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Town of Falmouth, Maine
271 Falmouth Road
Falmouth, ME 04105
(207) 781-5253

September 14 Agenda Item 3
Attachment 1 - Payson_Letter_to_Council_Members_7_29_011.pdf
Attachment 2 - AttyBurns_opinion_for_Council_8_3_011.pdf
Attachment 3 - Clark_memo_sewer_ext_hist_4_17_011.pdf
Attachment 4 - Clark_letter_sewercharges_Blackburn_11_9_09.pdf
Attachment 5 - Payson_proposed_amendments_7_17_011.pdf
Attachment 6 - Clark_memo_Ridgewood_7_31_011.pdf
Attachment 7 - RidgewoodEstatesFeeWaiverAgreementSept92009.pdf

Request from the owners of Ridgewood Estates, a 75 unit condominium subdivision located off Falmouth Road, to enter into an agreement with the Town that will exempt connection fees.

Action: Council action is possible.
Prior to the August 10, 2009 Town Council meeting, staff (Pete Clark and Nathan Poore) along with the Town’s Attorney (Natalie Burns) have met several times with Mike Payson, current owner of Ridgewood Estates, and his agents.

Mr. Payson has requested that the Town waive all sewer connections fees ($2,000/unit – see Attachment One) or determine that the project is exempt from the connection fees. It has been the position of staff and Natalie Burns that the exemption is not possible based on current ordinance language (Attachment Two). Typically, public extensions of public sewer require Town Council action prior to construction. The former owners of Ridgewood Estates chose to construct the system as a private system and did not request Town Council action prior to construction (Attachment Three). The former owner, Bob Blackburn, was initially under the impression that the connection fees would be waived. Pete Clark, Wastewater Superintendent, clarified the Town's position to Mr. Blackburn in a letter dated November 9, 2007 (Attachment Four). Mr. Clark clearly stated in this letter that the Town would not waive connection fees and that no exemption was available. Mr. Blackburn did not appeal this decision.

Mr. Payson and his agents have not agreed with some of the staff positions regarding this matter.  For this reason, they requested, at the August 10, 2009 Town Council meeting, an amendment to the Ordinance that would offer connection fee exemptions (Attachment Five).

Staff prepared a memo for the August 10, 2009 Town Council meeting that identified its concerns (Attachment Six).

At the August 10, 2009 Town Council meeting staff, the Town Attorney and the Town Council agreed that the exemption could be granted through a contractual agreement rather than an amendment to the Ordinance. Staff expressed concern that the Ordinance should have a comprehensive review, which could lead to substantive amendments including subject matter related to Ridgewood Estates and matters not related to this specific request.

The Town Council agreed to have staff work with Mr. Payson and his attorney to develop an agreement that would grant exempt Ridgewood Estates from paying the connection fees so long as the Town protected its future rights to perform a detailed technical review of the system design in the event that the private extension is offered to the Town for acceptance as part of the public sewer system. While the Town could certainly require a detailed review with or without language in an agreement, it was the opinion of staff and the Town Council that this language would put current and future property/unit owners on notice that this system was originally reviewed as a private system and, as such, was not built to the same standards as would have been required for a public system. Further, the proposed agreement provides notice that future acceptance of the private system may require substantially more work and expense than just the preparation of deeds and other required transfer documents.

We have attached (Attachment Seven) a proposed agreement that include language that has been requested by staff and the Town Attorney.  Mr Payson and his attorney have stated that they are not in agreement with the proposed agreement.  Specifically, they do not agree with the majority of Sections 3, 4 and 5. The following is an excerpt from the proposed agreement. The language, which is added (underlined) and deleted (strikethrough) is proposed by Mr. Payson and his attorney.

3.  If the Town Council agrees that it will consider accepting the Ridgewood Estates private sewer extensions as part of the public sewer system, the Town Council, shall then establish the procedures, terms and conditions under which such acceptance shall be considered. Ridgewood or its successors and assigns shall hire a professional engineer to review the existing system to determine whether any repairs or upgrades should be made before the Town accepts the system.  Ridgewood or its successors and assigns shall seek the approval of the Town Manager as to the professional engineer who will perform this work.  

4.  The professional engineer shall work with the Town’s then current sewer construction standards and with appropriate Town staff to determine whether upgrades, repairs or modifications are required to bring the private extension into compliance with the Town’s public system standards.  The Town may allow modifications to those standards provided that the modifications will not result in higher public maintenance costs or reductions in service in the public sewer system. The Town may request that the engineer review the original design and compare it to a system that may have been required had the Town knew it would eventually be responsible for the system as a public system. Such review will consider a comparison of long range capital replacement and operating costs. The Town may consider any hypothetical cost differences in a decision about whether to accept the system as a public system.

5.  Ridgewood or its successors and assigns shall be solely responsible for the costs of the professional engineer review and any repairs, construction or modifications that the Town requires based upon the professional engineer review.   

The Council is being asked to consider the language options before we move forward with a final draft of the agreement. The Town's attorney will be at the Town Council meeting to assist staff and the Town Council.


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