Request By:
Mr. W. Forrest Smith
Civil Engineer
86 Smithfield Road
Shelbyville, Kentucky 40065
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 30 in which you raise the following questions:
"(1) Can a Water & Sewer Commission of a 4th class city legally extend its services, that is, sewer and water lines, with city funds into rural areas along county, state and Federal highways and give services to rural subdivisions, villages, industrial parks, etc., without first requiring such areas to become annexed?
"(2) Is there a Kentucky Statute for or against such procedures?"
In response to your questions, every city has the authority, pursuant to KRS 96.150, to extend its water system outside its city limits and to any territory contiguous to the city and, of course, to furnish and sell water to those persons that wish to connect with the city's water system. For your information, KRS 96.150 reads as follows:
"Any city that owns or operates a water supply system may extend the system into, and furnish and sell water to any person within, any territory contiguous to the city, and may install within that territory necessary apparatus. For this purpose the city may condemn or otherwise acquire franchises, rights and rights of way, as private corporations may do."
On the other hand, the city is not required to extend its water system outside of its boundaries as held in the case of Austin v. City of Louisville, Ky., 264 S.W.2d 662 (1954), but, if it desires to do so, it may extend the system and pay for the extension and at the same time charge a reasonable rate for water furnished by contract at a higher rate than those charged resident customers. See McClellan v. Louisville Water Co., 351 S.W.2d 197 (1961). We also might point out that the users of the extended water facility outside of the city can be required to provide their own conduit to the main line of the system and pay for the extension of the water mains. See McQuillin, Vol. 12, § 35.34c. Of course, the term "person" as used in the referred to statute would include any corporation or body politic as the term is defined in KRS 446.010(2). It is obvious of course from the above that prior annexation of the territory is not necessary.
On the other hand, there is no statutory authority authorizing the extension of sewers outside the corporate limits of a city, and as a matter of fact, we have held that no such authority exists unless the sewer extension is based on purely a health and sanitation ground affecting the municipal residents, in which case such extension would probably be valid even in the absence of specific statutory authority. Concerning this subject, we are enclosing a copy of OAG 67-437, which is self-explanatory.