It really depends. This would require an analysis of the governing documents. There is probably a provision within the governing documents that permits turning over utility services to public entities. Every privately operated sewer service that I have seen within a community association in the past has made provisions for this eventuality.
If not, worst case scenario would probably require an amendment to the governing documents to turn this service over to the local government.
D. Ryan McCabe
McCabe, Trotter, & Beverly, P.C.
4500 Fort Jackson Blvd., Suite 250
Columbia, SC 29209
Direct: (803) 724-5005
Facsimile: (803) 724-5001
The Association I represented viewed its sewage treatment plant as more liability than asset. That may not always be the case. Regardless, we worked with the board to sell the plant and transfer future liability to a wastewater treatment company.
It’s not clear from the question but is the Township proposing that the Association stop using its own treatment plant in favor of the Township’s plant? If so, the Association should ask, among other questions:
– Is the Association’s plant up to code, are there violations, what is its remaining useful life, are there sufficient deferred-maintenance and reserve funds available to properly address the plant?
– Assuming the Association’s plant is fine, can a governmental entity compel the Association to abandon its plant in favor of the Township plant?
– Who will pay the Association’s decommissioning costs?
– Will the Township indemnify, defend and hold the Association harmless with respect to issues arising from the Association’s treatment plant?
– What will be the impact on sewer rates?
– Will the Township be able to subsequently transfer the Association’s and/or the Township’s sewer plant to a third party?
– What governing document amendments will have to be passed to decommission/transfer the Association’s sewer treatment plant and relieve the Association from its obligation to provide sewer treatment? What will happen to the deferred maintenance and reserve funds put aside?
– Are the sewer rates proposed to be paid by the Association’s residents needed to make the Township’s proposed plant feasible?
– How will the new sewer treatment capacity impact development in the surrounding area (less capacity = less development, more capacity = more development)?
McGovern Legal Services, LLC
Attn: Francis J. McGovern, Jr., Esquire
850 Carolier Lane, North Brunswick, N.J. 08902
Phone: 732-246-1221 ● Fax: 732-246-1872
It would require substantial investigation of documents, statutes and ordinances to answer your question. I would start by asking the Municipality to identify the statute or ordinance upon which they rely for the proposition that they can insist upon your connection to its system. It may be that the municipality wants you to turn it over to them voluntarily. There may be several benefits to such a proposition, such as not having to maintain a reserve fund for its eventual replacement and an operating amount for maintenance. If a negotiated arrangement is what is going to occur, I would seek a provision that allows you to inspect the facility and take emergency action in the event of a spill or threatened spill, with the municipality paying for the emergency response. The municipality may not like such a provision, but it is worth discussion.
Griffin Alexander, P.C.
415 Route 10 Ste 6-8
Randolph, NJ 07869-2100
This is no different than any other situation where an individual property has on-site sewage treatment and is either asked or forced to connect to a new municipal system. There may or may not be an exception since there is a private multi-unit system in place. The HOA should look into whether there is a requirement that lots connect to the new municipal system (versus having the ability to do so) and if there is an exception for the private multi-unit system.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403