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COLUMN

Homeowner: Something smells about government's land grab

Forced connection to sewer is unconstitutional, he argues

Tuesday, October 30, 2012 - 12:01 am

The way Victor Whitlock sees it, he's the last holdout against an unconstitutional bureaucratic grab for still more money, land and control.

To those same officials, however, he's flouting established law and endangering public health simply to make a point even Whitlock admits will probably be futile.

Unlike Don Quixote's towering windmill, however, the 57-year-old mechanical engineer's target is largely unseen: forced connection to a sewage project Whitlock says he neither wants, needs, nor was told about when purchasing his Winters Road home five years ago this month.

“I intentionally purchased property in an unincorporated part of the county to avoid the unknown future expenses of the various city 'services' as I rapidly approach retirement and its associated lower fixed income,” said Whitlock, who was “blindsided” a few months later by a letter from the Allen County Regional Water and Sewer District informing him he would be required to connect to a new sewer line being installed nearby – a $140-a-month bill that is being assessed despite Whitlock's refusal of service.

Both the United States and Indiana constitutions generally prohibit “ex post facto” laws that take effect retroactively, and that is precisely what Whitlock claims the District is doing in this case. So far as anyone knows, his filter bed-style septic tank still meets all the standards in place when it was installed in 1969, and even though those standards have since been upgraded, that doesn't mean his system has “failed.”

But that argument runs full force into a law requiring property owners to connect to sewers if the line runs within 300 feet of a building, as it does in Whitlock's case. What's more, say officials with the Fort Wayne-Allen County Department of Health, potentially harmful bacteria has been detected in the ditch into which the septic tanks of Whitlock and many of his neighbors discharge.

It was that presence of e coli, in fact, that spurred requests for sewers in the area to begin with – a project that would affect nine homes, eight of which have already connected.

To the lone holdout, however, the issue isn't the relatively modest monthly sewer bill. This is about something far more precious.

“It's the principle of the thing,” said Whitlock, who noted that owner of the cattle farm next door is not required to connect to the sewer because the home is outside the 300-foot radius. The runoff from those cattle puts far more bacteria into the stream that Whitlock's septic system does – a system health officials say has never been specifically tested.

Adding insult to injury, Whitlock said, is the fact that federal stimulus money is helping pay for the project, which will prohibit homeowners who connect from fighting annexation by the city for at least 10 years.

“This is not a public health or environmental issue as much as it is a jobs program subsidized with our tax money and repaid by those of us few in rural areas,” Whitlock said. “It amounts to taxation without representation. One can no longer feel their property is secure . . . I suspect the real reason they want us connected is so we will bear some of the cost of the design failures of the city utility.”

That's a reference to a federal mandate that the city spend hundreds of millions of dollars to upgrade its sewage system – something that could also qualify as “ex post facto.”

Despite Whitlock's legitimate complaint, this issue is hardly black and white. Since its creation in 1979, the district has connected about 4,000 former septic-tank users to sewers and has hundreds more planned, according to Executive Director Tom Fox -- most of them voluntarily. That's good for the environment and probably good for the homeowners in the long run.

But with 5,000 systems similar to Whitlock's still in use in Allen County, it's also just a little arbitrary.

The tension between an individual's property rights and the public good is inherently difficult to resolve, but would have been lessened tremendously in Whitlock's case had he simply been notified of the possibility of the sewage project before buying his home. Homeowners must disclose all sorts of things; why not that?

On that score, at least, there is good news to report. Earlier this year, the Health Department adopted guidelines requiring would-be buyers to be informed of the presence of septic tanks and urging them to investigate the systems' status with the Board of Health. Had Whitlock done that, Administrator Mindy Waldron said, he probably would have discovered the District's plan for his area.

That still puts too much of the burden on the individual and too little on the bureaucracy. But it is a step in the right direction, which if nothing else proves expecting common sense from government is not always an “impossible dream.”

This column is the commentary of the writer and does not necessarily reflect the views or opinions of The News-Sentinel. Email Kevin Leininger at kleininger@news-sentinel.com, or call him at 461-8355.