Same fight, different council in Durbin

Suzanne Stewart
Staff Writer

At the Durbin Town Council meeting October 19, council was forced, yet again, to explain why it does not charge water and sewer fees to residents who own storage buildings.

Previous councils, dating back to 2007, billed residents and landowners for water and sewer fees for every single building, regardless of whether the building accessed the water and sewer system.

At its September meeting, council approved to stop billing those fees to Thelma and Mark Smith for a building they use as a storage facility. Although the building has water and sewer hookup, it is not accessed by the Smiths.

Due to a backlash, council revisited the issue at the October meeting and mayor Kenneth Lehman explained why council will no longer charge water and sewer fees for storage buildings.

“When the town hired John Himple as the building inspector, he gave us a draft letter, dated July 7, 2009,” Lehman said. “It says, ‘if you wish to permanently or temporarily change the status of your structure from a habitation or a public use structure to storage, we will require a letter detailing the new use of the structure. If appliances such as sinks, toilets and plumbing are to remain in the building they are to be disconnected from the sewer and the city water lines to eliminate a monthly fee being charged to the structure.’”

Lehman added that that code included in the letter was adopted by town council in 2014. The code states that a building used for storage and not as a dwelling may not be billed water and sewer fees.

Current town treasurer and former mayor Donald Peck argued with Lehman, saying that, according to West Virginia State Code, if a building is near a sewer line, it must be hooked on to the service.

“Right here is from the legislature on sewer utilities,” Peck said. “There ain’t nothing in there like that. West Virginia Code says if that line runs by your property, you must go on. If you don’t hook on, you still have that bill.”

Councilmember Mark Smith stated the reason storage facilities are not mentioned in State Code is because most storage facilities do not have plumbing or bathrooms installed in them.

In most cases, the buildings in town limits which are used as storage facilities were formerly used as business or homes, therefore, they were at one time hooked to the sewer and water system.

Peck also cited the International Maintenance and Property Code which does not mention storage facilities.

Peck, who served as mayor when council approved billing everyone for sewer and water fees, reminded council of a court case in 2007 in which the circuit court ruled in favor of the town and the resident who sued the town was ordered to pay water and sewer bills on a vacant building.

“When the judge agreed with the town, the town lawyer went and put a lien on the property when it was sold and we got our money,” Peck said. “What is the difference? Do you go back to circuit court and fight this thing again and spend money?”

“No,” Lehman responded, “because right here is the difference. I talked to a judge, okay. A judge, and the judge said that this [the building code] supersedes that court ruling. It is not under that court ruling, when you adopted this building ordinance.”

The building ordinance and code were adopted after the court ruling, therefore, the town is required to follow the code which states it is possible for residents to prove a building is used as a storage facility in order to stop receiving bills for water and sewer.

“If you write a letter and say it’s a storage building, we come out and we check it, and if it has no running water, you shouldn’t have to pay a bill as of the date you tell us it’s a storage building,” councilmember Shelia Varner said. “If you go home tonight, write a letter, date it, we get it, accept it, you won’t have to pay your bill anymore.”

Newly appointed town recorder Jeremy Bauserman read from the state code in order to appease Peck, who continued to argue that it was illegal not to bill for every single building in town.

“‘Connections to sewers, board of health penalty,’” Bauserman read. “‘Regardless of whether a lot or parcel is within any municipalities geographical limits, the owner or owners of any lot or parcel of land abutting on any street, alley or public way easement on which a municipal sewer is now located, or may hereafter be constructed and laid, whether constructed and laid in revisions, upon which lot or parcel of land, any business or residential building is now located or may hereafter be erected, may be required and compelled by the municipality or the board of health to connect any such building with such sewer.’”

“It says a business or a residence,” Smith stated after Bauserman finished. “It does not say storage building.”

The discussion was ended and council maintained it will not bill water and sewer fees for storage buildings. Lehman said if a resident is currently being billed for a storage building, he or she must write a letter to council proving the building is for storage only before billing will cease.

In other news:

• Council approved appointment of Jeremy Bauserman as town recorder. Bauserman left his seat as a councilmember to take the position. Council will post the vacant council position for residents interested in taking the seat.

• Lehman read a letter from Governor Earl Ray Tomblin, which included a proclamation naming November 22-28, 2015, as Christian Heritage Week. Lehman signed the proclamation and said he will share copies of it with local churches and Christian organizations.

• Council discussed the payment plan to the IRS for past due taxes and penalties. Lehman said he will contact a representative at the IRS to discuss the best way for paying down the total of $21,716.16, which is the amount owed.

Lehman said it might be in the town’s best interest to get a loan from a local bank to pay the IRS and have a monthly payment to the bank instead of having a monthly payment to the IRS. He said he would update council after his conversation with the IRS.

Durbin Town Council meets the second Tuesday of each month at 7 p.m. at the town office.

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