Court rejects wastewater appeal

SCHOA officials consider continued litigation

Sun City West resident Clair Van Steenwyck questions EPCOR Water officials during a 2017 open house about the validity of arguments in favor of consolidating five wastewater districts.
Sun City West resident Clair Van Steenwyck questions EPCOR Water officials during a 2017 open house about the validity of arguments in favor of consolidating five wastewater districts.

Sun Cities residents will not be seeing any relief for their wastewater bills any time soon.

The Arizona Court of Appeals Jan. 23 rejected an appeal of a Sun City Home Owners Association lawsuit seeking a rehearing of a wastewater rate case from 2017 that consolidated five wastewater districts and created a single rate for all customers. The new rate substantially raised the sewer costs for Sun City and Sun City West ratepayers, while lower the cost in the other three former districts.

While it was not an officials party to the original lawsuit and subsequent appeal, Property Owners and Residents Association of Sun City West officials supported the effort.

The three-judge appeals court voted 2-1 to reject the appeal, with judges Kenton D. Jones and James B. Morse voted to affirm the Arizona Corporation Commission’s rate and consolidation decision and Judge Michael J. Brown dissenting.

“Two justices fell back on all other cases saying the ACC can do what it wants,” said George Courtot, SCHOA vice president, during its Jan. 28 board meeting. “The dissenting judge said they should look at the constitutional creation of the ACC and see that there are certain things the ACC must do.”

During the quarterly Jan. 27 PORA board meeting, board member Bob Miller said Sun City West residents will be impacted by this decision and the forthcoming water rate case. He added the dissenting judge appeared not to want the case to die.

“The dissenting judge urged that they appeal this to the Arizona Supreme Court,” Mr. Miller said. “He believes it is wrong to treat the ACC like it is a fourth branch of government.”

SCHOA officials will consider whether to keep up the fight. They have 30 days since the decision was filed to make the decision. Mr. Courtot said the body will discuss the issue in the coming days.

“We can’t do it today because we want our president to be involved in the discussion,” he said.

SCHOA President Jim Hunter is in Oklahoma tending to a family matter.

Mr. Courtot said SCHOA officials will talk to other agencies, including PORA, that supported their lawsuit and try to determine a likely outcome.

“This will be a costly endeavor and we need to see whether it will be worth the cost, and whether we can afford it,” he said.

Greg Eisert, former SCHOA board member and Governmental Affairs Committee chairman, characterized Mr. Browns dissenting opinion as a scathing report on the other judges.

“He said the Supreme Court needed to hear this,” he said.

PORA officials said they will continue to follow the case. SCHOA’s next regular board meeting is 9 a.m. Tuesday, Feb. 25 in the meeting room at the SCHOA office, 10401 W. Coggins Drive, Sun City. However, SCHOA officials did not dismiss the possibility of calling an earlier special meeting. PORA’s next open board meeting is 1:30 p.m. Monday, April 20 at the PORA office, 13815 Camino del Sol.

Mr. Brown, in his dissenting comments, stated his fellow judges erred by giving absolute deference to the ACC’s decision to approve consolidating five dissimilar wastewater districts and establish a single rate for all customers in the newly formed single district.

“Even though our Constitution and statutes prohibit the imposition of discriminatory charges or rates, the commission never determined whether the new consolidated rate design discriminates among groups of customers who are quite dissimilar, other than they now share a common owner,” he stated. “Not only did the commission fail to resolve the discrimination issue, plainly raised by SCHOA, it washed its hands of any responsibility to address it.”

Mr. Brown also disagreed with the other judges’ treatment of the ACC with what he called excessive deference.

““For decades, both this court and our supreme court have repeated broad pronouncements suggesting that commission decisions, especially in rate cases, are essentially untouchable,” he stated.

Judges Jomnes and Morse cited the state’s constitution regarding the extent of the ACC’s authority in rate setting.

“(The Constitution grants the commission) full power to...prescribe just and reasonable classifications to be used and just and reasonable rates and charges to be made and collected, by public service corporations for service rendered therein...” they stated in part.

They further stated the ACC is a department of the government with powers and duties as well defined as any governmental branch.

“...where it is given exclusive powers it is supreme,” they stated. “Its exclusive field may not be invaded by either the courts, the legislative or the executive.”

Regarding discrimination, the affirming judges believe SCHOA could only prevail if it established an error in the commission’s finding that customers across the newly formed district receive like and contemporaneous services.