Commission eyes sewer deal in lawsuit with city

Casey S. Elliott
Wednesday, June 22, 2022

The Beaverhead County Commissioners authorized their attorneys to consult city of Dillon attorneys about extending water and sewer infrastructure to a disputed subdivision.

The commissioners, their attorneys, and some Dillon officials were present June 13 at the discussion. Since one public entity is suing another, their deliberations are considered a public meeting under the state’s Open Meetings law.

The city sued the county over the county’s preliminary plat approval of the Plutt Family Minor Subdivision off Overland Road last year. The proposed subdivision would divide an existing 29.307-acre tract of land into five lots. The current tract is owned by Katherine Simkins, John Patrick Plutt, Marilyn Starcevich, and Peter, Paul and Michelle Zemljak.

Former Dillon Mayor Mike Klakken previously objected to the plat while it was still being reviewed, arguing the property’s location to the city limits requires annexation into the city and hookups to city services. He also argued the entire subdivision should be reviewed by the city’s planning commission before approval.

The city asked the Fifth Judicial District Court to void the approved preliminary plat; forbid the county from approving a final plat; declare the county violated local regulations, state law and the constitution; and order the county to pay the city’s court and attorney fees.

County planning officials argued the county could not require the property owners to tap into the city – that decision must come from the Department of Environmental Quality (DEQ). The DEQ generally allows property owners that are near municipal service lines to install septic systems, if getting those lines to their property costs at least three times more than a septic system would. County Sanitarian Tom Wagenknecht argued previously the cost of the line extensions and a lift station would likely exceed that threshold.

“Simply, the claim is the property should pursue obtaining a connection to the sewer line that runs past the property to the vet clinic,” said Susan Swimley, one of the attorneys representing the county. “There is information in the record that supports your decision. As the lawyer that represents you, I would prefer there were more.”

The Veterinary Hospital of Dillon installed the sewer line – along with a private lift station – since the DEQ did not allow them to use a septic system for their business. They also annexed into the city limits; the proposed Plutt subdivision is located in the county.

Swimley said the judge could decide for either side, and the worst-case scenario for the county would be that the judge tosses the preliminary plat approval. If that happens, it opens up the county to another lawsuit from the landowners for improperly approving the preliminary plat.

Swimley said their view is the DEQ holds the decisionmaking authority over whether to tap into the city’s services or install a septic system, and it is cost-prohibitive for the owners to connect to city services.

Swimley noted that the lawsuit only involves the city and county; the landowners are not involved. Any potential litigation resolution should include them if the county wants the lawsuit to end.

Commissioner and Chairman Mike McGinley suggested the county use any leftover infrastructure funds along with the city’s leftover funds to extend water and sewer service across the property and add a lift station, and then turn all that over to the city for maintenance purposes. The idea is that it would make it less expensive for the landowners to connect to the system. He noted other proposed subdivisions are looking in that area to locate, and they will likely want access to city water and sewer as well.

He added he did not believe the landowners should have to pay for the extension of services, arguing that is the city’s responsibility.

County Attorney Jed C. Fitch argued he did not believe the city could force the landowners to connect to city services or be annexed if they did not want to do so. Swimley disagreed, noting the city has seven conditions where it can annex property into its boundaries and this may fit one of those conditions.

The commissioners unanimously voted to authorize its attorneys to discuss possible solutions with the city’s attorneys and the landowners.