April 5, 1993

ATTORNEY GENERAL OPINION NO. 93- 47

Michael Howe

Lenexa City Attorney

P.O. Box 14888

Lenexa, Kansas 66215-0888

Re:	Cities and Municipalities--Additions, Vacation and Lot Frontage; Annexation by Cities--

Annexation of Lands Located in Water Districts

Synopsis:	Where both the district and city agree that title be retained by the district, it is not mandatory that a city which annexes land located within a rural water district acquire title to district facilities. Cited herein: K.S.A. 12-527.

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Dear Mr. Howe:

As city attorney you request our opinion whether K.S.A. 12-527(a) requires a city which annexes land located within a rural water district to acquire title to all facilities owned by the water district. K.S.A. 12-527(a) provides, in relevant part, as follows:

"(a) Whenever a city annexes land located within a rural water district . . . the city shall negotiate with the district to acquire title to all facilities owned by the water district and used for the transportation or utilization of water distribution to the water district benefit units within the area annexed by the city. Title shall vest in or become the property of the city upon payment by the city to the water district of the reasonable value of such property. . . ." (Emphasis added).

You indicate that the only facility owned by the water district on land to be annexed by the city is one pipeline which connects to the property of one individual. Both the city and the district want the latter to retain title and continue to provide service to this individual.

The answer to your query depends upon whether K.S.A. 12-527(a) is mandatory or directory. In determining whether statutory provisions are mandatory or directory it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of the parties affected and the validity of the proceedings, the provision is mandatory, but where the provision fixes a mode of proceeding and a time in which an official act is to be done and it is intended to secure order, system, and dispatch of public business, the provision is directory. City of Hutchinson v. Ryan, 154 Kan. 751 (1942); State v. Deavers, 252 Kan. 149, 167 (1992). "Shall" is sometimes held to be directory and not mandatory. State v. Doeden, 12 Kan.App.2d 245, 248 (1987). "Shall" is frequently read to mean "may" where the context requires. Paul v. City of Manhattan, 212 Kan. 381, 385 (1973). Statutory provisions using the word "shall" might be held not mandatory where (1) not accompanied by negative words indicating the specific acts can be done in no other manner; or (2) no consequences of noncompliance are included. State v. Doeden.

It is our opinion that K.S.A. 12-527(a) is directory because there are no consequences of noncompliance. In addition, subsection (c) of K.S.A. 12-527 provides that the city and district may agree that certain facilities owned by the district be retained by the latter if water is transported outside of the city, a situation which is not present here, but which suggests that the legislature considered circumstances wherein the city and the district might want the latter to retain ownership of its facilities.

In short, it is not mandatory that a city which annexes land located within a rural water district acquire title to district facilities where both the district and city agree that title be retained by the district.

Very truly yours,

ROBERT T. STEPHAN

Attorney General of Kansas

Mary Feighny

Assistant Attorney General

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