Situation still unclear on requested sewer variance

The Hill County Health Board met Tuesday to continue their discussion regarding a variance that Mike Winchell, owner of Lodestar Land and Home requested at a meeting with the board last week, and ended finding out it has no authority on the issue.

But, after the meeting officially ended, Hill County Attorney Karen Alley said she had just received some information that could change the situation for Winchell.

The variance would allow Winchell to build a septic tank on a property he recently developed instead of connecting it to the City of Havre’s sewer system, which he said, has become economically infeasible due to the house’s proximity to the main.

The meeting opened with Hill County Sanitarian Clay Vincent saying that there has been a procedural miscommunication during the process that makes the health board legally incapable of making a decision in regards to this proposed variance.

He said he consulted with Alley, who said that any variance that could be granted to Winchell’s property would need to have been requested during the subdivision process and once that process is finished the agreed upon stipulations would need to be met regardless of economic feasibility.

Vincent said that because the decision was made during the subdivision process of Winchell’s property that the house would have to connect with the public sewer line that he had to meet that requirement.

“(Her legal opinion) said the health board should not be involved at all, period,” he said. “These are subdivision rules, the variance would need to be approved prior to the subdivision being granted.”

But after the official adjournment of the meeting while Winchell and board members were still discussing the issue, Alley interrupted to say that she just received a more definitive answer on the legality of the situation from a land-use attorney she had been consulting with.

She said there is a process for amending a subdivision if the final plat has not been filed, by submitting proposed changes and essentially beginning the subdivision approval process over again.

There was some confusion over whether the plat filing for the subdivision in question was submitted in proper order, and she said, she needed to look at further paperwork to get clarification about the situation, but she said, she would write a legal opinion and submit it to the Hill County Commission.

Three people attended the meeting and two spoke in favor of granting the variance.

During the meeting, Winchell said he was provided incorrect information on the proximity of the sewer system by the City of Havre which meant he would need to construct a lift station for the property which would be far more expensive than he originally planned.

Havre Public Works Director Dave Peterson said the foundations of the house Winchell built on the property were already in place when the information was requested.

Winchell said he’d already admitted his mistake, but his responsibility for that mistake has no bearing on the current situation he’s facing.

“I understand that, I’ve already admitted my fault that I did not measure that,” he said.

Winchell said there is still an exemption that allows him to legally put in a septic tank if connecting to the main was economically infeasible.

Vincent and Havre Public Works Director Dave Peterson said the agreements made during the subdivision process make that exemption legally inapplicable.

Winchell said he had received quotes on what hooking into the sewer system would cost him and he said those quotes prove that the project fits the definition of economically infeasible and he is therefore exempt.

Peterson and others at the meeting said there are cheaper alternatives to the specific system that Winchell got a quote for that would be legal.

Winchell said their proposal was barebones and impractical.

“I could just let the sewage run out on the ground too, there’s a lot of minimal options,” he said.

Vincent and Peterson said that that would be illegal.

Winchell said he doubted the information being provided by Vincent and said because no one on the health board is an expert on legality, a judge would be needed to sort it out.

“I feel like that’s incorrect. I feel like you are providing inaccurate information, but the only way to find out it to go to court and have a judge decide,” he said.

Winchell said it seemed ridiculous that there was no way to make changes at this point in the process.

“At no point in developmental history has anything arisen where someone said, ‘Oh, we can’t follow this as planned?’” he asked.

Vincent said that would be a question for an attorney because the health board just doesn’t have a say in the process.

“So, I guess the next question is, what if I put in a non-permitted septic?” Winchell asked.

Vincent said that would likely result in a court case that would just incur legal fees on Winchell, only for him to have to hook into the system anyway.

Peterson said there are other subdivisions in town that illustrate why these rules are in place.

Winchell said it is an apples-to-oranges comparison and therefore irrelevant.

He said it felt like members of the board are deliberately trying to complicate the process and make things more difficult.

“Why the resistance?” he asked, “From an outside perspective, it seems to me that people are intentionally trying to cause me financial harm.”

Vincent, Peterson and others at the meeting said they were not in against Winchell’s project in principle or him personally, but that they have no authority to make a decision in this matter and the current understanding of the rules necessitates that he follow through with what was stipulated in the subdivision agreement.

Winchell questioned whether Alley put in work to prevent this variance from happening.

“The only initiative that has been taken to allow me to put in a sceptic and a drain field is by myself, not a commissioner, not anyone on the board,” he said, “I mean how much time did our county attorney put into researching ways to restrict me from doing so, and how much time did she put into finding a solution?”

Alley said she’s consulted with previous attorneys including experts in this area of the law and took a substantial amount of time to figure the situation out.

Winchell asked if the planning board could meet to get this situation sorted out.

Vincent said that board only makes recommendations, and he doesn’t know how one would legally reverse agreed upon stipulations in the subdivision process after the fact.

Winchell asked why the health board is not helping him remedy his situation.

Hill County Commissioner Diane McLean said time would be better served trying to find a next step of the process for Winchell, but said this is ultimately a legal matter and the health board as a body can’t really do much in this situation.

“I don’t think anyone here is against you,” she said.

Board Member Erica McKeon-Hanson made a motion to adjourn the Board of Health Meeting based on the understanding that have no authority over the matter at hand, Hill County Commissioner Mark Peterson later seconded the motion which passed unanimously.

“Can we adjourn something that has absolutely no direction?” Winchell asked.