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Seniors’ homes called commercial property, owners become violators

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image It was these two water meters in front of a house on Council Drive, Dan Martis points out, which set in motion events leading to an expensive headache for retirees in one small Sun City Center home owners association.

Much to the surprise of their retiree owners, 14 single family homes here have been labeled commercial property.

By MELODY JAMESON

SUN CITY CENTER – Much to the surprise of their retiree owners, 14 single family homes here have been labeled commercial property. And, the shocked seniors living in them therefore are alleged to be violating county regulations mandating an expensive but questionable backflow device.

This action by Hillsborough County’s Water Resources Department has raised several thorny issues, including the possible illegality of retroactively enforcing an ordinance.

Some of the affected homeowners — officers of their association - met early this week to discuss aspects of a situation now bearing a $5000 price tag about which they had no knowledge, received no forewarning of, had no reason to anticipate and have not prepared to meet. Quoting Thomas Jefferson, they agreed that “when injustice becomes pervasive, resistance becomes a duty.”

The matter came to light in mid-January when a WRS “water distribution safety” inspector served a “Notice of Inspection” that the property at 1601 Council Drive “is out of compliance with Ordinance 03-6 and corrections are required to bring the property into compliance.” The inspector’s report said the property violates Hillsborough’s backflow prevention ordinance because no assembly to stop possibly contaminated water from flowing back into the main potable water supply was installed on the property’s domestic water line. The irrigation water line, carrying potable water too, also was found to be without the required device.

If the Council Drive property were the only one involved, the inspection and resulting alleged violations would be insignificant. Hillsborough’s Board of County Commissioners imposed a moratorium on residential backflow citations almost two years ago when Florida’s Department of Environmental Protection began rewriting the applicable state code. Hillsborough, like other Florida counties, has been waiting for the state regulation regarding residential sites to be established before bringing county ordinance into line with it. In the interim, the county has been citing only violations found on commercial properties.

But, the Council Drive property, while the long-time home of the Brewer family, also is the location of two master meters recording house and irrigation water usage by 14 homes in the Skyview Homeowners Association. And WRS now is classifying groups of homes on a master meter as commercial sites under its interpretation of the ordinance provisions. The HOA and its 14 homeowner members are actual recipients of the non-compliance notice.

The department is relying on provisions of the ordinance, now in its third version since originating in 1994, which consider five or more residences together on a single meter a commercial property. It is an interpretation that is emphatically disputed by others.

The Skyview HOA was given 90 days from the January 13, 2012, date of notice or until April 12 to come into compliance. If compliance is not made, the ensuing process involves issue of a citation by the department which can be appealed. If an appeal is lost and compliance still is not made, the ordinance allows levy of a fine or cut-off of water service or jail time or a combination of the penalties. No such penalties ever have been pressed by the county.

On February 27, at the quarterly meeting of the county’s unsalaried volunteer cross connection control advisory board, Dan Martis, president of the Skyview HOA, sought answers to members’ questions. He wanted to know, among other things, how an ordinance first written in 1994 could be applied to homes built and plumbed in the 1960s - 30 years earlier. Should not the Skyview HOA houses be “grandfathered in,” he asked.

The water department personnel, commercial plumbers and others that comprise the board listened politely to his overview of the HOA’s positions, Martis said this week, but were of little help in assisting his membership toward a workable resolution of their dilemma.

That dilemma, he added, includes paying for a backflow prevention device installed on the potable water line that serves the 14 homes in the HOA which has been estimated to run about $5,200.

That figure sounds “a little on the high side,” Rich Cummings, a water services manager, told The Observer this week during discussion of the situation. Plus, he indicated, something might be worked out if the HOA cannot handle the backflow device installation all at one time, no matter what the cost.

Beyond that concession, though, Cummings was adamant that the collection of private homes in the HOA constitutes a commercial site and that it currently is in violation of the prevailing ordinance.

Asked how the Skyview HOA got onto the WRS inspection radar, Cummings suggested that an inspector may have been driving the street, noticed no water meters in several yards but then found a yard with two meter vaults, signaling several homes served by the same water line running through a master meter. The inspector recognized it as a qualified commercial site under the ordinance and proceeded to conduct an inspection, Cummings posited.

When asked if the Skyview HOA is one among others or the only such collection of private homes on a master water meter in the retirement community to be inspected for ordinance violation, Cummings replied that he did not know and that research would be required to determine the answer. A cost would be attached to such research, he added, estimating it to be in the $200 range. “And you probably wouldn’t like it; it wouldn’t be what you’re looking for,” he noted.

Then, when it came to the issue of enforcing an ordinance on properties built long before the ordinance was enacted, Cummings seemed to contradict his own support of the WRS inspections and the department’s interpretations of county ordinance.

In a written statement to Martis two weeks ago, Cummings himself wrote that “Implementation of Ordinance 03-6 is not retroactive. The Ordinance, and its predecessor Ordinances, only require installation of particular devices from the effective date of the Ordinance forward.”

In addition, it has been widely established in cases and courts around the country that municipal ordinances are effective from the point of enactment forward; they are not legally enforced on a retroactive basis or applied after the fact to situations occurring before enactment unless they contain specific language embracing retroactive enforcement. Hillsborough’s ordinance contains no such statement.

Based on Cummings’ written remarks, it would seem the Skyview HOA composed of homes built and plumbed decades before the ordinance was drafted the first time is not subject to the ordinance today, said Dave Brown, SCC resident and long-time community advocate who has strenuously opposed Hillsborough’s mandated backflow devices. He also is a citizen member of the cross connection control board.

Brown, who attended the HOA officers’ meeting this week, emphasized, too, that typically “Commercial premises means premises where there is a multi-family apartment building or condominium or a business enterprise.” Since the Skyview HOA does not include any apartments or condos or townhomes and none of the members is conducting a public business on any of the property, their homes do not qualify as a commercial site according to typical definition, he suggested.

Brown also asserted that the Hillsborough County Health Department has never once recorded a single incident of sickness attributed to backflow contamination and that no one ever has died in Florida due to a backflow incident. On the other hand, he added, “the most common cause of an unintentional backflow incident is when a county fire truck pulls water from a hydrant and creates a vacuum that draws water from a house back into the main water lines.” County fire hydrants do not have backflow valves.

The advocate, who repeatedly has demonstrated the vulnerability of the RP backflow valve that county ordinance mandates, also pointed to the ease with which a valve can be opened and a toxin added to the potable water supply which WRS is obligated to protect yet jeopardizes by requiring a faulty device. “The valve that Skyview HOA is being forced to install violates a number of federal and state terrorism and water quality acts because it provides direct access for contamination of the public drinking water supply,” he said.

Cummings responds to Brown’s assertions by noting that the danger of developing health problems exists “in the private property area” after water has left the closed public distribution system which “is safe and secure because utilities have legal and sanitary control of the system and the end product.”

As for potable water contamination through a fire hydrant, the WRS manager pointed out that “maintenance personnel and firemen are authorized, trained and licensed to know how to properly use a hydrant.”

Martis, a retired law enforcement officer, said this week he can see no imminent danger to anyone in the Skyview HOA through the existing water supply system. But, he added, the HOA officers would seek formal bids for the backflow prevention that WRS is demanding.

 On the other hand, he indicated, the group would not be in a hurry to install something so expensive that seems so unnecessary since the HOA is only a collection of small 50-year-old neatly kept homes on a quiet street in a senior community far outdating the ordinance being used to label it.

The Observer also contacted four county commissioners who represent Sun City Center for comment on the matter but received no responses before publication deadline.

Copyright 2012 Melody Jameson

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