Order UW95-02 - UW50402 - Eliot River - Holiday Haven v. Eliot River Utility (Mar 28, 1995)

Docket UW50402
Order UW95-2

IN THE MATTER of a dispute between Holiday Haven Campground (Dick and Annet Tol) and the Eliot River Sewer Utility Corporation.

BEFORE THE COMMISSION

on Tuesday, the 28th day of March, 1995.

Linda Webber, Chair
John L. Blakney, Vice-Chair
Anne McPhee, Commissioner

Order

WHEREAS:

Dick and Annet Tol are operators of the Holiday Haven Campground. The campground is located in the Community of Eliot River and the entranceway to the campground is situated adjacent to the Eliot River municipal sewer system.

On June 8, 1994, the Commission received an application from the Eliot River Sewer Utility Corporation (the "utility") for approval of an interim sewer rate. The application included a proposal to charge property owners or customers capable of being served by the utility. The application followed completion of a new central sewer system in the community which either services or is capable of servicing properties located in the Eliot Park subdivision and those adjacent to the sewer system along the Ferry Road.

The above application of the utility included a provision to charge campgrounds an annual rate of 0.1 units per campsite to a maximum of $7,000. The proposed equivalent single-family dwelling charge was $620.11 per unit per annum. With approximately 300 campsites, the annual charge to the campground would—absent the maximum charge of $7,000—amount to some $18,000.

On July 21, 1994, the Commission issued an order granting interim approval for the utility's rate proposal. The utility thereafter issued its first customer billing. This was followed with the filing of a complaint by the Tols.

The Tols allege, among other things, that the proposed charge is discriminatory and that it is unreasonable that they be required to connect to the sewer system. The Tols allege, as well, that they were not consulted with and that they should be exempted from all applicable sewer charges.

The utility's position on this dispute is that the rate cap of $7,000 is fair given the high rates that must be paid by homeowners. The utility submits that the campground was eventually included in the central sewer system plan on the advice of the provincial Department of Environmental Resources. According to the utility, the Department has plans to close the campground's "settling pond".

The Commission has carefully considered the written submissions of Mr. and Mrs. Tol on these issues and those of the utility. The Commission has, as well, consulted with Commission staff and is aware of the circumstances surrounding the construction of the central sewer system in the community.

We have been advised by Commission staff that the initial plans to service the area did not, as both the Tols and utility suggest, make provision for servicing the campground and that the Department of Environmental Resources was, in fact, instrumental in having the line extended adjacent to the campground entranceway. We understand, as well, that the Department's actions were prompted out of concern over the condition of the campground's lagoon or sewage holding facility and that the Department considers these facilities inadequate. To our knowledge, however, the Department has not demanded that the Tols abandon this facility and connect to the system.

Given these circumstances, the question therefore arises as to whether or not the Tols ought to be charged for service availability and, if so, to what extent.

The term capable of being served used in Tariffs authorized by the Commission has been interpreted by us to mean two things:

that sanitary sewage facilities must be available to service a particular property; and

that the property must have buildings or structures with plumbing facilities.

In cases where no buildings or structures exist, an annual recurring frontage rate may be approved. However, absent a frontage charge, a property may only be charged if both conditions exist.

We understand that the Tols are unable to effect a gravity connection to the main line and that a lift facility would be required to do so. In circumstances such as this, it has been our practice to require utilities to pay for and install such a lift facility with the customer thereafter responsible for the operation and maintenance of the facility. The practice has been used in circumstances where existing properties with buildings or structures with plumbing facilities are required to pay for service availability where gravity service is unavailable. The practice has not been applied to new development areas where developers are required to pay the costs of connecting, notwithstanding the availability of gravity service.

The intention of this practice is to treat all existing or potential customers of a utility on a similar basis in cases where a charge is to be made for service availability. Simply stated, an existing customer or potential customer should not be unduly disadvantaged by virtue of his relative location to the sewer main. If he is, the utility must either assist in offsetting this disadvantage or determine that the property is not capable of being served. If the latter determination is made, charges are not levied against the property until such time as a connection is made. However, the customer must, at the time of such future connection, pay for all of the costs of the connection, including any lift or pumping equipment that may be required.

If the above principles are applied to the Tol's 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 location of the existing holding facility to the main on the Ferry Road. If it is, the rate contained in the current Tariff of the utility is considered by us to be reasonable and shall be applied; interest charges on any bills currently outstanding shall, however, be waived. 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.

The foregoing is SO ORDERED.

DATED at Charlottetown, Prince Edward Island, this 28th day of March, 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.