Request By:
Hon. James B. Yates
Representative 44th District
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of October 8 in which you refer to a 1982 amendment to KRS 76.030 pertaining to the membership of the Metropolitan Sewer District and raise the question as to whether or not the city of Shively, a city of the fourth class, is entitled to representation on the board pursuant to the terms of said statute, subsection (1) which reads in part as follows:
". . . In counties containing a city of the first class, of the three (3) members appointed by the county judge/executive there shall be representatives of each city of the fourth class which uses metropolitan sewer district treatment facilities for treatment of all of the sewage generated within the city. Such appointment shall be subject to approval by the fiscal court. . ."
You further relate that it is the contention of the officials of the city of Shively that the city meets the requirements of said statute authorizing representation because of its use of the Metropolitan Sewer District treatment facilities and you attach an ordinance giving the Jefferson County Metropolitan Sewer District exclusive service rights.
The ordinance in question provides in its title for the connection of the Shively Municipal Sewer System to the district system and authorizes the district to provide for the maintenance and operation of the Shively system. Section 1 of the ordinance provides that effective December 1, 1976 the operation, maintenance, modification, repair and replacement of the sanitary sewer system located in the city shall be assumed by the district pursuant to an agreement presumably executed on February 1, 1972. Also pursuant to that agreement it is provided that all future sanitary sewer service in the city shall be furnished by the district under its rules and regulations, and further, that the district shall assume all future responsibility for the maintenance and operation of the system. Section 3 provides that the municipal sewer board shall continue to exist until all indebtedness against the Shively sewer system has been paid in full. Section 4 provides that in compliance with the outstanding bond indebtedness the city shall continue to collect sewer service charges and such billing and collection shall be carried out by the Louisville Water Company in accordance with its existing contract with the district. The total revenue from the sewer service charges shall be remitted to the district from the Louisville Water Company.
The terms of the referred to ordinance would rather clearly indicate that the city has turned the operation of its sewer system, which apparently is inadequate to furnish city services, over to the Metropolitan Sewer District and thus the city effectively uses the district's sewer facilities. The fact that the city utility board continues to exist by virtue of the bond indebtedness is mandatory because of the contractual relationship created between the bond holders and the city as held in the case of City of Elizabethtown v. Cralle, Ky., 317 S.W.2d 184 (1958). The term "use of the facilities" is not defined, and thus would be subject to judicial construction. However, it would appear that the city is indeed using the facilities of the district and entitled to representation as a fourth class city under the terms of KRS 76.030(1).