Utilities for the Coal Plant-Part II

The City Commission decided to table (for two weeks) Ordinance 2972, which would allow the City to extend its water and sewer services to customers outside the city limits, without actually annexing the land into the City.

I was not able to watch this meeting, but it is my understanding that the Commission's decision was influenced in part by a report that was commissioned by CCE. This report, or questions generated by it, were apparently raised at the meeting and helped convince the Commission that the issue needs further consideration.

The report can be found here.

The study was prepared by Kathleen McMahon, a Certified Planner. When Kathleen McMahon lived here, she was married to Bob Horne, the former Planner for the City of Great Falls. I knew her, sort of, and I liked her.

I read Kate...er...Ms. McMahon's report, and she raises a number of good points.

I do, however, have a problem with her proposed action plan, beginning on page 6. The first action she recommends is rescinding the City's Potable Water Service Agreement and Reservation of Wastewater Treatment Capacity Agreement. She suggests that these agreements be rescinded because a) the City Manager did not have City Commission approval until after he signed them, and the agreement by SME to be annexed (required by City ordinances) was contained in the "preamble" to the contract and is thus unenforceable.

I do not disagree that the City should try to find a way to legally avoid any obligations under the agreements. My issue is with the grounds offered by Ms. McMahon. I believe they are legally untenable.

First, while I have not researched the issue, I would bet dollars to donuts that it is entirely legal for the City Commission to ratify the City Manager's entry into these contracts after the fact. The notion of "ratification" generally refers to approval after the fact. In other words, the act of an agent (city manager) can be adopted by the principle (city) by authorization before the fact or ratification after the fact. So, I think that in terms of a legal defense to the agreements, this will fail.

That is not to say, though, that this does not raise some potentially troubling issues. If Mr. Lawton was given the go ahead informally to sign these agreements, then one necessarily wonders about the public's involvement in the process and whether or not the public ratification of the agreements is, as some commenters have called it, a mere rubber stamp.

Second, Ms. McMahon suggests that the fact that the agreement to submit to later annexation is contained in the "preamble" somehow renders it ineffective. Again, I disagree. Legally, the portion of the agreements to which Ms. McMahon refers to as the "preamble" is more typically called the recitals section. As I recall, not too long ago I came across a case that stood for the very proposition that promises made in the recitals are enforceable just like promises made in the body of the agreement.

None of this is to say that there are no defenses that the City could offer to these agreements. The one that jumps out at me is illegality, though in object not adoption. While I am no expert in urban planning law, it seems that a case could be made (or found, if one looks hard enough) that extension of a City's benefits beyond its borders is simply improper. I will leave that one to the experts, if and when the City tries to avoid its obligations under these agreements, an outcome I do not foresee occurring any time soon.

If any CCE members read this, and wish to forward it on to Ms. McMahon, please do so. Perhaps she can join us and we can discuss the issue further.