HomeMy WebLinkAboutMinutes Council 040171i
SPECIAL MEETING
CITY OF PALM BEACH GARDENS
Thursday, April 1, 1971
PURPOSE:
The Special Meeting of the City Council, City of Palm Beach Gardens, was called to
order at 5 :15 P.M. by Mayor DeLonga, April 1, 1971. Fie announced the purpose of
the meeting was to determine a sanitary sewer hook-up policy for the Municipal
Complex.
ROLL CALL:
Roll was called by the City Clerk. Present were Councilman Prentiss, Councilman
James, Councilman Orr, Vice Mayor Wiley, and Mayor DeLonga, Councilman Elect Kiedis,
Leonard Devine, Public Works Director, Attorney Brant and City Manager Robert
Carlson were also present.
DISCUSSION TO DETERMINE POLICY:
Mayor DeLonga: "The Council had participated in considerable activity relative
�._. to the hook -.up since the last time we had discussed it. We have
had conversations with Mr. MacArthur and with Mr. Anderson. We
have given our City Manager extensive instructions for obtaining
information relative to this subject so that we can decide on
what policy to pursue and have asked our City Attorney to assist
US. I am sorry to say that we haven't had any progress relative
to the Public Utility Co. to report. However, we have asked our
City Manager to obtain information on the possible installation
Of a septic tank and drain field and cutting of the road; the
reaction of the State Road Department, County Road Department,
Count y Department 'l.
partment and estimates of cost of length of time.
Mr. Carlson: "As far as the installation of a septic tank he had spoken to
a contractor concerning price and also the Health Department,
the City Engineer and the City Building Official. As late as
the middle of the afternoon I talked to the Health Department.
There seems to be no problem in the installation of a septic tank
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The only question would be size. Mr. Lukin indicated to me
today that because of the circumstances and the size of the area,
and the fact that this would probably be no more than the usual
house connection; there would not be any difficulty in securing
a permit. A septic tank could be installed, depending upon the
gallonage, which would be determined by the information contained
on a drawing submitted to the Health Department with the
application for a permit. It would be either a 750 gal. tank,
which they think at this time would be sufficient, or a 900 gal.
tank. A 750 gal. tank with a 140 sq.ft. drain field could be
installed by the contractor at a cost of $276.00 including labor.
If it is determined that we need a tank with a capacity of 900 -
gal. the cost would be about $366.00 including labor. It would
take approximately one day for the plan to go through the Health
Department, the septic tank company would like two (2) days
notice and two (2) days for installation, so this would take
approximately five (5) working days from the time the go ahead
is given to the completion of the installation.
Mayor DeLonga: Mayor DeLonga asked Attorney Brant what our legal position would
be if we were challenged by the Utility Company for not hooking
up to their service.
Attorney Brant: "In view of the factors, I think they would be hard put and could
not force us to hook up under the conditions they propose to us."
Mr. Carlson: Stated if the septic tank were to be installed the Public Works
Department would not be used. He stated that the Dawson Company
was the contractor and was aware of the work already completed by
the Public Works Department."
Mayor DeLonga: "Relative to Loth the septic tank and a cut across the road, if
we decided either way. Do you foresee any problem in moving into
the complex? What other steps do we have to take?"
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Mr. Carlson: "Just to move the furniture and a little cleaning up and there
could be an immediate move." Mr. Carlson had been also asked to
contact Mr. MacArthur and the engineer who laid out the install-
ation of the sewage line, Mr. Bill Wallace. Mr. Carlson stated
he had talked with Mr. Anderson, President of the Utility Co.,
and asked him if they would enter into an agreement with the
City to maintain the lateral to the property line if the City
were to cut the road since we would more or less be acting on
their behalf in doing the physical work and installing the
lateral, Mr, Anderson suggested to Mr, Carlson that the Mayor
or somebody on the Council call Mr. MacArthur as they would
probably obtain as good results as if he contacted him, and would
get a more direct and quicker answer. "Mr. MacArthur was called
at approximately 10:00 A,M, and we were given a message that he
was in conference and that he would return the call. We asked
that he return the call, and as of this time we have had no
answer from Mr, MacArthur." Mr. Lukin was contacted on the cuttinc
across the road and we asked him several questions. "One thing
that concerned me was the fact that I wanted to be certain that
at least through information I supplied to the Council, that I
didn't place them in jeopardy as being a paxty to the violation
of any department's policy, particularly the Health Department.
The reason I did that, was that we all know the permit to cut
Military Trail was issued by the State Road Department based on
the submission of certain plans, and the permit was issued in
accordance with those plans. We all know that with the install-
ation of the extension of those lines, it was not in its final
construction built in accordance with the plans shown to the
Council. The plans were revised later and I didn't want to put
the City in jeopardy and make them a party to that. Mr. Lukin
told me there would be no concern on that part and that if the
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City thought it was more feasible and more beneficial to go
ahead and cut the road and make the tie -in, the Health Department
would certainly have no objection and would present no obstacle
and would not in any way put the City in jeopardy. As far as the
costs are concerned an estimate was made for the City's cost to
extend the sewer line from the point where it is now at the south
manhole, down to the property line, and then across the road
which was approximately $2,446.00, plus an engineering fee for
drawings for the permit. The procedure is as follows, as
reported through Mr. Howard Searcy: Ordinarily they do not
issue a permit to cut a road to a private owner. The mechanics
of it is that the Utility Company makes an application to the
County Commission for a license. A license is then approved for
the Utility Company which authorizes them to make application to
the County Engineers Office to cut a road. In view of the Cityls
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position and the fact that this is just a lateral and will not
require any construction by the City parallel to the roadway,
and is simply a cut across the pavement, that they would waive
the license requirement and would issue us a permit upon receipt
of the proper drawings and applications. This is something that
can be walked through and obtained immediately. As far as the
time element is concerned, Mr. Searcy said he would like a day or two
to prepare the plans because he would have to relate them to the
only set of plans we have and that is the one on which the permit
was issued. We are looking at approximately seven (7) days to
cut across the road, or 10 days, including a weekend. Total
cost including all labor and material is $1,350.00. Mr.
Anderson stated that their engineer, Mark Garnett, would sign
the certification."
Mayor DeL.onga: Asked "if the Council decided to cut the road and a connection
made to the lateral would the rest rooms be functional."
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Mr. Carlson: "There was close surveillance of the construction of the lateral
while it wag going on, and found that it was a fine job, as
indicated by Mr. Devine."
Vice Mayor Wiley: "The question, will the Utility Company accept and enter into an
agreement with us to take that line and consider it as a part of
their sewer system... the line that is on the right of way to
the property line. In other words, the line that is under the
road? To me, without any formal agreement, we can ?t enter into
this business of cutting the road until we have this agreement
with them."
Attorney Brant: Stated the law is clear, and that line becomes the property of
the Utility Company, no matter who puts it in, as our City
Engineer is going to draw the plans and will check it out on
final completion.
Monthly costs were discussed, and Mr. Carlson presented figures
based on the original franchise. He estimated it would cost the
City approximately $ 13.00, based on 5,000 gallons of water per
month.
Attorney Brant: Stated he had been in contact with the Public Service Commission
and that Mr. Anderson had called them and gave the same answer
to their Department as he did to Mr. Carlson, "although he was
the President of the Utility Company, he was not authorized to
make any statements, one way or the other, and that he could not
make any statements binding his company."
Attorney Brant: "Stated the City has different courses of action if the Council
decides to cross the road. One course is to file a complaint
immediately with the Public Service Commission in deciding
�.i whether we have an extension or a tap in, Attorney Brant felt
"that it was a tap in and felt that the Public Service Attorney
concurred with him that it was a tap in and that the Utility Co.
was running 4 lateral for a hook up. A tap in fee of $10.00 which
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shows in their tariff, was paid by the City when we requested
water service and sewer service. The fee was accepted."
Mr. Carlson: Stated that Mr. Lukin had his opinion that this was a tap in.
Attorney Brant: Stated the City can file a formal complaint, but he could not
give an exact time element other than the assurance by the Public
Service Commission that it would be processed immediately, start-
ing through d hearing here in West Palm Beach. Attorney Brant
stated also the City could go to Circuit Court to obtain a
permanent Court Order, ordering the Utility Company to proceed
and hook the Cityfs line into the main line, which would take
approximately 45 days. Since they have never requested a permit
from the Couhty, the Court would give them reasonable time to
obtain the permit to hook up, which would be another 5 to 10
days before the City would actually get relief. The Public
Service Commission would have the right to extract penalties if
the company Failed to hook up. The penalty could be up to
$5,000.00 per day if they failed to cooly with their order.
In Circuit Court, Mr. Anderson could go to jail on a contempt
charge if he failed to comply.
Vice 14ayor Wiley:
"What happens if we cut the road and then take him to court ?"
Attorney Brant:
Stated that, "the City could get a judication on it, in other
words, what the reasonable cost would be, and who is liable
to pay and ask for a reimbursement."
Attorney Brant:
Made a recommendation that "if the Council decides not to go the
septic tank w4y, but go ahead and hook up to the manhole as it
exists on the south side of Burns Road, under the supervision
of our own enIoineer, that they immediately file a complaint with
the Public Service Commission and bring it to a head. "I was
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told that they have had this Company under surveillance for a
couple of years, and they never have been able to get the proper
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evidence necessary to do much about it. This way the Company
would be cited for failure to comply with his certificate as
provided by the Public Service Commission." Attorney Brant
stated that "the City has adequate evidence on our behalf that
they have failed. We have made repeated attempts in the past
week to get 4ommittments, verbal and in writing."
Mr. Brant stated that it is mandatory that they bring the
service to the property line or the curb line and they have not
proposed an alternative and have said nothing. In effect they say
"There it is if you want to hook up to it." The Utility Company
has not performed the services required under the certificate
issued by the Public Service Commission.
Vice Mayor Wiley:
"If we go with cutting the road, we concurrently decide to file
case with the Public Service Commission."
Councilman Prentiss: "If we go With putting the septic tank in, and then we go to
Court with them to bring service to the property line can we get
restitution for placing the septic tank ?"
Attorney Brant:
Felt that in 'his opinion, we could not.
Councilman James:
"Could we make them come to the property line even if we provided
our own facilities?"
Attorney Brant:
"Yes, if you move with reasonable dispatch."
Mayor DeLonga;
Stated after deliberating on all the recommendations, he left
that the cutting of the road would be the proper course of action
to take and then follow Mr. Brant's recommendation and initiate
a request with the Public Service Commission. Even though the
price of the septic tank is very low and appealing, and regard_
less of the action of the Council, I certainly would support
either course of action. I would now like to hear how the rest
of the Council feels . 11
Vice Mayor Wiley:
Felt that the cut in the road should be made and a detailed
complaint filed with the Public Service Commission.
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Councilman Orr: Felt we should put in the septic tank.
Councilman James: "Go with the septic tank and take immediate action with the
Public Service Commission on all items."
Councilman Prentiss:_ "Go with the tank and file with the Public Service Commission."
Mayor Dei.onga: "Cut the road and file a complaint with the Public Service
Commission."
Mr. Carlson: "We may have been led down the road, as it would appear what with
the plans and specifications that were drawn and approved by the
Health Department for the sanitary sewer services. They were
approved to be provided at the point at which they were available
at that time. The Health Department had a policy wherein they
would not grant an approval for any more extensions to the
existing sanitary service, so at that time the only place it
could be hooked up was at Military Trail. " He also stated,
"Isn't it possible we were misled, because when the Utility
\.i Company principals came in here during their negotiations with
the Klock Company for the purchase of land on which to build
their present factory, they asked for a permit to run an ex-
tension down the north side of Burns Road. The discussion led to
a question as to whether or not the City would be receptive to
hooking up at Burns Road instead of Military Trail. My answer
to Mr. Anderson was, "Who is going to pay for the extra cost? It
was inferred that "it could probably be worked out, and that
they may even pick up the difference in cost in order to provide
it, because it would be to their benefit." So with that in mind,
they drew up a set of plans for the extension of that sewer line,
down the north side of Burns Road, and submitted it to the
Health Department. In conformance with the policy that they had
set, the Health Department disapproved the plans, as they were
not approving any more extensions to the sanitary sewer line.
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Because of subterfuge or other means, they now have a line on
the South sine of Burns Road.
�i Attorney Brant:
Stated he felt that the line down the South side of Burns Road
is ultimately for a tap in. "I could make a reasonable argument
for this. This particular line that we have on the South side,
we definitely don't want to call an extension legally."
Mr. Carlson:
"The Health Department called this an extension."
Attorney Brant:
"If they do, then we get into the question of expense; then,
could the Utility Company require the City to pay all the way
back to the line on Military Trail, if we are going to cling to
the definition of an extension. To me, as it now sits and we
understand it, it is not an extension, it is really a tap in."
Mr. Carlson:
"But wouldntt that be an unreasonable extension when it is
already available to a point 60 feet away ?"
Attorney Brant:
"I have kicked this back and forth with the Attorney for the
Commission to see if I was on safe ground in his opinion, and
his answer is! reiterated over and over. In other words, you
cannot compellthe Utility Company to give you the most accessible
hook -up. We ',all realize that this line on the south side of
Burns Road is for an extension, ultimately. From my standpoint
I don't feel We should consider it an extension. It is there
for a hook_upi.71
Mr. Carlson:
"Then it would be their responsibility if it is not considered
an extension, and we could go right over and hook -up at no cost."
Attorney Brant:
"That's my opinion. They accepted the $10.00."
Mr. Carlson:
"Technically today there does not exist a Sanitary Sewer System
that has been approved by the Health Department."
Attorney Brant: "That is right, that was the first question posed by the Attorney
for the Commission, and they never did answer the question."
Vice Mayor Wiley: "If we file a complaint to the Public Service Commission re_
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questing that the Utility Company reimburse us for the cost
of putting the connection into the tap in, could the Utility
Company counter our formal complaint by saying they have
provided an; extension and thus demand that we pay them. I don't
know how many thousands of dollars it cost them to dig up
Military Trail and put that extension in and qualify it as an
extension, which it really is."
Attorney Brant:
"To me it is really not an extension."
Vice Mayor Wiley:
"In any event, that is a judgement decision."
Attorney Brant:
"That is true, but then, looking at the definition described in
the Regulations, in other words they are servicing only one
property owner as such for a tap in. They had other courses of
action open,l and now we are going to make the circle again,
going back to Mr. Carlson's conversation with Mr. Anderson in
June. They had a more accessible tap in. They can't pick and
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choose. In other words, they could have given us service on
Military Trail. The nature was to tap us in on the south side of
Burns Road. They can't call it an extension when they could have
tapped us in,on Military Trail."
Mayor DeLonga:
"What would be the cost if we went to the Public Service
Commission."
Attorney Brant:
"Approximately $500.00"
Mayor DeLonga:
"in any event, whether we use the septic tank or cut the road
and file the complaint, where is the money going to come from as
far as the budget is concerned ?"
Mr. Carlson:
"It would ha +e to come out of the Capital Improvement Account."
Vice Mayor Wiley:
"Not to change the subject, but to look ahead a little bit.
Would it be advisable at this time, owing to the fact that it
takes three or four months as you have indicated, to get the
hearing to make this a two -fold complaint, and in this particular
instance as a first specific and with the general situation of
Vice Mayor Wiley: "If the Cityl,were to acquire the Plant, the City would not have
the same financial limitations as the private developer might
claim. It ',further puts us in the position to insure that the
town grows, with the proper type of water and sewage treatment
and for the health and safety of citizens, plus the orderly
growth. Right now, the way I see the Utility Company operating
the sewer pant, file it all at once."
Attorney Brant:
"I didn't want to branch into that now, but any complaints you
did have, that would be the time to move. I've already agreed
for the Legal Department to do some checking to see if anyone
has been refused prior to the moratorium Ordinance. They are
definitely trying to establish this. There is a tie in and we
would set its up in separate accounts. In other words, keep the
issues separjate, one pertaining to crossing the road, and the
other wouldlbe the complaint of the Council as to the existing
situation."
Mr. Carlson:
"We could prjobably get in there that they would not provide us
with water service during the period of construction."
Attorney Brant:
"If we are going to do this, we would load it as much as possible
with whatever we can prove."
Councilman Orr:
"What does this do for us other than get the money back ?"
Attorney Brant:
"Nothing, other than a good citizen bringing these complaints
before the State Regulatory Body and giving them a chance to
rule on it. Practically, it would be working for the public
interest andllaying the ground work for future operation of the
Utility Company. Mr. MacArthur's letters already have this
running through them; financial inability to make the improve-
ments. He is already laying the predicate."
Mayor DeLonga:
"You will notice this is the same tactic taken relative to the
Water Treatment Plant."
Vice Mayor Wiley: "If the Cityl,were to acquire the Plant, the City would not have
the same financial limitations as the private developer might
claim. It ',further puts us in the position to insure that the
town grows, with the proper type of water and sewage treatment
and for the health and safety of citizens, plus the orderly
growth. Right now, the way I see the Utility Company operating
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for the past nine years that I have lived in this City, it has
been nothing but neglect on their part. We had a set of minutes
that were furnished to us last night that quite vividly point
out the fact that the Utility Company really doesn't give two
hoots about the City, in that instance the Water Company."
Councilman James: "If we go this parallel route of cutting the road, and file a
complaint wi�h the Public Service Commission, our complaint on
that specific issue would be to require repayment of our costs ?"
Attorney Brant: "And also to'file against this company any complaint to effect a
civil fine. The Commission has the power to fine somebody up to
$5,000.00 pet day. In other words, we would not sit and wait
until the Commission decided, and then failed to do it. In our
particular case we would request that they fine them, or in the
alternative, revoke their certificate, and any penalties that
are available that the Commission revoke against them. In the
petition itself, I would request if the Commission finds that
they have violated the rules and regulations pertaining to this
field that he enter the maximum penalty under the law."
Councilman Prentiss: "How would this affect the City if they did lose it ?"
Attorney Brant: "We could not be in any worse a position than we are right now,
even with the Certificate with the Public Service Commission.
They are a Regulatory Body and a lot of things could happen."
Mayor DeLonga: "Really, what the City is looking for is service from the Company,
and not for the extraction of fines. This may not be relevant to
this decision but we should consider the position this will place
us in on the acquisition of the 92 acres, We are probably
going to take comdemnation proceedings and I don't feel that the
attitude is Going to be one of cooperation."
Attorney Brant: "Our adversary is hard to predict, but no matter what course of
action is taken, the City could show the public necessity for
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Mr. Carlson: "Mr. Mayor, may I add just one thing in regard to the tank on a
temporary basis. I'm quite sure the permit would only be issued
with that proviso, that it is only an interim permit and at the
time the proper facilities were available we'd have to hook into
them."
Councilman James: "That sound fine to me."
Attorney Brant: "If the Council decides to go this way, on a temporary basis, I
think the permit from the Health Department should show on the
face of it as,a dispute that does exist." (Attorney Brant
recommended the Public Service Commission be the course of
action if the!Council went for the septic tank.)
acquiring it',because we are tying it into the existing 20 acres,
along with the planning. He has no right to sell it after we
file the papers in court." (Attorney Brant explained how this
course of action would proceed).
Mayor DeLonga:
"Well, Gentl� men, we have attempted to obtain as much information
in assisting us to make this decision, and I think I would like
to have the Council's opinion and then after that we can have a
motion to adopt one or the other course of action."
Vice Mayor Wiley:
"Cut the road, and file as detailed a complaint with the Public
Service Commission as soon as possible."
Councilman Orr:
"Septic Tank,"
Mayor DeLonga:
"Do you have'any comments relative to the filing ?"
Councilman Orr:
"No."
Councilman James:
"Septic Tanki and immediate action with the Public Service
Commission for all items."
Councilman Prentiss:
"Septic Tank, and file with the Public Service Commission."
Mayor DeLonga:
"Mr. Orr, would you consider adding on legal action to the
Public Servicke Commission ?"
Councilman Orr:
"Yes."
Mr. Carlson: "Mr. Mayor, may I add just one thing in regard to the tank on a
temporary basis. I'm quite sure the permit would only be issued
with that proviso, that it is only an interim permit and at the
time the proper facilities were available we'd have to hook into
them."
Councilman James: "That sound fine to me."
Attorney Brant: "If the Council decides to go this way, on a temporary basis, I
think the permit from the Health Department should show on the
face of it as,a dispute that does exist." (Attorney Brant
recommended the Public Service Commission be the course of
action if the!Council went for the septic tank.)
Mayor DeLonga: "I have a comment to make relative to the procedure here. The
reason I polled the Council in the manner in which I did before
the motion was presented is I feel that the Council should go
on record voting unanimously in favor of whatever proposition is
decided."
Vice Mayor Wiley: "I would like to comment that my feeling on this whole issue was
for the septic tank from the beginning. However I stated I
favored cutt*ng the road primarily from the practical sense from
a finished p�oduct and desirability, and also from a cost stand-
point, even though it will cost us $1,300 compared to $300.00.
If we spend the $300 now and the service is put there available
six months f�om now, we have thrown the entire cost of the
septic tank away, because virtually the thing is non - recoverable.
The legal fees we were going to spend anyway, the cost of the
pipe we willl,spend anyway, and I think the issue before the
Public Service Commission doesn't really change as to whether
we are discharging our affluent into this sewage system itself,
or septic tanjk. But I would like to ask Mr. Brant if he felt
that the case was just as strong whether we had to cut across
the road or not. Is that still your feeling ?"
Attorney Brant: "Yes sir. This is a much broader picture. Legally we have a
much stronger,case."
Mayor DeLonga: "I still feellthat the best expression of the City's intent to
cooperate, both with the Utility Company and all other parties
concerned, is'to cut the road and then take our legal action.
Inasmuch as war all agree on one course, and that is to take
legal action,,the Chair will entertain a motion that a septic
tank be installed at the Municipal Complex Site, and that the
City Attorney as a result of our voting on this issue,
file a formallcomplaint with the Public Service Commission to
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recover thelcost that the City will entail in making this
installation, and extract any penalties that they may recommend:'
Vice Mayor Wiley: "Before you entertain a motion will you re -poll the Council as
to one issue, either cut the road or septic tank based on the
preceding discussion."
Mayor DeLonga polled: Vice Mayor Wiley, cutting road; Mr. Orr, Septic Tank; Mr.
James, Septic Tank; Mr. Prentiss, Septic Tank; Mayor DeLonga,
cutting the,road.
Mayor DeLonga stated the Chair would entertain a motion for the
installation of a septic tank and for filing a petition with the
Public Service Commission. Vice Mayor Wiley, "So Move."
Councilman Orr. "Second."
Councilman games: "I would suggest that we add some phrase to
the effect which we were discussing previously about the
qualificatidns for the septic tank as part of the motion."
Mr. Carlsonlassured the Council that Mr. Lukin had informed him
that it would be of that description.
Council felt�l the original motion was acceptable, and Mayor
DeLonga asked for the vote on the motion: 5 ayes - O nays.
No further business. Motion to adjourn by Councilman James,
seconded by Councilman Orr. Time for the record, 6:55 P.M.
M yor DeLonga
C cilman Prentis Vice Mayor Wil y
C Wci3lanOrr Councilman James
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City Clerk �