HomeMy WebLinkAboutYALE Sewer Assessment Charges
ANCHORAGE
MEMORANDUM
TO: Jerry Wertzbaugher
FROM: Gregg Wheatland
DATE: October 13, 1975
SUBJECT: Trunk Sewer Assessment Charges
for Yale Subdivision
Question Presented:
Is Mr. Yale required to pay the Municipaliny of Anchorage
(formerly the Greater Anchorage Area Borough) a per square
foot charge in lieu of assessment for the use of downstream
public sewers for each of 20 lots in his subdivision?
Answer:
Yes. My research indicates that Mr. Yale is clearly required
to pay a per square foot charge in lieu of assessment for
the use of downstream public sewers for 22 lots in his
subdivision, for two reasons:
1. The "Rates, Rules and Regulations for the Sanitary
Sewer Utility within the Greater Anchorage Area Borough"
provides, at ~ 6.5(a) that: "The subdivider will pay 'Lo the
utility a per square foot charge in l~eu of assessment, for
the use of downstream sewers." This tariff provision requires
Mr. Yale (the or~.ginal subdivider) and not his buyers, to
pay the cost of connection.
2. The terms and conditions by which the final plat
was approved for Yale Subdivision require Mr. Yale to pay
the cost of connection.
DiscussiOn:
Since the final plat for the Yale Subdivision was approved
by -the Planning Commission in May, 1972,I it has been the
position of the Borough 'that Mr. Yale.would be responsible
for the cost of connection to 'the public sewer system. Due
The final plat for 'the Yale subdivision was submitted
for approval three times between 1967 and 1972.
See Attachment ~tl for a capsule history of this plat.
-2-
to an oversight by the Pubic Works Department, a sewer
agreement for the Yale Subdivision was not entered into
before the final plat was filed in 1972. When an agreement
was 'tendered to Mr. Yale for his signature in July, 1974 he
refused to sign.
According to the attorney for Mr. Yale, Albert Maffei, he
believes that each individual lot owner is responsible for
paying the downstream sewer charges rather than the original
subdivider. This opinion is based on the alleged fact that,
as Mr. Yale sold the lots, he advised his buyers that they
were purchasing the local system and that if public sewer
became available they would be liable for their own assessments.
There is some evidence that Mr. Yale did not inform his
buyers that 'they were purchasing the local system only.2
But regardless of what Mr. Yale may or may not have told his
buyers, the provision of the Borough's sewer tariff and the
terms of the final plat for Yale Subdivision clearly require
'the Subdivider to bear the cost of connection to the public
sewer system.
THE SEWER TARIFF
The "Rates, Rules and Regulations for the Use of Sanitary
Sewer Utili'Ly within the Greater Anchorage Area Borough"
provides, at § 6.5:
6.5 Subdivision Agreements
A. Subdivider Financed.
The Subdivider shall construct the sewer
laterals within the subdivision in conformance
with the applicable regulations and specifications
of the Utility with final inspection by ~he
Utility przor to connecting to the existing
sewer. Upon completion and acceptance by the
Utilityf the Utility agrees to assume full
responsibility and control of said laterals.
2. Se.e page 7 of 'this Memorandum
-3-
Should'the Utility require any segment of the
line 'to be sized over 8 inches, the Utility
will participate in the oversize cost.
The Subdivider wil~ pay to the Utility a per
square foot charge in lieu of assessment, for
the use of downstream sewers. This charge
will be paid an such time as a lot in the
subdivision is sold and ownership passes from
subdivider to the purchaser, except that if
all lots in the subdivision are not sold
within two years after the date of completion
of the facilities, 'the Subdivider shall pay
all the cost unpaid at that time.
This tariff provision was currently effective at the time
the Yale Subdivision plat was approved and filed. It clearly
applies to Mr. Yale. The subdivider is required to construct
the sewer laterals and the subdiv~er will pay a square foot
charge in lieu of assessments, for the use of downstream
sewers.
Mr. Yale m~ght argue that failure by 'the Planning Con~ission
to tender a subdivision agreement enforcing this tariff
provision constitutes a waiver of the provision. This
a~gument fails for the reason that such a waiver would be
unlawful. Alaska Statute ~ 42.05.371 requires that:
"the terms and conditions under which every public
utility offers its services and facilities to the
public shall be governed strictly by the provisions
of its currently effective tariffs. No legally
filed and effective 'tariff rate, charge, toll,
rental, rule, regulation or condition of service
shall be changed except in the manner provided in
this chapter. "
The only manner provided in this chatter is set forth in
Sections 42.05.41[[ and 42~05.361(a).~ Since this is 'the
only manner by which a Borough may change its tariff ~egulation,
the failure by the' Planning'Comgaission to submit a subdivision
agreement prior to the filing of the final plat is not
sufficient to constitute a ~hange or waiver of the requirement
that all subdividers shall be liable for the sewer connection
charge.
3. See Attachment ~2
Furthermore, Alaska Statute ~ 42.05.391(c) prohibits discrzmzna-
tion in rates~ '
"No public utility shall directly or indirectly
refund, rebate or remit in any manner, or by an
device, any portion of the rates and charges or
charge, demand or receive a greater or lesser
compensation for its services than is specified in
the effective tariff. No public utility may
extend to any customer any form of contracts,
agreement, inducement, previlege or facility, or
apply any rule, regulation or condition of service
except such as are extended or applied to all
customers under like circumstances. ,,
If the requirement that the subdividsr pay the cost of sewer
connection was waived as to Mr. Yale, it would constitute a
direct violation of AS 42.05.391(c). Such a waiver would
cause-the Borough to receive a lesse~ compensation and
charge for its services than is specified in its effective
tariff, and would extend to Yale a privilege which is not
extended or applied to all subdividers under like circumsnances.
The Borough's tariff makes it clear that the Planning Commission
ca,no%, by unilateral action, waive the tariff requirement
that the subdivider pay the costs of connection to 'the trunk
sewer line. Section 1.1 provides that: "No individual
employee of the greater Anchorage Area Borough has the
authority to waive, or amend.these rules and regulations."
and section 7 provides that any change in 'the rates is
"subject to the approval of the Greater Anchorage Area
Borough Assembly and the Alaska Public Utilities Commission.,~
In conclusion, Mr. Yale is bound by the provisions of the
sewer tariff whether or not he entered into a subdivision
agreement with the Borough before approval of the final
plat.
II.
CONDITIONS OF THE FINAL PLAT
A careful review of the record clearly indicates that it was
the intent of all parties (the Planning Commission, the
Department of Public Works, the Department of Environmental
Quality and Mr. Yale) that the subdivider would be responsible
for all the costs of constructing a public sewer system,
including the costs of connecting the subdivision sewer
system to the trunk sewer line.
-5-
On May 1, 1972, Mr. Yale filed for final plat approval.
This final plat was reviewed by the staff of the Planning
Department and in a staff memorandum of May 31, 1972 to the
Planning and Zoning Co~nission the staff recommended that if
the final plat was 'to be approved, it should be subject to
"providing the Department of Environmental Quality with
engineering reports and/or designs as needed to show how
each lot/lots can be provided with 'the safe, adequate water
supply and sewage disposal facilities."
At the Planning and Zoning Commission meeting of May 31,
1972, the final plat for the Yale Subdivision was formerly
considered.
Mr. Strickland, Assistant Director of the Department of
Environmental Quality reported to the Commission that the
design for this subdivision as submitted is for "public
sewer and water" and that there will be a community water
system and a "public collection and disposal system.'~
The Commissioners voted unanimously 'to approve the final
plat subject to four conditions, the first of which was:
"Providing 'the Department of Environmental Quality
with engineering reports, and/or desiqns as needed
to show how each lot/lots can be provided with a
safe, adequate water supply and sewage disposal
facility."
The engineering reports and designs submitted by Mr. Yale to
the Department of Environmental Quality clearly reflect Mr.
Yale's intent to build a public sewer system. The engineering
reports and designs submitted to the Department of Environmental
Quality were the same as Mr. Yale's application for approval
of plats submitted to 'the Alaska Department of Health and
Welfare, Division of Pl~blic Health. On the cover page of
his application Mr. Yale described his proposed project as
"a Borough sewer system with temporary septic tanks and
seepage pits." According to the engineering report for the
Yale Subdivision the waste disposal system would consist of
"temporary waste disposal system for Lots 3 through 11,
Block 1, and Lots 4 through 14, Block 2.. There would be 20
lots served under the collection system designed for future
connection for Borough sewer system". The engineering
report further stat~s: "The collection system will be connected·
to the Borough system when it is installed on Dimond Boulevard.
The short time the disposal system will be operated will
make a more elaborate system i ' ".
mpractlcal The engineering
report submitted by Mr. Yale clearly indicates that he
intended to build a public sewer system, and that he realized
that the·local sewer system consisting of a septic 'tank and
seepage pits would be only temporary. Mr. Yale's own plans
call for connection of the collection system to the Borough.
-6-
These plans for public sewer systems were approved by the
Greater Anchorage Area Borough, Department of Environmental
Quality, the StaLe Department of Environmental Conservation
and the Borough Public Works Department. In a letter dated
July 20, 1972 Mr. Roll Strick%and, granted approval to
construct the Subject sewer and water system, subject to
five conditions:
Since Mr. Nick Yale will be responsible for maintenance
and operation of the sewer system until connected
to public sewer, we must see a performance bond
from Mr. Yale in the amount of 50% of the construction
cost of the sewer system to assure proper maintenance,
operation and repairs on the system.
We must receive a letter from Mr. Nick Yale stating
that he has placed sufficient funds in escrow to
insure connection of the sewer system to the
Borough's main expected no be in Dimond Boulevard
and that these funds are also to include the
removal and abandonment of the ceptic tank and
seepage pits on Lots 1 and 2.
·3.
We must also receive a statement from the Borough
Public Works Department certifying the cost of
connection of the sewer line into the Borough
sewer main to insure Mr. Yale is holding sufficient
funds to complete the pro3ect.
We must receive a letter from the owner of the
water system so that we are able to assign responsibility
for the system. This letter must also include
where all water samples are to be sent for sampling
·procedures.
Once this pro3ect is complete, our department will
expect to receive as billed engineering plans
covering the entire sewer and water project.
In his letter Mr. Strictland stated "should you have any
· questions regarding our review and comments contained in
%his le'~ter~ please contact the undersigned." Apparently
Mr. Yale did not have any comments, questions or critisisms
of the conditions imposed by the Department of Environmental
Quality. He did not contact Mr. Strickland to question or
dispute the conditions imposed by'the Department of Environmental
Quality. On July 27, ].972 the final plat was filed in the
Anchorage Recording District.
-7-
On August 1, 1973 Mr. Strickland Wrote again to Mr. Yale
reminding him of the ondltlons set forth in his letter of
June 20, 1972. On August 2, 1973 the Department received
the as-built engineering plans fo~ the Yale Subdivision, but
no other conditions set forth the Department of nvmronmental
E
Quality have been met by Mr. Yale.
IN SUMMARY
1. The final plat was approved by the Planning Commission,
subject to "providing the Departmen.lz of Environmental Quality
with engineering reports and/or deszqns as needed to show
how each lot can be provided with a ~afe, adequate wate~
supply and sewage disposal facility."
2. The engineering report submitted by Mr. Yale called for
the construction by him, of a "Borough sewer system with
· temporary ceptic tank and seePage pits."
3. These plans were approved by 'the Department of Environmental
Quality on the condition that "Mr. Yale must place sufficient
funds in escrow 'ho insure that 'the septic tanks, seepage pit
system, can be caved in and that funds are available to
intertie this with the Borough sewer system that ms projected
to be in this area this fall or early next spring."
4. Mr. Yale has failed to adhere to the express conditions
upon which approval and filing of this final plat was based.
He has not placed any funds in escrow. He has refused to
pay the cost of connection.to the downstream sewer system.
He has not met his obligation 'ho provide the subdivision
with a "Borough sewer system."
III.
MR. YALE'S REPRESENTATIONS TO BUYERS
There is considerable controversy concerning what representation
Mr. Yale made 'to the buyers of his lots. According to Mr.
Maffei, attorney for Mr. Yale, he advised his buyers that'
they were purchasing 'the local system and that if public
sewer became available they would be liable for their own
assessment.
In the case of the lot sold by Don Sherwood 'to Vern C.
Risch, Mr. Yale persuaded Mr. Risch to pay Mr. Yale $2,500
for "sewer and water assessments". If Mr. Yale advised his
original buyers that they were purchasing the local system,
what was the basis for his $2,500 assessment to Vern C.
Risch, a subsequent buyer of property previously sold with
assessments paid in full? Was ~r. Risch paying for the
local system again, or was he paying for the public sewer
system including 'the cost of connection?
-8-
Mr. Yale cannot have advised his buyers that they were
purchasing the local system and subsequently assess ~ buyer
for the same sewer and water cost upon resale of one of the
lots.
If Mr. Yale advised his buyers that they were only pur-
chasing %he local system, then he unfairly and unreasonably
misrepresented the clear intent of bhe Greater Anchorage
Area Borough to hold him personally and directly liable for
the cost of connection to the public sewer system.
ATTACHMENT ~1
HISTORY - YALE SUBDIVISION
March 8, 1967
March 22, 1967
June 14, 1967
December 17, 1969
June 1, 1970
July 1, 1970
July 29, 1970
July 29~ 1970
September 28, 1970
May 1, 1972
May 31, 1972
July 20, 1972
July 26, 1972
Postponed until March 22, 1967
Preliminary approval subject
to health covenant.
Final approval subject to health
covenan-~ and street name changes.
Com~ission denied a request for
extension of time. Felt plat
should be resubmitted.
an
Submitted again (final) for
processing and review.
Final approval subject to drafting
revisions and additional survey
information.
Request for 60
Mr. Nick Yale:
town.
day extension by
Surveyor out of
Extension granted by Platting
Engineer, Dick Glasheen.
Expiration date of S-2017.
Submitted again (final) for
processing and review°
Final approval subject to providing
D.E.Q. with engineering reports
and/or designs needed to be shown on
how each lot can be provided with
a safe, adequate water supply and
sewage disposal system.
D.E.Q. letter 'to Gardner. Engineering
.plans for sewer and water approved.
Also requested: performance bond
for system maintenance, funds in
escrow to insure connection. Carbon
copy sent to Yale.
Notice of plat compliance sent to
Yale.
.... A~ \CHMENT ~tl
PA~E TWO
July 27, 1972
August 1, 1973
Plat filed.
Letter to Huff restating conditions
of final plat. Carbon copy to Yale.
July 31, 1974 Letter to Yale asking him to sign
private sewer agreement.
ATTACHMENT ~ 2
AS 42.04.411 New or revised tariffs.
(a) No public utility may establish or place in effect
any new or revised fanes, charges, rules, regulations, con-
ditions of service or practices except after 30 days notice
to the co~nission and to the public. Notice shall be given
by filing with the commission and keepin~ open for public
i '
nspectlon 'the revised tariff provisions which shall plainly
indicate 'the changes to be made in the schedules then in
force and 'the 'time when the changes will go into effect. The
commission may prescribe additional means of giving notice.
The commission, for good cause shown, may allow changes to
take effect On less than 30 days notice under conditions the
commission p~escribes.
(b) New and revised tariffs shall be filed in the manner
provided in ~ 361(a) of this chapter.
(c) Upon 'the filing of a new or revised tariff, the
commission, upon complaint or upon its own motion, withoun
notice, may initiate an investigation of the reasonableness
and lawfulness of the change.
AS 42.04.36]. Tariffs, contracts, f~ling and public inspection.
(a) Under such regulations as the commIssion shall pre-
scribe, every public utility shall file with the commission,
within such 'time and in such form as the commission shall
designate, its complete tariff showing all rates, including
joint rates, tells, rentals, and charges collec'~ed and all
classifications, rules, regulations, and terms and conditions
under which it furnishes its services and facilities to the
general public, or to a regulated or municipally owned utility
for resale to the public, 'together with a copy of every special
contract with customers which in any way affects or relates
to the serving utility's rates, tolls, charges, rentals,
classifications, services or facilities. The public utility
shall clearly print, or 'type, its complete tariff and keep
an up-to-date Copy of it on file at its principal business
office and at a designated place in each community served.
The 'tariffs shall be made available to, and subject to inspec-
tion by, the general public on demand.
MAFFEI, INC.
ANC tONAGE, ALABI<A ~9501
April 7, L975
R CEIVi D
Borough Attorney
Greater Anchorage Area Borough
3500 E. Tudor Road
Anchorage, AK 99507
Attention: Gary Thurlow, Esq.
APR O
~O~O'UG~I ATTORNE~
RE: Yale Subdivision
Dear Gary:
I am writing directly to you since I am not sure who has
been handling the matter for Nick Yale. Nick developed
a subdivision in 'the Sand Lake area south of Dimond Boule-
vard some years ago. He installed his own water and sewer
system. As he sold lots, he advised his buyers that they
were purchasing the local system and that if public sewer
became available they would be liable for their own assess-
ments.
The Borough has now installed a sewer line near this property
and now wishes to assess Mr. Yale for all of the lots in the
subdivision. Nick Yale owns four of the lots. The remainder
of the lots have been sold to other parties.
It seems to me that if 'this area is to be served by sewer,
that each individual lot owner would now be responsible for
'the assessment rather than the original subdivider who has
sold the lots.
Can you please advise.
Very.truly yours,
~AFFEI, INC.
Albert Mallei
~4/bf
April 10, 1975
Mr o Albert Mallei
Mallei, Inc.
1026 West 4th Avenue
· %J~chorag~, Alaska 99501
Re: Yale Subdivision
Dear A1:
The platting board could have required the subdivider, as a
condition to obtaining the plat, to agree to be personally
liable for the assessments for any public sewer system
installed° I have never heard of this being done, and it is
exceedingly unlikely that it was done in this case. Never-
theless, i will ask the Department of Public Uorks if the
subdiv±sion agreement for the Yale plat, if there is a
subdivision agreement, contains any such provision.
On the basis of the feets set forth in your letter of April
i975~ and in the absence of anything to the contrary in a
subdivision agreement, I would agree that the buyers of ~4r.
Yale's lots have been adequately notified that they would
have to pay assessments on their lots when public sewer
b~comes available.
On the basis of t1%e feets set forth in your letter, and in
the absence of anything to the contrary in a subdivision
agreement, I would also agree that ~4ro Yale would not be
liable for having originally subdivide~l the area and having
sold the lots on the basis that they are presently sewered
by an existing local system, but that they might later be
sewered by a p~blic sewer system.
Where transactions of this nature are not reduced to paper
you will very often find on¢~ person or another who will
claim that the subdivider said that the buyer of a particular
lot %,;ould not ba required to pay any subsequent assessmeuts
Or othe~.~ise n~isrepresented the situatio~ to the detriment
of the. buyer.
I, of courss~ could not comment any cla ns based on ora].
cor, k~.~unications between tile parties or co~m~ent upon dOCUl~ents
other than Borough documents.
Sincerely,
Gary. Thurlow
Borough Attorney
GT/vJb. ~
1~O1 Stanton ~venue
Anchorage, ~laska ~ ~
C' ~RACTING ENGINEERS AND ASSOC.
Consulting En~neers
, ~ ENGINEERING REPORT
Phone: 279-1792
YALE SUBDIVISION
"'~ ~7'!.': ? b ,'"~ ! '"i VIAsTE DISPOSAL 'SYS~PEM
A.
Temporary waste disposal sysLem for Lot 5 thru ll, Block 1 and Lot 4 thru 14~
Block 2. Lo~s served, 20.. Collection system designed for future connection
to Borough Sewer System.
The system as designed Will:serve 20 lots an~ will.'not .be expanded° .... ..
1 g: ~yst, :ated on Lot 1,,Block 2.
2. 'Water source is,:a'..deep well on.Lot 3,.Block2.
3. Domestic wastes,only will be collected by this system and will contain urea~
proteins, amines, amino acid fate,,soaps,and carbohydrates.
4. The eetimated,daily"flow based,'on a population of 65 and an average'of I00
gallons per person per:da~, = 6500 gallons. Estimated daily flow :: 150% of
average hourly flow and night flow =.~0% of average hourly flow~ Maximum
hourly flow = 170% of average hourly flow and minimum flow = 30% of average
hourly flow.
5. Industr~lal wastes will not be. treated in this system.
6. The collection system wtl~ be installed ~th a minimum cover of 5.5'.
F ......
The collection-~system when-connected~to the Borough System will s~rve 20 resi-
dences in an area of. l0 acres. An. additional l-l/2 acres could be served by this
'Uno area served by the proposed system will have au estimeted population of
9750 and a density of 9.75 persons Der acre. The additional area of equal density
would add appro×imabely 15 9ersons for a total of 9765.
Effluent will not be discharged into a stream or body of water.
The sewage disposal plant will be located on Lot 1 and 2~ Block 1 as shown on
~hs plans.
Not applicable°
Engineering Report ·
Yale Subdivision ,...~ ~ ,' ,
The collection system will ber connected to the Borough Sys'hem when it is installed
on Dimond Blvd .... The short time the disposal system ~lll be operated ~lll make a
more elaborate syste~ impractical.
Septic tan~ with seepage.pits.mare reco~mnendsd due to the short time this system '
will be needed.
Collection System. ~ Borough ~Standards~ ~'i'- ~ .'. !, '. '
Septic'tank.based~on per capita contribution of 100 gallons er. da -
:~.i..6_?O0 gal.lon_s per.,.day~ ..75 .average d~i,l,~ .flow.'t.!125 = 6000 gallons. A cast in .
~.Seepage.p£t.,~ .~s~imated percolatt.~on rate of'2 ~:-~.-z ..... '~ · " '
1... .... . ..,, ~ · ' ~ ~ · ~M~s.aimows ~oslngox']4.D gallons
~ ~ I ~squaJme'"f°~t4Pe~day~"~6OOO~a'.$.,3 ~lSI2~qua~e,.~oot'~eededJ ·'. 2 pit~in~ se~es ~]~ ~ ~:~
Cost ~:stimate:
1194 L.F.'8" A. CJ'Pipe in~talled @ $. lO.e0
628 L.F. 4" A.C. Pipe installed @ $ ~9.O0
4 manholes installed @ $ 300~00
21 cleanouts installed ~ 200.00
Septic tank and seepage pits installed
Maintenance cost estimated at S 400.00 per year.
11~940.00
5,652.O0
2'~000o00
4)200.00
_!o,9oo.o9_
33,792.00