Published: April 23, 2008 06:26 pm         

Directors respond to Miller on sewer issue and Tennessee Regulatory Authority

This letter is in response to Gerry Miller’s letter to the editor regarding the fate of our wastewater treatment facility and our sewer service. The members of your board of directors are committed to following all Fairfield Glade Community Club covenants and restrictions, Cumberland County, the state of Tennessee, and the federal government’s rules, regulations and laws. It is a shame that one individual and an extremely small number of members have taken it upon themselves to act independently as your representatives with no authorization from you, management, or the board of directors. Here are the facts.

In the fall of 2006 the board was approached by Mr. L.E. Smith, developer of the grocery complex, inquiring as to the interest of the Fairfield Glade Community Club in supporting a major brand grocery store and other commercial entities which would help to promote progress and serve our community. Of course we agreed to hear his proposal and requests. After a complete study of the proposal, which included a review of regulations, a study of past practices, and obtaining a legal opinion, the board signed an agreement to provide sewer to L.E. Smith’s project, which is now legal and binding.

How did we arrive at the conclusion that it was appropriate and within our jurisdiction to do so? History shows that as early as 1991 and up to the present time our system served commercial entities in and outside the boundaries of Fairfield Glade. At present, we have 20 commercial customers. During that time, we have complied with all rules and regulations, received approval from the state on all engineering plans to extend our sewers, and supplied all information requested by any governmental department. This in itself, knowing that the state already knew we serviced commercial entities supported our decision. Did we stop there? No! The proposed plans for the grocery store development were sent to the state and were approved on Sept. 12, 2007. Did we stop there? No! We are chartered as a not-for-profit corporation in the state of Tennessee. Additionally the IRS has designated us to be a 501(C)(4), not-for-profit corporation, and, therefore, under TCA 65-4-101(6)(E), we are not considered a public utility. If we had been designated a non profit home owners association, Miller's assumptions may have been valid. Due to the fact that we are operating a utility as a not-for-profit corporation, we sought a legal opinion form Donald L. Scholes of the firm of Branstetter, Stranch & Jennings, PLLC, Attorneys at Law in Nashville, TN. The question asked was could the Tennessee Regulatory Authority (TRA) determine us to be a “public utility”? The answer was a confident “No”! As our attorney has recently stated in a letter to the TRA:

“Fairfield Glade Community Club is a Tennessee not-for –profit 501(C) (4) corporation by the IRS.

… Under T.C.A. 65-4-101(6) (E), “any cooperative organization, association or corporation not organized or doing business for profit” is a nonutility and is not subject to regulation by the TRA as a public utility. Because Fairfield Glade Community Club is a not-for-profit corporation, it clearly fits within this exemption and is not subject to regulation by the TRA.”

Continuing:

“Unlike exemptions from TRA regulation for a homeowners association set forth in TCA 65-4- 101(7), the exemption for a not-for-profit corporation under TCA 65-4-101(6)(E) does not limit the exemption from regulation to a specific subdivision or geographic territory.

Therefore to the extent the wastewater system of Fairfield Glade Community Club provides sewer service to a commercial or residential customer outside of the Fairfield Glade residential community does not affect its classification as a nonutility as determined by the Tennessee Legislature."

The board of directors voted unanimously to sign an agreement with L.E. Smith. Your board has taken a strong position that having the availability of a full service market including a pharmacy and gas station would provide a favorable long term economic benefit and an important convenience to our members. The Glade needs the commercial growth of this community and sewers are necessary components in making that happen. Without growth, this community will become stagnant, or worse, go backwards, thus making everyone pay more.

We will also share with you an answer from Mr. Scholes of another question we asked in order to touch all bases. What would be the potential financial liability to Fairfield Glade Community Club if the TRA ever determined that we were a public utility? His answer was simple.

“I see no potential financial liability to Fairfield Glade Community Club should such a determination be made. … When the TRA discovers a private utility which is operating in Tennessee without a certificate from the TRA, the TRA historically will just request the utility to file an application for a certificate to operate and will approve the utility’s existing rates or set new rates for the utility.”

I emphasize “set new rates.” Now, because of this unauthorized intrusion into your business, if we are unable to undo the position it has put the club in, you could see higher sewer rates. The rates we all pay now have been set to the lowest level possible and still maintain operations.

Mr. Miller goes on to make accusations which do not need to be answered. A few questions to Mr. Miller would be appropriate.

Is Mr. Miller opposed to the Fairfield Glade area people having a grocery store? WHY?

Where did Mr. Miller get his authority to act on the Club’s behalf?

Is this a publicity ploy to attract attention to Mr. Miller?

It is quoted in Mr. Miller’s letter, “Based on information supplied.” What information did Mr. Miller supply to the TRA and how accurate and truthful was it?

Mr. Miller asked, “why did the board and general manager put this community at risk?” There is no risk other than that which Mr. Miller has now put us in. What was his reasoning for doing this? Any ulterior motives?

Is Mr. Miller willing to pay the club’s legal fees to undo the problems created?

After following all rules and regulations is it up to the club to question how the TRA runs their business?

Mr. Miller, since you have very few followers in this community and express a great deal of negativism, why don’t you let the people who love Fairfield Glade and have elected their officials to run the business do just that. Other than a scam forum the Committee for a Better Fairfield Glade has not been very constructive to the overall membership in any way.

In closing, as your board members, we do not consider ourselves perfect or above making errors. When that occurs we will stand up and take responsibility. However, we sincerely believe we are in the right on this matter, and unfortunately now must expend time, energy, and the member’s money to fight the battle that now has created.

Finally as stated by the beloved Ronald Reagan:

“The most terrifying words in the English language are, I’m from the government and I’m here to help.”

With respect to all members,



The Board of Directors of Fairfield Glade Community Club

David H. Prigg

Charles Woll

Robert Jackson

Robert Spencer

Glenn Harper

Jeff Welch

Bruce Turley