When can a Mississippi city pay to maintain a sewer grinder pump that sits on a homeowner's private property?

Subject

Maintenance of Grinder Pumps on Private Property

Recipient

Chelsea H. Brannon, Esq., Attorney, City of Madison

Plain-English summary

The City of Madison's attorney asked the AG for a clean test for when a city can pay to maintain a grinder pump that sits on a homeowner's private property. Past AG opinions had used the phrase "integral part" of the municipal sewer system as the trigger for using public funds, and Madison wanted a definition or a checklist. The AG declined to provide one. There is no legal definition of "integral part," and no factor list. The phrase is just shorthand for the underlying rule, which is that a city may not spend public money on private property "for the sole purpose of benefitting one landowner." That bar comes from the Mississippi Constitution's general prohibition on public-funds-for-private-purposes, expressed through prior AG opinions like Brannon (Dec. 21, 2012) and Snowden (Feb. 12, 1999).

A city may, however, install and maintain a grinder pump on private property when (1) the city has made a factual determination that the pump is necessary to the functioning of the municipal sewer system, not solely for the benefit of the private owner, and (2) the city has obtained a proper easement. The "necessity" finding is fact-specific; the AG would not give Madison a list of considerations.

The opinion declined the follow-up questions about previously installed pumps without explicit "integral part" findings, treating those questions as moot once the test for using public funds was clarified. The final question, about returning maintenance to the homeowner under an agreement, was a factual contract question outside the AG's opinion authority.

What this means for you

City attorneys and public works staff

The opinion holds there is no legal definition of "integral part" and no list of factors. To use public funds to install and maintain a grinder pump on private property, the municipality "must make the factual determination that the grinder pumps are necessary to the functioning of the municipal sewer system, and not for the sole benefit of the private property owner, and obtain the appropriate easements." That necessity determination is case-by-case.

Mayors and aldermen

The opinion draws the line at the public-purpose rule it quotes from prior opinions: a municipality "may not construct or maintain a sewer line on private property for the sole purpose of benefitting one landowner," but may do so "when such construction is part of the overall purpose and plan of providing present and future utility service to the general public," subject to a proper easement.

Homeowners with grinder pumps

The opinion describes the standard division of responsibility from the Snowden opinion: the municipality maintains the main line "to the point of connection with the service line," and the property owner is responsible for the service line "from the point of connection with the main line to the residence." Whether the city may maintain a pump on a private lot turns on the city's necessity finding and easement.

Citizens

The opinion treats grinder-pump maintenance as a public-funds-on-private-property question rather than a routine public-works decision. Its answer is that a city may take it on only after making the necessity finding and obtaining an easement; a pump serving the sole benefit of one owner does not qualify.

Common questions

What is a grinder pump?
A grinder pump is a pump-and-grinder unit that lifts wastewater from a low-lying property into a pressurized sewer line, when gravity flow is not feasible. It sits on the homeowner's land but typically connects to the city's main.

What does "integral part" actually mean?
It is not a legal term of art. The AG made clear it is shorthand for "necessary to the functioning of the municipal sewer system." There is no fixed test.

Does the city need an easement before spending money on the pump?
Yes. The opinion repeatedly says easement plus necessity finding. Both are required.

What if the city has been maintaining a pump for years without an "integral part" finding?
The requestor asked this (Questions 3 and 4). The opinion responded that its answer to Question 1, the necessity-and-easement standard, "renders this question moot," so it did not separately address pumps maintained under an earlier easement without that finding.

Can the city hand the pump back to the homeowner?
The opinion says whether and how the city returns maintenance to a property owner "turns on a determination of fact to be made by the City and would depend upon the specific agreement between the parties," and that this question "cannot be addressed by official opinion."

Background and statutory framework

Section 21-27-23 authorizes a municipality to create and maintain a municipal sewer system. The AG has consistently parsed this authority as covering main lines, with property owners responsible for service lines from the connection point to the residence. See Snowden (Feb. 12, 1999). When pumps or lines must sit on private property, prior AG opinions like Brannon (Dec. 21, 2012) require a finding that the pump is part of the overall plan to provide present and future utility service, plus a proper easement.

The principle running through the cited opinions is that public funds cannot be spent on private property "for the sole purpose of benefitting one landowner." That public-purpose rule is what makes the city's necessity finding indispensable before it maintains a pump on a private lot.

Citations

• Miss. Code Ann. § 21-27-23 (municipal authority to create and maintain a municipal sewer system)
• MS AG Op., Snowden (Feb. 12, 1999) (city responsible for main, property owner for service line)
• MS AG Op., Brannon (Dec. 21, 2012) (necessity-and-easement test for utility lines on private property)
• MS AG Op., Baker (July 19, 2001) (origin of "integral part" phrasing in grinder pump context)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/06/C.Brannon-June-29-2023-Maintenance-of-Grinder-Pumps-on-Private-Property.pdf

Original opinion text

June 29, 2023
Chelsea H. Brannon, Esq.
Attorney, City of Madison
Post Office Box 40
Madison, Mississippi 39130-0040
Re:

Maintenance of Grinder Pumps on Private Property

Dear Ms. Brannon:
The Office of the Attorney General has received your request for an official opinion.

Background
In your opinion request, you state that you are seeking guidance on determining if a grinder pump
serving an individual residence is an "integral part" of a municipal sewer system, thus allowing
the municipality to expend public funds on and maintain a grinder pump located on private
property. Your request cites several prior opinions, including one that states that a pump and
grinder force main, "as integral parts of the municipal sewer system, may be maintained by the
municipality, assuming appropriate rights-of-way have been obtained for such purposes." MS AG
Op., Baker at *1 (July 19, 2001).
Questions Presented

1. How does your Office define "integral part" of the municipal sewer system?
2. Is there a list of factors or criteria that the City of Madison ("City") should consider in
   determining if a grinder pump is part of the municipal sewer system or, instead, the
   responsibility of the individual property owner?
3. If the City previously obtained an easement to maintain a grinder pump, but did not at the
   time make a finding that the pump was an "integral part" of the sewer system, may it make
   that finding now and continue to maintain the pump?
4. If the City previously obtained an easement to maintain a grinder pump, but cannot under
   the guidance provided in this Opinion find that the pump is an "integral part" of the
   municipal sewer system, may it continue to maintain the pump under the existing
   easement?
5. If, based on the guidance provided from this request, the City determines that it is no longer
   proper to maintain a grinder pump, can the City enter into an Agreement with the property
   owner, designating a specified time to return the maintenance to the property owner?
   Brief Response
6. There is no legal definition of an "integral part" of a municipal sewer system. In order for
   a municipality to expend public funds to install and maintain grinder pumps on private
   property, the municipality must make the factual determination that the grinder pumps are
   necessary to the functioning of the municipal sewer system and not for the sole benefit of
   the private property owner, and obtain the appropriate easements.
7. Generally speaking, the municipality must determine that the grinder pumps are necessary
   to the functioning of the municipal sewer system and not for the sole benefit of the private
   property owner. However, there is not a list of factors to be considered. This is an individual
   factual determination and would vary on a case-by-case basis.
8. The response to Question 1 renders this question moot.
9. The response to Question 1 renders this question moot.
10. Whether and how the City returns the maintenance of a grinder pump to a private property
    owner turns on a determination of fact to be made by the City and would depend upon the
    specific agreement between the parties. This question cannot be addressed by official
    opinion.
    Applicable Law and Discussion
    As an initial matter, in the Baker opinion that you cite in your opinion request, the background
    facts provided by the requestor assert that the grinder pumps in question "are essential to the
    integrity of the overall sewer system." Baker at 1. In Baker, the phrase "integral part" as used in
    the legal analysis appears to be used synonymously with the requestor's phrase "essential to the
    integrity." Id. However, neither phrase is intended to be a term of art with respect to determining
    whether a municipality can expend public funds for the maintenance of a grinder pump on private
    property.
    Pursuant to Section 21-27-23 of the Mississippi Code, a municipality is authorized to create and
    maintain a municipal sewer system. This office has consistently opined that "[a] municipality has
    authority to maintain the main sewer line to the point of connection with the service line, and the
    property owner has responsibility to maintain the service line from the point of connection with
    the main line to the residence." MS AG Op., Snowden at 2 (Feb. 12, 1999) (internal citations
    omitted). A municipality may not construct or maintain a sewer line "on private property for the
    sole purpose of benefitting one landowner." MS AG Op., Brannon at 3 (Dec. 21, 2012). However,
    "a municipality may construct a water line on private property, subject to proper easement, when
    such construction is part of the overall purpose and plan of providing present and future utility
    service to the general public." Brannon at 3 (internal citations omitted). With respect to grinder
    pumps specifically, this office has consistently opined that if the municipality has made the factual
    determination that the grinder pumps are necessary to provide municipal sewer services to
    residences, the municipality may install and maintain the grinder pumps on private property
    pursuant to the authority in Section 21-27-23. Brannon at *3 (internal citations omitted). This
    remains the opinion of this office. Accordingly, in order for a municipality to expend public funds
    to install and maintain grinder pumps on private property, the municipality must make the factual
    determination that the grinder pumps are necessary to the functioning of the municipal sewer
    system, and not for the sole benefit of the private property owner, and obtain the appropriate
    easements.
    If this office may be of any further assistance to you, please do not hesitate to contact us.
    Sincerely,
    LYNN FITCH, ATTORNEY GENERAL
    By:

/s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General