Request By:
Mr. Harold K. Botner
Madison County Judge Executive
Courthouse
Richmond, Kentucky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A section of Madison County east of Richmond, you have written, has a critical need for sanitary sewers. The residents of the area are definitely behind the formation of a sewer district.
Your problem was stated as follows:
"After reading OAG 83-292, it seemed that either a sanitary sewer district or sewer construction district might be formed by applying KRS 67.715(2). If so, would we continue under KRS 220 or KRS 76, or is there a more expedient method of handling our problem?"
KRS 67.715(2) reads:
"(2) The county judge/executive or county judges/executive of multi-county districts may, with approval of the fiscal court or fiscal courts, create, any special district or abolish or combine any special district, provided such district was created solely by one or more such fiscal courts".
KRS 224A.010(1) defines "sewage" as any of the waste products or excrements, or other discharges from the bodies of human beings or animals, which pollute the waters of the state.
Since KRS 67.715(2) is in broad and general terms without any elucidation, we can only surmise that the power of a county judge executive, with approval of the fiscal court, to create a special district must necessarily refer to special districts treated in existing state legislation.
KRS 67.083(3)(r) provides that a fiscal court may make provisions for water and sewage and garbage disposal service, including management of onsite sewage disposal systems. That provision relates, we believe, to sewage systems under the direct control of the fiscal court.
Richmond is a third class city. KRS 81.010(3). KRS 76.010 to 76.210 relate to metropolitan sewer districts. KRS 76.010 provides for a joint metropolitan sewer district in counties containing a city of the first and second classes.
Rash v. Louisville & Jefferson County Met. S. Dist., 309 Ky. 442, 217 S.W.2d 232 (1949) 234.
Construction subdistricts, dealt with in KRS 76.241 to 76.273, are created by MSD's. Sanitation tax districts, under KRS 76.274 to 76.279, involve only Jefferson County. KRS 76.295 to 76.420, involving sewer construction districts, involve a MSD.
Thus KRS Chapter 76 relates only to metropolitan sewer districts, which does not apply to Madison County.
KRS 74.407 provides that water districts are authorized to acquire, develop, maintain and operate sewage disposal systems within the confines of their districts, except that operating such systems in a municipal area having authority to provide sewer services must have the municipal consent. Elsewhere in that statute it is provided that "The water district commissioners shall have all the powers and authority, as regards sewer systems, that are conferred upon them for the purpose of furnishing a water supply under KRS 74.010 to 74.390. Thus when a sewer district is created under KRS 67.715(2), the county judge executive order and order of fiscal court should be carefully worded to disclose the intended creation of a sewer district, as treated by KRS 74.020 to 74.390 in the analogous manner expressed in KRS 74.407, and to the extent that those statutes in that group can be practically applied to a sewer district operation. KRS 74.080, relating to rates, can be applied to a sewer system, for example. See also KRS 74.130, as a basis for land assessments for capital construction in the sewer system.
While, under KRS Chapter 74, a sewer district created under KRS 67.715(2) would be a political subdivision of the county, it is not a special taxing district. It can only make charges for service and land assessments for capital improvements. Thus such a sewer district created under KRS 67.715(2), and applying the applicable language of KRS Chapter 74, is not subject to the indebtedness restrictions of §§ 157 and 158, Kentucky Constitution. See OAG 80-333, published, Banks-Baldwin.
KRS 220.030(4), relating to sanitation districts, reads:
"Sanitation districts may be established for any of the following purposes:
* * *
"(4) To provide for the collection and disposal of sewage and other liquid wastes produced within the district; and incident to such purposes and to enable their accomplishment, to construct, with all appurtenances thereto, laterals, trunk sewers, intercepting sewers, siphons, pumping stations, treatment and disposal works, to maintain, operate and repair same, and do all other things necessary for the fulfillment of the purposes of KRS 220.010 to 220.520."
Where the county judge executive and fiscal court desire to create a sewer district pursuant to KRS 67.715(2), the orders of the county judge executive and fiscal court should be carefully worded to disclose the intended creation of a sewer district, as treated in KRS 220.030 to 220.552 in the analogous manner expressed therein, and to the extent that those statutes can be practically applied to a sewer district operation.
Under KRS 220.110 such a sewer district would be a political subdivision, having the authority, inter alia, to exercise the right of eminent domain, assess, tax, and contract for rentals. See KRS 220.360, relating to the districts levying a tax for preliminary expenses, i.e., prior to the sale of bonds. See KRS 220.510, relating to charges for sewer service. The sewer district under KRS Chapter 220 is not a separate taxing district under § 157, Kentucky Constitution, because of the limited extent of its taxing power. In KRS 220.360 and 220.370, the taxing power is referred to as a "preliminary tax." A separate taxing district has the power to tax year after year, indefinitely during its existence.