20230508Reply to Final Comments.pdf

I
2
J
4
5
6
7
8
9
l0
ll
t2
13
14
l5
t6
l7
l8
l9
20
2t
22
23
24
25
26
27
28
Peter Richardson, ISB # 3195
RICHARDSON ADAMS, PLLC
515 N. 27th Street
Boise,Idaho 83702
(208) 938-7e01
peter@richarclsonadams. com
Attorneys for Respondent
Motor Coach Village HOA
BEFORE THE IDAHO
PUBLIC UTILITIES COMMISSION
CDS STONERIDGE UTILITIES, LLC
COMPLAINANT,
VS.
THE MOTOR COACH VILLAGE HOA,
RE,SPONDENT.
Case No.: SWS-W-23-01
MOTOR COACH VILLAGE'S REPLY TO
CDS STONERIDGE UTILITIES,
LLC'S..FINAL COMMENTS"
COMES NO\ry, Motor Coach Village HOA, (hereinafter the "HOA") and lodges its
Reply to CDS StoneRidge Utilities', LLC's (hereinafter the "Utility") Final Comments in the
above captioned matter.
I.
THE UTILITY HAS CONCEDED ALL LEGAL ISSUES
IN FAVOR OF THE HOA
The Utility's "Final Comments" fail to rebut, counter or even address any of the legal
arguments set forth in the HOA's Answer. Specifically, the Utility failed to respond to the
HOA's assertion that the Idaho Public Utilities Commission ("Commission") lacks jurisdiction
to entertain a complaint by a regulated utility against one of its customers. (Ref. HOA's Answer
at $ I(B). The Utility failed to respond to the HOA's assertion that the Utility's complaint failed
to comply with the Commission's Rules of Procedure dealing with Complaints. (Ref. HOA's
MOTOR COACH VILLAGE'S REPLY TO
CDS STONERIDGE UTILITIES, LLC'S..FINAL COMMENTS'' - I
RECEIVED
2023 May 5, 4:26PM
IDAHO PUBLIC
UTILITIES COMMISSION
l
2
J
4
5
6
7
8
9
l0
ll
t2
l3
t4
l5
l6
t7
l8
l9
20
2l
22
23
24
25
26
21
28
Answer at $ I(A) The Utility also failed to identiff any "act or omission" on the part of the HOA
upon which a complaint by the Utility must rest.r
The Utility has therefore conceded these issues. It is generally accepted pleading practice
that if a party's responsive pleading fails to rebut or address an argument made by the opposition
in an earlier pleading, the party failing to respond is deemed to have conceded the point. United
States v. Berkowitz,927 F.2d1376,1383 (7th Cir. 1991). Furthermore, the only other party to the
case (PUC Staff) has not attempted to address any of these fatal flaws. Thus, the Commission
should summarily dismiss the Utility's complaint for lack ofjurisdiction, or in the altemative
find that the HOA was operating under the reasonable belief, induced by the Utility, that it was
not being illegally under-billed and hence is not liable for any alleged past under-billing
amounts.
II
DISPUTED "FACTS''
The Utility's "Final Comments" contain two spread sheets that purport to show, for the
first time, the specific dollar amount of the alleged underbilling as "approximately 543,220.74."
The spreadsheets are offered, apparently, as evidence supporting the Utilities claims. However,
the spreadsheets and the alleged dollar amount of the alleged underbillings have not been
verified or authenticated. They have not been subjected to discovery, inspection or cross-
examination. It would constitute a denial of the HOA's due process rights for the Commission t<
accept the Utility's unsubstantiated and unauthenticated allegations as fact. Indeed, the Utility is
I IPUC Rules of Procedure, Rule 054.02.
MOTOR COACH VILLAGE'S REPLY TO
CDS STONERIDGE UTILITIES, LLC'S..FINAL COMMENTS'' - 2
I
2
3
4
5
6
7
8
9
l0
ll
t2
t3
14
t5
t6
l7
l8
l9
20
2l
22
23
24
25
26
27
28
only able to characterize the dollar amount of the alleged underbilling as an 'approximation."
The Utilities own (un-verified) spreadsheets are only able to offer an "approximation" of the
alleged under billings. Approximations are not facts. Approximations cannot form the
foundation upon which a defensible Commission order may be based. For these reasons the
Commission should reject the Utility's request for an order that the HOA has been improperly
underbilled in the amount of "approximately 943,220.74."
III.
THE "SPECIAL CONTRACT''
RED HERRING
In its "Final Comments" the Utility goes to great lengths to disavow the enforceability of
the "Special Contract." The Utility misses the point altogether. As discussed in the HOA's
Answer, the HOA relied upon the special contract as any reasonable and rational actor would.
The HOA does not dispute the Commission Staff s after-the-fact assertion that the Special
Contract is not enforceable. Nevertheless, at the time the Special Contract was entered into by
the HOA and the Utility, both parties were under the impression that it was enforceable and
legally binding. Hence, the HOA reasonably relied on representations made by the Utility as to
the applicability of the Special Contract. This reasonable reliance requires, at a minimum, that
the Commission apply the six month 'safe harbor' test to limit any past under-billing to just the
most recent six months.
It is disingenuous, at best, for the Utility to now claim that it never believed the S
Contract was valid or enforceable. According to the Utility's Final Comments:
It has been our that the Contract has not been a
aqreement upon this account in the past nor is it going forward for the following reasons:
1. As a Special Contract our current Tariff requires IPUC review and approval
there is no evidence that has occurred.
MOTOR COACH VILLAGE'S REPLY TO
CDS STONERIDGE UTILITIES, LLC'S..FINAL COMMENTS'' - 3
l
2
J
4
5
6
7
8
9
l0
il
l2
t3
l4
l5
l6
t7
l8
l9
20
2l
22
23
24
25
26
27
28
2. The agreement/letter is between Motor Coach Village HOA
StoneRidge Golf Community and not the CES StoneRidge Utilities, LLC so S
Utilities, LLC aseparate legal entity was not bound by the agreement/letter.2
The Utility is now claiming that it knew the Special Contract was false all along. Yet, despite
apparent knowledge, the utility knowingly induced the HOA to execute an unenforceable
agreement. The Utility's subterfuge should not be rewarded by the Commission. That said,
utility's admission that it misled the HOA into believing that the Special Contract was a valid (
its 'fingers' crossed behind its back) is compelling evidence of the reasonableness of the HOA'
reliance on the Special Contact and therefore its belief that it was current on all Utility billings.
The Utility's resent claim in its Final Comments, that it
all along is apparently also false. In a letter addressed to Ms. Noriyuki and Ms. Carlock at
PUC dated February 20, 2023, the Utility admitted that it only just recently learned of
unenforceability of the Special Contact:
As you may already know, recently StoneRidge Utilities, was informed by IPUC Staff
a determination had been reached by IPUC Staff - that there was not a "Special
governing the water service we provide to Motor Coach Villages' 6" meter.
That both the Utility and the HOA were under the belief that the Special Contact was a valid
enforceable agreement is verified by the attached affidavit of Mr. Lloyd Holloway in which,
oath, he explains the circumstances surrounding the execution of the Special Contract.
Holloway's affrdavit impeaches the Utility's claim that it knew all along that the Special Con
was not enforceable. Mr. Holloway's affidavit is attached as Exhibit A to this Reply
2 Final Comments at p. 4. Underscoring provided
MOTOR COACH VILLAGE'S REPLY TO
CDS STONERIDGE UTILITIES, LLC'S..FINAL COMMENTS'' - 4
Mr
I
2
J
4
5
6
7
I
9
l0
ll
l2
l3
t4
l5
l6
t7
l8
l9
20
2t
22
23
24
25
26
27
28
The Utility's red herring notwithstanding, it is important to keep in mind that the S
Contract validates the reasonableness of the HOA's understanding that it was not being underbil
The enforceability or lack of enforceability of the special contract is irrelevant for purposes of
Commission's deliberations. That is because the HOA does not rely on the Special Contract
govern the legal relationship between the parties - but only to demonstrate what the
reasonably understood that relationship to be
III.
FAILURE TO ADDRESS WAIVER ARGUMENT
The HOA asserted in its Answer that this Utility has voluntarily waived any rights it ma
have had to rebill for alleged past under-billings pursuant to IPUC Customer Relations Rule N
203.01. The Utility's Final Comments do not object to, nor do they attempt to rebut this assertion
The assertion of a waiver is therefore conceded by the Utility.
IV.
CONCLUSION
The Utility's Final Comments fail to rebut any of the HOA's legal arguments relative
the lack of PUC jurisdiction over this matter or over the HOA. The validity of those
are therefore conceded.
The Utility's Final Comments fail to rebut any of the HOA's legal arguments relative to i
failure to comply with the Commission's rules of procedure relative to the lodging of
The validity of those arguments are therefore conceded.
The Utility's Final Comments fail to rebut any of the HOA's legal arguments relative to
waiver of any rebilling rights that it may have had. The validity of those arguments are
conceded.
MOTOR COACH VILLAGE'S REPLY TO
CDS STONERIDGE UTILITIES, LLC'S..FINAL COMMENTS'' - 5
I
2
J
4
5
6
7
8
9
l0
il
l2
l3
t4
l5
16
t7
t8
l9
20
2t
22
23
24
25
26
27
28
The Utility's final comments also reinforce and validate the HOA's assertion that it hal
justifiably and reasonably relied upon the Special Contact, and the All Accounts Are Current letter
to trigger the Commission's safe harbor six-month limitation on back billings. (See HOA Answer
at $ III).
Dated this 5th day of May 2023.
I
Peter J. Richardson, ISB #3195
Counsel for Motor Coach Village HOA
/t
t/
/t
il
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 5th day of May 2023,I served a true and correct copy
of The Motor Coach Village HOA's Reply to CDS StoneRidge Utilities, LLC's "Final
Comments" upon the following by electronic mail only addressed to the following:
Jan Noriyuki
Commission Secretary
Idaho Public Utilities Commission
Jan ¡ori uki @puc. idaho. sov
CDS StoneRidge Utilities,
Attn : Teres a Zamora, Utilities Administrator
P. O. Box 298
Blanchard, ID 83804
utilities@stonerideeidaho. com
MOTOR COACH VILLAGE'S REPLY TO
CDS STONERIDGE UTILITIES, LLC'S..FINAL COMMENTS'' - 6
I
2
J
4
5
6
7
8
9
l0
ll
t2
l3
t4
15
t6
l7
18
t9
20
2t
22
23
24
25
26
27
28
Peter Richardson, ISB # 3195
RICHARDSON ADAMS, PLLC
515 N. 27th Street
Boise,Idaho 83702
(208) e38-7e01
peter@richardsonadams. com
Attorneys for Respondent
Motor Coach Village HOA
BEFORE THE IDAHO
PUBLIC UTILITIES COMMISSION
CDS STONERIDGE UTTLITIES, LLC
COMPLAINANT,
vs.
THE MOTOR COACH VILLAGE HOA,
RESPONDENT.
Case No.: SWS-W-23-01
MOTOR COACH VILLAGE'S REPLY TO
CDS STONERIDGE UTILITIES,
LLC'S..FINAL COMMENTS"
EXHIBIT A
Consisting of the one-page Declaration of Lloyd Holloway and the three page
"Agreement and Understanding on Water Meter 357 and Inland Power Refund Request.
MOTOR COACH VILLAGE'S REPLY TO
CDS STONERIDGE UTILITIES, LLC'S..FINAL COMMENTS'' - EXHIBIT A
DECLARATION OF LLOYD HOLLOWAY
(1) My name is Lloyd Holloway. ln 2017, I was a resident of the Motor
Coach Village, Stoneridge (MCV) and in 2CI17,1 was also President of
the Motor Coach Village Homeowners Association.(2) A Settlement Agreement was entered into between Motor Coach
Village and the Stoneridge Golf and Recreation Community (which
included Stoneridge Utilities). This settlement agreement was dated
15 November 2017 and signed by me on 20 November, 2017. A
true copy of the settlement agreement accompanies this declaration.(3) The settlement agreement was a resolution of a dispute between the
parties over: (a) incorrect and overcharged water billings; (b)
improper placement of fire hydrants providing fire protection behind
the water meter; and (c) MCV being charged for irrigation water use
of areas outside of Motor Coach Village and not the responsibility of
Motor Coach Village.(4) I have previously been a Fire Chief. As a former Fire Chief, I was
particularly concerned about fire hydrants used for the purpose of fire
protection being placed after (as opposed to before) any water meter.
Turning or shutting off the water meter would prevent the flow of
water to fire hydrants, thereby defeating their purpose for fire
protection.(5) Water through MCV meters continues to provide irrigation water
outside of MCV to the Stoneridge Golf and Recreation Community,
and particularly to the south of the water plant.(6) ln order to resolve the dispute, the agreement provided (among other
things) that there would be no reconnect fee for the 6" meter (meter
number 247\ and no minimum monthly fee, unless usage was
detected.(7) I d¡d not know of and was never told about any Public Utility
Commission requirement that the agreement had to be approved by
the IPUC in order to be valid.
Pursuant to ldaho Code 9-1406 and 28 USC 1746, I certify under penalty
of perjury pursuant to the law of the State of ldaho that the foregoing is true
and correct.
\\day of February,2A23
L
Dated and signed this
Ho v
$r"cruE R¡DGË:
PO BÕX 28ii
3 ê/:l 5 ríl¡'r- i¡[)cF- R(]Äi)
8l .¡¡¡(- {-r,\t?i) ir}¡\i-.{rJ 8:18().,1
P! rrJ¡rf:. :?O8.¿l:17 3 I 4B
Ë.Àf 2()8.¿t.17 3()48
5'ro i\i Ë R i ÛG E ¡ tA l-.to. co Nt
f\ovember L5,2#17
Mr. Lloyd Holloway
Presicient: Motor Coach Village at Stoneridge
Blanchard, lD 83804
Rf;: Agreement afid Understanding on Water Met€r 357 and lnland Power Refund Request
It is ägreed thåt, by entering into this Agreement, neither Str:rreridge Land, LC, Stoneridge
Utilities, LC, Ðridge lnvestment 6roup or âny of íts Employees nor Mstor Coach Village at
Stoneridge or its ßoard of Directors make any admi:sion of any failing or wrongdoing. lhe
parties rnerely have agreecl to resc¡lve amicably all dispLrtes regarding Water fVleter 357 and the
lnl¿nd power Refund Raquest. This document will serve as an âgreernent to rÊ[t¡fy any
inequalit.T and as ên ågi€ement of procedr-¡re frorn this clate forward.
Stoneridge Utilities ägrees to credlt iVlotor Coach Village at Stoneridge $¡,¡e:.:g ffhree
Thou¡a¡d Three Hundr*d Sixty ïhree Dollars and Thirty Ëight Cents) for watei' usage billerl to
¡;lotor Coach Village,:'rer tlre past fi're years, Stoneridge r,ltrìities also agrees to credit l/1otor
Coach Village at Stoneridge $3,413.4û {Three Thcusand Foiir Hundred Thirteen Dollars and
Foi'ty Cents) for Metef Fees associated u/ith meter 357 orrer the past five years'
It is agreed upon that beginning with the September 201/ water bitlwhich will not be subiect to
latefeesif paidonorbeforeOecember l.20LT,chargesassoci¿tedwithMeter35Twillbesplit
in the fallowing manner: Montnly Nlinimurn Custsrnei" Charge will be 1l3 Motor Coach Village
at Stoneridge, 1./3 Stoneridge Utilities, 1/3 5tonerielge Str:rage Condominiunrs. Water usâge
charges of fvleter 357 will be split 559/o lVlr:tor Coach Villag* at gtoneridge,4to/r Stoneridge
Utili.rier, 5% Stoneridge Storage Ccnclominii.¡ff5. Râtes will be current IPUC rates (subject to
ch,:nge rn acccrdance with the lrJ¿hc Pubiic Utility Comrni:;ioniof 91.70.67 for the Mini¡num
M*nthly C¡str¡rrer Charg,e, a¡rd the Comrnoclity {or r,vater r-riage) Charge will be i0 79 per 1,000
gaìlons used
It is al:;r: agr.eed upon thåt fulotcr Coach Village at !tonericlge wtll i:crltintre to b* billerJ for t'¡¡t-l
adrJitional sJater rï*tet;, a:: folk:',v::
Melerf ì47 {a giï:_ir-rch meter ussd.fo( lots ggd irisatiqn}
Meter 247 r¡rill have the Minimum Monthly Custorner Charge icurrently S1,536)imposed during
the n'¡onths that wâter usage 15 {etected, normally the irrigation nonths of May through
September {a five-month periotl).
Meter 247 w¡ill rìot have the Minimum Monthly Customer Charge iinposed during the months
that wåtsr usage is Ntl- detected, norrnally October through April {a seven-münth period}'
lrrleter 247 will have no seasonal re-connect fee icurrently $4,L60) imposed in April'
Me_ter 338 {a lwgjnch metgr up,qd for lots.qnd trisatipni
Meter 338 will NCIT have the Minimurn lylonthly Customer Charge imposed during tl're rnonths
thät the Minimum Monthly Custorner Charge is imposed on lvleter 247
Meter 338 WILL have the Mi¡rir"num Monthly CustÕrne¡'Charge imposed only during those
months when water flow is detected on Meter 338 but NOT on Meter 247, typically the months
of April and October.
The following ehart outlines !his understanding eoncerning the ltlinimum MonthlV Customer
Charges:
to1eter 338 inch Meter 247 inch
Mrter 357 Split Three
Jan
Feb
MâT
ABr
No Meter Charge
Nc Meter üharge
¡1ü Meter
Nû Meter Charge
¡lc tuleter Chå
No MeterCharge
þlo ¡v-leter Charg*
Na Meter Charge
Mete r ehar6e if there is
üsâge on 338 cnly
No Mefer Charge
No tuleter Charge
No Meter Charge
F¡f Meter Charge
N0 Mater Charge
ûieter Charge if lhere is usage
on 338 oniY
No Meter üharge
flo Meter C
No ¡ileler Charge
f]o [treter Çt'arge
Nû Meter Charge
Mete r Clrarge íf there is
Meter Charge if tbere is
usage
Nlo lvleter Charg*
i\c Meter Charge
MaY
iun
lul
Aug
5ep
ûct
N*v
ûec
ln adrjitir:n, it is agree;:l upon that 5t':neridge Lar¡d wiiicredit il-lüI{.}r Coaç.h Village at St*neridge
5¿,5f 3,22 iT'ua TharisanC l-ivel Hrirrclre<J Fifte*n D*liars ar';d T,¡renty Twa {let:tsifr:r ì*larrd
Pswer Refund Request dated fvlay 5th, 2û17. This agreement will end all further claims by the
Motor Coach Village. As part of the agreement StÐneridge Land, LC agrees to assist the Motor
Coach Village at Stoneridge in collecting lnland Power charges from both the JMBCA and any
individual listed on the Refund Request Document,
Brad Hanseria Date 1,1 ¡r ]j
G,M. Stoneri ge Golf &alCommunity
Lloyd Holloway aare . 1/ :â a -./-Y
President Motor Village at Stone