Saugus selectmen hold off on appeal of I&I ruling

SAUGUS – Appealing a court decision that awarded four developers $758,000 plus interest to be paid from the town coffers is not, it appears, a cut and dry decision.The Board of Selectmen met Tuesday to debate whether it should appeal a ruling that said the town was wrong when it charged developers Kevin Procopio, George Georges, Peter Confalone and Central Street Realty an Inflow and Infiltration fee.Special Counsel Ira Zaleznik said there were issues with the final ruling that needed to be essentially appealed before the board made a decision on the actual ruling.The lawsuit was the result of an I&I fee that was imposed on all builders after the town was hit in 2005 with an Administrative Consent order from the Department of Environmental Protection. The ACO demanded the town clean up its sewer system and suggested one way to help fund it would be to start a sewer bank.The bank required builders to remove 10 gallons of wastewater from the sewer system for every gallon they planned to add. The cost rounded out to $3,300 per bedroom.The four developers paid the fee but noted that they did so under protest, calling the fee an unfair tax.The developers later filed a lawsuit seeking to reclaim their money and the court agreed with them.Zaleznik, however, said he plans to file at least two amendments to the judgment contesting the final cost and a remark that the sewer bank was not DEP-sanctioned.A judged ruled that the town not only pay back the $758,000 in fees but it figured interest as well. Zaleznik said he is contesting the amount of the interest.He is also contesting that the judgment called the sewer bank a policy adopted by the board as Sewer Commissioners but not one that the DEP approved.Town Manager Andrew Bisignani said the DEP absolutely approved the plan.”We didn’t do anything they didn’t approve,” he added.Once those issues are resolved Zaleznik said he expects the board will instruct him to appeal the ruling altogether.”Technically the decision is open,” he said. “The judge could change his mind based on the filings . . . I expect if the ruling stays as it is the board will file an appeal.”Selectman Michael Kelleher, like all board members, declined to speak after the meeting, however, he made his feelings clear in a memo he issued when he thought he would miss the meeting.In his statement he said he believes the court ruling was an error in that it rewarded 100 percent of the inflow and infiltration fees paid and he suggested the board appeal the decision.Kelleher said since the ACO requires the town to charge a minimum fee based on a 4-1 ratio as opposed to a 10-1 wastewater removal ratio, the award was at least 40 percent overstated.”We would be in violation of the ACO if we charged no I&I and subject to the penalties of the DEP,” he said.