Kansas Attorney General Opinion 2020-010

December 8, 2020
ATTORNEY GENERAL OPINION NO. 2020- 10
The Honorable Mary Jo Taylor
State Senator, 33rd District
114 N. Union
Stafford, KS 67578
Re: 	Cities and Municipalities—City Land Banks—City Land Banks; Exemption
of Property from Taxation; Exceptions
Synopsis: 	The county treasurer has no discretion under K.S.A. 2020 Supp. 12-5909.
The county treasurer is statutorily required to remove from the tax rolls all
taxes, assessments, charges, penalties and interest that are due and
payable on property at the time the property is acquired by the board of
trustees of the land bank. 	The county treasurer is similarly required to
remove from the tax rolls any special assessments on such property that
are abated. 	Any special assessments that are deferred or reamortized by
a municipality must be corrected on the tax rolls by the county treasurer as
of the effective date of the ordinance or resolution providing for such deferral
or reamortization. Cited herein: K.S.A. 2020 Supp. 12-5901; 12-5902; 12-
5907; 12-5908; 12-5909; K.S.A. 19-26,103; 60-801; K.S.A. 2020 Supp. 79-
1801; L. 2015, ch. 99, § 17; L. 2010, ch. 116, §§ 29, 30; L. 1996, ch. 264,
§§ 12, 22.
* 	* 	*
Dear Senator Taylor:
As Senator for the 33rd District, you request our opinion regarding the county’s authority
to tax property acquired by a city land bank. 	Specifically, you ask whether a county is
authorized to levy ad valorem taxes on property acquired by a city’s land bank and
whether 	the 	county 	treasurer 	has 	discretion 	in 	removing 	from 	the 	tax 	rolls 	any
assessments, charges, penalties and interest that are due and payable on a property at
the time the property is acquired by a land bank.

The Honorable Mary Jo Taylor
Page 2
Cities have been authorized since July 1, 2009, to establish city land banks. 1 A land bank
is not a financial institution, but rather is a “public or community-owned entit[y] created for
a single purpose: to acquire, manage, maintain, and repurpose vacant, abandoned, and
foreclosed properties. . . .”2 A land bank is “often created to replace an antiquated system
of tax foreclosure and property disposition” and “give[s] [a] communit[y] the opportunity
to repurpose abandoned properties in a manner consistent with the communit[y’s] values
and needs.” 3
A land bank in Kansas is governed by a board of trustees (board), the members of which
are appointed by the city’s governing body. 4 	The board is required to, in part, “plan for
and use the board's best efforts to consummate the sale or other disposition of [ ] property
[in its possession and control] at such times and upon such terms and conditions deemed
appropriate.”5 The board is authorized to determine the terms and conditions of any sale. 6
“The sale of any real property by the board . . . on which there are delinquent special
assessments to finance public improvements shall be conditioned upon the approval of
the governing body of the municipality which levied the special assessments.” 7
K.S.A. 2020 Supp. 12-5909 sets out the taxation obligations of property acquired by a
city’s land bank.
(a) Until sold or otherwise disposed of by the bank and except for special
assessments levied by a municipality to finance public improvements, any
property acquired by the bank shall be exempt from the payment of ad
valorem 	taxes 	levied 	by 	the 	state 	and 	any 	other 	political 	or 	taxing
subdivision of the state.
(b) Except for special assessments levied by a municipality to finance public
improvements, when the board acquires property pursuant to this act, the
county treasurer shall remove from the tax rolls all taxes, assessments,
charges, penalties and interest that are due and payable on the property at
the time of acquisition by the board.
(c) Property held by the bank shall remain liable for special assessments
levied by a municipality to finance public improvements, but no payment
1 See K.S.A. 2020 Supp. 12-5901 et seq. The Unified Government of Wyandotte County/Kansas City was
first authorized in 1996 to establish a land bank. See L. 1996, ch. 264, §§ 12 through 22, codified at K.S.A.
19-26,103 et seq. The authority was extended to all counties in 2010. See L. 2010, ch. 116, §§ 29, 30.
2 U.S. Dept. of Housing and Urban Development, Neighborhood Stabilization Program, Land Banking 101:
What is a Land Bank?, September 2010.
3 Id.
4 K.S.A. 2020 Supp. 12-5902(b).
5 K.S.A. 2020 Supp. 12-5907(d).
6 K.S.A. 2020 Supp. 12-5908(a).
7 Id.

The Honorable Mary Jo Taylor
Page 3
thereof shall be required until such property is sold or otherwise conveyed
by the bank.
(d) The governing body of any municipality which has levied special
assessments on property acquired by the bank may abate part or all of the
special assessments, and the bank and governing body may enter into
agreements related thereto. Any special assessments that are abated shall
be removed from the tax rolls by the county treasurer as of the effective
date of the abatement.
(e) The governing body of any municipality which has levied special
assessments 	on 	property 	acquired 	by 	the 	bank 	may 	enter 	into 	an
agreement with the bank to defer or reamortize part or all of the special
assessments. The governing body of the municipality shall provide for such
deferral or reamortization by passage of an ordinance, if a city, and by
passage of a resolution by any other municipality. Any special assessments
that are deferred or reamortized shall be corrected on the tax rolls by the
county treasurer as of the effective date of the ordinance or resolution
providing for such deferral or reamortization. 8
In determining the authority of the county and the duty of the county treasurer regarding
taxation of property acquired by a city’s land bank, we look to the language in K.S.A. 2020
Supp. 12-5909.
The fundamental rule of statutory interpretation is that legislative intent
governs if it can be discerned. We begin this inquiry with the plain language
of the statute. Indeed, statutory language is an appellate court's paramount
consideration because the best and only safe rule for ascertaining the
intention of the makers of any written law is to abide by the language they
have used. When . . . a statute is plain and unambiguous, th[e] court does
not speculate as to the legislative intent behind it and will not read into the
statute something not readily found in it.9
K.S.A. 2020 Supp. 12-5909(a) and (b) state that “any property acquired by the bank shall
be exempt from the payment of ad valorem taxes” and “the county treasurer shall remove
from the tax rolls all taxes, assessments, charges, penalties and interest that are due and
payable on the property at the time of acquisition by the board.”10 	The Kansas courts
have held that “the legislature's use of the word ‘shall’ can have different meanings in
different provisions. 	Because the word's meaning is not plain, statutory construction
rather than statutory interpretation is necessary.”11
8 K.S.A. 2020 Supp. 12-5909 (emphasis added). Similar provisions apply to a land bank established by a
county. See K.S.A. 19-26,111.
9 In re T.S., 308 Kan. 306, 309-10 (2018) (internal citations and quotation marks omitted).
10 Emphasis added.
11 Ambrosier v. Brownback, 304 Kan. 907, 912 (2016).

The Honorable Mary Jo Taylor
Page 4
“[T]here is no absolute test to determine whether a ‘shall’ in a statute makes the provision
mandatory or directory.”12 	The courts have developed the Raschke13 four-factor test to
assist in determining whether a “shall” is directory or mandatory. 14 	“Courts should
consider ‘(1) legislative context and history; (2) substantive effect on a party's rights
versus 	merely 	form 	or 	procedural 	effect; 	(3) 	the 	existence 	or 	nonexistence 	of
consequences for noncompliance; and (4) the subject matter of the statutory provisions.
. . .’”15
In considering legislative context and history, we note that K.S.A. 2020 Supp. 12-5909
was proposed in 2009 House Bill No. 2155. 	As originally proposed, the bill authorized
the City of Topeka to establish a land bank. During the legislative process, the authority
was expanded to all cities in the State of Kansas. 16 	The legislation largely reflected
statutory provisions that authorized Wyandotte County to establish a county land bank.
Testimony given during the legislative process provided that:
The primary benefit that the City [ ] will receive is the forgiveness of
outstanding 	ad 	valorem 	taxes 	of 	these 	tax-delinquent, 	abandoned
properties. . . . A secondary benefit will be the ability of the Land Bank to
have property exempt from ad valorem taxes while it is in the Land Bank.
Like the initial forgiveness of property taxes, this too will provide the legal
basis 	for 	exemption 	that 	will 	help 	the 	City 	[ 	] 	break 	the 	“Cycle 	of
Speculation/Abandonment/Delinquency.” 17
“The City [ ] needs the legal authority to address the components of this cycle by having
property taxes forgiven and exempted so as to make the properties attractive to new
owners once they are transferred out of the Land Bank.” 18
In 2015, authority to defer or reamortize special assessments on property acquired by a
land bank was added. 19 Testimony referred to the property’s exemption from taxation. 20
In addition, we note that “shall” is used in K.S.A. 2020 Supp. 12-5909(a) and (b) while the
term “may” is used in K.S.A. 2020 Supp. 12-5909(d) and (e). 	“An appellate court must
consider all of the provisions of a statute in pari materia rather than in isolation, and these
12 State v. Raschke, 289 Kan. 911, 920 (2009).
13 Id.
14 See Ambrosier, 304 Kan. at 912.
15 Id.
16 Journal of the Senate, March 25, 2009, p. 499-50.
17 Senate Committee on Local Government, Minutes, Attachment 2, March 9, 2009, Testimony of Randy
Speaker.
18 Id.
19 See . L. 2015, ch. 99, § 17.
20 House Committee on Local Government, Minutes, Attachment 3, February 17, 2015, Testimony of Larry
Baer, League of Kansas Municipalities; Senate Assessment and Taxation Committee, Minutes, Attachment
2, February 3, 2015, Testimony of Larry Baer, League of Kansas Municipalities.

The Honorable Mary Jo Taylor
Page 5
provisions must be reconciled, if possible, to make them consistent and harmonious. As
a general rule, statutes should be interpreted to avoid unreasonable results.” 21 The use
of different terms indicates an intent to achieve different meanings. 	“Clearly the
Legislature knew how to grant . . . discretionary power when it wanted to and chose
instead to use the mandatory word ‘shall’ . . . instead of the permissive ‘may’. . . .”22
The legislative context and history of the statute indicates a legislative intent that “shall”
as used in K.S.A. 2020 Supp. 12-5909(a) and (b) is mandatory, rather than discretionary.
The second Raschke factor examines whether the statutory provision has a substantive
effect on a party's rights or whether it deals with form or procedural effect.23 	“Statutory
requisitions are deemed directory only when they relate to some immaterial matter, where
a compliance is a matter of convenience rather than substance.”24
[I]t is a general rule that where strict compliance with the provision is
essential to the preservation of the rights of parties affected and to the
validity of the proceeding, the provision is mandatory, but where the
provision fixes a mode of proceeding and a time within which an official act
is to be done and is intended to secure order, system and dispatch of the
public business, the provision is directory.25
K.S.A. 2020 Supp. 12-5908 confers upon the board of trustees of a land bank the authority
to “sell any property acquired by the board at such times, to such persons, and upon such
terms and conditions, and subject to such restrictions and covenants deemed necessary
or appropriate to assure the property's effective reutilization.” The only limitation on the
authority is that if delinquent special assessments are owed on the property, the sale is
conditioned on the approval of the municipality that levied the special assessments. 26
K.S.A. 2020 Supp. 12-5909(a) and (b) further clarify the right of the board of trustees to
determine the terms and conditions of the sale with the goal of assuring a property’s
effective utilization. If “shall” in those provisions is viewed as discretionary, it effectively
allows the county treasurer to establish terms and conditions on the sale. 	Such a view
restricts the rights of the board of trustees and obstructs the purpose of the land bank.
The second Raschke factor indicates “shall” in K.S.A. 2020 Supp. 12-5909(a) and (b) is
mandatory.
The 	third 	Raschke 	factor 	requires 	determining 	whether 	the 	statute 	contemplates
consequences for noncompliance. 	The statute itself does not include a penalty for
21 Welch v. Via Christi Health Partners, Inc., 281 Kan. 732, 750 (2006).
22 Weide v. Lavis, No. 120,185, 2019 WL 3977565 at *4 (Kan.App. 2019) (unpublished opinion).
23 Matter of Davis, 56 Kan.App.2d 39, 51 (2018).
24 Raschke, 289 Kan. at 916, quoting Jones v. State of Kansas, ex rel. Atherby and Kingbury, 1 Kan. *273
(1863).
25 Id. at 916, quoting City of Hutchinson v. Ryan, 154 Kan. 751, Syl. ¶ 1 (1942).
26 K.S.A. 2020 Supp. 12-5908.

The Honorable Mary Jo Taylor
Page 6
noncompliance. 27 The only potential consequence is that the county treasurer becomes
subject to a mandamus action. 28 	“Mandamus is a proceeding to compel some inferior
court, tribunal, board, or some corporation or person to perform a specified duty, which
duty results from the office, trust, or official station of the party to whom the order is
directed, or from operation of law.” 29 However, “[r]elief in the nature of a writ of mandamus
is discretionary.”30 The third Raschke factor likely leans to a discretionary application of
K.S.A. 2020 Supp. 12-5909(a) and (b).
The final Raschke factor reviews the subject matter of the statutory provisions. The courts
have recognized that statutes dealing with election notices and DUI notices tend to be
mandatory.31 	We have been unable to locate a court opinion that extends a similar
blanket recognition regarding statutes dealing with taxation.
“Taxation is an unloved subject, but no one in modern times, to our limited knowledge,
has come up with a practical alternative. 	Government is indispensable to any civilized
society and an orderly system of assessment and collection of taxes is an imperative to
a government's successful operation.” 32 Therefore, the legislature has established a tax
procedure and time schedule that “requires the work of taxation to be done speedily and
to the end that the business of government may be carried on.” 33 Under that procedure:
[T]he county clerk shall place the tax upon the tax roll of the county, in the
manner prescribed by law, and the tax shall be collected by the county
treasurer. 	The county treasurer shall distribute the proceeds of the taxes
levied by each taxing subdivision in the manner provided by K.S.A. 12-
1678a, and amendments thereto.34
“[T]he duties which are imposed upon the County Clerk and the County Treasurer at this
stage of the taxing process are clear, purely ministerial and in no sense discretionary.”35
Given the nature of taxation, it is our opinion that the county treasurer has no discretion
in the collection and distribution of taxes. The fourth Raschke factor favors the argument
that the word “shall” in the taxation provisions of K.S.A. 2020 Supp. 12-5909 is mandatory.
In review, we conclude that the county treasurer has no discretion under K.S.A. 2020
Supp. 12-5909. Any property acquired by a land bank is exempt from the payment of ad
valorem taxes levied by the state and any other political or taxing subdivision of the state.
27 See Paul v. City of Manhattan, 212 Kan. 381, Syl. ¶ 2 (1973); Pishny v. Bd. of County Comm’rs, 47
Kan.App.2d 547, 561 (2012).
28 See K.S.A. 60-801 et seq.
29 K.S.A. 60-801.
30 Comprehensive Health of Planned Parenthood v. Kline, 287 Kan. 372, 410 (2008).
31 Ambrosier, 304 Kan. at 915.
32 Northern Natural Gas Co. v. Bender, 208 Kan. 135, 141 (1971).
33 Id., quoting Mobile Oil Corp. v. McHenry, 200 Kan. 211, 223 (1968).
34 K.S.A. 2020 Supp. 79-1801.
35 Mobile Oil Corp., 200 Kan. at 228.

The Honorable Mary Jo Taylor
Page 7
The governing body of any municipality which has levied special assessments on property
acquired by the land bank may abate part or all of the special assessments. The county
treasurer is statutorily required to remove from the tax rolls all taxes, assessments,
charges, penalties and interest that are due and payable on the property at the time of
acquisition by the board of trustees of the land bank. 	The county treasurer is similarly
required to remove from the tax rolls any special assessments that are abated. 	Any
special assessments that are deferred or reamortized by a municipality must be corrected
on the tax rolls by the county treasurer as of the effective date of the ordinance or
resolution providing for such deferral or reamortization.
Sincerely,
Derek Schmidt
Kansas Attorney General
Richard D. Smith
Assistant Attorney General
DS:AA:RDS:sb