HomeMy WebLinkAbout 03-12-1992 Charter PacketAGENDA
LINO LAKES CHARTER COMMISSION
MARCH 12, 1992 - 7:00 P.M.
1. 7:00 P.M. Review of City Charter, Chapters 1-12 - Randy Schumacher, City
Administrator
2. 7:20 P.M. Review of City Charter, Chapter 8 - Dave Kennedy, Holmes &
Graven
3. 8:00 P.M. Questions on City Charter Make-up and Issues
4. 8:15 P.M. Set Agenda and Date for Next Meeting
2000 First Bank Place West
Minneapolis
Minnesota 55402
Telephone (612) 333-0543
Telecopier (612) 333-0540
Clayton L. LeFevere
Herbert P. Lefler
J. Dennis O'Brien
John E. Drawz
David J. Kennedy
Joseph E. Hamilton
John B. Dean
Glenn E. Purdue
Richard J. Schieffer
Charles L. LeFevere
Herbert P. Lefler III
James J. Thomson, Jr.
Thomas R. Galt
Dayle Nolan
John G. Kressel
Steven B. Schmidt
James M. Strommen
Ronald H. Batty
William P. Jordan
William R. Skallerud
Rodney D. Anderson
Corrine A. Heine
David D. Beaudoin
Steven M. Tallen
Mary Frances Skala
Christopher J. Harristhal
Timothy J. Pawlenty
Rolf A. Sponheim
Julie A. Bergh
Darcy L. Hitesman
David C. Roland
Karen A. Chamerlik
Paul D. Baertschi
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Lefler
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February 29, 1988
Mr. Randall Schumacher
City Administrator
City of Lino Lakes
1189 Main Street
Lino Lakes, Minnesota 55014
Re: City Charter Assessment Procedures
Dear Randy:
In my letter of December 24, 1987, I spoke in a general
way about the difficulties of financing local improve-
ments under Chapter 8 of the Lino Lakes Charter. I've
agreed to appear before the Charter Commission March
3rd to discuss the matter in more detail, and you have
asked me to describe some specific examples of problem
areas for the Commission to consider prior to the
meeting. As I pointed out in my earlier letter,
comments of this kind tend to get quite technical in
nature; and I want to assure the Commission members
that I am not simply hair-splitting, but rather dealing
with things that can fundamentally affect the validity
of the special assessment process and the ability of
the City to market its bonds to finance local improve-
ments. The courts require very strict compliance with
assessment procedures in law or charter, and thus we as
bond counsel must be confident that those procedures
can be and are in fact followed prior to issuing our
approving opinion on the bonds. A list of troublesome
points in the charter and its implementing ordinance
(Ord. Code Sec. 3.03) follow. Comparisons with state
law governing assessments (Minn. Stat. Chapter 429) are
made where appropriate.
1. Petitions instituting improvement. The
petitions must be signed by the benefitted property
owner. Benefit can only be determined after the work
is done and the assessment roll prepared. It may be
that the property included in the petition will be
found to have received no benefit. Is the petition
valid at the outset? The statute uses the term "owners
Mr. Randall Schumacher
February 29, 1988
Page 2
of real property abutting on the streets named in the
petition". Later in the subdivision the term "owners
proposed to be assessed" is used. The statutory
language is preferable.
2. Council initiation.
a) The resolution must state the "scope" of the
improvement and the number of benefitted
properties. Does "scope" mean "area",
"cost", "size"? Again the term "benefitted"
property owners is used, but benefit has not
yet been determined. Also the term "benefit-
ted property owners" must be intended to mean
"property to be benefitted by the improve-
ment".
b) Who prepares the cost estimate in the resolu-
tion? Apparently the engineer, see Subdivi-
sion 3. State law requires the council to
direct some "competent person" to prepare a
preliminary report on the project: this is
usually the consulting engineer.
c) Notice.
(1) The council sets the public hearing by
resolution which must include estimated
unit prices and total cost. Does this
resolution contain the same information
as the initiating resolution? Is the
intent that the initiating resolution be
published?
(2) Does the published notice have to say
anything about the nature or cost of the
improvement or the area proposed to be
assessed? How is the general public
informed about the improvement?
(3) Owners "proposed to be assessed" receive
mailed notice but all that is required
to be in the notice is details of the
hearing and estimated costs. The state
law procedure of published and mailed
notice of (i) the details of the
hearing, (ii) the general nature of the
improvement, (iii) the estimated cost,
Mr. Randall Schumacher
February 29, 1988
Page 3
and (iv) the area to be assessed, is
clear and insures that everyone
concerned is reasonably on notice that
the City is considering undertaking an
assessable public improvement and that
affected property might be assessed for
a portion of its cost.
(4) At the hearing the Council must provide
a "special assessment formula" and a
cost assessment analysis. Suppose in
the actual assessment proceeding the
proposed formula is found to improperly
apportion assessments: can it be
changed?
(5) Can the Council at the hearing change
any detail of the proposed project?
State law permits the Council to reduce
the extent of the improvement as noticed
but not enlarge it.
(6) What happens after the hearing? Does
the Council take some affirmative action
to order the improvement to be con-
structed? Subdivision 3 refers to
"proceedings on the improvement" and the
improvement being "allowed". What vote
is required? The Council may institute
the project (i.e. give notice) by a
4/5th vote, but is a 4/5th vote required
to proceed after the petition period has
passed?
(7) The protest petition language is un-
clear. Does "owners proposed to be
assessed" have the same meaning as
"benefitted property owners" as used in
earlier language of this section? What
does the term "at the expense of the
property benefitted" mean? Does "in the
meantime" mean within the 60 day period?
(8) How is ownership of property to be
assessed determined? State law allows
use of'the tax records of the County
Auditor but the charter is silent.
Mr. Randall Schumacher
February 29, 1988
Page 4
(9) May a person who has signed a petition
against a local improvement withdraw his
or her name? If the petition is
"presented" to the Council, (how is that
done?) before the 60 day period has
elapsed, may a person withdraw his or
her name prior to Council action?
3. Section 8.04, Subdivision 2 and Section
303.05 of the ordinance. These provisions are very
troublesome. We think that the charter means that if
any portion of the cost of the improvement is to be
financed by funds raised by general taxation an elec-
tion is required to authorize the improvements. On the
other hand the ordinance says that if less than 100% of
the cost is assessed an election is required. We think
the charter must be followed. This means, for example,
that if a project is proposed for a state -aid street
and the Council for any number of good reasons feels
that the state aid funds available for use on that
street should be used elsewhere making general taxes
the only source of funds for the City's share of the
cost an election is required. But Minn. Stat. Section
429.051, Subdivision 1, made applicable by the ordi-
nance, permits that any part of the improvement may be
assessed whether or not state -aid funds are used to
finance the project. Thus, the Council will be com-
pelled to use state aid funds on the project or conduct
an election. How can the voters of the City intelli-
gently vote on the appropriateness of the "associated
assessment formula" when only the owners of property
proposed to be assessed are interested? Again, if the
voters approve the formula can any other scheme later
be used if that if found legally necessary?
4. Section 8.04, Subdivision 3.
(a) The word "subdivision" in the second line
must mean "subdivisions".
(b) What is "all of the evidence on which the
Council shall base their decision", and what
is the "public record of the proposed im-
provement"? The language is so broad that a
challenge to the jurisdiction of the Council
to proceed with the improvement is rather
simple.
Mr. Randall Schumacher
February 29, 1988
Page 5
(c) The bids on a petitioned project could
conceivably not come in until 30 days (for
engineer preparation of estimates) plus 14
days (notice) plus 60 days (petition period)
plus 21 days (bidding time) after the origi-
nal estimates were made. Engineers are good
at estimates, but few will think theirs will
hold within 10% for such an extended period.
There is nothing in the charter permitting
the City, as in state law, to advertise for
bids prior to the hearing to get a sense of
costs. The rebidding provision probably
would help only if the project were scaled
back but there is no procedure for this in
the charter.
5. Section 8.04, Subd. 4. Does "disallowed"
mean (i) prohibited by petition, (ii) exceeding the
cost by 10%, (iii) voted down or (iv) all of the above?
What does "vote on the same improvement" mean -
initiate the improvement, order the improvement, let a
contract? May the Council consider a petition for the
same improvement in the one year period? What does
"same improvement" mean - the exact proposal or
something like it?
6. Section 8.06. 100% petition. Why is a
public hearing with notice required if all of the
owners of property to be assessed have no objection?
What is the purpose of the ten day waiting period?
Does the 10% over -estimate rule apply? Does "order the
proposed project" mean let a contract? Does the one
year rule about proceeding with the contract apply?
7. Ordinance, Section 303.08, Procedures and
financing. Why is not Minn. Stat., Section 429.041,
Subdivision 7 adopted by reference? This is most
useful and cost saving and the competitive bidding
process has been complied with.
'In summary, let me state why these ambiguities
cause a bond lawyer (and the bond market) concern. The
improvement bonds sold to finance the project pledge
the special assessments to payment of principal and
interest on the bonds. If the improvement procedure is
defective and successfully challenged, the assessments
and the bonds are invalid. Although Section 429.071
Mr. Randall Schumacher
February 29, 1988
Page 6
contains a procedure for reassessment its purpose is to
correct improper assessments not to reverse
jurisdictional defects. A partial list of grounds for
challenge to the assessments made for projects
following the charter process is as follows:
1 Petitions signed by persons owning property
not benefitted. Errors in computing required
percentages of petitioners.
2. Defects in the Council resolution as to scope
of the improvement.
3. Inadequate information in the published and
mailed notice of improvement.
4. Modification of the size of the improvement
from that described in the notice.
5. Improper assessment formula used in resolu-
tion.
6. An election not held where required by
Chapter 8.
7. Inadequate public record not showing neces-
sary evidence on which Council based its
action.
8. Rebidding on a scaled down project.
9. Acting on the "same" project within one year
of public hearing.
I'll try to answer questions about and elaborate on
these comments Thursday evening.
s very truly,
David J. Kennedy
DJK:caw
cc: William Hawkins
CITY OF
Igo L�
MEMORANDUM
TO: LINO LAKES CHARTER COMMISSION MEMBERS
FROM: RANDY SCHUMACHER, CITY ADMINISTRATOR
DATE: 4 MARCH 1992
RE: MEETING SCHEDULED FOR 12 MARCH 1992 @ 7:00 P.M.
Please find attached an agenda, and a copy of Mr. Dave Kennedy's letter dated
29 February 1988 outlining the financing difficulties associated with our City Charter.
As you can see by the agenda, I will spend a short time with you briefly going
through the majority of the code. I will be followed by a presentation by Mr. Kennedy
and time for questions.
If you will be unable to attend this meeting, please contact my office. If you
should have questions in the meantime, please do not hesitate to contact my office.
cc Agenda
Kennedy Letter
Roster of Charter Commission Members
1189 MAIN STREET, LINO LAKES, MINNESOTA 55014 612-464-5562
AGENDA
LINO LAKES CHARTER COMMISSION
MARCH 12, 1992 - 7:00 P.M.
1. 7:00 P.M. Review of City Charter, Chapters 1-12 - Randy Schumacher, City
Administrator
2. 7:20 P.M. Review of City Charter, Chapter 8 - Dave Kennedy, Holmes &
Graven
3. 8:00 P. M. Questions on City Charter Make-up and Issues
4. 8:15 P.M. Set Agenda and Date for Next Meeting
'000 First Bank Place West
Ainneapolis
Ainnesota 55402
-elephone (612) 333-0543
-elecopier (612) 333-0540
;layton L. LeFevere
ierbert P. Lefler
1. Dennis O'Brien
Iohn E. Drawz
)avid J. Kennedy
Joseph E. Hamilton
John B. Dean
Tenn E. Purdue
(ichard J. Schieffer
;harles L. LeFevere
ierbert P. Lefler III
lames J. Thomson, Jr.
Thomas R. Galt
)ayle Nolan
John G. Kressel
;teven B. Schmidt
lames M. Strommen
ionald H. Batty
Villiam P. Jordan
Villiam R. Skallerud
3odney D. Anderson
;orrine A. Heine
)avid D. Beaudoin
Steven M. Tallen
Jlary Frances Skala
;hristopher J. Harristhal
"imothy J. Pawlenty
iolf A. Sponheim
Julie A. Bergh
)arcy L. Hitesman
)avid C. Roland
:aren A. Chamerlik
'aul D. Baertschi
LcFCVcrc
Lefler
Kennedy'
O'Rrien
Drawz
troth sitrictl
Issmiation
February 29, 1988
Mr. Randall Schumacher
City Administrator
City of Lino Lakes
1189 Main Street
Lino Lakes, Minnesota 55014
Re: City Charter Assessment Procedures
Dear Randy:
In my letter of December 24, 1987, I spoke in a general
way about the difficulties of financing local improve-
ments under Chapter 8 of the Lino Lakes Charter. I've
agreed to appear before the Charter Commission March
3rd to discuss the matter in more detail, and you have
asked me to describe some specific examples of problem
areas for the Commission to consider prior to the
meeting. As I pointed out in my earlier letter,
comments of this kind tend to get quite technical in
nature; and I want to assure the Commission members
that I am not simply hair-splitting, but rather dealing
with things that can fundamentally affect the validity
of the special assessment process and the ability of
the City to market its bonds to finance local improve-
ments. The courts require very strict compliance with
assessment procedures in law or charter, and thus we as
bond counsel must be confident that those procedures
can be and are in fact followed prior to issuing our
approving opinion on the bonds. A list of troublesome
points in the charter and its implementing ordinance
(Ord. Code Sec. 3.03) follow. Comparisons with state
law governing assessments (Minn. Stat. Chapter 429) are
made where appropriate.
1. Petitions instituting improvement. The
petitions must be signed by the benefitted property
owner. Benefit can only be determined after the work
is done and the assessment roll prepared. It may be
that the property included in the petition will be
found to have received no benefit. Is the petition
valid at the outset? The statute uses the term "owners
Mr. Randall Schumacher
February 29, 1988
Page 2
of real property abutting on the streets named in the
petition". Later in the subdivision the term "owners
proposed to be assessed" is used. The statutory
language is preferable.
2. Council initiation.
a) The resolution must state the "scope" of the
improvement and the number of benefitted
properties. Does "scope" mean "area",
"cost", "size"? Again the term "benefitted"
property owners is used, but benefit has not
yet been determined. Also the term "benefit-
ted property owners" must be intended to mean
"property to be benefitted by the improve-
ment".
b) Who prepares the cost estimate in the resolu-
tion? Apparently the engineer, see Subdivi-
sion 3. State law requires the council to
direct some "competent person" to prepare a
preliminary report on the project: this is
usually the consulting engineer.
c) Notice.
(1) The council sets the public hearing by
resolution which must include estimated
unit prices and total cost. Does this
resolution contain the same information
as the initiating resolution? Is the
intent that the initiating resolution be
published?
(2) Does the published notice have to say
anything about the nature or cost of the
improvement or the area proposed to be
assessed? How is the general public
informed about the improvement?
(3) Owners "proposed to be assessed" receive
mailed notice but all that is required
to be in the notice is details of the
hearing and estimated costs. The state
law procedure of published and mailed
notice of (i) the details of the
hearing, (ii) the general nature of the
improvement, (iii) the estimated cost,
Mr. Randall Schumacher
February 29, 1988
Page 3
and (iv) the area to be assessed, is
clear and insures that everyone
concerned is reasonably on notice that
the City is considering undertaking an
assessable public improvement and that
affected property might be assessed for
a portion of its cost.
(4) At the hearing the Council must provide
a "special assessment formula" and a
cost assessment analysis. Suppose in
the actual assessment proceeding the
proposed formula is found to improperly
apportion assessments: can it be
changed?
(5) Can the Council at the hearing change
any detail of the proposed project?
State law permits the Council to reduce
the extent of the improvement as noticed
but not enlarge it.
(6) What happens after the hearing? Does
the Council take some affirmative action
to order the improvement to be con-
structed? Subdivision 3 refers to
"proceedings on the improvement" and the
improvement being "allowed". What vote
is required? The Council may institute
the project (i.e. give notice) by a
4/5th vote, but is a 4/5th vote required
to proceed after the petition period has
passed?
(7) The protest petition language is un-
clear. Does "owners proposed to be
assessed" have the same meaning as
"benefitted property owners" as used in
earlier language of this section? What
does the term "at the expense of the
property benefitted" mean? Does "in the
meantime" mean within the 60 day period?
(8) How is ownership of property to be
assessed determined? State law allows
use of the tax records of the County
Auditor but the charter is silent.
Mr. Randall Schumacher
February 29, 1988
Page 4
(9) May a person who has signed a petition
against a local improvement withdraw his
or her name? If the petition is
"presented" to the Council, (how is that
done?) before the 60 day period has
elapsed, may a person withdraw his or
her name prior to Council action?
3. Section 8.04, Subdivision 2 and Section
303.05 of the ordinance. These provisions are very
troublesome. We think that the charter means that if
any portion of the cost of the improvement is to be
financed by funds raised by general taxation an elec-
tion is required to authorize the improvements. On the
other hand the ordinance says that if less than 100% of
the cost is assessed an election is required. We think
the charter must be followed. This means, for example,
that if a project is proposed for a state -aid street
and the Council for any number of good reasons feels
that the state aid funds available for use on that
street should be used elsewhere making general taxes
the only source of funds for the City's share of the
cost an election is required. But Minn. Stat. Section
429.051, Subdivision 1, made applicable by the ordi-
nance, permits that any part of the improvement may be
assessed whether or not state -aid funds are used to
finance the project. Thus, the Council will be com-
pelled to use state aid funds on the project or conduct
an election. How can the voters of the City intelli-
gently vote on the appropriateness of the "associated
assessment formula" when only the owners of property
proposed to be assessed are interested? Again, if the
voters approve the formula can any other scheme later
be used if that if found legally necessary?
4. Section 8.04, Subdivision 3.
(a) The word "subdivision" in the second line
must mean "subdivisions".
(b) What is "all of the evidence on which the
Council shall base their decision", and what
is the "public record of the proposed im-
provement"? The language is so broad that a
challenge to the jurisdiction of the Council
to proceed with the improvement is rather
simple.
Mr. Randall Schumacher
February 29, 1988
Page 5
(c) The bids on a petitioned project could
conceivably not come in until 30 days (for
engineer preparation of estimates) plus 14
days (notice) plus 60 days (petition period)
plus 21 days (bidding time) after the origi-
nal estimates were made. Engineers are good
at estimates, but few will think theirs will
hold within 10% for such an extended period.
There is nothing in the charter permitting
the City, as in state law, to advertise for
bids prior to the hearing to get a sense of
costs. The rebidding provision probably
would help only if the project were scaled
back but there is no procedure for this in
the charter.
5. Section 8.04, Subd. 4. Does "disallowed"
mean (i) prohibited by petition, (ii) exceeding the
cost by 10%, (iii) voted down or (iv) all of the above?
What does "vote on the same improvement" mean -
initiate the improvement, order the improvement, let a
contract? May the Council consider a petition for the
same improvement in the one year period? What does
"same improvement" mean - the exact proposal or
something like it?
6. Section 8.06. 100% petition. Why is a
public hearing with notice required if all of the
owners of property to be assessed have no objection?
What is the purpose of the ten day waiting period?
Does the 10% over -estimate rule apply? Does "order the
proposed project" mean let a contract? Does the one
year rule about proceeding with the contract apply?
7. Ordinance, Section 303.08, Procedures and
financing. Why is not Minn. Stat., Section 429.041,
Subdivision 7 adopted by reference? This is most
useful and cost saving and the competitive bidding
process has been complied with.
In summary, let me state why these ambiguities
cause a bond lawyer (and the bond market) concern. The
improvement bonds sold to finance the project pledge
the special assessments to payment of principal and
interest on the bonds. If the improvement procedure is
defective and successfully challenged, the assessments
and the bonds are invalid. Although Section 429.071
Mr. Randall Schumacher
February 29, 1988
Page 6
contains a procedure for reassessment its purpose is to
correct improper assessments not to reverse
jurisdictional defects. A partial list of grounds for
challenge to the assessments made for projects
following the charter process is as follows:
1 Petitions signed by persons owning
not benefitted. Errors in computing
percentages of petitioners.
2. Defects in the Council resolution as
of the improvement.
property
required
to scope
3. Inadequate information in the published
mailed notice of improvement.
and
4. Modification of the size of the improvement
from that described in the notice.
5. Improper assessment formula used in resolu-
tion.
6. An election not held where required by
Chapter 8.
7. Inadequate public
sary evidence on
action.
record not showing neces-
which Council based its
8. Rebidding on a scaled down project.
9. Acting on the "same" project within one year
of public hearing.
I'll try to answer questions about and elaborate on
these comments Thursday evening.
s very truly,
David J. Kennedy
DJK:caw
cc: William Hawkins
MINU 1'ES
LINO LAKES HOME RULE CHAR 1'BR COMMISSION
14 JANUARY 1992
LINO LAKES CITY HALL
Call to Order
The meeting was called to order at 7:05 PM by Sally Kuether. Pat Smith
was named as temporary Secretary.
Roll Call
Present were Sally Kuether, Pat Smith, David Storberg, Robert Doocy,
Beverly Landers, Matthew Blaylock, Ina Liljedahl, Robert Williams, William
Houle, Joyce Scharpen, Raymond Johnson and Rolf Iverson. Robert Rud
was absent. There are two open chairs.
Elections
The following members were elected: Chairperson: Pat Smith, Vice
Chairperson: David Storberg, Secretary: Rolf Iverson
Old Business
None.
New Business
The commission will ensure that names of persons interested in filling the
two Charter Commission vacancies are submitted to the District Court Judge
no later than January 31, 1992.
It was proposed to have City Bond Attorney David Kennedy review the
status of our City Charter and any changes in the legal requirements for
Home Rule Charters. The proposal was seconded and passed unanimously.
The next meeting of the Charter Commission was set for. Thursday, March
12th, at 7:00 PM in the Lino Lakes City Hall.
The meeting was adjourned at approximately 8:15 PM.
Respectfully submitted,
Rolf Iverson, Secretary