Missoula Organization of REALTORS®

Re-imagining Home and Community 1610 South 3rd Street West, Suite 201

Missoula, MT 59801 P: 406.728.0560

MEMORANDUM

TO: Missoula Organization of REALTORS Members FROM: Austin M. James, Public Affairs Director SUBJECT: Septic Issues DATE: 09/14/2012 Several members have expressed concerns regarding the many non-conforming homes created through the bedroom interpretation for septic, and frustration with uncertainty of intervention by the Missoula City-County Health Department. On Friday, September 14, 2012, members of The Missoula Organization of REALTORS Government Affairs Committee met with Deputy Missoula County Attorney Martha E. McClain to discuss current septic issue regulatory interpretation and enforcement, as well as the timeframe and process of updating and amending the Missoula Health Code. The meeting identified several new factors that members should consider:

1. The current Missoula City-County Health Department interpretation of regulation contests that all current septic systems approved previously by the Missoula City-County Health Department located on non-conforming dwellings maintain approval until failure of the septic system, sewage on the ground, or structural alteration, unless a pertinent circumstance of facts exist that is keenly within the scope of the Missoula City-County Health Department responsibilities.

2. Intervention, or mandated system upgrade, change, or entire replacement is notified by an official Missoula County Health Department letter stating specific necessary alterations and timeframe. All oral, electronic, or additional means of communication beyond official Missoula City-County Health Department letterhead are considered suggestions, are not to be considered mandatory, and are provided to serve the purpose of liability protection, and prevention from future liability.

3. The meeting identified the mutual difficulty between Realtors and the Health Department in the area of what constitutes as “pertinent circumstance of facts” forcing the Health Department to maintain as “case-by-case” line of action and Realtors seeing it as an unlimited risk making the property not even worth taking up. As an outcome, I will be meeting again with Ms. McClain this week to review data, track consistencies, and identify what can be deemed as general intervention. The analogy I used during the meeting with Ms. Mcclain to provide an example is that in America we have free speech, but you cannot yell ‘fire‘ in a public place of peace. Some certain circumstance might exist such as the individual seeing a spark, etc., but while free speech is seen as a “case-by-case” basis a general “rule of the game” gives members of society an expected certainty of law--the same should be said for regulations regarding septic.

4. Ms. McClain said that the Health Department agreed some of the Health Code, in its entirety rather than each specific piece is necessary. The Health Board has found that updating the code is best achieved by one author putting together proposal ideas and having the committee work on the initial draft rather than create it from scratch. This process is expected to take a month, from the point the draft is complete. At that point, the public will be notified and public hearings will be conducted. After about three months of public input, the Health Board will then meet again to factor comments and produce and implemented draft. Missoula Organization of REALTORS members will be highly encouraged to be active participants during the entire process.

Knowing that the amendment process to current Health Code will not occur over night, and that not set start date has yet to be determined, the Missoula Organization of REALTORS will actively seek to produce expected “rules of the game” so realtors will be able to make more of an individual determination on a case-by-case basis, without being uncertain. Until then, members should expect all current systems approved by Missoula Health Department on non-conforming dwellings to maintain approval until failure of the system or structural building alteration; unless a reasonable circumstance requiring intervention exists. Additionally, if the circumstance does in fact exist, you will be notified with an official document. DISCLAIMER Nothing contained in this memorandum shall be deemed or construed as an opinion of the Missoula Organization of Realtors that all gathered information and recommendations are to be guaranteed, and remains free of responsibility for any ailments that members claim were caused by septic issues.