Minutes - Council - 05/18/2005 - Special

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William K. Goodrich May 17, ~005 Page 4 fees that Would normally be assessed and collected from each non-petitioning property owner if they wer{ to connect to the improved system. As Section 8.7 of the l~roposed Amendment provides, ithe Proposed Amendment is intended in part to "assure that the entire cost of extending sewer an~ water for leapfrog development shall be the responsibility of property owner(s) wanting. !he improvement." Thus, Section 8.9.1 provides that "[flor each non-petitioning property !dentified as having sewer and/or water made available at the conclusion of the project, the city shall collect -from the petitioning properties as part of the totai project cost an amount equal to jill fees and charges that normally would be assessed and collected from each non- petitionir~g property if it were to connect." There is no provision in the Proposed Amendment that authorizes the City to. vary from this i'equirement. In fact, Section 8.9.3 o£ the Proposed Amcndm,ent deprives the City of authority to bear a portion of the share that Would otherwise be borne by inch-petitioning parties, by forbidding it "to fund sewer or water extension to leapfrog developi~ent if there are no petitioner(s) willing to sponsor and pay the entire cost." As a matter of constitutional law, the amount of assessments imposed upon a property owner fob an improvement must not exceed the benefit that improvement confers upon the property, i As the Minnesota Supreme Court held in Johnson v. City of Eagctn, 584 N.W.2d 770, 771-72 {Minn. 1998), "An assessment in excess of the benefit conferred by the local improven)ent on tho property assessed is an unconstitutional taking of private property. [footnote omitted].i When the cost of an improvement exceeds the benefit, the difference must not be borne byl a particular property, but instead by the municipality as a whole." See also In re Village oj[t~urnsville, ~ 10 Minn. 32, 39, 245 N.W.2d 445, 449 (1976) ("Meeting the requirement that costs be assessed in an amount not exceeding the special benefits conferred establishes the constitutilonality of the assessment"). On its face, the Proposed Amendment Would deprive the City of tl~e authority to set special assessments according to the "benefit conferred by the local improvement" on the petitioning property, as the Minnesota Supreme Court has found that the takings clause requires. To the ~ontrary, its principal function is to require petitionfng properties to bear d~e entire share of the combined benefit of the local improvement to the petitioning propertiei and to the non-petitioning propert!es. E'.Ven if the Proposed Amendment were not construed as imposing an additional "assessment" on the petitioning properties within the meaning of Johnson, .it would be unconsti ,tutional under other decisions of Minnesota's appellate courts interpreting the takings clauses, iFor example, in Collis v. C¢ry of£loomington, 310 Minn. 5, 246 N.W.2d 19 0Vliun, 1976), tl~e Minnesota Supreme Court upheld a state statute a~tthofizing cities to require the dedicatiop of parkland or fees in lieu thereof when challenged under the Minnesota and U.8. Constitu[ions' takings clauses, but only because that statute authorized dedication of only a "reasona,ble portion" of land for the purposes stated, which the Supreme Court construed to mean "that po¢ion of land which the evidence reasonably establishes the.municipality will need to acquire for the purposes stated as a result of approval of the subdivision." 310 Minn. At 17-18, 246 N.g'.2d at 26. Tkie inclusion of this requirement in the statute was significant, in the