County questions sewer decision - The Explorer: Pima Pinal

County questions sewer decision

Town officials confident ruling will hold

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Posted: Tuesday, September 9, 2008 11:00 pm | Updated: 8:04 am, Thu Mar 24, 2011.

Town officials confident ruling will hold

Pima County attorneys are trying to delay a final decision in the lawsuit with Marana concerning the area’s wastewater system, something that could affect the direction of the case.

The two sides are fighting in court over which parts of the sewer system belong to whom in the wake of the dissolution of an agreement between the two jurisdictions.

On June 11, Judge Kristin Hoffman ruled in Maricopa County Superior Court that Marana owns the non-flow-through portion of the sewer system, has the right to operate a sewer system, and that the county has no right to provide sewer service within Marana without the town’s permission.

The recent development came about when Marana attorneys requested the June decision be finalized.

“Essentially what ended up happening is the town asked the judge to finalize the June ruling by giving us Rule 54(B) language, which makes it a final judgment,” said town attorney Frank Cassidy. “When we asked for that, Pima County asked for reconsideration and asked for leave to amend its answer so that they could add a counter-claim and a couple of defenses.”

On Aug. 8, the county asked the new judge, J. Kenneth Mangum, to reconsider the third aspect of the ruling, relating to the county’s right to operate sewer services within the town. The county also voiced opposition towards finalizing the June judgment, and asked for a leave to amend an answer.

Pima County’s main argument is that when Marana asked for partial summary judgment in the case, the town did not ask for the judge to rule on the county’s right to provide sewer services in Marana.

“Pima County was unaware that Marana would ask this Court to issue a ruling that Marana is authorized and entitled to run its own wastewater treatment utility,” according to court records filed by county attorneys.

The tactic is called a horizontal appeal, in which instead of filing through the court of appeals, a party will try to get a newly assigned judge to reverse a previous decision.

If the county is successful in getting the judge to deny finalization, the case will proceed until all points are argued.

“If the 54(B) judgment is entered, that’s a final judgment and that is important because it triggers their right to appeal. If the court does not issue the final judgment, it will stay at the trial court level,” said Doug Metcalf, an attorney who is arguing the case on behalf of the town.

If the decision is finalized, the county will have the opportunity to take the matter to the court of appeals, regardless if the original lawsuit has been resolved. That decision to appeal lies with the Pima County Board of Supervisors, said County Administrator Chuck Huckelberry.

In reconsidering the county’s ability to operate a sewer system within Marana, county attorneys cited a state statue that allows counties of a certain size to purchase, construct or operate a sewer system.

The statute also states that the county must have a population between half a million and a million according to the most recent U.S. Census. Because Pima County is on track to surpass 1 million residents by the 2010 census, this leaves two years for the county to continue with this right.

The small window is of less concern to Huckelberry than the establishment of a new precedent for counties that fall within that population range.

As counties are not named specifically in this statute, the finalization of the decision would alter the ability to provide sewer service for all counties within the population range.

The county further argues that finalizing the permission-from-the-town aspect of the ruling also affects the Ina Road Regional Wastewater Facility, which is in Marana town boundaries, but operated by the county.

Neither side has any indication on when the judge will make a decision on finalizing the June decision.

Ownership of the Marana Wastewater Treatment Facility to the west of town is the one area of the lawsuit still up in the air.

In July 2007, the county designated the sewer plant and the surrounding area as a park, meaning the county would have to give permission before it is annexed.

That December, the Marana Town Council voted to annex 526 acres, including the treatment facility.

Attorneys for Marana have argued that the county’s maps of the park do not include the treatment plant, while the county contends that the wording in the park’s legal description includes the plant.

Wastewater lawsuit timeline

July 11 – Marana dissolves an agreement with Pima County regarding the ownership of the Marana Wastewater Treatment Plant.

July 24 – The Pima County Board of Supervisors creates the Anza Park, which includes the treatment plant.

Oct. 17 – Marana files suit against Pima County alleging that dissolving an agreement with the county means the sewer plan belongs to the town.

Dec. 4 – The Marana Town Council votes to annex 526 acres, which includes the Marana Wastewater Treatment Plant in the Anza Park.

Dec. 5 – Marana’s lawsuit gets moved from the Pima County Superior Court to Maricopa County.

Dec. 20 – Pima County files suit against Marana claiming the town must ask permission to annex the area the sewer plant sits on because the county designated the area as a park.

March 24 – The county’s lawsuit get moved from the Pima County Superior Court to Maricopa County.

June 11 – Judge rules Marana owns the non-flow-through portion of the sewer system, has the right to operate a sewer system and the county has no right to provide sewer service within Marana without the town’s permission.

July 17 – Marana asks for Rule 54(B) language, which would finalize the June decision.

Aug. 8 – County files opposition to Rule 54(B), arguing that finalization should wait until the end of the case as well as asks for time to amend its answer.

Aug. 29 – Town files opposition to county’s request.

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