January 26, 2000
Mayor Phil Ruth
City of Luttrell
P.O. Box 82
Luttrell, Tennessee 37779
Dear Mayor Ruth:
This is in response to your question regarding the right of the city to assess a user
charge to residents whose property is served by a sanitary sewer, but who are not connected to
the wastewater system. The short answer is that the city has explicit authority to (1) require that
property owners connect to the wastewater system, and: (2) charge them for wastewater
services whether they are connected to the system or not. Following are the details of the state
law applicable to the subject, and a court case that addresses this precise issue.
If I recall correctly, your wastewater system was constructed at least partially with state
grant and/or loan funds. That being the case, there is a section of state law that applies directly
to how the city is permitted to assess user charges for such a system. Tennessee Code
Annotated 68-221-201 through 214, ‘Construction of Sewage Treatment Works,” is the part of
the law which authorizes the state to make wastewater grants and loans, and sets up the rules
and definitions under which grantee municipalities are to operate such state-funded systems.
TCA 68-221-208 and 209 mandate that any such system must establish a user’s fee schedule,
and grants cities the authority to enforce collection of those fees on all users. This includes the
authority, in TCA 68-221-209(1)(A) to require each parcel which abuts a street that has a sewer
to be connected to the sewer system.
Even if you choose not to require connection to the system, TCA 68-221-201(9) defines
“user” as an “ . . . owner, tenant or occupant of any lot or parcel of land connected to a sanitary
sewer, or for which a sanitary sewer line is available if a municipality levies a sewer charge on
the basis of such availability.” (Emphasis added.) This language clearly gives you the authority to
levy a “sewer availability charge,” which might be equal to the minimum bill, unless actual usage
exceeded that amount. If a parcel were not connected to the system, their bill would be that
minimum usage charge.
There was also a case in Nashville, Phillips v. Metropolitan Government of Nashville Davidson
County, Department of Water and Sewerage Services, 16 TAM 45-15 (1991), where the plaintiff
sought a refund of some years’ worth of sewer charges on the basis that he wasn’t connected to
the system. The trial court dismissed the plaintiff’s claim, and the dismissal was upheld by the
Court of Appeals. The court cited, among other things, TCA 7-34-104(5), which grants
municipalities the right “to prescribe and collect rates, fees, and charges for the services,
facilities and commodities furnished by such public works” even though a citizen doesn’t directly
use the services.
In summary, you have ample authority to charge for “sewer availability” under a number
of sections in state law. Please let us know if you need any further help on this, or any other
subject.
Sincerely yours,
Jim Finane
Special Projects Consultant