Attorney General Opinion No. ( 2007 )

Joseph O'Sullivan, Reno County Counselor, 315 West First Street, P.O. Box 2067, Hutchinson, Kansas 67504

Dear Mr. O'Sullivan:

As Reno County Counselor you inquire about the lawful expenditure of revenue derived from fees imposed pursuant to K.S.A. 2006 Supp. 65-3410 on real property within Reno County's solid waste and recyclables service area. Specifically, you ask whether those fees may be used for the maintenance of a specific county road. Concerning the road in issue, you inform us:

"The road handles traffic from a county primary arterial road to the Reno County Landfill. Although it is generally conceded that a large majority of road use is attributable to landfill related traffic, adjacent property owners along the right of way include a commercial sand and gravel operation, a public race track, and three residential properties."

K.S.A. 2006 Supp. 65-3410(a) authorizes a county to provide for "the storage, collection, transportation, processing and disposal of solid wastes and recyclables" along with the power "to purchase all necessary equipment, acquire all necessary equipment, acquire all necessary land, build any necessary buildings, incinerators, transfer stations, or other structures, lease or otherwise acquire the right to use land or equipment and to do all other things necessary for a proper effective solid waste management system and recycling program including the levying of fees and charges upon persons receiving such service." The statute specifies that revenue from such fees is "to be used for the acquisition, operation and maintenance of county waste disposal sites and/or for financing waste collection, storage, processing, reclamation, disposal services and recylcling programs where such services are provided."

Although the statute provides the "catch-all" phrase "all other things necessary," in our opinion this allows for the revenue to be expended for purposes that directly relate to statutorily specified purposes¹ and not for purposes that are merely incidental to those primary purposes. Thus, in our opinion, maintenance of a county road that services adjacent business and individual property owners, as well as landfill related traffic, is not sufficiently related to the statutory purposes specified by K.S.A. 2006 Supp. 65-3410 to warrant use of revenue derived from fees imposed pursuant to that statute.

Sincerely,

Paul J. Morrison Attorney General

Camille Nohe Assistant Attorney General

PJM:CN:jm

¹ See 15 McQuillan, Municipal Corporations, § 39.56 (3d ed. rev. 1996) (fund raised by municipality for special purpose is trust fund and municipality may not use or divert such fund for other than special purpose for which collected).