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Gordon Heitke January 28, 2008 Page 4 of 13 revenues (even absent special assessments) must be designed to give a direct benefit to property currently occupied. Under Section 8.02, subdivision 2, the city may not assess any property for maintenance, which presumably means that maintenance is not "primarily designed" to provide a direct benefit. As such, this work may not funded with general revenues either. Even if maintenance is construed as "primarily designed" to provide a direct benefit (and thus eligible for funding with at least general revenues), that would apply only to property that is currently occupied by residents or businesses; streets adjacent to unoccupied property could not be maintained unless financed with some revenue source other than general revenues or assessments. The net result, under these two charter amendments, is a significant limitation on the City's ability to carry out routine street maintenance. If the charter inhibits the City's ability to perform street maintenance, the useful life of streets will probably be shortened, full reconstruction will probably be needed more often, and total costs will probably be higher over the long term. Finally, aside from the above obstacles, there is no "bright line" that distinguishes maintenance from reconstruction. Many projects involve some elements of both, even within the same stretch of a street. Determining when a project is "maintenance" that falls under this subdivision would be difficult. Subdivision 3. This subdivision prohibits the city from requiring properties to connect to sanitary sewers if the property has a working private system, unless the system fails or the property is conveyed to a new owner. This provision is similar to policies or ordinances in some cities. My only observation is that by including this language in the charter, the City is precluded from revisiting this policy decision in the future without the cumbersome process of a charter amendment. Subdivision 4. Like subdivision 1, this subdivision partially reiterates state law regarding how assessments should be calculated. However, the reiteration contains two apparent variations from state law. One is the statement that assessments shall be imposed "uniformly on similar properties." Case law on the spread of assessments is well - developed, and generally requires that similar properties are treated similarly. The new phrase may or may not represent a change in law; the intent is not perfectly clear. The other variation is the statement that special assessments not exceed the "benefit," without a qualifying reference such as "in accordance with state law." Under state law, the test is whether a property receives a "special benefit," as acknowledged in Section 8.03, subdivision 1 of the Commission Amendment. Again, it is not clear whether the intent is to follow the standards of state law or to create some new test. Since state law governs all procedures except as otherwise provided in the charter (see Section 8.02), these phrases are not necessary if they are not intended to vary from state law. If these phrases are intended to vary from state law, they are unclear and troubling. In our view, the entire subdivision introduces another element of uncertainty that is best avoided. 327632v3 SJB LN140 -86 • • •