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August 3, 2006

ATTORNEY GENERAL OPINION NO.
2006-17

Elizabeth R. Cohn
Wabaunsee County
Attorney
215 Kansas Street, Courthouse
P.O. Box 278
Alma, Kansas
66401-0278

Re:

Counties and County Officers--County Commissioners; Powers
and Duties-- Powers of Board of Commissioners; Road Maintenance Agreements with
Quarry Owners or Operators

Counties and County Officers--General Provisions--Home Rule Powers;
Limitations, Restrictions and Prohibitions; Procedure; Impact Fees Charged to
Quarry Owners or Operators

Counties and County Officers--Planning and Zoning in Counties Designated as
Urban Areas--Zoning Regulations; Altering Terms of Conditional Use Permits

Synopsis:

K.S.A. 2005 Supp. 19-101a(a)(28), as amended, prohibits
counties from using home rule authority to impose any "excise, severance or any
other tax in the nature of an excise tax upon the physical severance and
production of any mineral or other material from the earth or water." K.S.A.
2005 Supp. 19-101a(a)(28), as amended, does not prohibit charging drivers on
public roads an impact fee. Whether a particular charge is actually an excise
tax on production of the rock, or whether it is an impact fee for wear and tear
of county roads depends on how the assessment is structured and upon whom it is
imposed. Any assessment imposed solely on one type of user of county roads calls
into question whether it is in reality an impact fee. New agreements or
conditional permits may include fees to help defray road maintenance costs,
however any attempt to unilaterally revoke, change or limit rights already
granted in a conditional use permit, absent a violation of the permit terms by
its holder, may give rise to claims against the county. Cited herein: K.S.A.
2005 Supp. 19-101a, as amended by L. 2006, Ch. 207, § 4 and Ch. 192, § 4; K.S.A.
68-151g; 68-559a; 68-5,100; 68-5,101; K.S.A. 2005 Supp. 79-4216; 79-4217.

* * *

Dear Ms. Cohn:

As Wabaunsee County Attorney you request our opinion regarding whether K.S.A.
2005 Supp. 19-101a(a)(28), as amended by L. 2006, Ch. 207, § 4 and L. 2006, Ch.
192, § 4,(1) prohibits the County from requiring rock haulers to
pay a fee to defray the actual costs incurred by the County due to the rock
haulers' usage and impact on county roads. You note that current Wabaunsee
County regulations provide for a road maintenance agreement as part of every
conditional use permit, however the older permits do not contain such
conditions. As a result, a situation has been created where some quarry
operators are paying for the additional damages and maintenance needed for
county roads traveled by their trucks, while others are not.

You explain that the commissioners consulted the county engineer, who
determined the impact of such truck traffic upon specific county roads and
calculated a cost per loaded ton mile. It is this amount, which you characterize
as an "impact fee," that the County would like to charge all quarry owners or
operators to pay for the costs of dust control and maintenance on county or
township roads impacted by the quarries' trucks.

You ask that we address the following questions:

"1. Does K.S.A. 19-101a(a)(28) prohibit the passage of a resolution in
which ledge rock haulers who have a conditional use permit (whenever issued)
be required to pay an impact fee?

"2. Does K.S.A. 19-101a(a)(28) prohibit the passage of a resolution in
which ledge rock haulers who have a conditional use permit (whenever issued)
be required to enter into a road maintenance agreement annually with Wabaunsee
County?

"3. Does K.S.A. 19-101a(a)(28) prohibit the passage of a resolution in
which ledge rock haulers who have a conditional use permit (whenever issued)
be required to acquire an annual business license through which they would
have to state the route their trucks travel and pay a fee that would maintain
the roads that are used by the quarry operator?

"4. If K.S.A. 19-101a(a)(28) allows the regulation of the quarries through
a business license would that need to be done by a charter resolution in
accordance with K.S.A. 19-117?"

Counties are subject to all acts of the Legislature which apply uniformly to
all counties.(2) Home rule power is available to counties in all
areas of local government where it is not otherwise prohibited.(3)

K.S.A. 2005 Supp. 19-101a(a)(28), as amended, provides:

"(a) The board of county commissioners may transact all county business and
perform all powers of local legislation and administration it deems
appropriate, subject only to the following limitations, restrictions or
prohibitions:

"(28) Counties may not levy or impose an excise, severance or any other
tax in the nature of an excise tax upon the physical severance and production
of any mineral or other material from the earth or water."(4)

Attorney General Opinion No. 95-30 advised that "county home rule authority
may be utilized to impose a severance tax on rock removed from land located in a
county. We do not find any uniformly applicable law preempting local legislation
of this type and it is therefore our opinion that K.S.A. 1994 Supp. 19-101a
allows the county to impose such a tax." However, the 1998 adoption of K.S.A.
2005 Supp. 19-101a(a)(28) rendered the conclusions in this opinion obsolete.(5)

Municipalities may lawfully adopt impact fees.(6) However, the statute you ask us to focus upon
prohibits counties from imposing a severance tax or anything "in the nature of
an excise tax" upon the severance or production of the rock. You explain that
under the county's proposal, severing the rock does not trigger the charges.
Instead, the contemplated charge would be connected with hauling the rock. Even
so, the fees in question appear to at least be related to the rock being removed
from the quarries.(7) It must therefore be determined whether the
proposed fees resemble the type of tax prohibited under K.S.A. 2005 Supp.
19-101a(a)(28), as amended.

A severance tax has been defined generally as a tax "levied on the mining or
extraction of some natural resource such as oil or coal. It may be assessed on
the value of the product extracted or on the volume."(8) An excise tax is one that is imposed upon
performance of an act or an enjoyment of a privilege.(9) Fees that are not imposed on a per transaction
basis may not qualify as an excise tax.(10) However, in general an excise tax is a sum
measured by the amount of business done or the extent to which a special benefit
or privilege is conferred, irrespective of the value of the person's property or
assets.(11)

Counties generally are empowered to levy taxes to pay for the costs of
maintaining or repairing county roads.(12) It is generally this taxing authority that
permits counties to raise money to pay for wear and tear on county roads. Such a
tax is typically levied upon all persons within the county or upon those
property owners within the boundaries of a special benefit district, rather than
upon one specified type of user.

K.S.A. 2005 Supp. 19-101a(a)(28), as amended, precludes a county from
imposing a special fee on haulers of rock based upon severance or production of
the rock. We are troubled by the imposition of a road impact fee solely upon
haulers of rock and believe that too closely connecting the proposed fee to the
rock itself may subject any such fee to attack as a violation of K.S.A. 2005
Supp. 19-101a(a)(28), as amended.

With regard to your questions concerning alteration in the conditional use
permits given to rock quarry owners or operators, having not seen the terms of
existing or contemplated permits we cannot opine. However, we note that
generally the terms contained in each such permit or associated agreements will
necessarily determine the extent of rights granted to the holder of such
permits.

A local zoning authority has the right to prescribe, change or refuse to
change, zoning. However, once the zoning authority has decided to allow specific
land uses, subsequent unilateral changes to the permits granted to or contracts
with persons still operating in compliance with the terms of such agreement or
permits may be unlawful. Such changes should be consensual or predicated upon
nonconformity with the terms.(13) If the conditional use permit does not in any way
address future use of public roads, the county may lawfully adopt new revenue
producing resolutions that do not otherwise conflict with applicable laws or
rights. On the other hand, if a specific conditional use permit addressed use of
roads by the permit holders, the terms of such a permit cannot lawfully be
unilaterally altered absent material non-compliance by the holder of that
permit.

In conclusion, K.S.A. 2005 Supp. 19-101a(a)(28), as amended, prohibits
counties from using home rule authority to impose any "excise, severance or any
other tax in the nature of an excise tax upon the physical severance and
production of any mineral or other material from the earth or water." K.S.A.
2005 Supp. 19-101a(a)(28), as amended, does not prohibit charging drivers on
public roads an impact fee. Whether a particular charge is actually an excise
tax on production of the rock, or whether it is an impact fee for wear and tear
of county roads, depends upon how the assessment is structured and upon whom it
is imposed. Any assessment imposed solely on one type of user of county roads
calls into question whether it is in reality an impact fee. New agreements or
conditional permits may include fees to help defray road maintenance costs,
however any attempt to unilaterally revoke, change or limit rights already
granted in a conditional use permit, absent a violation of the permit terms by
its holder, may give rise to claims against the county.

Sincerely,

Phill Kline
Attorney General

Theresa Marcel Bush
Assistant
Attorney General

PK:JLM:TMB:jm

FOOTNOTES
Click
footnote number to return to corresponding location in the text.

1. L. 2006, Ch. 7 now cites this provision as K.S.A.
19-101a(a)(27).

2. K.S.A. 1995 Supp. 19-101a(a)(1), as amended;
Missouri Pacific Rail Road v. Board of County Commissioners, 231 Kan.
225 (1982).

3. Blevins v. Hiebert, 247 Kan. 1, 5
(1990).

4. Emphasis added.

5. See also Attorney General Opinion No. 95-8
(county home rule power is preempted by legislative enactment with regard to
imposing a severance tax on water being exported out of the county).

6. McCarthy v. City of Leawood, 257 Kan. 566
(1995). The procedures followed and the actual wording of the resolution will
determine its legality.

7. Your letter indicates that the county engineer used
the cost per load of rock to determine the extent of damage being done to the
roads in question and to set the proposed fees for each quarry business.

8. Black's Law Dictionary 1308 (5th ed. 1979).
E.g., K.S.A. 79-4216 and 79-4217 provide for a mineral severance
tax.

9. Bryant v. State of Indiana, 660 N.E. 2d
290, 297, 64 A.L.R. 5th 867 (1995). See also Kansas City
Renaissance Festival Corp. v. City of Bonner Springs, 269 Kan. 670 (2000)
(city could not use an ordinary, non-charter ordinance to exempt itself from
state statute generally prohibiting cities from enacting excise taxes on
services, so that city could enact an admission tax on persons entering places
of amusement).

10. Home Builders Association of Greater Kansas
City v. City of Overland Park, 22 Kan.App.2d 649 (1996) (municipal
ordinance levying excise tax upon platting of real property was not imposed on
transactional basis, such that it would come within statutory ban on certain
municipal excise taxes, where tax was triggered by recording of plat, not sale,
transfer, or use of property; a municipal ordinance which levies an excise tax
prior to recording each plat within the municipality is not a tax that is
imposed on a transactional basis).

11. Black v. State, 406 P.2d 761, 762, 67
Wash.2d 97 (1965).

12. See K.S.A. 68-151g, 68-5,100, 68-5,101,
68-559a, and K.S.A. 2005 Supp. 19-101a(11), as amended, which prohibits counties
from using home rule to alter tax levy statutes without the required language
and procedures.

13. See M.S.W., Inc. v. Board of Zoning
Appeals of Marion County, 29 Kan.App.2d 139 (2001).

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