B-145334, APR. 14, 1961

B-145334: Apr 14, 1961

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THE PROJECT AGREEMENT WAS EXECUTED IN BEHALF OF THE DISTRICT ON APRIL 29. BOTH THE AGREEMENT AND THE WAR MOBILIZATION AND RECONVERSION ACT PROVIDED FOR THE REPAYMENT OF THE ADVANCE WHEN CONSTRUCTION OF THE PUBLIC WORK PLANNED WITH SUCH ADVANCE WAS UNDERTAKEN. DISTRICT NO. 2 WAS DISSOLVED BY THE GOVERNING BODY (THE TOWNSHIP BOARD) OF SHAWNEE TOWNSHIP. - WAS ALSO THE GOVERNING BODY OF THE DISTRICT). A NUMBER OF SEWAGE DISTRICTS WERE FORMED. SEWERS WERE CONSTRUCTED IN DISTRICT NO. 8. ALTHOUGH THE TREATMENT PLANT INCLUDED IN SAID PLANS WAS NOT CONSTRUCTED. THAT THE PLAN PREPARED FOR DISTRICT NO. 2 UNDER PROJECT NO.KANS. 14-P-60 WERE VALUELESS SO FAR AS DISTRICT NO. 8 WAS CONCERNED AND WERE ABANDONED.

B-145334, APR. 14, 1961

TO HONORABLE NEWELL A. GEORGE:

YOUR LETTER OF DECEMBER 9, 1960, ACKNOWLEDGED DECEMBER 13, REQUESTED OUR ADVICE CONCERNING THE INDEBTEDNESS ARISING FROM PROJECT NO.KANS. 14-P-60 IN SHAWNEE TOWNSHIP, WYANDOTTE COUNTY, KANSAS.

UNDER THE CITED PROJECT NUMBER, SHAWNEE TOWNSHIP SEWAGE DISTRICT NO. 2, WYANDOTTE COUNTY, KANSAS, APPLIED FOR AND RECEIVED IN ACCORDANCE WITH THE PROVISIONS OF TITLE V OF THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944, 58 STAT. 791, 50 U.S.C. APP. 1671, AN ADVANCE OF $3,000 FOR THE PURPOSE OF "PLAN PREPARATION FOR CONSTRUCTION OF THE PUBLIC WORK DESCRIBED AS A SANITARY SEWAGE COLLECTION SYSTEM AND TREATMENT PLANT," LOCATED IN SAID DISTRICT. THE PROJECT AGREEMENT WAS EXECUTED IN BEHALF OF THE DISTRICT ON APRIL 29, 1946, AND ACCEPTED FOR THE UNITED STATES OF AMERICA ON MAY 3, 1946. BOTH THE AGREEMENT AND THE WAR MOBILIZATION AND RECONVERSION ACT PROVIDED FOR THE REPAYMENT OF THE ADVANCE WHEN CONSTRUCTION OF THE PUBLIC WORK PLANNED WITH SUCH ADVANCE WAS UNDERTAKEN. HOWEVER, ON DECEMBER 8, 1951, SUBSEQUENT TO COMPLETION OF THE PLANS AND PRIOR TO COMMENCEMENT OF ANY CONSTRUCTION, DISTRICT NO. 2 WAS DISSOLVED BY THE GOVERNING BODY (THE TOWNSHIP BOARD) OF SHAWNEE TOWNSHIP, WYANDOTTE COUNTY, KANSAS (WHICH, UNDER KANSAS LAW--- CHAPTER 80, ARTICLE 20, SECTION 2002, GENERAL STATUTES OF KANSAS, 1949--- WAS ALSO THE GOVERNING BODY OF THE DISTRICT), APPARENTLY BECAUSE OF THE DISTRICT'S FAILURE TO SECURE AN AFFIRMATIVE MAJORITY AT THE ELECTION.

SUBSEQUENTLY, A NUMBER OF SEWAGE DISTRICTS WERE FORMED. ONE SUCH DISTRICT, SHAWNEE TOWNSHIP SEWAGE DISTRICT NO. 8, INCLUDED PART OF THE AREA FORMERLY CONTAINED IN DISSOLVED DISTRICT NO. 2. SEWERS WERE CONSTRUCTED IN DISTRICT NO. 8, SUBSTANTIALLY IN ACCORD WITH THE PLANS PREPARED FOR FORMER DISTRICT NO. 2 WITH THE ADVANCE MADE UNDER PROJECT NO.KANS. 14-P-60, ALTHOUGH THE TREATMENT PLANT INCLUDED IN SAID PLANS WAS NOT CONSTRUCTED. HENCE, THE COMMUNITY FACILITIES ADMINISTRATION OF THE HOUSING AND HOME FINANCE AGENCY HAS REQUESTED REPAYMENT OF THE ADVANCE.

YOU STATE IN YOUR LETTER OF DECEMBER 9, 1960, THAT THE PLAN PREPARED FOR DISTRICT NO. 2 UNDER PROJECT NO.KANS. 14-P-60 WERE VALUELESS SO FAR AS DISTRICT NO. 8 WAS CONCERNED AND WERE ABANDONED; THAT IT WAS NECESSARY TO STUDY, DRAFT AND PREPARE COMPLETE NEW PLANS FOR THE LATTER DISTRICT; THAT ANY BENEFIT IN CONNECTION WITH THE PLANS FOR DISTRICT NO. 8 WHICH DERIVED FROM THOSE PREVIOUSLY DRAFTED FOR DISTRICT NO. 2 WAS NEGLIGIBLE; AND THAT FOR THOSE REASONS NO RECOVERY SHOULD BE SOUGHT.

AS INDICATED HEREINABOVE, REPAYMENT OF THE ADVANCE UPON CONSTRUCTION OF THE PUBLIC WORK PLANNED THEREWITH IS REQUIRED BY THE WAR MOBILIZATION AND RECONVERSION ACT OF 1944, THE REGULATIONS PROMULGATED THEREUNDER, AND THE PROJECT AGREEMENT. SECTION 510 (C) OF THE ACT (58 STAT. 791) REQUIRED THAT ADVANCES MADE THEREUNDER BE REPAID "IF AND WHEN THE CONSTRUCTION OF THE PUBLIC WORKS SO PLANNED IS UNDERTAKEN.' IN A CASE SUBSTANTIALLY SIMILAR TO THIS ONE, UNITED STATES V. BOARD OF EDUCATION OF CITY OF BISMARCK, 126 F.SUPP. 338, THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA, SOUTHWESTERN DIVISION, STATED THAT THE DETERMINATION OF THE CASE HINGED UPON THE MEANING OF THE PHRASE "PUBLIC WORKS SO PLANNED" AS USED IN THE STATUTE. IN THAT CASE, THE DEFENDANT OBTAINED AN ADVANCE UNDER THE WAR MOBILIZATION AND RECONVERSION ACT FOR THE PURPOSE OF PLANNING AN ADDITION TO THE RICHHOLT GRADE SCHOOL AT BISMARCK, NORTH DAKOTA. BIDS RECEIVED ON THE ADDITION AS PLANNED WITH THE ADVANCE WERE FAR IN EXCESS OF THE AMOUNT DEFENDANT COULD AFFORD TO PAY, SO COMPLETELY NEW AND DIFFERENT PLANS WERE PREPARED WITH DEFENDANT'S OWN FUNDS AND THE SCHOOL ADDITION WAS CONSTRUCTED IN ACCORDANCE THEREWITH. THE COURT HELD THAT:

"THIS COURT IS OF THE OPINION THAT THE PHRASE "PUBLIC WORKS SO PLANNED" RELATES TO THE GENERAL PLAN CONTEMPLATED BY THE APPLICANT WHEN REQUESTING AN ADVANCE OF FUNDS FROM THE GOVERNMENT. THE EVIDENCE INDICATES THAT THE DEFENDANT HAD ONLY A GENERAL PLAN FOR "AN ADDITION TO THE RICHHOLT SCHOOL" IN MIND WHEN IT APPLIED FOR A LOAN. "AN ADDITION TO THE RICHHOLT SCHOOL" WAS EVENTUALLY CONSTRUCTED. THUS,"THE PUBLIC WORKS SO PLANNED" WAS UNDERTAKEN AND REPAYMENT OF THE ADVANCE IS ACCORDINGLY REQUIRED. THE MERE FACT THAT THE DEFENDANT WAS UNABLE TO MAKE USE OF THE FIRST SET OF PLANS OR SPECIFICATIONS PREPARED UNDER THEIR GENERAL PLAN SHOULD NOT DEFEAT RECOVERY. IT WAS MERELY ONE STEP IN THE PLANNING PROCEDURE OR ARCHITECTURAL STUDY OR INVESTIGATION AS REFERRED TO IN THE STATUTE. INABILITY TO USE THE FIRST SET OF PLANS OR SPECIFICATION DID NOT CONSTITUTE AN ABANDONMENT OF THE GENERAL PLAN OF CONSTRUCTING "AN ADDITION TO THE RICHHOLT SCHOOL" FOR WHICH THE ADVANCE WAS MADE. PLAINTIFF IS ENTITLED TO RECOVER.'

OBVIOUSLY, UNDER THIS CONSTRUCTION OF THE STATUTE, THE ADVANCE MADE IN THIS CASE MUST BE REPAID. A SANITARY SEWAGE COLLECTION SYSTEM WAS CONSTRUCTED. SEE ALSO UNITED STATES V. CITY OF WENDELL, IDAHO, 237 F.2D 51, AND UNITED STATES V. CITY OF WILLIS, TEXAS, 164 F.SUPP. 324.

MOREOVER, THE RECORD BEFORE OUR OFFICE CONTAINS A COPY OF A LETTER DATED AUGUST 18, 1955, FROM CONRAD MILLER, ESQUIRE, ATTORNEY FOR THE GOVERNING BOARD OF SHAWNEE TOWNSHIP, TO THE HOUSING AND HOME FINANCE AGENCY REGIONAL ADMINISTRATOR IN FORT WORTH, TEXAS, WHICH STATES "UNDER THE PLANS FILED WITH THE CLERK OF WYANDOTTE COUNTY, KANSAS, AND DESIGNATED AS SEWER DISTRICT NO. 8, A PART OF THE PLANS WHICH WERE PREPARED UNDER PROJECT KANSAS 14-P-60 COULD BE USED AND THE BOND ISSUE AND COSTS ANTICIPATED PAYMENT TO THE GOVERNMENT OF THE $3,000.00 ADVANCED FOR THIS PROJECT.' ALSO, THE GOVERNING BOARD OF SEWAGE DISTRICT NO. 8, IN A REPORT OF CONSTRUCTION STATUS OF ADVANCE PLANNING PROJECT, DATED NOVEMBER 2, 1956, STATED "BOARD ELECTION HAS BEEN HELD IN SHAWNEE TOWNSHIP SEWAGE DISTRICT NO. 8 WHICH WILL UTILIZE A PORTION OF THE PLANS AND SPECIFICATION PREPARED IN PROJECT NO.KANS. 14-P-60 FOR SHAWNEE TOWNSHIP SEWAGE DISTRICT NO. 2.' IN ADDITION, REPORTS FROM COMMUNITY FACILITIES ADMINISTRATION ENGINEERS INDICATE THE SEWAGE SYSTEM ACTUALLY BUILT BY DISTRICT NO. 8 FOLLOWS THE

PLANS PREPARED WITH MONEY ADVANCED UNDER PROJECT NO.KANS. 14-P-60 "WITH MINOR VARIATIONS.'

THUS, THE GOVERNMENT'S RIGHT TO RECOVER THE ADVANCE MADE UNDER PROJECT NO.KANS. 14-P-60 IS FIRMLY SUPPORTED. HOWEVER, IN ADVANCE PLANNING CASES WHERE THE PLANS PREPARED WITH THE ADVANCE ARE DIVISIBLE IN NATURE AND THE PORTION OF THE PUBLIC WORK CONSTRUCTED REPRESENTS A DIVISIBLE INDEPENDENT SEGMENT OF THE PROJECT, OUR OFFICE HAS FOLLOWED THE PRACTICE OF ACCEPTING PAYMENT OF THE PRO RATA VALUE OF THE PLANS UTILIZED. HENCE, SINCE THERECORD INDICATES THAT THE TREATMENT PLANT, WHICH WAS INCLUDED IN THE ORIGINAL PLAN BUT HAS NOT BEEN CONSTRUCTED, WAS ESTIMATED TO CONSTITUTE 68.3 PERCENT OF THE TOTAL COST OF THE PROJECT AS PLANNED AND THE SEWER LINES WHICH WERE CONSTRUCTED WERE ESTIMATED AT 31.7 PERCENT THEREOF, WE ARE TODAY INSTRUCTING OUR CLAIMS DIVISION TO REQUEST FROM SHAWNEE TOWNSHIP SEWAGE DISTRICT NO. 8, WYANDOTTE COUNTY, KANSAS, PAYMENT OF 31.7 ..END :