Residents in College Acres strongly opposed being annexed into the city, asking the Butler County Commissioners for their help, during a county commission meeting Tuesday evening.
“What we want to talk about is the consent order, which is called an administrative order, issued by the Kansas Department of Health and Environment,” said Will Johnson, county administrator.
Those attending had been presented a timeline of the steps of the process.
The process started in 2006, when the state required a study of the sewer district in order to renew the district’s permit.
Then in 2007, the state deemed it feasible to connect to city services and the county began discussions with the city at that point. That decision was made because of their proximity to city services and not because they were out of compliance.
The biggest deadline in this timeline was a Sept. 1, 2008 deadline to have the development connected to city sewer, which was extended from the original March 8 deadline. The current lagoon must be abandoned and the area restored to current area contours and state statute by Sept. 1, 2009.
“Failure to comply with their administrative orders results in a $10,000 per day violation,” Johnson said. “I have personally seen it once happen in this county.”
That was in Potwin about eight years ago when they received a fine for one day before complying.
“They have taken a pretty heavy-handed approach,” he said. “Their policy is they do want to connect this to the city on or before the first of September. Shall we not comply with it, those costs shall be borne upon the sewer district. I don't know if the KDHE is bluffing. I don't take this administrative order very lightly because I don't see this very often.
“This leaves the homeowners, Sewer District 8 and county with pretty limited options.”
Although the county can ask for an administrative hearing within 30 days of the notification, Johnson didn't think the KDHE would change their stance.
“We've been discussing this with them for a year and a half now,” Johnson said.
The biggest concern for the residents was the annexation the city was going to require in order to hook them on to city services.
“The city did consider annexation, but since the pretty adamant response from citizens they did not move forward with annexation,” he said. “The city is not going to move forward with service without annexation. The county can't force them to do anything.”
The city has offered to help with some of the cost by helping do some of the work to extend the sewer. While the county engineer's estimate was around $100,000 for the sewer extension, the city felt it could do it internally for about $50,000, said Johnson.
But that still leaves the issue of annexation.
“The commission is left with the option that we as the commission ask the city to unilaterally annex the property, or do the residents ask to be annexed, or the citizens fight this and take the chance of a penalty from KDHE,” he said. “We hate to be forced into a corner in any situation, but we have been forced into a corner with the Department of Health and Environment and we have to come up with a response. The only response I see is to work with the city on annexation.”
But the residents still did not want to be annexed and wanted to try to find a way around it for a number of reasons.
Part of that reason was the increase in taxes.
The mill levy before annexation was 120.296 mills, and after annexation it would increase to 152.346, creating a 27.11 percent increase in property taxes. That averages out to about a $525 to increase per property.
One thing Johnson said to consider was if the lagoon were to stay there, it would need some work done in the future because it is about 30 years old.
“In the future it is going to have to be dredged and have some bank work,” Johnson said. “There is some leaching on the south bank of the lagoon.
“It's not going to offset the annexation cost, but to not say there is going to be any cost with this system, there is going to be.”
During the meeting, residents voiced their concerns.
The first to speak was Darrel Erikson, who has kind of been the spokesperson for the 14 homeowners, 11 of which were in attendance.
“We are 100 percent opposed to annexation for a lot of reasons,” he said. “The city commission, when they made the motion, they did not say that we could not hook up their their sewer system. They said they didn't want to annex us. There was no motion made for annexation and/or attachment to the city.
“Secondly, I don't know, but I don't think the prison is in the city limits and I don't think Prospect is, but they are on the city system,” Erikson said. “The only place [in College Acres] adjacent is one little pinpoint at Boyer Road and Towanda. About 99.9 percent of that area is rural.”
He said they like their lifestyle in the country.
“We like to be able to go out and build a bonfire,” he said. “In fact, we can have up to two horses. We like to be able to go down and shoot some ducks off that pond or some snakes or turtles out of the pond. I don't like having to pay $600 more a year and for what? Nothing that I can see for being annexed into the city.”
He also didn't feel the reason for annexation was valid.
“For most cases, the reason is to control orderly development of an undeveloped land,” Erikson said. “We have 14 homeowners out there that I don't think is going to grow. The bottom line is we do not want to be in the city of El Dorado. I think the best option is to utilize the facilities of the city without annexation. There's no reason why we can't. You know, all they have to do is say 'I move we make an exception to that ordinance.'”
The commission wanted further input though.
“So what action, with the order in place, would you like to see this board take to meet the Sept. 1 [deadline]?” asked Dan Woydziak, commission chair. “That's the quagmire we're in and I’m really looking to you folks for input.”
Erikson responded they wanted to utilize the sewer system without being annexed.
“We really don't have the authority to serve you without annexation,” Woydziak said. “The total cost of whatever penalties will be borne totally by you 14.”
“Maybe you approach them and say 'We have to be able to attach to the city,'” Erikson suggested.
“We can request that, but if they say no, the only way we're hooking you on is annexation,” Woydziak said. “It's going to be up to the city if they want to alter their rules. I have no indication that will happen.”
But Erikson disagreed.
“I feel strongly four of the five commissioners would do that because four of the five did not make a motion last time,” he said.
Other concerns were voiced by resident Kimberly Blake.
“I think probably the solution that you're asking for is if you guys read their 13.6.050 rule on sanitary sewer districts,” she said, “which we are a rural sewer district, No. 8. Their argument is that we're not rural, but in my opinion I am rural. In here, there are steps to let us attach to that sewer without being annexed into the city. That would be something you guys representing us as county homeowners that I would appreciate you looking at.”
County Public Works Director Darryl Lutz said it was still up to the city though.
“Well, this is in here for a reason,” Blake said. “We need help from our people who are supposed to represent us too.”
Woydziak said they could ask the city to do that.
“The council members were instructed they have no choice,” Blake said. “It's hard for us when we see there are options out here.”
Woydziak said they can send in a request.
“We can ask and beg, but it's ultimately their commission and their vote on whether they provide the service,” he said.
Blake also said they were surprised by these actions, which the commissioners said they didn't expect either.
They had expected to have a couple more years until their permit expired in 2011.
“It is very simple to hook on, like at the prison or Prospect, and charge you for hooking on,” said Commissioner Will Carpenter. “We thought that would be OK. I discussed with city commissioners at length about this and think what that resulted in was their decision not to annex you.”
Cliff Rogers asked if they could put their own septic systems in.
Johnson said that would not be allowed under current county codes without an exception being made.
“We've been turning those down left and right on less than five acres because of the sewer system,” Woydziak said.
Another question raised was about the right to request a hearing for an appeal.
“Can we do this and take this argument directly to the KDHE,” Jim Hatfield asked.
Johnson told them they could, but they would have to state specifically what is unlawful or unreasonable about the request from KDHE. That also would have to be requested by June 5.
“You stated that it's feasible,” Hatfield said. “I don't think it's economically feasible for the people in the sewer district. I think that's a consideration the government doesn't even care about.”
Johnson pointed out that their first step in the study had been to create a cost analysis to connect.
“You can argue that with them, but I think we would be wasting our time and efforts,” he said.
Hatfield then voiced another argument.
“Darryl mentioned the loss of privileges we have of living in the country,” he said. “I think that's a violation of the 14th amendment actually,” he said.
“That would be between you and KDHE,” Commissioner Randy Waldorf said.
Carpenter did sympathize with the residents.
“I agree with everything you guys have said,” he said. “I don't know what I would do if I was in that situation either. I guess it's your decision.”
Woydziak also pointed out when Prospect and the prison came on line that was several years ago.
“In El Dorado's defense on this one, it is not quite a unique policy for El Dorado,” he said. “That's pretty standard anymore.”
Resident Wade Graber summed up what had happened and pointed out they want the county to represent them before the city to not be annexed.
Woydziak said as chairman he would go to the city with that request.
Graber also pointed out that they have youth groups who have bonfires out there and worship down by the pond. Campus Crusade for Christ also uses the area.
“It is not only home, it is a place of ministry,” he said. “That is one personal thing we like.”
Waldorf also point out that he felt the city's thinking is that they are already receiving a lot of benefits from the city because of their proximity, including streets, school and parks.
“That's a legitimate argument,” he said. “They are providing the services.”
Carpenter also pointed out they pay the one-cent sales tax when they shop in El Dorado, which reduces property tax for residents, so there would also be some economic benefit.
Erickson was concerned though about upkeep of their streets.
“I will tell you right now when there is a snow storm we get up to go to work and our roads are already bladed off,” he said. “If we're annexed, I doubt seriously we will see another blade on that street. I am amazed at the lack of concern of elected officials on what we want.”
“The fact is something is going to have to change,” Waldorf said.
Darren Schwindt did thank the county because he felt they were trying to help them.
He also was curious as to where the city line would be drawn if they were annexed.
Woydziak said it would include the subdivision and they usually request the city take all of the streets, although the city would decide what would be annexed.
Schwindt was concerned they would start seeing a lot of accidents if there was a snow or ice because of the amount of traffic on their street.
Johnson told the group the city has been doing a new preventive measure.
“They're ahead of the county and township on this,” he said. “We're kind of envious of them.”
“Those guys are ahead of the game,” agreed Commissioner Mike Wheeler.
“I don't think we can assume the level of service will be less, especially with the safety concerns there,” Waldorf said.
Rep. John Grange also offered his thoughts on the issue.
“I think the proximity issue is a stretch,” he said. “I think that could be used as an argument.”
He felt a meeting with the city should go forward. He also questioned what was the real benefit to the city to annex the land.
“I'd hate to put off the inevitable and give the homeowners the inkling we're dealing with anything different,” Waldorf said.
He said they needed to find out when they could get on the agenda for the city.
Because of the mayor and county chair being out of town in June, the meeting was set for the July 7 City Commission meeting.
The county also will contact KDHE and request an extension as they work out the details between the city and the homeowners.
Mayor Tom McKibban also voiced some concerns.
“We've had some employees harassed by some people in this room, and we've really been turned off by that,” he said. “We protect our employees. You can contact the commissioners, but leave the employees alone.”
Woydziak agreed.
“The other thing we want you to realize is while we're listening to the 14 of you, we're listening to our 13,000 other citizens,” McKibban said. “There is another side to this.
“We just want this to be civil. Our commission is tired of being harassed. It doesn't do a bit of good. I was as shocked as you guys were when the city said 'We're not going to do it.' They got tired of it, of the constant harassment and especially one employee that got hit really hard (with harassment) several times.”
Carpenter made a motion to direct a member of the commission to convey the wishes of Sewer District 8 to the city commission on a date yet to be decided, which was approved 4-0. Commissioner Jeff Masterson was absent.
