February 1, 1994

To the best of my recollection here are the citations I sent to Mr. Colvard on the law governing the right of municipalities to require hook-ups to the city sewer system and/or be charged a sewer availability fee. Even if my recollection is incorrect, this stuff is still the law on that subject. I'm sending you a copy of Hutchinson v. City of Valdosta, Hodge v. Stout, Phillips v. Metro Gvt., and the Tennessee Attorney General's Opinions because they are of particular importance in this area. The remainder of the material is useful should you need reinforcements.

Case Law

Hutchinson v. City of Valdosta, 33 S. Ct. 290 (1913) in which the U.S. Supreme Court specifically held that an ordinance requiring connection to a public sewer, etc. was valid. In so holding, the Court said:

It is the commonest exercise of the police power of a State or city to provide for a system of sewers and to compel property owners to connect therewith. And this duty may be enforced by criminal penalties. ... [Citations omitted.] It may be that an arbitrary exercise of the power could be restrained, but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health.

Hodge v. Stout, 377 F. Supp. 131 (1974) in which the U.S. District Court, Eastern District of Tennessee, upheld the constitutionality of Tennessee Code Annotated, section 7-35-201 against the challenge of a city resident whose water service was discontinued by the City of Mountain City after he refused to connect to the public sewer.

City of Louisville v. Thompson, 339 S.W.2d 689 (1960), in which the Court of Appeals of Kentucky upheld an ordinance that required each dwelling unit to be equipped with an inside bathroom including a toilet, lavatory, basin, and bathtub or shower, and further required that each kitchen sink, lavatory , bathtub and shower be connected to hot and cold water lines, with water heating facilities, and to the public sewer.

Town of Ennis v. Stewert, 807 P.2d 179 (Mont. 1991), in which the Supreme Court of Montana, citing Hutchinson v. City of Valdosta, upheld an ordinance requiring property owners to connect to the town water supply against a challenge that they had a privacy interest in their well. The logic of that case would also apply to connections to public sewer systems.

Phillips v. Metropolitan Government of Nashville & Davidson County Department of Water and Sewage Services, 16 TAM 45-15 (1991)

Legal Treatises

7 McQuillen, Municipal Corporations, section 24.264.

Tennessee Attorney General's Opinions

Tennessee Attorney General's Opinion 88-133.

Tennessee Attorney General's Opinion 87-14.

Tennessee Attorney General's Opinion 92-08.

I believe that a bill has also been introduced in this session of the Tennessee General Assembly to permit municipalities to require hook-ups to public sewer systems even where the sewer system in question is not financed though bonds or state loans.

I also looked at your municipal code. Section 18-202 provides for a mandatory hook-up to the public sewer within 60 days after notification to do so if there is a public sewer within 500 feet.

Sincerely,

Sidney D. Hemsley
Senior Law Consultant
SDH/