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22 Minnesota Attorney General Reports and Opinions 1 (1989)

handle is hein.sag/sagmn0026 and id is 1 raw text is: JANU1 ARY 1989 Minnesota Legal Register (Attorney General Opinions Issue) Opinions of the Attorney General Hubert H. Humphrey, III CITIES: PUBLIC WORKS: WATERWORKS: FIRE PRO- TECTION CHARGE: Min. Stat. § 444. 075 (1988) does not authorize city to impose fire protection charge on improved structures in city based on size or assessed valuation to pay for portion of waterworks improvement and enlargement project related to providing municipal fire protection. Munic- ipality itself is chargeable for use and availability of water- works facilities for fire protection and costs applicable thereto are payable from taxes levied upon all taxable property in municipality. Fire protection charge, under facts herein, not within prohibition of Minn. Stat. § 444.25 (1988) relating to water availability or standby charges. Mr. Kerry B. Olson January 5, 1989 City Attorney 59-b-13 City of Glencoe Cr. ref. to 624-d 1017 Hennepin Ave. Glencoe, MN 55336 In your letter to Attorney General Hubert H. Humph- rey, III, you submit substantially the following: FACTS The city of Glencoe, a home rule charter city of the fourth class, operates a waterworks. At the present time it is necessary for the city to improve and enlarge its waterworks, not only to meet state health department regulations, but also to provide adequate water supply to citizens of the community and to provide reasonable fire fighting capacity. The city's consulting engineer has determined that approxi- mately 3 of the cost of the construction of the project will be related to providing adequate water supplies for general consumption and about 3 of the cost will be related to providing adequate fire fighting protection. It appears that under Minn. Stat. § 444.075, subd. 2 (1988), relating to the financing of waterworks facilities, some form of user fee must be established to repay any bonds which may be issued to finance this project rather than relying upon real estate taxes for this purpose. It appears to the city that user fees based only upon water consumption are unfair because a large portion of the cost of the project is related to fire protection and unrelated to actual water use. For example, the city has determined that a significant number of structures exist in the community, such as commercial, industrial and institutional buildings (churches, schools, government buildings), which require extra capacity for fire fighting. However, the use of these structures presently results in the consumption of a very small amount of water and, hence, the owners of these struLures receive small bills based on a gallonage use system. It may, therefore, be the intention of the city to impose, in addition to gallonage charges, a fire protection charge on all improved structures in the city on a graduated classifica- tion system in relation to their size, or, in the alternative, according to their assessed valuation, with the larger or more valuable structures paying more than the smaller structures. However, we note that Minn. Stat. § 444.25 (1988) appears to prohibit the imposition of water availability or standby In This Issue... Subject CITIES: Public Works: Waterworks: Fire Protection Charge: Op. No. Dated 59-b-13 1/5/89 PEACE OFFICERS: Wearing Uniform or Badge Off-Duty While Engaged in Services As A Pro- tective Agent 785-L (Cr. Ref. to 605a-2, 876) CONTRACTS: Directors, Inspectors, Principals and Superintendents: Salary and Benefits: 166b-4 (Cr. Ref. 161b-4 161b-12, 622k) SCHOOL BOARD POWERS: Superintendent: Salary and Benefits: 161b-12 Cr. Ref. 161b-4, 174-e) 1/17/89 1/24/89 1/24/89 charges upon the owners of structures equipped with fire protection systems. You ask substantially the following questions: QUESTION ONE Does Minn. Stat. § 444.075 (1988) authorize the city to impose the proposed fire protection charge on improved structures within its corporate limits in addition to gallonage charges for the water actually consumed? OPINION In our opinion this question should be answered in the negative since the statute evinces an intent that the portion of the cost of a municipal waterworks system related to provid- ing municipal fire protection be recovered by taxes levied on taxable property generally rather than by charges on particu- lar structures as proposed. Section 444.075, supra, empowers a municipality, as therein defined, to construct, operate and pay for water- works and sewer systems. Subdivision 3 of this section deals with the imposition of charges and provides in part: To pay for the construction, reconstruction, repair, enlargement, improvement, or other obtainment and the maintenance, operation and use of the facilities, the governing body of a municipality or county may impose just and equitable charges for the use and for the availabil- ity of the facilities and for connections with them and make contracts for the charges as provided in this section. Payment for the use and availability of these facilities for fire protection is specifically addressed later in this same subdivi- sion: The governing body may fix and levy taxes for the payment of reasonable charges to the municipality or county itself for the use and availability of the facilities for fire protection, for maintaining sanitary conditions, and for proper storm water drainage in and for public build- ings, parks, streets, and other public places. Page 1 TANITIAIDV 10510

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