Sandra L. Jacquot Shawnee County Counselor 200 S.E. Seventh Street, Suite 100 Topeka, Kansas 66603-3932
Dear Ms. Jacquot:
As Shawnee county counselor you request our opinion regarding the ability of the county to collect sewer service fees from property owners benefited by such services. You indicate that the county recently discovered that owners of approximately 215 parcels of land served by the county sewer system were never billed for sewer services, and thus failed to pay the county for such services. Some of the unpaid fees date back four years. While the failure to pay for these services may in large part be attributed to the fact that the county never billed for the services, you indicate that in some instances the city of Topeka billed and was paid for sewer services to those parcels located within the city. You question whether the county may now collect the unpaid fees, and, if so, what terms may be offered by the county to those property owners who should have been billed and required to make payments.
You inform us that the sewer system in question was originally within a benefit district and was formed pursuant to state improvement district statutes. Subsequently, the system became a county sewer district by interlocal agreement and is now operating under the authority set forth at K.S.A.
Pursuant to K.S.A.
"(i) issue permits to any individual or corporation to build any sewers in any lateral or joint sewer districts under plans and specifications and under terms approved by the governing body and under its inspection. The cost of the construction shall be borne entirely by the person or corporation contracting for the improvements . . . (k) create lateral sewer districts and assess the cost thereof against the owner of the property benefited or against the maintenance budget of the main sewer district . . . (n)(1) adopt any rule, regulation, standard, limitation or requirement which is necessary to provide for the efficient and economical operation of the sewer system . . . (7) all penalties, damages and costs assessed or awarded pursuant to the authority of this section shall be a lien upon the premises of the violator from the date assessed or awarded until the date fully paid. All proceeds received or collected from fines, penalties, damages or costs shall be used by the governing body first to defray costs of administering any rule, regulation, standard, limitation or requirement adopted pursuant to this section and then to defray the costs of any repairs, replacements, maintenance or reconstruction necessitated by violations thereof, and then to defray the general operation and maintenance costs of the sewer district." (Emphasis added).
K.S.A.
"(a) After a sewer district has been created and improvements have been completed, the governing body of the sewer district shall determine the cost of the improvements and the proposed special assessment to be made against each tract of land within the district and shall prepare a proposed assessment resolution containing an assessment roll. The proposed assessment roll shall be filed with the county clerk and shall be open for public inspection. . . ."
K.S.A.
If the debt in question arose under any of these provisions, it may be a statutorily created obligation. Ordinarily, K.S.A.
"[b]ar of the statute may be inferred from the enactment of K.S.A.
60-521 which, by negative implication, retains governmental immunity from the statute of limitations for causes of actions arising out of governmental functions . . . the doctrine of governmental immunity from statutes of limitation has been and remains supported by modern law by the important policy that public rights and causes of action should not be lost by acts or omissions of public officers."
Thus, as further discussed in Gypsum, if the action arises out of the performance of a governmental function, rather than a proprietary one, it is not time barred.
"In determining whether activities of a municipal corporation are governmental or proprietary, it is proper to consider whether the activity is primarily for the advantage of the state as a whole or the special local benefit of the community involved, and to further consider whether such activity is in performance of a duty imposed upon the municipality by the sovereign power, or is in the exercise of a permissive privilege given by the sovereign power, but such tests are not conclusive to determine the capacity in which the city's activities are conducted." Id. at 860.
"The operation and maintenance of a sewage system by a municipality is an exception to the rule that in the operation of a public utility a municipality acts in a proprietary capacity; sewage disposal is a governmental function. Accordingly, the establishment of rates to be charged for sewage disposal for customers within the corporate limits of a municipality is a governmental function." 11 McQuillins Mun. Corp. § 31.10 (1991). We agree that utility bills for use of a sewage system arise out of the exercise of governmental authority. Thus, in answer to your first question, it is our opinion that a properly imposed utility assessment for services of a county sewer system is not time barred merely because the county failed to properly bill within a certain time period.
Your second question concerns the permissibility of arranging or allowing payments on the now realized debt potentially owed by owners of property benefited by this sewer system. Some debts owed to the public coffers come with specifically imposed payment schedules or a prohibition against waiver or abatement. See e.g. K.S.A.
As set forth herein, K.S.A.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Theresa Marcel Nuckolls Assistant Attorney General
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