Op. Atty. Gen. 387b-10 ( 1993 )

5<;3;1;4 bi§e\dv§§,$,y CgZ:-;CRZL;ES: fcily mail impose reasonable charges for storm sewer
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gmc § 444_075 (]992). Pl'emises in rererence to storm water produced. an.
387-B-10
_’Vlarch 8. 1993
.\larl< J. lohnson
Delano City Attorney
Lang. Pauly & Gregerson
-‘»-100 IDS Center
80 South Sth Street
.\/linneapolis. MN 55402
Dear Mr. Johnson:
ln your letter to Attorney General Hubert l-lumphrey lII. you present substantially the
t``ollowing:
l'-``ACTS
The City of Delano enacted a Storm Water Util'ity Ordinance pursuant to Minn.
Stat. §444.075 to handle storm water drainage problems in the City of DelanO. Th€
charges necessary to pay for the storm water system are assessed to the various improved
parcels of property within the City. The land uses which are exempt from the storm
water drainage fees include: public right-of-way. vacant. unimproved land with
sufficient ground cover so as not to create any signincant run-off as determined by the
City Engineer. and land owned by the City.
The charges are based upon a study performed by Delano``s consulting engine€r,
who developed a formula for determining storm water run-off from each parcel Of
property in the City. This formula focuses upon rainfall. soil type and percentage _Of
impervious surface. These factors were then evaluated along with the 5113!1¢1&1
requirements of the storm water system and a charge was developed for each parcel_Of
property which was found to create storm water run-off. The standard residential
charge, for example. was determined to be SZ.OO. which is then stated as a separate
charge on the monthly water and utility bill.
Marl< j. Johnson
Page 2
You then ask substantially the following question:
QUESTION
ls the fee system adopted by Delano in its Storm Utility Ordinance authorized
under Minnesota law‘?
()PINION
Sub_lect to the qualifications noted below_ we answer your question in the affirmative
.‘\linn. Stat. §444.075 (1992) provides authority for municipalities to construct and
maintain waterworks and sewage systems. specifically including storm sewer systems. Among
the mechanisms authorized to pay for construction, improvement, maintenance and operation
of such facilities. is a imposition of reasonable charges "for the use and for the availability of
the facilities." Specit``ically Minn. Stat_ § 444.075. subd. 3. provides in part:
Charges made for service directly rendered shall be as nearly as possible
proportionate to the cost of furnishing the service. and sewer charges may be
fixed on the basis of water consumed_ or by reference to a reasonable
classification of the types of premises to which service is furnished, or by
reference to the guantity, pollution qualities and difficulty of disposal of sewage
and storm water groduced, or on any other equitable basis including, but without
limitation, any combination of those referred to above.
(Emphasis added).
Thus. it seems clear that the city is expressly authorized by statute to impose charges for
storm sewers upon a reasonable classification of property which may be based upon, among
other things. the amount of "storrn water produced." We are aware of previous opinions
which have expressed caution about imposition of special assessments in connection with
drainage improvement projects where the assessments are not based upon special benefits to
the property assessed. M, eggs Ops. Atty. Gen 206a. August 28. 1978 and August 22,
1979. In the latter opinion. however. we expressed the view that changing concepts in
permissible government regulation could support recognition of special assessments based upon
a parcel of land’s contribution to the problem addressed by the assessible improvement. Thtis.
.\¢lark .l. Johnson
Page 3
we suggested that special assessments may be permitted against lands which contribute water
which is stored. handled or controlled by a watershed improvement.
Furthermore. courts in Minnesota and elsewhere have distinguished between the
standards for imposition of special assessments and those for other authorized charges. For
example in .\lordgren v. Citv of Maplewood, 326 N.W.Qd 640 (Minn. 1982) the Minnesota
Supreme Court upheld a substantial connection charge against property which which had
previously been found not to be benefitted by the improvements in question. in holding that
connection charges were separately authorized by Minn. Stat. § 444.075 and could be imposed
notwithstanding, or in addition to. special assessments the Court relied upon the previous
decision in Crown Cork & Seal Co. v. Citv of Lakeville, 313 N.W.Zd 196 (Minn. 1981)
wherein the Court held that the lack of benefit to the plaintist property would be material in
evaluating a special assessment under Minn. Stat. §444.075. subd. 4. but was not a
requirement for imposition of separate charges permitted pursuant to subdivision 3. The latter
subdivision only requires that the charges be "just and equitable." Nordgren, 326 N.W.Zd at
642. §§ also Grace Episcot)al Church v. Citv of Madison, 385 N.W.Zd 200 (Wis. App.
1986).
Therefore. it is our view. that the city is authorized to impose reasonable charges upon
property for storm sewer services provided. Whether or not the specific formula developed by
the city of Delano for fixing such charges is reasonable as applied to the particular properties
is an issue of fact which is outside our opinion function. §e_e, gm Op. Atty. Gen. 629a,
May 9, 1975. As a general proposition. however. municipal rates and charges such as those
authorized by section 444.075 will be presumed to be reasonable, with the burden of proving
otherwise being upon the person asserting the unreasonableness of the charge. S_ee;, ;g;, §ta_f€
of Iowa v. Citv of Iowa Citv, 490 N.W.Zd 825 (lowa 1992); Countv of Oakland v. Citv of
M, 265 N.W.Zd 130 (Mich. App. 1978). Insofar as the charges in question are based
Mark .I. Johnson
Page 4
upon an engineering study designed to evaluate storm water runoff from private property, it
seems unlikely that they wculd be found unreasonable
Very truly you.rs.
HUBERT H. HUMPHREY III
Attomey General
KENNETH E. RASCHKE JR.
Assistant Attorney General
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