Retirement facility seeks refund
ACTS Retirement-Life Communities, Inc. filed a lawsuit against the Town of Columbus, last month, claiming that the town has been charging its retirement facility, Tryon Estates, for water and sewer services unfairly, illegally and in a discriminatory manner.
The suit was filed in Polk County Civil Superior Court on Feb. 9, 2011.
The lawsuit claims that Columbus treats Tryon Estates as having 274 individual water meters when it actually has six water meters and should be considered a commercial customer. The retirement center, located off Peniel Road just outside the city limits of Columbus, has 274 units and other living facilities that are not owned by the residents.
“Although the retirement facility is a commercial facility and ACTS should be treated as a commercial customer, since January 2003, the town has wrongfully charged ACTS for water and sewer service as if the retirement facility draws town water from 274 separate (but fictional) residential water meters,” states the lawsuit. “The town has apportioned the retirement facility’s total water and sewer usage across 274 fictional meters, as if each of the fictional meters accounted for 1/274th of the retirement facility’s total water and sewer usage (they do not). In this way, the town has manufactured 274 fictional ‘residential’ water and sewer customers in order to prevent the retirement facility from realizing the benefits of the commercial bulk water and sewer rates for the volume of water actually traveling through its six water meters.”
The town said Columbus’ rates fall into the medium to lower rate category when compared to other utilities of similar size in the state and that the town’s rates are fair and reasonable.
“The Town of Columbus establishes water and sewer rates for its customers, whether inside or outside the town limits, that are fair and reasonable,” said a statement issued by Columbus Town Manager Jonathan Kanipe. “The town provides the same level of service to all customers and responds to all customer concerns in a fair and equitable manner.”
According to the statement, “Anyone interested in comparing the town’s water and sewer rates with those within our region or statewide may do so by visiting the UNC School of Government’s Environmental Finance Center website. This website compiles data for all statewide water and sewer utilities and shows the comparison between pricing and other measurable for these utilities. This website can be found by visiting the following link: http://www.efc.unc.edu/RatesDashboards/nc/NCRatesDashboard.html.
“The water and sewer rates for the Town of Columbus routinely fall in the medium to lower rate category when compared to other utilities of similar size across the state or when compared to other utilities within our region.”
ACTS officials said that Tryon Estates feels very strongly that the rates imposed by Columbus are unfair.
“Up until 2003, the town recognized the inherent commercial nature and status of Tryon Estates, a not-for-profit retirement community serving the elderly in Polk County since 1992, and charged commercial bulk rates for the water and sewer services,” said Tryon Estate’s statement from Michael Smith, corporate director, public relations with ACTS Retirement-Life Communities. “The town then unfairly and without any reasonable basis began charging Tryon Estates for water and sewer service at residential rates, a practice it continues to this day.”
Smith’s statement continues: “Over the past eight years, Tryon Estates has in good faith paid these charges, in excess of $120,000 per year, while repeatedly seeking alternative solutions with the Town of Columbus. Out of fairness to our residents who bear the burden of these costs, we have found it necessary to initiate legal action in order to seek correction of the practice we feel is unfair. We will continue to seek a resolution of this matter and remain hopeful to resolve our dispute with the Town of Columbus.”
The lawsuit says ACTS believes that the town has granted most of its commercial customers the benefit of the town’s lower bulk rates for water and sewer service.
Tryon Estates is asking for “a full refund with interest of all water and sewer charges it has already paid to the town that exceed what ACTS would have paid had the town properly treated the retirement facility as a single commercial user.”
ACTS Retirement-Life Communities, Inc. has owned and operated Tryon Estates since 1992 as a retirement facility. Tryon Estates includes living units as well as many common areas, including a dining room that serves 28,000 meals per month, a commercial kitchen with dishwashing facilities, a swimming pool, a spa/fitness center with bathrooms and showers, a laundry facility and assisted and skilled nursing facilities that also use water and sewer services. Tryon Estates’ water and sewer bill runs between $24,000 and $29,000 per month.
The lawsuit requests the court to declare that the town’s rates for ACTS violate the town’s charter, the North Carolina Constitution (Article 1, Section 1), that the rates are unconstitutional discriminatory taxes, that the rates violate equal protection and are “a taking of property without due process of law,” and that the rates constitute unjust enrichment. The final claim for relief is a request for a permanent injunction requiring the town to treat Tryon Estates as a single commercial user.
Tryon Estates is being represented by Parker Poe Adams & Bernstein, LLP of Charlotte.
The town will have some time to file an official answer to the lawsuit in Polk County Civil Superior Court.