Owner cries foul over flushed sewer gallons
DOVER - Property and business owner Rich Caplan says he’s prepared to take legal action against the North Branch Fire District regarding their impending decision about whether to revoke sewage allotment gallonage from Caplan’s Dover Forge property at 183 Route 100, which houses his real estate and restaurant businesses. Caplan estimates that the allotment, which may be more than 6,000 gallons, is worth $250,000 to $300,000. Although the district has acknowledged they plan to revoke the gallonage — reference to it, as well as to a similar revocation from Michael Garber, appears in minutes for the Prudential Committee’s March 8 meeting — according to Caplan, to date, he’s received no written notice of the revocation or how many gallons are involved. He says he initially heard about the issue informally from someone who Caplan said may be facing a similar situation.
Caplan purchased the building in 2009. He says that before the purchase, he asked North Branch Fire District Administrative Manager Linda Holland how much gallonage the building had. “She told me 16,785 gallons,” says Caplan. “I said great, what’s the price per gallon? And I don’t know if it was $10 or $12, but I said wow, that adds significant value to the property. So I went through the process and I bought the building.”
Though the price of gallonage when Caplan purchased the building was $10 or $12, when the building was added to the sewer district in the 1970s, there was no requirement to purchase gallonage. “It was connected for just an application fee,” says Caplan. Nevertheless, the gallonage transferred to him when he took ownership of the building, and he says in his view it has real value.
According to Caplan, within the last two years he heard that the North Branch Fire District was having trouble with a lack of gallonage, so he offered to sell some of his back to the district. “They told me that because the property never paid for gallonage, it’s not worth anything,” says Caplan. “Which is complete bullshit, because if I have to go buy that gallonage it’s expensive.” The price today is $40 per gallon.
Caplan says that when he purchased it, the building, which had not been operational for a while, was not in good shape, particularly an upper hotel area. “There were squatters in the upper building, and the hotel was not something I wanted to get into,” says Caplan. “So I tore down the hotel rooms.”
It’s the gallonage associated with those hotel rooms that is now potentially to be revoked. “I’m in a pretty visible place, it was no secret I was tearing down those rooms,” says Caplan. “But at no time did anybody approach me and tell me that OK, if you tear down those hotel rooms you’re going to lose your gallonage.”
In 2015, after the hotel had been taken down, Caplan installed a tent structure in the yard of the property. Because the tent has a frame that stays up throughout the year, the town required him to get permits for a permanent structure. That permitting required a certificate of gallonage. “Which I got,” says Caplan. “And it says I have 16,785 of gallonage with my property.”
In addition to that documentation from 2015, Caplan says there was no mention of gallonage potentially being revoked at the time of his offer to sell back gallonage within the last two years. “Nothing at all,” he says. “No mention of that.”
According to Caplan, his current building uses about 10,000 of the originally-allocated 16,785 gallons. It was about six months ago when he says he heard, anecdotally, that another business owner had been told that Caplan’s gallonage had no value. Caplan says that when he asked Holland about it, she said, “The board feels you don’t have the (unused) gallonage anymore.”
“I said, ‘You’ve got to be kidding me,’” says Caplan.
He says he asked the committee for a special meeting to address the matter, which did not happen. The committee agreed to discuss the matter at its regularly-scheduled meeting on Thursday, May 17, which Caplan attended. However, committee vice chair Thomas Ferrazza said he couldn’t speak much to the issue because, since it involved legal issues, it needed to be discussed in executive session. Ferrazza said the decision was initially made based on statute.
“By state regulations, if the gallonage isn’t used for three years, it automatically comes back to the plant,” said Ferrazza.
Caplan said he hasn’t seen anywhere that if an existing structure is torn down, the gallonage goes back. Holland said the matter is referenced in 24 V.S.A. § 3625.
The portion of 24 V.S.A. § 3625 that references a three-year period addresses uncompleted construction, but does not specifically reference a previously-standing structure that has been partially removed. It reads in part:
“Capacity allocated under this subsection shall revert to the municipality if the capacity recipient has failed to initiate construction within one year of the issuance of the allocation or has failed to complete construction within three years of the issuance of the allocation. At the end of the three-year period, the reserve capacity associated with any unconstructed portion of the project, as determined by the legislative body of the municipality, shall revert to the issuing municipality unless that municipality has specifically required that construction proceed over a period longer than three years.”
At the May 17 meeting, committee member Karl Braunbach said he felt for Caplan but that he may want to seek legal counsel. “If it was personally up to me I’d say you can just have your gallonage,” said Braunbach. “This is a legal decision that will be made by attorneys. At some point if you want the gallonage, you might have to lawyer up. And it’ll be a legal decision split up between two attorneys.”
“If I have to lawyer up, I have no problem with that with this kind of money on the table,” said Caplan. “It’s not like we’re talking about a few bucks here. We’re talking about $250,000 to $300,000 of sewer value.”
The committee said it would have a written decision on the matter for Caplan within two weeks. As of press time, Caplan had not heard back from the committee.