a ditch or swale needs the ability to function at all times. Attempts to place fences with partial openings rarely work and even if so may become clogged or be modified at a later date. With that in mind the following policy is in place as a guide for approval to encroach in a Drainage Easement for the purpose of placing a fence within a Drainage Easement.

For Drainage Easements with open ditches or swales, no fence shall be placed perpendicular to the easement to where the fence crosses the swale or ditch. The only exception to this shall be if the drainage easement is at the top of the drainage, so that if the fence were to block drainage it would only block water on the property in which the encroachment is granted. This does not apply to side yard easements which are platted for the for the purpose of carrying overflow from street drains and are discussed below.  In the limited situations in which an allowable fence is desired to be installed a drainage encroachment agreement MUST be approved by the Drainage Board prior to installation.

Newer subdivisions often have side yard easements for the purpose of carrying storm sewer piping from street storm sewer inlets.  These easements besides protecting the storm sewer piping also serve as on overflow swale that have a profile beginning at the elevation at the top of the curb sloping to the back yards of the lots. These overflow swales are designed so that if the street inlets should become clogged the water will flow in the same location as the piping just on the top of the ground. This piping and the overflow swales are generally in an easement along the property line (side yard) between two lots. In this case, an encroachment for a fence may be allowed assuming that the fence is not solid wood, vinyl or chain link. Allowable fences can be aluminum or other open section style fences that must have a minimum span of 4’ and be installed such that the posts are at least 1’ from the outside diameter of the storm sewer located within the easement. Solid wood, vinyl or chain link fences with a “cutout” for water flow do not meet this criteria. To install a fence such as described a drainage encroachment agreement MUST be approved by the Drainage Board prior to installation.

For drainage easements in place solely for carrying storm sewers without any planned surface drainage, fences will also be allowed to cross perpendicular to the drainage easements provided that the easements are piped and that no surface drainage is designed to be carried within the drainage easement. Fences crossing easements for this case may be open style or solid (wood or vinyl) or chain link. The section crossing the pipe must be a minimum of a four foot (4’) span and be installed such that the posts are at least 1’ from the outside diameter of the storm sewer located within the easement. To install a fence such as described a drainage encroachment agreement MUST be approved by the Drainage Board prior to installation.

Fences within a drainage easement that do not cross a flow line such as a fence that would run parallel to the flow line will be considered on a case by case basis. The criteria for installing such as described is that the fence must be a minimum of 3.5’ from the center of the flow line in all places. The 3.5’ is a minimum and is dependent upon the designed flow of the swale/ditch that is planned. To install a fence within a drainage easement such as described a drainage encroachment agreement MUST be approved by the Drainage Board prior to installation.

For proposed fences within a Lake Maintenance Easement, the location of the proposed fence must be  at the higher elevation of  either (a) the design 100 year storm storage elevation of a retention or detention basin or (b) the elevation of the water discharging through the emergency outflow of a retention or detention pond during a 100 year storm. Any proposed fence within a lake maintenance easement must be of sufficient distance to allow for maintenance equipment to work between the proposed fence and the normal pool of a retention pond.      

In addition to meeting the above criteria, for subdivisions still under development in which the Developer has an outstanding letter of credit, no encroachment will be permitted in a Drainage Easement or Lake Maintenance Easement in which the letter of credit is still in effect without written approval from the Developer.     

Fences in urban areas and subdivisions with a legal drain as defined under Indiana Code 36-9-27 will not be permitted within the drain or within a minimum of 15’ from the top of the bank. As with other situations, the placement of fences within the Right of Entry of a legal drain are on a case by case basis. Placement of fences within the legal right of entry shall be done utilizing the approved form regarding right of entry for legal drains. The county may also require a recorded encroachment agreement.       

The above policy is a guidance document only. Any final decisions by the Vanderburgh County Drainage Broad regarding any encroachment shall be on a case by case basis at the discretion of the Vanderburgh County Drainage Board.  

This information is available for download here: Policy Regarding Encroachments of Fences within Drainage Easements