Docket UW50403.1
Order UW95-11IN THE MATTER of application by the Town of Cornwall Water and Sewer Utility Corporation, successor to the former Eliot River Sewer Utility, for a review of Commission Order UW95-6.
BEFORE THE COMMISSION
on Friday, the 29th day of September, 1995.
Linda Webber, Chair
John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
Order
Contents
1. Introduction
2. Discussion & Findings
3. Disposition
Order
Appearances & Witnesses
1. For the Cornwall Water and Sewer Utility Corporation (formerly the Eliot River Sewer Utility)
Town Administrator:
Eldon SentnerWitnesses:
J. Clark Baglole, Engineering Consultant
Richard Carson, Councillor2. For John & Leda VanLenken
Counsel:
J. Gordon MacKayWitness:
John VanLenken3. For the Island Regulatory and Appeals Commission
Staff:
Donald G. Sutherland
Director, Technical Services DivisionHeather R. Walker
Recording Secretary
Reasons for Order
1. Introduction
This is an application by the Town of Cornwall Water and Sewer Utility Corporation (hereinafter referred to as the "Applicant" or "Cornwall")—the successor to the Eliot River Sewer Utility ("Utility")—for a review of Order UW95-6. The Order, which was issued by the Commission on March 28, 1995, concerns itself with a dispute between John and Leda VanLenken and the former Eliot River Sewer Utility.
In Order UW95-6, the Commission made the determination that the VanLenken's property situated at 29 Woodlands Blvd. in Eliot River (now Cornwall) could not be provided with a standard gravity connection and was, therefore, entitled to some assistance if the Utility intended to charge for service availability. The final paragraph of Commission Order UW95-6 reads as follows:
If the above principles are applied to the VanLenkens' property, a determination will have to be made by the utility as to whether it is prepared to pay for lift facilities necessary to pump the effluent from the dwelling to the main. If it is, the authorized rate contained in the current Tariff shall be applied. If the utility is not prepared to pay for the required lift facilities, the property is not capable of being served and shall not be charged for service availability.1
On April 24, 1995, Clark Baglole of Delcom Consultants wrote to the Commission on behalf of Cornwall requesting a review of Order UW95-6. In his letter, Mr. Baglole stated:
It is contended that all evidence was not available to the Commission at the time of the decision and the situation was not fully detailed. If all the details of the situation are fully presented, we feel the decision would have been in favour of the Utility.2
In a letter dated July 19, 1995, the Commission notified the parties that it was prepared to proceed with a review in this matter and a hearing was subsequently held in Charlottetown on August 11, 1995.
2. Discussion & Findings
Mr. Baglole was project engineer of the Eliot River sewer system and testified on behalf of Cornwall. He stated that they knew from the early stages of the project that the VanLenken property would not be able to receive service under the foundation's footings but that it could still be serviced by a gravity feed to the main floor.
During his testimony, Mr. Baglole recalled that the VanLenkens were made aware—during a preliminary site inspection—that a gravity feed could be installed from the front of their home. According to Mr. Baglole, the VanLenkens were adamant about not wanting to have the line exit that route as it would mean extensive, internal renovations to their finished basement. The witness stated that, because of the initial meeting and the VanLenkens' strong opposition to a front exit, the utility decided to pursue options that would facilitate a rear-building exit where the septic system was located.
Following the initial site inspection, the VanLenkens received a letter dated November 22, 1993 from Delbert Francis, Chairman of the Utility. Mr. Francis' letter indicated the following proposal for connection:
. . .
It is proposed to run a service lateral to the house from the main line at 1% grade for plus or minus 120 ft. which results in a grade at the foundation wall of plus or minus 93.30 ft.
Thus, the outlet pipe to the sewer would be 99.17 ft. - 93.30 ft. = plus or minus 5.87 ft. below the top of the foundation wall. This should easily pick up the existing outfall pipe, with minor interior plumbing changes.
To facilitate adequate frost cover in the existing ditch area, a culvert will be placed, in the spring, along with fill, topsoil and seeding to provide a point for the pipe to cross the ditch near the small patio decks on the side of the house. The culvert will be approximately sized to handle expected run off through the ditch. This work will be undertaken by the Utility.
Placing the service stub to the property line will be the Utility's responsibility.
Placing the new service line from the stub to the house will be the owner's responsibility. As a further safety feature, insulation will be provided by the Utility, to be place over the new lines at the intersection of the new service and the new culvert.
. . .3
In February of 1994, Mr. VanLenken wrote to the Utility outlining his concerns over the proposal. He felt that the water run-off would be too great and result in flooding of his lower floor. Mr. VanLenken requested the opportunity to discuss the matter further with the Utility and its engineer and invited them to inspect the property again.
On October 12, 1994, the utility sent the following letter to the VanLenkens:
October 12, 1994
John & Leda VanLenken
P.O. Box 310
Cornwall, P.E.I.
C0A 1H0Dear Mr. & Mrs. VanLenken:
The Board of the Eliot River Sewer Utility has deemed that your property is capable of being serviced as of October 15, 1994. The enclosed bill reflects the charges from that date until December 31, 1994.
This decision was made after consultation with our engineer who recommended that the pipes be placed at the grade specified in my letter of November 22, 1993 and that they be insulated to try to prevent freezing. A heat tracing on the pipe where cover is less than 1.8 meters is also recommended.
Please contact me if there are any questions or if further information is required.
Yours truly,
(Sgd) Patricia LeGrow
Patricia LeGrow
Administrator4In his response letter to the Utility dated October 18, 1994, Mr. VanLenken wrote that he was surprised to receive the letter. Following a second site inspection in August 1994 by utility representatives and the consulting engineer, the VanLenkens felt that everyone had agreed that there was a problem with the proposed method of connection and that an alternative route would be investigated. According to Mr. VanLenken, he never heard anything further from the Utility or its engineer and he stated again that the proposed connection was unacceptable to him.
In December, 1994 another letter from the Utility was sent to the VanLenkens:
December 4, 1994
Mr. & Mrs. VanLenken
P.O. Box 310
Cornwall, P.E.I.
C0A 1H0Dear Mr. & Mrs. VanLenken:
RE: SERVICE-PROPERTY #569988 - VANLENKEN
As stated in my previous letter, our engineer says that your are capable of being serviced by gravity from the service stub to your house. The decision made by the Board of the Eliot River Sewer Utility that you are capable of being serviced as of October 15, 1994 stands and you are required, under the Interim Sewer Tariff, to pay the enclosed bill.
It was suggested, by our engineer, that you do not place the fill and culvert, as proposed originally, but insulate the pipes. However, the final decision on how to provide service from the stub to your house remains with you.
You have the right to appeal this decision to The Island Regulatory and Appeals Commission or submit to the Eliot River Sewer Utility proof that you are not capable of being serviced.
Yours very truly,
(Sgd) Patricia LeGrow
Patricial LeGrow
Administrator5These events preceded the VanLenkens' initial submission to the Commission in February of 1995.
During the hearing, Mr. VanLenken testified that he was not made aware of the option to exit from the front of the house in order to obtain a gravity feed until it was proposed in Mr. Baglole's April 24, 1995 letter to the Commission. Mr. Baglole, on the other hand, maintains that this option was known to Mr. VanLenken.
Based on the submissions of the parties, there is little doubt that the information upon which the Commission reached its conclusions in Order UW95-6 was incomplete. The Commission's decision to expedite the release of the order without the benefit of submissions from Cornwall was prompted by the pending amalgamation of Eliot River and other communities into the new Town of Cornwall and our belief that the material filed by the complainant's counsel was complete. It is unfortunate that Eliot River never gave the VanLenkens written confirmation of the service option to the front of the home. If it had, this entire review process may have been unnecessary. In any event, because this information was not earlier known to us, a review of UW95-6 is in order.
A review of the evidence and written submissions of the parties reveals that, while the Eliot River Utility made a sincere effort to address the early concerns of Mr. VanLenken through alternative servicing proposals, these efforts appear to have later resulted in a significant oversight—the formal advice to Mr. VanLenken that gravity service was available to the front of his home. As noted above, the evidence of Mr. VanLenken is that he was not aware of this option—the evidence of Mr. Baglole is that he was.
Our impression is that a reasonable person reading the correspondence from Eliot River—particularly the letters noted above—would not have assumed that such an option existed. Whatever Mr. Baglole may have thought he advised Mr. VanLenken, that was not translated into a written option that Mr. VanLenken could assess. This resulted in a service stub being placed in a position unacceptable to the propertry owner and in Mr. VanLenken engaging counsel in an effort to quash Eliot River's servicing decision.
It is, we believe, generally well known that the Commission prefers to see services installed under the footings of dwellings. In all cases, engineers are expected to design systems to provide this level of service. However, in cases where the costs of providing this level of service are prohibitive, servicing to the main floor of a dwelling is considered acceptable.
It is, in this case, obvious to the Commission that the engineers attempted to have the main line in the area of the VanLenken' s residence installed at a significant depth. While it is unfortunate that that depth is not sufficient to provide under-the-footing service to the VanLenkens, we are satisfied that a concerted effort was made to provide under-the-footing service to the majority of dwellings in the area.
We turn, then, to the question of whether the VanLenken property is capable of being served and properly charged for service availability. Based on the submissions of Mr. Baglole, we are satisfied that main-floor gravity service is available to the front of the dwelling. As a result, we find the property capable of being served and properly charged for service availability provided the utility provides a suitable service stub to the front of the property. Renovations to the VanLenken home to accommodate connection to the main shall, as with all other customers, remain the responsibility of the homeowner.
Because of the added time, effort and expense the VanLenkens have had to incur as a result of Eliot River's failure to formally notify them of the front-entry servicing option, we consider it reasonable not to retroactively apply the Utility's rates. Charges for service availability shall commence on January 1, 1996 provided, of course, the Utility provides the necessary service stub. This work should be carried out at the earliest date to afford the VanLenkens the opportunity to install a service line before the end of this construction season.
In the result,
1. order UW95-6 is vacated;
2. the property at 29 Woodlands Blvd. in the Town of Cornwall is declared to be capable of being served; and
3. charges for service availability shall commence on January 1, 1996 provided the Utility provides, at a date early enough to allow the VanLenkens to install a service line before the end of this construction season, a suitable service stub to the front of the property.
3. Disposition
An Order will therefore issue.
Order
WHEREAS the Town of Cornwall Water and Sewer Utility Corporation, successor to the Eliot River Sewer Utility, applied for a review of Order UW95-6 issued by the Commission on March 28, 1995;
AND WHEREAS the Commission heard the application at a public hearing conducted in Charlottetown on August 11, 1995;
AND WHEREAS the Commission has issued its findings in this matter in accordance with the Reasons for Order issued with this Order;
NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Water and Sewerage Act
IT IS ORDERED THAT
1. order UW95-6 is vacated;
2. the property at 29 Woodlands Blvd. in the Town of Cornwall is declared to be capable of being served; and
3. charges for service availability shall commence on January 1, 1996 provided the Utility provides, at a date early enough to allow the VanLenkens to install a service line before the end of this construction season, a suitable service stub to the front of the property.
DATED at Charlottetown, Prince Edward Island, this 29th day of September, 1995.
BY THE COMMISSION:
Linda Webber, Chair
John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
NOTICE
Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
12. The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it or rehear any application before deciding it.
Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.
Sections 13.(1) and 13(2) of the Act provide as follows:
13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.
(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.
1 Excerpt from Exhibit I-1.
2 Excerpt from Exhibit A-1.
3 Tab 1 of Exhibit R-1.
4 Tab 5 of Exhibit R-1.
5 Tab 8 of Exhibit R-1.
