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Toledo refutes claims of unfair billing

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Toledo Mayor Jerry Pratt has defended the city’s utility billing policies in response to a complaint made Aug. 5 that Toledo is charging unfairly for water and sewer service.

Property owner Roger Johnigk has said the city is charging him for nine hookups at his apartment complex at 550 N 5th St. when only two meters service the building. Johnigk’s attorney Jim Nelson told the council the practice of charging for what he called "phantom hookups" was contrary to state law, as well as the Equal Protection Clause of the 14th Amendment.

Pratt, who had not been at the Aug. 5 City Council meeting, spoke during their Aug. 19 meeting and said the nine units (eight apartments and one laundry room) are not without their own utility hookups, they are simply supplied by two meters.

"We have an ordinance, and that’s what we go by, and that’s what we have to go by," said Pratt, referencing Ors. 325, which states residential sewer and water services will be charged "per living unit" and does not set a rate per water meter. It also states the per unit rate will be set according to the level of use by a 5/8-inch meter, and the meters supplying Johnigk’s building are each two-inch.

Pratt further cited past meeting minutes in which the original owner of Johnigk’s building, Ed Nix, sought special permission from the City Council to use only two meters while building the complex in 1973, stating expressly he wished to save money by not installing more. Pratt said it falls on the original owner’s shoulders if the building does not have one meter per unit, again asserting the city has to charge for utilities according to ordinance.

Nelson said he does not see how the prescriptions of an ordinance change his client’s arguments and said, while the city may be following their own rules, their own rules may still be illegal.

"I don’t see what the relevance is to this ordinance," he said, stating he understands a judge has already deemed the city’s billing practice illegal after Toledo unsuccessfully sued Nelson under similar circumstance in 1985.

Nelson had acquired a building at 205 and 203 Cowlitz St. in 1979 containing two commercial units and four residential units, according documents from Lewis County Superior Court, and stopped paying for sewer/water services on all except one unit because the building was serviced by only one meter.

After accumulating $1,632.54 in unpaid bills, at a time when sewer/water services cost $11.50 per month on residential units and $18 per month of commercial units, Toledo sued Nelson for the outstanding amount plus one percent interest for each month his bill remained unpaid.

In response to the suit, Nelson filed similar arguments to what he has stated on Johnigk’s behalf, saying the city’s ordinance was "illegal, and therefore unenforceable." The case saw little action by the city after being filed and was going to be dismissed in 1992, but was instead scheduled for a bench trial in 1993 in which Cowlitz County Superior Court Judge Don McCulloch presided over the matter (Nelson noted the Lewis County judges in the matter had recused themselves as Nelson practiced law before them.)

Documents show McCulloch found in favor of Nelson, stating his arguments were better-supported by law than Toledo’s. The city was denied any damages and Nelson said he has been paying for only a single hookup since.

Admitting he had not seen documentation of the case, Pratt said during the meeting he does not believe the suit against Nelson, nor McCulloch’s ruling, have bearing on Johnigk’s circumstances, stating they deal with two different kinds of buildings. Nelson asserted strongly they have very much to do with each other and he has repeatedly cited McCulloch’s ruling as precedent placing his client in the right.

At the end of the meeting, council members took no action in the matters, though Pratt said the option remains available to them to change ordinance. He did state, however, officials may not be compelled to do so without legal action taken by Johnigk. Nelson did not indicate if Johnigk is willing to take the matter to court but said he is prepared to advise his client to pay only for two hookups, as Nelson had in regard to his own building.

Pratt said, if the utility services go unpaid, the city would be required by law to shut off services to the building.

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