Plains continues pursuit of property for new sewage treatment plant

The Town of Plains may be using eminent domain - the compulsory purchase of a property - in an effort to get the sewage treatment plant moved before the Clark Fork River overtakes it and puts it out of commission, which would have detrimental consequences for town residents.

Plains faced two hurdles before the sewage facility could be moved - funding for the project and land for a new site. The town received nearly $5.2 million in a Federal Emergency Management Administration (FEMA) grant in December, the largest of five grants it received that will cover the now $6.4-million project, said Plains Mayor Dan Rowan. 

The council looked at a handful of different types of treatment facilities and in February 2020 approved using an aerated lagoon with a continuous discharge, the same procedure currently used by the town. More than a dozen sites were looked at for the lagoon's new home, but some were either too close to the airport or were located on the opposite side of Highway 200, which would have made the project more costly, said Rowan. They dwindled it down to a handful of 10-acre sites, but the best piece of land was owned by Nick and Erika Lawyer, who were approached by town officials last March. The property, located one mile northwest of town, just west of the airport hanger complex, has been in the Lawyer family for 40 years, said Nick Lawyer, who bought the land five years ago from his mother and is in the process of putting a 53-home subdivision on it.

"We were open to the idea, but maintained from the start that we wanted to be fairly compensated for any taking that occurred," said Lawyer, who addressed the town council during the January meeting last Monday at City Hall. The town offered the Lawyers $186,450, which included $116,000 for damages done to the surrounding acreage, for the 10 acres, which Lawyer insisted is much lower than the property's value. The Plains attorney, Richard Gebhardt, who was at the meeting via video conference, said the town has no authority to offer more than the amount the appraiser, Stevens and Company of Missoula, came up with in August. 

Lawyer felt the resolution was too aggressive and he was not pleased that council was going ahead with Resolution No. 21-1, tilted "Resolution To Make Final Offer For Acquisition of Real Property For the Relocation of the Wastewater Treatment Facility and Eminent Domain," without council first sitting down with him at the negotiation table. Rowan has met with Lawyer several times about the project and said it's not the council's responsibility to negotiate. 

"Their original offer did not compensate us for the loss of our water rights, nor the loss of our ability to subdivide the property for residential use. Montana DEQ approval of the sewage treatment lagoon project would stop our project cold," said Lawyer. "We are telling the city they're trying to buy the property at well below its value five years ago, and that value has substantially risen as a result of our investment and work on the property since then," added Lawyer. The town's appraiser described the Lawyer property as "agricultural land," but Lawyer said he legally changed the property from agricultural to residential in 2017 to complete the first phase of the subdivision. He said he's already sold five of six lots. 

During the council meeting, Lawyer brought up other problems with the plans for the new treatment plant. He believes the town failed to properly research the use of a mechanical treatment plant as an alternative, which he said would have less impact on the town and is more secure in the event of flooding. Rowan said mechanical plants require less acreage, but are more costly, break down more, and require a full time technician, which means the town would have to hire another employee. Lawyer admitted he was no engineer, but said it's misleading to say the mechanical plant is more expensive, as stated by Shari Johnson, the town's engineer, who also attended the meeting by video. 

While the new resolution began with "...the Town of Plains is well aware of the imminent failure of its current wastewater treatment facility by the encroachment of the Clark Fork River," Lawyer stated that it's unknown whether or not the river will get any closer to the lagoon this spring. Rowan agrees, but said the window of opportunity is small and it would be a major problem if heavy flooding occurs this year. Rowan said they hope to start construction of a new facility this spring and have it operational by fall, but he said they'd like to have one cell in place by flood season in May. Johnson said that the Building Resilient Infrastructure and Communities grant is a new FEMA grant. "They chose the Plains Wastewater Treatment Plant project at a national level because they see the erosion by the Clark Fork River as an imminent threat to critical infrastructure that if lost will lead to health and safety threats to the community," she said.

But Lawyer was irritated that there were no substantial negotiations. Lawyer asked the council to postpone the resolution vote and meet with him. "We have been open to negotiate from the start. It's the town of Plains that has refused to negotiate, despite multiple invitations from us to sit and talk," said Lawyer. Despite his appeal, the council unanimously voted its approval and Rowan said the official offer has been sent to Lawyer's attorney. He said that if Lawyer rejects the offer and no other agreement can be made, it would go to litigation in district court. Lawyer doesn't believe the town has demonstrated the need to use eminent domain to take his property.

"We have 1,100 or more people in town who require somewhere for their sewer discharge to go and get treated. If our current lagoons are breached, we will have to shut down sewer services for the whole town, including the hospital and the school. We want to do everything possible to prevent that from happening, as quickly as we can," said Rowan.

Lawyer said that he doesn't want to see the town shut down, but doesn't believe he should personally have to pay approximately $800,000 in order to help the town of Plains solve this problem. "I like flushing my toilet just like everyone else," said Lawyer at the meeting. "I live in this town, I was born here, I understand the pressure they feel from the engineer and attorney to move forward on this project," said Lawyer. 

The Clark Fork River has been inching it way closer to the water treatment plant for more than 20 years. The river came within 85 feet of the lagoon's UV station in 2018, prompting the U.S. Army Corps of Engineers to be called in to place tons of boulders along the shoreline of the lagoon to save it. Though the property is not in the flood plain, according to Rowan, Lawyer said it flooded in 1948 and 1964. "It's very possible that this land could easily flood in the next 20 years," said Lawyer. "There are times that standing water is present out there. If they move to this location, we'll be right back at this same issue before long."

"We still hope to resolve this with a mutually agreeable solution," said Rowan, who wants to get it done quickly in order to move forward with construction.

"All the Town of Plains has to do is pay what the property is worth at best use," Lawyer said. "I wouldn't blame anyone for wanting that, and I feel justified in asking for the same. But I don't think it's fair that I'm being asked to give up so much value in order to make this project happen."