Kansas Attorney General Opinion 2011-017

December 5, 2011
ATTORNEY GENERAL OPINION NO. 2011- 017
David C. Van Parys
Leavenworth County Counselor
300 Walnut
Leavenworth, Kansas 66048
Re: 	Cities and Municipalities—Buildings, Structures and Grounds; Neighborhood
Revitalization—Neighborhood 	Revitalization; 	Designation 	of 	Revitalization
Area; 	Neighborhood 	Revitalization 	Fund; 	Authority 	to 	Designate 	Area
Previously Included in Sewer District
Counties 	and 	County 	Officers—Sewer 	Districts—Sewer 	Districts 	in 	Any
County; Creation of District; Cost of Projects; Authority to Subsequently
Designate as Revitalization Area
Synopsis: 	An area that has been designated as a sewer district pursuant to K.S.A. 19-
27a01 	et 	seq. 	may 	be 	subsequently 	designated 	as 	a 	neighborhood
revitalization area under K.S.A. 12-17,114 et seq. if the conditions for such a
designation 	currently 	exist. 	Obligations 	under 	any 	outstanding 	loan
arrangements must be considered when taking such action. 	Cited herein:
K.S.A. 12-17,114; 12-17,115; 12-17,116; 12-17,117; 12-17,118; 19-2753; 19-
27a01; 19-27a02; 19-27a03; 19-27a03a; 19-27a08; 19-27a13; 19-27a14; 19-
27a16; 19-27a24; 19-3801.
* 	* 	*
Dear Mr. Van Parys:
As Leavenworth County Counselor, you request our opinion regarding whether a county
may designate as a revitalization area an area comprising a sewer district and allow
payment of the costs of sewer system improvements from the county's general fund.
You state that in 1991 the Leavenworth County Commission created Sewer District No. 3 of
Leavenworth 	County 	pursuant 	to 	K.S.A. 	19-27a01 	et 	seq. 	(Sewer 	Act) 	The 	county

David Van Parys
Page 2
commission serves as the governing body of the sewer district.1 The sewer district has
been served by a sanitary sewage lagoon licensed by the Kansas Department of Health
and Environment (KDHE). 	The sewer district subsequently entered into a consent order
with KDHE whereby the lagoon is decommissioned and the district is connected to waste
water treatment facilities owned and operated by the City of Basehor, Kansas. 	The
connection has been completed, but neither the district nor KDHE has provided final
acceptance of the connection project. Likewise, the final costs and apportionment thereof
have not been determined. 	Funding for the project was obtained through the State
Revolving Loan Fund administered by KDHE. 	Information regarding the terms of the loan
was not provided to our office. 	The county commission is now exploring designating the
same area as a neighborhood revitalization area under K.S.A. 12-17,115(c)(1).
The ability to create an assessment, improvement, benefit or special taxing district is
prescribed by state statute, which must be substantially followed when creating the district.2
Land included in one district may be included in another, where benefits accrue. 3
A board of county commissioners of any county has the power to create a sewer district
when:
(1) A sufficient petition requesting the creation of a sewer district is filed with
the board; or
(2) 	the secretary of health and environment or the local health officer
determines and certifies to the board that unsanitary conditions exist or are
expected to develop and which may be removed or prevented by the
installation and utilization of sewers. 4
The sewer district may not include land that is within an improvement district created
pursuant to K.S.A. 19-2753 et seq. or an industrial district created pursuant to K.S.A. 19-
3801 et seq. unless the governing body of the improvement district or industrial district
approves the inclusion.5 The Sewer Act also precludes transferring land within a sewer
district to another sewer district under the circumstances set forth in K.S.A. 19-27a08. 	It
further addresses creating joint sewer districts,6 enlarging a sewer district,7 altering sewer
district boundaries,8 and attaching additional territory located in a city.9 There is, however,
no restriction against including land that is within a sewer district created pursuant to K.S.A.
19-27a01 et seq. into a neighborhood revitalization area designated under K.S.A. 12-
17,115.
The Kansas Neighborhood Revitalization Act10 is designed to improve blighted areas in
municipalities by encouraging property owners to improve their properties through the use
1 K.S.A. 19-27a02.
2 14 McQuillin, Municipal Corporations § 38.42 (2008).
3 14 McQuillin, Municipal Corporations § 38.58 (2008).
4 K.S.A. 19-27a03.
5 K.S.A. 19-27a03a.
6 K.S.A. 19-27a13.
7 K.S.A. 19-27a14.
8 K.S.A. 19-27a16.
9 K.S.A. 19-27a24.
10 K.S.A. 12-17,114 et seq.

David Van Parys
Page 3
of property tax rebates.11 "The governing body of a municipality may designate any area
within the municipality as a neighborhood revitalization area if the governing body finds that
one or more of the conditions as described in subsection (c) of K.S.A. 12-17,115, and
amendments thereto, exist…."12 The designation may be made only after the governing
body has conducted a hearing and adopted a plan that includes the proposals for improving
or expanding municipal services within the area, specifies the property that is eligible for
revitalization, 	and establishes 	the 	criteria used by 	the 	governing 	body 	to 	determine
eligibility.13
The 	Leavenworth 	County 	Commission 	is 	considering 	designating 	an 	area 	currently
comprising a sewer district to also be a revitalization area. 	The specific provision under
which the Commission would attempt the action states an area may be so designated if:
there is a preponderance of buildings or improvements which by reason of
dilapidation, deterioration, obsolescence, inadequate provision for ventilation,
light, 	air, 	sanitation, 	or 	open 	spaces, 	high 	density 	of 	population 	and
overcrowding, the existence of conditions which endanger life or property by
fire and other causes or a combination of such factors, is conducive to ill
health, transmission of disease, infant mortality, juvenile delinquency or crime
and which is detrimental to the public health, safety or welfare…. 14
The statutory language implies that the conditions must exist at the time the revitalization
area designation is made. 	"Any municipality may expend money from the general fund of
such municipality to accomplish the purposes of this act." 15
In review, an area that has been designated as a sewer district pursuant to K.S.A. 19-27a01
et seq. may be subsequently designated as a neighborhood revitalization area under K.S.A.
12-17,114 et seq. if the conditions for such a designation currently exist. Obligations under
any outstanding loan arrangements must be considered when taking such action. 	Money
from the municipality's general fund may be expended to accomplish the purposes of the
neighborhood revitalization act.
Sincerely,
Derek Schmidt
Kansas Attorney General
Richard D. Smith
Assistant Attorney General
DS:AA:RDS:ke
11 Attorney General Opinion No. 96-84.
12 K.S.A. 12-17,116.
13 K.S.A. 12-17,117.
14 K.S.A. 12-17,115(c)(1).
15 K.S.A. 12-17,118.