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• Gordon Heitke January 28, 2008 Page 9 of 13 This subdivision also states that the rules for counting signatures under Section 8.04, subd. 4 apply to preferences under Section 8.07. Section 8.04, subd. 4, clause (3) directs that where a lot has multiple owners, only one signature will count (so the ambiguities discussed under that section carry over into this section). However, Section 8.07 subdivision 2 states that if multiple owners of a lot indicate different preferences, no preferences shall be counted for that lot. These two provisions seem contradictory. It is true that two owners might disagree and file conflicting preferences, and a question then arises about which one to "count." But simply discarding the votes from that lot seems likely to invite challenge. There might be other solutions, but this problem underscores the practical and legal challenges imposed by the "owner preference" voting system (which, to my knowledge, has no precedent in the State of Minnesota). Finally, the preference system is essentially an election, but one without rules regarding the form of the "ballot," the time and place of filing, canvassing of votes, and similar issues. Municipal elections are governed by a large body of statues and rules, designed to address the myriad of problems and disputes that arise in the course of a complex process. The Commission Amendment creates a new election system, without the supporting legal or administrative "infrastructure." As such, the system is likely to generate high legal and administrative costs. Subdivision 3. This subdivision creates a special rule for utilities in cases where "property owners prefer an alternative which results in a street being improved without utilities recommended by staff." In that situation, utilities may not be undertaken in that street within five years after completion of the street unless the utilities and any related street repair are financed without general revenue. Apparently, the intent of this provision is to encourage owners to vote for the most cost- effective improvement, i.e. street improvements that include utilities (at least where that combination is recommended by staff). However, the language leaves many open questions. When are utilities "recommended by staff?" Who constitutes staff? Does the term include consulting engineers? What evidence of a staff recommendation is needed? Would one sentence in a staff memo suffice? If the feasibility study includes an option of streets without utilities (as it must, under Section 8.05, subdivision 2), and the study concludes that such street -only project is feasible, necessary and cost - effective (as Chapter 429 requires), does that constitute a staff recommendation of no utilities? What if the recommendation is qualified in some way? If those hurdles are overcome, when is the street "completed" and what constitutes "installation" of utilities" for purposes of measuring the five -year waiting period? Taken together, these difficulties render this subdivision unenforceable as a practical matter. Further, the opening sentence of the subdivision is another example of editorial commentary that is not appropriate in a charter. The charter is a form of legislation, and comments or explanation should be reserved for background materials 327632v3 SJB LN140 -86