Minutes - Council - 05/18/2005 - Special

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cited some specific Court cases and stated that this proposed amendment is very similar to the Christopher Lake Dev. Co. case and, therefore, is unconstitutional. The proposed amendment is subject to an additional objection that is not usually found with subdivision exactions, taxes, or special assessments related to public improvements. The issue of such exactions or charges ordinarily posed to the Courts is whether the public is asking a petitioner or developer to bear a disproportionate cost of public improvements. That objection is true in this case since the developer would be required to pay the cost of making service available to all properties passed by the sewer and water extension. However, a further problem is that the additional amount requircd to be paid by the petitioner into the escrow fund is not used for a public purpose, but is restricted to the use of providing private sewer service to the intervening properties. Therefore, in Mr. LeFevere's opinion, the application of this requirement of the proposed charter amendment would fail because it does not promote a legitimate state interest. John Baker, Greene Espel, stated he is a partner which represents government in different settings - usually litigations. He added that City Administrator Norman asked his firm to address two questions arising from the proposed Charter petition the City recently received. The first question involves whether the terms of the proposed amendment would provide the City with authority to deny the petition and thereby prevent voters from considering the proposed amendment. The second question involves whether allegations that the signatures on the petition were gathered through the use of misrepresentations which if true, would provide the city with authority to deny the petition or take other action regarding the petition or the proposed amendment. Mr. Baker stated, in his opinion, the proposed amendment is manifestly unconstitutional. It imposes a system for calculating assessments for certain local improvements that fail to heed the requirements imposed by the takings clauses of the Minnesota and United States Constitutions as interpreted by the Minnesota Supreme Court. Our conclusion that by depriving the City of the opportunity to do what the Constitution requires would satisfy the manifestly unconstitutional status. The City Council has the opportunity or responsibility to hold the question from the ballot on the takings clause. To answer the second question, we have assumed, for the sake of argument, that signatures on the petitions were obtained through the use of misrepresentations. However, because the statutes governing charter amendments and false campaign speech do not authorize the City to reject the petition on this basis, we conclude that the City is not in a position to take such an action based upon alleged misrepresentations. He referred to his letter and whether or not the proposed amendments are manifestly unconstitutional. He cited several Court cases, and concluded that the proposed amendment includes at least one "manifestly unconstitutional" element - the provisions requiring petitioning parties to pay the fees that would normally be assessed and collected from each non-petitioning property owner if they were to connect to the improved system. The costs would be so high - so out of touch with the benefits, the courts would see it as manifestly unconstitutional. As Section 8.7 of the proposed amendment provides, the proposed amendment is intended in part to "assure that the entire cost of extending sewer and water for leapfrog development shall be the responsibility of property owner(s) wanting the improvement." Thus, Section 8.9.1 provides that "for each non-petitioning property identified 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 total project cost an amount equal to all fees and charges that normally would be assessed and collected from each non-petitioning property if it were to connect." There is no provision in the proposed amendment that authorizes the City to vary from this requirement. In fact, Section 8.9.3 of the proposed amendment deprives the City of authority to bear a portion of the share that City Council - Special Meeting May 18, 2005 Page 4 of 12