Order UW95-06 - UW50403 - Eliot River - VanLenkens v. Eliot River Utility (Mar 28, 1995)

Docket UW50403
Order UW95-6

IN THE MATTER of a dispute between John and Leda VanLenken 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:

John and Leda VanLenken own or occupy a property at 29 Woodlands Blvd. in the Community of Eliot River. The property is situated adjacent to the Eliot River sanitary sewer system and the Eliot River Sewer Utility ("utility") deems the VanLenken property capable of being served by the sewer system. In accordance with the utility's authorized Tariff, the VanLenkens have been billed for service availability on the grounds that the property is capable of being served.

On February 10, 1995, counsel for the VanLenkens, J. Gordon MacKay, filed documents with the Commission disputing, among other things, the utility's charge for service availability. Mr. MacKay argues that the method or methods proposed by the utility to service the VanLenkens' single-family dwelling are unacceptable. He submits that the utility should either install, at the utility's expense, a lift station in front of the VanLenken home in the public right-of-way or cease billing the VanLenkens and allow them to continue to use their septic system.

At issue is whether— within the meaning of the utility's Tariff authorized by the Commission—the customer is capable of being served.

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 VanLenkens are unable to effect a standard gravity connection to the main line without some form of protection against freeze-up. It appears, based on the material before us, that concern exists on the part of the VanLenkens that the protection method or methods proposed by the utility may negatively affect drainage in the area.

There is, in our view, little doubt that the proposal or proposals of the utility to service the property are not commonly used in the area. While we understand that efforts were made on the part of the utility to maximize the depth of the sewer main in front of the property in order to effect a gravity connection, it appears that considerable additional work is necessary in order to secure such a connection. In our view, the proposals of the utility do not constitute a standard gravity connection.

In circumstances such as this where a standard gravity connection is not available, it has been our practice to require utilities to pay for and install a domestic lift facility on the customers' premises 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 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 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.

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.