The Barry County Commission Sept. 20 voted 3 to 2 against Commissioner Jim Dull’s request for an attorney’s opinion on the Barry Eaton District Health Department regulation on time of sale of transfer, or TOST. Dull asked for a legal opinion from county Attorney David Stoker, from Cohl, Stoker & Toskey, to determine if the commission can exempt Barry County from the Barry Eaton District Health Department TOST regulation and also to determine the process for the county to withdraw from the joint health department.
Dull’s request is the first call from a commissioner for separating Eaton and Barry County in the administration of the health department.
TOST calls for on-site water and sewer system inspection by health department certified evaluators at the time of sale of transfer of a property in both counties and repair or replacements are ordered if a system is found deficient.
Commissioners Craig Stolsonburg, Jon Smelker and Ben Geiger spoke against it and voted “no,” Commissioners Dull and Howard Gibson voted “yes,” with Commissioners David Jackson and Vivian Conner absent.
Dull said despite resolutions calling for rescinding the ordinance by the Barry County Farm Bureau and veterans’ and Republican groups, “nothing has been done.”
Basic health department information has never been explained, conflicting and incomplete information from health department officials on how budgets are determined and how the affiliation was formed all need to be answered, he said.
“This is good start to figure out answers to questions…but we stick our heads in the sand. No one has done anything, no one makes a motion or anything…they asked us to do something and we just sit on our thumbs and say we don’t know.”
Geiger objected to the request, saying it was a waste of money and the way to handle any problems lies in working with the department. Stolsonburg said the regulation has recently been improved with easing of the rules. “They recognize that not all septic tanks with a leak need to be replaced….”
Smelker said commissioners had not done their due diligence and advised them, “to get the paperwork and study it on our own” before involving an attorney.
Citizen Larry Bass, a frequent critic of TOST, said commissioners should look at a group of counties in the Kalkaska area that have a similar regulation; of the 10 counties in the group, just two mandate the regulations, the other eight leave it optional. He said TOST has caused financial and emotional distress to Barry County residents. “As a taxpayer, I feel we’re being taken advantage of.”
Barb Cichy, from Commission District 3, said: “If you can write and enforce ordinances, you can repeal it…you have all the figures and have had them for years. It didn’t do what you expected; just rescind it.” //
On July 1, 2014, health department Attorney John McGlinchy, who had researched the regulation at the commission’s request, reported that TOST can’t be easily changed or amended.
After hearing McGlinchy’s report, Dull said he got a lot of feedback from the public unhappy with TOST and asked for the okay to talk to county Attorney Dave Stoker to see if, “there is a way to get out of it.” He wanted to rescind the regulation or make it optional.
Stolsonburg said the health department attorney had explained every option available, including how to rescind it or repeal it. “In my view, the regulation begins and ends with the board of health, period,” he said. “A major change to TOST would have to be voted first out of the board of health and ratified by the two counties, or to repeal TOST the same thing would have to happen…one county can’t opt out of a thing unilaterally.”
“I’m not in favor of bringing in a lawyer to give us answers to question we already know the answers to,” Geiger said in 2014.
“I know you said you were not in favor of TOST and Ben would like to restrict it and so would I, and yet no action has been brought up to the board of health,” Dull said to Stolsonburg.
Smelker said he appreciated Dull bringing it up because many of his constituents are not happy with TOST either and, “with three (Barry County) commissioners on that board, something will be done.”
Critics have long argued that health department officials sometimes ignored what its evaluators reported, the regulation is too expensive for residents and may be unconstitutional. The basic argument is that the health department exceeds the scope of the regulation with arbitrary and capricious decisions and forces replacement of existing systems producing clean water to bring all water and sewer systems up to present day standards.
Since 2007, when residents of Barry County complained of uneven and arbitrary enforcement, most Barry Commissioners said the program is a good rule with the right intent, but did say they were concerned about the costs and the administration of the rule that was sometimes questionable.
Some spoke against it.
In 2014, outgoing Commissioner Joyce Snow advised a review of the regulation which she said began as a way to promise clean water. “To my knowledge, to this date, there is no data to suggest that any activity of this regulation has provided any improvement in the public water supply,” she said.
In January, 2010, then Commissioner Joe Lyons, a registered TOST evaluator before he took his name off the BEDHD list, said the idea of the program is sound, but the fees are too high and evaluation results are unevenly applied.
“With fees for the inspection, testing fees, permit fees and funds put into escrow, if there is a failure and a new septic or water well is needed, the amount will be in the hundreds and could be up to thousands of dollars just for permits and fees,” he said.
The goal of TOST is not to bring all wells and septic up to today’s codes, he said, “but, if you have a stab well or shallow well--inch and a half or inch and a quarter--well, you can bet it’s going to be replaced.”
The health department maintains the regulation protects the quality of water resources, on-site water supplies and the natural environment and protects the public health by providing an evaluation and maintenance program for sewer and water supply systems in Barry and Eaton County.
In July of 2015, in response to the feedback from the public, the evaluations were changed from pass/fail to: no action required, action required and action recommended. There was also a renewed emphasis on communication between the public and health officials.
BEDHD Health Officer Collette Scrimger told commissioners public response to the changes has been positive.