West Dover wastewater not under the bridge

The wastewater plant at the North Branch Fire District.

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NEWFANE — A West Dover business owner is suing the North Branch Fire District No. 1 over a wastewater allocation he claims was unfairly taken away from him.

The complaint describes North Branch as a sewage system owner and operator that has served West Dover since about 1972. It says Rich Caplan owns Andirons Redevelopment Co. LLC, and has lived and worked in construction, property development and real estate in West Dover for about 30 years.

The Andirons was a hotel and restaurant built at 183 Route 100 in West Dover before 1970, and North Branch granted permitting to connect the property to the sewer system in 1975, according to the complaint.

"The permit allocated enough capacity for use of three kitchen sinks, 66 bathrooms, one laundry tub, two urinals, 66 water closets and 60 showers, which would serve a maximum of 250 people," wrote Caplan's attorney James Valente of Costello, Valente & Gentry of Brattleboro. "In consideration for the granting of the permit, the Andirons agreed that it would permanently 'maintain the building sewer at no expense to [North Branch].' "

Valente said that in the 1980s, property owners began buying wastewater allocations from North Branch in a different manner.

"This allowed defendant to raise money by increasing the fee for allocation, which on information and belief is currently $40 gallons per day," he wrote.

"Properties like the Andirons were grandfathered and kept their allocation ... The 1980s-and-later purchasers 'locked in' their allocation for a fixed number of gpd.

"They and their successors would only need to pay for subsequently increased allocation, which cost would be based on the rate/gpd at the time of expansion. As a consequence, buyers in the area tended to research allocation when purchasing property. Allocation at a low rate substantially increases property value, because the property can use the sewage system up to its maximum gpd while paying only for use."

North Branch took the position that 17,835 gpd had been allocated to the Andirons sometime between 1975 and 2000, according to the complaint. Caplan claimed he purchased the property in 2008 based in part on the value of that allocation.

Valente said the former hotel building was donated in 2011 to the local fire department, which used it for training and destroyed it. Caplan constructed a building partially in the footprint of the hotel to hold events on the property in 2015 and received a certificate of contract for gallonage from North Branch with the contract reading "17,835 gpd," according to the complaint.

Valente said businesses on the property now — One More Time, Dover Forge and the Hermitage Deerfield Valley Real Estate office — will be forced to leave if that allocation does not continue and Caplan will be "irreparably damaged."

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Early last year, Caplan claimed he learned North Branch might attempt to "revert" his gallonage. That would mean that in order for him to continue to use his property, Caplan "would have to buy back the gallonage at the controlling rate of $40/gpd," according to the complaint.

An administrator for North Branch told Caplan the Andirons was exempt from reversion under state law because the allocation came before 1989 but he later received notification that the allocation had gone back to North Branch in August 2017 because it had not been used, according to the complaint.

State law allows reversion for non-use when a property owner applies for an allocation for new construction but then does not complete the project within three years or start it within one, according to the complaint. Valente said only the events building could be considered new construction but that was finished within a year.

It would cost Caplan $713,400 or more to "buy back" the 17,835 gallon allocation, according to the complaint.

"A purchaser of plaintiff's property will have to spend that much money in order to operate the businesses thereon; or some other significant amount if it seeks to use the property for something else," Valente wrote, noting that the property is on a main road near two ski area, and is best used as a business catering to tourists. "The value of that allocation of more than $700,000 is 77 percent of the entire property's assessed value of $916,480."

Valente said Caplan never received notice that the allocation had returned to North Branch. They claim relevant minutes from a meeting of a committee that governs North Branch have been removed from its website.

North Branch's bylaws allow anyone aggrieved by a decision made by the committee to appeal a decision within 30 days, according to the complaint. Its "failure to provide notice of its decision for one year, or to post plaintiff's address in its minutes, deprived plaintiff of the opportunity to appeal or request a stay under defendant's bylaws," wrote Valente.

Caplan wants a permanent injunction barring North Branch from asserting reversion of the 17,835 gpd allocation. And Valente made a motion for a preliminary injunction barring North Branch from reverting any of the gallonage prior to a court hearing and decision, which will be heard in Windham Superior Court, Civil Division at 10:30 a.m. March 7.

Caplan is seeking declarations saying that North Branch's reversion violated his right to due process and should be barred because of representations made to him. He also wants attorney fees covered.

Reach staff writer Chris Mays at cmays@reformer.com, at @CMaysBR on Twitter and 802-254-2311, ext. 273.