Request By:
Ms. Colleen Brandenburg
City Clerk
335 East Main Street
Wilmore, Kentucky 40390
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of August 4, in which you relate that the city of Wilmore owns and operates the sewer plant. You raise the following questions:
"Can a water district come within the city limits and supply water to a subdivision within the city? Can a sewer plant be built by private citizens within the city limits to serve this subdivision?"
A water district can only furnish service to a city with the city's consent. KRS 74.120 provides in effect that all or any part of an incorporated city may be included in the boundaries of any existing water district or water district being newly organized provided the governing body of the city gives or has given its consent. Said consent may be limited to water, gas or sewer service and the authority of the water district to serve the area of the city shall be limited by the exclusion of any type of service from the consent given. There is an exception where the water district acquires an existing franchise for water, gas or sewer distribution within a city.
In the case of
City of Flemingsburg v. Public Service Commission, Ky.App., 411 S.W.2d 920 (1966) it was held that where a subdivision was annexed by the city over a month after a previously formed water district received a certification of public convenience authorizing it to provide the subdivision with water, the city had a right to provide water service in the subdivision and the water district was excluded from furnishing such service.
In response to your second question concerning whether a sewer plant can be built within the city by private citizens, the city has complete jurisdiction over its sewerage services and a private sewer plant cannot be constructed without the city's consent. See McQuillin, Municipal Corporations, Vol. 11, Section 31.09, 31.10 and 31.14. We do, however, call your attention to KRS 96.045 concerning the rights of existing facilities.
We suggest that you consult your city attorney for more details on this subject.