The following is an email exchange between former Kearney mayor Jeff Johnston and Hartley Casselman, a board member of the Clam Lake Property Owner's Association. The emails are so the most recent is first and the original email is at the end.
The main point to take away from the discussion seems to be that Section 15 of the Building Code allows for CBO Henry Hess to carry out inspections of unsafe sewage systems, NOT any and all sewage systems. Kearney's new by-law might try to tell us different, but it really looks like if you don't want Hess sniffing around (pun intended) your property you can tell him to get lost (if a municipal by-law conflicts with provincial law, the provincial law - in this case the Building Code - wins). Unless Hess can prove beforehand that your sewage/septic system is already known to be unsafe. And we've made the point before; Do you really want Paul Tomlinson's new Sheriff Cash-Cow snooping around looking for "violations" to pay his salary?
The main point to take away from the discussion seems to be that Section 15 of the Building Code allows for CBO Henry Hess to carry out inspections of unsafe sewage systems, NOT any and all sewage systems. Kearney's new by-law might try to tell us different, but it really looks like if you don't want Hess sniffing around (pun intended) your property you can tell him to get lost (if a municipal by-law conflicts with provincial law, the provincial law - in this case the Building Code - wins). Unless Hess can prove beforehand that your sewage/septic system is already known to be unsafe. And we've made the point before; Do you really want Paul Tomlinson's new Sheriff Cash-Cow snooping around looking for "violations" to pay his salary?
In addition to our view that the By-Law has not been well thought through, my interpretation of the legal opinion that the Town of Kearney received in preparation of the Septic Inspection By-Law has not been followed. The “legal opinion” (copy attached) states:
a) the North Bay Mattawa Conservation Authority (NBMCA) is responsible for enforcing the Building Code and Act as it relates to sewage systems within the District of Parry Sound. The Town of Kearney does not have that authority.
b) the Municipality has the authority to create standards of property maintenance including maintenance of a sewage system. The Town of Kearney has not created a standard/consistent process for capturing pertinent information regarding septic systems in Kearney, nor a means to determine/identify problem systems. The CBO’s assessment with this program is subjective at best.
c) the Municipality relies upon Section 15 of the Building Code to carry our inspections of unsafe sewage systems.... The realm of municipal authority addresses “unsafe sewage systems” and not all sewage systems as this program intends. The Town of Kearney doesn’t have a data base of septic systems and as a first step, it is not trying to establish one.
d) “It is, however, important to stress that the use of the property standards by-law DOES NOT EXCEED THE AUTHORITY PROVIDED TO THE BUILDING OFFICIAL pursuant to the Building Code Act WHEN THE CONSERVATION AUTHORITY IS THE BODY CHARGED WITH THE ABILITY TO INSPECT SEPTIC SYSTEMS. “ It appears the Municipality IS EXCEEDING the authority provided in the Building Code ActIn discussions with experienced septic system installers and repair persons, observing a septic system will not divulge any issues unless there is visible ponding. A completely failed system may have no visible indications. But if the Municipality declares a septic system to be safe, this exposes the Municipality to liability issues, especially if the property is sold and the new owner discovers a serious septic problem. Recourse could be litigation against the Municipality.As leaders in our community, I ask you to take a very careful look at the Town of Kearney’s actions regarding this Program. Also, please try to attend the public meeting scheduled for April 17, 2012 @ 7:00 PM, Kearney Community Centre, or ensure there is representation from your associations, property owners, and businesses.Thank-you,Jeff JohnstonFrom: Hartley CasselmanSent: Wednesday, April 04, 2012 11:35 AMTo: Jeff JohnstonCc: Kenneth BallSubject: Re: Septic Inspection ProgramHi JeffNo problem in forwarding my comments along, hopefully they will not fall on deaf ears. However, please represent these as my personal comments and not from the CLPOA.One other point that can be made is that there is no official record in the town showing just where the septic system is located on a property, so this will lead to further guess work on the person doing the inspections.Thanks Hartley----- Original Message -----From: Jeff JohnstonTo: Hartley CasselmanSent: Wednesday, April 04, 2012 8:15 AMSubject: Re: Septic Inspection ProgramHi Hartley,Excellent points and I agree wholeheartedly.Your point #7 – potential Town liability. Excellent , excellent.Your point #8 – I believe the CBO is certified to inspect septic systems, however in talking to Gary Groome, who as you know is very experienced, he says the type of inspection the CBO plans will not detect many problems, so to your points, unless there is a visible problem, it’s a waste of time and taxpayers’ dollars.Would you mind if I sent this along to the Presidents of the other property owner associations and some other members of the public and council? I think your email states things very well.Regards, JeffFrom: Hartley CasselmanSent: Tuesday, April 03, 2012 10:53 AMTo: Jeff JohnstonCc: Kenneth BallSubject: Re: Septic Inspection ProgramHi JeffIt is good to hear from you!The following are my PERSONAL concerns [not CLPOA].A while back I sent a communication form to the town supporting the basis for the septic inspection program but disagreeing with the methodology of how this was being put into place.
1. Responsible homeowners, like myself and others around the lake, who have their septic tanks pumped every 3-4 years and inspected by a licensed contractor to do so, and maintain backup documentation to prove this should be exempt from these unscientific intrusive town inspections and the new tax.
2. It is a total waste of time for Henry Hess to inspect these systems.
3. If anything, he should only look at those properties who do not maintain their septic systems until a catastrophe occurs. AND!!! Those property owners should pay the full expense for the town to do a proper flow and dye test... not this walk and sniff test which is a load of crap... no pun intended...
4. Even if done this way, the system will not be perfect. Case in point Jim and Jean Wright who recently sold their property had never had any service done on their septic system in all of the years that they were residents. Their property had no smell and there was no visible ponding around the septic bed. However, their septic system now needs to be replaced as it is totally plugged up. The home inspector could not flush a toilet without it backing up. Luckily for the new homeowner, it was caught on inspection and several thousand dollars was held back from the sale price to pay for this. If the Wrights had been a little smarter, they could have had their septic pumped just prior to closing and the problem would have never come to light and they would have had several thousand more dollars in their pockets now.
5. I, personally, do not want a town inspector snooping around unescorted on my property. As far as I am concerned this is "Illegal Trespass" and it is my intent to properly notify the town that their inspector must make an appointment with me should he wish to pay me a visit.
6. The town's new bylaw has no teeth, in that, if they do find a violation in the bylaw, there is nothing that they can do to force a property owner to repair their septic system.
7. Then there is the flip side of this. A town inspector looks at a property finds everything OK and shortly thereafter a problem occurs.... What is the responsibility of the town and can they be held responsible.
8. Henry Hess is a building inspector and not a septic system inspector. Will he now be trained in this field and who will pay for this [need I guess] additional training and certification?Needless to say, I believe that this has not been well thought through, I may be mistaken, but I doubt it. With all of this in mind it is understandable why MNR Mattawa North Bay never set up an inspection program and was only interested in NEW septic system installations and not what happens afterward.Just to clarify, this email reflects my personal concerns and not the CLPOA. While we have had a brief discussion in a board meeting about this program, this email does not reflect the discussion by the board. I am sure that this will be discussed in a future board meeting and an official response will be forthcoming from the board.Hartley----- Original Message -----From: Jeff JohnstonTo: Hartley CasselmanCc: Councillor Yvonne Wills ; Councillor Ken Ball ; Councillor Arthur Murdy ; Councillor Steve Sainsbury ; Councillor Louise Wadsworth ; Levy Lorne ; Ron Duff ; Dave Matson ; Bob TilleySent: Tuesday, April 03, 2012 7:32 AMSubject: Re: Septic Inspection ProgramHi Hartley & Rhonda,Thanks for the notification. This is the first I had heard about it.I fully support a septic re-inspection program and I applaud the town for putting one in place. However, I do have some serious concerns regarding the Town’s approach and process, it has notbeen well thought through and does not seem to draw upon the abundance of experience and information available. I am basing my opinion solely on the By-law and feedback from those who have been selected in this year’s inspection program.Some examples;
1) other municipalities begin by building a comprehensive data base of all septic systems in the Town, containing pertinent data on septic system specs, date installed and subsequent maintenance activity including last time pumped out.
2) have a standard data sheet and send a copy to the respective property owner to verify town data and fill in the blanks.
3) once the data base is created, start field visits with known problem systems, oldest systems, and systems with greatest exposure to environmental risk, e.g. shoreline. Currently the selection of systems seems random and includes systems that are back lot or less than 5 years old.
4) establish a maintenance program for all septic systems that include specific cycles depending on type of system, usage level (e.g. full time residents, seasonal, rental, etc.)Field visits need only be done on an exception basis. Currently the CBO’s visit to private property is seen as an invasion of privacy by many, and a possible ruse to do other inspections or observe other violations of the building code.Regards, JeffFrom: Hartley CasselmanSent: Sunday, April 01, 2012 10:34 PMTo: Hartley_Rhonda CasselmanSubject: Septic Inspection ProgramNOTICE TO ALL CLPOA MEMBERSWe have received the following notice of a public meeting, from our local representative on town council, regarding the new septic system inspection program in Kearney. If you have any questions or concerns about this new mandatory program, you should attend this "Open House".Subject: Septic Inspection Program"Property Standards Sewage Inspection Program Open House" in the Seniors Room at the KCC, Tuesday the17th April 2012 7-830pm.Thank youYour CLPOA Board of Directors
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