After a two-year battle, 24 homeowners living under the threat of Gilbert taking parts of their backyards for pipeline repairs can now breathe a sign of relief.
Town Council on a 6-1 vote last week overrode a staff recommendation and chose a less intrusive option – acquiring land at the six manhole locations and installing a block wall around them to provide permanent access. The $17 million option was one of five on the table.
The approved motion included a June 1, 2023, deadline for the homeowners to clear any permanent obstruction that popped up over the years in the utility easement that runs through their backyards.
The town manager also was instructed to negotiate with all the homeowners to provide a see-through fence or gate in exchange for them paying for the cost of clearing the easement. The view fencing would allow town employees to perform visual inspections. Residents also can choose to sell their easement to the town.
“As I sit here and listen to the dozen people speak here tonight the seven of us up here are government,” Councilman Laurin Hendrix said at the Nov. 15 meeting, adding:
“We’re essentially the kings here and we’ve had a dozen people come up here and politely and respectfully beg us to not take their property, take what belongs to them. That’s the most basic element of freedom and liberty, what’s this country is founded on.
“I can’t think of a more basic job of an elected official then to protect the population from government. I abhor the idea of taking their property.”
Hendrix said eminent domain was created for the greater good of the community “but you don’t use eminent domain as your first choice.
“You don’t use eminent domain to just benefit government because these other choices are more difficult,” he said.
He added that staff will decide a certain decision is better and present their data to back up “how they decided that was better, which indirectly persuades us their opinion is correct and it’s better.”
He said although staff presented valid research and conclusion for their recommended option, “I believe there’s more than one option that will work.”
There are a 36-inch deteriorating sewer line and an 18-inch reclaimed water line within the 25-foot wide easement and a 24-inch portable water pipe line just south of the easement.
Both the reclaimed and potable water infrastructure also need rehabilitation or replacement anticipated soon based on leak history and age, according to the town.
Staff has argued for acquiring the easement from all 24 parcels, because it would ensure the Town of unobstructed access and the ability to do expected rehab work.
Vice Mayor Aimee Yentes said she appreciated the time, effort and careful deliberation provided by staff and believed they were giving their opinion as professionals and technicians.
She said staff made a good case for eminent domain and didn’t want to put tens of thousands of residents at risk should a pipe break but that there were “options that have been presented that we’ve accepted as an organization are feasible, that we can do.”
She said she talked with someone at public works who indicated that acquiring the easement from all 24 properties would be best if the town needed frequent access to do physical work, which it does not.
“Quite frankly, there’s been a huge degradation over the last 100 years when it comes to the foundation of property rights in our country,” Yentes added.
Councilman Scott Anderson, who retired from the town as a planning director, added, “Eminent domain should never be used except in rare case. Infrastructure in my opinion is the one critical time that it can or should be used to promote public welfare.
“Our charge is to act in the interest of the entire Town of Gilbert, not special-interest groups. Most people don’t see neighborhoods as special interest groups but they do act in the interest of the neighborhood and your own property.
“The easement needs to be cleared. Again how do we guarantee access and a clean easement many years into the future? Ownership is the only sure way.”
But Anderson added that he was willing to take the short-term solution of either minimal land acquisition at manhole properties or putting gates around the manholes.
“I have struggled with this and I think the town staff has made an excellent argument for this to be a poster child for eminent domain,” Councilman Scott September said. “But the way I have looked at this in just the last few days is what is the least intrusive means to accomplish operational functionality, not necessarily operational perfection.
“What I support makes staff’s difficult job already harder. The ability to access, maintain and reasonably remedy failure I believe could be accomplished through” minimal acquisition at manholes.
Mayor Brigette Peterson said she was taken aback by the new opinions now coming from her peers and noted the two years spent studying and discussing the issue.
“I’m disappointed at the fact that we’ve had those discussions and now we are out here saying a lot of different things,” she said.
She said not having a cohesive council to support staff’s recommendation concerns her because of liability if a pipe breaks. She pointed to the water pipeline that unexpectedly burst on the US 60 in Tempe in May, which caused damage and about a week-long closure.
She said she was concerned with the town not getting immediate access to the resident’s backyards knowing that the pipelines need work. And even though residents have said they are willing to grant access 24/7 to the town, she said there was no legal agreement in place.
“We have no legal way to hold you to any of that,” Peterson said. “None because it’s your private property and that concerns me….I think staff’s been thrown a curve ball.”
Councilwoman Yung Koprowski, the lone dissenter, said acquiring the land from all 24 owners was a great need for the town, noting, “we are absolutely responsible for this service and these infrastructure assets.”
She said the option calling for acquiring land around the manholes would mean all three pipeline projects would have to be done at the same time to minimize impact, “which might have a cost savings but also have that fiscal impact all in the same few years with the capital improvements.”
“Then there are still risks in terms that we are putting this down the road,” Koprowski added. “We are punting this at least 30 years, 20 years but we are still punting it and this situation is going to come up again and when something fails…you have that many millions of gallons of sewage going through that pipe in such a short amount of time that is going to have a really big impact on those properties if it’s behind those walls.”
Koprowski, a civil engineer, said having the pipes in the public right-of-way also increases early detection “because of people walking along those trails and things like that – from the smell mainly.”
She said the decision would affect at least 50,000 residents who rely on service from those pipelines.
Councilwoman Kathy Tilque said she respected the staff’s recommendation but would like to have an option for something else.
She was still on the fence until council decided at about 12:15 a.m. to go into executive session to discuss the legality of a motion made by Anderson.
An hour later, Tilque made the motion that was supported by all but Koprowski.
Council also authorized the town manager to execute contracts up to $300,000 for work associated with the sewer pipe.
And Council approved Nationwide Realty Investors’ request for a five-story apartment with 353 units at its 280-acre Rivulon development.
Three residents spoke out against the proposal. The vote for the minor General Plan amendment and rezone for the project was 6-1 with Hendrix the sole dissenter.
Council also approved a proposal for a major General Plan amendment and rezone for the Lindsay 202 industrial business park project to build on 94.07 acres at the northeast corner of Lindsay and Germann roads.