Once a week, Holly Kohley walks to the edge of her parents’ backyard, grabs the smooth part of a barbed-wire fence, pulls herself atop four railroad ties and snaps a picture.
She’s documenting the growth of a pond dug to collect stormwater from a new subdivision next door. It’s a pond that she says for years has overflowed its banks and leached past those railroad ties into her parents’ backyard. And it’s a pond that, to Kohley and her parents, illustrates government incompetence and a developer’s indifference.
“I think he’s just waiting until we kick the bucket,” said Kohley’s father, Wayne DeRusha, 86.
DeRusha is a World War II veteran who now uses a wheelchair to get around. His wife, Phyllis, is 90 and needs help caring for him. They built a new house in Woodstock, just minutes from their daughter, but it remains vacant until they can fix the flooding problem and sell their old home just outside northwest suburban Cary.
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They say that even if they could sell the house at a reduced price, they don’t want to leave the problem for someone else. So — 21/2 years into their battle — boxes remain packed, even as hope fades.
Records show that the developer and McHenry County blame each other for creating a mess that first came to light in 2009, when the DeRushas had a signed contract to sell their home. The deal fell through when a routine inspection uncovered problems with the next-door pond.
Joe Glasder, the developer, said the pond has “minor deficiencies” but doesn’t see them as the cause of the DeRushas’ flooding. More importantly, he said, the county signed off on the project.
“I built this subdivision according to the plan,” he said. “If the county is saying that it’s in violation, the county is in violation of its own approved plan.”
County engineers said Glasder should redesign the pond and threatened to fine him for not fixing it. But county prosecutors would have to seek the fines in court, and they refuse. They say the developer is trying his best to repair the pond, but that it’s a dispute between him and the DeRushas, not the county.
That tactic frustrates County Board member Ersel Schuster, who said she’s “furious” the county isn’t taking its own regulations seriously.
“How utterly, utterly disgusting that people have to put up with this and someone like Ms. Kohley had to do all of this just to protect her folks,” Schuster said.
Fears come true
In theory, a retention pond is supposed to act as an emergency parking lot for rainwater during heavy storms, holding it until it absorbs into the ground. But records show that the pond for this subdivision had unusual features baked into its design.
The pond was dug out of a wetland. The county agreed to let the developer dig the pond deeper than usually allowed — potentially putting it much closer to the water table. And Glasder said the county made him install a special kind of well that was supposed to help the pond drain faster.
A state Environmental Protection Agency inspector would later question why the county agreed to such a design. In 2006, when Glasder’s Brookstone subdivision was approved, the county’s effort to regulate stormwater runoff was suffering “growing pains,” County Board member Mary McCann said.
The regulation was relatively new. Housing was booming. The county didn’t have an on-staff stormwater engineer. “I’m not sure we did a very thorough job,” McCann said.
But at the time at least one county official told the DeRushas the developer would be forced to follow the new regulation, records show — even as the DeRushas expressed concern, before the pond was built, that it wouldn’t drain properly.
The family had other worries. The couple’s health was deteriorating. Kohley and her husband borrowed $200,000 to build them a home closer to her. It was designed to meet their needs and those of their disabled son, whom the DeRushas cared for in their home. He died as it was being built in 2008.
When the new house was finished in early 2009, the DeRushas put their Cary home on the market. A buyer emerged, willing to pay $327,000.
But the buyer’s attorney canceled the deal after an inspector uncovered the flooding. The attorney said the flooding from the pond was getting worse and had already damaged the backyard shed and garage.
About that time, the family noticed a county engineer walking the edge of the pond. They learned that a neighbor across the pond, Wesley Emch, had complained about it overflowing.
That started Kohley on what became a 21/2-year crusade to try to get somebody to fix it.
A part-time records clerk for the Barrington Police Department, she taught herself how to use the Freedom of Information Act to get records on the development and engineers’ reports.
She’s spent hundreds of hours online researching the finer points of retention ponds and all the rules and regulations that go with them.
The family has spent nearly $4,000 for engineers to study the problem and more than $5,000 on a lawyer to try to prod someone to fix it. Then there are the monthly $500 payments for the home the DeRushas have yet to move into, along with its yearly tax bill of about $6,000, Kohley said.
Conflicting excuses
In a flurry of back-and-forth emails and letters Kohley obtained and provided to the Tribune, the developer and county officials offer conflicting accounts of what went wrong.
Glasder said the pond isn’t the cause of the DeRushas’ flooding. His attorney blamed the DeRushas for building their house in 1985 on top what he claimed was a wetland. Glasder points to a 1973 aerial photo from the county showing the old wetland stretching on to the DeRusha property.
But the Army Corps of Engineers confirmed the only documented wetland was where Glasder’s pond — not the DeRusha property — now sits. More recent county photos do not show the wetland stretching past their property line. And Wesley Emch — the other complaining neighbor — told the Tribune his backyard didn’t become marshlike until the pond was built.
County officials won’t definitively blame the new pond for the latest flooding, but they say it clearly isn’t draining properly: Its water levels have been repeatedly higher than even the highest point the design anticipated under the stormiest conditions.
Glasder has said any problems with the pond are the county’s fault for making him build special pits in the bottom of the pond called dry wells. He now suspects those wells are sucking up underground water into the pond, making any problem worse.
“I’m not an engineer,” Glasder said, “and I could look up on Wikipedia and in five minutes figure out the dry wells should not have been there.”
On that point, he may have sympathy from at least one regulator. The dry wells surprised Illinois EPA inspector Karen Katamay, who expressed concerns to the county after seeing the pond. She told the Tribune the wells were very close to the water table, which could cause a number of problems, including drainage.
“They’re not really going to reduce stormwater runoff if they can’t drain,” she said.
The county’s current planning and development director, Dennis Sandquist, wouldn’t say if he thought the original design should have been approved, but he said it’s the developer’s responsibility — not the county’s — to design plans. The county only reviews designs.
The county’s chief stormwater engineer has told Glasder that whatever issues the original plan may have had are now moot because Glasder did not complete the job in the time frame allowed by the permit. Glasder said he was willing to make minor changes but can’t work on the property until the county extends his permit.
Glasder, a Cary native, said he had planned 10 houses for the subdivision. But because the housing market soured, only one four-bedroom, single-family home has gone up.
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The county engineer has repeatedly said the county won’t issue an extended permit unless Glasder redesigns the pond area in a manner they approve. The engineer has told him since February that he’s violating the ordinance and could face fines up to $750 a day.
They also have forced him to keep paying a bank for a letter of credit — a standard requirement of developers to ensure the bank will loan the developer money to fix incomplete projects. The county drops the requirement when it’s satisfied with the work.
Glasder has countered he should only have to follow the original plan, but last month his engineer submitted a revised plan. Glasder said he believes by doing so he’s no longer in violation and the problem is on its way to being fixed. The county planner wouldn’t go that far, saying the plan is under review.
State’s Attorney Louis Bianchi acknowledged in a letter to the DeRushas’ attorney that — more than two years into the ordeal — no one knows how to fix the pond.
“Due to the complicated engineering issues involved, no readily apparent, expeditious solution seemingly exists at this time,” Bianchi wrote.
Inaction
Bianchi said the developer has been making “reasonable efforts” to fix the problem, and besides, the developer likely would win any lawsuit the county filed to seek fines.
But legal experts familiar with land-use law told the Tribune that courts typically side with governments trying to enforce such stormwater management ordinances. Chicago attorney Julie Tappendorf said that for the developer to win, he would have to prove he did everything ordered by the county. Chicago-Kent College of Law professor A. Dan Tarlock said the county’s rationale for not seeking fines appeared “pretty weak.”
The inaction frustrates the DeRushas, who feel the county has abandoned them. But they would have a hard time winning a suit against the county, experts said.
The DeRushas are not sure how much time they have left.
One recent morning, Wayne DeRusha used his one good leg to inch his wheelchair toward their kitchen table, where his wife and daughter went through two years of documents she had accumulated.
Phyllis DeRusha teared up when talking about the stress from the ordeal, particularly seeing their daughter constantly trying to coax officials to fix a problem the county helped create.
“It shouldn’t have had to happen,” Wayne DeRusha said, “and we’re suffering from it.”