Traverse City Record-Eagle

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October 16, 2012

Townships tried to legally block special assessment

Today's public hearing to be held as scheduled

TRAVERSE CITY — Nine townships filed suit against the Grand Traverse County Board of Public Works seeking to halt a proposed special assessment on properties with septic tanks.

The townships on Monday afternoon asked 13th Circuit Court Judge Thomas Power to issue a temporary restraining order cancelling the first public hearing on the special assessment scheduled for today at 6 p.m. Power denied the request and the public hearing will go on as scheduled at the Garfield Township Hall.

The BPW wants an assessment of about $25 a year to cover operations, maintenance, and improvements at the county's money losing septage treatment plant. In exchange the BPW will halve the per-gallon treatment charge.

The townships of Long Lake, Green Lake, Grant, Mayfield, Blair, Paradise, Fife Lake, Union and Whitewater oppose a special assessment and want the five townships that guaranteed the plant's financial health to cover future annual losses projected at over $200,000 a year.

"The wise nine should not be getting charged for the foolish five's mistake," said Robert Whims, a Paradise Township trustee. "Guarantee has a meaning, and they have the money to pay and they should."

The townships of Garfield, East Bay, Peninsula, Acme, and Elmwood in Leelanau County guaranteed in 2003 they would cover all costs for the $7.8 million facility. Soon after the plant began operations in 2005 it became apparent the cost and revenue projections for the plant were seriously flawed. The plant cost almost twice as much to operate and took in less than half the volume projected. The septage plant was supposed to pay for itself by charging 12 cents a gallon to treat septic tank waste.

The townships will get another chance to stop the special assessment in court. Power will hold a hearing on the townships' request for a temporary injunction to halt the assessment. A date has not been set, but Power told attorneys it would be scheduled before the BPW holds its second required public hearing, possibly on Oct. 30.

The suit alleges a contract between the nine townships and the BPW specifies the plant will be paid for by user fees and a special assessment would violate the terms of the contract. The suit asks the court to order the BPW to either raise user fees or make the guaranteeing townships or the county cover all losses. The suit also alleges the special assessment violates the state constitution and state laws. It asks the court to prevent the BPW from ever levying a special assessment to pay for the plant.

Scott Howard, BPW attorney, said the contract with the rural townships does not prohibit a special assessment. But even if the courts agree an assessment violates the contract, preventing the BPW from exercising its legislative authority to levy assessments is not a proper remedy, he said.

Howard also noted courts have held any challenge to the legality of a special assessment belongs with the state tax tribunal, not the circuit court.

Several rural township officials said the lawsuit isn't really about the money or the environmental benefit of the plant. The special assessment makes it easier for most people to afford having their tanks pumped by spreading the cost out. But the rurals don't like the five guaranteeing townships imposing their will on nine townships who passed on getting financially involved with the plant in 2003.

"The five are looking for options so they don't have to pick up the difference, you can't blame them, it's human nature," said Marvin Radtke, Green Lake Township trustee and the lone rural representative on the BPW. "But to pass it on to the other nine townships, its kind of hard to swallow.

"Taxation without representation," he said.

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