SNOW HILL – Berlin will not face an automatic building moratorium if the wastewater system expansion fails to meet benchmarks by the end of 10 years, the Worcester County Planning Commission agreed last week.
The town and its private partner, Berlin Properties North (BPN), argued successfully before the Planning Commission last week that it would be difficult to get financing if the moratorium language remained in the county water and sewer plan amendment under discussion.
The moratorium clause in the Worcester County water and sewer plan would have frozen building permits in Berlin if the project benchmarks were not met by the 10-year deadline.
The bond market might be less open to the project if it were subject to a mandatory ‘drop dead’ date, like the one originally included in the document, said attorney Joe Moore, representing the town of Berlin.
“It’s going to scare lenders,” agreed Mark Cropper, attorney for BPN, which plans to build the new wastewater facility on the Tyson chicken plant property.
Troy Purnell of BPN will need a bank loan to build his share of the wastewater system, said Cropper, and the developer will depend on income from the development of the Tyson property to handle the loan payments. That development is dependent in turn on accessing building permits.
Lenders need to see assurances that income will be generated by the project which will allow for repayment of bonds or loans.
The planning commission wanted a written record of the agreement between all parties that enforcement action could be taken in the event of those goals being unmet in 10 years.
“We’re concerned about how the county’s going to have some ability to move forward,” said Planning Commission Chair Carolyn Cummins. “There needs to be something in here in the place of it. I’ve been sitting here too many years. I know what happens when you get down the road.”
“You can do it without making it a condition,” said Moore. “We don’t want to scare off potential lenders.”
At the end of 10 years, the dual wastewater plant system in Berlin is scheduled to eliminate the temporary stream discharge and dispose of treated effluent through spray irrigation only and meet a stringent nutrient reduction schedule.
Comprehensive Planning Director Sandy Coyman estimates that nitrogen levels must be cut in half to meet the total maximum daily load for local waters. Point and non-point sources outside the wastewater system must also be reduced.
If Berlin and BPN are struggling to meet goals in the ninth year of the expansion, Moore said, Worcester County should have the opportunity to give the town more time.
Moore pointed out that numerous circumstances could delay benchmark achievements, from changes in wastewater regulations to new technology.
Cropper agreed that a moratorium might not be the right response to a delay. “That determination should be made then and not now,” he said.
The county does have the right to take action if Berlin does not follow the plan set out for it, Moore said, even without the moratorium clause in the amendment.
Another lawyer could say, in the future, that a strong remedy like the proposed moratorium on building permits had not been included in the amendment document, Cummins said.
Cropper said he has never seen a water and sewer plan amendment that includes enforcement actions. The water and sewer plan is a planning tool and is not the appropriate place for enforcement measures, he said.
Commission member Jeannie Lynch called the removal of the moratorium clause a leap of faith.
“You don’t trust us, Jeannie?” Cropper asked.
“No,” Lynch replied. She added, “Certain things are easier to let happen than fight upstream.”
The planning commission agreed to replace the moratorium language with new language reading, “If the conditions are not met then the amendment is inconsistent with the Comprehensive Plan and appropriate actions can be taken.”
“What we’ve gotten rid of is the moratorium, not the 10-year plan,” said Sandy Coyman.
Moore assured the commission the goal would be a priority. “We are going to strive to meet the conditions 100 percent,” he said.
The town has been working on the expansion of the wastewater treatment plant for the last few years, submitting an application for a water and sewer plan amendment last spring for a project that would expand the existing plant.
Shortly thereafter, Purnell offered the town a better way, piggybacking on the plant he will build to serve the mixed-use development on the Tyson chicken factory, and Berlin withdrew its application and made another.
“It’s the first major expansion of an existing wastewater treatment [system] since the new Comprehensive Plan,” said Coyman.
The planning commission voted unanimously to make a favorable recommendation on the water and sewer plan amendment to the Worcester County Commissioners, who will consider it for approval later this fall.