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• • • Gordon Heitke January 28, 2008 Page 5of13 Section 8.04. How to Initiate Public Improvements for Which Special Assessments may be Imposed. Subdivision 1. This subdivision describes the city's desire to protect residents from having to pay assessments for improvements they do not want. As such, it is a statement of philosophy and policy rather than a rule or procedure. While broad statements of policy were once common in legislation, they are typically avoided now because they add nothing of legal significance and could have unintended consequences in future litigation. Subdivision 3. This section describes the process for a 100% petition. The only concern relates to the Council's action on receipt of a petition. The subdivision indicates that the council may adopt a resolution to "initiate" the relevant improvements by a simple majority vote. It is not clear what the term "initiate" means. Under Chapter 429, improvements must be "ordered" by the council before bonds may be issued. Also, since the subdivision also indicates that state law governs these improvements aside from the requirements of this subdivision, the language should be clarified to harmonize better with Chapter 429 (which, for example, calls for a resolution finding that the required number of signatures has been filed with the city). Subdivision 4. This subdivision describes the process for a 25% petition. Our concerns relate to the technical language. First, the language calls for a petition by owners of more than 25% of the "property proposed to be assessed." Under this language, petitioners identify who should be assessed for the subject improvement. However, which properties benefit is a question of fact that must be determined by the city. In Chapter 429, the 35% petition requirement calls for signature by owners of at least 35% of property abutting the named streets. See, Minnesota Statutes, Section 429.031, subd. 3. In the existing Charter, the petition requires signature by 25% in number of the benefited property owners. See City Charter, Section 8.04, subdivision 1. In either case, the required owners are identified objectively, not by the petitioners themselves. The proposed language could lead to the undertaking of improvements that in fact benefit property beyond that identified by the petitioners, and the petitioners may not represent 25% of the actual benefited property. Further, this language could permit manipulation of a petition to exclude certain property in order to reach the 25% requirement. Second, the rules on signature are ambiguous. Clause (1) calls for signers to own at least 25% of the total number of lots to be assessed. The body of subdivision 4 calls for signers to own more than 25% of the property. More importantly, it is very difficult to reconcile the clause (1) statement that signers must own 25% of the lots, with the clause (3) statement that the signature of a person who owns more than one lot will be counted only once. What happens to the "vote" of an owner who owns multiple lots? The dilemma is best explained by an example: 327632v3 SJB LN140 -86