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The municipal statute current reads as follows:
A city may require an owner of developed property on which there
are situated one or more residential dwelling units or commercial
establishments located within the city limits and within a reasonable
distance of any water line or sewer collection line owned, leased as
lessee, or operated by the city or on behalf of the city to connect the
owner’s premises with the water or sewer line or both, and may fix
charges for the connections. In lieu of requiring connection under this
subsection and in order to avoid hardship, the city may require payment
of a periodic availability charge, not to exceed the minimum periodic
service charge for properties that are connected.
G.S. 160A-317(a).
The county, sanitary district, and water and
sewer authority statutes all currently read as follows:
A [utility] may require the owner of developed property on which there
are situated one or more residential dwelling units or commercial
establishments located so as to be served by awater line or sewer collection
line owned, leased as lessee, or operated by the [utility] or on behalf of
the [utility] to connect the owner’s premises with the water or sewer
line and may fix charges for these connections. In the case of improved
property that would qualify for the issuance of a building permit for the
construction of one or more residential dwelling units or commercial
establishments and where the [utility] has installed water or sewer lines
or a combination thereof directly available to the property, the [utility]
may require payment of a periodic availability charge, not to exceed the
minimum periodic service charge for properties that are connected.
G.S.
153A-284; see also G.S. 130A-55(16)a; G.S. 162A-6(a)(14d).
Authority as of August 1, 2016
What changes, if any, does the new law make to the availability fee
provisions? The answer, again, varies by type of entity.
The new law did not modify the availability fee language in the
municipal statute. However, the municipal statute ties the authority
to charge an availability fee directly to the authority to mandate
connections. It states that “in lieu of” requiring connection, the unit may
choose to instead impose an availability fee. That very likely means
that if a municipality does not have authority to mandate that a property
connect to its water system pursuant to G.S. 87-97.2, it also does not
have authority to impose an availability fee on that property owner.
The county, sanitary district, and water and sewer authority statutes do not
directly tie the imposition of an availability fee to the authority to mandate
connections. (And, in fact, the new law actually creates a new subsection in
the county statute, separating the authority to mandate connections from the
authority to impose an availability fee.) It thus appears that a county, water
and sewer authority, and sanitary district will continue to have the authority
to impose availability fees on properties who qualify for the issuance of a
development permit, but are not yet developed or improved, even if the unit
has issued the property owner a private drinking water well permit.