|Legal Opinion: |
Text of Document: February 3, 1994
You have asked whether the Board of Mayor and Aldermen may refuse to allow new taps to the municipal water system outside the corporate limits. If so, is it subject to estoppel if it allows one property owner but not another to tap into the public water system? Your opinion, that the Town has the discretion to refuse to allow new taps is correct. While the estoppel principle would probably not be applicable, I believe the Town should follow reasonable policies in extending lines and allowing taps.
I must admit your question is the direct opposite of the question we normally receive, which is whether a city can compel property owners with access to the line to tap onto the public water system. Under existing state law a municipality has the authority to extend both sewer and water service outside its boundaries. (TCA §7-51-401) By statue, a municipality may compel property owners with access to the sewer system to tap to the sewer system. This may be the law that your operator is familiar with and was referring to. TML has introduced a bill this session which will grant similar authority to municipal water systems.
There is nothing in the state statutes that requires a municipal water system to allow any non-resident property owner with access to a water line to be given the service. A property owner has no right to connect with the municipal sewer. Rogers v. First Sewerage District of the City of Lake Charles, 171 So. 2d 820 (La.Ct.App. 1965). The Attorney General has responded to a similar question regarding the duty of a fire department (organized as a utility district under TCA §7-82-304(6)) to provide service to all persons within that district. Under this utility district statute the utility is given the exclusive right to provide service, but the Attorney General found no specific section that imposed a duty to provide that service to everyone. Absent an express or implied contract, the Attorney General opined that the utility district was not obligated to provide services to a person. OAG U91-135 (November 14, 1991).
The Town's Municipal Code contains provisions that give the municipality the discretion to allow connection to the water system. Section 13-106 requires an application and contract for service and provides:
The receipt of a prospective customer's application for service, regardless of whether or not accompanied by a deposit, shall not obligate the town to render the service applied for. If the service applied for cannot be supplied in accordance with the provisions of this chapter and general practice, the liability of the town to the applicant shall be limited to the return of any deposit made by such applicant.
Section 13-109, which governs water extensions provides:
The authority to make water and/or sewer main extensions under the preceding section is permissive only and nothing contained therein shall be construed as requiring the town to make such extensions or to furnish service to any person or persons.
I don't see a problem with enforcing these provisions because I believe they are in line with the law. However, I provided a copy of your letter to our public works consultant, Ms. Sharon Rollins. The Town's water shortage problem requires some engineering help. The Town should be planning, designing and constructing solutions on both a short and long term basis.
While such a plan is in the works, the Town could consider a moratorium on any additional connections to the water system. Such a moratorium could apply across the board to any requests for additional taps or the Town could impose a limited moratorium (as is already done on 2 inch lines). Determination of where the limited moratorium would apply should be based on a hydraulic analysis (flow and pressure) of the system. Certain parts of the system may sustain new connections while other parts may not. Until such a study is conducted you could refuse any new applications.
I would discourage granting or denying new applications without a policy supported by engineering data and based on a plan which will eventually remedy the problem because of the possibility of discriminating between property owners similarly situated. Also, there should be a rational basis for denying service.
We would be happy to work with the Town to obtain the engineering assistance it certainly requires and to develop an extension policy that includes a limited or comprehensive moratorium. Please let us know if we can help further.
cc: Sharon Rollins,
Senior Public Works Consultant