Attorney General Opinion No.

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

Dear Mr. O'Sullivan:

As County Counselor for Reno County you request our opinion regarding the use of solid waste disposal fees levied pursuant to K.S.A. 65-3410. You indicate that the Board of County Commissioners is considering constructing a vehicle maintenance facility for the Reno County Public Works Department, locating the same at the landfill site and utilizing solid waste disposal fees for the project. Approximately 80% to 90% of the vehicles upon which maintenance would be performed are assigned to the county's road and bridge department. The remaining 10% to 20% are assigned to the landfill department. You further indicate that if waste disposal fees were used to construct the facility, the county's intention would be to reimburse the solid waste fund on a monthly or annual basis for the pro rata use of the facility by the road and bridge department. Based upon the foregoing information you specifically ask "whether K.S.A. 65-3410 solid waste funds can be utilized to construct a maintenance facility for the repair and maintenance of both landfill and road and bridge equipment with the road and bridge fund reimbursing the solid waste fund for the periodic use of the facility."

K.S.A. 65-3410 provides in relevant part as follows:

"(a) Each city or county or combination of such cities and counties may provide for the storage, collection, transportation, processing and disposal of solid wastes generated within its boundaries; and shall have the power to purchase 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 including the levying of fees and charges upon persons receiving service.

On or before the first day of July of each calendar year, the board of county commissioners of any county, may, by resolution establish a schedule of fees to be imposed on real property within any county solid waste service area, revenue from such fees to be used for the acquisition, operation and maintenance of county waste disposal sites and/or for financing waste collection, storage, processing, reclamation, and disposal services, where such services are provided. In establishing the schedule of fees, the board of county commissioners shall classify the real property within the county solid waste service area based upon the various uses to which the real property is put, the volume of waste occurring from the different land uses and any other factors that the board determines would reasonably relate the waste disposal fee to the real property upon which it would be imposed." (Emphasis added).

Attorney General Opinion No. 87-142 stated the general rule "that a fund raised by a municipality for a special purpose is a trust fund, and that the municipality may not use or divert such fund for other than the special purpose for which it was collected. 15 McQuillin, Municipal Corporations § 39.45 (3d ed.); 56 Am.Jur.2d Municipal Corporations § 582." Furthermore, Attorney General Opinion No. 88-1 opined that "K.S.A. 65-3410 authorizes establishment of county waste disposal facilities and states that all fees collected for use of the facility may be used only for costs connected with the facility." (Emphasis added).

In accordance with the above rule and Attorney General Opinion No. 88-1, it is our opinion that moneys derived from the collection of fees pursuant to K.S.A. 65-3410 constitute a special fund held in trust for those purposes specifically set forth in K.S.A. 65-3410.

Therefore, Reno County may not use those fees to construct a building for the repair and maintenance of both landfill and road and bridge equipment because maintenance of road and bridge equipment does not fall within the ambit of K.S.A. 65-3410.

Very truly yours,

CARLA J. STOVALL Attorney General of Kansas

Donna M. Voth Assistant Attorney General

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