20061026Memorandum re jurisdiction.pdf

GARY A. FINNEY
FINNEY FINNEY & FINNEY , P. A
Attorneys at Law
Old Power House Building
120 East Lake Street , Suite 317
Sandpoint , Idaho 83864Phone: [phone]Fax: [phone]
ISB No. 1356
\f!;:fl1... i... 'J ",. c.
2005 OCT 26 An 8: II
IDAHO ;.~jl.iiC
UTILI liES CO~A:,'I!SSION
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE
APPLICATION OF KOOTENAI
HEIGHTS WATER SYSTEM , INC. FOR
A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY.
KOOTENAI HEIGHTS WATER -
MEMORANDUM
Case No. KHW-W-05-01
COMES NOW the KOOTENAI HEIGHTS WATER SYSTEM , INC., by and
through its counsel , Gary A. Finney of Finney Finney & Finney,
P . A., and submits its Memorandum , as follows:
Kootenai Heights contests and disputes jurisdiction
and this memorandum is submitted without waiver of jurisdiction.
The "Record" - None
There has been no evidentiary proceeding, no
affidavits of fact , and only some kind of investigation/report
submi tted to the Commission which appears to be the basis of the
Commission s findings , conclusions , and decisions to date.
Without receiving the unknown documentation to date , there is
record below , no notice , and no reasonable opportuni ty to
examine , cross-examine , or contest.
KOOTENAI HEIGHTS WATER - MEMORANDUM - 1
The Commission should rescind its prior findings
conclusions , and decisions until a hearing on the issues to
develop a record and for opportunity to be heard.In short
due process is lacking.
In further proof that the findings and conclusions of
comparable rates for water usage , attached hereto is the
Sandpoint Daily Bee article of October 22 , 2006.The Ci ty of
Sandpoint water fees rose in the last two (2) years by forty
percent (40%) and thirty-five percent (35%) respectively.
top of those raises , the new raise effective December 1 , 2006
is an additional fifteen percent (15%) increase.The
Commission s finding and conclusion that the City of Sandpoint
charges $7.00 per month is simply grossly in error.The new
rate will be $22.53 per month for 6000 gallons and $2.44 per
thousand gallons for 6 001-50 000.Out of town (Sandpoint)
users , which include the Kootenai Heights subdivision which
at issue will be $26.25 per month with $3.06 additional per 1000
gallons (6 001-50 000).
There are 36 Lots in the Kootenai Heights Subdivision
the majority of which are served by the City of Sandpoint!The
true comparable water rate for the 11 lots on Kootenai Heights
Water is the City of Sandpoint , who serves the majority of the
Lots in Kootenai Heights i. e. as of December 1 , 2006 is $26.
per month plus $3.06 per thousand gallons from 6001-50 000.
KOOTENAI HEIGHTS WATER - MEMORANDUM - 2
EXPLANATION AND HISTORY
In 1995 , McGhees made a small plat of 36 lots in the
Ci ty of Kootenai.A copy of the Kootenai Heights Subdivision
attached hereto.The Ci ty of Sandpoin t serves water in the Ci
of Kootenai.The City of Sandpoint decided its service area for
the Kootenai Heights Subdivision would "split" the Kootenai
Heights Subdivision.The City of Sandpoint would serve all 18
Lots on the East side i. e. Lots 19-36; and Lots 1-3 on the West
side , for a total of 21 Lots out of the 36 total Lots.The Lots
being served by the City of Sandpoint (21 Lots) were sold-off
first over a number of years.Lot 4 has "" water.
This left McGhees with Lots 5 through 18 e.
Lots.McGhees owed the bare Lots and from time to time , as the
market warranted it , they had houses buil t on the Lots and sold
the completed house with its Lot.
In 2004 , McGhees started to build on the Lots that
were not served by the City of Sandpoint.They decided to build
residences on Lot 5 and Lot 6 , and since these Lots "had no
water" they had a water well drilled on the Lot Line between
Lots 5 and Well Agreement was made for the common usage of
the water well and system and both residences were ultimately
sold , sharing well water by contract e. Well Agreement
TO "CLEAR UP" why the Company filed an Application
with the Commission McGhees then pursued the idea of putting in
further water wells for 2 lots to share.Then the Idaho
KOOTENAI HEIGHTS WATER - MEMORANDUM - 3
Departmen t of Water Resources got involved!I t decided that the
property owners could not put water wells inside the City of
Kootenai for 2 lots to share.It had to be a water well for all
the remaining Lots to share!
McGhees sought approval of the Department of Water
Resources for the second water well to serve 2 more Lots (7 and
8) .The Department then refused to approve 2 Lots on 1 well and
required serving all remaining 11 Lots to be served by one well
- one sys tem .Hence , McGhees complied and organized the present
Company.McGhees personally (not the company) kept building
houses on the Lots and sold them with water from the Company
system as part of the purchase price for the whole lot i.
residence , garage , water , and a Kootenai-Ponderay Septic Hookup.
At no time has or does the Company sell or offer to
sell water to the public.Idaho Code ~61-129 has no
application.In order to get water service for the residences
built ~ McGhee , and sold McGhee to the real estate Buyers
the Company was organized as a separate entity.The Buyers -
the Users , bought real estate , a residence with water , and
they could only obtain water use by buying the Lot - real
estate.There is no offering or selling of water "to the
public
" .
All of the remaining real estate Lots were sold in
this manner.There are no more Kootenai Heights Lots - and no
wa ter being sold to the public.Only two (2) Lots were sold
bare " and purchasers built their own home (Lots 14 & 17) .
KOOTENAI HEIGHTS WATER - MEMORANDUM - 4
SUMMARY
There is no jurisdiction in the Commission.The Company
and all the Lot Owners have a written and recorded Contract and
Easement.The Commission has no jurisdiction to interfere or
create "beaches " of the contract.
The Company only applied to the Commission because the
Idaho Department of Water Resources said it was required which
was probably incorrect.In hindsight , the "Application
WITHDRAWN .
vz1a
Uc..---~lbe I-()l,dayDATED
....
Of of .se'pLdldJ~.L , 2006.
INC.
CERTIFICATE OF MAILING
hereby certify that the ORIGINAL of the foregoing was
mailed, postage prepaid , this
~~~
day of October , 2006 and wasaddressed to:
Idaho Public utili ties Commission
O. Box 83720
Boise, ID 83720-0074 Q~k~
KOOTENAI HEIGHTS WATER - MEMORANDUM - 5
CASE NO. KHW-O5-
KOOTENAI HEIGHTS
WATER SYSTEM, INC.
MEM 0 RAND UM RE
JURISDICTION, EXHIBIT 1
IS TOO DARK TO SCAN
AND
A PLA T OF KOOTENAI HEIGHTS
REPLAT OF LOTS 8, BLOCK PLAT KOOTENAI
LOCATED IN A PORTION OF THE SOUTHWEST QUARTER OF SECTION TOWNSHIP 57 NORTH,
RANGE WEST BOISE MERIDIAN, BONNER COUNTY, IDAHO, AND A PORTION OF BLOCK 7, OF THE
PLAT OF KOOTENAI, AS RECORDED IN BOOK OF PLATS, PAGE RECORDS OF BONNER COUNTY, IDAHO.
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