ESCONDIDO – Is it legal for the city to treat sewage that comes from outside its borders?
A 1994 state law restricts cities from providing that service. But Escondido and county officials maintain it's OK, as long as someone else collects the sewage and pipes it to a city treatment plant.
City officials are considering allowing a 740-home development proposed in unincorporated Harmony Grove to pay for tapping into the city's plant.
Yesterday, the Local Agency Formation Commission gave the developer, the city and the county an answer about whether such an arrangement would be legal: maybe, or maybe not.
Under a proposal the city is considering, Santa Monica-based New Urban West Inc. would connect sewage pipelines from its homes to the city's processing plant. The development, called Harmony Grove Village, would be on 425 acres along Harmony Grove Road near Country Club Drive just west of the city limits.
But LAFCO, a state-chartered agency that sets boundaries for cities and special districts, has raised questions about the legality of the plan.
Yesterday, Michael Ott, executive director of the commission's San Diego division, met with those involved.
Ott's conclusion was that the 1994 law clearly prohibits the city from treating sewage from outside its boundaries, no matter how it gets to the city plant.
A 2001 statute, however, gives the commission the power to decide how and where local governments could provide such service, he said.
So is what the city is proposing legal or illegal?
"It means LAFCO oversight is necessary," Ott said.
On Dec. 1, the commission is scheduled to decide whether a service agreement between a proposed county sewer district in New Urban West's development and Escondido should be allowed.
New Urban West has proposed paying the city $7 million for hooking up, with homeowners paying an annual fee for treatment. The normal hookup fee for 740 homes within the city would be about $3.5 million.
In the past, Escondido would have annexed a development before providing it with any services. The Harmony Grove development, however, has become a special case.
In February 2003, the City Council voted 3-2 to reject a request from some Harmony Grove property owners that much of the community be removed from the Escondido's "sphere of influence," a planning term for land expected to eventually become part of the city.
Seven month's later, however, LAFCO – in an unusual ruling against its own staff's recommendation – approved the idea. Harmony Grove residents had told the panel that the only way to preserve the rural character of their community was to split with Escondido.
Two years later, residents are still debating the decision.
Mid Hoppenrath said New Urban West's proposed development, with horse trails and a community barn, is the only way to protect the area from piecemeal development.
Kevin Barnard, who also lives in Harmony Grove, said he believes being annexed by Escondido would have been the "safer bet" because of a 1998 city growth control measure, Proposition S.
If Escondido had annexed the land, it would have fallen under the measure, which requires a vote for increases in housing density above those specified in the city's General Plan.
New Urban West would have been able to build only about 300 homes under the city's zoning, without voter approval.
Now, the question of whether Escondido should agree to provide sewer service to an area that didn't want to be part of the city has resulted in controversy.
Two weeks ago, the council voted 4-1 to begin negotiations on an agreement, with Councilman Ron Newman dissenting. Newman called the proposed deal "business through the back door" and charged that the council would be skirting both the 1994 state law and Proposition S.
Yesterday, Newman was asked to leave the meeting that Ott called with city and county officials and the developer. Newman was briefed later about what happened.
"To me, that was almost as big an issue as what was being talked about," Newman said. "I am elected, in part, to make decisions about policy changes for the city. . . . Telling me to leave was like telling the public, 'You need to leave.' That makes me suspicious."
Supervisor Pam Slater-Price's office, whose jurisdiction includes Escondido, has received more than a dozen phone calls, e-mails and letters about the matter.
"I think the general fear is if you set a precedent on an issue like this, where does it end?" said John Weil, the supervisor's chief of staff.
Tom Zanic, vice president of New Urban West, said his company has set aside $7 million to build a sewage plant within the development. But because the city's Hale Avenue Resource Recovery Facility is down the street, it makes more sense for the company to spend the money on expanding an existing plant, he said.
"At the end of the day, the budget I was going to spend on a contractor would be used for public service," Zanic said.
Councilman Sam Abed said the agreement would be purely a business decision.
"That's a lot of money that could go toward expanding our plant," he said.
Councilwoman Marie Waldron agreed, saying if there is a potential financial benefit to the city, it should at least be explored.
The council recently approved a $587,000 study that would examine ways to expand the Hale Avenue plant to 27.5 million gallons a day. The plant is operating at 85 percent capacity, processing 16 million gallons a day. It is unclear how much the expansion would cost.
Councilman Ed Gallo said his only concern about the proposal is whether the expanded plant could handle Harmony Grove sewage forever. "I just want to make sure that down the road we aren't wishing we had extra capacity," he said.
Mayor Lori Holt Pfeiler said that, money aside, allowing the development to connect to the city's plant sets the tone for possible annexation of Harmony Grove in the future.
"My hope is that they become a part of Escondido. That could be a long way off," she said. "But they go to Escondido schools and shop in our stores. For now, we have to treat them with respect and with the expectation that they are a part of our community."
Booyeon Lee: (760) 737-7566; booyeon.lee@uniontrib.com
