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HomeMy WebLinkAboutNov 10th 2009 workshop packet City Council Date: 11/10/09 WORKSHOP Item: 2 AGENDA ITEM: Proposed Revisions to the Buffer Setbacks in Open Space Preservation (OP) Developments SUBMITTED BY: Planning Commission THROUGH: Bruce A Messelt, City Administrato 6i REVIEWED BY: Kyle Klatt, Planning Director Kelli Matzek, City Planner SLUWAIARY AND ACTION REQUESTED: The Planning Commission has completed its review of buffer setbacks for 17 Open Space Preservation (OP) developments and has recommended approval of the setbacks, as outlined in the chart below. Prior to formal action by the Council on this ordinance,the Council is being asked to review the recommended setbacks, the attached maps (the arrows indicate Planning Commission's recommendations), and chart outlining the reasoning behind the recommendations. It is requested that the City Council provide comment and/or direction on preparation of the final ordinance establishing the setbacks. BRIEF HISTORY: The Open Space Preservation development ordinance was fast written for Lake Elmo in the 1990's. The purpose of the ordinance is to provide a developer the ability to cluster more homes than otherwise permitted on smaller lots and to set aside land as preserved open space in perpetuity. Originally, an Open Space Preservation development required an additional step to rezone the property as OP before a development was reviewed and approved. Since then, this approach has been revised so that an OP development could be permitted by a conditional use permit in specific zoning districts, thereby eliminating the additional step of rezoning the property. Although the zoning district code language was repealed, the zoning of the existing developments was never retroactively returned to Agricultural or Rural Residential,and,therefore,the Open Space district remains on the zoning maps. As a part of this ordinance, from the beginning, a buffer setback (originally called a buffer zone) was identified as an effort to physically buffer the existing adjoining neighbors from the more densely built clustered homes. The buffer setback section of the ordinance has been revised a few times throughout the years to its current-form, which was last approved in 2001. A buffer setback has always been required, but has varied in depth from 100 to 200 feet and has been revised from once just requiring "main structures"to be outside the setback to all structures and road surfaces not at a 90 degree angle. The OP ordinance permits the City Council to modify any of the minimum standards outlined in the ordinance by a 4/5 vote. Staff has found this clause has been used in altering the buffer setback requirement in some of the OP developments. --page 1 -- City Council Workshop Proposed Revisions to OP Buffer Setbacks November 10",2009 Agenda Item#2 Of note; by not taking action,variance requests will continue to be received and acted upon for some lots in most, if not all, OP developments. As mentioned, some existing platted vacant lots in the City are also essentially unbuildable when this setback applies,which appear to be due to errors, oversight,or, in some cases,an alternate interpretation made at the time of the development review. In an effort to address denied building permits dae solely to the buffer setback, on July 7, 2009,the City Council approved resolution 2009-033 reducing buffer setbacks in the Tana Ridge and Parkview Estates development. Because both developments are zoned OP and not approved as a Conditional Use Permit,a public hearing was not required. Since then, the City Attorney has advised staff to proceed with revising buffer setbacks by ordinance,thus the Tana Ridge and Parkview Estates developments are included in the proposed action. The City Council is being provided a table for each development, in which is identified the Planning Commission's recommendation and reasoning for the recommendation. Also attached are maps which .identify (generally) a 200, 100, and 50 foot setback. . The lines are for reference purposes and were utilized by the commission in their review of the setbacks to see the actual impacts on both existing homes and vacant, platted lots. The Planning Commission's recommended setback lines are identified with an arrow on the map. Recommended Buffer Setbacks in OP Develo ments(in feet) North South West East Exception Ede Ede Fdge Ede Parcel St. Croix's Sanctuary 200 50 50 100 Discover Crossing 200 100 50 100 Whistling Valley I 0 200 0 0 Whistling Valley 11 0 100 85 0 WhisqiR&Valley III 50 100 100 0 Farms of Lake Elmo 100 50 100 25 Prairie Hamlet 200 50 50 100 Fields of St.Croix I 50 0 200 100 Fields of St.Croix II 0 200 200 0 0 The Homestead 50 50 200 50 Tapestry at Charlotte's Grove 50 50 200 '50 100 Tamarack Farm Estates 100 100 100 100 Sunfish Ponds 100 100 100 200 Hamlet on Sunfish Lake 50 100 50 50 Cardinal Ride 100 200 50 50 Wildflower Shores 1:00 200 100 200 Heritage Farms 50 0 . 0 50 0 Staf). Already Approved by Council;Resolution 2009-033 Not Not 50 50 Tana Ridge addressed addressed 50; except Lot 9, Not Not 50 Block 5 aressed addressed Parkview Estates use 20 ft --page 2-- City Council Workshop Proposed Revisions to OP Buffer Setbacks November 10h,2009 Agenda Item#2 PLANNING COMMISSION REPORT: The Planning Commission reviewed each of the 17 OP developments individually with regards to the implications on the property owners. A majority of the commission (though not all) expressed the importance of maintaining a buffer setback whenever feasible, even if the buffer setback was entirely within an outlot of the development and preserved for open.space through.a conservation easement. At least one commissioner felt strongly that the presence of a buffer setback, when overlapping.with private property, was inappropriate, as property owners are still responsible for the land and continue to pay taxes on the entire property. NEXT STEPS: The Planning Commission will hold a public hearing on the revision to buffer setbacks in OP developments on Monday,November 23`d. Assuming the Commission takes formal action to move the item forward, this will come back to the City Council at the December l" City Council meeting for official action. ADDITIONAL INFORMATION: o The Hidden Meadows development,while an OP development, was not evaluated at this time, as the final plat for the residential lots has not been approved. The buffer setbacks can be addressed for that development at the time of final plat approval. . o Though not required,the city mailed notices to contact points for the Homeowner Associations of the various OP developments. in addition to publishing the public hearing notice in the legal newspaper and on the city's website. ATTACHMENTS (2): 1. Staff recommendation table 2. OP Development Maps ORDER OF BUSINESS: - Introduction..............................................................Bruce Messelt,City Administrator - Report/Presentation............................................ .. .....................Kelli Matzek;Planner - Questions &Direction from the Council...........................Mayor&Council Members --page 3 m 0 z c c U o 0 0 pro ° oaoa) o 0 N .a o n o a� a� rn aci — ro ro a a) a) cn c >, O �[ N ro O M -0 � a) N m ro r r. 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N Zw an4E r.. b N td o O >~ C. — O. 3 r? eti' C m U Y � v N to .D a °) � o - � N :3 a) m c 0 p U- 0 o a) Lu o c N X O r_ U Ix c O E iL c o 00 w > c m wol iLQ Fields II , Little Bluestem; Buffer Setback r x ! "PIT ' , s� a ti A II 1 X mw .M • 50 Foot Buffer Setback 100 Foot Buffer Setback 200 Foot Buffer Setback 7J � O a,. O Z m o C '� � "Q @ O .2 O N (p p O N r C C C U C O p -07 -0ca M (0 cu .� U C @ O C . -O CA O O O U 0 0 0 O C � a) U U �, 2 L tC U w p @@ O N E U t O O (D N O O N vi p N m co .CC " N UEDO E a) �o ;'L O O) O m (6 3 ' 0 . 'D N Ua) Om @ w C > W - LL 01 YO(-tl+ a U U) C cn Q N -0 D e _0 N =O co CD N@ r O � z aA 3 $` ° c°n ° n.Mw g $ AL U) °-LU e. ° pLL z U 3 3 d o @ .0 .G O p� @ w13 Z cv �r O C ro L O 0 LL � °' � a) ?c a o a o o V) N c `� 7 !a C (4 V N U ,N @ d 4! O d N w N O O m C IM ZS C L C! � •a � O N k o!L[ .N 0.. C 0 a C 0) O a) E tm_O C N G! 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With this notification, the City now has as limited amount of time (6 months) to update its Floodplain Management Ordinance to incorporate these new maps into the ordinance and to make other updates as mandated under the National Flood insurance Program. The Planning Commission has reviewed the draft maps in early 2008 and recently conducted a public hearing on the proposed Ordinance Revisions, which will incorporate the revised maps. As part of its review, the Planning Commission was asked to consider adoption of an ordinance that closely follows the statewide model regulations prepared by the Minnesota Department of Natural Resources. Please note that the City had previously enacted a Flood Ordinance that is generally more restrictive than the model used by other communities. With the updated maps, the City is now mandated to incorporate specific revisions into its ordinance in order to have the ordinance accepted by the Federal Emergency Management Agency (FEMA). Staff s original intent was to add the mandatory new language to the City's existing ordinance, leaving all other provisions alone. However, after further reviewing required changes and the existing ordinance, staff is recommending that the City start with the DNR's model ordinance and then reincorporate the more restrictive City standards, wherever allowable, into this draft document. No formal City Council action is requested at tonight's Workshop. Rather, scheduling of this item is intended to allow the Council to review and provide feedbackldirection regarding the work of the Planning Commission and City Staff prior to formal deliberation and action. Future action will be to adopt a `proposed" Floodplain Management Ordinance for submission for final review and approval to the appropriate state and federal agencies. i BACKGROUND: After a review of the proposed ordinance, based on the DNR model regulations, the Planning Commission recommended that staff develop a revised floodplain ordinance based on this model --page I -- i City Council Workshop Update to the Lake Elmo Floodplain Management Ordinance November 10t',2009 Agenda Item#3 rather than incorporating the mandated new changes into the existing City document. To assist the City ;Council with its review of the proposed ordinance, Staff has used a color-specific tracking system to highlight the differences between the City's current flood plain ordinance and the proposed model ordinance. In addition, this tracking scheme also includes specific notes from Staff and highlights both the mandatory language the must be adopted by the City and any gptional language that may be considered by the City. A detailed explanation of the coloring system used is as follows; Black--Language that is found in the current ordinance Blue—New Language from FEMA model ordinance Cri•een-.-Provisions that are essentially the same as the current ordinance Oiling -- I3.1`R notes regarding the optional tanguage f ram the Model regulations Magenta—Staff Comments concerning The ordinance Red`—Proposed amendments to model ordinance Bold—Mandatory language(FEMA) Italics—Optional language (FEMA) Although this system can contain a number of different colors at certain places in the draft ordinance, it does allow for faithful tracking of all changes that would be made to the current ordinance if adopted, as well as noting those provisions that are mandatory to include in the update. Also attached is the City's current Floodplain Management Ordinance, with any language not included -in the model ordinance highlighted? Staff has included notes below most of the highlighted sections with a brief statement regarding its applicability to the model. The Planning Commission has conducted a public hearing concerning the proposed ordinance revisions; and the attached ordinance includes all comments from the Commission. Once the City Council has reached a general consensus:on the language it would like to include in the i4pdated ordinance, the City will need to submit the document for review by the Minnesota Department of Natural Resources and representatives from FEMA. If any reviewing state and federal agency requests significant modifications, the City may need to conduct another public hearing on the ordinance prior to formal adoption. ORDINANCE ANALYSIS: There are a few areas where the City's current flood plain regulations differ from the model ordinance. A summary of these differences includes the following: • The current ordinance does not define all of the terms that are included in the model regulations. • The current ordinance does not differentiate between Floodway, Flood Fringe, and General Flood Plain Districts. The existing flood insurance maps do not contain any designated "floodway" zones while the new maps do contain this classification for much --page 2-- City Council Workshop Update to the Lake Elmo Floodplain Management Ordinance November:101h,2009 Agenda Item#3 of the Raleigh creels watershed. The City's rules now regulate all flood plain areas essentially as though they are in the floodway zone of the model ordinance. Adopting the model ordinance would allow a property owner to conduct an analysis of the flood zone on their property and, if they owned land outside of the floodway zone, they would have more flexibility for using this property for structures and other activities not currently allowed by the City. In practical application, however, there should be no significant difference between the two ordinances, since the City's existing Shoreland and other related regulations further restrict the use of property along shorelines. • The City does not presently allow recreational vehicles or manufactured homes in a flood zone; these uses area allowed subject to specific provisions of the model ordinance. • The City does not allow accessory buildings or uses to be conducted within flood zones; these uses area allowed subject to specific provisions of the model ordinance. • The non-conforming structure and use requirements have been modified from the current ordinance. • The list of permitted and conditional uses is more extensive in the model ordinance. Since there is much more land included in flood zones on the new flood insurance rate in for the City, the list of uses should represent a broader range of zoning districts affected by the new maps. • The current ordinance does not allow alternates to fill, in order to elevate a structure above the base flood elevation. The model ordinance allows certain alternatives to be considered as a Conditional Use Permit. • There are other differences between the model and existing ordinances; however, many of these changes would not significantly alter the use of property,when adopted. Given the increasing regulatory role of the state and federal government in this are of public policy, itlis staffs recommendation that the City proceed with review and adoption of the model regulations,with the more locally-restrictive changes suggested in the attached document. While adoption:of the model will add a new level of complexity to the administration of the ordinance, it does allow for a modicum of additional flexibility for property owners who own land in one of these zones. This flexibili , is typically allowed as part of a conditional use permit review, which will require additional analysis and documentation on the part of an applicant, and will still provide the City with the final authorityn whether to permit an activily or not. ADDITIONAL INFORMATION: • Since' the revised flood maps cover the entire City, it is not possible to provide the City Council with a map large enough to depict the City on a discernable scale. Staff will present the revised floodplain map at a scale that can be more easily read during'the workshop meeting on November 10"' --page 3 - City Council Workshop Update to the Lake Elmo Floodplain Management Ordinance November'100,2009 Agenda item#3 As noted in a previous report to the Planning Commission, the updated maps do alter the current flood area boundaries in the City, but do so in a manner that more accurately reflects the conditions around each mapped water body. As noted by staff in its February 25, 2008 report to the Planning Commission: Looking at the community as a whole, there will be approximately 360 more properties included in a flood zone than under the existing flood maps for Lake Elmo. On the other hand, the updated maps will, overall, reduce the number of homes in flood zones by approximately 18. The total number of properties affected in one way or another is around 375, with over 40 individual homes impacted by the changes as well. The Planning Commission recommended that the City consider establishing a separate escrow fee as part of the fees for a Conditional Use Permit to help the City recuperate the costs associated with reviewing a floodway/flood fringe delineation. The Planning Commission questioned how staff would be able to track the cumulative value of improvements to non-conforming structures over the life of these structures. It was noted that the City keeps building permit information on file for all properties in the community, and that any permits issued to a specific property would,therefore,document a project value. ORDER OF BUSINESS: - Introduction..................................................Bruce Messelt, City Administrator - Report by staff......................................................Kyle Klatt, Planning Director - : Questions and Discussion.................................... Mayor and Council Members ATTACHMENTS: 1, Proposed ordinance with changes documented 2. Existing floodplain management ordinance 3: Letter of notification of final flood elevation determination from FEMA 4 Flood Area Map (existing in blue, proposed in red) --page 4-- CITY OF LAKE ELMO Draft Floodplain Management Ordinance T,�BLE OF CONTENTS PAGE SECTION 1.0 STATUTORY AUTHORIZATION,FINDINGS OF FACT AND PURPOSE 1 1.1 Statutory Authorization 1 1.2 Findings of Fact 1 1.3 Statement of Purpose 1 SECTION 2.0 GENERAL PROVISIONS 1 2.1 Lands to Which Ordinance Applies 1 2.2 Establishment of Official Zoning Map 1 2.3 Regulatory Flood Protection Elevation 2 2.4 Interpretation 2 2.5 Abrogation and Greater Restrictions 2 2.6 Warning and Disclaimer of Liability 2 2.7 Severability 2 2.8 Definitions 2 2.9 Annexations 4 SECTION 3.0 ESTABLISHMENT OF ZONING DISTRICTS 5 3.1 Districts 5 3.2 Compliance 5 SECTION 4.0 FLOODWAY DISTRICT (FW) 5 4.1 Permitted Uses 5 4.2 Standards for Floodway Permitted Uses 6 4.3 Conditional Uses 6 4.4 Standards for Floodway Conditional Uses 6 SECTION 5.0 FLOOD FRINGE DISTRICT(FF) 8 5.1 Permitted Uses 8 5.2 Standards for Flood Fringe Permitted Uses 8 5.3 Conditional Uses 8 5.4 Standards for Flood Fringe Conditional Uses 8 5.5 Standards for All Flood Fringe Uses 1(} Council JVo kshop Drat -i - SECTION 6.0 GENERAL FLOOD PLAIN DISTRICT 11 6.1 Permissible Uses 11 6.2 Procedures for Floodway and Flood Fringe Determinations 11 SECTION 7.0 SUBDIVISIONS 12 7.1 Land Suitability Review Criteria 12 7.2 Requirements for Floodway/Flood Fringe Determinations 12 7.3 Removal of Special Flood Hazard Area Designation 12 SECTION 8.0 UTILITIES,RAILROADS,ROADS,AND BRIDGES 12 8.1 Public Utilities 12 8.2 Public Transportation Facilities 13 8.3 On-site Sewage Treatment and Water Supply Systems 13 SECTION 9.0 MANUFACTURED HOMES/TRAVEL TRAILERS AND TRAVEL VEHICLES 13 9.1 New Manufactured Home Parks 13 9.2 Replacement Manufactured Homes-Existing Parks 13 9.3 Recreational Vehicles 13 SECTION 10.0 ADMINISTRATION 14 10.1 Zoning Administrator 14 10.2 Permits,Certification Requirements and Record Keeping 14 10.3 Appeals and Variances/Duties of the Board of Adjustment 15 10.4 Conditional Uses-Standards and Evaluation Procedures 17 SECTION 11.0 NONCONFORMING USES 18 SECTION 12.0 PENALTIES FOR VIOLATION 19 SECTION 13.0 AMENDMENTS 20 Couned Workshop Drat PLAIN MANAGEMENT ORDINANCE 'A Flood Insurance Rate Map has been published for the community and the Regulatory Floodway boundary is shown on this map. A separate Flood Boundary and Floodway Map has not been published. Analysis of the model ordinance conducted by the Lake Elmo Planning Department Date: 10-23-09 Revisions based on Planning Commission review added on 11/5/09 Key: Black—Existing/no changes Blue—New Language from FEMA model ordinance Green—Mostly the same Orange—DNR notes regarding optional language Magenta— Staff comments Red—Proposed amendments to model ordinance Bold—Mandatory language Italics—Optional language SECTION 1.0 STATUTORY AUTHORIZATION, FINDINGS OF FACT AND PURPOSE 1.1 Statutory Authorization: The legislature of the State of Minnesota has, in Minnesota Statutes Chapters 103F and 462 delegated the responsibility to local government units to adopt regulations designed to minimize flood losses. Therefore,the City of Lake Elmo of Washington County,Minnesota does ordain as follows: 1.2 Findings of Fact: 1.21 The flood hazard areas of Lake Elmo,Minnesota, are subject to periodic inundation which results in potential loss of life, loss of property,health and safety hazards,disruption of commerce and governmental services, extraordinary public expenditures or flood protection and relief,and impairment of the tax base,all of which adversely affect the public health, safety, and general welfare. 1.22 Methods Used to Analyze Flood Hazards. This Ordinance is based upon a reasonable method of analyzing flood hazards which is consistent with the standards established by the Minnesota Department of Natural Resources. 1.23 National Flood Insurance Program Compliance. This Ordinance is adopted to comply with the rules and regulations of the National Flood Insurance Program codified as 44 Code of Federal Regulations Parts 59-78,as amended,so as to maintain the community's eligibility in the National Flood Insurance Program. Council[Vorkshop Draf - 1 - 1.3 Statement of Purpose: It is the purpose of this Ordinance to promote the public health, safety, and general welfare and to minimize those losses described in Section 1.21 by provisions contained herein. SECTION 2.0 GENERAL PROVISIONS 2.1 Lands to Which Ordinance Applies: This Ordnance shall apply to all lands within the jurisdiction of Lake Elmo shown on the Official Zoning Map and/or the attachments thereto as being located within the boundaries of the Floodway, Flood Fringe, or General Flood Plain Districts. 2.2 Establishment of Official Zoning Map: The Official Zoning Map together with all materials attached thereto is hereby adopted by reference and declared to be a part of this Ordinance. The attached material shall include the Flood Insurance Study for Washington County prepared by the Federal Emergency Management Agency dated February 3,2010,and the Flood Insurance Rate Map dated February 3, 2010 therein. The Official Zoning Map shall be on file in the Offices of the City Clerk and the Planning Director. 2.3 Regulatory Flood Protection Elevation: The regulatory flood protection elevation shall be an elevation no lower than one foot above the elevation of the regional flood plus any increases in flood elevation caused by encroachments on the flood plain that result from designation of a floodway. 2.4 Interpretation: 2.41 In their interpretation and application,the provisions of this Ordinance shall be held to be minimum requirements and shall be liberally construed in favor of the Governing Body and shall not be deemed a limitation or repeal of any other powers granted by state statutes. 2.42 The boundaries of the zoning districts shall be determined by scaling distances on the Official Zoning Map. Where interpretation is needed as to the exact location of the boundaries of the district as shown on the Official Zoning Map,as for example where there appears to be a conflict between a mapped boundary and actual field conditions and there is a formal appeal of the decision of the Zoning Administrator,the Board of Adjustment shall make the necessary interpretation. All decisions will be based on elevations on the regional (100-year) flood profile,the ground elevations that existed on the site at the time the Community adopted its initial floodplain ordinance or on the date of the first National Flood Insurance Program map showing the area within the 100-year floodplain if earlier,and other available technical data. Persons contesting the location of the district boundaries shall be given a reasonable opportunity to present their case to the Board of Adjustment and to submit technical evidence. 2.5 Abrogation and Greater Restrictions: It is not intended by this Ordinance to repeal,abrogate, or impair any existing easements, covenants, or deed restrictions. However,where this Ordinance imposes greater restrictions,the provisions of this Ordinance shall prevail. All other ordinances inconsistent with this Ordinance are hereby repealed to the extent of the inconsistency only. 2.6 Warning and Disclaimer of Liability: This Ordinance does not imply that areas outside the flood plain districts or land uses permitted within such districts will be free from flooding or flood damages. This Ordinance shall not create liability on the part of the City of Lake Elmo or any officer or employee thereof for any flood damages that result from reliance on this Ordinance or any administrative decision lawfully made thereunder. Council Workshop Draft -2 - 2.7 Severability: If any section, clause,provision,or portion of this Ordinance is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this Ordinance shall not be affected thereby. 2.8 Definitions: Unless specifically defined below, words or phrases used in this Ordinance shall be interpreted so as to give them the same meaning as they have in common usage and so as to give this Ordinance its most reasonable application. 2.811 Accessory Use or Structure- a use or structure on the same lot with,and of a nature customarily incidental and subordinate to, the principal use or structure. 2.812 Basement-means any area of a structure,including crawl spaces,having its floor or base subgrade (below ground level)on all four sides,regardless of the depth of excavation below ground level. 2.813 Conditional Use-means a specific type of structure or land use listed in the official control that may be allowed but only after an in-depth review procedure and with appropriate conditions or restrictions as provided in the official zoning controls or building codes and upon a finding that: (a) Certain conditions as detailed in the zoning ordinance exist. (b) The structure and/or land use conform to the comprehensive land use plan if one exists and are compatible with the existing neighborhood. 2.814 Equal Degree of Encroachment -a method of determining the location of floodway boundaries so that flood plain lands on both sides of a stream are capable of conveying a proportionate share of flood flows. 2.815 Flood-a temporary increase in the flow or stage of a stream or in the stage of a wetland or lake that results in the inundation of normally dry areas. 2.816 Flood Frequency-the frequency for which it is expected that a specific flood stage or discharge may be equaled or exceeded. 2.817 Flood Fringe-that portion of the flood plain outside of the floodway. Flood fringe is synonymous with the term"floodway fringe" used in the Flood Insurance Study for the City of Lake Elmo. 2.818 Flood Plain-the beds proper and the areas adjoining a wetland,lake or watercourse which have been or hereafter may be covered by the regional flood. 2.819 Flood Proofing-a combination of structural provisions,changes, or adjustments to properties and structures subject to flooding,primarily for the reduction or elimination of flood damages. 2.820 Floodway-the bed of a wetland or lake and the channel of a watercourse and those portions of the adjoining flood plain which are reasonably required to carry or store the regional flood discharge. 2.821 Lowest Floor-the lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, used solely for parking of vehicles, building access, or storage in an area other than a basement area,is not considered a building's lowest floor. 2.822 Manufactured Home- a structure,transportable in one or more sections,which is built on a permanent chassis and is designed for use with or without a permanent foundation when attached to the required utilities. The term "manufactured home"does not include the term "recreational vehicle." Council M"orkshop Drgjt - 3 - 2.823 Obstruction -any dam,wall,wharf, embankment, levee, dike,pile, abutment, projection, excavation, channel modification, culvert,building, wire, fence, stockpile, refuse, fill, structure, or matter in, along, across,or projecting into any channel,watercourse,or regulatory flood plain which may impede, retard,or change the direction of the flow of water,either in itself or by catching or collecting debris carried by such water. 2.824 Principal Use or Structure-means all uses or structures that are not accessory uses or structures. 2.825 Reach - a hydraulic engineering term to describe a longitudinal segment of a stream or river influenced by a natural or man-made obstruction. In an urban area,the segment of a stream or river between two consecutive bridge crossings would most typically constitute a reach. 2.826 Recreational Vehicle-a vehicle that is built on a single chassis, is 400 square feet or less when measured at the largest horizontal projection, is designed to be self-propelled or permanently towable by a light duty truck, and is designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational,camping,travel,or seasonal use. For the purposes of this Ordinance,the tern recreational vehicle shall be synonymous with the term travel trailer/travel vehicle. 2.827 Regional Flood-a flood which is representative of large floods known to have occurred generally in Minnesota and reasonably characteristic of what can be expected to occur on an average frequency in the magnitude of the 100-year recurrence interval. Regional flood is synonymous with the term "base flood"used in a flood insurance study. 2.828 Regulatory Flood Protection Elevation-The regulatory flood protection elevation shall be an elevation no lower than one foot above the elevation of the regional flood plus any increases in flood elevation caused by encroachments on the flood plain that result from designation of a floodway. 2.829 Structure -anything constructed or erected on the ground or attached to the ground or on-site utilities, including, but not limited to,buildings, factories, sheds, detached garages, cabins, manufactured homes, recreational vehicles not meeting the exemption criteria specified in Section 9.31 of this Ordinance and other similar items. 2.830 Substantial Damage-means damage of any origin sustained by a structure where the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent of the market value of the structure before the damage occurred. 2.831 Substantial Improvement-within any consecutive 365-day period,any reconstruction, rehabilitation(including normal maintenance and repair),repair after damage, addition,or other improvement of a structure,the cost of which equals or exceeds 50 percent of the market value of the structure before the"start of construction"of the improvement. This term includes structures that have incurred "substantial damage," regardless of the actual repair work performed. The term does not, however, include either: (a) Any project for improvement of a structure to correct existing violations of state or local health,sanitary,or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions. COLOICH Workshop Draft - 4 - (b) Any alteration of an "historic structure," provided that the alteration will not preclude the structure's continued designation as an "historic structure." For the purpose of this Ordinance,"historic structure"shall be as defined in 44 Code of Federal Regulations, Part 59.1. 2.832 Variance-means a modification of a specific permitted development standard required in an official control including this Ordinance to allow an alternative development standard not stated as acceptable in the official control,but only as applied to a particular property for the purpose of alleviating a hardship,practical difficulty or unique circumstance as defined and elaborated upon in a community's respective planning and zoning enabling legislation. 2.9 Annexations: The Flood Insurance Rate Map panels adopted by reference into Section 2.2 above may include floodplain areas that lie outside of the corporate boundaries of the City at the time of adoption of this ordinance. If any of these floodplain land areas are annexed into the City after the date of adoption of this ordinance,the newly annexed floodplain lands shall be subject to the provisions of this ordinance immediately upon the date of annexation into the City. Staff Note: The current Flood Ordinance only designates a"Flood Plain District"and does not differentiate between a Floodway and Flood Fringe district. The revised FIRM maps for the City now includes a Floodway designation for Raleigh Creek. The current ordinance also does not describe the specific analysis that needs to be done to determine the floodway boundary for flood hazard areas that are not designated as such on the official map. SECTION 3.0 ESTABLISHMENT OF ZONING DISTRICTS 3.1 Districts: 3.11 Floodway District. The Floodway District shall include those areas designated as floodway on the Flood Insurance Rate Map adopted in Section 2.2. 3.12 Flood Fringe District. The Flood Fringe District shall include those areas designated as floodway fringe. The Flood Fringe District shall include those areas shown on the Flood Insurance Rate Map as adopted in Section 2.2 as being within Zones AE,, "�An but being located outside of the floodway. 3.13 General Flood Plain District. The General Flood Plain District shall include those areas designated as Zone A or Zones AE,, "CAM without a floodway on the Flood Insurance Rate Map adopted in Section 2.2. 3.2 Compliance: No new structure or land shall hereafter be used and no structure shall be constructed, located, extended, converted, or structurally altered without full compliance with the terns of this Ordinance and other applicable regulations which apply to uses within the jurisdiction of this Ordinance. Within the Floodway, Flood Fringe and General Flood Plain Districts, all uses not listed as permitted uses or conditional uses in Sections 4.0, 5.0 and 6.0 that follow,respectively, shall be prohibited. In addition, a caution is provided here that: 3.21 New manufactured homes, replacement manufactured homes and certain travel trailers and travel vehicles are subject to the general provisions of this Ordinance and specifically Section 9.0. Recreation vehicles and manufactured homes are currently not allowed in Flood Plain Districts Council Workshop Draf! - 5 - 3.22 Modifications, additions, structural alterations, normal maintenance and repair.,or repair after damage to existing nonconforming structures and nonconforming uses of structures or land are regulated by the general provisions of this Ordinance and specifically Section 11.0. 3.23 As-built elevations for elevated or flood proofed structures must be certified by ground surveys and flood proofing techniques must be designed and certified by a registered professional engineer or architect as specified in the general provisions of this Ordinance and specifically as stated in Section 10.0 of this Ordinance. SECTION 4.0 FLOODWAY DISTRICT (FW) The current ordinance defines a"Flood Plain District"and does not designate a separate Floodway or Flood Fringe district. The Flood Plain District standards are similar to the model floodway district requirements. 4.1 Permitted Uses: 4.11 Agricultural uses such as Qeneral farming,pasture,grazing,outdoor plant nurseries, horticulture, truck farming, forestry, sod farming, and wild crop harvesting. 4.12 Industrial-commercial loading areas,parking areas,and airport landing strips. 4.13 Private and public recreational uses such as golf courses,tennis courts, driving ranges,archery ranges,picnic grounds,boat launching ramps, swimming areas,parks, wildlife and nature preserves,game farms, fish hatcheries, shooting preserves,target ranges,trap and skeet ranges, hunting and fishing areas, and single or multiple purpose recreational trails. 4.14 Residential lawns, gardens,parking areas, and play areas. i 4.2 Standards for Floodway Permitted Uses: 4.21 The use shall have a low flood damage potential. 4.22 The use shall be permissible in the underlying zoning district if one exists. 4.23 The use shall not obstruct flood flows or increase flood elevations and shall not involve structures, fill,obstructions, excavations or storage of materials or equipment. 4.3 Conditional Uses: 4.31 Structures accessory to the uses listed in 4.1 above and the uses listed in 4.32-4.38 below. 4.32 Extraction and storage of sand, gravel,and other materials. 4.33 Marinas,boat rentals,docks,piers, wharves, and water control structures associated with said uses. 4.34 Railroads, streets,bridges,utility transmission lines, and pipelines. 4.35 Storage yards for equipment,machinery, or materials. Council Workshop Draf! - 6 - 4.36 Placement of fill or construction of fences. 4.37 Recreational vehicles either on individual lots of record or in existing or new subdivisions or commercial or condominium type campgrounds,subject to the exemptions and provisions of Section 9.3 of this Ordinance. 4.38 Structural works for flood control such as levees, dikes and floodwalls constructed to any height where the intent is to protect individual structures and levees or dikes where the intent is to protect j agricultural crops for a frequency flood event equal to or less than the 10-year frequency flood event. 4.4 Standards for Floodway Conditional Uses: 4.41 All Uses. No structure(temporary or permanent),fill(including fill for roads and levees),deposit, obstruction, storage of materials or equipment,or other uses may be allowed as a conditional use that will cause any increase in the stage of the 100-year or regional flood or cause an increase in flood damages in the reach or reaches affected. 4.42 All floodway conditional uses shall be subject to the procedures and standards contained in Section 10.4 of this Ordinance. 4.43 The conditional use shall be permissible in the underlying zoning district if one exists. 4.44 Fill: (a) Fill, dredge spoil,and all other similar materials deposited or stored in the flood plain shall be protected from erosion by vegetative cover,mulching,riprap or other acceptable method. (b) Dredge spoil sites and sand and gravel operations shall not be allowed in the floodway unless a long-term site development plan is submitted which includes an erosion/sedimentation prevention element to the plan. (c) As an alternative,and consistent with Subsection(b)immediately above,dredge spoil disposal and sand and gravel operations may allow temporary, on-site storage of fill or other materials which would have caused an increase to the stage of the 100-year or regional flood but only after the Governing Body has received an appropriate plan which assures the removal of the materials from the floodway based upon the flood warning time available. The conditional use permit must be title registered with the property in the Office of the County Recorder. I 4.45 Accessory Structures: (a) Accessory structures shall not be designed for human habitation. (b) Accessory structures,if permitted,shall be constructed and placed on the building site so as to offer the minimum obstruction to the flow of flood waters: (1) Whenever possible, structures shall be constructed with the longitudinal axis parallel to the direction of flood flow; and (2) So far as practicable, structures shall be placed approximately on the same flood flow lines as those of adjoining structures. (c) Accessory structures shall be elevated on fill or structurally dry flood proofed in accordance with the FP-1 or FP-2 flood proofing classifications in the State Building Code. As an alternative, an accessory structure may be flood proofed to the FP-3 or FP-4 flood proofing classification in the State Building Code provided the accessory structure constitutes a minimal investment, does not exceed 500 square feet in size at its largest projection, and for a Council Workshop Draft - 7 - detached garage, the detached garage must be used solely for parking of vehicles and limited storage. All flood proofed accessory structures must meet the following additional standards: (1) The structure must be adequately anchored to prevent flotation, collapse or lateral movement of the structure and shall be designed to equalize hydrostatic flood forces on exterior walls; (2) Any mechanical and utility equipment in a structure must be elevated to or above the regulatory flood protection elevation or properly flood proofed; and (3) To allow for the equalization of hydrostatic pressure,there must be a minimum of two "automatic" openings in the outside walls of the structure having a total net area for each opening of not less than one square inch for every square foot of enclosed area subject to flooding. There must be openings on at least two sides of the structure and the bottom of all openings must be no higher than one foot above the lowest adjacent grade to the structure. Using human intervention to open a garage door prior to flooding will not satisfy this requirement for automatic openings. Accessory structures are not allowed in the current Flood Plain District. 4.46 Storage of Materials and Equipment: (a) The storage or processing of materials that are, in time of flooding, flammable, explosive, or potentially injurious to human, animal, or plant life is prohibited. (b) Storage of other materials or equipment may be allowed if readily removable from the area within the time available after a flood warning and in accordance with a plan approved by the Governing Body. 4.47 Structural works for flood control that will change the course, current or cross section of protected wetlands or public waters shall be subject to the provisions of Minnesota Statute, Chapter 103G. Community-wide structural works for flood control intended to remove areas from the regulatory flood plain shall not be allowed in the floodway. 4.48 A levee, dike or floodwall constructed in the floodway shall not cause an increase to the 100-year or regional flood and the technical analysis must assume equal conveyance or storage loss on both sides of a stream. SECTION 5.0 FLOOD FRINGE DISTRICT (FF) 5.1 Permitted Uses: Permitted uses shall be those uses of land or structures listed as permitted uses in the underlying zoning use district(s). If no pre-existing,underlying zoning use districts exist, then any residential or non residential structure or use of a structure or land shall be a permitted use in the Flood Fringe District provided such use does not constitute a public nuisance. All permitted uses shall comply with the standards for Flood Fringe District "Permitted Uses" listed in Section 5.2 and the "Standards for all Flood Fringe Uses" listed in Section 5.5. 5.2 Standards for Flood Fringe Permitted Uses: 5.21 All structures, including accessory structures, must be elevated on fill so that the lowest floor including basement floor is at or above the regulatory flood protection elevation. The finished fill elevation for structures shall be no lower than one(1) foot below the regulatory flood protection elevation and the fill shall extend at such elevation at least fifteen(15)feet beyond the outside limits of the structure erected thereon. Council Workshop Draft - 8 - The current ordinance does not allow new structures in the designated Flood Plain district;however,the model ordinance will allow new structures provided a determination can be made that the structure will be built within the Flood Fringe District and not the General Flood Plain district. This language is similar,but not the same,to a provision in the existing ordinance that allows for additions and alterations in the flood fringe portion of the flood plain district. The current ordinance also regulates the additions/alterations as a conditional use,while the model allows placement of structures on fill as a permitted activity. 5.22 As an alternative to elevation on fill,accessory structures that constitute a minimal investment and that do not exceed 500 square feet at its largest projection may be internally flood proofed in accordance with Section 4.45 (c). 5.23 The cumulative placement offill where at any one time in excess of one-thousand(1,000)cubic yards offill is located on the parcel shall be allowable only as a conditional use, unless said full is specifically intended to elevate a structure in accordance with Section 5.21 of this ordinance. (Note: Tliis is an optional provision. If a community wishes to delete this provision,please leave the numbering the same and insert the replacement wording "This section reserved for future use. ') 5.24 The storage of any materials or equipment shall be elevated on fill to the regulatory flood protection elevation. 5.25 The provisions of Section 5.5 of this Ordinance shall apply. 5.3 Conditional Uses: Any structure that is not elevated on fill or flood proofed in accordance with Section 5.21 -5.22 and or any use of land that does not comply with the standards in Section 5.23 -5.24 shall only be allowable as a conditional use. An application for a conditional use shall be subject to the standards and criteria and evaluation procedures specified in Sections 5.4-5.5 and 10.4 of this Ordinance. The current ordinance does not allow for alternatives to the placement of a structure on fill in designated flood districts. In the model ordinance,this provision only applies to structures in the flood fringe district, which would therefore require the flood fringe/floodway analysis to determine the boundaries between these districts. 5.4 Standards for Flood Fringe Conditional Uses: 5.41 Alternative elevation methods other than the use of fill may be utilized to elevate a structure's lowest floor above the regulatory flood protection elevation. These alternative methods may include the use of stilts,pilings,parallel walls,etc., or above-grade, enclosed areas such as crawl spaces or tuck under garages. The base or floor of an enclosed area shall be considered above- grade and not a structure's basement or lowest floor if: 1)the enclosed area is above-grade on at least one side of the structure;2)it is designed to internally flood and is constructed with flood resistant materials; and 3)it is used solely for parking of vehicles,building access or storage. The above-noted alternative elevation methods are subject to the following additional standards: (a) Design and Certification-The structure's design and as-built condition must be certified by a registered professional engineer or architect as being in compliance with the general design standards of the State Building Code and, specifically,that all electrical,heating,ventilation, plumbing and air conditioning equipment and other service facilities must be at or above the regulatory flood protection elevation or be designed to prevent flood water from entering or accumulating within these components during times of flooding. Council Workshop Draft - 9 - i I i (b) Specific Standards for Above-grade, Enclosed Areas -Above-grade, fully enclosed areas such as crawl spaces or tuck under garages must be designed to internally flood and the design plans must stipulate: (1) A minimum area of"automatic"openings in the walls where internal flooding is to be used as a flood proofing technique. There shall be a minimum of two openings on at least two sides of the structure and the bottom of all openings shall be no higher than one-foot above grade. The automatic openings shall have a minimum net area of not less than one square inch for every square foot of enclosed area subject to flooding unless a registered professional engineer or architect certifies that a smaller net area would suffice. The automatic openings may be equipped with screens, louvers,valves, or other coverings or devices provided that they permit the automatic entry and exit of flood waters without any form of human intervention; and (2) That the enclosed area will be designed of flood resistant materials in accordance with the FP-3 or FP-4 classifications in the State Building Code and shall be used solely for building access,parking of vehicles or storage. 5.42 Basements, as defined by Section 2.812 of this Ordinance, shall be subject to the following: (a) Residential basement construction shall not be allowed below the regulatory flood protection elevation. (b) Non-residential basements may be allowed below the regulatory flood protection elevation provided the basement is structurally dry flood proofed in accordance with Section 5.43 of this Ordinance. 5.43 All areas of non-residential structures including basements to be placed below the regulatory flood protection elevation shall be flood proofed in accordance with the structurally dry flood proofing classifications in the State Building Code. Structurally dry flood proofing must meet the FP-1 or FP-2 flood proofing classification in the State Building Code and this shall require making the structure watertight with the walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy. Structures flood proofed to the FP-3 or FP-4 classification shall not be permitted. 5.44 uegt ate ..,r' �-tinte e ' ' .This section reserved for future use. d n (Note: This is an optional provision. Ifa community wishes to delete this provision,please leave the numbering the same and insert the replacement)wording "This section reserved_for fixture use. ") 5.45 Storage of Materials and Equipment: (a) The storage or processing of materials that are, in time of flooding, flammable,explosive,or potentially injurious to human, animal, or plant life is prohibited. Council Workshop Draft - 1 Q - (b) Storage of other materials or equipment may be allowed if readily removable from the area within the time available after a flood warning and in accordance with a plan approved by the City prior to the placement of any materials or equipment within the flood fringe district. 5.46 The provisions of Section 5.5 of this Ordinance shall also apply. 5.5 Standards for All Flood Fringe Uses: 5.51 All new principal structures must have vehicular access at or above an elevation not more than one(1)foot 4ve-6;fee below the regulatory flood protection elevation. If a variance to this requirement is granted, the Board of Adjustment must specify limitations on the period of use or occupancy of the structure for times of flooding and only after determining that adequate flood warning time and local flood emergency response procedures exist. (Note: Tlzis is aii optoiial pl'ovlslon. If a community wishes to delete this provision,please leave the numbering the same and insert the replacement wording "This section reserved for future use. ') This base language is found in the City's current ordinance under the Flood Plain District. 5.52 Commercial Uses-accessory land uses, such as yards,railroad tracks,and parking lots may be at elevations lower than the regulatory flood protection elevation. However, a permit for such facilities to be used by the employees or the general public shall not be granted in the absence of a flood warning system that provides adequate time for evacuation if the area would be inundated to a depth and velocity such that when multiplying the depth(in feet)times velocity(in feet per second)the product number exceeds four(4)upon occurrence of the regional flood. 5.53 Manufacturing and Industrial Uses-measures shall be taken to minimise interference with normal plant operations especially along streams having protracted flood durations. Certain accessory land uses such as yards and parking lots may be at lower elevations subject to requirements set out in Section 5.52 above. In considering permit applications, due consideration shall be given to needs of an industry whose business requires that it be located in flood plain areas. 5.54 Fill shall be properly compacted and the slopes shall be properly protected by the use of riprap, vegetative cover or other acceptable method. The Federal Emergency Management Agency (FEMA)has established criteria for removing the special flood hazard area designation for certain structures properly elevated on fill above the 100-year flood elevation-FEMA's requirements incorporate specific fill compaction and side slope protection standards for multi-structure or multi-lot developments. These standards should be investigated prior to the initiation of site preparation if a change of special flood hazard area designation will be requested. 5.55 Flood plain developments shall not adversely affect the hydraulic capacity of the channel and adjoining flood plain of any tributary watercourse or drainage system where a floodway or other encroachment limit has not been specified on the Official Zoning Map. 5.56 Standards for recreational vehicles are contained in Section 9.3. 5.57 All manufactured homes must be securely anchored to an adequately anchored foundation system that resists flotation,collapse and lateral movement. Methods of anchoring may include,but are not to be limited to,use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state or local anchoring requirements for resisting wind forces. Council Workshop Draft - 11 - Recreation vehicles and manufactured homes are not allowed in Flood Plain Districts under the current ordinance. SECTION 6.0 GENERAL FLOOD PLAIN DISTRICT 6.1 Permissible Uses: 6.11 The uses listed in Section 4.1 of this Ordinance shall be permitted uses. 6.12 All other uses shall be subject to the floodway/flood fringe evaluation criteria pursuant to Section 6.2 below. Section 4.0 shall apply if the proposed use is in the Floodway District and Section 5.0 shall apply if the proposed use is in the Flood Fringe District. 6.2 Procedures for Floodway and Flood Fringe Determinations Within the General Flood Plain District. 6.21 Upon receipt of an application for a permit or other approval within the General Flood Plain District,the applicant shall be required to furnish such of the following information as is deemed necessary by the Zoning Administrator for the determination of the regulatory flood protection elevation and whether the proposed use is within the Floodway or Flood Fringe District. (a) A typical valley cross-sections)showing the channel of the stream, elevation of land areas adjoining each side of the channel,cross-sectional areas to be occupied by the proposed development, and high water information. (b) Plan(surface view) showing elevations or contours of the ground,pertinent structure,fill,or storage elevations,the size, location,and spatial arrangement of all proposed and existing structures on the site, and the location and elevations of streets. (c) Photographs showing existing land uses, vegetation upstream and downstream, and soil types. (d) Documentation of soil types and soil limitations on the subject site (d) Profile showing the slope of the bottom of the channel or flow line of the stream for at least 500 feet in either direction from the proposed development. I 6.22 The applicant shall be responsible to submit one copy of the above information to a designated engineer or other expert person or agency for technical assistance in determining whether the proposed use is in the Floodway or Flood Fringe District and to determine the regulatory flood protection elevation. Procedures consistent with Minnesota Regulations 1983,Parts 6120.5000- 6120.6200 and 44 Code of Federal Regulations Part 65 shall be followed in this expert evaluation. The designated engineer or expert is strongly encouraged to discuss the proposed technical evaluation methodology with the respective Department of Natural Resources'Area Hydrologist and watershed district prior to commencing the analysis. The designated engineer or expert shall: (a) Estimate the peak discharge of the regional flood. (b) Calculate the water surface profile of the regional flood based upon a hydraulic analysis of the stream channel and overbank areas. (c) Compute the floodway necessary to convey or store the regional flood without increasing flood stages more than 0.5 foot. A lesser stage increase than .5'shall be required if, as a result of the additional stage increase, increased flood damages would result. An equal degree of encroachment on both sides of the stream within the reach shall be assumed in computing floodway boundaries. For the mapped lake and wetland basins within the City of Lake Elmo as shown on the Flood Insurance Rate Map Panels adopted in Section 2.2 of this Ordinance,the floodway shall be that area of the floodplain below the Ordinary High Water Level, as defined in Minnesota Statute, Section 103G.0005, subd. 14,provided that: 1) Couecil Workshop Draft - 12 - I compensating flood water storage is provided below the 100-year flood elevation; or 2) a determination is made that any resultant increase in stage to the 100-year flood level due to loss of flood water storage below the 100-year flood level meets the criteria for acceptable stage increase spelled out in this paragraph. 6.23 The Zoning Administrator shall present the technical evaluation and findings of the designated engineer or expert to the City Council. The City Council must formally accept the technical evaluation and the recommended Floodway and/or Flood Fringe District boundary or deny the permit application. The City Council,prior to official action,may submit the application and all supporting data and analyses to the Federal Emergency Management Agency,the Department of Natural Resources or the Planning Commission for review and comment. Once the Floodway and Flood Fringe District Boundaries have been determined, the City Council shall refer the matter back to the Zoning Administrator who shall process the permit application consistent with the applicable provisions of Section 4.0 and 5.0 of this Ordinance. SECTION 7.0 SUBDIVISIONS 7.1 Review Criteria: No land shall be subdivided which is unsuitable for the reason of flooding, inadequate drainage,water supply or sewage treatment facilities. All lots within the flood plain districts shall be able to contain a building site outside of the Floodway District at or above the regulatory flood protection elevation. All subdivisions shall have water and sewage treatment facilities that comply with the provisions of this Ordinance and have road access both to the subdivision and to the individual building sites no lower than one 1 foot two-fieet-below the regulatory flood protection elevation. For all subdivisions in the flood plain,the Floodway and Flood Fringe District boundaries,the regulatory flood protection elevation and the required elevation of all access roads shall be clearly labeled on all required subdivision drawings and platting documents. 7.2 Floodway/Flood Fringe Determinations in the General Flood Plain District: In the General Flood Plain District, applicants shall provide the information required in Section 6.2 of this Ordinance to determine the 100-year flood elevation,the Floodway and Flood Fringe District boundaries and the regulatory flood protection elevation for the subdivision site. 7.3 Removal of Special Flood Hazard Area Designation: The Federal Emergency Management Agency g Y (FEMA)has established criteria for removing the special flood hazard area designation for certain structures properly elevated on fill above the 100-year flood elevation. FEMA's requirements incorporate specific fill compaction and side slope protection standards for multi-structure or multi-lot developments. These standards should be investigated prior to the initiation of site preparation if a change of special flood hazard area designation will be requested. SECTION 8.0 PUBLIC UTILITIES,RAILROADS,ROADS,AND BRIDGES 8.1 Public Utilities. All public utilities and facilities such as gas,electrical, sewer, and water supply systems to be located in the flood plain shall be flood proofed in accordance with the State Building Code or elevated to above the regulatory flood protection elevation. 8.2 Public Transportation Facilities. Railroad tracks, roads, and bridges to be located within the flood plain shall comply with Sections 4.0 and 5.0 of this Ordinance. Elevation to the regulatory flood protection elevation shall be provided where failure or interruption of these transportation facilities would result in Council Workshop Draft - 13 - danger to the public health or safety or where such facilities are essential to the orderly functioning of the area. Miff o;aNih*r-TLimited access roads or railroads may be constructed at a lower elevation where failure or interruption of transportation services would not endanger the public health or safety. 8.3 On-site Sewage Treatment and Water Supply Systems: Where public utilities are not provided: 1) On- site water supply systems must be designed to minimize or eliminate infiltration of flood waters into the systems; and 2)New or replacement on-site sewage treatment systems must be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters and they shall not be subject to impairment or contamination during times of flooding. Any sewage treatment system designed in accordance with the State's current statewide standards for on-site sewage treatment systems shall be determined to be in compliance with this Section. SECTION 9.0 MANUFACTURED HOMES AND MANUFACTURED HOME PARKS AND PLACEMENT OF RECREATIONAL VEHICLES. 9.1 New manufactured home parks and expansions to existing manufactured home parks shall be subject to the provisions placed on subdivisions by Section 7.0 of this Ordinance. 9.2 The placement of new or replacement manufactured homes in existing manufactured home parks or on individual lots of record that are located in flood plain districts will be treated as a new structure and may be placed only if elevated in compliance with Section 5.0 of this Ordinance. If vehicular road access for pre- existing manufactured home parks is not provided in accordance with Section 5.51, then replacement manufactured homes will not be allowed until the property owner(s)develops a flood warning emergency plan acceptable to the Governing Body. 9.21 All manufactured homes must be securely anchored to an adequately anchored foundation system that resists flotation,collapse and lateral movement. Methods of anchoring may include,but are not to be limited to,use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable state or local anchoring requirements for resisting wind forces. 9.3 Recreational vehicles that do not meet the exemption criteria specified p p d in Section 9.31 below shall be subject to the provisions of this Ordinance and as specifically spelled out in Sections 9.33-9.34 below. 9.31 Exemption-Recreational vehicles are exempt from the provisions of this Ordinance if they are placed in any of the areas listed in Section 9.32 below and further they meet the following criteria: (a) Have current licenses required for highway use. (b) Are highway ready meaning on wheels or the internal jacking system, are attached to the site only by quick disconnect type utilities commonly used in campgrounds and recreational vehicle parks and the recreational vehicle has no permanent structural type additions attached to it. (c) The recreational vehicle and associated use must be permissible in any pre-existing, underlying zoning use district. 9.32 Areas Exempted For Placement of Recreational Vehicles: (a) Individual lots or parcels of record. (b) Existing commercial recreational vehicle parks or campgrounds. (c) Existing condominium type associations. Council Workshop Drafi - 14 - 9.33 Recreational vehicles exempted in Section 9.31 lose this exemption when development occurs on the parcel exceeding$500 for a structural addition to the recreational vehicle or exceeding$500 for an accessory structure such as a garage or storage building. The recreational vehicle and all additions and accessory structures will then be treated as a new structure and shall be subject to the elevation/flood proofing requirements and the use of land restrictions specified in Sections 4.0 and 5.0 of this Ordinance. There shall be no development or improvement on the parcel or attachment to the recreational vehicle that hinders the removal of the recreational vehicle to a flood free location should flooding occur. 9.34 New commercial recreational vehicle parks or campgrounds and new residential type subdivisions and condominium associations and the expansion of any existing similar use exceeding five(5)units or dwelling sites shall be subject to the following: (a) Any new or replacement recreational vehicle will be allowed in the Floodway or Flood Fringe Districts provided said recreational vehicle and its contents are placed on fill above the regulatory flood protection elevation and proper elevated road access to the site exists in accordance with Section 5.51 of this Ordinance. No fill placed in the floodway to meet the requirements of this Section shall increase flood stages of the 100-year or regional flood. (b) All new or replacement recreational vehicles not meeting the criteria of(a)above may,as an alternative,be allowed as a conditional use if in accordance with the following provisions and the provisions of 10.4 of the Ordinance. The applicant must submit an emergency plan for the safe evacuation of all vehicles and people during the 100 year flood. Said plan shall be prepared by a registered engineer or other qualified individual, shall demonstrate that adequate time and personnel exist to carry out the evacuation, and shall demonstrate the provisions of Section 9.31 (a)and(b)of this Ordinance will be met.All attendant sewage and water facilities for new or replacement recreational vehicles must be protected or constructed so as to not be impaired or contaminated during times of flooding in accordance with Section 8.3 of this Ordinance. i i The current ordinance does not allow the placement of recreation vehicles or manufactured homes in the flood plain district. SECTION 10.0 ADMINISTRATION I 10.1 Zoning Administrator: A Zoning Administrator or other official designated by the Governing Body shall administer and enforce this Ordinance. If the Zoning Administrator finds a violation of the provisions of this Ordinance the Zoning Administrator shall notify the person responsible for such violation in accordance with the procedures stated in Section 12.0 of the Ordinance. 10.2 Permit Requirements: 10.21 Permit Required. A Permit issued by the Zoning Administrator in conformity with the provisions of this Ordinance shall be secured prior to the erection,addition, modification, rehabilitation (including normal maintenance and repair),or alteration of any building, structure, or portion thereof; prior to the use or change of use of a building, structure,or land; prior to the construction of a dam,fence,or on-site septic system; prior to the change or extension of a nonconforming use; prior to the repair of a structure that has been damaged by flood,fire, tornado,or any other source; and prior to the placement of fill,excavation of materials,or the storage of materials or equipment within the flood plain. 10.22 Application for Permit. Application for a permit shall be made in dopheate to the Zoning Administrator on forms furnished by the Zoning Administrator and shall include the following Council Workshop Draft - 15 - i where applicable: plans in duplicate drawn to scale, showing the nature, location,dimensions,and elevations of the lot; existing or proposed structures, fill,or storage of materials; and the location of the foregoing in relation to the stream channel. 10.23 State and Federal Permits. Prior to granting a permit or processing an application for a conditional use permit or variance,the Zoning Administrator shall determine that the applicant has obtained all necessary state and federal permits. 10.24 Certificate of Zoning Compliance for a New,Altered,or Nonconforming Use. It shall be unlawful to use,occupy,or permit the use or occupancy of any building or premises or part thereof hereafter created, erected,changed, converted, altered,or enlarged in its use or structure until a certificate of zoning compliance shall have been issued by the Zoning Administrator stating that the use of the building or land conforms to the requirements of this Ordinance. The current ordinance ties this provision to the issuance of a certificate of occupancy. Staff is recommending that the City keep the model ordinance language because a certificate of occupancy would be issued after construction, not prior to the activities mentioned in the preceding paragraph. Other recent amendments to the City Code have provided for an administrative review of certain activities and uses. 10.25 Construction and Use to be as Provided on Applications,Plans,Permits,Variances and Certificates of Zoning Compliance. Permits,conditional use permits,or certificates of zoning compliance issued on the basis of approved plans and applications authorize only the use, arrangement, and construction set forth in such approved plans and applications,and no other use, arrangement, or construction. Any use, arrangement,or construction at variance with that authorized shall be deemed a violation of this Ordinance,and punishable as provided by Section 12.0 of this Ordinance. 10.26 Certification. The applicant shall be required to submit certification by a registered professional engineer,registered architect,or registered land surveyor that the finished fill and building elevations were accomplished in compliance with the provisions of this Ordinance. Flood proofing measures shall be certified by a registered professional engineer or registered architect. 10.27 Record of First Floor Elevation. The Zoning Administrator shall maintain a record of the elevation of the lowest floor(including basement)of all new structures and alterations or additions to existing structures in the flood plain. The Zoning Administrator shall also maintain a record of the elevation to which structures or alterations and additions to structures are flood proofed. 10.28 Notifications for Watercourse Alterations. The Zoning Administrator shall notify,in riverine situations, adjacent communities and the Commissioner of the Department of Natural Resources prior to the community authorizing any alteration or relocation of a watercourse. If the applicant has applied for a permit to work in the beds of public waters pursuant to Minnesota Statute,Chapter 103G,this shall suffice as adequate notice to the Commissioner of Natural Resources. A copy of said notification shall also be submitted to the Chicago Regional Office of the Federal Emergency Management Agency(FEMA). 10.29 Notification to FEMA When Physical Changes Increase or Decrease the 100-year Flood Elevation. As soon as is practicable,but not later than six (6) months after the date such supporting information becomes available, the Zoning Administrator shall notify the Chicago Regional Office of FEMA of the changes by submitting a copy of said technical or scientific data. Council Worlshop Urgff - 16 - 10.3 Board of Adjustment: 10.31 Rules. The Board of Adjustment shall adopt rules for the conduct of business and may exercise all of the powers conferred on such Boards by State law. 10.32 Administrative Review. The Board of Adjustment shall hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement or administration of this Ordinance in accordance with Section xxx.xxxx of the City Code. 10.33 Variances. The Board of Adjustment may authorize upon appeal in specific cases such relief or variance from the terms of this Ordinance as will not be contrary to the public interest and only€er under-eensider-ation, as pr-avided fer-in the r-espeetive enabling legislation fer-planning and zefAfig f r eities of eounties as ap r-epr~a'ewhen the applicable criteria of Section xxx.xxxx of the Citv Code is met. In the granting of such variance,the Board of Adjustment shall clearly identify in writing the specific conditions that existed consistent with the criteria specified in this Ordinance, any other zoning regulations in the Comuauui-W and in the respective enabling legislation that justified the granting of the variance. No variance shall have the effect of allowing in any district uses prohibited in that district,permit a lower degree of flood protection than the regulatory flood protection elevation for the particular area, or permit standards lower than those required by state law. The following additional variance criteria of the Federal Emergency Management Agency must be satisfied: (a) Variances shall not be issued by a community within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result. (b) Variances shall only be issued by a community upon(i) a showing of good and sufficient cause,(ii) a determination that failure to grant the variance would result in exceptional hardship to the applicant, and(iii) a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety,extraordinary public expense, create nuisances, cause fraud on or victimization of the public,or conflict with existing local laws or ordinances. (c) Variances shall only be issued upon a determination that the variance is the minimum necessary,considering the flood hazard,to afford relief. 10.34 Hearings. Upon filing with the Board of Adjustment of an appeal from a decision of the Zoning Administrator, or an application for a variance, the Board of Adjustment shall fix a reasonable time for a hearing and give due notice to the parties in interest as specified by lawSecion xxx.xxxx of the City Code. The Bear4 of AdjustineatZoning Administrator shall submit by mail to the Commissioner of Natural Resources a copy of the application for proposed variances sufficiently in advance so that the Commissioner will receive at least ten days notice of the hearing. 10.35 Decisions. The Board of Adjustment shall arrive at a decision on such appeal or variance within daysin accordance with the procedures prescribed in Section xxx.xxxx of the Cites Code. In passing upon an appeal, the Board of Adjustment may, so long as such action is in conformity with the provisions of this Ordinance, reverse or affirm, wholly or in part, or modify the order, requirement, decision or determination of the Zoning Administrator or other public official. It shall make its decision in writing setting forth the findings of fact and the reasons for its decisions. In granting a variance the Board of Adjustment may prescribe appropriate conditions and safeguards such as those specified in Section 10.46, which are in conformity with the purposes of this Ordinance. Violations of such conditions and safeguards, when made a part of Council Workshop Draft - 1 7 - the terms under which the variance is granted, shall be deemed a violation of this Ordinance punishable under Section 12.0. A copy of all decisions granting variances shall be forwarded by mail to the Commissioner of Natural Resources within ten(10)days of such action. 10.36 Appeals. Appeals from any decision of the Board of Adjustment may be made, and as specified in this eeffmwnity's eftieial eefftFOIsSection xxx.xxxx of the City Code and also by Minnesota Statutes. 10.37 Flood Insurance Notice and Record Keeping. The Zoning Administrator shall notify the applicant for a variance that: 1)The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to umeuftts as high as$25 c nd 2) Such construction below the 100-year or regional flood level increases risks to life and property. Such notification shall be maintained with a record of all variance actions. A community shall maintain a record of all variance actions, including justification for their issuance, and report such variances issued in its annual or biennial report submitted to the Administrator of the National Flood Insurance Program. 10.4 Conditional Uses. nor eA4 A f yt shall hear and deeide Applications for a Conditonal Use Permit shall be submitted to the Zoning Administrator in accordance with the procedural requirements of Section xxx.xxxx of the City Code. n to_60e& . ...a @2 •' fey eensideeatien. 10.41 Hearings. Upon filing with the City an application for a conditional use permit,the Zoning Administrator shall submit by mail to the Commissioner of Natural Resources a copy of the application for proposed conditional use sufficiently in advance so that the Commissioner will receive at least ten days notice of the hearing. 10.42 Decisions. . In granting a conditional use permit the City shall prescribe appropriate conditions and safeguards, in addition to those specified in Section 10.46,which are in conformity with the purposes of this Ordinance. Violations of such conditions and safeguards,when made a part of the terms under which the conditional use permit is granted, shall be deemed a violation of this Ordinance punishable under Section 12.0. A copy of all decisions granting conditional use permits shall be forwarded by mail to the Commissioner of Natural Resources within ten(10)days of such action. 10.43 Procedures to be followed by the City in passing on Conditional Use Permit Applications Within all Flood Plain Districts. (a) Requife the a plieafft to fi ffiis, stieh e4The applicant is required to submit the following information and additional information as deemed necessary by the City Council for determining the suitability of the particular site for the proposed use: (1) Plans inieate drawn to scale showing the nature, location,dimensions,and elevation of the lot,existing or proposed structures, fill, storage of materials, flood proofing measures,and the relationship of the above to the location of the stream channel; and (2) Specifications for building construction and materials, flood proofing, filling, dredging, grading,channel improvement, storage of materials,water supply and sanitary facilities. (b) The Zoning Administrator shall Ttransmit one copy of the information described in subsection (a)to a designated engineeFthe City Engineer or other expert person or agency for technical assistance, where necessary, in evaluating the proposed project in relation to flood heights and velocities,the seriousness of flood damage to the use,the adequacy of the plans for protection, and other technical matters. Council Workshop Drafi - 18 - (c) Based upon the technical evaluation of the designated engineer or expert,the City shall determine the specific flood hazard at the site and evaluate the suitability of the proposed use in relation to the flood hazard. 10.44 Factors Upon Which the Decision of the City Shall Be Based. In passing upon conditional use applications,the City shall consider all relevant factors specified in other sections of this Ordinance,and: (a) The danger to life and property due to increased flood heights or velocities caused by encroachments. (b) The danger that materials may be swept onto other lands or downstream to the injury of others or they may block bridges,culverts or other hydraulic structures. (c) The proposed water supply and sanitation systems and the ability of these systems to prevent disease,contamination, and unsanitary conditions. (d) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner. (e) The importance of the services provided by the proposed facility to the community. (f) The requirements of the facility for a waterfront location. (g) The availability of alternative locations not subject to flooding for the proposed use. (h) The compatibility of the proposed use with existing development and development anticipated in the foreseeable future. (i) The relationship of the proposed use to the comprehensive plan and flood plain management program for the area. (j) The safety of access to the property in times of flood for ordinary and emergency vehicles. (k) The expected heights,velocity,duration,rate of rise,and sediment transport of the flood waters expected at the site. (1) Such other factors which are relevant to the purposes of this Ordinance. 4-9.45r-'fie for-Aetingen Appheatie:.:The City shall on aa-apprivacroxr-i>=r-the faamicresenve above within da` from feeei.. 'ham appheation, t that.here adds :, t infefffi is required pufsuafft to 10.43 of this Or-dinanee. The City shall..ende_. written deeisien withi 10.46 Conditions Attached to Conditional Use Permits. Upon consideration of the factors listed above and the purpose of this Ordinance, the City shall attach such conditions to the granting of conditional use permits as it deems necessary to fulfill the purposes of this Ordinance. Such conditions may include,but are not limited to,the following: (a) Modification of waste treatment and water supply facilities. (b) Limitations on period of use, occupancy, and operation. (c) Imposition of operational controls, sureties, and deed restrictions. (d) Requirements for construction of channel modifications,compensatory storage,dikes, levees, and other protective measures. (e) Flood proofing measures,in accordance with the State Building Code and this Ordinance. The applicant shall submit a plan or document certified by a registered professional engineer or architect that the flood proofing measures are consistent with the regulatory flood protection elevation and associated flood factors for the particular area. SECTION 11.0 NONCONFORMING USES 11.1 A structure or the use of a structure or premises which was lawful before the passage or amendment of this Ordinance but which is not in conformity with the provisions of this Ordinance may be continued subject Council Workshop Draft - 19 - to the following conditions. Historic structures,as defined in Section 2.831(b)of this Ordinance,shall be subject to the provisions of Sections 11.11 -11.15 of this Ordinance. 11.11 No such use shall be expanded, changed, enlarged, or altered in a way that increases its nonconformity. 11.12 Any structural alteration or addition to a nonconforming structure or nonconforming use which would result in increasing the flood damage potential of that structure or use shall be protected to the Regulatory Flood Protection Elevation in accordance with any of the elevation on fill or flood proofing techniques(i.e.,FP-1 thru FP4 floodproofing classifications)allowable in the State Building Code,except as further restricted in 11.13 and 11.16 below. 11.13 The cost of all structural alterations or additions to any nonconforming structure over the life of the structure shall not exceed 50 percent of the market value of the structure unless the conditions of this Section are satisfied. The cost of all structural alterations and additions must include all costs such as construction materials and a reasonable cost placed on all manpower or labor. If the cost of all previous and proposed alterations and additions exceeds 50 percent of the market value of the structure, then the structure must meet the standards of Section 4.0 or 5.0 of this Ordinance for new structures depending upon whether the structure is in the Floodway or Flood Fringe District, respectively. (Note: This cumulative tracking over time provision of this section is optional. If'a community wishes to delete this cumulative tracking provision,please contact the respective DNR Waters' I area hydrologist_for replacement wording.) 11.14 If any nonconforming use is discontinued for 12 consecutive months, any future use of the building premises shall conform to this Ordinance. The Assessor shall notify the Zoning Administrator in writing of instances of nonconforming uses that have been discontinued for a period of 12 months. 11.15 If any nonconforming use or structure is substantially damaged, as defined in Section 2.830 of this Ordinance,it shall not be reconstructed except in conformity with the provisions of this Ordinance. The applicable provisions for establishing new uses or new structures in Sections 4.0, 5.0 or 6.0 will apply depending upon whether the use or structure is in the Floodway,Flood Fringe or General Flood Plain District, respectively. 11.16 If a substantial improvement occurs,as defined in Section 2.831 of this Ordinance,from any combination of a building addition to the outside dimensions of the existing building or a rehabilitation,reconstruction,alteration,or other improvement to the inside dimensions of an existing nonconforming building,then the building addition and the existing nonconforming building must meet the requirements of Section 4.0 or 5.0 of this Ordinance for new structures,depending upon whether the structure is in the Floodway or Flood Fringe District,respectively. SECTION 12.0 PENALTIES FOR VIOLATION 12.1 Violation of the provisions of this Ordinance or failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with grants of variances or conditional uses) shall constitute a misdemeanor and shall be punishable as defined by law. I Council Workshop Draft -20 - 12.2 Nothing herein contained shall prevent the City from taking such other lawful action as is necessary to prevent or remedy any violation. Such actions may include but are not limited to: 12.21 In responding to a suspected Ordinance violation, the Zoning Administrator and City may utilize the full array of enforcement actions available to it including but not limited to prosecution and fines, injunctions,after-the-fact permits,orders for corrective measures or a request to the National Flood Insurance Program for denial of flood insurance availability to the guilty party. The Community must act in good faith to enforce these official controls and to correct Ordinance violations to the extent possible so as not to jeopardize its eligibility in the National Flood Insurance Program. 12.22 When an Ordinance violation is either discovered by or brought to the attention of the Zoning Administrator, the Zoning Administrator shall immediately investigate the situation and document the nature and extent of the violation of the official control. As soon as is reasonably possible,this information will be submitted to the appropriate Department of Natural Resources'and Federal Emergency Management Agency Regional Office along with the Community's plan of action to correct the violation to the degree possible. 12.23 The Zoning Administrator shall notify the suspected party of the requirements of this Ordinance and all other official controls and the nature and extent of the suspected violation of these controls. If the structure and/or use is under construction or development,the Zoning Administrator may order the construction or development immediately halted until a proper permit or approval is granted by the Community. If the construction or development is already completed,then the Zoning Administrator may either: (1)issue an order identifying the corrective actions that must be made within a.specified time period to bring the use or structure into compliance with the official controls; or(2)notify the responsible party to apply for an after-the-fact permit/development approval within a specified period of time not to exceed 30-days. 12.24 If the responsible party does not appropriately respond to the Zoning Administrator within the specified period of time,each additional day that lapses shall constitute an additional violation of this Ordinance and shall be prosecuted accordingly. The Zoning Administrator shall also upon the lapse of the specified response period notify the landowner to restore the land to the condition which existed prior to the violation of this Ordinance. SECTION 13.0 AMENDMENTS The flood plain designation on the Official Zoning Map shall not be removed from flood plain areas unless it can be shown that the designation is in error or that the area has been filled to or above the elevation of the regulatory flood protection elevation and is contiguous to lands outside the flood plain. Special exceptions to this rule may be permitted by the Commissioner of Natural Resources if he determines that, through other measures,lands are adequately protected for the intended use. All amendments to this Ordinance, including amendments to the Official Zoning Map,must be submitted to and approved by the Commissioner of Natural Resources prior to adoption. Changes in the Official Zoning Map must meet the Federal Emergency Management Agency's(FEMA)Technical Conditions and Criteria and must receive prior FEMA approval before adoption. The Commissioner of Natural Resources must be given 10-days written notice of all hearings to consider an amendment to this Ordinance and said notice shall include a draft of the Ordinance amendment or technical study under consideration. I i Council Workshop Draft - 21 - I I I I EFFECTIVE DATE: This Ordinance shall be in full force and effect from and after its passage and approval and publication, as required by law and/or charter. Adopted by the Board/City Council (Community Name) This of , (Day) (Month) (Year) Attest: , County Board Chairperson/Mayor (Name of Elected Official) Attest: , County Administrator/City Clerk (Name of Community Official) Stamp With Community Seal: Council Id orlshop Draft - 22 - Current Flood Plain Ordinance Notes generated by the Lake Elmo Planning Department 10-23-09 Note: Highlighted sections represent language that is not included in the model ordinance. Staff notes regarding the highlighted sections are shown in magenta. CHAPTER 152: FLOOD PLAIN MANAGEMENT Section 152.01 Statutory authorization 152.02 Findings of fact 152.03 Short title 152.04 Purpose 152.05 Generally 152.06 Establishment of flood plain district 152.07 Flood plain district 152.08 Public utilities, railroads, and bridges 152.09 Administration 152.10 Board of Adjustment and Appeals 152.11 Conditional uses; standards of evaluation procedures 152.12 Non-conforming uses 152.13 Violations 152.14 Amendments § 152.01 STATUTORY AUTHORIZATION. The legislature of the State of Minnesota has, in M.S. Ch. 103F and 462.357, as they may be amended from time to time, delegated the responsibility to local government units to adopt regulations designed to minimize flood losses. (1997 Code, § 305.01) § 152.02 FINDINGS OF FACT. (A) Flood hazard areas. The flood hazard areas of the city are subject to periodic inundation which results in potential loss of life,loss of property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare. (B) Methods used to analyze flood hazards. This chapter is based upon a reasonable method of analyzing flood hazards which is consistent with the standards established by the Minnesota Department of Natural Resources. (1997 Code, § 305.02) § 152.03 SHORT TITLE. The provisions of this section shall be referred to as the "Flood Plain Regulation." (1997 Code, § 305.03) § 152.04 PURPOSE. It is the purpose of this chapter to promote the public health, safety, and general welfare and to minimize those losses described in § 152.02 by provisions contained in this chapter. (1997 Code, § 305.04) § 152.05 GENERALLY. (A) Application. This chapter shall apply to all lands within the jurisdiction of the city shown on the city's flood boundary and floodway map and the flood insurance rate map dated 7-2-1979 (hereinafter "official maps") as being located within the boundaries of the floodway, flood fringe, or general flood plain districts. These official maps are adopted by reference and declared to be a part of this chapter. (B) Regulatory flood protection elevation. The regulatory flood protection elevation shall be an elevation no lower than 1 foot above the elevation of the regional flood plus any increases in flood elevation caused by encroachments on the flood plain that result from designation of a floodway. (C) Interpretation. i (1) In their interpretation and application,the provisions of this chapter shall be held to be minimum requirements and shall be liberally construed in favor of the city and shall not be deemed a limitation or repeal of any other powers granted by state statutes. I i (2) Where interpretation is needed as to exact location of the boundary of the flood plain district as shown on the official maps, as for example where there appears to be a conflict between a mapped boundary and actual field conditions and there is a formal appeal of the decision of the Zoning Administrator, the Board of Adjustment shall make the necessary interpretation. All decisions will be based on elevations on the regional (100-year) flood profile and other available technical data. Persons contesting the location of the district boundaries shall be given a reasonable opportunity to present their case to the board and to submit technical evidence. (3) Permitted and conditional uses allowed in the flood plain shall be limited to those only listed in § 152.08, and only under the standards and conditions which are also stated in this chapter. Where it is alleged that there is an error in any order, requirement, decision,or determination made by the Zoning Administrator, an appeal may be made to the Board of Adjustment and Appeals who follow the rules and procedures of§ 152.10 in making their final decision. This section would be redundant should the model ordinance be adopted. (D) Abrogation and greater restriction. The provisions of this chapter are not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. Where this chapter imposes greater restrictions, the provisions of this chapter shall prevail. All other ordinances inconsistent with this chapter are repealed to the extent of the inconsistency only. (E) Warning and disclaimer of liability. This chapter does not imply that areas outside the flood plain districts or land uses permitted within the districts will be free from flooding or flood damages. This chapter shall not create liability on the part of the city or any officer or employee of the city for any flood damages that result from reliance on this chapter or any administrative decision lawfully made under this chapter. (1997 Code, § 305.05) I § 152.06 ESTABLISHMENT OF FLOOD PLAIN DISTRICT. I I I (A) Designation of the flood plain district. The flood insurance study for the city prepared by F.E.M.A. and dated January 1979 and the flood boundary and floodway map and flood insurance rate map,both dated 7-2-1979 (referred to as the "official maps"), contained in the flood insurance study for the city are adopted by reference and declared to be part of this chapter. The flood insurance study shall be on file in the office of the Clerk. The flood plain district for the city shall include those areas which lie within the 100-year flood boundary on the flood insurance rate map dated 7-2-1979. The model ordinance contains a modified section establishing three distinct flood districts: Floodway, Flood Fringe, and General Flood Plain. The City's current ordinance adheres most closely to the floodway district in the model ordinance with some exceptions. (B) Compliance. No new structure or land shall hereafter be used and no structure shall be located, extended, converted, or structurally altered without full compliance with the terms of the flood plain regulation and other applicable regulations which apply to uses within the jurisdiction of the flood plain regulation. In addition, a caution is provided here that: (1) Modifications, additions, structural alterations, or repair after damage to existing nonconforming structures and non-conforming uses of structures or land are regulated by the general provisions of the flood plain regulation and specifically § 152.12; and (2) (a) As-built elevations for elevated or flood-proofed structures must be certified by a registered professional engineer or architect as specified in the general provisions of the flood plain regulation and specifically as stated in § 152.09. (b) See following sketch_ (1997 Code, § 305.07) Penalty, see $ 10.99 § 152.07 FLOOD PLAIN DISTRICT. (A) Permitted uses. The following uses have a low flood damage potential and do not obstruct flood flows. These uses shall be permitted to the extent that they are not prohibited by any other ordinance and provided they do not require structures, fill, or storage of materials or equipment. In addition, no use shall adversely affect the capacity of the channels or floodways or any tributary to the main stream or of any drainage ditch, or any other drainage facility or system. The model's list of uses is more extensive than the current regulations. The model also allows for things such as accessory buildings and storage to be conducted in floodway zones, whereas the City's present ordinance does not allow for these activities and/or structures in the flood district. (1) Agricultural uses such as general farming,pasture, grazing, outdoor plant nurseries, horticulture,truck farming, forestry, sod farming, and wild crop harvesting; (2) Private and public recreational uses such as golf courses, tennis courts, golf driving ranges, archery ranges, picnic grounds,boat launching ramps, swimming areas, parks, wildlife and nature preserves, hunting and fishing areas, and single or multiple purpose recreational trails; and (3) Residential uses such as lawns, gardens, parking areas, and play areas. (B) Standards for flood plain permitted uses. (1) The use shall have a low flood damage susceptibility. (2) The use shall be permissible in the underlying zoning district. (3) The use shall not obstruct flood flows or increase flood elevations and shall not involve structures, fill, obstructions, excavations, or storage of materials or equipment. (4) New or replacement on-site sewage treatment systems must be designed to eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters, and they shall not be subject to impairment or contamination during times of flooding. Any sewage treatment system designed in accordance with the city's and state's current statewide standards whichever is more restrictive for on-site sewage treatment systems shall be deter pined to be in compliance with this chapter. Repeated in Section 152.08(C)—suggest removing. (C) Conditional uses. (1) Railroads,bridges, utility transmission lines, and pipelines; (2) Structural works for flood control such as levees, dikes, and flood walls constructed to any height where the intent is to protect individual structures and levees or dikes where the intent is to protect agricultural crops for a frequency flood event equal to or less than the 10-year frequency flood event; and (3) Alterations and/or additions to existing principal structures located in the flood fringe portion of the flood plain district which are elevated on fill so that the lowest floor including basement floor is at or above the regulatory flood protection elevation. The finished fill elevation for structures shall be no lower than the regulatory flood protection elevation and the fill shall extend at the elevation at least 15 feet beyond the outside limits of the structure erected on the flood plain district. The construction must comply with the requirements of division (D)below. The model ordinance allows for additional uses and structures to be located in flood fringe and general flood plain districts. The current ordinance allows additions and alterations in the flood fringe district without clear guidance regarding how these areas are to be designated. (D) Standards for flood plain conditional uses. (1) No structure(temporary or permanent), fill (including fill for roads and levees), deposit, obstruction, storage of materials or equipment, or other uses may be allowed as a conditional use that will cause any increase in the stage of the (100-year) regional flood or cause an increase in flood damages in the reach or reaches affected. (2) All flood plain conditional uses shall be subject to the procedures and standards contained in § 152.12. (3) The conditional use shall be permissible in the underlying zoningdistrict. (4) Structural works for flood control that will change the course, current, or cross-section of protected wetlands or public waters shall be subject to the provisions of M.S. Ch. 103G, as it may be amended from time to time. Community-wide structural works for flood control intended to remove areas from the regulatory flood plain shall not be allowed in the floodway. (5) When at any 1 time more than 1,000 cubic yards of fill or other similar material is located on a parcel for the activities as on-site storage, landscaping, sand and gravel operations,roads, dredge spoil disposal, or construction of flood control works, an erosion/sedimentation control plan must be submitted. The plan must be prepared and certified by a registered professional engineer. The model ordinance only allows the placement offill in a floodway as a conditional use, and also includes specific standards for these situations. The current ordinance is not clear when filling is permitted. (E) Standards for all flood plain uses. (1) All new principal structures must have vehicular access at or above the regulatory flood protection elevation. If a variance to this requirement is granted, the Board of Adjustment must specify limitations on the period of use or occupancy of the structure for times of flooding. (2) Accessory land uses, such as yards, railroad tracks, and parking lots, may be at elevations lower than the regulatory flood protection elevation. A permit for the facilities to be used by the employees or the general public shall not be granted in the absence of a flood warning system that provides adequate time for evacuation if the area would be inundated to a depth greater than 4 feet per second upon occurrence of the regional flood. (3) Fill shall be properly compacted and the slopes shall be properly protected by the use of rip-rap, vegetative cover, or other acceptable method. The Federal Emergency Management Agency(F.E.M.A.)has established criteria for removing the specific flood hazard area designation for certain structures properly elevated on fill above the 100-year flood elevation; F.E.M.A.'s requirements incorporate specific fill compaction and side slope protection standards for multi-structure or multi-lot developments. These standards should be investigated prior to the initiation of site preparation if a change of special flood hazard area designation will be requested. (4) Flood plain developments shall not adversely affect the hydraulic capacity of the channel and adjoining flood plain of any tributary water course or drainage system where a floodway or other encroachment limit has not been specified on the official zoning map. (5) All dwelling units must be at least 20 feet wide through the main living area of the structure. The structure must have continuous frost footings. Continuous frost footings are not required for porches, decks, and other appendages so long as proper post type footings per existing building codes are constructed. (6) Travel trailers,travel vehicles, and manufactured homes are prohibited in the flood plain district. (1997 Code, § 305.08) Penalty, see & 10.99 § 152.08 PUBLIC UTILITIES,RAILROADS,AND BRIDGES. (A) Public utilities. All public utilities and facilities such as gas, electrical, sewer, and water supply systems to be located in the flood plain shall be flood-proofed in accordance with the State Building Code or elevated to above the regulatory flood protection elevation. (B) Public transportation facilities. Railroad tracks and bridges to be located within the flood plain shall comply with § 152.07. Elevation to the regulatory flood protection elevation shall be provided where failure or interruption of these transportation facilities would result in danger to the public health or safety or where the facilities are essential to the orderly functioning of the area. Limited access roads or railroads may be constructed at a lower elevation where failure or interruption of transportation services would not endanger the public health or safety. (C) On-site sewage treatment and water supply systems. Where public utilities are not provided, on-site water supply systems must be designed to eliminate infiltration of flood waters into the systems, and new or replacement on-site sewage treatment systems must be designed to eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters and they shall not be subject to impairment or contamination during times of flooding. Any sewage treatment system designed in accordance with the city's and state's current statewide standards, whichever is more restrictive for on-site sewage treatment systems, shall be determined to be in compliance with this chapter. (1997 Code, § 305.09) Penalty, see § 10.99 § 152.09 ADMINISTRATION. (A) Zoning Administrator. The Zoning Administrator or other official designated by the city shall administer and enforce the flood plain regulation. If the Zoning Administrator finds a violation of the provisions of the flood plain regulation, the Zoning Administrator shall notify the person responsible for the violation in accordance with the procedures stated in § 152.12. (B) Permit requirements. A permit issued by the Zoning Administrator in conformity with the provisions of the flood plain regulation shall be secured prior to the erection, addition, or alteration of any building, structure, or portion of any building or structure;prior to the use or change of use of a building, structure, or land; prior to the change or extension of a non-conforming use; and prior to the placement of fill, excavation of materials, or the storage of materials or equipment within the flood plain. (C) Application for permit. Application for a permit shall be made in duplicate to the Zoning Administrator on forms furnished by the Zoning Administrator and shall include the following where applicable: plans in duplicate drawn to scale, showing the nature, location, dimensions, and elevations of the lot; existing or proposed structures, fill, or storage of materials; and the location of the foregoing in relation to the flood plain. (D) State and federal permits. Prior to granting a permit or processing an application for a conditional use permit or variance, the Zoning Administrator shall determine that the applicant has obtained all necessary state and federal permits. (E) Certificate of occupancy for a new, altered, or non-conforming use. It shall be unlawful to use, occupy, or permit the use or occupancy of any building or premises or part of the building or premises subsequently created, erected, changed, converted, altered, or enlarged in its use or structure until a certificate of occupancy shall have been issued by the Zoning Administrator indicating that the use of the building or land conforms to the requirements of the flood plain regulation. (F) Construction and use to be as provided on applications,plans,permits, variances, and certificates of occupancy. Permits, conditional use permits, or certificates of occupancy issued on the basis of approved plans and applications authorize only the use, arrangement, and construction set forth in the approved plans and applications, and no other use, arrangement, or construction. Any use, arrangement, or construction at variance with that authorized shall be deemed a violation of the flood plain regulation, and punishable as provided by § 152.13. i i (G) Certification. The applicant shall be required to submit certification by a registered professional engineer, registered architect, or registered land surveyor that the finished fill and building elevations were accomplished in compliance with the provisions of this chapter. Flood-proofing measures shall be certified by a registered professional engineer or registered architect. (H) Record offirstfloor elevation. The Zoning Administrator shall maintain a record of the elevation of the lowest floor(including basement) of all new structures and alterations or additions to existing structures in the flood plain. The Zoning Administrator shall also maintain a record of the elevation to which structures or alterations and additions to structures are flood-proofed. i (I) Subdivisions. No land shall be subdivided which is unsuitable for the reason of flooding, inadequate drainage, water supply, or sewage treatment facilities. All lots within the flood plain districts shall contain a building site at or above the regulatory flood protection elevation. All subdivisions shall have water and sewage treatment facilities that comply with the provisions of the flood plain regulation and have road access both to the subdivision and to the individual building sites no lower than the regulatory flood protection elevation. For all subdivisions in the flood plain,the floodway and flood fringe boundaries, the regulatory flood protection elevation and the required elevation of all access roads shall be clearly labeled on all required subdivision drawings and platting documents. For all residential structures in the flood plain, the floodway and the flood fringe boundaries, the basement construction, or the lowest floor if there is no basement,shall not be allowed below the regulatory flood protection elevation. This additional provision appears to be covered elsewhere in the model ordinance. (1997 Code, § 305.10) Penalty, see 10.99 § 152.10 BOARD OF ADJUSTMENT AND APPEALS. (A) Rules. The Board of Adjustment and Appeals shall have rules and power conferred in the zoning code. (B) Hearings. The Board of Adjustment shall follow the hearing procedures of the zoning code. The Board of Adjustments and Appeals shall submit by mail to the Commissioner of Natural Resources a copy of the application for proposed variances sufficiently in advance so that the Commissioner will receive at least 10-days notice of the hearing. (C) Decisions. (1) A Board decision and their findings shall be made according to the zoning code. In granting a variance, the Board may prescribe appropriate conditions and I' i i safeguards which are in conformity with the purposes of the flood plain regulation. Violations of the conditions and safeguards,when made a part of the terms under which the variance is granted, shall be deemed a violation of the flood plain regulation punishable under§ 152.13. No variance shall allow in any district a use prohibited in that district or permit a lower degree of flood protection than the regulatory flood protection elevation. Variances may be used to modify permissible methods of flood protection. This provision appears to allow applications for flood proofing with alternatives to fill to j be considered as a variance rather than a conditional use as required under the model ordinance. (2) A copy of all decisions granting variances shall be forwarded by mail to the Commissioner of Natural Resources within 10 days of the action. (3) Appeals from any decision of the Board of Adjustments and Appeals may be made in accordance with and as specified in the zoning code. (D) Flood insurance notice and record keeping. The Zoning Administrator shall notify the applicant for a variance that: (1) The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for$100 of insurance coverage; and (2) The construction below the 100-year or regional flood level increases risks to life and property. The notification shall be maintained with a record of all variance actions. The city shall maintain a record of all variance actions,including justification for their issuance, and report the variances issued in its annual or biennial report submitted to the administrator of the National Flood Insurance Program. (1997 Code, § 305.11) § 152.11 CONDITIONAL USES; STANDARDS OF EVALUATION PROCEDURES. (A) Rules and hearings. (1) A conditional use permit application shall be acted upon according to the procedures outlined in division(D)below. (2) Upon filing with the city an application for a conditional use permit, the Council shall submit by mail to the Commissioner of Natural Resources a copy of the application for proposed conditional use sufficiently in advance so that the Commissioner will receive at least 10-days notice of the hearing. (B) Procedures to be followed by the city in passing on conditional use permit applications within the flood plain district. The applicant is required to furnish the following information and additional information as deemed necessary by the Council for determining the suitability of the particular site for the proposed use: (1) Plans drawn to scale showing the nature,location,dimensions, and elevation of the lot, existing or proposed structures, fill, storage of materials,flood-proofing pleasures, and the relationship of the above to the location of the stream channel; (2) Specifications for building construction and materials, flood-proofing, filling, dredging, grading, channel improvement, storage of materials,water supply, and sanitary facilities; (3) Transmit 1 copy of the information described above to a designated engineer or other expert person or agency for technical assistance,where necessary,in evaluating the proposed project in relation to flood heights and velocities, the seriousness of flood damage to the use,the adequacy of the plans for protection, and other technical matters; and (4) Based upon the technical evaluation of the designated engineer or expert,the Council shall determine the specific flood hazard at the site and evaluate the suitability of the proposed use in relation to the flood hazard. (C) Factors upon which the decision of the Council shall be based. In passing upon conditional use applications,the city shall consider all relevant factors specified in other sections of the flood plain regulation, and: (1) The danger to life and property due to increased flood heights or velocities caused by encroachments; (2) The danger that materials may be swept onto other lands or downstream to the injury of others or they may block bridges, culverts, or other hydraulic structures; (3) The proposed water supply and sanitation systems and the ability of these systems to prevent disease,contamination, and unsanitary conditions; (4) The susceptibility of the proposed facility and its intents to flood damage and the effect of the damage on the individual owner; (5) The importance of the services provided by the proposed facility to the community; (6) The requirements of the facility for a water front location; (7) The availability of alternative locations not subject to flooding for the proposed use; (8) The compatibility of the proposed use with existing development and development anticipated in the foreseeable future; (9) The relationship of the proposed use to the comprehensive plan and flood plain management program for the area; (10) The safety of access to the property in times of flood for ordinary and emergency vehicles; (11) The expected heights,velocity, duration,rate of rise, and sediment transport of the flood waters expected at the site; and (12) The other factors which are relevant to the purposes of the flood plain regulation. (D) Conditions attached to conditional use permits. Upon consideration of the factors listed above and the purpose of this chapter, the city shall attach the conditions to the granting of conditional use permits as it deems necessary to fulfill the purposes of the flood plain regulation. The conditions may include,but are not limited to, the following: (1) Modification of waste treatment and water supply facilities; (2) Limitations on period of use, occupancy, and operation; (3) Imposition of operational controls, sureties, and deed restrictions; (4) Requirements for construction of channel modifications, compensatory storage of a 2 to l replacement or greater, dikes, levees, and other protective measures; and (5) Flood-proofing measures, in accordance with the State Building Code and the flood plain regulation; the applicant shall submit a plan or document certified by a registered professional engineer or architect that the flood-proofing measures are consistent with the regulatory flood protection elevation and associated flood factors for the particular area. i (1997 Code, § 305.12) § 152.12 NON-CONFORMING USES. (A) Continuance of non-conforming use. A structure or the use of a structure or premises which was lawful before the passage or amendment of the flood plain regulation but which is not in conformity with the provisions of the flood plain regulation may be continued subject to the requirements of the zoning code. (B) Alterations; additions. The cost of all structural alterations or additions both inside and outside of a structure to any non-conforming structure over the life of the structure shall not exceed 50%of the market value of the structure unless the conditions of this chapter are satisfied. The cost of all structural alterations and additions and additions constructed since the adoption of the city's initial flood plain controls must be calculated into today's current cost which will include all costs such as construction materials and a reasonable cost placed on all manpower or labor. If the current cost of all previous and proposed alterations and additions exceeds 50% of the current market value of the structure, then the structure must meet the standards of§ 152.07. (1997 Code, § 305.13) § 152.13 VIOLATIONS. (A) Violation;failure to comply. Violation of the provisions of the flood plain regulation or failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with grants of variances or conditional uses) shall constitute a misdemeanor and shall be punishable as defined by law. (B) Prevention; remedy. Nothing contained in this chapter shall prevent the city from taking other lawful action that is necessary to prevent or remedy any violation. Actions may include but are not limited to: (1) In responding to a suspected ordinance violation, the Zoning Administrator and the city may utilize the full array of enforcement actions available to it including,but not limited to,prosecution and fines, injunctions, after-the-fact permits, orders for corrective measures or a request to the National Flood Insurance Program for denial of flood insurance availability to the guilty party. The city must act in good faith to enforce these official controls and to correct the flood plain regulation violations to the extent possible so as not to jeopardize its eligibility in the National Flood Insurance Program; (2) When the flood plain regulation violation is either discovered by or brought to the attention of the Zoning Administrator, the Zoning Administrator shall immediately investigate the situation and document the nature and extent of the violation of the official control. As soon as is reasonably possible, this information will be submitted to the appropriate Department of Natural Resources and Federal Emergency Management Agency regional office along with the city's plan of action to correct the violation to the degree possible; (3) The Zoning Administrator shall notify the suspected party of the requirements of the flood plain regulation and all other official controls and the nature I and extent of the suspected violation of these controls. If the structure and/or use is under construction or development, the Zoning Administrator may order the construction or development immediately halted until a proper permit or approval is granted by the city. I If the construction or development is already completed, then the Zoning Administrator may either: (a) Issue an order identifying the corrective actions that must be made within a specified time period to bring the use or structure into compliance with the official controls; or (b) Notify the responsible party to apply for an after-the-fact permit or development approval within a specified period of time not to exceed 30 days. I (4) If the responsible party does not appropriately respond to the Zoning Administrator within the specified period of time, each additional day that lapses shall constitute an additional violation of the flood plain regulation and shall be prosecuted accordingly. The Zoning Administrator shall also,upon the lapse of the specified response period, notify the landowner to restore the land to the condition which existed prior to the violation of the flood plain regulation. (1997 Code, § 305.14) Penalty, see S 10.99 § 152.14 AMENDMENTS. (A) The flood plain designation on the official map shall not be removed from flood plain areas unless it can be shown that the designation is in error. Special exceptions to this rule may be permitted by the Commissioner of Natural Resources if the Commissioner determines that, through other measures, lands are adequately protected for the intended use. (B) All amendments to the flood plain regulation including amendments to the official zoning map must be submitted to and approved by the Commissioner of Natural Resources prior to adoption. Changes in the official zoning map must meet the Federal Emergency Management Agency's (F.E.M.A.) technical conditions and criteria and must receive prior F.E.M.A. approval before adoption. The Commissioner of Natural Resources must be given 10-days written notice of all hearings to consider an amendment to the flood plain regulation and the notice shall include a draft of the proposed amendment or technical study under consideration. (1997 Code, § 305.15) i i RA�F� h' O Federal Emergency Management Ager#FCEIVED Washington, D.C. 20472 ND SE�JAN CERTIFIED MAIL IN REPLY REFER TO: CITY OF LAKE ELMO RETURN RECEIPT REQUESTED 19P August 3, 2009 The Honorable Dean Johnston Community: City of Lake Elmo, Mayor,City of Lake Elmo Washington County, 3800 Laverne Avenue North Minnesota Lake Elrno, MN 55042 Community No.: 270505 Map,Panels Affected: See FIRM Index Dear Mayor Johnston: This is to formally notify you of the final flood elevation determination for the City of Lake Elmo, Washington County, Minnesota, in compliance with Title 44, Chapter 1, Part 67, Section 67.1 1, Code of Federal Regulations(CFR). This section requires that notice of final flood elevations shall be sent to the Chief Executive Officer of the community, all individual appellants, and the state coordinating agency, and shall be published in the Federal Register. On July 2, 1979,the Federal Emergency Management Agency(FEMA) issued a Flood Insurance Rate Map(FIRM)that identified the Special Flood Hazard Areas (SFHAs),the areas subject to inundation by the base(i-percent-annual-chance) flood, in your community. Recently, FEMA completed a re-evaluation of flood hazards in your community. On November 30, 2007, FEMA provided you with Preliminary copies of the Flood Insurance Study(FIS) and FIRM that identify the existing flood hazards in your community, including Base Flood Elevations(BFEs).The proposed BFEs for your community were published in the St. Paul Pioneer Press on April 16, 2008,and April 23, 2008,and in the Federal Register at Part 67, Volume 73,No. 65, Pages 18248 through 18250,on April 3, 2008. The statutory 90-day appeal period,which was initiated on the second newspaper publication date cited above, has ended. FEMA did not receive any appeals of the proposed BFEs during that time. Accordingly,the BFEs for your community are considered final. The final rule for BFEs will be published in the Federal Register as soon as possible. The FIS and FIRM for your community will become effective on February 3,2010. Before the effective date, FEMA will send you final printed copies of the FIS and FIRM. Because the FIS establishing the BFEs for your community has been completed, certain additional requirements must be met under Section 1361 of the National Flood Insurance Act of 1968, as amended, within 6 months from the date of this letter. Prior to February 3, 2010,your community is required, as a condition of continued eligibility in the National Flood Insurance Program (NFIP),to adopt or show evidence of adoption of floodplain management regulations that meet the standards of Paragraph 60.3(d)of the NFIP regulations(44 CFR 59, etc.) by the effective date of the FIRM. These standards are the minimum requirements and do not supersede any State or local requirements of a more stringent nature. 1t must be emphasized that all of the standards specified in Paragraph 60.3(d) of the NFIP regulations must be enacted in a legally enforceable document. This includes adoption of the current effective FIS and 2 FIRM to which the regulations apply and other modifications made by this map revision. Some of the standards should already have been enacted by your community in order to establish initial eligibility in the NFIP. Your community can meet any additional requirements by taking one of the following actions: 1. Amending existing regulations to incorporate any additional requirements of Paragraph 60.3(d); 2. Adopting all of the standards of Paragraph 60.3(d)into one new,comprehensive set of regulations; or 3. Showing evidence that regulations have previously been adopted that meet or exceed the minimum requirements of Paragraph 60.3(d). Communities that fail to enact the necessary floodplain management regulations will be suspended from participation in the NFIP and subject to the prohibitions contained in Section 202(a)of the Flood Disaster Protection Act of 1973 (Public Law 93-234)as amended. In addition to your community using the FIS to manage development in the floodplain,FEMA will use the FIS to establish appropriate flood insurance rates. On the effective date of the revised FIRM,actuarial rates for flood insurance will be charged for all new structures and substantial improvements to existing structures located in the identified SFHAs. These rates may be higher if structures are not built in compliance with the floodplain management standards of the NFIP. The actuarial flood insurance rates increase as the lowest elevations(including basement)of new structures decrease in relation to the BFEs established for your community. This is an important consideration.for new construction because building at a higher elevation can greatly reduce the cost of flood.insurance. To assist your community in maintaining the FIRM,we have enclosed a Summary of Map Actions (SOMA)to document previous Letter of Map Change(LOM:C)actions(i.e.,Letters of Map Amendment (LOMA),Letters of Map Revision(LOMR))that will be superseded when the revised FIRM panels .referenced above become effective. Information on LOMCs is presented in the following four categories: (1)LOMCs for which results have been included on the revised FIRM panels; (2)LOMCs for which results could not be shown on the revised FIRM panels because of scale limitations or because the LOMC issued had determined that the lots or structures involved were outside the SFHA as shown on the FIRM; (3)LOMCs for which results have not been included on the revised FIRM panels because the flood hazard information on which the original determinations were based are being superseded by new flood hazard information;and(4)LOMCs issued for multiple lots or structures where the determination for one or more of the lots or structures cannot be revalidated through an administrative process like the LOMCs in Category 2 above. LOMCs in Category 2 will be revalidated through a single letter that reaffirms the validity of a previously issued LOMC;the letter will be sent to your community shortly before the effective date of the revised FIRM and will become effective 1 day after the revised FIRM becomes effective. For the LOMCs listed in Category 4, we will review the data previously submitted for the LOMA or LOMR request and issue a new determination for the affected properties after the revised.FIRM becomes effective. The FIRM and FIS report for your community have been prepared in our countywide format,which means that flood hazard information for all jurisdictions within Washington County has been combined into one FIRM and FIS report. When the FIS and FIRM are printed and distributed,your community will receive only those panels that present flood hazard information for your Community. We will provide complete sets of the FIRM panels to county officials,where they will be available for review by your community. 3 The FIRM panels have been computer-generated. Once the FIRM and FIS report are printed and distributed,the digital files containing the flood hazard data for the entire county can be provided to your community for use in a computer mapping system. These files can be used in conjunction with other thematic data for flood.plain management purposes, insurance purchase and rating requirements,and many other planning applications. Copies of the digital files or paper copies of the FIRM panels may be obtained by calling our Map Service Center,toll free,at 1-800-358-9616. In addition,your community may be eligible for additional credits under our Community Rating System if you implement your activities using digital mapping files. If your community is encountering difficulties in enacting the necessary floodplain management measures to continue participation in the NFIP,we urge you to contact the Director,Federal Insurance and Mitigation Division of FEMA in Chicago, Illinois, at(312)408-5529 for assistance. If you have any questions concerning mapping issues in general or the enclosed SOMA, please contact our Map Assistance Center,toll free,at 1-877-FEMA MAP(1-877-336-2627). Additional information and resources your community may find helpful regarding the NFIP and floodplain management, such as The National Flood Insurance Program Code of Federal Regulations,Answers to Questions About the National Flood Insurance Program,Frequently Asked Questions Regarding the Effects that Revised Flood Hazards have on Existing Structure, Use of Flood Insurance Study(FIS)Data as Available Data, and National Flood Insurance Program Elevation Certificate and Instructions, can be found on our website at http://www.floodmaps.fema.gov/lfd. Paper copies of these documents may also be obtained by calling our Map Assistance Center. Sincerely, William R. Blanton Jr.,CFM, Chief Engineering Management Branch Mitigation Directorate Enclosure: Final Summery of Map Actions cc: Community Map Repository Sharon Lumby, City Clerk,City of Lake Elmo SOMA-2 FINAL SUMMARY OF MAP ACTIONS Community: LAKE ELMO, CITY OF Community No: 270505 To assist your community in maintaining the Flood Insurance Rate Map (FIRM), we have summarized below the previously issued Letter of Map Change (LOMC) actions (i.e., Letters of Map Revision (LOMRs) and Letters of Map Amendment (LOMAs)) that will be affected when the revised FIRM becomes effective on February 3, 2010. 1. LOMCs Incorporated The modifications effected by the LOMCs listed below will be reflected on the revised FIRM. In addition, these LOMCs will remain in effect until the revised FIRM becomes effective. LOMC Case No. Issued ate Project Identifier Old New Panel Panel NO CASES RECORDED 2. LOMCs Not.Incorporated The modifications effected by the LOMCs listed below will not be reflected on the revised FIRM panels because of scale limitations or because the LOMC issued had determined that the lot(s) or structure(s) involved were outside the Special Flood Hazard Area, as shown on the FIRM. These LOMCs will remain in effect until the revised FIRM becomes effective. These LOMCs will be revalidated free of charge 1 day after the revised FIRM becomes effective through a single revalidation letter that reaffirms the validity of the previous LOMCs. LOMC Case No. issued Project Identifier Old New Panel Panel LOCK 1,LOT 5,DEMONTREVILLE HIGHLANDS LOMA 01-05-1994A 05/09/2001 ITH ADDITION; 7760 53RD STREET NORTH 2705050010E 27163CO24CE EMONTREVILLE HIGHLANDS 5TH ADDITION, LOMA 03-05-4712A 08/22/2003 LOCK 1,LOT 2;7761-53RD STREET NORTH 2705050010B 27163CO240E EAU-HAVEN,LOT 4 AND EAGLE POINT CREEK LOMA 07-05-0248A 10/26/2006 STATES,OUTLOT D--8404 STILLWATER BLV 2705050010B 27163CO331 E ORTH(MN) ro TS 217-221„LANE'S OEMONTREVILLE LOMA 08-05-2723A 04/10/2008 UNTRY CLUB--7934 HILL TRAIL NORTH 2705050010B 27163CO240E 3. LOMCs. Superseded The modifications effected by the LOMCs listed below have not been reflected on the Final revised FIRM panels because they are being superseded by new detailed flood hazard information or the information available was not sufficient to make a determination. The reason each is being superseded is noted below. These LOMCs will no longer be in effect when the revised FIRM becomes effective. LOMC Case No. Date Project Identifier Reason Determination Issued Will be Superseded 5/27/2009 Page 9 of 2 SOMA-2 FINAL SUMMARY OF MAP ACTIONS Community: LAKE ELMO, CITY OF Community No: 270505 LOMC Case No. Date Project Identifier Reason Determination Issued Will be Superseded NO CASES RECORDED 1. Insufficient information available to make a determination. 2. Lowest Adjacent Grade and Lowest Finished Floor are below the proposed Base Flood Elevation. 3. Lowest Ground Elevation is below the proposed Base Flood Elevation. 4. Revised hydrologic and hydraulic analyses. 5. Revised topographic information. 4. LOMCs To Be Redetermined The LOMCs in Category 2 above will be revalidated through a single revalidation letter that reaffirms the validity of the determination in the previously issued LOMC. For LOMCs issued for multiple lots or structures where the determination for one or more of the lots or structures has changed, the LOMC cannot be revalidated through this administrative process. Therefore, we will review the data previously submitted for the LOMC requests listed below and issue a new determination for the affected properties after the effective date of the revised FIRM. LOMC Case No. Date Project Identifier Old New o Issued Panel Panel NO CASES RECORDED 5/27/2009 Page 2 of 2 0 o Tm m - •j wam—�y0,m O � � mmc nN�Q�QaN. m =r ft.in,.^•�.�„f nm 7 O O 4 o0 m m 3 S inn I ,:`, 'ql- dh OD (O a o co (D (D 1 w p dOD CL $.p • 'v. 4 i E .�" .�, f JJ1 p I�5 s .. � —.. �� 'E i s r E44}.:,s ,..�d,.E•,. ° � F Imo- ... O r 3 .;" ,.-"y .t E 3 E `i,- eF'Se. p ? +!,� d e�.",'•e`��. _ ti: ? . Vilf mn mm cn • ,3, F' ,' , aEs.. £-� - .t•s 1 :Ji •eat . � 3 w £ i a ?u 3=•� ` f ` e�i � a 4 i q .. .. .. ... M ~ i` r• ; ,.mod ; i y Ir 3watid7 City Council Date: 11/10/09 WORKSHOP Item: 4 AGENDA ITEM: Assessment Policy Discussion SUBMITTED BY: Jack Griffin, City Engineer THROUGH: Bruce A Messelt, City Administrator�b REVIEWED BY: Dave Snyder, City Attorney Ryan Stempski,Assistant City Engineer SUMMARY AND ACTION REQUESTED: The City Council has asked to review and discuss the City's current and interim (2009 Streets) assessment policies. While the larger issue of assessment policies in general may take several months of discussion and deliberation, timely action on the 2010 Street Assessment policy is requested if the City is to proceed with these improvements. It is requested that the City Council initiate its discussion on City assessment policies and provide comment and/or direction on preparation of a 2010 Assessment Policy for street improvements To further this well.-needed review and overall update of City Assessment Policies, it is suggested that the City Council consider establishing an Assessment Policy Review Subcommittee to work with the City Administrator, City Engineer and City Attorney on this project. BRIEF HISTORY: Current City Assessment Policies were last substantially updated in 1996 (attached). Since that time, significant changes have taken place within Lake Elmo and in State law and court decisions regarding assessment policies. These changes relate to assessment policies, procedures and allowable formulations as to defensible levels of assessments and definitions of benefitting properties. Of note: • Assessment policies are highly regulated and have been significantly litigated. As such, there is a large body of case law and regulations, as well as "best defensible practices"to rely upon in reviewing and updating the City's assessment Policies. • Attached for Council review and consideration is the League of Minnesota's Special Assessment Guide and Sample Special Assessment Policies. These provide a good basis --page 1 -- City Council Workshop Assessment Policy Discussion November 1 Ott',2009 Agenda Item#4 for current circumstances and realities faced by Minnesota Cities in utilizing this important financing tool. Last year, the City Council adopted a 2009 Assessment Policy for Street Improvement Projects. Presented tonight will be the City Engineer's and City Attorney's review of this policy and suggestions for timely modification for 2010 Street Improvement Projects that will being the City of Lake Elmo further into conformity with commonly accepted and defensible assessment practices. In particular,the following Ivey points will be emphasized: • The City's current Special Assessment practices and methodology for Street Improvements will be reviewed. For 2010, City staff recommends continuing to build on the decisions made by Council for the 2009 Street Improvements,including using 30%as our base assessment amounts,and the"equivalent unit lot"method for identifying of the benefitting properties(attached). • Staff will note possible ways to address a few unique circumstances that will be experienced over the years and suggest recommendations on how to address them. These circumstances include: o The larger costs and long-term benefits of Street Reconstruction projects versus the smaller costs and short-term benefits from Street Reclaim projects(which understandably make up the majority of our program); o The paving of certain residential gravel streets with the inclusion of installation new storm sewer systems(when needed); o When and where over-sizing costs should be picked up by the City(such as when widths and pavement sections are desired in excess of standard residential needs); o How to assess benefits from arterial and collector roadway improvements (typically by assessing only the average residential assessment amount); o Funding of the highly desirable addition of our on-going rain garden program; o Providing equity of assessments among adjoining property owners while also creating a sustainable and defensible local deferral program(such as that already available under State Green Acres),based upon current zoning and future development potential(via future contributing language worked into future re- zonings and development agreements); and a Assessment of best and most flexible financing options, to perhaps include 1-year frill pay-offs and periodic pay-off options designed in conjunction with bond issuances (usually at 5, 10, 15 and 20 years). NEXT STEPS: The City Council is asked to begin its discussion of Assessment policies in general, and on 2010 Street Improvement Project assessments in particular. Depending upon the discussion, it may prove worthwhile for an Assessment Policy Review Subcommittee to be formed to delve into the --page 2-- City Council Workshop Assessment Policy Discussion November 101",2009 Agenda Item#4 overall City Assessment Policy and to be charged with developing an updated Policy that is in greater conformity with current laws,practices and City objectives. ATTACHMENTS(4): 1. Current City of Lake Elmo City Assessment Policies 2. LMNC Special Assessment Guide 3. LMNC Special Assessment Sample Policies 4, Proposed 2010 Street Improvement Projects Special Assessment Worksheet ORDER OF BUSINESS: - Introduction..................................................Bruce Messelt, City Administrator - Report/Presentation..................................................Jack Griffin, City Engineer ....................,....,.1.1.1........I......I................................Dave Snyder, City Attorney - Questions& Direction from the Council................Mayor& Council Members --page 3 -- C p p oN O p o Q ola o d o o Q o Q Q � O O ^ co O 00 -1 00 Q N 'N 10 Ln CQ H QQ io rn 41 LD 4Ln N A N �4 "t M Ln N IV tV H r1 V N M M er M tl Ln M p G p O M V t/� v� t/► vi in +n O O 00 O N LD h N M C '� 00 � O LOD N 00 M o w N N fh N O N H tn tn L th 0- H if} VF ifs V1. i/} ill VT p O O Q Q O p O Cl p O O p O Q Ql Op N I cc��� o m o M 000 � M rn M �-i a .-i N H' N to N 00 M Ln Ln N M H Cl' M H f� f71 M N 00 M Q a c Q 0 V). 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The procedures used by the City are those specified by Minnesota Statutes, Chapter 429,which provide that all, or a part of the cost of the improvements, may be assessed against benefiting properties in accordance with the benefits received. The statute, however, does not provide a guide as to how these benefits are measured or how the costs are to be apportioned. The purpose of this general policy is to establish a consistent standard for the apportionment of special assessments. H. TYPES OF IMPROVEMENTS This policy shall relate to those public improvements allowable under Minnesota Statute 429. Generally,the improvements include: street and street lighting improvements; sanitary and water utility improvements; sanitary and water utility improvements; storm sewer and drainage improvements; and bikeway/ped/way improvements. This policy outlines how new construction,reconstruction, and major maintenance shall be fnanced under each type of project. Project costs shall include: the construction costs; engineering; testing; permitting; legal; administrative; land or casement acquisition; fiscal; capitalized interest; data processing and publications fees. III. SPECIAL ASSESSMENT METHODS Benefiting properties generally are assessed by one or a combination of four(4)methods; front footage; area; unit and benefit appraisal. Generally,the nature of an improvement lends itself to a particular method. The four(4)methods are described as follows: A. Frontage Method: Frontage is measured at the building setback line. Assessments are determined by multiplying the frontage by the Council-established rate. B. Area Method: Assessments are determined by multiplying the net developable area (gross area less wetland area)by the Council-established assessment rate. C. Unit Method: Assessments are determined by multiplying the particular land unit by the Council established assessment rate, for each particular zoning category. 1 Adopted by the City Council on 5-21-96 a City of Lake Elmo Public Improvement and Assessment Policy Page 2 D. Benefit Appraisal Method: Assessments are determined by assigning the increase in value to a property as determined by the appraisal. Corner Lots: Corner lots are included in the benefiting area with the exception of single/two family dwellings. If the improvements are along the front lot line of a singleltwo family dwelling, the parcel shall be included in the benefiting area with each unit assessed separately. If the improvements are along the side lot line of a single/two family dwelling,the parcel shall not be included in the benefiting area, unless the lot can be subdivided. IFor the purpose of this Assessment Policy,the front lot line is defined as the side of the lot which abuts the street upon which the property is addressed. Recreational Lots: Recreational lots without a primary living structure, but used for recreational purposes, and not combined with the owner's lot with a primary structure shall be included in the benefiting area and assessed at one-half(1/2)of the rate for a non-recreational lot within the same project. Agricultural and Rural Residential Property: Property zoned Agricultural or Rural Residential that has not been subdivided will be assessed as one unit for each dwelling on the property, If the property is subdivided after the completion of said improvement,but before the expiration of the assessment period or eight years,whichever is the greater,then the property will pay a total contribution equivalent to the total number of subdivided lots based on the original assessment without interest. (or with interest.) Cul de Sacs!: Property located on a cal-de-sac will be assessed the same as that of the street providing access to the cul-de-sac. This policy shall apob regardless of the cul-de-sac being included in the street improvement, IV. EUPROVEMENTS A. Roadway and Street Lighting Improvements 1. Petitions for roadway and street lighting projects shall be filed and accepted by the Council prior to January i of the year of construction, The Council may authorize accepting a petition after January by special consent. 2. Projects may be initiated by petition of at least thirty-five percent(35%)of the property owners measured in area and/or frontage, and requires a majority vote of the City Council. Amended by the City Council on 8-21-01 2 Adopted by the City Council on 5-21-96 City of Lake Elmo Public Improvement and Assessment Policy Page 3 3. Projects may be initiated by the City Council in absence of an adequate petition and requires a four-fifths(4/5)majority vote of the City Council. 4. Street light petitioned projects shall be uniformly spread to the benefiting properties. B. Reconstruction I. Petitions for roadway projects shall be filed and accepted by the Council prior to January 1 of the year of construction. The Council may authorize accepting a petition after January I by special consent. 2. The scope of project shall be determined by traffic volumes,and reason for pavement deterioration. 3. Abutting property owners,and property obtaining-access„to a cul-de-sac from the street subject to imorovement3 shall be assessed based on zoning category. The Council will set the appropriate rate for each zoning category. 4. The assessment rate with a zoning category shall be equal throughout the community, independent of project scope. S. The City will assess it share of County Road projects to properties along County roadways in the same manner as City streets. 6. The City participation in projects will be the difference between the project cost and the amount to be assessed. The City's share may include: Municipal State Aids (MSA)on MSA routes, Grants, Capital Improvement Funds, or a Citywide Improvement Utility. 7. Streetlights may be installed as part of a roadway reconstruction project if sixty percent(60%)of the neighborhood signs a petition requesting the installation. The installation costs will be financed as part of the reconstruction project. C. Ma1or Maintenance 1. Overlays to postpone the reconstruction of a roadway shall be assessed to the abutting property owners based on zoning category. The Council will set the appropriate rates for each zoning category. 2. Sealcoating shall not require abutting property participation. 3 Amended by the City Council on 8-21-01 3 Adopted by the City Council on 5-21-96 City of Lake Elmo Public Improvement and Assessment Policy Page 4 3. The City's share of project costs shall be determined by deducting the assessable costs from the project costs. The City's share may be financed with MSA,Capital Improvement funds, Maintenance Funds, or funds acquired thorough a Citywide Improvement Utility. D. Bikeway/Pedway Improvements I. The City may install bikeway/pedways according to the Comprehensive bikeway/pedway plan for the community. The bikeway/pedways should be an eight(8)foot wide asphalt surface'if separated from the roadway surface a minimum of four(4) feet. 2. Bikeways/Pedways may be financed as part of a roadway reconstruction assessment; park dedication fees; MSA, Capital Improvement funds, or funds acquired through a Citywide Improvement Utility. 3. The City will repair and remove snow from all bikeway/pedways. E. Street Ligrht Improvements 1. Streetlights may be included as part of reconstruction and overlay projects if sixty percent(60%)of the property owners petition for the installation. 2. Streetlights installed as part of reconstruction or overlay projects shall be financed as part of the assessed roadway project. F. Utility Improvements(New Construction) 1. Petitions for utility projects shall be filed and accepted by the Council prior to January 1 of the year of construction. The Council may authorize accepting a, petition after January I by special consent. 2. Projects may be initiated by petition of at least thirty-five percent(35%)of the property owners measured in area and/or frontage, and requires a majority vote of the City Council. 3. Projects may be initiated by the City Council in absence of an adequate petition and requires a four-fifths (4/5)majority vote of the City Council. 4. The City's share may be financed with Water/Sewer Access Charge funds (WAC/SAC). 4 Adopted by the City Council on 5-21-96 City of Lake;Elmo Public Improvement and Assessment Policy Page 5 G. Utility Improvements (Reconstruction and Major Maintenance) 1. The replacement of water mains,sanitary sewer mains and service lines within the right-of-way shall be financed out of the Utility Reserve Fund. 2. The property owner shall pay for the replacement of services on private property. 3. Roadway reconstruction and major maintenance projects accelerated because of utility replacement projects shall be financed through the Utility Reserve Fund in proportion to the remaining design life of the street. H. Storm Sewer Projects(New Construction) 1. Petitions for storm sewer projects shall be filed and accepted by the Council before January 1 of the year of construction. The Council may authorize accepting a petition after January 1 by special consent. 2. Projects may be initiated by petition of at least thirty-•five.percent(35%) of the property owners measured in area and/or frontage,and requires a majority vote of the City Council. 3. Projects may be initiated by the City Council in absence of an adequate petition and requires a four-fifths (4/5)majority vote of the City Council. 4. Projects initiated by property owners shall have their participation determined by land use,contributing area and rate of runoff. Project assessments shall be determined by multiplying the accessible area by the Council-established assessment rate taking into account land use and rate of runoff. I. Storm Sewer Projects(Reconstruction and Major Maintenance) 1. Storm.Sewer Projects shall be incorporated and considered as part of roadway reconstruction and major maintenance projects,and assessed as part of the project. V. ASSESSMENT PERIODS DETERMINED BY TYPE OF PROJECT New construction projects may be assessed over a five(5) year period,with the exception of street lighting,which shall be limited to three(3)years. * Reconstruction projects may be assessed over a ten(10)year period. * Trunk water and sewer facilities may be assessed over a twenty(20)year period. * Overlay projects may be assessed over a five(5)year period. 5 Adopted by the City Council on 5-21-96 S City of Lake Elmo Public Improvement and Assessment Policy Page 6 VI. HAUSFU DEFERRALS FOR SPECIAL ASSESSMENTS The City Council will consider a deferment for the payment of special assessments on any homestead property,owned by a person.65 years of age or older or retired by virtue of permanent and total disability for whom it would be a hardship to make the payments. A hardship shall be deemed to exist when the annual principle installment of all assessments levied against the property exceeds two percent(2%)of the adjusted gross income of the applicant as evidenced by the applicant's most recent federal income tax return,and total assets (excluding the homestead property)do not exceed six times the adjusted gross income. The City Council may also determine, on a case by case basis,the existence of a hardship on the basis of exceptional and unusual circumstances not covered by these standards and guidelines, if done in a non-discriminatory manner and without giving the applicant an unreasonable preference or advantage over other property owners. All assessments will continue to bear interest on the unpaid principle balance at the rate established on the original special assessment. The deferment shall terminate and all principle and interest becomes due and payable upon the occurrence of any of the following events: 1. The death of the owner when there is no spouse whoa is eligible for deferment. 2. The sale,transfer or subdivision of the property or any part thereof. 3. The property should lose its homestead status. 4. The City Council should determine that the hardship no longer exists. A review of the hardship will be conducted every three to five years. 6 Adopted by the City Council on 5-21-96 �,EA tOF VI NUN' ES0TA CITIES GOVERNING & MANAGING INFORMATION Special Assessment Guide 515AI A.3 August 2008 ws vNivEFtsl°rr AVE.WEST The League of Minnesota Cities provides this publication as a general s•r.PAUL.hilt/$5103-2044 informational memo.It is not intended to provide legal advice and should not be used as a substitute for competent legal guidance.Readers should PHONE.051)281-NUD consult with an attorney for advice concerning specific situations. -.1'OLL FkEC:(800)995-1122 FAX:(6511 281.1299 ®2008 League of Minnesota Cities WETI;N+WWA14C.ORG All rights reserved Acknowledgements The Special Assessment Guide presents information on a detailed statutory procedure and requires the work of many staff members to create a new revision. The League of Minnesota Cities acknowledges especially the work of its Research department staff attorneys Jeanette Behr and Edward Cadman for their work on this revision. The League of Minnesota Cities also aelmowledges the following professionals for their contributions in producing this Special Assessment Guide: Lee Gustafson,Professional Engineer City Engineers Association of Minmesota St. Paul,Minnesota Corrine A. Heine,Attorney Kennedy&Graven,Chartered Minneapolis,Minnesota Julie Jeffrey-Schwartz,Certified General Appraiser President,Lake State Realty Services,Inc. White Bear Lake,Minnesota 2 LEAGUB OF MINNL'SOTA CITIES Acknowledgements.......................................................................................................................................2 SpecialAssessment Guide............................................................................................................................5 I. What are special assessments?..........................................................................................................5 A. What do special assessments pay for? ..........................................................................................6 B. The special benefit test..................................................................................................................6 C. Practical points to consider...........................................................................................................8 D. Pros and cons of special assessments..........................................................................................I O B. Special assessment policies.........................................................................................................I I F. Programs cities may finance with special assessments...............................................................12 11. Synopsis of procedures...................................................................................................................15 A. Initiation of proceedings.............................................................................................................15 B. Feasibility report..........................................................................................................................17 C. Initial considerations...................................................................................................................17 D. Prepare for the improvement hearing..........................................................................................19 E. Improvement hearing..................................................................................................................20 F. Ordering the improvement.........................................................................................................:20 G. Competitive bidding....................................................................................................................21 H. Prepare the proposed assessment rolls........................................................................................24 I. Prepare for the assessment hearing.............................................................................................24 J. Assessment hearing. ...................................................................................................................25 11.I. Challenges by property owners...................................................................................................26 A. Objections...................................................................................................................................26 B. Appeals to the district court........................................................................................................26 IV. Levying and collecting assessments and interest........................................................................27 A. Payment of assessments and interest..........................................................................................27 B. Postponed assessments................................................................................................................28 C. Deferred assessments..................................................................................................................29 D. Abandoned improvements...........................................................................................................31 V. Tax-exempt property.......................................................................................................................31 A. Other governmental lands...........................................................................................................32 B. Collecting assessments from tax-exempt or railroad property....................................................32 VI. Corrections..................................................................................................................................33 A. Supplemental assessments..........................................................................................................33 B. Reassessments.............................................................................................................................33 C. Reapportioiunent.........................................................................................................................33 D. Tax-forfeited land returned to private ownership.......................................................................34 VILBorrowing for special assessment purposes................................................................................34 A. Interest on improvement bonds...................................................................................................36 B. Interest on special assessments...................................................................................................36 SPECIAL ASSHSSMBNT GUIDE 3 VIII. Charter cities...............................................................................................................................36 A. Special benefit test......................................................................................................................36 B. Assessing unpaid charges............................................................................................................36 C. Voting requirements.....................................................................................................................37 D. Notice of right to appeal....................................:. E. Deferrals................................... ...............................................................................................37 F. Day labor................................. ...................................................................................................37 IX. Fonns..........................................................................................................................................37 4 LEAGUE OF MINNHSOTA CITIES Special Assessment Guide Minn..Stilt.ch.429, Minnesota Statutes Chapter 429(Chapter 429)gives cities authority to levy special assessments.Court decisions and attorney general opinions have added to the complexity of the issue.This Guide addresses the following: I. What are special assessments II. Synopsis of procedure III. Challenges by property owners IV. Levying and collecting assessments V. Tax-exempt and railroad property VI. Corrections VH- Borrowing for special assessment purposes VIII Charter cities IX. Forms i. What are special assessments? Special assessments are a charge imposed on properties for a particular improvement that benefits the owners of those selected properties.The authority to use special assessments originates in the state constitution which allows the state legislature to give cities and other governmental units the authority"to levy and collect assessments for local improvements upon property benefited thereby."The legislature confers that authority to cities in Minnesota Statutes Chapter 429. See Section VIII;Charter castes. A charter city may choose to use either Chapter 429 or provisions of the charter to assess for local improvements but even so state law requires that charter cities follow state law in certain steps of the proceedings,as discussed subsequently. To ensure full protection for property owners, state law and courts applying that law insist on.strict compliance with complex procedural requirements. Because these requirements have legal implications,city councils should have the city attorney guide assessment proceedings. Special assessments have three distinct characteristics: • They are a levy a city uses to finance,or partially finance,a particular public improvement program. • The city levies the charge only against those particular parcels of property that receive some special benefit from the program. SPBCIAL Aswss I:NT GUIDB 5 • The amount of the charge bears a direct relationship to the value of the benefits the property receives, A. What do special assessments pay for.? Special assessments have a number of important uses: • The most typical use is to pay for infrastructure in undeveloped areas of a city,particularly when the city is converting new tracts of land to urban or residential use. Special assessments frequently pay for opening and surfacing streets;installing utility lines and constructing curbs,gutters,and sidewalks. • Special assessments may partially underwrite the cost of major maintenance programs.Cities often finance large scale repairs and maintenance operations on streets,sidewalks,sewers,and similar facilities in part with special assessments. • Another use of special assessments is the redevelopment of existing neighborhoods. Cities use special assessments when,areas age and the infrastructure needs updating. B. The special benefit test Special assessments reflect the influence of a specific local improvement on the value of selected property.No matter what method the city uses to establish the amount of the assessment,the real measure of benefit is the increase in the market value of the land because of the improvement. Under the special benefit test,special assessments are presumptively valid Buzick v.City of Blaine,505 N.W.2d if 51(Minn.1993). EHW Properties v. City of Eagan, • The land receives a special benefit from the improvement. (Minn.Ct.App.1993). • The assessment does not exceed the special benefit measured by Schumacher v.City of Excelsior,427 the increase in market value due to:the improvement. N.W.2d 235(Minn.1988). Tri-State Land Co,v.City of • The assessment is uniform as applied to the same class of property, Shoreview,290 N.W.2d 775(Minn. in the assessed area. 1980). Because special assessments are appealable to district court,it is important that the city considers the benefit to the property as a result of the specific improvement.Councils often do this by retaining a qualified,licensed appraiser.At the hearings on.the assessments the appraiser presents a written or oral report on the increase in market value as a result of the improvement. 6 LmGuE OF•MtNNGsdrA CmEs Buettner v.Ciry of St.Cloud,277 A special assessment that exceeds the special benefit is a taking of property N.W.2d 199(Minn.1979). without fair compensation and violates both the Fourteenth Amendment of SoutInver ro County Club.v.City of the United States Constitution and the Minnesota Constitution.Property Inver Grove Heights,263 N.W.2d p y 385(Minn.1978). assessed must enjoy a corresponding benefit from the local improvement. Mirnr.Const.art X.g 1. This is a different concept than property tax valuation.The Minnesota Constitution states: "The Legislature may authorize municipal corporations to levy and collect assessments for local improvements upon property benefited thereby without regard to cash valuation."As the courts have made clear,the special benefit is the increase in market value of the land as a result of the improvement. Ewert v.City of Winthrop,278 If a city's assessment is challenged in district court,the assessment roll N.W.2d 545(Minn,1979). constitutes prima facie(or initial)proof that an assessment does not exceed the special benefit. The party contesting the assessment must introduce evidence sufficient to overcome that presumption.If the evidence as to the special benefit is conflicting it is the responsibility of the district court to determine whether the assessment exceeds the market value increase and,if so,by what amount. Bisbee v.City offiWivront,593 For this reason,the city's assessment method should approximate market N.W.2d 714(Minn,Ct.App.1999). analysis.A formula that does not consider an analysis of the increase in Quality Homes,Inc.v Village of market value of each parcel may be invalid.For instance a method using New Brighton,289 Minn.274,193 p Y g N.W.2d 555(1971). only front-footage.in calculating assessments for street improvement Anderson v.City of Bemidji,295 projects based on costs of street improvement projects from previous'years N.W.2d 555(Minn.1980). has been found arbitrary and invalid on its face. Village of Edina v.Joseph,264 Minn.84,119 N.W.2d 809(Minn. 1962). Roberts v.city gfOy.stal rake,2003 Courts often uphold special assessments based on evidence from the city's WL App. 4,2,A03-172(Minn.Cc. qualified and licensed appraiser that the special ecial benefit did not exceed the App.Nov,Nuv.4,2003). q PP P Alen v.Cky of.A4inneapolts,2003 increase in market value as a result of the improvement. WL 1962012,C1-02-1500(Minn. Ct.A,pp,April 23,2003). Haverberg v.City oj.Ma&on,2003 W1:.178797,C8-02-1146(Minn.Ct. App.Jan.28,2003). SYp.C1AL ASSESSMENT GUIDE 7 See Eagle Creek T o mhomes v.City However,in recent unpublished opinions,the appellate courts have cj'Shakojuee,614 N.W.2d 246 (Minn.Ct.App.2000);3horm routinely upheld decisions that went against the city because the district E mlb'!rust v.Milne Township, court found a lack of adequate evidence of a market value increase equal to 2(H)2 WL 555323,C9-01-1549 or exceeding the amount of the special assessment. (Minn..Ct.App,April 16,2002); Belanger v.City gt'Long I ah,2000 WL 563896,C1-99-1347(Mine.Ct, App.May 9,2000);Reiling v.Cl :o,f Lino.Lakes 2000 WL 369384.C'7- 99-1594(Minn.Q.App,Apr.11, 2000);Anderson v.City afBitffWo, 2000 WL 31.791,C7-99-641(Minn. Ct.App.Jan.18,2000);Rohlfng v. Clay uf'Chmnplln,1999 WL 71484, 0-98-.1209(Minn.Ct.App.Feb. 16,1999)(unpublished deeisioan); Gidim-cl v.City of Lake Park,1997 WL 457453,C8-97-207(Minn.Ct. App.Aug.12,'1997);In re Appeal by F..amide 1leiviopment,C40.1- 582;C6-01-583 200.1 W:L.1035280 (Minn.U,App.2001)(unpublished decision). In re Appeal by Gastside Especially with regard to street improvements,it may be very difficult to Development,inn. t. pSe8(), demonstrate that there is an significant increase in market value as a result fs4-()1-SS2(Minn.Ct.App.Sept.11, y g 2001), of the resurfacing or reconstruction. Rlomgulst v.City of'Fagan,2001. WL 436187,C2-00-1591(MIUR.CL App.May 1,2001). Johnson v.City ef.liagan,584 When a court disallows a portion of an assessment because it was in excess N.W.2d 770(Minn,1998). of the benefit to the specific property,the city may not try to recoup the Inn 32,2e 14,W.sd 44 310 disallowed amount through another method—such as b imposing a charge Minn.32,245 N,w.2d 445(1976). g y p g g for a utility line on only that property and not on the other properties involved in the assessment.When the cost of an improvement exceeds the benefit,the difference must not be borne by a particular property,but instead by the city as a whole. Nordgren v.City of rMaplewood 326 The Minnesota Supreme Court has held that connection charges,based on N.w.2d 640(Minn.1982). a different state law,are not assessments and may be imposed on top of ith stet'Spring,v. 444.075.Sm prior assessments. One unpublished Court of Appeals decision,however, 2001 WL 146 4455k( 01-370' held that the cost of the connection charges should be included with the (Tv itui.CIL App.Nov,20,2001). amount of special assessments in determining the special benefit to the property. C. Practical points to consider The following three strategies helps avoid the problem of proceeding on estimates that do not equal actual revenue: 8 LEAcuE of MJNN]SOTA CrriE3 '�. Coordinating procedures Chapter 429 allows coordinating the special assessment process with the competitive bidding process—and may protect the city from successful appeals.and ensuing budget shortfalls.The city may determine the assessment amount and prepare the assessment roll before work on the 2Q08 Minn.Laws ch.207§4 local improvement even begins.Effective Aug. 1,2008,the competitive amending Minn.Stal.§471.345, bidding threshold for.all-cities,regardless of size,is$100,000.However, Minn.Stat.§429.041,subd.1. this new higher bid trigger does not apply to local improvement projects under Chapter 429 because the law governing local improvement contracts was not changed. Thus,such projects must still be bid if the estimated cost exceeds$50,000.If needed,the city may advertise forbids and allow sufficient time after the bid closing date to permit the city to prepare the assessment roll based on the lowest responsible bid the city.receives and to hold the assessment hearing(the second hearing)based on that low,bid. The city then proceeds with the actual work of the project after certification of the assessment roll and the 30-day appeal period is over. Using this coordinated procedure means the city knows both important numbers up front--how much money will be available through special assessments and the cost of the local improvement.Because the time for appeals is over before the contract is issued,the city will not need to cover potential budget shortfalls that may occur if a property owner successfully challenges a special assessment or the lowest bid comes in higher than expected. This Guide and the forms attached track this coordinated procedural format. For larger projects in particular,city councils should seriously consider having provisions in the specifications that give the city more time to accept or reject bids.Either the city can snake the improvement contract conditional on the absence of objections filed within 30 days after the assessment hearing,or the city may specify(in the bid documents,or specifications)that the improvement work will not begin until 90 days after the city receives bids.Under both strategies,the council would not enter into a binding contract,nor would any improvement work start until after the improvement and assessment hearings and the time for appeals elapses. 2. Specially assessing less of the cost See Section IIA2:By council. The city can also avoid appeals by paying a substantial portion of the cost of all improvements out of general funds.The larger the portion of cost the city assumes,the less the chances that any individual assessment would exceed the benefit from the improvement as measured by the increase in market value.Indeed,the council.can proceed with the proposed assessment based on estimates--and plan to use monies from a reserve fund from general taxes and other uncommitted sources of revenue making up any difference between the assessments and the project cost. SPECIAL ASSESSM13NT GUIDE 9 3. Waivers Razic v.City of Eden Prairie,479 The council might obtain,under certain circumstances,waivers of rights to N.w.2d 417(Minn.Ct.App.199,1), appeal before entering into the contract and ordering the improvement.Any Minn:Brat.§429.081. waiver of rights is effective only for the amount of assessment agreed on Mimi.Stat.§462.3531. by the city and property owners or developers.An effective waiver of See Form 2, rights of appeal is essentially a contract and may contain additional conditions providing for the increases in assessments that will not be subject to appeal;consult the city attorney for specific advice-on effective waivers. D. Pros and cons of special assessments Following is a summary of the advantages and disadvantages of special assessment financing.The council can avoid many of the disadvantages with adequate plans and a long-range capital improvement program. Advantages of special assessment financing include: • Special assessments are generally a dependable source of revenue. • Special assessments are a means of raising money outside city debt and general property taxes. (Special assessment bonds do not count toward statutory debt limitations.) • Special assessments provide a means of levying charges for public services against property otherwise exempt from taxation. • Special assessments lower the cost to the community of bringing undeveloped land into urban use. • Charging the property owner for the benefit received prevents or minimizes the possibility that a property owner will reap a financial profit from the improvement at the expense of the general taxpayer. Disadvantages of special assessment financing include: • The difficulty and expense in establishing the special benefit to the property. •. The difficulties in special assessment administration.The administrative procedures require careful execution in order to avoid litigation. • Cities have at times used special assessments to pay for premature public improvements.Because the city generally bears some of the cost of every public improvement,land speculators sometimes urge councils to do unjustifiable special assessment programs. • The availability of special assessment financing often tempts city officials to underwrite the cost of governmental programs that should be an obligation of the entire city. 10 LEAGUE or MINNESOTA CITIHS • Unless special assessments conform to a city's long-term financial and capital improvement plans,they can subject a city to two serious financial dangers.First, if a city frequently undertakes special assessment bond issues backed by the full faith and credit of a city in an unplanned manner,city credit might be overextended.This leads to higher interest charges on all city and school district borrowing and increases the possibility of default. Second,placing too heavy a burden on individual property owners(with special assessments and regular property taxes)runs the risk of increasing tax delinquencies and potentially jeopardizes a city's credit and borrowing position. • From the council's point of view,the public's reaction to a proposed special assessment might be the most important determinative factor. While taxpayer resistance is usually minimal,this is not true in every instance. Special assessment programs receive much greater public support if the council adequately informs people of its intentions to make the improvement,the benefit the improvements will provide,and the necessary financial demands. E. Special assess ment:policles See Section IB:The special benefit Some cities have attempted to minimize the controversy over special test. assessment financing by adopting a special assessment policy(not an ordinance).Whatever the policy provides it must adhere to the rule that the amount of a special assessment cannot exceed the special benefit to the property as measured by increase in market value due to the improvement. With frequent turnover on the council a policy may increase consistency in the use of financing improvements with special assessments. Justifying council decisions in a particular case may also be easier with a.policy in place.An updated and current special assessment policy may also facilitate the development of a long-range capital program for public improvements. A policy should reflect basic procedural decisions on financing local improvements--decisions that the council must think through carefully, taking into account past practice,equity,revenue productivity,political acceptability,and the rest of the city's revenue system.Practically speaking,many city special assessment policies provide procedures for city-specific issues,such assessing oddly shaped lots,corner lots,lots with septic systems and what method of assessment the city uses.(E.g. including but not limited to the area method of assessment,unit method or a per lot assessment).Cities may wish to work with citizens,appraisers,an attorney and city engineers to develop a special assessment policy that fits the unique needs of their city. SPECIAL ASSESSMENT GuloE 11 F. Programs cities may finance with special assessments Generally,cities use special assessments to at least partially finance a variety of public improvements.Cities may also use special assessments to collect certain unpaid service charges,discussed in the next section. 1. Local improvements Minn.Stat.§429.021. Cities are statutorily authorized to finance the following public improvements at least partially through special assessments: Minn.Stat.§429.021,suhd.10). Streets,sidewalks,alleys,curbs and gutters: Acquiring,opening,and widening streets and alleys;constructing,reconstructing,and maintaining sidewalks,streets,gutters,curbs,and vehicle parking strips. (These projects may include charges for beautification,storm sewers,or other street drainage systems,and installation of connections from utilities to curb lines.) . Minn.Stat§429.021,subd.1(2). Storm and sanitary sewer systems:Acquisition,development, construction,reconstruction,extension,and maintenance of storm and sanitary sewer systems including outlets,treatment plants,pumps,lift stations,and storm water holding areas and ponds. Mina Stat.§429.021,subd 1(3). Steam heating mains: Construction,reconstruction,extension,and maintenance. Minn.Stat.§429.021,su17t1.1.(4), Street lighting systems:Installation,replacement,extension,and maintenance. Minn.Stat.§429.021.subs.1(5). Waterworks systems:Construction,reconstruction,extension,and See also Minn.star.§444.075. maintenance.(This includes all appurtenances of a waterworks system, See A.(:i.OP.387-B-10(Mar.8, even the treatment plant.)Special assessments may also pay for the 1.993). infrastructure necessary to maintain water,sewer,and storm sewer Minn.Stat.§429.091.subd.7a. systems;and for the payment of any obligations issued to pay the costs of the waterworks facilities and systems or to refund bonds issued for those purposes. Minn.stale.§429.021,sulxi.1(6). Parks,playgrounds,and recreational facilities: To acquire,improve and equip parks,open space areas,playgrounds,and recreational facilities within or without the corporate limits. Minn.star.§429.021,subd.10. Street trees:Planting,trimming,care,and removal. Minn.Stat.§429.021,subd 1(8). Abating nuisances:Includes,but not limited to,draining and filling swamps,marshes,and ponds on public or private property. Minn.star.§429.021,subs.1.(9). Dikes and other flood control works: Construction,reconstruction, extension,and maintenance. Minn.Stat,§429.021,subtl. 1(10). Retaining and area walls,including highway noise barriers: Construction,reconstruction,extension,and maintenance. 12 L$AouE of MrNNEsoTA Cats Mi m.star.§429.021,subd.1(11).; Pedestrian skyway systems:Construction,reconstruction,maintenance, See also,Minn.Slat.§429.011. and promotion of bridges,overpasses,hallways,plazas,elevators,and sulxt.3, escalators on public or private property.A petition for a pedestrian skyway system must meet unique statutory requirements. :Minn.slat.§429.02.1,sv1x1.1(.12)• Underground pedestrian concourses:Construction,reconstruction, maintenance,and promotion of tunnels,arcades,plazas,elevators,and escalators. Mbm,slat.§429.021,subd..103). Malls:Acquisition,construction,improvement,alteration,extension, operation,maintenance,and promotion of public malls,plazas or courtyards. Minn.Slat.§429.021,subd.1(14). District heating systems:Construction,reconstruction,extension, and maintenance of district heating systems. Mitut.star.§429.021,subd.1(15); Fire protection systems: Construction in existing buildings upon petition See also,Minn.star.k 429.031, of owners.A petition for a fire protection system,on public or private subd.3. P P P property,must meet unique statutory requirements. Minn,slat.§429,021,s,ibd.1f16). Highway sound barriers:Acquisition,construction,reconstruction, improvement,alteration,extension,and maintenance of highway sound barriers. Minn.Stat.§429.021,subd.1(17). Gas and electric distribution facilities:Improvement,construction, reconstruction,extension,and maintenance of gas and electric distribution facilities owned by a municipal gas or electric utility. Mium star.§429.021,subd.1(18). Markers relating to 911 services:Purchase,installation,and maintenance of signs,posts,and other address markers related to the operation of enhanced 911 services. Minn.stet.§429.021,subd.1(19). Internet access:Improvements,construction,extension,and maintenance of facilities for Internet access,and other communication purposes,if the council finds that the facilities: ■ Are necessary to make Internet access(or other communications services)available that are not and will not be available through other providers or the private market in the reasonably foreseeable future ■ Provide services that will not compete with service provided by ..private entities. Minn.Slat.§429.021,subd.1(20). Burying overhead utility lines within the public right-of-way: Cities can Minn.stat.§429.031.subd.3. only finance the burying of overhead utility lines with special assessments in response to a petition from all the abutting landowners.In addition, burying the lines in the public right of way must exceed the utility's design and construction standards,or those set by law,tariff,or franchise. In that situation all or a portion of the costs associated with burying the lines,or altering a new or existing distribution system,can be specially assessed as agreed to with an electric utility,telecommunications carrier,or cable system. Minn.stat.§459.14. Parking facilities:Acquisition and construction. SPECIAL ASSESSMENT GUlm 13 Minn,stat.429.011,aubtl.3. On-site water contaminant systems: Installation of publicly or privately Minn.Stat.§429.011,subd.16. owned pipes,wells,and other devices and equipment in or outside a building for the primary purpose of eliminating water contamination caused by lead or other toxic or health threatening substances in the water. A petition for an on-site water contaminant system must meet unique statutory requirements. Joint Ltdep,seh.Dist.No.287 v. Chapter 429 defines a number of projects as local improvements that may City of Brooklm Par1r,256 N.W.2d benefit the entire city,such as a,sewage disposal plant,interceptor sewer or 512 1977). 51 (Minn.(T nn.1 7 Burnsville,31 o water treatment plant. The constitutional provision authorizing special Minn.32,245 N.W.2d 445(1976). assessments for local improvements may allow these kinds of projects as long as they confer a special benefit on assessed property that the improvements do not confer upon the city as a whole. 2. Assessing unpaid special service charges Minn.9W.§429.101.,subd.1. Cities may,through an ordinance,require that property owners perform See also,Mimi.Stat.§412.221, certain property-related special services--or the ordinance can allow that S°b`t 6. the city performs the special services and sends a bill to property owner for the work.If the property owner fails to pay,the city may assess for all or 2008 Minn.Laws ch.366 art,5,§42 any part of the unpaid charges as a special assessment against the property amending M-inn.Sta1.§429.1.01., benefitted.When assessing unpaid service charges,cities must follow subd.l', g r p g Minn.Stat. 429.101,subd.2. some,but not all,of the special assessment notice,hearing and calculation procedures in Chapter 429. The law specifically lists the special services that cities can specially assess if not paid by the property owner or occupant. Statutory cities cannot add the following to this list,but charter cities may be able to add to it by charter amendment: Minn.Stat.§429.101,subd.I(1). • Snow,ice and rubbish removal from.sidewalks. Mimi,Stut.§429.1Q],subd.1(2), s Weed elimination from streets and private property. Minn.Stat.§429.101,suhd.l(3). • Removal or elimination of public health or safety hazards from private property,excluding any hazardous or substandard buildings. Mirut.Stat.§429.101,subd.1(4). . Installation and repair of water service lines,and sprinkling and dust treatments. Minn.slat.§429.101.,subd.1(5). • Trimming and care of trees,and removal of unsound trees. Minn.Stat.§429301,subd.1(6). * Treatment and removal of insect-infested or diseased trees on private property and the repair of sidewalks and alleys. Minn.Stat.§429.101,Wbd.1(7). . Operation of a street lighting system. M'tun.Stat.§429.10.1,subd.1(a). • Operation and maintenance of a fire protection or a pedestrian skyway system. 2008 Minn.taws rat.366 art,5§42 . Inspections related to a municipal housing maintenance code violation. amending Minn.Stat.§429.10 L subd.1(9). 14 LBAGUE OF MINNESOTA CITIES Minn.Staff.§429.101,subd.1(10). . Recovery of payments to rehabilitate and/or maintain safe and habitable housing conditions over the useful life of a house or land- including payment of utility bills and other services,even if provided by a third party in rental situations. Minn.staL§429.101,su1A.101). . Painting the exterior of a structure to remedy a municipal code violation. 2008 Minn.Laws ch.3661rt.5§42 • The recovery of delinquent vacant building registration fees under a amending Minn.Slat.§429,10.1, municipal program designed to identify and register vacant buildings. subd.1(12)) Minn.star.§443.015. • Garbage collection and disposal. Mann stac•§429.10 i,sued 1 ft�). Again,a city cannot exercise this a-Vthority until passing an authorizing ordinance providing that such matters are the responsibility of the property owner. (The ordinance cannot require that property owners perform street sprinkling or other dust treatment,alley repair,tree trimming,care,and removal or the operation of a street lighting system.) Minn..slat. 429.101,subd.3: Payments for unpaid special service charges may be made in one installment or ten equal installments,whatever the council decides.Cities may issue bonds or other debt instruments to finance the cost of special services in the same manner as for local improvements,with three modifications: • These obligations may not run for more than two years. • The amount of debt a city issues at any one time may not exceed the estimated cost of the work it will do during the next six months. • The council must set up a separate fund for each of the different services financed through this procedure. ..II. Synopsis of procedures The following discussion is a guide,but not legal advice,as to the proper fulfillment of special assessment procedures.The council should consult an attorney familiar with the individual project to make sure the city follows Gadey v.City of Minneapolis,517 all legal procedures.If the proper procedures are not followed,a court may N.W.2d 344(Minn.CL App.1994). get the assessment aside and order a reassessment. Minn.Slat.oh.429. In general,Chapter 429 proposes the following steps. A. Initiation of proceedings Minn.slat.§429.031. Either a petition from affected property m ners or the council initiates Chapter 429 proceedings. SPECIAL Assmmiiw GUIDE 15 1. By petition Minn.Star.§429,031,subJ.I(f) If the council chooses to proceed with an improvement based on a petition See Form 3:(petition for Loral (they are not required to do so)it must have the signatures of the owners of Improvement(more than 35%of property at least 35 percent in frontage of the property bordering the proposed ty owners)) ' improvements. Computing the 35 percent is not always easy. According to the Minnesota Attorney General: A.G,Op.396g7(June 9..1958.) • The 35 percent requirement applies to the entire area petitioning for the local improvement so each specific street need not meet it. • Cities are not owners for purpose of the 35 percent requirement; A,G.01).38'7-B-10(June 29,1954). exclude city-owned property when figuring the number of A.G.Op.408-C(October 28,1954). owners who must sign a petition requesting an improvement. • The state is not an owner in this context and cities need not consider state-owned land when determining the 35 percent petition requirement. If the council relies upon the petition as its basis for proceeding,it cannot make a substantial change in the nature of the improvement from that asked for in the petition.For example,it may not order an improvement for water and sewer when the petition has asked for water alone,or add curb and gutter to a petition for blacktop. Sea Form 1:(petition for Local In some cases,for example buried utility lines, 100 percent of landowners Improvement(100%of property must petition for an improvement. owners} p P Minn.slat.§429,035. The council must pass and publish a resolution determining whether the See Form 4. petition is legally sufficient or not.Any person directly affected by the Minn.Stat.§429.036. resolution may challenge the council's determination(as to the legal sufficiency of the petition)in district court.The appeal must be made within 30 days and include a bond of$250. 2. By council Minn.Stitt.§429.031,subd.1(1). The council certainly may act on its own initiative in proposing a local See Form 4A. improvement and ordering a feasibility report.As a practical note,an See Section 11 D1:Voaang extraordinary majority vote from the council is not necessary to initiate the requirements for ordering the proceedings. (Later in the process,a four-fifths council vote will be Improvement. required to.pass the resolution ordering an improvement initiated by council.)The council must calculate the cost of the improvement or direct staff to do so. 16 LEAGUE of MiNNEsoTA CITIES I B. Feasibility report Minn.Stat.§429.031,subd.t(b). Whether initiated by petition or by council,Chapter 429 requires that the city engineer,or another person with similar skills,prepare a feasibility report.(Bond attorneys require a certified copy of a feasibility-report before issuing bonds to finance a local improvement.)The feasibility report must cover such factors as whether the project is necessary,the availability of money in the general fund to pay the city's share of the cost,an estimate Mum.Stat.§429.031,sand,l(d). of that cost,whether the improvement is cost effective,and any other information necessary for council consideration.Note:If someone other than a city employee prepares the report,the law prohibits using a See Form 5. percentage of the costs of the proposed improvement as a basis to pay.for the report.The feasibility report must also include the estimated cost of the improvement as recommended. Since a reasonable estimate of the total amount to be assessed,and a description of the methodology used to calculate individual assessments for affected parcels,must be available at the hearing,it could be part of the commissioned report.The feasibility report is integral to the assessment process.Best practice suggests that the city council pass a resolution receiving the report and provide preliminary notice of the improvement. C. Initial considerations Overall the law requires two public hearings commonly known as an improvement hearing and an assessment hearing;in between these two public hearings councils may order the improvement,decide how to. construct the project and tabulate an assessment roll.This Guide outlines some initial considerations,describes the improvement hearing,discusses ordering and constructing the improvement;and subsequently addresses the assessment hearing. 1. Determining benefit districts Determining what area benefits from improvement projects,or the area against which the city will levy assessments,is a major policy decision for the city council.The benefit district(or assessment district)varies with the kind of improvement.For some improvements,such as a new water tank, the area benefited might be very large.In levying an assessment to finance the tank's construction,for example,the council might assess the entire See Section 1B:The special benefit area the tank services.The special benefit test still applies.City staff,city test• engineers,consultants and attorneys may provide the basis for council to determine what area or district to assess for a specific improvement because that area benefits from the improvement. SPCCIAL Assussm)-NT GUIDE 17 2. City's share Minn.star.§429.061,subd.1. At any time before or after the city actually incurs expenses for the See Form 12,1. improvement,the council must pass a resolution determining how much the city plans to pay(above and.beyond what it may decide to pay for city- owned property in the assessment area)and separate from amounts to be assessed.Cities may assess the cost of an improvement to property benefited Minn.Stat.§429,051,applied in In whether or not any part of the cost of the improvement is paid from the Re Mackubin St.,279 Minn.193,155 county state-aid highway fund,the municipal state-aid street fund or the N.W.2d 905(Minn.1968). trunk highway fund.Best practice suggests the council work with an appraiser and an attorney to determine the appropriate city share of a particular project. See Section IB:The special benefit The council must also decide,with consultation from staff and consultants, test. which cost allocation methodology most nearly equates costs and benefit. Such methodology is often described as unit or area charges and involves classification of assessed properties. (The third prong of the benefit test requires a uniform assessment applied to the same class of property,in the assessed area.)Methodology may address the treatment of corner and odd- shaped lots.Many cities have adopted a policy of paying for all intersections,crosswalks,curb returns,and similar parts of public improvement projects not immediately fronting on private property. Other communities distribute the same costs over the benefited area. 3. Non-abutting property Normally,cities assess all properties abutting or bordering on the improvement,but the council may wish to levy assessments against adjacent,non-abutting properties if the properties benefit from the improvement. 4. Service laterals See Form 8. City utility ordinances often require that property owners maintain private water or sewer service laterals. "Service lateral'means an underground facility that is used to transmit,distribute,or furnish gas,electricity, communications,or water from a common source to an end-use customer. Minn.R.7560.0100,subp.12. A service lateral is also an underground facility that is used in the removal See also"Utility Marking Rule," of wastewater from a customer's premises.When an improvement project Minnesota Cities(June-July 2008, requires new service laterals,and the city's ordinance assigns responsibility p'6). for service laterals to property owners,the city may require that property Mimi.R.ch.7560. owners install or replace them.If the property owner fails to do so,the city may(with notice)install or replace the service lateral and charge the cost to the property owner.Note:under state utility marking rule,cities must locate the portion of the service lateral within the public right-of-way. 18 LEAGuEOP MINNESOTA CITIES 5. May omit improvement hearing Minn.Stat.§429.031.subd 3. The council may omit the improvement hearing if 100 percent of the See Form 1;Petition for Local affected landowners sign the petition requesting the improvement. Cities Improvement(100°/a of property oners) should be aware that the law is not as clear on omitting a public hearing where the city pays for any portion of the petitioned for local improvement. In that case,where landowners.do not pay all the costs of the local improvement,cities may still want to hold both public hearings. 6. Two or more simultaneous local improvements Minn.Stat.§'429,021,subs.2. If a city proposes undertaking two or more local improvements simultaneously the city does not need to issue separate notices and hold separate improvement hearings on different dates.However,the notice should describe each improvement separately,stating the estimated cost for each one and noting that there will be a separate hearing,even if held.one after the other on each improvement. 7. Local planning agency review ldr nn..Stat.§462.356,subd.2. If a city has a comprehensive plan,the council may not approve a capital improvement.project until the local.planning agency reviews whether the improvement complies with the comprehensive plan and reports its findings to the council in writing.(Capital improvement simply means the basic facilities,services,and installations needed for the functioning of a city,including transportation,water,storm water,wastewater plants and pipes,and so on). The council may--by resolution adopted by two-thirds vote--dispense with this requirement to send the capital improvement to the local planning agency for review if,in the council.'s judgment,it finds that the proposed capital improvement has no relationship to the comprehensive plan. D. Prepare for the improvement hearing The purpose of the first hearing is for the council to discuss a specific local improvement before ordering it done.The council considers all the information in the feasibility report and any other information necessary for council deliberation. 1. Publish notice of the improvement hearing Minn.Stat.§429.031,subd.1(a). The city must publish notice of the initial public hearing(the improvement Sae Porn,6. hearing)on the proposed project twice in the official newspaper,stating the time and place of the hearing,the general nature of the improvement,the estimated cost,and the area proposed to be assessed. The notices must appear at least one week apart.At least three days must elapse between the last publication date and the date of the hearing. SPECIAL ASSESSM13NT GUIDE 19 2. Mail notice of improvement hearing Minn..Stat.§429.031,sued.I(a). The city must maid a notice once to each property owner in the proposed assessment area,at least 10 days prior to the improvement hearing that states the time and place of the hearing,the general nature of the improvement,the estimated cost and the proposed assessment area.The notice must also contain a statement that a reasonable estimate of the cost of the assessment will be available at the hearing, Cities will want to use great care when notifying citizens about assessment Mapmler v.Town of Center,346 proceedings.An accurate description of the assessment area is important. N.W.2d 133.(Minn.1984). The law requires detailed and careful notification to communicate which property owners face paying assessments for local improvements. According to the statute,failure to give mailed notice of the improvement hearing will not invalidate subsequent assessment proceedings.In spite of this statutory language one case found that failure to include the correct information in mailed notices invalidated the entire special assessment proceeding on that property. Minn.Stat.§429.031,subd. 1. Tax exempt properties or those not listed on county tax records potentially See Section V11:Exemptproperty pose problems for cities when notifying property owners about public hearings regarding special assessments. Cities may use any"practicable Minn.Stat.§303.10,subd.1(1), means"to determine the owners of such property.This could include hailing notice to the owner's principal office in the state or the owner's Minn,stnt.§435.19,subd.2. registered business office.Notice to other governmental entities must be sent out at least two weeks before the improvement hearing,by registered or certified mail to the head of the instrumentality,department or agency having jurisdiction over the property. E. Improvement hearing In re ChannelLane,444 N.W,2d At the improvement hearing,interested persons may voice their concerns, son(Minn.ct. 1989). whether or not they are in the proposed assessment area.A reasonable Minn.Stat.§429,09,031,subd'1. estimate of the total amount to be assessed and a description of the methodology used to calculate individual assessments for affected parcels must be available at the hearing.If the council rejects the project,it may not reconsider that same project unless another hearing is held following the required notice.The council must prepare a record of the proceedings and make written findings. Minn.Suit.§429.031,subd.1(fl• The council may adjourn and subsequently continue the improvelrlent hearing.To provide proper notice,before the improvement hearing is adjourned,the council must state on the record,the date,time and place of the continuation of the improvement hearing,if any. F. Ordering the improvement Minn.star. 429.031,subd.10). A resolution ordering the improvement may be adopted at any time within six months after the date of the improvement hearing. 20 LEAGUE OF MINNNSOTA CITIES 1. . Vote requirements for ordering the improvement Minn.Stat.§4:9.031,subd.l(t) If the improvement is made pursuant to a legally sufficient petition from property owners,the council adopts the resolution by a simple majority Nastrum Y.City of Blaine,sls vote of all members of the council.If there is not a petition, adoption N.W.2d374,(Minn.1994). requires a"super-majority"vote,meaning:the council can only adopt the See Form 7A(Alternative Resolution Ordering Improvement resolution by a four-fifths vote of all members of the council. (If the mayor and preparation of Plans) of a charter city has no vote or votes only in case of a tie,the mayor is not See Form 7(Resolution Ordering considered a member for the purpose of determining a four-fifths majority Improvement and Preparation of vote.) Plans). Minn.Stat.§462.356. There is another voting quirk tangentially related to ordering the improvement;as noted above,if a city with a comprehensive plan determines that the improvement has no relationship to the plan,it need not send the proposed capital improvement to the planning.agency for review; however;the council must adopt such a resolution by a two thirds vote. 2. Time limits for focal improvements Minn.Stat.§429.031,sub&I(A The resolution ordering the improvement may be adopted at any time within six months after the date of the improvement hearing. Minn.Stat.§429.041,subd,1. Either arrangements for day labor or a contract must be made within one Minn.Stat.§435.19 t. year of adopting the resolution ordering the improvement--unless the See Section IC:Practicalpoints to council specifically states a different timeframe in the resolution ordering consider_ the improvement. G. Competitive bidding See Form 10. The law permits the council to carry out,in advance of the assessment hearing,all the steps prior to,but short of,actually issuing of a contract for the improvement.Thus,if the council wishes to provide firm estimates of costs at the hearing,it may,in addition to the required preliminary report, prepare completed plans and specifications,advertise for bids,and open and tabulate them before the assessment(second)hearing. See C omnetttive Bidding Once a city council orders a public improvement,staff or consultants Requirements in Cities,LMC prepare the necessary plans and specifications and the council either: Information Memo. See Form 9. • Contracts for all or part of the work to be performed by outside parties, or • Orders all or part of the work to be done by day labor(city employees)and merely contracts for any necessary materials and equipment. In either case,contracting law applies.Consult the city attorney to coordinate the contracting process in combination with the special assessment process and remember to include the city.'s right to reject all bids in advertisements and bid specifications. SPECIAL.AssE wiwr GuiDE 21 1. Performance by contract Minn.scat.§429.041,subd,2. The municipal contracting law,or competitive bidding process,applies to See Form 10. most contracts for local improvements.If a contract is likely to exceed Minn.Stat.§429.041,subd.4. $50,000,cities must use municipal contracting procedures,which include See Competitive Budding the"best value"alternative in some situations.There is an exception to the Requirements in Cities,LMC competitive bidding requirement;the council may order the use of day Information Metno. labor{city employees}discussed subsequently for grading,graveling or bituminous surfacing of streets and alleys regardless of the estimated cost. Minn.Stat.§429.041.subd.t. Cities should remember that citizens may challenge special assessments in See Section ICI:Coordinating district court.If a court reduces the amount of a special assessment,the city procedure. has less money than anticipated to pay for the work.For this reason,cities Minn.Stat.§429.041,aubd.2. may want to coordinate the timing of the competitive bidding process and See Form 20. the special assessment process. Mimi.stat.§429.041,subd.2. When contracting for an improvement,the council must require See Form 21. the execution of one or more written contracts which comply with relevant M3.nn,scat.§574.26 subd.2. public contracting law.Also,contractors must give the city both See Form 22,22A and Form 22B performance and payment bonds The council must award the contract to the lowest responsible bidder or it may reject all bids.Note:the attorney general suggests that cities should take great care in specifying the contractual obligations of both parties in A.G.rnemorandtnn to public bid advertisements. Cities may want to address the eity's right to reject all officials(Feb.22,r974). bids in the bid advertisements and in the bid specifications.If any bidder to whom a contract is awarded fails to enter promptly into a written contract and to furnish the required bond,the defaulting bidder shall forfeit to the municipality the amount of the defaulter's cash deposit,cashier's check,bid bond,or certified check,and the council may then award the contract to the next lowest responsible bidder. Mimi.Stat.§429041.subd.6. State law governs ongoing payments to contractors performing work on Ste Form 23. local improvements.Cities may retain 5 percent of the amount the contractor actually earns each month. The percentage retained protects the city's interest in getting the work done satisfactorily.The city engineer See Form 25. recommends to the council when such retained funds should be released See Form 26. and final payment made to the contractor. The city council may accept the work by resolution.However,if the city fails to pay the amount due within 30 days of a monthly estimate,or 90 days after the final estimate,the city must pay interest on the past due amount as prescribed by law. Minn,Stat.§290.97. Note: Cities may not make final payment to a contractor until the MinuesotaDepartment of Revenue contractor has shown proof of compliance with the state income tax Form.IC-134 withholding requirements.The Department of Revenue requires all contractors and subcontractors to file a Form IC-134.to show compliance with the withholding requirements.This certificate is the contractor's proof of compliance.A city should request a copy of this document from contractors before making the final payment on a contract. 22 LEAraw OF MINNESOTA CITIES Minn.Stat.§429.041,subd.2. If the contractor improperly constructs or unreasonably delays work on the See Form 24. local improvement,the council may order suspension of the work at any See Forms 27 and 28. time and re-let the contract,or order reconstruction of any portion of the work improperly done.If the cost of completing or reconstructing the improvement is less than$50,000,the council may do it by use of day labor. Minn.Stat.§429.041,subd.7. Chapter 429 provides that.once work begins on an improvement involving See Form 11 and 29A. a unit price contract,the council may,without advertising for bids, authorize changes to include additional units of work at the same unit price. This may be done,however,only if the additional work costs no more than 25 percent of the"original contract price."To determine the"original contract price"multiply the estimated number of units required by the unit price. 2. Day labor Minn.Stat.§429.041,subd.1 and 2. Using day labor,or city employees,means there is no contract to bid out for labor but there may be a contract to bid for materials and equipment. See Forms 27,27A,28,29,29A, The city may use day labor in the following situations: 29B. • the estimated contracts are under$50,000,or • the improvement is grading,graveling or bituminous surfacing of streets and alleys,or • there are no bidders on the project,or Minn.Stat,§410.01. . if the only bids the council receives exceed the estimated cost of the project. Even using day labor,however,the city must get bids for purchases of materials or equipment worth more than.$50,000.If the contract exceeds $100,000,the city must publish requests for bids at least three weeks before.the last day to submit bids.The advertisement must be published at least once in the official newspaper and at least once in either a trade paper or a newspaper that is published in a First Class city. Minn.scat.§429.041,subd.3. When the council orders construction work done by day labor it must See Form 28. require a detailed report indicating that the work was done according to the plans and specifications,or,if there were any deviations from them,an itemized statement of those deviations. This report must be certified by the. registered city engineer(or other person in charge if there is no registered . engineer).The report must also show: • -the complete cost of the construction; • fmal quantities of the various units of work done; • matexials furnished for the project and the cost of each item thereof; • cost of labor,cost of equipment hired,and supervisory costs. SPECIAL ASSESSMENr GUIDE 23 H. Prepare the proposed assessment rolls Minn.Stat.§42%061,subs.1. The city clerk,with the assistance of the engineer or other qualified person Sea Section ID:The special benef# selected by the council,prepares the proposed assessment rolls. (Cities rest. should seriously consider retaining the services of a qualified and licensed See Form 12 and 13. appraiser to help assure that the amount of the special assessment does not exceed the increase in market value accruing to the property as a result of the public improvement project.) [. Prepare for the assessment hearing The purpose of the second hearing,commonly known as the assessment hearing,is to give property owners an opportunity to express concerns about the actual special assessment.Best practice suggests cities pass a See Form 14. resolution setting the date and time of the assessment hearing and directing that the city clerk publish and]nail notice about the assessment hearing. This resolution need not be published. 1 Publish notice of the assessment hearing Minn.Stat.§429.061,subd.1. At least once and at least two weeks before the assessment hearing,the city See Form 15(modify slightly,see must publish notice of the hearing in the city newspaper or,if no city FN 2). newspaper exists,in a county seat newspaper.The published notice must include the hearing time,date,place,overall project description,area to be assessed,total cost of the improvement,a description of a landowner's right to appeal the assessment,and any deferment options,if available. 2. Mail notice of the assessment hearing At least two weeks before the hearing the city must also mail notice of the Minn.Stat.§429.061,subd.1. hearing to each affected property owner.This mailed notice must include Ktapmier v.Town of Censer,346 the amount of the special assessment against the individual parcels,a N.w.2d 133(Minn.1984). description of the landowner's right to appeal the assessment,possible See Form 15. prepayment provisions,and the interest rate on the assessments.(Note: Certain properties(e.g.,railroads)may not be reflected on the Bounty's records because these property owners pay no state property tax.To .provide notice,cities may need to search other records for such owners.) For the assessment hearing,failure to comply with the requirements for published and mailed notice invalidates the assessments. Minn,scat.§429.061,subd 1. Because specific mailed notice of the assessment is important at this stage See Form 15A. of the process,best practice suggests the cleric execute an affidavit attesting to the mailing to property owners. 24 T..EA(m or MINNMOTA CITIES J. Assessment.hearing Mum.Stat.§429.061,subd.2. The assessment hearing may be adjourned and continued to another time.If the assessment hearing is adjourned provide proper notice by stating on the record,the date,time and place of the continuation of the hearing. 1. Resolution adopting assessment roll Minn.Stat.§429.061,subd.2. At the assessment hearing the council shall hear and consider all objections See Fomi 16. to the proposed assessment,whether presented orally or in writing.The Metrovolitan.4Irporrs comns 1� council has some flexibility before it adopts the assessment roll and may Bearman,716'N.W.2d 403(Maui. change,or amend,the proposed assessment as to any parcel.Council must, C't.App.2006). by resolution,adopt the same as the special assessment against the lands named in the assessment roll.Once the assessment roll is adopted the Minn.Stat.§272.32. assessments are set and become liens against the properties listed.The Minn.Stat.§272.37. council must prepare a record of the proceedings and written findings as to the amount of the assessment roll at this hearing. 2. Council decides interest on special assessments Minn.stet.§429.061,bn.bd.2. Special assessments may bear interest at any rate the council determines, Minn.star.§475.55,subd.3. (unless a charter sets limits on interest rates for assessments).In setting the rate,the council should make sure there is a reasonable relationship between the assessment interest rate and the bond interest rate if the city issued bonds to finance the project. If the city finances the project with funds on hand without using bonds,the council will want to look at the interest rate the city would otherwise have earned on the funds.- 3. Council decides payment timelines Minn.Stale.§429.061,subd.2. The council must also decide the number of years over which the property owners may pay the assessment.The statutes permit payment over a period of not more than 30 years.Council may wish to consider the life expectancy of the improvement when selecting the payment period for the assessments. See section 11G2.Mail notice of Generally,the law does not require that the city send a final notice of assessment hearing. assessment to property owners if the amount assessed is the same as that Sod Form 17A, listed in the previously mailed assessment hearing notice.However,the Minn,scat. 429.061,subd.2. clerk must notify property owners of any change if the final assessment amount differs from the proposed assessment as to any particular lot,piece or parcel of land. The clerk must also notify owners by mail of any changes in interest rates or prepayment requirements the council adopts that differ from those contained in the previously mailed notice of the proposed assessment. SPECIAL AssBssmBNT GutDB 25 Challenges by property owners The law sets out discrete timelines and procedures for challenging a city's special assessment.For the most part,objections must be raised at or before the assessment hearing.Only those who object at this stage may proceed to appeal an assessment to the district court. A. Objections Minn.Stat.§429.061.,subd.2. No one can formally object to,or appeal,the amount of an assessment Minn.Stat.§429.081 unless the property owner signs a written objection and files it with the city See Form 17. clerk prior to the assessment hearing or presents it to the presiding officer at the hearing,Property owners subject to proposed special assessments must be informed of this requirement in the mailed notice.They should also be reminded of the requirement at the hearing itself. Habel v.City of Chisago City,346 Any objections to the assessments not received at the public assessment N.W.2d 668(Minn.Ct.App.1984). hearings in the manner prescribed are waived,unless the failure to object at the assessment hearing is due to a"reasonable cause."Reasonable cause is not defined in statute and has not received in-depth judicial analysis. B. Appeals to the district court Mirm.Stat.§429.081. Within 30 days after the adoption of the assessment roll,a property owner who has properly objected to the assessment may appeal a special assessment to the district court.The property owner appeals by serving notice upon the mayor or city cleric and then filing the served notice with the district court within 10 days of that service See Section 1B If a city's assessment is challenged in district court,the assessment roll constitutes initial proof that an assessment does not exceed the special benefit.The party contesting the assessment must introduce evidence sufficient to.overcome that presumption.If the evidence as to the special benefit is conflicting it is the responsibility"of the district court to determine whether the assessment exceeds the market value increase and,if so,by what amount. See section 1C1. As discussed previously,if the city coordinates the competitive bid process with the special assessment process,the city now proceeds with the actual work of the project after certification of the assessment roll and the 30-day appeal period is over.Because the tune for appeals is over before the contract is issued,the city will not need to cover potential budget shortfalls that may occur if a property owner successfully challenges a special assessment or the lowest bid comes in higher than expected. 26 LEAGvE OF MINNEsoTA CITIES IV. Levying and collecting assessments and interest Mnm,St a.§429.061,aubd.3. Assessment rolls are lists for each assessment project containing a description of each parcel of property,including the parcel identification Men-opoliran AfrporM CoWns Y. number(PID),the name of the property owner, and the amount of the Buuvmn,7r6 N.w.2d 403(Minn. assessment. The clerk should prepare a separate assessment roll for each ct.App.2006). improvement project prior to the assessment hearing.At or after the assessment hearing,the council must officially adopt the roll by resolution and then the clerk must certify it to the county auditor. Mimi.Stat.§429.061.subd.3. .There are two ways for a city to collect assessments: See Form 18. • The city clerk,on council direction,certifies a duplicate copy of the assessment roll and sends it to the county auditor who spreads the assessments every year for collection with taxes. • The city clerk retains the assessment roll in his or her office and annually certifies to the county auditor the total amount of principal and interest due on special assessments from each parcel of property for the following years. In the first method,the certification of assessments should be filed with the county auditor on or before Nov.30 if the auditor is to spread the first installment on the books for collection the following year.The auditor is then responsible for spreading the assessment against the properties every year that an installment payment is clue.This is the preferred method for two reasons.First,it eliminates the clerk having to do an annual computation and,thus,avoids errors in later years.Second,once all the assessments have been certified,the city may retain the ability to collect the assessments if the land is forfeited due to nonpayment of property taxes,or the owner declares bankruptcy. Minn,Stat.§429.061,subd.3. If the council prefers the second method it may direct the clerk to file all See Form i 8A. the special assessment rolls in the clerk's office,and to certify annually to the county auditor only the total amount of principal and interest due on special assessments from each parcel of property for the following year. The clerk must certify all assessments to the county auditor on or before Nov. 30 if the auditor is to spread the first installment on the books for collection in the following year. A. Payment of assessments and interest Minn.Stat.§429.061,sulA.3. Once the clerk has prepared the special assessment roll and the council has approved it,property owners initially have two options • either pay the total amount of their assessment immediately,or • pay the assessments in annual installments.(with interest)under the terms set by the council. SPECIAL ASSMSMurrr Gum 27 Minn,Stat.§429b6.1,'subd.3. Alternatively,the property owner can• • Pay the entire amount of the assessment within 30 days after the council adopts the assessment rolls.In this situation,the city cannot charge any interest. • Pay the entire amount at any time after 30 days,but before any certification to the county auditor.The property owner pays only the amount of interest accrued as of the date of payment. • At any time after the certification,the property owner may still pay the entire remaining unpaid amount to the county treasurer.However,the property owner must pay the entire remaining unpaid amount of the assessment before Nov. 15 of any year,and must also pay all interest accrued until the end of that calendar year. Minn.Stat.§429,061,subd.3. The council may authorize,by ordinance,partial prepayment of assessments prior to certification to the county auditor. See Section 1103a:Council decides If the property owner elects not to pay the entire amount of the assessment interest on special assessments. at once,he or she may pay it in annual installments spread over the number of years the council has allowed.As noted previously,postponement of payment may require city borrowing to pay for the improvement so the city must add an interest charge to each year's assessment payment. Minn.Stat.§462.353,subd.5. As an added collection tool,a city may require payment of all delinquent assessments before granting a building permit,a conditional use permit, variance,or a zoning change.The city must notify residents of this requirement in an ordinance or in the application materials used to request such a change or permit. B. Postponed assessments Minn.Sr,it..§429.05.2. Postponing assessments occurs when a city pays the cost of a local improvement but delays assessing it.Postponed assessments are not generally a good idea as they are not liens against the property and the city may not recoup what has already been spent on a project.When the council certifies the postponed assessments,all the notice and hearing procedures must be followed.A successful appeal of the assessment leaves the city with less money to pay for the completed project.Given that concern,there are certain situations where the council may postpone the assessment of the cost of water,storm sewer,sewer mains,and street construction or road improvements until a later date, Such situations include: 1Vrinn.Stat,§429.051,Sued.2: . Property is unplatted and undeveloped;the owner will subdivide or otherwise make it available for building sites in the future. • The city cannot immediately use a trunk main because of the absence of laterals. 28 Lend or•MINNESOTA CITIES Minn.Suu.§429.052• Street or road improvements are completed outside the city's jurisdiction with the consent of either the affected township(or if the property is located in unorganized territory,.the county). When the property is brought into the city,special assessments may be levied against it.However,notice and hearing procedures must be carefully followed. C. Deferred assessments Deferred assessments are certified to the county auditor but collection is deferred.All deferred assessments constitute liens on the property and must be paid within 30 years of the assessment levy. Interest on the assessments Minn.stat.§429.061,subd.2. discussed subsequently,may be paid or deferred. Cities are authorized to let a property owner defer paying a certified assessment until a later date, provided the property owner or the property meets certain criteria.There are three types of authorized deferrals: • undeveloped property • senior citizen and disability deferrals • green acres 1. Notice of deferred assessments See Form 19A. The law requires that cities record deferred special assessments with the Minn,Star. 429.061,subd.2 county recorder.A certificate of the deferred assessment must contain the legal description and the parcel.identification number(PID)of the affected property and the amount deferred. 2. Interest on deferred assessments Minn.Starr.§429.061.subd.2 The city also determines,by ordinance or resolution,the amount of interest on deferred assessments.Property owners may pay interest either annually during the period of deferment,or when the assessment becomes payable. In the resolution deferring the assessment,the council may forgive interest for the deferment years through Dec.31 of the year before the first installment is due.The county auditor records deferred interest as well as deferred assessments. SPECIAL ASSESSMENT GUIDE 29 3. Deferrals for undeveloped property Minn.stet.§429,061,subd..2. For undeveloped property it is.better to defer an assessment than to postpone it because the city will eventually recoup costs.The council must include all benefited property in the proceedings.At the meeting where the council approves the assessment,it may levy the assessment but defer the first installment of the assessment for unimproved property until a designated future year,or until the platting of the property or the construction of improvements.The council may set,by resolution,terms, conditions,standards,and criteria for the deferral and future payments.The city must file a certificate with the county recorder stating the legal description of property subject to deferred assessments,and the amount of the deferred assessment. 4. Deferrals for senior citizens, people with disabilities and members of the military Minn.Slat.§435.193 to 435,195• When adopting a special assessment,a city council has authority to defer the payment of that assessment for any homestead property owned by a person 65 or older or retired by virtue of a permanent and total disability for whom it would be a hardship to make the payments.Effective March 2(X)8 Mimi.L<wa ch.154,§28. 8ts,2008 cities may defer assessment payments for property owned by a Minn.stat.§190.05,xubd,5b or 5c. member of the Minnesota National Guard(or other military reserves) ordered into active military service if it would be a hardship for that person to make the payments.If the city grants the deferment,it must notify the register of deeds of the deferment. The council may determine the andount of interest charges on the deferred assessment. The deferment ends and all accumulated amounts(plus applicable interest, if any)become due upon the death of the owner(if the spouse is not otherwise eligible for the deferment);the sale,transfer or subdivision of any part of the property;loss of homestead status on the property;or the council's determination that immediate or partial payment would impose no hardship. Mimi.Slat.§429.061.subd.I The council must adopt an ordinance establishing general rules for granting Minn..slat.§435.1.94 deferments to senior citizens,people with disabilities or members of the military including guidelines for determining the existence of a hardship.If the council follows a policy of deferring payment of assessments in hardship cases,it must include a notice of that fact in the notice of the proposed assessment. 30 LLAGuR Or MnWasOTA CITILIS 5. Deferrals for green acres Minn..Stat.§273.111,subds.3,6 "Green acres"law requires deferrals for certain agricultural or specialized and 11, use property(such as a nursery or a greenhouse),To defer these assessments on agricultural property,a city must file a certificate with the county recorder stating the legal description of property subject to deferred §§12-20 amending Minn.Suit.§ 2008 Mom..Lucas art G assessments and the amount of the deferred assessment. Agricultural 273,111. deferrals follow different procedures in addition to those in Chapter 429.In addition,property must meet strict requirements to qualify for tax benefits as agricultural property. Consult the city attorney to ensure the property qualifies. D. Abandoned improvements Mina Slat.§435.202,subd.1 If a city abandons a local improvement project before completion the city must notify the collecting agent for the special assessment(either the city treasurer or more likely,the county auditor).Upon notification,the auditor or treasurer must cancel collection of all payments and interest not already collected,or in the process of collection.This law does not preclude a city . reassessing the same properties benefitted by the improvement. Minn,stat,§435,202,subd.2. Once the city council decides to abandon an improvement project,the clerk must notify citizens of that fact. The notice must describe the local improvement;state that is has been abandoned and may provide information on refunds.The city may,but is not required to,refund payments to any person who files a substantiated claim within six months of the abandonment notice. Claims may be paid from funds collected for the improvement or from the general fund.However,abandoning the improvement does not alleviate the city's obligation to make bond and bond interest payments related to the project. Mimi.stat.§435.202,subd.3. Funds collected for the abandoned improvement must be transferred to the general fund if they are not canceled,refunded,or needed to pay the cost of the improvement or needed for bond payments. See A.G,01).480-B(April 26, In most cases,if the council abandons the local improvement in the early 1954). stages,before any assessments are levied,the city must pay the costs associated with the proceedings,even if a petition initiated them. V. _Tax-exempt property Minn.const.Art,X.§1.. The.tax exemptions the Minnesota Constitution grants to religious, Minn.star§429.061.sAd.4. charitable,and educational institutions do not prevent special assessments In re Front Street Sewer Assessment, against these types of property.Most privately owned cemeteries churches, 138 Minn.67,163 N.W.978(1917). hospitals,schools,and similar institutions must pay special assessments. Ramsey County v.'Trustees of Railroads in Minnesota are not exempt from special assessments. Macalester College,87 Minn.165, 91 N.W.484(1902). Washburn Mem 7 Orphan Asylum v. State,73 Mum.343,76 N.W.204 (1898). SPECIAL ASSESSMENT G1IIDE 31 Minn.Stat.§306.14,xulxt.2. Public cemeteries are usually exempt from special assessments but private, Oakland Cemetery Assn v.City of far-profit centaries must pay them. St.Paul,36 Minn.529,32 N.W. 781(Minn.18 87).State v.Crystal Lake Cemetery Assn,155.Minn. 187,193 N.W.170(Minn.1923). Minn.Slat.§307,09, Land dedicated as a private cemetery by a private person or a religious corporation is exempt to a certain extent. A. Other governmental lands A.G.cep.408-C(Sept.21,1953) Property.owned by the United States government is exempt from Minn.Stat.§435.19. assessments for local improvements.Regarding the property of any other governmental unit,cities may levy special assessments against such property to the same extent as if the property were privately owned.For this purpose,"governmental unit"refers to all cities(except First Class cities)towns,school districts,public utility corporations,and counties.If the unit does not pay the amount of an assessment against it,the city may recover the money in a civil action. Minn.Stat.§435.19,subds.2.3. In the case of state-owned property,or property owned by First Class cities,the city should determine the amount it would assess the land if it were privately owned.Before making this determination,the city must hold a public hearing on the proposed assessment. The hearing must take place at least two weeks after giving notice by registered or certified mail to the head of the department or agency having jurisdiction over the property. The coun.cil's determination is not binding,however,and if the state agency or the other city decides the measure of benefit is a lesser amount, it may pay the lesser amount. B. Collecting assessments from tax- exempt or railroad property See Section VIL Tax-exempt When the council approves an assessment bill,the city mails notice to the property. owners of tax-exempt or railroad property so long as the property benefits Minn.scar.§429.061,subd.4. from the improvement.The notice specifies the amount payable under the See Form 19. assessment and the conditions for payment,including the number and the amount of each installment,the rate of interest,and the penalties for default.Interest does not accrue until 30 days after the mailed notice is given. Minn.Stat.§429.061,subd.4. If the assessment is not paid in a single installment,the law requires that the city annually mail a payment reminder to certain owners.These are: • the.owner of any railroad, • a utility right-of-way owner,or • to the owner of any public property(another governmental unit). 32 LEAGUE of MINNESoTA CITIES Minn.star.§429.061,sued.4. Technically the law allows a city to collect the.amount due from the owner of any railroad or privately owned public utility by a seizing and selling personal property.Consult the city attorney before using this collection method. Minn.Stat. 435.19. State-owned land,such as state parks and recreational land may be notified of the amount it will be charged for a special assessment.The state, however,cannot be required to pay special assessments against state- owned land,although it may agree to do so. VI. Corrections Mimi.Stat.§429,071. After a city has made special assessments,it is sometimes possible to Independent Sch.Dist.No.2.54 v. correct errors or make other changes either by levying supplemental City of Kenyon,411 N.W.2d 545 assessments,ordering a reassessment for the entire project or (Minn.Ct.App.1987). reapportioning an assessment. A. Supplemental assessments Minn.Stat.y 429.071.subd..L If,because of omissions or errors in the assessment of any improvement, In re Meyer,158 Minn.433,199 the council wishes to increase the amount of assessments,it may levy N.W.746(1924). supplemental assessments.The council may levy.these assessments only after giving property owners notice and a chance to be heard at a public hearing.Requirements are the same as those for the original assessment and owners may appeal the supplemental assessment. B. Reassessments Minn.Slat.§429,071,:tint(•'. The council may order reassessment of all properties affected by special assessment levy for any of the following reasons: • To reassess property when the courts nullify the original assessment. • To validate an assessment that the city attorney feels the city may have made improperly or not in compliance with jurisdictional requirements. • To reduce assessments the city later determined to be excessive. C. Reapportionment Minn.Stat.§429.071.sued.3. When a city levies a special assessment against land that is later subdivided,-the council may,on its own motion or on application of the owner of any part of the tract,equitably apportion the unpaid portion of the assessment among the lots.The council must determine that the apportionment will not impair collection of the balance due.If the city has pledged the assessment toward payment of bonds,the council must require that the property owners furnish surety bonds. SPECIAL ASSESSMENT GUIDE 33 D. Tax-forfeited land returned to private ownership Minn.Star§429.071,Suva.4. When tax-forfeited land returns to private ownership,and.the parcel Minn.Stat.§444.076. benefitted from an improvement for which the city canceled special Minn.Stat.§435.23. assessments because of the forfeiture,the city may,with the same notice Minn.Stat.§435.19,subd.2. and hearing as for the original assessment,assess or reassess the parcel. Singerv..MinneupolLs,1997 wL The assessment amount would be equal to the amount remaining unpaid on 698486,C5-97-1265(Minn..Ct. the original assessment.Any city may reassess or make a new assessment App.Nov.10,1997). on tax-forfeited land that returns to private ownership.A city can specially assess state-owned tax-forfeited land while it is owned by the state.The state has the option of paying the assessment or not,but the assessment can be collected from someone who acquires title to the property from the state in the future. vll. Borrowing for special assessment purposes For more information on bonding, Cities collect most special assessment revenue over a period of several See Handbook Chapter 24, years. Consequently,cities often obtain fiends for public improvement projects from bond issues.The city pays off the bonds as the funds become available through collection of the assessments and any taxes the city levied especially for that purpose. There are three kinds of debt instruments cities use for special assessment purposes,none of which count in determining the net debt of the city.(Net debt refers to the total outstanding debt of the city subject to the city debt limit.) Improvement bonds are the first kind of debt instrument cities use for special assessments.Payment of these bonds is backed by the special assessments the city has levied and by the general taxing power of the city. Improvement warrants are the second kind of debt instrument.These differ from improvement bonds in that they are not backed by the taxation power of the city.Improvement warrants are payable only from the assessments against the affected property owners.Because improvement bonds are more readily marketable at a lower rate of interest than improvement warrants,very few cities issue improvement warrants. The council may also issue and sell temporary bonds at any time before completion of a public improvement project.These obligations must mature within three years,and are payable from the proceeds of the regular improvement bonds the city must issue by the maturity of the temporary bonds.Temporary bonds are subject to redemption and repayment of any interest due on 30 days mailed notice to registered holders. 34 LEAGUE OF MRVNESOTA CITIES Unlike improvement warrants,some cities frequently issue temporary improvement bonds.By issuing these bonds,cities can postpone the issuance of the regular special assessment bonds.There are two other advantages: • The city may consolidate several improvement projects into a single bond issue. • The city reduces the chance of excessive borrowing by delaying the long-term bond issue until it knows all the costs of a project. Frequently,cities will purchase their own temporary improvement bonds with surplus cash available in other funds,such as a liquor or utilities fund. This results in savings of interest and other investment expenses. Minn.Stat.§429.091,subck 3,4. The city may issue regular improvement bonds or warrants after ordering one or more improvements. Generally,cities issue them before the work is complete and before determining the final cost.If the city uses this procedure and the cost estimate turns out to be higher than actual costs the city may use the surplus funds to finance any other improvements it started under Chapter 429,or it may transfer the:surplus to the fund used for the repayment-of the bonds themselves.If the cost estimate is too low,the city may sell additional bonds. Mimi.Stet.§429.091,Sub&i. If the city is involved with several public improvements at the same time under Chapter 429,it may be advisable to consolidate all necessary financing into a single issue of improvement bonds or warrants,even if the city did not consolidate the assessment proceedings. Such a substantial block of bonds is often more readily marketable than several smaller issues. Mira1.Stet.§429.091,surd.3. Although in most cases the special benefit test limits the percentage of the Mimi.Slat.§475.58,snbd.1(3) cost of the improvement that can be assessed,an election is required for bonds if less than 20 percent of the cost is to be assessed against the benefitted property.Put another way,if the city itself is to pay 80 percent or more of the cost through its general funds,the voters must approve the bond issue on the improvement project. If some funding for.an improvement project comes from county or federal sources,the application of the 20 percent is less clear.Consult the city attorney and bond counsel for specific legal advice on this question. Minn.Stat.§429.091.W.A.3. In a resolution authorizing a bond issue,the council must decide the bond maturity,denominations,interest rate,and form. The factors the council should consider in fixing such terms include the marketability of the bonds, the anticipated collection of the assessments,and the need for future bond issues under the comprehensive city plan and the capital improvement budget. Before it can deliver the bonds.or warrants to the purchaser,the council must levy a general tax for the payment of that portion of the cost not covered by the special assessment levies. SPECIAL ASSESSMRW GUIDE 35 The council must make any tax levy for this purpose irrevocable for as long as the bonds or warrants are outstanding.While the council cannot repeal the levy until after all the principal and interest are paid, it may reduce the tax in any year if a surplus occurs in the sinking fund from which the city pays the improvement bonds. A. Interest on improvement bonds Minn.Slat.§429.091,subd.3. Bonds may carry any interest rate the council determines. In effect,the market determines the interest rate cities will pay on bonds. B. Interest on special assessments Minn.Slat.§429,061,subd.2. As noted previously special assessments may bear interest at any rate the Minn.Slat.§475.55,subd.3. council determines,unless the charter sets interest limits on the rates for See Section II03a:Council decides assessments.In setting interest rates on assessments,the council should interest on special assessment. make sure there is a reasonable relationship between the assessment interest rate and the bond interest rate if the city issued bonds to finance the project.If the city finances the project with funds on hand without using bonds,the council will want to look at the interest rate the city would otherwise have earned on the funds. VIII. Charter cities Minn.stat.§429.111. Generally, any city operating under a home rule charter may proceed either A.G.Op.59-B-14,(June 26,1956.) under Chapter 429 or under its charter in making an improvement,unless a Minn.slat.§429.021,subd..3. home rule charter or amendment taking effect after April 17, 1953 provides for an improvement under Chapter 429 or the charter exclusively.If a city proceeds under its charter,the city council should consult the city attorney to ensure that the charter procedure complies with Chapter 429 where state law so requires. Some specific areas to consider are as follows: A. Special benefit test See Section IN The special benefdt The special benefit rule applies to charter cities.Again,the special benefit test. rifle requires that the amount of special assessments to a parcel of property cannot exceed the increase in market value of that property because of the improvement. B. Assessing unpaid charges Minn.Stitt.§429.101. The law specifically lists the special services that cities can specially assess See Section IF2:Assessing unpaid if not paid by the property owner or occupant. Statutory cities cannot add special service charges. to this list but charter cities may be able to add to it by charter amendment. 36 LL+AcuE OF M94NESOTA CITIES C. Voting requirements Minh.Stet. 429.031.,siibd.l(fl` If there is no petition for the local improvement,statutory city councils See Section 1I131:Voting must adopt the resolution ordering an improvement with a"super-majority" requirements for ordering the improvement. vote.This means the council can only adopt the resolution by a four-fifths vote of all members of the council.If the mayor of a charter city has no vote or votes only in case of a tie,the mayor is not considered a member for the purpose of determining a four-fifths majority vote. D. Notice of right to appeal Minn.Stat.§429.061.subd.1. Even if the city follows charter procedures,state law requires that charter Minn.Stet.§429.02.1,subEl.3. cities send the same notices of proposed assessments to inform property See Section IIGI:Publish notice of owners of the procedures they must follow under the charter in order to assessment hearing.. appeal the assessments to district court. E. Deferrals Minn.Stat.§429,021,sulxl.3. If the city offers deferments,notices of proposed assessments must tell See section IVC:Deferred property owners about deferments and how to procure their.Like statutory assessments. cities,charter cities may choose to offer deferrals to those who are 65 years of age or older or retired by virtue of a permanent and total disability. F. Day labor Minn.Stet.§429.021,snld.3. State law considers charter provisions as requiring that the council issue the contract for all or part of the work,or order all or part of the work done by day labor,no later than one year after the adoption of the resolution ordering such improvement—unless the council specifically states a different time limit in the resolution ordering the improvement. IX. Forms Special.Assessment Forms The following checklist and sample forms will help cities complete various steps in making special assessments for a local improvement under Chapter 429 of the Minnesota Statutes. SPECIAL ASSESSMENT GUIDE 37 fo I LEAGUE o� CONNECTING &INNOVATING LINNESOTA SINCE 1913 CITIES SPECIAL ASSESSMENT AND TRUNK AREA POLICIES AND PROCEDURES FOR PUBLIC IMPROVEMENTS AND MAINTENANCE COSTS This sample policy was compiled by Ehlers &Associates Inc. at the request of the Ledgue of"Minnesota Cities. SECTION 1. General Policy Statement. SECTION 2. Improvements and Maintenance Costs Eligible for Special Assessment. SECTION 3. Initiation of Public Improvement Projects. SECTION 4. Public Improvement Procedures. SECTION 5. Financing of Public Improvements. SECTION 6. General Assessment Policies. SECTION 7. Methods of Assessment. SECTION S. Standards for Public Improvement Projects. SECTION 9. Policies of Reassessment. SECTION 10. Assessment Computations. SECTION 11. Deferment of Assessments. SECTION 1. GENERAL POLICY STATEMENT, The purpose of this policy is to establish a fair and equitable malmer of assessing the increase in market value (special benefit) associated with public improvements. The procedures used by the City for levying special assessments are those specified by Minnesota Statutes, Chapter 429 which provides that all or a part of the cost of improvements may be assessed against benefiting properties. Three basic criteria must be satisfied before a particular parcel can be assessed. The criteria are as follows: 1. The land must have received special benefit from the improvement. 2. The amount of the assessment must not exceed the special benefit. 3. The assessment must be uniform in relation to the same class of property within the assessment area. It is important to recognize that the actual cost of extending an improvement past a particular parcel is not the controlling factor in determining the amount to be assessed. However,in most cases the method for assigning the value of the benefit received by the improvement, and therefore the amount to be assessed, shall be the cost of providing the improvement. This shall be true provided the cost does not demonstrably exceed the increase in the market value of the property 145 UNIVERSITY AVE.WEST Ffiomi(651)281-1200 FAX:(01)281-1299 ST PAUL, MN 53103-2044 Tott FREE:(800)925-1122 WEB:WWW.LMC.oFG being assessed. The entire project shall be considered as a whole for the purpose of calculating and computing an assessment rate. In the event city staff has doubt as to whether or not the costs of the project may exceed the special benefits to the property,the City Council may obtain such appraisals as may be necessary to support the proposed assessment. -The assessment policy is intended.to serve as a guide for a systematic assessment process in the City. There may be exceptions to ft policy or unique circumstances or situations which may require special consideration and discretion by city staff and the City Council. SECTION 2. IMPROVEMENTS AND MAINTENANCE COSTS ELIGIBLE FOR SPECIAL ASSESSMENT. Subd. 1. The following public improvements and related acquisition,construction, extension, and maintenance of such improvements,,authorized by Minnesota Statutes, Sections 429.021 and 459.14,subd. 7, are eligible for special assessment within the City: 1. Streets, sidewalks,pavement, curbs and gutters,including the beautification thereof. 2. Parking lots. 3. Water works systems and appurtenances,within and without the corporate limits. 4. Sanitary sewer and storm sewer systems including appurtenances,within and without the corporate limits. 5. Street boulevard trees. 6. Street lights,street lighting systems and special lighting systems. 7. Steam heating mains. 8. Parks,playgrounds,and recreational facilities,including the purchase of equipment, within or without the corporate limits. 9. Abatement of nuisances; including but not limited to,draining and filling swamps,marshes, and ponds on public and private property. 10. Dikes and other flood control works. 11. Retaining walls and area walls. 12. A pedestrian skyway system upon a petition pursuant to section 429,031, subdivision 13. Underground pedestrian concourses. 14. Public malls,plazas or courtyards. 15.District heating systems. 16. Fire protection systems in existing buildings upon a petition pursuant to section 429.031, subdivision 3. 17. Highway sound barriers. 18. Gas and electric distribution facilities. Subd.2. The City is also authorized by ordinance adopted pursuant to Minnesota Statutes Section 429.021 to recover, through special assessment, the following maintenance costs: 1. Snow,ice, or rubbish removal from sidewalks. 2. Weed elimination from streets or private property. 3. Removal or elimination of public health or safety hazards from private property excluding any structure included under the provisions of Minnesota Statutes, sections 463.15 to 463.26. 4. Installation or repair of water service lines, street sprinkling, sweeping,or other dust treatment of streets. 2 5. The trimming and care of trees and the removal of unsound trees from any street. 6. The treatment and removal of insect infested or diseased trees on private property. 7. The repair of sidewalks and alleys. 8. The operation of a street lighting system. 9. The operation and maintenance of a fire protection or a pedestrian skyway system. SECTION 3. INITIATION OF PUBLIC IMPROVEMENT PROJECTS. Public improvement projects can be initiated in the following ways. 1. Public improvement projects may be initiated by petition of owners of at least 35%in frontage of the property abutting the proposed improvement. 2. Public improvements also may be initiated by the City Council when,in its judgment, such action is required. 3. A resolution ordering any improvements initiated by the Council or by owners of less than 35%of abutting property owners requires a four-fifths majority vote of all members of the Council. A resolution ordering any improvements initiated by owners of not less than 35% of abutting property owners requires a majority vote of all members of the Council. A resolution ordering any improvements initiated by all owners of abutting property, and assessing the entire cost against their property, may be adopted without a public hearing. The Council may consider the request of a Developer to construct the improvements and assess them. SECTION 4. PUBLIC IMPROVEMENT PROCEDURE. The following is the general procedure followed by the City Council for all public improvement projects from initiation of such a project through certification of the assessment roll to the County Auditor. Formats for the various reports and resolutions referenced in this section are made a part of the policies and procedures of the City. 1. Staff reviews petition or Developer's request for submission to Council. 2. Council accepts or rejects petition or request. If based upon a petition, the Council adopts a resolution declaring whether the required percentage of property owners has signed. If the petition or request is accepted, Council orders preparation of feasibility report. 3. Staff prepares feasibility report. The report shall preliminary evaluate whether the proposed improvement is necessary, cost-effective, and feasible and whether it should be made as proposed or in conjunction with another project. The report shall include an estimate of the cost of the improvement as proposed, Council may refer the report to the Planning and Zoning Commission. 4. Council accepts or rejects feasibility report. If accepted, Council orders public hearing on the improvements. 5. Staff posts and publishes hearing notice and mails notices to affected property owners as provided in Minn. Stat. § 429.031(a). 6. Council conducts public hearing. 7. Within six (6)months of the hearing date, Council adopts or rejects resolution ordering improvement to be constructed and advertisement of bids. If adopted, staff prepares final plans, 3 advertises for and opens bids as provided in Minn. Stat. § 429.041,prepares bid tabulation, makes recommendation to City Council for award, and prepares proposed assessment roll. Bonds to finance project costs may be issued at any time after the improvements are ordered. 8. Council reviews proposed assessment roll and orders assessment hearing. 9. Staff publishes hearing notice,mails notice of hearing date and proposed assessments to the affected property owners as provided in Minn. Stat. § 429.061. 10. Council conducts assessment hearing and adopts,revises,or rejects resolution determining the amount of the total expense the City will pay,if any, and establishing the assessment roll. If adopted,Council authorizes-certification of the assessment to the County Auditor. 11. Council awards contract based on the bids received. 12. Staff certifies the assessment roll to the County Auditor. 13. Staff supervises construction and prepares payments. SECTION 5. FINANCING OF PUBLIC IMPROVEMENTS. The City encourages public improvement projects as the area(s)benefiting and needing such improvements develop. Examples of this policy can be seen through the subdivision regulations, zoning ordinance, and building codes. Developers are required to provide the needed improvements and services before development occurs,thereby avoiding unexpected hardships on the property owners purchasing such property and the general public. However,it is recognized that certain areas of the City have developed without all needed public improvements (e.g. parks, water,sewer, and street improvements) and that methods must be found to provide these improvements without causing undue hardships on the general public or the individual property owner. Special assessments are generally accepted as a means by which areas can obtain improvements or services;however, the method of financing these is a critical factor to both the City and the property owner. Full project costs spread over a very short term can cause an undue hardship on the property owner and, likewise, city costs and systems costs spread over a long period of time can produce and undue hardship on the general public of the City. It is the policy of the City to not defer assessments except in cases where hardship to senior citizens 65 years of age or older or persons retired by virtue of a permanent and total disability would result. Also,the City Council may elect to defer assessments on undeveloped land for a specified length of time or until the lands are developed. Terms and conditions of any such deferral will be established in the resolution adopting the assessments. SECTION 6. GENERAL ASSESSMENT POLICIES APPLICABLE TO ALL TYPES OF IMPROVEMENTS. The cost of any improvement shall be assessed upon property by the improvements based upon benefits received. The following general principles shall be used as a basis of the City's assessment policy; 1. Project Cost. The"project cost"of an improvement includes the costs of all necessary construction work required to accomplish the improvement,plus engineering, legal, administrative, financing and other contingent costs, including acquisition of right-of-way and other property. The finance charges include all costs of financing the project. These costs 4 include but are not limited to financial consultant's fees,bond rating agency fee,bond attorney's fees,and capitalized interest. The interest charged to the project shall be included. as financing charges. 2. City Cost. The"city cost'' of an improvement is the amount of the total improvement expense the City will pay as determined by Council resolution. Where the project cost of an improvement is not entirely attributed to the need for service to the area served by said improvement,or where unusual conditions beyond the control of the owners of the property in the area served by the improvement would result would result in an inequitable distribution of special assessments,or for any other reason determined by the City,the City,through the use of other funds,may pay such"city cost." 3. Assessable Cost. The"assessable cost"of an improvement is equal to the"project cost" minus the"city cost." 4. Interest. The City will charge interest on special assessments at a rate specified in the resolution approving the assessment roll. If bonds were sold to finance the improvement project,the interest rate shall be two percent(2%)more than the average interest rate of the bonds,rounded to the nearest quarter of a percent. If no bonds were sold,the interest rate shall be set at the same rate. 5. Prepayment. Property owners may pay their assessments in full interest free for a period of 30 days after the assessment hearing. After such period interest shall be computed from the date specified in the assessment resolution. The City will transmit a certified duplicate of the assessment roll with each installment,including interest,to the County Auditor, or in lieu of such certification,annually certify to the County Auditor by November 30 in each year,the total amount of installments of and interest on assessments on each parcel which are'to become due in the following year. Prior to certification of principal and interest or the first installment thereof,to the County Auditor, a property owner may make a partial prepayment of the principal to the City. Such partial prepayment must beat least$100.00. If the partial prepayment is made after the 30-day"interest free"period allowed by state law, interest will be charged on the amount of the partial prepayment from the date specified in the resolution and paid along with the partial prepayment. After the City has made the first certification of principal and interest to the County Auditor,prepayment will be accepted only for the total amount still owing including interest and must be made prior to November 15 of any year. If a parcel has two or more separate special assessments,prepayment of the remaining principal balance maybe made on one or more assessment totals. Tax-exempt parcels such as churches and school properties may make only one partial prepayment to the first certification to the County Auditor. The remaining principal after the partial prepayment will be paid in equal installments over the remaining term of the special assessments. 6. Extensions. Where an improvement is designed for service of an area beyond that receiving the initial benefit,the City may pay for increased project costs due to such provisions for future service extensions. The City will levy assessments to cover this cost when a new improvement is installed as an extension of the existing improvement upon identification of such additional amount in the notice of hearing for the extensions or new improvements. As an alternative,the City may assess these costs to the area of fixture benefit immediately. 7. Frontage Roads, Because frontage roads along highways or other arterial streets are deemed to be of benefit to commercial or industrial properties,the entire costs of any improvement on such frontage roads shall be assessable to the benefited properties, even if only those properties on one side of such frontage roads are benefited. 5 8. Project Assistance. If the City receives financial assistance from the Federal Government,the State of Minnesota,the County,or from any other source to defray a portion of the costs of a given improvement, such aid will be used first to reduce the "city cost"of the improvement. If the financial assistance received is greater than the"city cost,"the remainder of the aid will be placed in the Capital Improvement Fund to be applied towards other City projects. 9. Assessable-Property. Property owned by the City and other political subdivisions including municipal building sites,parks and playgrounds,'but not including public streets, alleys, and right-of-way,shall be regarded as being assessable on the same basis as if such property was privately owned. Private right-of-way shall be assessable. 10. Individual Benefits. The City must construct improvements specifically designed for or shown to be of benefit solely to one or more properties. The costs for these improvements will be assessed directly to such properties, and not included in the assessments for the remainder of the project. An example of this would be utility service lines running from the main lines to the property. 11.Benefit Appraisals. In the event that city staff has doubt as to whether or not the proposed assessments exceed the special benefits to the property in question,the City Council may order benefit appraisals as deemed necessary to support the proposed assessments. As a general rule, benefit appraisals may be ordered when the proposed assessment exceeds$5,000 for a standard city reconstruction on a residential lot or$20,000 per acre for commercial or industrial property. 12. Condemnation Awards. A property owner may elect to offset special assessments against condemnation awards. In such case,the property owner must execute an agreement(Net Assessment Agreement) with the City Council. SECTION 7. METHODS OF ASSESSMENT. Subd. 1. General Statement. There are different methods of assessment:per lot, adjusted front foot, and area. The feasibility report will recommend one or a combination of these methods for each project,based upon which method would best reflect the benefit received for the area to be assessed. The City Council will select the preferred method of calculating the assessments at the time the project is ordered. Subd. 2. Policy Statement. The following methods of assessment, as described and defined below, are hereby established as methods of assessment in the City. A. "Adjusted Front Footage"Method afAssessment. The".cost per adjusted front foot"method of assessment shall be based on the quotient of the "assessable cost"divided by the total assessable frontage benefiting from the improvement. For the purpose of determining the"assessable frontage,"all properties,including governmental agencies, shall have their frontages included in such calculation. The actual physical dimensions of a parcel abutting an improvement(i.e., street,sewer,water,etc.) shall not be construed as the frontage utilized to calculate the assessment for a particular parcel. Rather, and"adjusted front footage"will be determined. The purpose of this method is to equalize assessment calculations for lots of similar size. Individual parcels by their very nature differ considerably in shape and area. The following procedures will apply when calculating adjusted 6 front footage. The selection of the appropriate procedure will be determined by the specified configuration of the parcel, All measurements will be scaled from available plat and section maps and will be rounded down to the nearest foot dimension with any excess fraction deleted. 1. Rectangular Interior Lots. The rectangular lot is defined as having no more than 2.0 feet difference between the front and rear lot lines. The adjusted front footage is the actual front footage of the lot. For rectangular lots whose frontage is greater than its depth,the"odd shaped lot"method shall be used. 2. Odd Shaped Lots. For odd shaped lots such as exist on cul-de-sacs and curved streets where there is more than 2.0 feet of difference between the front and rear lot lines,and where the lots frontage is greater than its depth, the"odd shaped lot"method of determining the adjusted front footage shall be used. The adjusted front footage shall be computed by dividing the area of the lot by 12,000 square feet to determine the equivalent number of front footage units in the parcel. The number of units multiplied by 65 feet will give the adjusted front footage. 3. Corner Lot Adjustment. For street and trail assessments,the short side will be assessed the actual front footage. The long side will be assessed one-half the actual side footage or seventy- five(75) feet,whichever is greater. Sanitary sewer and watermain will only be assessed on the short side of a corner lot. 4. Zonal Assessment. When the street along the long side of a corner lot is improved,the cost shall be assessed equally to all lots within %2 block in each direction of the street improved. This method may be selected rather than the corner lot adjusted. B. "Area"Method of Assessment. The"area"method of assessment shall be based on the number of square feet or acres within the boundaries of the appropriate property lines of the areas benefiting from the project. The assessment rate (i.e., cost per square foot) shall be calculated by dividing the total assessable cost by the total assessable area. On large lots,the City Engineer may determine that only a portion of the lots receives the benefit and my select a lot depth for the calculations equal to the benefit received. All properties included in the benefited area,including other governmental areas, churches, etc., shall be assessable. The following items may not be included in area calculations:public right-of- ways, and natural waterways,swamps and lakes and other wetlands designated by the Minnesota Department of Natural Resources or the City. The City Engineer will make a recommendation on the boundaries or parameters of the benefited area in the feasibility report. C. "Per Lot"Method of Assessment The`bier lot"method of assessment shall be based on equal assessment of all lots within the benefited area. The"assessment per lot"shall be the quotient of the"assessable cost"divided by the total assessable lots or parcels benefiting from the improvement. For the purpose of 7 determining the"lots"or"parcels"all parcels,including governmental agencies, shall be included in such calculations. SECTION 8. STANDARDS FOR PUBLIC IMPROVEMENT PROJECTS. The following standards are hereby established by the City to provide a uniform guide for improvements within the City. A. Surface Improvements Surface improvements shall normally include all improvements visible on or above the ground within the right-of-way, and includes,but is not limited to trees, lighting, sidewalks, signing; street and accessory improvements such as drainage ponds and facilities,parking lots,parks and playgrounds. Policy Statement. Prior to construction or completion of surface improvements, all utilities and utility service lines (including sanitary sewers, storm sewers,water lines, gas and electric service) shall be installed to all planned service locations such as residences or buildings. When practicable,no surface improvements to less than both sides of a full block of street shall be approved except as necessary to complete partially completed improvements initiated previously. Concrete curbing or curb and gutter shall be installed at the same time as street surfacing. B. Sub-Surface Improvements Subsurface improvements shall normally include such items as water distribution, sanitary sewer and storm sewer lines and electric and gas utilities. Main lines are the publicly owned and maintained lines or facilities such as trunk lines, interceptors,mains, and laterals. Service lines are those privately owned lines or facilities extending from the main line.to the property line. Policy Statement. Sub-surface improvements shall be made to serve current and projected land use. All installations shall conform to applicable standards established by-local, state and/or federal agencies of competent jurisdiction. All installations shall also comply,to the maximum extent feasible,with nationally recognized standards such as those of the American Insurance Association. Service lines from the lateral or trunk to the property line of all planned service locations such as residences or buildings shall be installed in conjunction with the construction of the mains. 8 SECTION 9. POLICIES OF REASSESSMENT. The City shall design public improvements to last for a definite period. The life expectancy or service life shall be as stated in the policy statement of this section,or if different,shall be as stated in the resolution ordering improvement and preparation of plans. A. Policy Statement The following are the"life expectancies"or"service lives"of public improvements except as may be otherwise stated in the resolution ordering improvement and preparation of plans. 1. Sidewalks - 20 years. 2. Street improvements, including surfacing and curb and gutter-20 years. 3. Ornamental street lighting- 20 years. 4. Water Mains - 20 years. 5. Sanitary Sewers - 30 years. 6. Storm Sewers - 30 years. SECTION 10. ASSESSMENT COMPUTATIONS. The following is the typical city assessment for various specified improvements. A. Street and Curb and Gutter Improvements 1. New Constructions New streets are assessed 100%to the abutting benefited properties. Street and curb and gutter improvements will normally be assessed by the adjusted front foot method,however other methods may be utilized if conditions warrant. Cost of construction of streets shall be assessed based on the minimum design of 7-ton axle load in residential areas and 9-ton axle load in commercial and industrial areas. Oversizing costs which are incurred in excess of the above may be paid by: (1) State funds, (2)larger assessment rates to other benefited properties,(3) general obligation funds, or(4) any other method or combination.of methods authorized by the City Council. 2. Reconstruction and Overlays. Street reconstructions and overlays are assessed 30%to the abutting benefited properties. New curb and gutter are 100%assessed. 3. Gravel Streets. Upgrading of existing gravel street by adding pavement, curb and gutter is considered new construction and all costs are assessed 100%: 4. Seal Coats Sealcoats are not being assessed. 5. Alleys. Upgrading existing gravel alleys by adding pavement is assessed 100%to all lots abutting on the alley in the block being improved. Reconstructing existing paved alleys are 100%assessed also. B. Sidewalks and Trails 1. New Construction. New sidewalks are assessed 100%to the abutting property oil which the sidewalk is located. 2. Reconstruction. Replacement sidewalks are assessed 50%to the abutting property owner and 50% City funded. 9 3. Trails Bituminous walkways and/or bicycle trails are not assessed,but rather funded by the City. New subdivisions are assessed 100% for bituminous walkways/bicycle trails. C. Storm Sewer Improvements Storm sewers are assessed on a project-by-project basis. Storm sewers in new subdivisions are considered an assessable improvement on an area basis. Oversizing costs due to larger mains and larger appurtenances are paid for by a combination of availability charges,user charges and/or trunk area assessment charges. Trunk area storm sewcr charges are levied to all unplatted property at the time of platting,to re-plats that have not been charged trunk-area charges when the land was originally platted,and to re-plats that have been charged trunk area charges when the land was originally platted but where the use is increasing (only the cost difference based on current and prior use is charged). The charges will be set in the annual fee schedule during the first City Council meeting in January of each year. Normally, storm sewers are assessed on an area wide basis(square foot or acres),but in certain situations the per lot method or adjusted front method may be utilized at the City Council's discretion. The replacement of existing storm sewers is assessed 30%with the remaining costs paid for by other funding sources identified by the City Council. D. Sanitary Sewer Assessments Assessments for sanitary sewer in residential areas are based upon the cost of construction of 8 inch mains,which is the smallest size installed in residential areas of the City. Assessments for sanitary sewers in commercial and industrial areas are based upon a standard size of 12-inch mains. Oversizing costs due to larger mains and larger appurtenances will be paid for by a combination of availability charges,user charges and/or trunk area assessment charges. Trunk area sanitary sewer charges shall be leave to all un-platted property at the time of platting and to re-plats that have not been charged trunk area charges when the land was originally platted. The charges will be set in the annual fee schedule during the first City Council meeting in January of each year. Services installed to individual properties are fully assessed to the benefiting property. Normally, sanitary sewers are assessed on an area wide basis(square foot or acres),but in certain situations the per lot method or adjusted front method may be utilized at the City Council's discretion. Lateral benefit from major trunk sewers or interceptors is assessed to the properties benefited by the sewer. Any oversizing cost is assessed as described above. The replacement of existing sewers is assessed 30%with the remaining costs paid for by other funding sources identified by the City Council. 10 Individual service lines installed directly to specified properties are fully assessed directly to the benefited properties. Properties that have existing sanitary services,but do not have mainline sewers adjacent,across or up to their property lines pay 50%of the assessment rate for the new mainline sanitary sewer as well as 100%of the cost associated with replacing the service lines. Any existing service lines found to be defective as part of a street reconstruction are replaced as part of the project and assessed directly to the property. E. '4'tratermain Assessments Assessments for watermains in residential areas are based upon the cost of construction of 8 inch mains, which is the smallest size installed in residential areas of the City. Assessments for watermains in commercial and industrial areas are based upon the standard size of 12-inch mains. Oversizing costs due to larger mains and larger appurtenance are paid for by a combination of availability charges,user charges and/or trunk area assessment charges. Trunk area water charges shall be levied to all un-platted property at the time of platting and to re- plats that have not been charged trunk area charges when the land was originally platted. The charges will be set in the annual fee schedule during the first City Council meeting in January of each year. Services installed to individual properties shall be fully assessed to the benefiting property. Normally, watermains are assessed on a per lot basis,but in certain situations the area or adjusted front method may be utilized at the City Council's discretion. The replacement of existing watermains is assessed 30%. Lateral benefit from major trunk water mains is assessed to properties benefited by the water main. Lateral water main assessments are be based on the costs for an equivalent 8".diameter water main for residential properties and for an equivalent 12" diameter water main for residential properties and for an equivalent 12" diameter water main for commercial/industrial properties. Individual service lines installed directly to specified properties are fully assessed directly to the benefited properties. Properties that have existing water services,but do not have mainline watermains adjacent,across or up to their property lines pay 50%of the assessment rate for the new watermain as well as 100%of the cost associated with replacing the service lines. Any existing service lines found to be defective as part of the project,are assessed directly to the property. F. Street Boulevard Trees All street boulevard trees installed as part of new street constructions or in reconstructing existing streets shall be included as part of the overall project costs included in the assessment calculations. 11 G. Street Lights All costs for new streetlights installed as part of constructing new streets or streetlights relocated as part of reconstructing streets are included in the overall project costs and included in the assessment calculations. In new subdivisions,the City may require the developer to finance street light improvement rather than assessing the cost. H. Other Improvements Based on the City Council determination,any other improvements may be frilly assessed or assessed in part. SECTION 11. DEFERMENT OF SPECIAL ASSESSMENTS. Subd. 1. The Council may defer the payment of any special assessment on homestead property owned by a person who is 65 years of age or older,or who is retired by virtue of pei-rnanent and total disability, and the City Clerk is hereby authorized to record the deferment of special assessments where the following conditions are met: 1. The applicant must apply for the deferment not later than 90 days after the assessment is adopted by the City Council, 2. The applicant must be 65 years of age or older or retired by virtue of permanent and total disability. 3. The applicant must be the owner of the property. 4. The applicant must occupy the property as his principal place of residence. 5. The average annual payment for assessments levied against the subject property exceed one percent of the adjusted gross income of the applicant as evidenced by the applicant's most recent federal income tax return. The average annual payment of an assessment shall be the total cost of the assessment divided by the number of years over which it is spread. Subd. 2.The deferment shall be granted for as long a period of time as the hardship exists and the conditions aforementioned have been met. However,it shall be the duty of the applicant to notify the City Clerk of any change in his status that would affect eligibility for deferment. Subd. 3. The entire amount of deferred special assessments shall be due within sixty days after loss of eligibility by the applicant. If the special assessment is not paid within the sixty(60)days, the City Clerk shall add thereto interest at a per annum interest rate of two percent(2%) above the bond interest rate and the total amount.of principal and interest shall be certified to the County Auditor for collection with taxes the following year. Should the applicant demonstrate to the satisfaction of the Council,that Rill repayment of the deferred special assessment would cause the applicant particular undue financial hardship, the Council may order that the applicant pay within sixty days a sum equal to the number of installments of deferred special assessments outstanding and unpaid to date,including principal and interest,with the balance thereafter paid according to the terms.and conditions of the original special assessments. 12 Subd. 4. The option to defer the payment of special assessments shall terminate and all amounts accumulated plus applicable interest shall become due upon the occurrence of any one of the following: 1. The death of the owner when there is no spouse who is eligible for deferment. 2. The sale,transfer or subdivision of all or any part of the property. 3. Loss of homestead status on the property. 4. Determination by the Council for any reason that immediate or partial payment would impose no hardship. State Law References(s): Minn. Stat. § 435.193, Senior Citizens or retired&disabled persons hardship special assessment deferral. 13