HomeMy WebLinkAbout2005-04-19 Transportation and Infrastructure Committee Minutes
Transportation & Infrastructure Committee
Tuesday, April 19, 2005
Minutes
Councilors Attending: Frank Farrington, Susan Hawes
Staff Attending: Ed Barrett, Jim Ring, Brad Moore, John Hamer
Others Attending:
Committee convened at 5:07 p.m.
1. WWTP- Discussion on Repayment of Sewer Fees to Properties on Bomarc Access
Road
Jim Ring starts by mentioning a couple of short memos on page three & four of
the packet that explain about it, along with a map he will be referencing.
Recently it was brought to our attention by an owner or tenant in the Bomarc
Complex that they had been paying sewer bills for a number of years, they
believed they were not on the public sewer system. Jim points out the road the
Bomarc Complex, the entrance road that goes to Burleigh Road, and the Birch
Hills Mobile Home Park. The Bomarc Complex was constructed as a military
installation, at that time there was no public sewer anywhere remotely near it. It
was designed and constructed with an internal collection system with various
pipes to the various buildings, which then went to a pumping station and
discharged to a large septic field. We do have some plans of this former military
installation, but they aren’t all conclusive. What it did show was that everything
came to the pump station. In 1976 the City had constructed an extension of the
public sewer, that at that point had gone to Judson Heights Residential
Subdivision, and then subsequently up into Birch Hill Estates, which was just
getting started, and tied into the pump station. Brad was approached by Mr.
Foster, one of the occupants in the former silos, the small buildings to the rear of
the complex. We believed the whole complex was served by the one system,
with no information to suggest otherwise, nor any contact up to that point and
time to support that. Mike Perry, our sewer maintenance Supervisor, worked
with Mr. Foster and others doing some dye testing and field investigations. They
found fourteen former silos are separate from the rest of the complex and they
are collected in a common pipe, they have their own little manhole and pipe.
Discharge to another septic system, when check was functioning. What has
happened, because we had no information to suggest that everybody wasn’t tied
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to the public sewer, folks were getting sewer bills for quite a number of years.
On page five of the packet, there is a listing of owners that have been paying
sewer fees, as Brad found in his research. They at one time or another were all
in this fourteen building complex. There are multiple owners, what that means
going back to 1992 the earliest date of records of sewer billing, because that’s
when we went to electronic billing and record keeping, so these are the owners.
Looking at silo #3 originally, in 1992, the first owner or owner or sewer user was
Penobscot Kennel Club, followed by North Country twice, then the biker. The
biker being the current occupant or rate payer. When we go back to records we
have, we have billed 28,550.44 for various users over time that are on a private
system. So Mr. Foster is specifically requesting repayment/refund of the fees he
had paid and that is what we wanted to bring to your attention.
Ed Barrett’s basic question after having been someone who was billed once for
sewer fees when I had a septic system, not knowing I had a septic system. This
was in another state, in that state there is only a three year limit. And asks is
there some kind of standard in Maine as to how far back you are expected to
correct an erroneous billing like these have for an apparent twenty or thirty
years.
John Hamer states he has not found anything that limits it three years. Basically
this has been assessed without the requisite service being rendered is considered
an illegal fee or an illegal service. And didn’t see any restrictions on the amount
of time. However, what is the real restriction is the amount of documentation.
You don’t want to refund money on a speculative basis. So your records are
going to be your actual cap. If you can’t prove payments that are in excess of
what is listed, then that would be a reasonable cut off point.
Ed asks if there is any standard Maine PUC uses.
John Hamer states he hasn’t seen anything, he hasn’t looked through their
website. But basically there is one of two theories. One, it’s an illegal
assessment or fee, in which case we don’t have any right to under contract law,
we are not entitled to it because we didn’t actually provide the service.
Ed Barrett asks if there is some obligation on the part of these owners to have
notified us, as this one finally did.
John Hamer states if they could have reasonably knew or could have known that
they were not on the system, that would trigger a statute of limitations for a
certain period of time. And that would probably limit them to six years. If we
didn’t know, I’m not sure they could have reasonably expected to know. The
fact that a property owner did come forward and say, we think there’s a problem
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here, the question is could they reasonably have known, I don’t know what the
answer to that is. Then there’s the policy issue.
Jim Ring asks John, when they talked about this earlier today, the property
owner or payer would have six years after they reasonably should have know,
that’s the statute of limitations. Does that have any impact or effect on users
that maybe were billed ten years ago or is it the assumption they had no reason
to assume?
John states only if those users could have reasonably known. So you may find
that one person reasonably knew and should have known to challenge the
billing. But the neighboring person may not have had an idea and have no way
of knowing, in which case they would not have that statute against them.
Ed Barrett asks if we know who all these people still exist, and or can be
identified.
Brad Moore states no not at this point. That is one of the questions, how would
the Committee like us to, if that is the answer, do we want to see these previous
owners, to what extent do they want us to research this. Because these could
have been corporations that have been disbanded, there are a number of
considerations as we look back through this. If there is somebody that was
owed $50.00, and don’t know how much effort we’d put in. But if it were
$1,500.00 is the dollar amount going to make a difference. Whatever the criteria
is we will certainly go ahead and trace it back.
Councilor Farrington questions the data. Asks if the $28,550.00 is the total of
what was collected over this period of time.
Ed Barrett states since 1992.
Councilor Farrington comments that the sewer fees in the left column are the
totals that were collected by individual account. The total amount the City
erroneously received in sewer fees is $28,550.44 since 1992.
Ed Barrett states that some of these folks theoretically could go back beyond
that if they could come in with proof of what they paid before 1992. Also states
that we don’t know that this is the end of it, because there are bills that go from
1992 to 1976 that we no longer have records of.
Councilor Farrington asks Ed why they were billed.
Ed Barrett states that we thought they were on the system. As Jim explained,
we did not realize that one element of the park was on a separate septic system.
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Councilor Farrington asks when the billing started.
Ed Barrett stated in 1976.
Councilor Farrington asks we only have record from 1992 on.
Ed Barrett states that’s correct.
Councilor Hawes asks if these properties sold, they own them or are they rented.
Jim Ring states he is not sure what the current status is. Originally the complex
was owned by L & I Atlantic, Beans had some buildings up there, don’t know if
they still do, but believes most of the space was rented. It doesn’t really matter
whether they’re owned or leased, or rented in terms of our sewer accounts.
Ed Barrett states that doesn’t necessarily have to be the same as the ownership.
Councilor Hawes comments that they should have had something in their papers
that stated that it was sewer or non-sewer.
Ed Barrett states if he were to make a suggestion, what would be a reasonable
first step, it would be rebate the money to the current owners or current account
holders, then go from there. If somebody else comes forward and says I paid
and I want my money back, then we should certainly do that. Start with the
ones who are currently paying sewer bills, rather than a lot of time trying to
track down people who may or may not exist any longer. And who may or may
not care anymore.
Councilor Hawes asks in a situation like this are we bond by any legal obligation
to run some sort of a legal notice that states what the problem is.
John Hamer states that there is no real statute that tells you what you have to
do in these situations. It was an accident that these people were charged. And
believes it is fair to reasonable sets to identify those who have paid and pay
them back. At some point, no that we know they’re not on the system, if
someone learns about it and comes forward, then fine. But such a long period of
time has passed for some of these groups that you could spend a lot of money
and time and it wouldn’t make sense to do that. But if there is something you
could reasonably do to find someone then that’s fine.
Jim Ring states if we were to just identify those that are current rate payers or
have current accounts, reimbursement would be about $21,000.00.
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Councilor Farrington asks why is the figure $28,000.00.
Councilor Hawes states because they’re not all current.
Jim Ring states that these are all the owners listed, the highest number is the
most recent on the records for the accounts.
Councilor Farrington asks what about interest and what is staff recommendation
on that.
John Hamer states he doesn’t think that you are required to pay interest. On the
other hand if it were reversed and we discovered a fee that had not been paid,
we might demand interest. There is no legal requirement to pay interest.
Councilor Farrington asks John there is no statute of limitations.
John Hamer states it would be the same for the initial debt.
Councilor Farrington asks which is what, six.
John Hamer states that is right, but since the error was recently discovered it’s
not really applicable. If you were to pay back the actual amount that was
overpaid, then you’ve complied with the legal obligation. If you wanted to
further than that, you could offer interest but I don’t think it’s required.
Councilor Farrington comments he is trying to figure out a rationale why not to
offer interest, one is it’s too hard to calculate.
Ed Barrett states the reason is the sewer fund is operating in a deficit and going
to continue operating at a deficit. And we’ll probably be in shortly telling you
that we’ll have to raise rates.
John Hamer states if for some reason one of these owners came forward and
discovered it and decided to go to court to sue to get their money back, they
would be entitled to interest at that point. But since we discovered it and are
voluntarily doing this, that’s not going to kick in.
Ed Barrett stated that in effect, would treat this as we just discovered it, here’s
your money back. From the point we discovered it maybe there’s an argument
for interest. But it was an honest error on our part, no one ever brought it to
our attention. We made an assumption the system an integrated system. We
did not know there was a separate system, nor did we have any reason to have
known that.
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Councilor Farrington stated that the minimum we should pay back is what was
collected erroneously and will make a motion to that effect. As far as items two
and three, those should be for discussions for a future committee meeting. So
we should do what is clearly what should be done and move that the City repay
the fees assessed to these properties.
Jim Ring requests clarification, if that is for the current owners.
Councilor Farrington states the current owners as identified. We can say current
owners, if others surface that is certainly a topic that will be discussed by this
committee in the future. But we need to move quickly on what is clear.
Councilor Hawes seconds.
2. BIA – Passenger Statistic Update
Ed Barrett is filling in for Rebecca, who is in Portland, and Tony is out ill.
Ed Barrett states that they put out a media release last week or the week before.
Clearly March was a good month with an 8.6% increase in monthly passengers.
Average daily capacity this March, we have close to 150 to 160 more seats per
day than we had in March of 2004. That indicates we have a higher service level
and our daily seats sold have shown an increase of 69% - 70% in both months
for the percent unsold or the percent of seats sold. Still averaging around 70%,
which is an acceptable level in the airline industry. It also shows the breakout of
the percentage, load factors by the various airlines. Note that Continental turbo
prop service to Albany, that service has been discontinued. It was not a major
part of our mix but will be replaced shortly by Continental service to Newark,
which will be much more popular, it certainly will be on jet equipment as well.
With the elimination turbo prop service to Albany, we are now a 100% jet
service airport. That’s also good news, in that we have all services on regional
jet equipment. Year to date we’re up about 4%, we had a slow February, but
we’re starting to continue to see growth at the airport. Last year was a very
large increase at about 11%-12% increase in passengers. Our long term
projections run in the 3%-4% range, so that’s pretty much what we’re
anticipating on an annual basis. The airline industry is in a certain amount of
turmoil these days given the reality that most of them are loosing a significant
amount of money. The airport continues to perform well, no single airline has
more than 44% of the passengers, not as dependent as we once were on Delta,
American seems to have stabilized, for a number of months their passenger
numbers were going down. They now seem to have a pretty good mix between
passengers and flights, as seen in load factor at 78%, which is the highest of our
group. Overall things are going pretty well at the airport. We will be back in the
not to distance future to talk about parking issues, the need for additional
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parking at the airport, which reflects some of the growth that we saw last year,
into this year, and project into the future.
Councilor Farrington comments they accept this with great pleasure and
interesting everyone else seems to be going down and our airport continues to
have improvement. This is a pretty good March compared to others, which also
bucks the trend.
Ed Barrett stated he has seen some national figures that nationwide travel was
down in February. In March the numbers were up about 4%, so our percentage
is about twice the national average at least for March. Any single month is just
one month, need to look at the longer trends. The long term trends have been
pretty decent for us once we started to recover from 9-11 and got over the initial
downturn in traffic we saw with the situation in the Middle East.
Councilor Farrington asks if they just need to accept this.
Ed Barrett states this is just for information only.
Councilor Farrington moves to adjourn.
Councilor Hawes seconds.
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