2006-017 | 8/3/2006 | Kansas Attorney General = Opinion

August 3, = 2006

ATTORNEY GENERAL OPINION NO.=20 2006-17

Elizabeth R. Cohn
Wabaunsee County=20 Attorney
215 Kansas Street, Courthouse
P.O. Box 278
Alma, = Kansas=20 66401-0278

Counties and County Officers--County = Commissioners; Powers=20 and Duties-- Powers of Board of Commissioners; Road Maintenance = Agreements with=20 Quarry Owners or Operators=20

Counties and County Officers--General Provisions--Home Rule Powers;=20 Limitations, Restrictions and Prohibitions; Procedure; Impact Fees = Charged to=20 Quarry Owners or Operators

Counties and County Officers--Planning and Zoning in Counties = Designated as=20 Urban Areas--Zoning Regulations; Altering Terms of Conditional Use = Permits=20

Synopsis:=20

K.S.A. 2005 Supp. 19-101a(a)(28), as amended, = prohibits=20 counties from using home rule authority to impose any "excise, severance = or any=20 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.=20 2005 Supp. 19-101a(a)(28), as amended, does not prohibit charging = drivers on=20 public roads an impact fee. Whether a particular charge is actually an = excise=20 tax on production of the rock, or whether it is an impact fee for wear = and tear=20 of county roads depends on how the assessment is structured and upon = whom it is=20 imposed. Any assessment imposed solely on one type of user of county = roads calls=20 into question whether it is in reality an impact fee. New agreements or=20 conditional permits may include fees to help defray road maintenance = costs,=20 however any attempt to unilaterally revoke, change or limit rights = already=20 granted in a conditional use permit, absent a violation of the permit = terms by=20 its holder, may give rise to claims against the county. Cited herein: = K.S.A.=20 2005 Supp. 19-101a, as amended by L. 2006, Ch. 207, =A7 4 and Ch. 192, = =A7 4; K.S.A.=20 68-151g; 68-559a; 68-5,100; 68-5,101; K.S.A. 2005 Supp. 79-4216; = 79-4217.=20

* * *

Dear Ms. Cohn:

As Wabaunsee County Attorney you request our opinion regarding = whether K.S.A.=20 2005 Supp. 19-101a(a)(28), as amended by L. 2006, Ch. 207, =A7 4 and L. = 2006, Ch.=20 192, =A7 4,⁽¹⁾ prohibits the County from requiring rock = haulers to=20 pay a fee to defray the actual costs incurred by the County due to the = rock=20 haulers' usage and impact on county roads. You note that current = Wabaunsee=20 County regulations provide for a road maintenance agreement as part of = every=20 conditional use permit, however the older permits do not contain such=20 conditions. As a result, a situation has been created where some quarry=20 operators are paying for the additional damages and maintenance needed = for=20 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=20 calculated a cost per loaded ton mile. It is this amount, which you = characterize=20 as an "impact fee," that the County would like to charge all quarry = owners or=20 operators to pay for the costs of dust control and maintenance on county = or=20 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=20 which ledge rock haulers who have a conditional use permit (whenever = issued)=20 be required to pay an impact fee?

"2. Does K.S.A. 19-101a(a)(28) prohibit the passage of a resolution = in=20 which ledge rock haulers who have a conditional use permit (whenever = issued)=20 be required to enter into a road maintenance agreement annually with = Wabaunsee=20 County?

"3. Does K.S.A. 19-101a(a)(28) prohibit the passage of a resolution = in=20 which ledge rock haulers who have a conditional use permit (whenever = issued)=20 be required to acquire an annual business license through which they = would=20 have to state the route their trucks travel and pay a fee that would = maintain=20 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=20 a business license would that need to be done by a charter resolution = in=20 accordance with K.S.A. 19-117?"

Counties are subject to all acts of the Legislature which apply = uniformly to=20 all counties.⁽²⁾ Home rule power is available to counties = in all=20 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=20 perform all powers of local legislation and administration it deems=20 appropriate, subject only to the following limitations, = restrictions or=20 prohibitions:

"(28) Counties may not levy or impose an excise, severance or any = other=20 tax in the nature of an excise tax upon the physical severance and = production=20 of any mineral or other material from the earth or water."⁽⁴⁾

Attorney General Opinion No. 95-30 advised that "county home rule = authority=20 may be utilized to impose a severance tax on rock removed from land = located in a=20 county. We do not find any uniformly applicable law preempting local = legislation=20 of this type and it is therefore our opinion that K.S.A. 1994 Supp. = 19-101a=20 allows the county to impose such a tax." However, the 1998 adoption of = K.S.A.=20 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=20 prohibits counties from imposing a severance tax or anything "in the = nature of=20 an excise tax" upon the severance or production of the rock. You explain = that=20 under the county's proposal, severing the rock does not trigger the = charges.=20 Instead, the contemplated charge would be connected with hauling the = rock. Even=20 so, the fees in question appear to at least be related to the rock being = removed=20 from the quarries.⁽⁷⁾ It must therefore be determined whether = the=20 proposed fees resemble the type of tax prohibited under K.S.A. 2005 = Supp.=20 19-101a(a)(28), as amended.

A severance tax has been defined generally as a tax "levied on the = mining or=20 extraction of some natural resource such as oil or coal. It may be = assessed on=20 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=20 basis may not qualify as an excise tax.⁽¹⁰⁾ However, in general an excise tax is a = sum=20 measured by the amount of business done or the extent to which a special = benefit=20 or privilege is conferred, irrespective of the value of the person's = property or=20 assets.⁽¹¹⁾

Counties generally are empowered to levy taxes to pay for the costs = of=20 maintaining or repairing county roads.⁽¹²⁾ It is generally this taxing authority = that=20 permits counties to raise money to pay for wear and tear on county = roads. Such a=20 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=20 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=20 the rock. We are troubled by the imposition of a road impact fee solely = upon=20 haulers of rock and believe that too closely connecting the proposed fee = to the=20 rock itself may subject any such fee to attack as a violation of K.S.A. = 2005=20 Supp. 19-101a(a)(28), as amended.

With regard to your questions concerning alteration in the = conditional use=20 permits given to rock quarry owners or operators, having not seen the = terms of=20 existing or contemplated permits we cannot opine. However, we note that=20 generally the terms contained in each such permit or associated = agreements will=20 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=20 change, zoning. However, once the zoning authority has decided to allow = specific=20 land uses, subsequent unilateral changes to the permits granted to or = contracts=20 with persons still operating in compliance with the terms of such = agreement or=20 permits may be unlawful. Such changes should be consensual or predicated = upon=20 nonconformity with the terms.⁽¹³⁾ If the conditional use permit does not = in any way=20 address future use of public roads, the county may lawfully adopt new = revenue=20 producing resolutions that do not otherwise conflict with applicable = laws or=20 rights. On the other hand, if a specific conditional use permit = addressed use of=20 roads by the permit holders, the terms of such a permit cannot lawfully = be=20 unilaterally altered absent material non-compliance by the holder of = that=20 permit.

In conclusion, K.S.A. 2005 Supp. 19-101a(a)(28), as amended, = prohibits=20 counties from using home rule authority to impose any "excise, severance = or any=20 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.=20 2005 Supp. 19-101a(a)(28), as amended, does not prohibit charging = drivers on=20 public roads an impact fee. Whether a particular charge is actually an = excise=20 tax on production of the rock, or whether it is an impact fee for wear = and tear=20 of county roads, depends upon how the assessment is structured and upon = whom it=20 is imposed. Any assessment imposed solely on one type of user of county = roads=20 calls into question whether it is in reality an impact fee. New = agreements or=20 conditional permits may include fees to help defray road maintenance = costs,=20 however any attempt to unilaterally revoke, change or limit rights = already=20 granted in a conditional use permit, absent a violation of the permit = terms by=20 its holder, may give rise to claims against the county.

Sincerely,

Phill Kline
Attorney General =

Theresa Marcel = Bush
Assistant=20 Attorney General

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FOOTNOTES
Click=20 footnote number to return to corresponding location in the text. =

^1. L. 2006, Ch. 7 now cites this provision as = K.S.A.=20 19-101a(a)(27).

^2. K.S.A. 1995 Supp. 19-101a(a)(1), as = amended;=20 Missouri Pacific Rail Road v. Board of County Commissioners, = 231 Kan.=20 225 (1982).

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

^4. Emphasis added.

^5. See also Attorney General Opinion = No. 95-8=20 (county home rule power is preempted by legislative enactment with = regard to=20 imposing a severance tax on water being exported out of the county).

^6. McCarthy v. City of Leawood, 257 = Kan. 566=20 (1995). The procedures followed and the actual wording of the resolution = will=20 determine its legality.

^7. Your letter indicates that the county = engineer used=20 the cost per load of rock to determine the extent of damage being done = to the=20 roads in question and to set the proposed fees for each quarry = business.

^8. Black's Law Dictionary 1308 (5th ed. = 1979).=20 E.g., K.S.A. 79-4216 and 79-4217 provide for a mineral = severance=20 tax.

^9. Bryant v. State of Indiana, 660 = N.E. 2d=20 290, 297, 64 A.L.R. 5^th 867 (1995). See also = Kansas City=20 Renaissance Festival Corp. v. City of Bonner Springs, 269 Kan. 670 = (2000)=20 (city could not use an ordinary, non-charter ordinance to exempt itself = from=20 state statute generally prohibiting cities from enacting excise taxes on = services, so that city could enact an admission tax on persons entering = places=20 of amusement).

^10. Home Builders Association of Greater = Kansas=20 City v. City of Overland Park, 22 Kan.App.2d 649 (1996) (municipal=20 ordinance levying excise tax upon platting of real property was not = imposed on=20 transactional basis, such that it would come within statutory ban on = certain=20 municipal excise taxes, where tax was triggered by recording of plat, = not sale,=20 transfer, or use of property; a municipal ordinance which levies an = excise tax=20 prior to recording each plat within the municipality is not a tax that = is=20 imposed on a transactional basis).

^11. Black v. State, 406 P.2d 761, = 762, 67=20 Wash.2d 97 (1965).

^12. See K.S.A. 68-151g, 68-5,100, = 68-5,101,=20 68-559a, and K.S.A. 2005 Supp. 19-101a(11), as amended, which prohibits = counties=20 from using home rule to alter tax levy statutes without the required = language=20 and procedures.

^13. See M.S.W., Inc. v. Board = of Zoning=20 Appeals of Marion County, 29 Kan.App.2d 139 (2001).