Attorney General Opinion No.
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The Honorable Mark W. Taddiken State Senator, 21st District 2614 Hackberry Road Clifton, Kansas 66937

Dear Senator Taddiken:

You request our opinion regarding whether monies raised through bonds issued pursuant to K.S.A. 12-1770 et seq. may be used to pay the costs of demolishing buildings and capping sewer lines as part of a redevelopment project.

The legislatively stated purpose for enactment of the Tax Increment Finance Act (TIF)1 is to "promote, stimulate and develop the general and economic welfare of the state of Kansas and its communities and to assist in the development and redevelopment of eligible areas within and without a city thereby promoting the general welfare of the citizens of this state. . . ."2 The redevelopment is pursued by a city through a two-step process, with the first step being establishment of a redevelopment district within an eligible area.3 In order to determine whether an area constitutes an eligible area, the city's governing body is required to conduct a public hearing.4 An eligible area may be "a blighted area, conservation area, enterprise zone, historic theater, major tourism area or a major commercial entertainment and tourism area as determined by the secretary [of commerce]."5 Once the redevelopment district has been established, the city's governing body may adopt an ordinance that sets forth the redevelopment district plan.6 The "`[r]edevelopment district plan' or `district plan' [is] the preliminary plan that identifies all of the proposed redevelopment project areas and identifies in a general manner all of the buildings, facilities and improvements in each that are proposed to be constructed or improved in each redevelopment project area."7

A city is authorized "to issue special obligation bonds in one or more series to finance the undertaking of any redevelopment project. . . ."8 The proceeds of the special obligation bonds may be used to pay redevelopment project costs.9 Redevelopment project costs are "those costs necessary to implement a redevelopment plan, including, but not limited to costs incurred for . . . site preparation including utility relocations . . . [and] all related expenses to redevelop and finance the redevelopment project."10

The rules of statutory construction are followed in determining whether demolition of buildings and capping sewer lines constitute site preparation as that term is used in K.S.A. 2003 Supp. 12-1770a, as amended. "Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings."11 The phrase "site preparation" appears in at least eight state statutes and only a few Kansas appellate court opinions, none of which provides a particular definition for it. It is not a technical phrase accorded a special meaning. Therefore, it must be given its ordinary meaning.

"Site" is "[a] plot of ground suitable or set apart for some specific purpose."12 "Preparation" means "[t]he act or process of preparing. . . . Preliminary measures that serve to make ready for something. . . ."13 When development or construction projects are considered, site preparation has been commonly understood to include demolition and removal of existing structures, adding fill and grading the area.14 Because K.S.A. 12-1770 et seq. recognize projects that will involve development or construction, we believe that it is appropriate to apply this understanding when interpreting K.S.A. 2003 Supp. 12-1770a, as amended. Site preparation may include demolition of buildings when the demolition is necessary to prepare the site for buildings and facilities proposed to be constructed in a redevelopment district.

Subsection (q) of K.S.A. 2003 Supp. 72-1770a, as amended, expressly includes utility relocation as being a part of site preparation. Sewers and sewer systems are commonly included in the types of utilities that may be provided by a municipality.15 Therefore, relocation of sewer lines, including capping existing lines, is authorized as a site preparation under K.S.A. 2003 Supp. 72-1770a(q), as amended.

In review, demolition of buildings and the capping of sewer lines can constitute site preparations under K.S.A. 2003 Supp. 12-1770a, as amended. As such, monies raised through bonds issued pursuant to K.S.A.12-1770, et seq. may be used to pay the costs of these activities.

Sincerely,

PHILL KLINE Attorney General of Kansas

Richard D. Smith Assistant Attorney General

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1 K.S.A. 12-1770 et seq.

2 K.S.A. 12-1770.

3 K.S.A. 12-1771.

4 See K.S.A. 12-1771.

5 K.S.A. 2003 Supp. 12-1770a(g), as amended by L. 2004, Ch. 154, § 3.

6 K.S.A. 12-1771(b); 12-1772.

7 K.S.A. 2003 Supp. 12-1770a(s), as amended. See also K.S.A.12-1771(b).

8 K.S.A. 2003 Supp. 12-1774(a)(1), as amended by L. 2004, Ch. 154, § 6. See also K.S.A. 12-1770; K.S.A. 2003 Supp. 12-1774(a)(3), as amended.

9 K.S.A. 12-1773(b).

10 K.S.A. 2003 Supp. 12-1770a(q), as amended.

11 K.S.A. 2003 Supp. 77-201 Second. See also Neal v. Hy-Vee, Inc.,81 P.3d 425, 436 (Kan. 2003).

12 Black's Law Dictionary 1243 (1979).

13 Webster's II New Riverside University Dictionary 929 (1988).

14 See, i.e., Portland Utilities Const. Co., LLC v. Chase, 2004 WL 746602 (Tenn.Ct.App., Apr 07, 2004) (remove two barns; fill in pond);Garrett v. Valley Sand and Gravel, Inc., 800 So. 2d 600 (Ala.Civ.App. 2000) (demolition of building, grading and debris removal); Harris v.Cincinnati, 607 N.E.2d 15 (Ohio App. 1 Dist. 1997) (demolition of buildings and structures; removal of debris); State ex rel. MissouriHighway and Transp. Com'n v. Our Savior Lutheran Church, 922 S.W.2d 816 (Mo.App.E.D. 1996) (clearing and demolition); Brewster v. SalvesonConst., Inc., 765 P.2d 1350 (Wyo. 1988) (fill and grading); Tober's Inc.v. Portsmouth Housing Authority, 367 A.2d 603 (NH 1976) (demolition of structures, including a building).

15 See K.S.A. 10-1201 et seq.; 12-6a01 et seq.