Request By:
Mr. John W. Garner
Pulaski County Judge Executive
P.O. Box 712
Somerset, Kentucky 42501
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your office is administering a program pertaining to a water line expansion of the Nancy Water District. It is an independent water district operating entirely in Pulaski County for over ten years.
However, you write that the Nancy Water District has become a part of a "multi-county" district which includes Pulaski, Russell, and Wayne Counties. You have been informed that grant funds involving the water line program did not include Wayne County as an applicant.
Question No. 1:
"When a multi-county water district has mistakenly been designated as a three county district when it is actually a two county district, what should be done procedurally to correct the boundaries of the District and to restore the Board of Commissioners to the proper number?"
We assume from your letter that the original Nancy Water District of Pulaski County was properly enlarged to encompass territory located in Russell County. See KRS 74.115 and 74.110. We also assume that Wayne County, or portions thereof, were not properly brought within the boundaries of the subject water district, as required by those statutes. KRS 74.115 was not designed to embrace, by way of addition, any part of an existing water system lying outside the boundaries of the district. Olson v. Preston Street Water District No. 1, 291 Ky. 155, 163 S.W.2d 307 (1942).
Assuming that the county judge executive of Russell County took the necessary action under KRS 74.115 to bring Russell County territory within the multi-district, the boundaries of the two-county district can now be determined by following the procedure outlined in KRS 74.110 for enlarging or diminishing the district territory. Although this involves a misunderstanding as to the county territory embraced, we believe that procedure is designed to resolve the question of the actual territorial or geographical boundary lines. The residents of the water district are entitled, under these circumstances, to the same procedural safeguards designed for such residents and residents of proposed territory to be annexed in the usual enlargement or diminishing of water district territory.
As relates to the proper number of commissioners on the board of commissioners of the water district, and assuming that the extension of the original water district did not involve acquiring an existing water or gas distribution system as described in KRS 74.020(1)(c), the proper number of board members is controlled by KRS 74.020(1)(b). It provides in part that where a district is formed in a single county and extends its area to include territory in an adjacent county under KRS 74.115, the board of commissioners shall be appointed by the county judge executive with the approval of the fiscal courts of the concerned counties as follows: in two (2) county districts, three (3) members from the original district and two (2) members from the extended portion of the district. You make those appointments with the approval of the fiscal courts of Pulaski and Russell Counties. Any appointments other than the ones just mentioned would be unauthorized.
Question No. 2:
"Does the county which was improperly designated a part of a multi-county water district, and which has appointed two commissioners to serve on the board of commissioners have any recourse against the originating county or the water district after procedures are commenced to reduce the district to the proper area (and when the district will no longer include the county which was improperly made a part of the multi-county district)?"
If territory in Wayne County was never properly brought into the extended Pulaski County Water District, then the Wayne Fiscal Court would have no recourse. Now where Wayne County claims that it was properly made a part of the extended water district, that is a question which would have to be resolved by the courts.
The procedure of KRS 74.110 in this "mistake" situation would not apply to Wayne County, unless it was properly brought within the boundaries of the extended water district. In any event, the procedure of KRS 74.110 must be applied rationally and fairly. It cannot be applied arbitrarily. See § 2, Kentucky Constitution, and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963).