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Minutes - Board - 2021-07-30COSTA MESA SANITARY DISTRICT MINUTES OF BOARD OF DIRECTORS SPECIAL MEETING JULY 30, 2021 Note: This meeting was conducted utilizing teleconferencing pursuant to Government code Section 54952.2 and the Governor's Executive Orders in effect waiving some of the requirements of that Section. Members present Arlene Schafer, Art Perry, Bob Ooten, Brett Eckles, Mike Scheafer Members absent None Staff present Scott Carroll (General Manager), Alan Burns (District Counsel), Noelani Middenway (District Clerk and Public Information Officer), Kaitlin Tran (Finance Manager), Steve Cano (Wastewater Maintenance Superintendent), Mark Esquer (District Engineer) Others present Jim Mosher, District resident Margarito Garcia, C&R Drains Meeting called to order at 8:00 A.M. A. OPENING ITEMS Procedural: 1. Call Meeting to Order - President Ooten President Ooten called the meeting to order at 8:00 a.m. Procedural: 2. Roll Call - (If absences occur, consider whether to deem those absences excused based on facts presented for the absence - such determination shall be the permission required by law.) COSTA MESA SANITARY DISTRICT PAGE 2 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 3% 2021 District Clerk and Public Information Officer, Noelani Middenway, conducted roll call and noted that President Ooten, Vice President Scheafer, Secretary Schafer, Director Perry, and Director Eckles were present. Procedural: 3. Announcement of Late Communications- Unless directed otherwise by the Board of Directors, all actions shall be based on/memorialized by the latest document submitted as a late communication. Ms. Middenway stated that she did not receive any late communications, but that the District's General Manager, Scott Carroll, received communications from the property owner. She shared the owner's email correspondence with the Board. Mr. Carroll stated that he received an email from the property owner yesterday at 4:15 p.m. requesting to reschedule the public hearing. He noted that the owner did not provide a specific reason for his request. Mr. Carroll shared his response to the owner. He noted that he does not have the authority to determine if the public hearing should continue without the owner in attendance. District Counsel, Alan Burns, stated that the Board has the authority to determine if the public hearing should continue. He added that, based on the lateness and lack of specificity of the communication, the Board should determine the status of the public hearing. Vice President Scheafer asked if the Board needs to discuss the item before issuing a continuance. Mr. Burns confirmed that the Board must accept public comments and review the agenda item before issuing a decision. There was no further discussion. B. PUBLIC COMMENTS Procedural: 1. Public Comments President Ooten opened public comments. COSTA MESA SANITARY DISTRICT PAGE 3 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 30, 2021 District resident, Jim Mosher, recommended denying the continuance because the owner did not provide an explanation for his absence, nor did he provide a date to reschedule the hearing. He added that granting a continuance would result in a continuation of repeated behavior. Hearing no additional comments, President Ooten closed public comments. C. PUBLIC HEARING Action: 1. Public Hearing to Determine Whether the Owner or Others Are Responsible for a Sewer System Overflow at 1826 Pomona Ave, Costa Mesa; Whether the Owner Should Have Been Allowed to Abate the Spill; and Whether the Costs of Abatement Were Reasonable Recommendation: That the Board of Directors determine the following: 1. Whether the owner or others are responsible for sewer system overflows at 1826 Pomona Avenue, Costa Mesa; and 2. Whether the owner should have been allowed to abate the spill; and 3. Whether the costs of abatement were reasonable. President Ooten opened the public hearing and introduced the item. He stated that the owner has requested a continuance for the public hearing. Action: 2. Opening Comments by President and District Counsel President Ooten opened the discussion to deliberate the owner's request for a continuance. Vice President Scheafer stated that he is inclined to deny the continuance based on the history of the owner's tendency to postpone or not respond to District communications. Director Eckles expressed agreement with Vice President Scheafer. He stated that the owner should have provided a reason for a continuance. He added that the email sent by the owner was insufficient. Secretary Schafer stated that it was unacceptable of the owner to request a continuance the day before the public hearing at 4:15 p.m. COSTA MESA SANITARY DISTRICT PAGE 4 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 30, 2021 Motion: To deny the owner's request for a continuance for the public hearing. Motion by Mike Scheafer, second by Brett Eckles Final Resolution: Motion Carries, 5-0 Ayes: Arlene Schafer, Art Perry, Bob Ooten, Mike Scheafer, Brett Eckles There was no further discussion. Action: 3. Call the Matter for Hearing President Ooten stated that this public hearing is to determine if the property owner, Peter Bedford, is responsible for the charges for a sewer spill at 1826 Pomona Avenue, Costa Mesa, CA. He added that a sewer spill occurred at that location, but the property owner or other person may be interested in contesting whether the private owner caused the spill by poor lateral maintenance or if the District or other person is responsible. He stated that the District is to consider the cost of the abatement. He noted that the public hearing is being conducted pursuant to the Costa Mesa Sanitary District's Operations Code, Section 6.02.010, which makes private owners responsible for maintaining their private sewer laterals in good working condition, and Chapter 6.10, which states that the District shall provide a hearing process for persons to contest District staff s determination about responsibility and the charges presented. He stated that the hearing is being conducted before the Board of Directors and that he is the presiding officer. He added that Mr. Burns will assist with the procedural matters and in preparing the decision. He stated that Mr. Carroll will be presenting the District staffs case while Mr. Bedford will be challenging District staffs determinations. He added that the Board has not been involved in this dispute so that it can provide due process. He discussed the process for the hearing and stated that it is assumed that each party has been provided the other's materials in advance of the hearing. He confirmed that the public hearing will not be a trial with full cross-examination rights. He stated that the Board wishes to hear about the cause of the spill and about the cost of the abatement. Mr. Burns requested to have all documents that were submitted in the agenda packet as part of the administrative record for this matter. There was no further discussion. COSTA MESA SANITARY DISTRICT PAGE 5 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 30, 2021 Action: 4. Staff Presentation Mr. Carroll presented District staff s case regarding the sanitary sewer overflow (SSO) at 1826 Pomona Ave. He stated that this location is a small apartment complex that consists of seven units. He noted that it is located behind 1828 and 1834 Pomona Avenue. He discussed the main accessway to the property, including its sloped driveway, which requires a private pump station. He stated that the pump station will pump wastewater up the driveway into the District's main sewer line on Pomona Avenue. He showed pictures of the two cleanouts located on the property, the nearest manhole cover (which is located about 75 feet east of the property's driveway) and the property's pump station. He stated that the first SSO at this property occurred on June 17, 2015, for which District staff dammed up the sewer spill. He presented a diagram depicting a blockage near the sidewalk. He noted that, even though the sidewalk and the street are public right-of-way, the District's Operations Code, Section 6.02.020, indicates that the property owner shall maintain the lateral that connects to the District's sewer main, including any portion that may lie within public right-of-way or within a District easement. He stated that District staff believed that there is an offset in the lateral that required the property owner to closed circuit televise (CCTV) his lateral in accordance with Operations Code, Section 6.03.020, subsection D, which states that property owners shall be required to have an inspection of their sewer lateral prepared by a licensed plumber utilizing CCTV whenever an SSO occurs at the property. He reported that the property owner refused to CCTV his lateral and refused to reimburse the District for the costs related to relieving the blockage because he believed that the District caused the SSO. Mr. Carroll discussed the SSO that occurred on February 25, 2021, at 1826 Pomona Avenue. He stated that the District's contractor, C&R Drains, responded to the SSO and observed water coming out of the cleanout in the driveway. He reported that C&R Drains confirmed that the District's main line in the street was flowing properly and did not observe any water being held in the main line. He stated that C&R Drains ran a jetter in the sewer lateral for about 150 feet to clear the blockage on February 25, 2021. He added that the property owner contacted C&R Drains to report that his sewer lines at the complex were clogged on February 27, 2021. He reported that CR&R Drains noticed that water in the main line was flowing properly, but that the six-inch cleanout near the sidewalk was holding water. He stated COSTA MESA SANITARY DISTRICT PAGE 6 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 30, 2021 that, when the property's private pump station was activated, C&R Drains observed water coming up the six-inch cleanout and advised the property owner that the stoppage was within his property and that it is his responsibility to relieve the blockage. He reported that the property owner allowed C&R Drains to snake the sewer lateral in which C&R Drains hit an obstruction approximately 20 feet before the District's mainline. He noted that this instance was very similar to the June 17, 2015, SSO. He reported that C&R Drains pulled out wipes, toilet paper, and pieces of debris that appeared to be t-shirts and large rags from the sewer lateral. He stated that C&R Drains recommended CCTV of the sewer lateral, since it was found to be holding water. He added that C&R Drains confirmed that the private pump station was operating properly. He presented the District's first notice to the property owner that was mailed on March 25, 2021, and discussed the costs associated with the SSOs on June 17, 2015, February 25, 2021, and February 27, 2021. He presented the District's Engineering Department's letter requesting CCTV to show the condition of the sewer lateral that was mailed to the property owner on March 26, 2021. He reported that on April 6, 2021, the property owner called District Engineer, Mark Esquer, and stated that he refused to CCTV his sewer lateral because he believes that debris from the District's main line backed up into his private lateral causing the SSO and that he believes C&R Drains did not properly perform the work on February 25, 2021, which caused the second SSO on February 27, 2021. He stated that the property owner threatened to sue the District and demanded to speak with the General Manager. Mr. Carroll shared that he contacted the property owner on April 8, 2021, to waive the costs for the 2015 SSO because it occurred almost six years ago. He noted that he emailed the pictures of the incidents from C&R Drains to the property owner. He stated that the property owner suggested for him to visit the property to observe the pump. He reported that on April 27, 2021, the District's Finance Department mailed an updated notice that included interest and penalty charges and removed the back bill charges for the SSO on June 17, 2015. He shared that he met with the property owner and the property manager on April 30, 2021 and took pictures of the private sewer PUMP. He noted that the property owner provided his own pictures of the SSO incidents. He stated that the property owner claimed to have updated pump station maintenance records and a recording of C&R Drains' snake work but has yet to provide these items to the District. He reported that he emailed the property owner on May 4, 2021 informing him that the SSO was COSTA MESA SANITARY DISTRICT PAGE 7 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 30, 2021 caused by rags shredded from the private sewer pump, which were then caught or snagged within the lateral pipe. He stated that District staff believes that the lateral has an offset and is requesting a CCTV for District review. He shared that he also texted the property owner of the District's response on May 4, 2021. He stated that the property owner referred the issue to his construction consultant, John Hillerman, who will be conducting a complete investigation of the issue. He noted that he has yet to receive any findings from Mr. Hillerman's investigation. Mr. Carroll reported that the Finance Department mailed a third notice to the property owner on June 8, 2021, in which the District agreed to waive the interest and penalty charges if he paid within the next 30 days. He noted that the District did not receive a response from the property owner and mailed a fourth notice on July 8, 2021. He shared that the District has still not received a response from the property owner, which prompted District staff to schedule a public hearing. He stated that, in accordance with Operations Code, Chapter 6.10, the District has the authority for cost recovery and that Section 6.10.030 allows the responsible party to receive notice and due process before the District decides to place unpaid charges on the property tax roll. He shared that on July 15, 2021, a co -occupant residing at the owner's official residence accepted the notice from the District and presented the District's proof of service. He noted that he also texted and emailed the property owner on July 22, 2021 with a copy of the notice and proof of service. He reviewed the attachments of the staff report. He stated that he emailed the draft staff report to the property owner on July 25, 2021. He shared that C&R Drains, the District Engineer, and the District's Wastewater Maintenance Superintendent are available for questions. Mr. Burns requested for the record to state that the sewer spill needed to be cleaned immediately by C&R Drains and that the District charges were reasonable. Mr. Carroll stated that, after a sewer blockage is addressed, the District or C&R Drains is responsible for cleaning the sewer spill. He shared that C&R Drains' charges for responding to sewer spills are reasonable. He noted that the District always allows property owners to utilize their own plumbers for sewer maintenance. He stated that the property owner instructed C&R Drains to proceed with their services. COSTA MESA SANITARY DISTRICT PAGE 8 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 3% 2021 Mr. Burns asked Mr. Carroll if the bill from C&R Drains is reasonable. Mr. Carroll confirmed that he finds their bill to be reasonable and that the bill was paid by the District. There was no further discussion. Action: 5.Owner's Presentation The owner was not present. Action: 6. Concluding Comments Vice President Scheafer inquired about Exhibit 11 of the staff report. Mr. Carroll stated that Exhibit 11 depicts wipes in the property's private pump station. Vice President Scheafer asked if the wipes indicate that the private pump station is not maintained on a regular basis. Mr. Carroll stated that he cannot confirm if that is the case because he has not reviewed the property owner's maintenance records. He stated that, according to C&R Drains who did observe the private pump station, it appears to be working properly. He clarified that the District believes the offset in the sewer lateral caused the SSOs. Vice President Scheafer inquired about the offset. Mr. Carroll stated that an offset refers to a crack in the sewer lateral. Wastewater Maintenance Superintendent, Steve Cano, stated that an offset can refer to lateral joints that have been disconnected. Vice President Scheafer inquired if the property owner is claiming that debris from the District's main line entered his private system, which then caused the SSOs. He also asked if the property owner has been proactive in addressing these issues with his tenants. COSTA MESA SANITARY DISTRICT PAGE 9 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 30, 2021 Mr. Carroll stated that he is unaware if the property owner has discussed these issues with his tenants. Mr. Esquer stated that the property owner tried to explain to him that debris from the District's sewer line travelled into his private lateral, which resulted in a blockage. He presented a rough diagram drawing of the area. He explained how private sewer laterals are connected to the District's system. He noted that the District's sewer main is about 4 feet below street level. He stated that residential sewer lines are connected to the District's main line at about a 1-2% slope, so that residential sewage flows downhill into the District's system. He noted that the property owner has a private pump station connected to his private sewer lateral which flows by gravity into the District's system. He explained that District sewer mains are designed to only reach half capacity during times of heavy flow. He stated that the property owner contends that, during a period of high flow, the water level exceeded the pipe levels which caused solids to flow upward into his private sewer lateral. He noted that, even during periods of high flow, the water level does not exceed half capacity, which would make it difficult for any debris or waste in the District's system to travel upwards. He noted that, because C&R Drains examined the District's downstream manhole and noticed that water was flowing properly, there is no stoppage within the District's sewer main. Director Eckles asked if Mr. Esquer has ever witnessed a sewer main flowing upward into a private lateral. Mr. Esquer stated that he has seen SSOs stoppages caused by high water levels within a sewer main that resulted in water travelling upward into a sewer lateral. Director Eckles inquired if the property owner has submitted any evidence to justify their claim. Mr. Carroll stated that the property owner has not submitted any evidence. Director Eckles asked why the District did not initially issue a charge for the SSO in 2015. COSTA MESA SANITARY DISTRICT PAGE 10 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 3% 2021 Mr. Carroll stated that the District issued notices to the property in 2015, but failed to follow through to collect charges due to other pressing issues at the time. Director Eckles inquired about a current estimate of the charges issued against the property owner. Mr. Carroll confirmed that the property owner will owe about $1,300.00. He inquired if the Board has the authority to approve applying the 2015 charges to the property owner. Director Eckles asked Mr. Burns if it is legal to apply the 2015 charges. Mr. Burns stated that the 2015 charges exceed the three-year statute of limitations and cannot be applied. He confirmed that the penalty charges are specifically authorized by the Health and Safety Code. He noted that, if the charges are approved, then the District will present a resolution or some form of memorialization before the charges are placed on the property tax roll. He added that, once placed on the tax roll, the charges will also incur interest until they are collected. Director Eckles inquired if the Board could vote to assess the current charge of $1,149.87 without the additional fees included. Mr. Burns confirmed that the Board can vote to assess only the current charge of $1,149.87. Secretary Schafer inquired if the District should communicate this issue to the seven units within the apartment complex. Mr. Burns stated that it would be appropriate to send notices to the tenants, but noted that it is the property owner's responsibility to respond to the issue. He stated that the Board has the ultimate authority to disconnect properties from the sewer system for failing to comply with District regulations. Director Perry asked about the deadline to apply the charges to the tax roll. COSTA MESA SANITARY DISTRICT PAGE 11 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 30, 2021 Mr. Burns stated that the deadline is August 10, 2021. He noted that the District will have to wait until next year to add it to the tax roll. Director Perry inquired if the District should grant the property owner the opportunity to pay the charges before they are placed on the tax roll. Mr. Burns stated that, if the Board confirms the charges, then the property owner will be provided a copy of the resolution. President Ooten inquired about C&R Drains' response to the first incident in February 2021. Mr. Carroll stated that he is unsure as to who called C&R Drains, but noted that the incident occurred outside of District operating hours at 11:30 p.m. President Ooten highlighted that the property owner has not provided which sewer professional advised him that the District's main line was the issue. Discussion followed regarding the wording of the staff report. Mr. Carroll clarified that the property owner finds the District to be at fault because they did not continue to address the issue after the SSO in 2015. He reiterated that the District did not follow up with the property owner after that incident due to other pressing issues. President Ooten reviewed the details of the case and stipulated that it is unlikely for a private pump station to shred large rags and pieces of debris. He noted that large rags have a greater tendency to clog a pump. Secretary Schafer asked for Mr. Burns to review the Board's options for assessing this issue. Mr. Burns stated that the Board has the option of determining whether to confirm the charges and whether the District responded appropriately. He added that the Board must confirm whether the charges are reasonable. He noted that the Board would direct him to present a resolution that would memorialize the Board's findings and determinations. He stated that the resolution would be formalized and sent to the property owner who would have approximately 90 days to challenge the decision. He added that there COSTA MESA SANITARY DISTRICT PAGE 12 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 30, 2021 would be a short hearing next year before the charges are placed on the tax roll. Director Eckles asked if the Board could vote to grant the property owner 60 days to pay the charge of $1,149.87. Mr. Burns confirmed that this is an option for the Board. He noted that, if approved, then he will incorporate that language into the resolution. Mr. Cano added that, when the District responds to sewer calls during or after operating hours, the first procedure is to examine the District's sewer line to determine if it is a District -related issue. Mr. Burns asked Mr. Cano to state his position with the District and his credentials. Mr. Cano stated for the record that he is the Wastewater Maintenance Superintendent for the Costa Mesa Sanitary District. He listed his credentials, which include Grade 4 collections, Grade 1 environmental, Distribution D2 and T2, National Association of Sewer Service Companies (NASSCO) certified, and California Water Environment Association (CWEA) Santa Ana River Basin Section (SARBS) committee member. Vice President Scheafer confirmed that the District is only issuing a decision for the property owner and not the tenants of the apartment complex. He stated that he is more inclined to include the interest and penalty charges to the overall charge because of the property owner's lack of cooperation and responsiveness. He noted that the property owner's inaction has resulted in an increased use of staff time and resources. Director Eckles stated that he does not disagree with Vice President Scheafer. He noted that his intent was to expedite the payment from the property owner. Discussion followed regarding the property owner's propensity to pay the charges. There was no further discussion. COSTA MESA SANITARY DISTRICT PAGE 13 MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING HELD JULY 30, 2021 Action: 7. Public Hearing Closed The public hearing was closed. Action: 8. Board deliberates and renders its decision, directs District Counsel to prepare confirming resolution Motion: To approve the charge of $1,320.86, plus interest and penalty charges, with an option for the owner to submit payment within 60 days or it shall be placed on the next available tax roll, and to confirm that a resolution shall be brought back to the Board for approval. Motion by Mike Scheafer, second by Art Perry Final Resolution: Motion Carries, 5-0 Ayes: Arlene Schafer, Art Perry, Bob Ooten, Mike Scheafer, Brett Eckles D. CLOSING ITEMS Procedural: 1. Adjournment AfTene Schafer Secretary President