No.

Opinion

Larry Kallenberger Executive Director Department of Local Affairs 1313 Sherman St. Denver, CO 80203 September 20, 1991

Dear Mr. Kallenberger:

I write in response to your request for an official Attorney General's Opinion regarding waiver of tap fees.

QUESTIONS PRESENTED AND CONCLUSIONS

1. May a sanitation district waive fees for developers of low-income housing?

No.

2. May a sanitation district defer fees for developers of low-income housing?

Yes, if the developer can show that it is economically unfeasible for it to pay such fees under a normal payment schedule.

ANALYSIS

1. The development of affordable, low-income housing in some communities has been limited, in part, due to the expense of tap fees and other charges imposed by water and sanitation districts. Several communities are interested in determining whether authority exists to waive or defer such fees.

In general, political subdivisions cannot exceed the authority granted by the legislature. Bloom v. City of FortCollins, 784 P.2d 304, 311 (Colo. 1989). Such subdivisions possess only such powers expressly conferred by statute or impliedly necessary to implement governmental functions.City of Sheridan v. City of Englewood,199 Colo. 348, 609 P.2d 108 (1980).

Certain powers are common to all special districts. § 32-1-1001, C.R.S. (1990 Supp.). In particular, all special districts have authority:

(j) To fix and from time to time to increase or decrease fees, rates, tolls, penalties or charges for services, programs or facilities furnished by the special district

. . . .

(n) To have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted to special districts by this article. Such specific powers shall not be considered as a limitation upon any power necessary or appropriate to carry out the purposes and intent of this article.

Additional powers are granted to sanitation, water and sanitation or water districts. These districts have authority to fix, and increase or decrease, tap fees. § 32-1-1006(1)(g), C.R.S. (1990 Supp.). The districts may:

fix different rates, fees, tolls, or charges and different rates of levy for tax purposes against all of the taxable property within the several areas of such district according to the services and facilities furnished or to be furnished therein within a reasonable time.

(emphasis added). Section 32-1-1006(1)(b)(I), C.R.S. (1990 Supp.). These sections, when read together, limit the authority of the districts to impose differential charges. The districts may charge differential rates and fees only when different services or facilities are provided. Conversely, the legislature has not granted authority to the districts to waive fees for the same services or facilities based upon the type of housing to be served. By permitting fee waivers to developers of low-income housing, districts would be offering different rates based upon the types of housing built by the developers. Such waivers exceed the authority granted to the districts by the legislature.

2. The legislature has not specified the time within which fees or charges must be paid. Generally, taxes and fees can be collected on a deferred basis to assist those persons or entities who cannot afford to immediately pay according to the mandated schedule. See People ex rel. ColoradoState Hospital v. Armstrong, 104 Colo. 238, 90 P.2d 522 (1939).

The time of payment is incidental to or implied from the specific powers granted to special districts. Dodge v. Department ofSocial Services, 657 P.2d 969, 973 (Colo.App. 1983). Special districts may defer payments of fees or charges for a reasonable time if the developer cannot pay.

SUMMARY

Special districts may not waive fees or charges for services and facilities provided to developers of low-income housing. Special districts may defer payments for a reasonable time if a developer does not have the ability to pay according to the established schedule.

Sincerely,

GALE A. NORTON Attorney General

Special Districts Fees Economic Development

§ 32-1-102(1), C.R.S. (1990 Supp.) § 32-1-1001, C.R.S. (1990 Supp.) § 32-1-1006(1)(b)(I), C.R.S. (1990 Supp.)

LOCAL AFFAIRS DEPT.

Special districts may not waive fees or charges for services and facilities provided to developers of low-income housing. Special districts may defer payments if a developer does not have the ability to pay according to the established payment schedule.