Request By:
Mr. George G. Barry, Chairman
Board of Trustees
Town of New Haven
New Haven, Kentucky 40051
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 7 in which you relate that there are only eight (8) homeowners who have not as yet hooked on to the city's new sewer system constructed in 1974. You further relate that the sewer ordinance states that the city can use legal force to require such persons to hook on to the system but you believe that the most effective way is by denying them water service. The question is thus raised as to whether or not water service of the eight homeowners who have not hooked up to the system can be cut off.
Our response to your question would be in the negative. Every city has the power to compel any property owner to connect to public sewers. See Am. Jur., Vol. 8, Municipal Corporations, § 565, and McQuillin, Municipal Corporations, Vol. 11, § 31.30. Any city can also require a property owner to pay a service fee for the use of the city sewer. See
Louisville & Jefferson County Metropolitan Sewer Dist. v. St. Matthews Sanitary Ass'n., 307 Ky. 348, 208 S.W.2d 490 (1948). Reasonable sewer charges can be enforced by cutting off water supply pursuant to KRS 96.930 to 96.943. However, until a property owner has connected or has been made to connect to the city sewer system, the Court of Appeals has held that he is not subject to a sewer rental charge. See
City of Mayfield v. Coughlin, Ky., 399 S.W.2d 297 (1966).
You will note that until a property owner has connected or has been made to connect to the city sewer system, the Court of Appeals has held that he cannot be subject to a sewer rental charge. Thus, until he is required to connect to the system, his water supply cannot be discontinued, which is the purpose of forcing the owner to pay the sewerage fee for services rendered. See KRS 96.930 to 96.943 mentioned above.
Concerning the question of compelling property owners to connect to the system, we wish to call you attention to the case of Sanitation Dist. No. 1 of
Jefferson County v. Campbell, 249 S.W.2d 767 (1952), from which we quote as follows:
"'Municipalities are generally authorized to compel property owners to make connection with a sewer within a reasonable distance when the public health requires it, at their own expense, or the connection may be made by the city and the cost charged against the property owner, all of which may be provided for by statute or ordinance, in the exercise of the city's police power. It may enforce the requirement by appropriate ordinance penalties. So the municipal corporation may require property owners on sewered streets to connect their closets, bathtubs, etc., with the sewer, and may enforce the observance of such a regulation by fine.'"
The legal procedure outlined in the above cited case may be of assistance to the city in forcing the homeowners in question to connect with the sewer system.