Published On: Wed, Feb 22nd, 2017

MTC faces same issue, different day

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Suzanne Stewart
Staff Writer

Marlinton Mayor Sam Felton expressed his frustration at the end of yet another special Marlinton Town Council meeting dealing with proposed changes to the Title VI Fire Protection Ordinance and contract with the Marlinton Fire Department.

“Three more hours of my life I wish I had back,” Felton said.

The meeting, held February 16, was intended to put an end to the years’ long struggle to expand the Marlinton fire fee to include residents and businesses outside the town limits but within the MFD first due area.

Instead, council spent three hours discussing their concerns with changes to both the ordinance and contract, and, in the end, decided to not make any changes.

Members of MFD, including chief Herby Barlow, have tried for years to expand the fire fee to cover the first due area. Residents within the town limits now pay a fire fee of $50 a year, while residents outside the limits are not required to pay a fire fee, yet receive the same service from the fire department.

In the past few months council seemed to be on the road to enacting changes to the ordinance to implement the first due fire fee, but at this special meeting they chose not to, after receiving new advice from town attorney Laura Finch.

“My opinion at this point in time is that the case law on which we based this discussion establishes that the city of Bridgeport could assess a fee to residents outside of that city based upon the services the city provides,” Finch said. “The town of Marlinton does not itself provide fire protection service to the first due area.”

Finch said if the town of Marlinton owned the fire department, it would be easier to enact the fire fee changes.

The opinion shared by Finch at the special meeting contradicted her previous statements in which she said it was possible for the town to charge a fire fee to those outside of town limits.

Felton and Barlow both showed their frustration with the change in opinion.

“The real point here is, and, Laura, I am disappointed here because we’ve had this discussion for nearly six months and proceeded from the standpoint that the contract itself was to clarify any of those indiscretions about the services they we’re able to provide,” Felton said. “The real issue that comes back to the contract itself becomes accountability, handling of the first due money.

“It’s exclusively the fire company’s money, we know that, but there again, I was coming back to a place where I hope that we can all agree.”

Barlow also questioned Finch’s reasoning.

“Why are you changing tonight from where you were last week?” Barlow asked.

Finch explained that she has concerns about the aftermath of enforcing a fee outside town limits. She is worried the town will incur legal fees if residents decide to fight the fire fee in court.

“What we sought to achieve by a contract was to say that the town of Marlinton has contracted with the fire department to provide these services,” Finch said. “However, that does not change the fact that the volunteer fire department is obligated to provide those services under the Rural Fire Protection Plan. I see, far afield, that the implementation of any assessment of this fee will be met with a great deal of opposition, will cost the town considerable energy and money that the town council may believe is better spent on other things, and for me, what it all comes down to is the benefit to be derived from the town.

“Because the town is not the entity that is charged with fighting these fires, the town does not have any cost to remediate by the assessment of this fee,” she continued. “To the extent that my counsel – my advice previously, was inconsistent – I apologize.”

Councilmember Sue Helton said she researched the issue and received information saying the town could not assess the fee.

“I have spoken with another attorney,” she said. “His advice to me was that we will not win in court because the town of Marlinton has not incurred any cost in providing fire protection.

“The town of Marlinton, to my knowledge, hasn’t even used a postage stamp, so we have not incurred any cost for fighting fires. The fire department has, but not the town of Marlinton itself.”

Members of MFD said that if the fire fee does not expand to include residences and businesses in the first due area, it will be nearly impossible for the department to continue to provide services due to the costs it incurs in purchasing and maintaining equipment.

“The question I have, if we’re not talking about an outside fire fee, we’re talking in town fire fees, that fee is nowhere near enough to replace the equipment out there,” J.P. Duncan said. “There are two, thirty-one year old trucks out there. Where’s the money going to come from if we can’t work out something, figure it out, to get more money coming in from the people who are also taking advantage of the services?”

The fire department itself cannot enforce a required fee. It can only fundraise and ask for donations. 

At one time, the town of Marlinton did own and operate the fire department and when the two entities separated, some of the equipment remained in the ownership of the town. Two of the trucks and several pieces of equipment are owned by the town of Marlinton and are leased to the fire department to use.

Councilmember Mark Strauss said it could be possible to say the fire fee was to help replace the trucks, which are owned by the town, and in that manner, it would be legal for the town to enforce a fee outside of the limits.

“We are leasing the fire department the trucks, so therefore, we have an expense and we need to replace these trucks, so we’re going to charge the first due area a fee to help replace these trucks,” Strauss said. “That would be an argument that we could use.”

As council continued to discuss the legality of the ordinance, it returned to the proposed changes to the contract with MFD. Council was considering changes to the contract to include coverage of the first due area and a reciprocal agreement on building use.

In the discussion, MFD members stated they did not agree with the new contract and said the department would not sign the contract with the changes.

“We’re not agreeing to the new contract, so you might as well keep the old one,” Duncan said, as he walked out of the council room.

Strauss made a motion to drop the changes made to the contract and to keep the contract that is currently in place between the town and MFD.

“I just want to drop it,” he said. “They are not interested. I’m not interested. It is difficult and it is going to be a problem. It was suggested to me that we remove the first response area out of both the contract and the Title VI Fire Ordinance and if we wanted to continue with that, to do it separately.”

The motion died on the floor for lack of a second.

But despite that inaction, council decided to do exactly what Strauss motioned to do. The contract will stay as it is and the changes will be dropped.

As council moved on to discuss changes to the ordinance, it was suggested to drop the changes to it, as well, because if the contract did not include the first due area, there was no reason to change the fire fee to include it.

“I think it’s kind of absurd to even waste our time with this,” Felton said. “The ordinance has been working. We were to change the first due area, why re-complicate all this other stuff. That’s my personal feeling.”
Council agreed and left the ordinance as it stands – for now.

“We don’t need to put it on the agenda anymore unless someone asks for it to be on the agenda,” Strauss said.

Suzanne Stewart may be contacted at sastewart@pocahontastimes.com

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