ANNUAL BUDGET APPROVAL:

City Council Action and Executive Summary

2970; Council Bill 21-037

Type of Action:

☐ Resolution

☒ Ordinance

☐ TIDD Resolution

District: ☒ 1 ☒ 2 ☒ 3 ☒ 4 ☒ 5 ☒ 6 ☐ N/A

1st Reading: April 19, 2021 Adopted: May 3, 2021

Drafter: Alma Ruiz Department: Utilities

Program: Administration Line of Business: Office of the Director

Title: AN ORDINANCE MODIFYING THE LAS CRUCES MUNICIPAL CODE CHAPTER 28, UTILITIES, ARTICLE III. SEWERS, SECTION 28-121 AND SECTION 28-122 FOR MANDATORY PREMISES HOOK-UP TO SEWER.

TYPE OF ACTION: ☒ Administrative ☐ Legislative ☐ Quasi-Judicial PURPOSE(S) OF ACTION:

To modify the Las Cruces Municipal Code for mandatory sewer hook-up to protect the ground water from contamination by eliminating existing septic systems.

BACKGROUND / KEY ISSUES / CONTRIBUTING FACTORS:

The 2008 Water and Wastewater System Master Plan Update included a Septic Tank Identification and Prioritization Plan to assist Las Cruces Utilities (“LCU”) in planning for future sewer collection systems for the elimination of septic systems within the city limits to protect the groundwater from contamination.

There were approximately 99 parcels identified as a top priority, 1,126 parcels identified as a high priority, and 655 parcels identified as middle or low priority. Through legislative grants and other projects that include new sewer collection systems, 410 stub-outs have been installed and are available for connection. Only 148, or 36.1%

have tied into the sewer system due to existing septic systems still being functional. To realize the protection of the groundwater from contamination, existing septic systems must be eliminated.

LCU staff will provide owners of affected septic systems with sufficient notice and will engage in a year-long information campaign by mail, utility bills, the City website, including collaboration with the City Public Information Office to engage the public.

SUPPORT INFORMATION:

Exhibit "A" - Modified LCMC Utilities ARTICLE_III.___SEWERS Attachment "A" Feb 2021 WW Project Connection History Attachment "B" LCU Board Resolution 18-19-LCU019 PLAN(S):

Department Strategic Business Plan COMMITTEE/BOARD REVIEW:

Utilities Board

ANNUAL BUDGET APPROVAL:

☐ Yes

☐ No

☒ N/A

Does this action amend the Capital Improvement Plan (CIP)?

☐ Yes

☒ No

☐ N/A

Does this action align with Elevate Las Cruces?

☐ Yes

☐ No

☒ N/A

OPTIONS / ALTERNATIVES:

1. Vote "Yes" - Will amend the Las Cruces Municipal Code ("LCMC") Chapter 28, Utilities, Article III. Specifically Sewers, Sections 28-121 and 28-122 for mandatory premises sewer hook-up within one (1) year after a project has been built and accepted along a city right-of-way adjacent to such premises, expediting the removal of septic systems in the City of Las Cruces and protecting the groundwater from future sewage contamination.

2. Vote "No" - Will not amend the LCMC Chapter 28, Utilities, Article III thus allowing sewer connections installed without a time frame for mandatory hook-up and will continue to put the groundwater at risk from sewage contamination.

3. Vote to "Amend" - Will provide recommended modifications to the proposed Ordinance. City staff would present the modifications to the LCU Board.

4. Vote to "Table" - Will postpone a decision on the request to amend the Ordinance and allow City Council to provide further recommendation to City staff and may put groundwater at risk from future sewage contamination.

ORDINANCE 2970; COUNCIL BILL 21-037

AN ORDINANCE MODIFYING THE LAS CRUCES MUNICIPAL CODE CHAPTER 28, UTILITIES, ARTICLE III. SEWERS, SECTION 28-121 AND SECTION 28-122 FOR MANDATORY PREMISES HOOK-UP TO SEWER.

The City Council is informed that:

WHEREAS, the 2008 Water and Wastewater System Master Plan Update included a Septic Tank Identification and Prioritization Plan to assist Las Cruces Utilities (“LCU”) in planning for future sewer collection systems for the elimination of septic systems within the city limits to protect the ground water from contamination;

and

WHEREAS, there were approximately 99 parcels identified as a top priority, 1,126 parcels identified as high priority, and 655 parcels identified as middle or low priority; and

WHEREAS, through legislative grants and other projects that include new sewer collection systems, 410 stub outs have been installed and are available for connection; and

WHEREAS, only 148, or 36.1% have tied into the sewer system due to existing septic systems still being functional; and

WHEREAS, to realize protection of the ground water from contamination, existing septic systems must be eliminated; and

WHEREAS, the Infrastructure/Capital Improvement Policy (CIP) Review Committee voted at the September 19, 2018, meeting to recommend the Board of Commissioners for the City of Las Cruces Utilities, on behalf of the City of Las Cruces ("Board") recommend to Las Cruces City Council to modify Las Cruces Municipal Code ("LCMC") Chapter 28, Utilities, Article III. Sewers, Section 28-121 and Section 28-122 for mandatory premises hook up to sewer within one (1) year after a project has been built and accepted along a city right-of- way adjacent to such premises; and

WHEREAS, the LCU Board approved 18-19-LCU019 recommending to Las Cruces City Council to modify LCMC Chapter 28, Utilities, Article III. Sewers, Section 28-121 and Section 28-122 for mandatory premises hook up to sewer within one (1) year after a project has been built and accepted along a city right-of- way adjacent to such premises; and

WHEREAS, an effective date of the Ordinance has been added; and

WHEREAS, LCU staff will provide owners of affected septic systems with sufficient notice and will engage in a year-long information campaign by mail noticing, adding notice bills, and the public website, including cooperating with PIO to inform the public.

NOW, THEREFORE, Be it Resolved by the Governing Body of the City of Las Cruces ("City"):

(I)

THAT the LCMC Chapter 28, Utilities, Article III. Sewers, Section 28-121 and Section 28-122 for mandatory premises hook-up to sewer within one (1) year after a City sewer system has been built and accepted along a City right-of-way adjacent to such premises as provided in Exhibit “A” is hereby amended.

(II)

THAT City staff is hereby authorized to do all deeds as necessary in the accomplishment of the hereinabove.

DONE AND APPROVED this 03 day of May 2021

APPROVED

___________________________

Mayor ATTEST:

___________________________

City Clerk

Moved by: Gill Sorg

Seconded by: Johana Bencomo

AYES Kasandra Gandara, Gabe Vasquez, Gill Sorg, Ken Miyagishima, Yvonne Flores, Tessa Abeyta-Stuve, Johana Bencomo

NAYS

Exhibit “A”

Strikethrough = repealed language Underline = new language ARTICLE III. – SEWERS

Sec. 28-121. - Use mandatory.

(a)

It shall be mandatory for owners or occupants within the city to connect their premises to the city sewer system within one year after a city sewer system has been built and accepted along a City right of way adjacent to such premises. unless such premises commence at a point beyond 200 feet from the nearest point to which a connection with the sewer system could be made or unless access to the city sewer system is not available due to insufficient grade or right-of-way limitations.

(b) It shall not be mandatory for owners or occupants of such premises to connect to the city sewer system if the premises are connected to a properly maintained and functioning septic system until such time as:

(1) The septic system ceases to function or to be properly maintained; or

(2) The owner or occupant is required to apply to the state for a permit to modify the existing septic system.

(Code 1988, § 29-151) Sec. 28-122. - Septic tanks.

Owners or occupants of premises which do not adjoin streets and alleys where sewer pipes are laid or whose premises lie more than 100 feet beyond such sewer pipes shall construct and install plumbing to proper septic tanks in a manner prescribed by the city manager and in compliance with the state code.

(Code 1988, § 29-152)

Sec. 28-123. - Outdoor privies.

The construction or use of outdoor privies or toilets is expressly prohibited.

(Code 1988, § 29-153) Sec. 28-124. - Connections.

Connections to the city sewer system shall be made in a manner and with such materials as are prescribed by the city manager.

(Code 1988, § 29-154)

Sec. 28-125. - Chemical toilets.

The prohibitions and requirements of this article notwithstanding, chemical toilets may

be used at construction sites and designated recreation areas upon approval by the city

manager.

(Code 1988, § 29-155)

Secs. 28-126-28-155. - Reserved.

Attachment "A"

Project Total Connections Possible Connections

Clifford Ave Sewer Extension 1 10

Fred Way Reconstruction Rehab 6 50

Homestead Acres & Hacienda Acres 7 36

Jefferson Lane & Davis Road 5 55

Lantana Phase 1 21 25

Lantana Phase 2 17 26

Oleta Drive 10 16

Salopek & Sunrise Phase 1 20 39

Salopek & Sunrise Phase 1 47 112

Willow Glen Sewer Extension 14 41

148 410

Hook Up Percentage 36.10%

February 2021 Wastewater Projects New Connections History

LAS CRUCES UTILITIES BOARD RESOLUTION NO. 18-19-LCU019

A RESOLUTION RECOMMENDING TO THE LAS CRUCES CITY COUNCIL THAT MODIFICATIONS BE MADE TO THE MUNICIPAL CODE CHAPTER 28, UTILITIES, ARTICLE III. SEWERS, SEC. 28-121 AND SEC. 28-122 FOR MANDATORY PREMISES HOOK UP TO SEWER.

The Board of Commissioners for the City of Las Cruces Utilities, on behalf of the City of Las Cruces, is informed that:

WHEREAS, the 2008 Water and Wastewater System Master Plan Update included a Septic Tank Identification and Prioritization Plan to assist Las Cruces Utilities ("LCU") in planning for future sewer collection systems for the elimination of septic systems within the city limits to protect the ground water from contamination;

and

WHEREAS, there were approximately 99 parcels identified as a top priority, 1,126 parcels identified as high priority, and 655 parcels identified as middle or low priority; and

WHEREAS, through legislative grants and other projects that include new sewer collection systems, 397 stub outs have been installed and are available for connection; and

WHEREAS, only 172, or 43.3% have tied into the sewer system due to existing septic systems are still functional; and

WHEREAS, to realize protection of the ground water from contamination, existing septic systems must be eliminated; and

WHEREAS, the Infrastructure/Capital Improvement Plan ("ICIP") Policy Review Committee voted at the September 19, 2018 meeting to recommend the LCU Board consider this matter and further recommend to Las Cruces City Council to modify Municipal Code Chapter 28, Utilities, Article III. Sewers, Sec. 28-121 and Sec.

LCU FY19 11/18 Rev. 2

Attachment "B"

LCU Board Resolution No. 18-19-LCU019 Page 2 of 3

28-122 for mandatory premises hook up to sewer within one (1) year after a project has been built and accepted by the City along a City right-of-way adjacent to such premises.

NOW, THEREFORE, be it Resolved by the Board of Commissioners for the City of Las Cruces Utilities, on behalf of the City of Las Cruces:

(I)

THAT the LCU Board recommends to the Las Cruces City Council to modify Municipal Code Chapter 28, Utilities, Article III. Sewers, Sec. 28-121 and Sec. 28- 122 for mandatory premises hook up to sewer within one (1) year after a project has been built and accepted by the City along a city right-of-way adjacent to such premises.

(II)

THAT City staff is hereby authorized to do all deeds necessary in the accomplishment of the herein above.

DONE AND APPROVED this 14 day of February 2019.

APPROVED:

By \alrm~

Board Chair ATTEST:

Secretary

LCU FY19 11/18 Rev. 2

LCU Board Resolution No. 18-19-LCU019 Page 3 of 3

Moved by ___ S_o_r_.g...._ _ _ _ _ Seconded by _ _ B_a_u_m_g_a_rn _ _ _

APPROVED AS TO FORM:

LCU FY19 11/18 Rev. 2

VOTE:

Chair Little:

Vice-Chair Archuleta:

Commissioner Baumgarn:

Commissioner Carmichael:

Commissioner Johnson:

Commissioner Sorg:

Commissioner Vasquez:

Aye Aye Aye Aye Nay Aye Aye

EXHIBIT "A"

ARTICLE Ill. - SEWERS

Sec. 28-121. -Use mandatory.

(a) It shall be mandatory for owners or occupants within the city to connect their premises to the city sewer system within one year after a city sewer system has been built and accepted along a City right of way adjacent to such premises. unless such premises commence at a point beyond 200 feet from the nearest point to 'Nhich a connection with the sewer system could be made or unless access to the city se•Ner system is not available due to insufficient grade or right of way limitations.

( b) J.t-sl:lai+-flGt-be-maf!El-a-tery-f or owners or ---GGGUf}aAts-Of-suBA-f')Femises---tG--BeAAeGt-te-the--Bity-sewer-system if the premises are connected to a properly maintained and functioning septic system until such time

~

(1) The septic system ceases to function or to be properly maintained; or

(2) The owner or occupant is required to apply to the state for a permit to modify--tl=le existing septic system.

(Code 1988, § 29-151)

Sec. 28-122. - Septic tanks.

Owners or occupants of premises which do not adjoin streets and alleys where sewer pipes are laid er whose premises lie more than 100 feet beyond such seweF---M3es shall construct and install plumbing to proper septic tanks in a manner prescribed by the city manager and in compliance with the state code.

(Code 1988, § 29-152)

Sec. 28-123. - Outdoor privies.

The construction or use of outdoor privies or toilets is expressly prohibited.

(Code 1988, § 29-153)

Sec. 28-124. - Connections.

Connections to the city sewer system shall be made in a manner and with such materials as are prescribed by the city manager.

(Code 1988, § 29-154)

Sec. 28-125. - Chemical toilets.

The prohibitions and requirements of this article notwithstanding, chemical toilets may be used at construction sites and designated recreation areas upon approval by the city manager.

(Code 1988, § 29-155)

Secs. 28-126-28-155. - Reserved.

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EXHIBIT "B"

CITY OF LAS CRUCES

INFRASTRUCTURE/CIP POLICY REVIEW COMMITTEE

The following are minutes for the meeting of the City of Las Cruces - Infrastructure/GIP Policy Review Committee for September 19, 2018 at 3:30 p.m., at the City of Las Cruces, City Hall, Nienburg Room (Conference Room 2007-C), 700 North Main Street, Las Cruces, New Mexico.

MEMBERS PRESENT:

Greg Smith, City Councillor, District 2

Gill Sorg, City Councillor/Mayor Pro Tern, District 5 Jerry Cordova, Civil Engineer, Public Works

David Dollahon, Assistant City Manager Scott Marr, Information Technology Director Rocio Dominguez, Community Development Sonya Delgado, Parks and Recreation Director Adrienne Widmer, Utilities, Water Administrator Linda Dawson, Water Administrative Assistant

Elizabeth Teeters, Policy Analyst, City Administration Tony Trevino, Project Development Administrator

Joe Provencio, proxy for Jorge Garcia, Utilities Director (arrived 4: 15) OTHERS PRESENT:

Eric Martin, Facilities Management Administrator Becky Baum, Recording Secretary, RC Creations, LLC Gregory Shervanick, Resident

MEMBERS ABSENT:

Stuart Ed, City Manager

Marcy Driggers, City Attorney's Office John Moscato, Home Builders Association David Maestas, Director Quality of Life Gabriel Vasquez, City Councillor, District 3

1. Call to order: Meeting called to order by Greg Smith at 3:33 p.m.

2. Approval of Meeting Minutes from June 20, 2017:

a. All members present reviewed the minutes provided. Mr. Cordova motioned to approve the minutes and Councillor Sorg seconded. All members were in favor and no members objected.

3. Action Items Discussion:

a.

Utilities - Sewer Hookups Action Item.

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i. Ms. Widmer began the attached presentation and the Unrealized Revenue handout showing the order of strategies needed to discuss and agree upon how to prioritize, and the associated unrealized revenue with non-connected sewer services at completed sewer projects.

ii. Councillor Sorg asked what was meant by maintain. Ms. Widmer answered," If you only have one person using it then stuff isn't necessarily going to keep moving. We have to take the backup truck out there, we've got to put water down there to make sure sewage is moving so you know once you put in infrastructure if it's used then it's almost like just routine maintenance. If not a lot of people are using it, it almost increases maintenance. Because then people are going to call, 'What is this sewer smell?" That's because nobody's using it. We need extra water to help push stuff downhill."

iii. Councillor Sorg if we moratorium, and Ms. Widmer stated we do not.

She continued, "But one of the things that if you all wanted to do a temporary moratorium, say for instance we do another new project utilizing the funds that comes from the legislature, you can do a temporary moratorium on the impact fees which may be an incentive for people to go ahead and hook up, as opposed to like 'Wow, you know that impact fee I can't afford that right now and I really don't want to do your payment plan.'. So on there in about the middle portion is says Current Residential Sewer Impact Fee rate base portion is $1,360.00." Mr. Cordova pointed out that there is still the cost of re-plumbing all of the resident's stuff within their yard. Ms.

Widmer continued, "And they still have to take care of their septic tank right? So just coming up with ways to give more incentives. Of course, any moratorium that you do on the impact fees even this future potential for phase out impact fees then obviously whatever that is the rate base is going to have to make up the difference right?

So, because it impacts the regular service rates to cover the debt service associated with the development fund. We have our development fund a lot of that has to do with debt service and we use that to help pay for debt service. So, if that's not coming into the development to help pay for debt service then obviously you need to go back to all the ratepayers to say "Hey, go ahead and kick it in."

iv. Mr. Dollahon added, "Councilor Sorg. I saw the "I don't understand."

So, our development impact fees are split three ways currently. The city's rate base utility rate base pays a portion, the end user pays a portion, and the builder pays a portion when they pull the building permit. That was how we've structured it since the impact fees were re-codified in the '90s per a change in State law. That was a choice that Council has made and has continued to make every time we update the associated impact fees every five years. That's only on Utilities. For Parks and the Public Safety fee that is charged 100%

to the builder because there is no rate base and there is no end user

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to collect from. One of the things that we also need to keep in mind is the temporary moratorium has to be temporary because there are bond obligations that Utilities has that dedicates the impact fee revenue to the payment of those bonds. That's why it would have to be temporary because then you could be facing a default situation on those bond obligations. In the future a phase out of the impact fees is the most realistic opportunity for you because Utilities is about to start the rate review situation for wastewater, which would apply in this situation."

v. Ms. Widmer also stated, "And actually that's already started. In which case, right now with the existing rates that we have now that would be an impact of about $0.50 to a dollar per 1,000 gallons. Well water use affects wastewater. So, during the three winter months;

December, January and February is whatever people are using in their water, that's how their wastewater rate is set for the entire year."

vi. Councillor Sorg asked if the impact fees pay for both water and wastewater. Mr. Dollahon answered, "Water and wastewater are two separate impact fees. Their payment split out between their rate base, the developer and the end user are all split, both of them are split three ways across those classes. Wastewater and water both have bond obligation tied to impact fees." Councillor Sorg asked for clarification on impact fees. Mr. Dollahon stated, 'We were only talking about wastewater because it ties to getting people off of septic and on to our sewer system."

vii. Councillor Sorg then want clarification on new developments. Ms.

Widmer stated, "New developments have to put sewer in, but if you're going to phase out impact fees then that means it would be a phase out of all of the then asked, "impact fees whether it's new or old."

viii. Chair Smith asked, "Would it be helpful for you to finish your presentation and then for us to direct questions at that point or is this a good point to go ahead?" Ms. Widmer finished the presentation.

Then Chari Smith asked if there was an overall number of sewers to be installed. Ms. Widmer stated she would find this information out and relay when she obtains so the different Council Districts have a better idea.

ix. Councillor Sorg asked why would we want to phase out impact fees?

Mr. Dollahon said "It is an administrative nightmare at the staff level and the building and economic development committees hate that because they see it as a deterrent to long term economic development. The water and wastewater are very complex because the fee is divided three ways and the building, and the business and the development community hate them and they see it as a deterrent to development."

x. Councillor Sorg then asked, "If all three impact fees for wastewater and water were collected at one time, like with a homebuilder would that help you? Could we change it to that? Is it possible?" Mr.

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Dollahon answered. "Administratively it would be an improvement. It doesn't solve the problem. Here's why. Not only the three-way split is troublesome, but what happens is a builder subdivides a piece of land. When they subdivide a piece of land that locks in their assessment of the impact fee for four years. If they build within the next four years, that subdivision, they are charged that fee. If the builder builds after that four-year period, they pay the new fee that is established in place there. So, on every building permit we have to track as to when the subdivision was done and what the current fee is. So, if the fee changes a lot and over the years it has, not recently, but it is a lot of work related to getting their correct fee charge."

xi. Councillor Sorg then stated, "Well let me make a statement then. For me to get connected to the sewer out in front of my, in the street in front of my house is it fair that everybody in the City pays for that?

Same with the neighborhood park, same with the extra police and fire costs. Is it fair that the whole City has to pay for my house?

That's the question that we have to debate. I'm not looking for an answer today."

xii. Ms. Widmer then concluded, "So I guess what we need from you is, it's an action item. Which ones do you like, which one would you like for us to take in front of the Utility Board? And just kind of as a recap.

Number one that takes Council action. That's an easy one for the Utility Board to say we recommend that the City Council go ahead and re-prioritize, okay. Number two is already in the existing policy so that can just stay. Number three that one's for the mandatory hook up. Utility staff, we do recommend it, but it is completely up to you, but it will take Council action and we can take it to the Utility Board and the Utility Board can bring it to you all if they concur."

xiii. Chair Smith asked, "Just before we vote on anything. Adrienne basically we have sort of said that septic systems sort of have a 20- year life. Is that the range that we talked about? Okay, and what was the last subdivision or the last, I mean in other words what range of age should we have as far as the last people allowed in the city limits to have septic systems? When was the last time somebody could do that?" Mr. Dollahon answered, "We've had annexations of various degrees since 1986. I don't believe we have annexed any major properties that were existing properties with existing septic systems.

Most of the annexations, most, not all, were new development areas which calls for the extension of sewer systems as part of the development. There may have been some forced annexations when we were bringing in a bigger area and there was a remnant parcel that was in the way or surrounded by the annexation that had a septic system and they're allowed to continue to exist." Ms. Widmer interjected, "And I think that would be like the East Mesa roads that we have been talking about. I mean that's part of that whole Hacienda Area." And Mr. Dollahon added, "And in Council District 5.

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This is connected to that. This is clearly connected to that, because Jefferson and Davis were built with federal funds and we also have opportunity out there. We've created opportunity for people who are low income to use federal funds to pay for their impact fees and all of their connections to the sewer system in Jefferson and Davis, if they qualify as low income. And it is a predominantly low-income neighborhood, yet they're not doing it and in part is because we are not mandated to do it because their septic system still functions. And I will tell you how long does a septic system last? My 1976 septic system at my house is fully functioning well because I maintain it well and if you maintain them they will last."

xiv. Chair Smith then asked "Well, and then I think that what we run into of course is that, and I'm glad David mentioned the annexation piece, because I think the last time the city did a major annexation was like 2010. The big Phillippou project was that the last time a whole lot of annexation took place?" Mr. Dollahon explained, "The State Land Annexation was in the 2000 era. There was also what is now the Metro Verde, Sierra Norte Annexation, but those were all new development driven activities. I think there was a small portion of forced annexation with Sierra Norte. There was some state land annexations on the West Mesa between the river and the industrial Park, but that too is all new development. It's raw land that hasn't been developed on."

xv. Chair Smith summed-up by stating, " So if we've got people out there like you taking care of their septic systems then some of these septic systems could be there a while, but then we then have the greater good concern of even if they're taking care of their septic systems, if other houses are starting to get too close or we're having other water issues that's part of the reason why we've been saying we need to convert these septic systems to and not everybody takes as good of care of theirs as you do yours. So that I think does bring us back to the first question and I certainly will be happy to hear further discussion or a motion to take one of those as the first priority."

xvi. Councillor Flores asked, "So number one is that to prioritize removal of all septic tanks within the city limits?" Ms. Widmer explained, "No, actually all that is the City Council saying when we're putting in our legislative request at the end of the year for the State Legislature like in January when the State Legislature and they give money is to prioritize some of the septic tank removal projects that, like we did before."

xvii. Councillor Flores then asked, "And are we then, is it earmarked for a certain area? And that would what area?" Mr. Dollahon stated, "We have to have it done by the second meeting in December. We're working on formulating that at the staff level this month based on department staff known request, but in addition to a few items that we've heard from Council."

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xviii. Chair Smith asked, "So if we came back in October though, that would still give us time to basically, if we specified some priorities as far as the legislative request October or even November would be okay?" Mr. Dollahon answered, "I think we would be okay, the sooner the better. The reason is it's a discussion with Utilities and Public Works because we need to identify specific streets and neighborhoods that we are working on, and Utilities needs to identify them because we have to work with Public Works on also, utilities has to repair the street at the end of the day/" and Ms. Widmer added,

"Right, so we do have the septic tank prioritization report that was done and so that's where the majority of these projects are coming from. Is whichever one is like the highest priority, the top portion utilities will take care of itself, then it goes to high. And then in the different districts it has specific neighborhoods that it has pinpointed to actually do these works on and that's where the majority of these have all come from and so we put together, we take what's ever in the report, we verify it with Public Works,

"Hey this is one on the priority." They're like "Okay sounds good to us." And then we put it together for a cost estimate and move forward with the design."

xix. Councillor Sorg asked, "Let me ask about Davis and Jefferson. So, there are people that don't have to pay anything to hook up to the sewer in the City street there?" Mr. Dollahon answered, "Right. What we do is we qualify them under the City's home rehab program being low income and that's how we fund it. We pay for their connection, their plumbing work, the dismantling of their septic system, and all their impact fees. It is an inconvenience to them and the income qualification process as mandated by HUD can be very invasive. Not everyone wants to do that"

xx. Mr. Dollahon made the comment that, "There is another option within option number three, that you could modify that mandatory hookup to be something more than 90 days. You could say that it has to be within three years. That gives them opportunity to save money to make the connection. You could say 10 years. Because right now what's happening is if they can keep their septic tank functioning they're under no obligation to connect at all. Nowhere in the law does it mandate that it has to be 90 days. It could be something else.

Once you put sewer in the street, our overall objective is to get them connected because we've made an investment as a community in that street and that sewer system and they can't say, the City will provide them with notice. We put in the street as of this date, you have to connect in three years and this is what it is going to cost you."

xxi. Chair Smith said, "Thank you for mentioning that, I guess the question that I would follow up with then is one; is there a way for us to assess the popularity of hooking up before we go in to some of these areas? In other words, if we're laying out the pipes and doing

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all this great stuff and then everybody's going 'Oh well yes, five of us are going to hookup and the other 47 are not,' that to me might help drive the prioritization for us. I don't know how we do that except that the expense of putting it in there and not having it be used would certainly seem to be a deterrent to us doing it. On the other hand, once we've done it then it's almost like eminent domain telling somebody you've got to hookup whether it's three years, nine years or 90 days. So the question then becomes, at what point do we want to be the bad guys with the stick saying 'Okay now you've got it in front of your house, you have to hookup.' It takes me back to maybe we need to do

a

better job of finding out who is ready to see it and hookup to it and obviously we can't cherry stem out to this group and cherry stem out to that group and leave. Having all that infrastructure in place can be very expensive if this one small cadre of people is interested and the people in between them and the existing system is not interested. But I don't know how we would do that outreach to see who's ready and who's not."

xxii. Mr. Dollahon added, "I think we could actually do that. We could survey them, but we're also, in certain areas we're not, I don't want to create a false impression that we're going to be doing it anytime soon. And in the study areas in Council District 5 and Council District 6 related to the dirt roads in those respective Districts that we are undertaking now, this is one of our points of criteria in evaluating the lot size which ties to their septic system and helping us prioritize roadways that we're going to do next. And as far as right-of-way acquisition and future design and construction and we're taking the lot size, the smaller the lot the greater the impact and the greater the need for sewer in those roads because when their septic system fails and it's not in the road, those alternative systems, if their lot is under three quarters of an acre, are very expensive. We're talking $7,000 is what I've heard at one point. It would be a lot cheaper to connect to a city sewer line."

xxiii. Chair Smith asked, "Is there something similar to our matrix for the pavement management system where we're looking at all these different factors as far as how we approach where we're looking at this because I understand we can't survey everyone, and we certainly don't want to give a false impression that we're getting ready to come out and put it in there if you want it, as opposed to okay here's this age, here's the size of the lots, I don't know if you get into who put in the septic system and what their record is for their septic systems lasting, but if we had something similar to what we do with the pavement management and we say okay, it's this age not everyone keeps it up as well as everybody else so there's an average life expectancy on septic systems. And there's a concentration of people and it's this far from the existing lines, those kinds of things, and then we go into the survey so that we've already got a sense of

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where it's most likely to need to be and then we start surveying to see how readily people are going to be willing to pay for getting the service?"

xxiv. Ms. Widmer stated, "I think that maybe a route to go in the septic tank prioritization plan itself, those are ranked based on to protect ground water. So you already have, hey if you're going to do it then you probably, these are the first ones you need to do, second and then it goes down, down, down the list because if you're not going to hit ground water for a hundred feet obviously that one you're not as worried about as of one that's maybe fifty feet from the ground water."

Mr. Dollahon added., "Well then and soil conditions I would assume to some degree factor in. Those would be some different things that I think might help us as far as when we're approaching people and asking them if indeed that's a reasonable approach to sort of helping determine our priorities; is pulling together some of those different factors and then obviously that one's has been in place and is very much a key priority. But I would think some of these other things, because we're still stuck with people saying no, mine's working just fine so I don't need to replace it and then you've got some of these numbers which are obviously costing us."

xxv. Councillor Sorg stated, "I was intimately involved in the Lantana Phase 1. I talked to every resident there except maybe one who was living in Albuquerque or something. And, I talked to the people in Salopek Sunrise Subdivision too. I don't know if it was Phase 1 or Phase 2, several of those. If you survey the other areas that have septic tanks, you're going to find the same percentage of people that are interested in those first four, three groups there. I can assure that. And go ahead and ask them, take the time to ask them but I know you're going to find the same percentage of people interested."

xxvi. Mr. Dollahon stated, 'The other thing that we could do as part of our evaluation and maybe as part of our policies and procedures and ranking of roads for development out on the East Mesa is that we look at the septic system prioritization map and we also look as part of our procedures when we are getting close to ranking the roads, that the roads that we see coming up on the top of the list or near the top of the list, say the top five or ten, we query the people about their interest, because that may move one road ahead of another if most of the people say "We would love to be on sewer and have our road paved" over another road the people living on another road. So, we could add that activity with that."

xxvii. Chair Smith added, "So what else can we do to incentivize something like this? I mean obviously we bump into the anti-donation clause we can't make cash donations, but could it be that we say "you know what, you want to get on our sewer system we're actually going to pave your road faster' or something along those lines, things that will actually be additional benefits or we're going to put a park out here.

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We will water it with purple lines. I mean what options do we have available to us to incentivize this to help us have a better track record with people hooking up."

xxviii. Ms. Widmer stated, "Well I think as we go through and take a look at some of these roads that you all would like to prioritize, it's also is a matter of taking a look at it to make sure that there is enough grade and other items associated with this to make sure what other infrastructure do we need to put in if we do install sewer here. So for instance if we need to install a lift station that we need to be prepared to say "Ok well here we're going to need a lift station." So everybody goes into the sewer and then you finally get to a point where your sewer is going to be so deep that you really need to raise it up to have it start over again it's called a lift station so it sucks it all up and starts it back on to a gravity run."

xxix. Councillor Flores added, "Yes. What I encountered while I was campaigning out there, I personally did not hit every door, but people who were on my campaign committee and volunteers did hit every door, well every door that answered. We knocked on every door. I know the ones that I hit maybe a third of the residents or half of the residents in Hacienda Acres was like really 50/50 it was almost as if they were even with the non-roads people it was just that Mr.

Montoya who was so concerned about that big ditch that big hole that we put on his property. He was about the only one who was really almost heartbroken about it. A lot of other people were just complacent just kind of like 'Yeah, I can deal with a (inaudible). Do you go out? No, I stay in the house I just wait till it dries up.' I mean I was appalled to hear how resigned they are. So, I don't know if they are going to, I think if a survey is going to be taken it will have to be door to door, not just like a delivery but and that's going to take a lot of work to really get a good assessment, a good survey, a valid survey."

xxx. Councillor Sorg added, "Just so two Councilors here know. On that priority list that the Utilities Department made up at the bottom, the lowest priority is, one of the places anyway, is the Jornada Development. Where Jomada Road goes through to Highway 70 North where the Governor lives, her house sits, but also on the south side two of these are large lots. These are what, an acre to two acres maybe even in some cases. Yes, they're very large. And so, you know that's what we're looking at, is the kind of sewer septic tank situation." Ms. Widmer said, "And their lots are large enough that if theirs fails they have enough room to just redo the system."

xxxi. Chair Smith asked for recommendations. Ms. Widmer asked, "Is there any legislation anywhere that maybe federal legislation or that requires something like this? It is a federal fund right Mr. Dollahon?"

xxxii. Mr. Dollahon stated, "CBDG is a voluntary program. We cannot force anyone to participate in any of our programs." Ms. Widmer added,

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"And when it comes to septic systems, state law, state regulation and depending on the size of lot putting, in the septic system and once a sewer is actually put in an area that's running along an area, if somebody1s septic system does go bad and they need to rebuild it like it's leach field. When they go down to actually apply for a permit if NMED knows that a sewer system is right there they will say 'No.

we are not renewing this permit for you to repair, you need to hook into the municipal sewer system.' I mean that's one backup."

xxxiii. Chair Smith motioned, "I will move that item number one be put in as the Council going back to prioritizing the septic removal for legislative requests. It's something we've done. It's something we can get back into and sort of maintain status quo." Councillor Sorg seconded the motion. With additional discussion Chair Smith stated, "Okay, then I'm going to suggest that maybe we say one leaving that as getting the prioritization from the board, and three moving that to one year and I will make the motion that those be the two things we vote on at this particular point. Is there a second?" Mr. Dollahon seconded. All members were in favor and no members objected.

New Discussion (continued)

a. Facilities - Facilitator for Non-Profit Maintenance Discussion i. Mr. Dollahon began, "his is an item that came out of a discussion

related to our overall facilities maintenance policy of our existing buildings. And where this comes from is the City has almost a hundred buildings that we're responsible for maintaining. There are a few that are occupied not by City staff, we own the buildings we are responsible for serious capital maintenance, but they are occupied by nonprofits. They are on the campus of the Community of Hope and La Casa, the domestic violence shelter. We own all of those facilities. PAL, we own, and we have almost an exclusive use by a nonprofit there as well. The issue with the nonprofits of the Community of Hope and La Casa is sometimes we have occupants who do less than ideal things to our buildings from a maintenance standpoint. They are responsible for general day-to-day maintenance. Example, they poured Drano cleaner in a clogged water line in an air conditioning unit Right. Or they do something to make a bad situation worse. There are other nonprofits in this community; Families and Youth Inc. and Community Action Agency who have setup fundraising nonprofits 501(c}(4)s that own their capital assets and their buildings and charge them rent because the federal grants allow rent as an eligible expense if they are not the owner of the building. So, the 501(c)(4) exists solely for the benefit of fundraising and owning the capital assets to the 501(c)(3) that occupies the building. So, then the 501(c)(3) pays the 501(c)(4) rent from federal grants and then they reinvest back into the property.

That makes them the property owner and that would relieve some

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capital investment pressure on us for Community of Hope and La Casa if we could help facilitate at least that discussion of entertaining that option. The one outstanding question is that they have always had, and they've been resistant to this in the past, is what about capital outlay from the State of New Mexico. It will work for those nonprofits, Community of Hope and La Casa because they are the exception under the Affordable Housing Rule to the anti-donation clause. We would deed restrict the property if we sold it or gave it to the 501 (c)(4), we would deed restrict it that they couldn't convert the use. If they tried to convert the use, then the property reverts back to the City of Las Cruces. We would give the property the 501 (c)(4).

They would own the asset and maintain it. The only item that this doesn't require action by the Committee is, would you like for us to consider entertaining hiring a professional facilitator to explain that process to the nonprofit and work through some of the specifics associated with that to at least approach them to entertain that idea."

ii. Chair Smith asked, "I think as that topic has come up before and has met with a great deal of resistance. If a facilitator might help that, but that's the only thing, I remember us talking about it and it seemed like the capital outlay piece was the big stumbling block but you're saying that basically because of the Affordable Housing piece and some of the other things that are exclusions under the anti-donation clause that that then would still be available to them?" Mr. Dollahon replied, "Yes. I'm of the opinion and our legal council believes we can still manage that investment of State Capital outlay specific to those properties, even if somebody else owned it" Chair Smith added, "So that's really the only hang up as far as we can see as far as our ownership versus the 501(c)(4)." Mr. Dollahon stated, "Yes.

That's been the greatest resistance we've experienced in the past. It is a complex issue. Don't get me wrong."

iii. Councillor Flores wanted clarification on 501 (c)(4). Mr. Dollahon explained it would be fee simple with a restrictive covenant." We have that situation right now with a piece of land from the State of New Mexico. They gave it to us Fee Simple with a Deed Restriction that if we don't use it for the intended purpose, it reverts back to the State of New Mexico. It would take us out of the maintenance and inspection building. Of what we would revert to is an annual report on the use and the clients served. They would have to report to us that they are still performing the function that they are performing and the number of clients that they're supposed to serve on an annual basis. But it takes us completely out of the long-term maintenance building. The other thing that this allows them to do, it allows them to use the building as an asset for financing other capital improvements of their own."

iv. Chair Smith stated, "So basically we're talking about changing the landlord situation from us to the 501(c)(4), everything else pretty

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much operates the same except that the money that normally would have come through the City, then funneled through the City then comes through the 501 (c)(4) under those conditions. And we would still be fiscal agent in that situation." Mr. Dollahon answered, "If there was state money that came in it would probably still come to the City.

Then we would have to funnel through the 501(c)(4). And generally, the 501 (c)(4)s have a separate board that is modified from the 501 (c)(3). They have some members from the 501 (c)(3) and other members from the rest of the community that are not on the 501 (c)(3) board.

v. Mr. Martin added, "So for instance at Community of Hope, Casa de Peregrinos is already pursuing adding maybe a 20,000 square foot building to the property of that site. And because a special understanding (inaudible) program as the fiscal agent right now under the current scenario that Mr. Dollahon gives us we have to own that new building. So there normally are not any maintenance funds or capital improvement funds that go with that building so then we end up with a new 20,000 square foot building. We understand it serves a population that needs to be taken care of and we understand that, but then that becomes a cost that we end up absorbing both operationally and from a capital perspective anytime any of the expansions or additions go on. La Casa was the same thing when they did their $800,000 expansion several years ago for what they called the Binns Addition at that time. That we assume responsibility for maintaining all the air conditioners, restrooms and anything that happens and the tenants may or may not take care of inside the building. So outside of normal just routine janitorial things like that we basically assumed that maintenance cost. It starts adding up. So each time an addition is done or they want to expand their services, we pick up the balance."

vi. Mr. Dollahon stated, "And we're taking money, City money, away from other potential needs to address their needs in buildings they occupy, and we don't control." Councillor Sorg asked, "So the 501 (c)(4) they can get grant money to operate the buildings, maintain the buildings?"

vii. Mr. Dollahon replied, "All federal grants, and most of them get federal grants, allow for them to pay rent to another entity. FYI and Community Action Agency have had this structure for years. This relationship. And we have had to deal with them on state appropriations, La Crucera which is the apartment complex next to Community of Hope, the apartment complex, we funneled state appropriations through the City to their 501 (c)(4) to build that building, but we don't own it and we don't maintain it."

viii. Chair Smith asked, "Well I have two questions; one as far as the funding the granting and that kind of stuff would we be in a position and still be sort of a safety net if they weren't able to secure the

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1 funding? In other words, they're relatively secure that we're going to 2 keep these things going as it is, but if it's incumbent on them to locate 3 those funding sources and those kinds of things, what safeguards 4 would we be able to say, how likely is it I guess that we would be 5 asked to come in as the safety net if they are not able to secure 6 everything that they are currently getting from us?"

7 ix. Mr. Dollahon summed all up stating, "I think that would need to be 8 part of our discussion through a professional facilitator to address 9 those concerns,

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what extent, and they could structure the 10 501(c)(4). Community of Hope is the most complex because there 11 are four occupants in three buildings that are all separate 501 (c)(3)s.

12 Jardine is probably the easiest because they have their own building.

13 They're the only one in that building. The other buildings have two or 14 more occupants in them and that complicates the structure. And that 15 safety net question, we would have to, I'm sure that's been their 16 concern in the past is what happens if that money doesn't come 17 through. We give them a lot of other money. We give them a lot of 18 healthcare money and we give them a lot of CDBG money. And we 19 have given them Capital CDBG money in the past. So that's part of 20 the discussion that a professional facilitator would help us do. We 21 just want a general consensus to be able to look at moving forward 22 with this. Because if three out of the seven Councilors were opposed 23 to it then we are wasting our time."

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25 5. Discussion of Items & Task Listing 26 a. Parks & Recreation - October

27 i. Restroom Policy

28 ii. Median Landscaping Policy

29 iii. Tree Policy

30 iv. To Paint or Not To Paint Policy

31 b. Utilities - Legislative Request Package - November 32

33 6. Next Meeting Scheduled: October 17, 2018 at 3:30 p.m.

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35 7. Adjourn -Meeting adjourned by Chair Smith at 5:07 p.m. with no objections.

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Approve :

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LAS CRUCES UTILITIES BOARD OF COMMISSIONERS ACTION FORM

TITLE:

For Meeting of February 14, 2019

(Adoption Date)

A RESOLUTION RECOMMENDING TO THE LAS CRUCES CITY COUNCIL THAT MODIFICATIONS BE MADE TO THE MUNICIPAL CODE CHAPTER 28, UTILITIES, ARTICLE III. SEWERS, SEC. 28-121 AND SEC. 28-122 FOR MANDATORY PREMISES HOOK UP TO SEWER.

BACKGROUND:

The 2008 Water and Wastewater System Master Plan Update included a Septic Tank Identification and Prioritization Plan to assist Las Cruces Utilities ("LCU") in planning for future sewer collection systems for the elimination of septic systems within the city limits to protect the ground water from contamination. There were approximately 99 parcels identified as a top priority, 1,126 parcels identified as high priority, and 655 parcels identified as middle or low priority.

Through legislative grants and other projects that include new sewer collection systems, 397 stub outs have been installed and are available for connection. Only 172, or 43.3%

have tied into the sewer system due to existing septic systems are still functional.

To realize protection of the ground water from contamination, existing septic systems must be eliminated. The Infrastructure/Capital Improvement Plan ("ICIP") Policy Review Committee voted at the September 19, 2018 meeting to recommend the LCU Board consider this matter and further recommend to Las Cruces City Council to modify Municipal Code Chapter 28, Utilities, Article III. Sewers, Sec. 28-121 and Sec. 28-122 for mandatory premises hook up to sewer within one (1) year after a project has been built and accepted by the City along a City right-of-way adjacent to such premises.

Name of Drafter: ,,., -7

Adrienne Widmer {_J»,I Account Number:

N/A

Continue on additional sheets as re uired

Department: Phone:

Utilities 575-528-3514

Amount of Expenditure: Budget Amount:

N/A N/A

Strategic Plan Goal / Objective / Strategy Addressed: N/ A Performance Bud et Goal/ Ob'ective Addressed:

Utilities

LCU 5/18 Rev .4

Phone 541-2300 541-2271 541-2076

LCU Board Action Form Page 2

SUPPORT INFORMATION:

1. LCU Resolution No.18-19-LCU019

2. Exhibit "A" - Proposed Mark Up of Municipal Code Chapter 28, Utilities, Article III.

Sewers, Sec. 28-121 and Sec. 28-122.

3. Exhibit "B" - Approved minutes of the September 19, 2018, Infrastructure/CIP Review Committee meeting.

BOARD OPTIONS:

1. VOTE "YES" - Will approve Resolution 18-19-LCU019 and a recommend to the Las Cruces City Council that modification be made to the Municipal Code Chapter 28, Utilities Article III. Sewers, Section 28-121 and Sec. 28-122 for Mandatory Premises Hook Up to Sewer.

2. VOTE "NO" - Will reject Resolution 18-19-LCU019 and not recommend to the Las Cruces City Council that modification be made to the Municipal Code Chapter 28, Utilities Article III. Sewers, Section 28-121 and Sec. 28-122 for Mandatory Premises Hook Up to Sewer. Staff will require strategic guidance.

(Continue on additional sheets as required)