Part 2 AlamogordoTownNews.com Special Report - Why do homeowners have to pay for repairs to sewer connections that are in the city street?

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May 29th, 2021 we ran a story in the AlamogordoTownNew.com site expressing concern with damage being perpetuated onto homeowners in the McKinley Channel construction area and the city's failure to recognize an issue.

Bobby Smith of McKinley street asked the AlamogordoTownNews.com staff to reach out to the city elders and see if something could be done to stop the damage. What was happening, is Payte Construction Company was running heavy equipment onto McKinley Avenue and other close roads. That equipment exceeded the allowable weight thresholds for residential neighborhoods and the result was the weight and the vibrations were causing aged sewer lines to break at the connection point.  

The connection point and its location is the rub with the city.  Per city code if a water line from  breaks from  the house, the homeowner is responsible from the meter which is by the sidewalk and back to the home, the city is responsible from the meter which is at the sidewalk and on into the street.

That however is NOT the case for a sewer line break. For a sewer break the homeowner is hosed, so to speak. The damage is to be paid by the homeowner at the connection point which is in middle of the city street in most cases for sewer lines unlike water lines. The result is the homeowner is responsible for a sewer line break, sidewalk repair and street repair even if the fault is not their own. 

McKinley Avenue, homeowner Bobby Smith reached out to his elected commissioner, Susan Payne, to mention his concern about having to pay for street repairs from damage caused by the construction. AlamogorodoTownNews.com was onsite for the phone conversation which was a conversation of hostility and defensiveness on the part of the commissioner. She basically told Mr. Smith the ordinance says homeowners are responsible and that is how it is. She did however agree to have the city manager and the manager of public works come to the street and visit with Mr. Smith the access the situation.

The situation.

The construction company damaged the road. In a period of a month 6 homeowners had to have repairs. In Mr. Smith's place Payte Construction accepted responsibility and paid for the repairs but it did not pay for every homeowners damage in the area of McKinley and surrounding streets. Mr. Smith's complaint with the city commissioner however was not who would pay for it. His complaint was what happens to the multiple homeowners around Alamogordo that cannot afford these repairs and are intimated into paying them under a threat of city code?

The issue at hand however is much bigger than the issue of Payte Construction and the McKinley Channel area. In interviewing homeowners, all over the city, there are many that have had to pay for the street repair tied to damages to older sewer pipe connections. These expenses can range upward to $5,000, a burden many retired homeowners cannot afford. If the city is forced to repair the issue and its not paid for within 30 days the city then places a lien on the home. 

Why is all of this a concern? 

1.) The city's approach to the issue with the homeowner is inconsistent with the city ordinance and under- represents the issue.

2.) The city should make homeowners aware of this potential risk in expense and it should be a disclosure upon the sale of a home as a risk or the ordinance should be changed.

3.) Homeowners policies should be amended to cover this risk. (The homeowners insurance will not cover anything past the sidewalk as insurance companies view the city street city property) Alamogordo is one of only a handful of cities that place the burden of city street repair of the sewer line on the homeowner. Most cities in the state accept liability past the sidewalk.

4.) Commissioner Susan Payne in particular and the city manager does NOT see this as a problem and feels homeowners should just pay, and the ordinance should not be modified per a follow-up discussion she had with homeowner Bobby Smith.

(Note Susan Payne had an issue with the city specific to water line damages, she has suggested people can file a tort if they are not happy with a city decision.  She said she was told that option to late in a water main break she had and in her case she sued the city and by her admission was awarded $30,000. According to her statement, this issue was different than the sewer issue being discussed and was before she was elected to the city commission. But note she sued the city and received a settlement, she then ran for city commissioner and won with fewer than 300 total votes.)

Let's look at each item specific and solutions:

1.)  The city's approach to the ordinance is inconsistent in enforcement and in following ordinance protocols. What do we mean by that? 

Some would deem the cities approach, as selective enforcement of the ordinance, and some might view the "knock on the door", as, bullying tactics

What occurs is the city finds a leak or damage to the roadway, potentially from a sewer line is the city works department digs up the city street to expose the issue. The city workers then place a cone around the hole to identify it. The city ordinance reads that the homeowner has 30 days to remedy the damages upon receiving "written notice." Thus there is the rub and possibly why commissioners don't see any issue.

The ordinance reads that the city is to give "written notice of repair," in practice however what happens is a supervisor from the works department by his admission has a dirty job. His job is to go and knock on the door of the homeowner and let them know there is an issue, they need to repair it and failure to do so will result in the city doing it and charging up to $5,000 or more to the home owner.

In the case of Bobby Smith, on McKinley Avenue, the city dug up the hole, the supervisor knocked on the door explained to Mr. Smith there was an issue and it needed to be fixed. At first they told him he could fix it. Note the city worker also mentioned they were notifying 4 homeowners of the same issue on the same street that day. "(Not a fun day.")

Mr. Smith then purchased the boot and equipment to do so. The next day another city employee came by and told him he has 30 days to get it fixed and that it must be done by a licensed contractor and then inspected by the city prior to be covered and the street repaved. 

Mr. Smith got estimates that ran as high as $6000 for the repair since it included the city street. One of the contractor who asked to remain anonymous as he didn't want "crap from the city"  said, "he felt bad for the community of homeowners as this was a boom time for him in doing these types of repairs and that Alamogordo was the only city he does work in within New Mexico where they make the homeowners pay for the repair portion in the street."

In Mr. Smith's case Payte Construction accepted liability, did the work and Mr. Smith was not out the $6000. How did Payte fix Mr. Smith's repairs? Mr. Smith went back and spoke to a supervisor who admitted they messed up having the heavy trucks on the city streets and weren't doing it much any more.

On McKinley 6 homeowners were faced with needing repairs in a 1 month period of time.

AlamogordoTownNews.com did a Freedom of Information or New Mexico Open Records request for the city of Alamogordo requesting the number of times the city has cited or demanded homeowners fix and pay for sewer repairs and the locations of each for the past 20 years.

We received the list and to our surprise it consisted of just 4 in 2021 and 5 for 2020. Yet if one drives around the city we see many more. Interestingly in doing our survey with the public on their awareness of this issue we encountered significant dialog from many more residence than listed saying they were notified by the city that they must do sewer repairs.

The number of times the City has cited or demanded homeowners fix and pay for sewer repairs and location over the past 20 years is as follows: (16 in total)

Per the public records request emailed to us by the city...

  • "Per our Code Enforcement Department, they informed us that they could not go back 20 years because their department didn’t start addressing sewer issues until 2016, but since then they have notified the following owners of these locations to repair their sewer problems:
  • 1521 Cuba (2021)
  • 1523 Cuba (2021)
  • 1801 ½ N. Florida (2021)
  • 1306 Indian Wells (2021)
  • 2307 Willow (2020)
  • 801 15th (2020)
  • 1314 Hendrix (2 times) (2016)
  • 1611 Dewey (2016)
  • 901 Bakers Pl (2020)
  • 921 Bakers Pl (2020)
  • 2317 Pine (2017)
  • 2318 Pine (2017)
  • 1210 Vermont (2017)
  • 1111 McKinley (2020)

Per our Public Works Department, these homeowners have been notified:

  • 1601 Hawaii (2020)
  • 1307 McKinley (2020)"

What did we learn from this request? In Bobby Smith's conversation with Commissioner Susan Payne she claimed the city has always operated in this matter and that this is a none-issue that the public should have to pay for these repairs based upon the ordinance that has been on the books for ever.

What did we learn?

  • We learned that the city did NOT enforce this ordinance nor make the public pay for these repairs prior to 2016, so Commissioner Payne misspoke the facts to Mr. Smith.
  • We also learned that the city commissioners nor leadership aren't getting a clean picture of the issue. The ordinance states that written notification will be made to the homeowner. But in practice the city work employee is knocking on the door and verbally telling the homeowner they have 30 days to make a repair repair. Via this informal process verses the written notification as outlined in the ordinance there is not the formal paper trail of the number of times these repairs are being demanded for by the city thus it appears to be a minor issue. To the homeowners impacted it is far from a minor issue. One homeowner asking not to be named claimed she challenged the city employee on knocking on her door and tell her to fix it. The employee responded that technically she was correct the 30 days is technically once the written notice arrives. The homeowner then said that the city employee said, "you really don't want to go that route, just get this fixed."

It is a costly issue and can be intimidating to have a city employee knock on the door of an elderly person and told they have to repair the issue or get a lien against their home. This "informal" notification is intimidating and is outside of the scope of the ordinance as written.  The question for Ms. Payne and the city is how many of these door knocks to repair have actually occurred?

On McKinley, street per the original article there were 5 instances in a month, of this demand for repair and damage, caused by the large equipment from the Flood project. Mr. Smith did indeed meet with Commissioner Susan Payne, the city manager and a representative of the works department. Per Mr. Smith he said, "Commissioner Payne was defensive of the city's position, said she did not see a problem nor did she see the big equipment driving by causing damage."  The homeowner Mr. Smith said he explained, "the big trucks are no longer going up and down but the damage was done and besides homeowners should not have to pay for the repairs in the street or insurance should be forced to cover." Commissioner Payne according to Mr. Smith, "alluded that the insurance issue is outside of their scope, that she did not support changing the ordinance and that the issue was dead to her and a non-issue."

2.) The city should make homeowners aware of this potential risk in expense and it should be a disclosure upon the sale of a home as a risk or the ordinance should be changed.

A proposal was made verbally to Commissioner Payne and the city to consider as an option for solution to this ongoing burden to homeowners for consideration. To date Commissioner Payne who is aware of the issue nor any other commissioner have made an effort to discuss the issue via commission meetings or further investigate the issue nor its impact on citizens nor the city budget.

In an email to the city on behalf of Mr. Smith we presented a few options for the city to implement in consideration of the undo financial stress put on homeowners around this issue.

The proposals were...

A. Implement a policy of disclosure via  city ordinance when a home is sold in Alamogordo as part of the home closing process and paperwork. Most major cities require certain disclosures at close of laws that could impact the homeowner, disclosure of mold and wiring concerns, potential lead paint disclosures etc. Along that same vain we suggested the commission implement an ordinance that requires disclosure of the city ordinance at the time of home purchase. 

28-02-090. - Maintenance and repair of service lines—Connections A property owner is responsible for the maintenance and repair of service lines connecting his building to the sewage collection system including taps, saddles and wys. A property owner is also responsible for any damage to public property resulting from the failure of such service lines, such failure including, but not limited to, leaks or collapses. Upon failure of a property owner to comply with the provisions hereof, written notice by the building inspector shall be given demanding that maintenance or repair be made within thirty (30) days from the date of such notice. Upon failure to comply with such notice, then and in that event, the city shall have the power and the authority to maintain or repair, the cost and expense of which shall be liened
against any such property.

B.) Change the ordinance so that the responsibilities for repairs extend from the sidewalk back to the property and the city assume responsibility for any repairs in the street.

C.) A fund be created similar to what the cell companies provide that allows residents to pay into at a fee of $10.00 per month as a repair insurance fund, then if an issue occurs they are covered in allowing the city to repair the issue. The expense against the city is zero as the number of claims would be offset by the payments into the self insurance fund and would be a way to mitigate the expense for the homeowner. Similar to cell phone loss insurance plans.

D.) Work with the state insurance commissioner and mandate that the homeowners polices cover the repair even if in the street as is the case for water line damage. Homeowners can get additional coverage for water line damages however there is no option for a homeowner in Alamogordo to get the homeowners insurance to cover the street damage without a formal request being initiated by the commission and the state insurance commissioner. 

E.) Repeal the ordinance in whole as written

F.) Do nothing, have no dialog and show a lack of concern for the constituents of which the elected body was elected to represent. 

Thus far Commissioner Payne and the commission has opted for E - Do Nothing and no public dialog in a commission meeting of the issue. 

AlamogordoTownNews.com initiated a survey on this issue and the results show that an overwhelming majority of homeowners out of the respondents were not aware of this financial liability imposed upon them by the city. Further the overwhelming majority felt this was a serious issue and that the commission and the city does not do a good job of informing citizens of city ordinances that may impact them financially. The results to the survey follows...

Commissioner Payne mentioned that if a citizen is not happy with an outcome or a finding the city has made there is the option to file a tort against the city. Under the New Mexico Open Records Act we requested information on the number of torts filed against the city. We received a response...

Pursuant to your Request for Public Records, this is the information we have for you so far:

  • Per our Legal Department, the number of tort claims filed against the City over the last ten years: 57. Regarding payouts: we do not have any payout amounts as our insurer does not provide us with that information.

We find it odd that an insurance carrier does not provide details of payouts to an insured entity given that premium increases with most insurance payouts can have an impact on them. For our business liability and our workers compensation insurance as a company we receive an annual review of factors impacting premiums to include payout factors. However we will take the city at its word that it does not receive this information. However we also suggest to the city leadership they should be requesting this information since it does impact the taxpayers financial exposure and the city budget.

We conclude this special report update with a few thoughts for you as homeowners, business owners and voters to consider.

The City Commission is elected to represent you. When issues of concern, are brought up to commissioners their role is to represent you and to investigate and be your the citizens advocated.  When or if a commissioner berates you, speaks down to you or is condensing in their tone to you, make note of it and act upon it with the ballot at election time. Most commissioners are positive individuals that do indeed care about those they are elected to represent.

We have had very positive experiences of recent with the County Commission and with the Congresswoman Yvette Herrell's office. We may not always be aligned on an issue but we have found in every case the congresswoman's office and the county commission was quick to respond, was polite and provided an appearance of care.

Conversations is City Commissioner Susan Payne, not so much. We recently sent a request for consideration for two of Alamogordo's citizens to be considered for recognition by the city, the county and the congresswoman. We heard back from the county commissioners and the congresswoman's office immediately. Because we got such a quick response we sent a follow-up response to the city to ensure they got the inquiry as we wanted to ensure we emailed to the correct parties.  And note, the county commission and the congresswoman are indeed recognizing the request for recognition of these two local citizens and their contributions to the community. The city, well you the reader decide...

The response in our belief was yet another  berate as per below...

Thank you Rachel. I was just going to reply to Mr. Edwards and explain to him that SEVERAL of us have full time jobs as well as our responsibilities as commissioners and we simply cannot always answer right away. I for example am extremely busy working to try and secure housing, food and other basic resources for our citizens. Many that are on the verge of homelessness or in jeopardy of having their utilities shut off. Other commissioners are likely in similar situations with their full time jobs as well. I apologize if I didn’t answer quickly enough but I am aware of the request and am confident our Mayor will get back with Mr. Edwards one way or the other.

Susan L Payne, MPA

City Commissioner D3

City of Alamogordo

575.491.0211

You as the voters, it is up to you in November to decide on electing representation of individuals that have YOUR interest at heart. Remember, that approximately 16,000 to 18,000 registered voters reside within Alamogordo yet individuals are being elected to office with fewer votes cast then are cast of the position of Alamogordo High School Student Body President. What kind of example does that provide to the young generation? An apathetic voting population leads to a government that is not held accountable and does not represent a majority of the people.

2019 By the Numbers..

https://ci.alamogordo.nm.us/DocumentCenter/View/5270/Unofficial-Election-Results-2019

City Council Commissioner District 1 Jason Baldwin won with only 481 Votes

City Council Commissioner District 3 Susan Payne won with only 341 Votes

City Council Commissioner District 5 Sharon MacDonald won with only 183 Votes

City Council Commissioner District 6 Dustin K Wright won with only 408 Votes

Here are the important dates to know. The Local Election is November 2nd, 2021

Important Dates to Remember

August 4th-SOS will Issue Proclamation, calling for the election.

August 24th – Candidate Filing Day in the Otero County Clerk’s Office (for all Positions) from 9:00 am. – 5:00 pm.

-Local Governments must adopt any ordinances and/or resolutions to establish ballot questions.

-Last day to hold a Special Election.

August 27th – County Clerk shall certify the local government ballot questions to the SOS.

August 31st – Write-In Candidate Filing Day at the Otero County Clerk’s Office (for all Positions) from 9:00 am. - 5:00 pm.

- Last day for a candidate to withdraw.

September 3rd – Notify candidates that qualify to be on the ballot.

September 18th – UOCAVA ballots get mailed.

October 5th – Last day to register to vote by mail or electronically.

- Early Voting begins and Absentee ballots are mailed.

October 19th – Last day to mail out Absentee ballots.

October 30th – Absentee and Early Voting ends (no more voting until Election Day).

November 2nd – Election Day!! Voting from 7:00 am. to 7:00 pm. at all 16 Voting Convenience Centers (VCC’s)

November 9 - County Commissioners will certify the canvass of returns.

November 23rd – The State begins their canvass.

January 1, 2022 - Start date of officers elected to serve terms

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