Tension Continues Between Clarion Borough Council & Storm Water Authority
The situation began as Council initiated a proposal to adjust the policy for Public Storm Water connections which essentially would make “Commonwealth entities” exempt from paying indemnification to the borough for any storm water issue that may occur during connection or repair.
“Can I get a clarification on what the revisions to that are? Considering we already have a policy for connections,” council member Benjamin Aaron–who also serves as the chairman of the Storm Water Authority (SWA)–asked.
“There are two revisions. We added a repairs and modification agreement, which we clarified that, basically,” Public Works foreman Todd Colosimo replied. “The second big (revision) was that Commonwealth agencies are no longer, if this policy is approved, required to indemnify the borough in an agreement.”
“Was an alternative sought for that?” Aaron asked. “Because we had a reason for anybody connecting to indemnify the borough. I get that, by law, Commonwealth agencies can’t sue that, but was an alternative to that sought out? Or are we just giving that up so that (Commonwealth agencies) can do their project? It’s a special exemption.”
At that point, the council allowed Solicitor John Marshall to respond. Marshall attended the meeting via telephone.
“The issue is that the only customers that we would be exempt from the indemnification provision would be governmental agencies that cannot waive their sovereign immunity,” Marshall explained. “In other words, the state–by constitution and by statute–has limited when the state can be sued. Storm water is one of those issues where they cannot agree to waive their right to immunity from a lawsuit, and that would include contractual revisions with the borough that would require indemnification that could be seen as a waiver to their statutory immunity from a lawsuit.
“That was the sole purpose for a change in the policy. It was to accommodate those agencies, like the state universities and other institutions like that, from having to waive that issue to connect to our system. It does not impact monthly fees that the borough believes they’re required to pay.”
“So, if we were not to remove that provision from our policy, we would not be able to approve their project?” Aaron asked, to which Marshal agreed.
During voting, the motion passed 4-2, with Aaron and council member Rachel Roberts voting against it.
Next, the council subsequently moved to approve the storm water authority agreement between the borough and Pennsylvania Western University for the purpose of making two connections to the public storm water system on North First Avenue.
Again, the motion passed, but this time 5-1 as Roberts voted for and Aaron against.
Immediately following the votes, the SWA was slated to give their monthly report as part of the agenda, which gave Aaron the chance to offer a formal request on the authority’s behalf.
The request would deny a property owner their right to decide if a tree is put back into the right-of-way area after it has been removed by a contractor or the borough during a storm water project. Aaron and the SWA formally requested that the contractor be required to put that tree back, regardless of whether the property owner wants it.
“If a contractor is going through and a tree is being pulled out, we’re asking that it required that it be put back the way it was, including planting any trees that may have existed,” Aaron said.
“To me, that sounds like we’re just telling people what to do,” council member Keaton MacBeth added.
“No, we’re not telling people what to do,” Aaron interrupted.
“Excuse me, if they want to take the tree down the next day, that’s such a waste of money right off the bat,” MacBeth fired back.
“If the property owner doesn’t want the tree put back, then okay, that should be up to the property owner. I know we have a grass-cutting ordinance in the borough. It’s a little different to tell someone to take pride in their property and make it look decent. It’s another thing to say, regardless if you want (the tree) or not, here it is,” MacBeth continued.
“Actually, that strip of right-of-way is not included in your property,” Aaron stated. “That’s public property. The property owner is obligated to maintain it but had that project not gone through, (the tree) would still be there. So, if they wanted to, they could cut it down at any time.”
At this point, council member Brenda Sanders-Dede intervened.
“I know in previous projects, the homeowner is asked whether or not they want the tree put back in. Can we not do the same thing?
“Why can we not ask them if they want it put back in or not? Time, effort, all those things are included. Why put it back up if they don’t want it?”
“Again, it’s not their property,” Aaron said.
“But they’re in charge of maintaining it and I think we leave it up to the property owner,” MacBeth said.
“Correct, and if it came through my place, where do we stop it?” Aaron asked. “Do I get to say whether I want them to put the sidewalk back in if they had to remove it because I don’t want to maintain the sidewalk and be financially responsible for replacing it someday if the borough says it needs replaced?”
“A sidewalk is a little different than a tree,” MacBeth responded.
“Nope, same thing,” Aaron snapped back. “That’s all we’re asking. It’s a request from the Storm Water Authority. If you’re against it, you’re against it.”
After a brief awkward silence, Roberts stepped up and concluded the topic.
“We can discuss it when it comes time to change the ordinance note. That’s all he’s asking.”
No action was taken on the request by Aaron and the SWA.
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