Attorney General Opinion No.
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Gordon B. Stull Pratt County Counselor P.O. Box 885 Pratt, Kansas 67124

Dear Mr. Stull:

You request our opinion regarding statutory requirements for review and certification of certain plats before they are recorded by a county register of deeds. Those requirements are set forth in K.S.A. 1999 Supp.58-2005 as follows:

"Before a subdivision plat or plat of survey may be recorded, it shall be reviewed by the county surveyor. In the absence of the county surveyor, the county engineer may contract with a land surveyor who shall review such subdivision plat or plat of survey and certify the same if in compliance with the requirements of this act."

Although there is a bill pending before the Legislature to repeal this statute,1 we are proceeding with this opinion because it is unknown whether the bill will pass.

You first ask the meaning of the term "plat of survey," and you question whether that term is synonymous with the term "subdivision plat." Neither of those terms is defined by statute; however the term "plat" is defined in a statute concerning the State Board of Technical Professions as follows:

"`Plat' means a diagram drawn to scale showing all essential data pertaining to the boundaries and subdivisions of a tract of land, as determined by survey or protraction. A plat should show all data required for a complete and accurate description of the land which it delineates, including the bearings (or azimuths) and lengths of the boundaries of each subdivision."2

Black's Law Dictionary defines "plat" as:

"A map of a specific land area such as a town, section, or subdivision showing the location and boundaries of individual parcels of land subdivided into lots, with streets, alleys, easements, etc., usually drawn to a scale."3

We could find no definition of the term "plat of survey," however that term is used in the Kansas Minimum Standards for Boundary Surveys adopted by the Kansas State Board of Technical Professions.4 The Standards list the items to be included when a survey is conducted and require a surveyor to furnish a client "a plat of survey drawn to an appropriate scale" that includes certain enumerated elements. The Standards use the term "plat of survey" as a general term to describe a diagram showing the results of all boundary surveys whether or not the platted land is subdivided.

The fundamental rule of statutory construction is that the intent of the Legislature governs.5 "When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be."6 The fact that the Legislature included the term "plat of survey" in addition to the term "subdivision plat" in K.S.A. 1999 Supp. 58-2005 indicates that it intended to include plats other than subdivision plats. We believe that the terms are not synonymous. It is our opinion that a "plat of survey" is a diagram of land based on a survey. The term "plat of survey" may include a "subdivision plat" but may also include plats of land that have not been subdivided.

Your second question concerns the requirements for review by a county surveyor, or a contracted land surveyor in the absence of a county surveyor. You point out that there are different requirements depending on who conducts the review. The statute requires a county surveyor to only review a plat before it is recorded, but a contracted land surveyor is required to both review and certify that the plat complies with statutory requirements. You ask whether a county surveyor has the same duty as a contracted land surveyor notwithstanding this discrepancy. The statute does not explain what is meant by "review" and "certification." Nevertheless, it is evident that the purpose of both is to assure compliance with the requirements of the provisions of K.S.A. 58-2001 etseq.7 While the purpose of review and certification may be the same, the statute clearly states that the county surveyor must only review the plat but that a land surveyor with whom the county engineer contracts, must review and certify the plat. Because the statute is plain, we must give effect to the intention of the Legislature as expressed. Therefore, a county surveyor need only review a plat, but a land surveyor with whom a county engineer contracts must review and certify a plat. Although a county surveyor is not required to certify that a plat is in compliance with the statutory requirements, the county surveyor's review would be meaningless without a determination of whether the plat meets statutory requirements. A statute should not be construed to require the performance of a vain or futile act.8 Therefore, while a county surveyor need not officially certify a plat, it is clear that the Legislature intended that a county surveyor's review accomplish the same purpose as a contracted land surveyor's review and certification.

Finally, you inquire whether a county may pass the cost of plat review and certification on to a recording party by adopting a resolution establishing a fee to be paid at the time of recording. K.S.A. 1999 Supp. 58-2005 does not provide for a fee. K.S.A. 19-241 provides in pertinent part:

"It shall be the duty of the board of county commissioners of each county in this state to levy in each year, in addition to the taxes for other purposes, a county tax sufficient to defray all county charges and expenses incurred during such year. . . ." (Emphasis added.)

Attorney General Opinion No. 80-248 concluded that a county's costs for the review of subdivision and survey plats required by K.S.A. 58-2005 are charges and expenses within the meaning of K.S.A. 19-241 and should be paid out of the county general fund. Therefore, a county may not impose a fee to offset its costs of complying with the statute.

In summary, the term "plat of survey" as used in K.S.A. 1999 Supp.58-2005 refers to all plats derived from a survey. The term "plat of survey" may include a "subdivision plat," but may also include plats of land that have not been subdivided. While the statute does not require that a county surveyor officially certify a plat, it is clear that the Legislature intended that a county surveyor's review accomplish the same purpose as a contracted land surveyor's review and certification, to assure that the plat complies with statutory requirements. A county may not impose a fee to offset its costs of review of subdivision plats under K.S.A. 1999 Supp. 58-2005.

Very truly yours,

CARLA J. STOVALL Attorney General of Kansas

Donna M. Voth Assistant Attorney General

CJS:JLM:DMV:jm

1 House Bill No. 2750.

2 K.S.A. 1999 Supp. 74-7003(m).

3 Black's Law Dictionary, 1151 (6th Ed. 1990).

4 K.S.A. 74-7037; K.A.R. 66-12-1.

5 Adams v. St. Francis Regional Med. Ctr., 264 Kan. 144, 156 (1998).

6 Britz v. Williams, 262 Kan. 769, 774 (1997).

7 See Attorney General Opinion No. 80-248.

8 Board of County Comm'rs of Ness County v. Bankoff Oil Co.,265 Kan. 525, 538 (1998).