consultants are sandburs

Thursday, February 12, 2015

RAMSEY - There was a Tuesday meeting where I spoke about a good way to fast-track the start of road upkeep under the new 20% assessment policy ...

... and that good way was to be super-explicit that NO SEWER/WATER expansion routing is involved in the work to be done.

For those who have been very inattentive, Ramsey's council has adopted a policy of assessing homeowners no more than 20% of the allocated cost of certain roadwork, and no part of the cost of some other maintenance steps.

For detail, phone city hall and ask City Engineer Westby.

I had a chance to talk to Westby before the televised meeting and he assured me that extending sewer/water into neighborhoods where it is presently absent was not a part of any of the planning, his words being, "it will be like kind in place of like kind."

The question of sewer/water services and charges is one where I have a history of greatly favoring a policy of protectiveness toward established large-lot single-family dwellings on private services staying that way if owners prefer, rather than there being any forced hook-up or assessment or fees if services become available.

Hook up charges can amount to mid-five figure amounts, per property -- they are not mere inconsequential additional taxes.

Hence, there have been, are, and will continue to be strong feelings in the established neighborhoods within the community congruent to my attentiveness and worry. People do not want that kind of BIG STING unless they have a property they wish to immediately subdivide for profit.

The private services areas would include almost all of Wards 1 and 2, and at least the Flintwood Hills part of Ward 4, (where much of the push for the City Charter with protections began, with the initial charter adoption, as I understand things, happening in 1984).

After I spoke in the citizens input part of the meeting the mayor concurred that community understanding of the absence of any intent to extend sewer/water services in roadwork planning seemed helpful toward council intent to fastrack bonding earmarked for the work, as one of the steps needed prior to intensive inplementation of road repair, maintenance, and where needed, reconstruction.

The sooner the bonding is resolved the sooner repairs can begin is about the clearest way to say it.

In an exchange of emails subsequent to the meeting, City Engineer Westby noted:

[...] based on statements expressed last night by the City Council I do not believe an article in the Ramsey Resident is necessary.

I believe the Council made it extremely clear that the City has no intentions of extending urban services (sewer and/or water) with projects completed as part of the long-term street maintenance program. The Council also reminded everyone that the City Charter includes provisions that prevent the City from forcing property owners with functional private utility services to connect to City utilities, and that the City may not assess for sewer and water improvements against property owners who elect to remain on functional private utility systems.

The Charter provision Westby noted is Sec. 8.6, stating:

Sec. 8.6. - Sewer and water projects.

This section applies to any local improvement project completed after January 1, 1996, which includes extending urban services (sewer and/or water) to an existing home or neighborhood.

8.6.1
Connection policy. The city may not compel any property owner with a functional private sewer and water system to connect to city sewer and/or water.

8.6.2
Assessment policy. The city may not levy an assessment for any component of any project which includes sewer and/or water improvements against a property whose owner elects to remain on a functional private sewer and/or water system.

8.6.3
Request for urban services. Property owners who remain on private sewer and water systems after urban services become available may request connection to urban services at any time. Upon connection to urban services an assessment may be levied provided it is consistent with the original assessment.

There can be improvement to the language to assure no loopholes exist, the Charter Commission might want to have another look at tightening language, but the bottom line under that language, (and as present intent of the council and staff was expressed), sewer/water is not a part of the long term road maintenance thing for anyone to worry over.

______________UPDATE______________
Here help from more knowledgeable readers would be useful, but my understanding starts with there being SAC, WAC, and trunk charges feasibly charged by a municipality. Present understanding is that SAC stands for sewer-access-charge, and WAC accordingly water-access-charge, with income from the former being shared between the municipality and Met Council because it has overall jurisdiction in the metro area over sanitary sewer matters. Municipalities usually have their own water utilities with income raised from WAC charges going to that dedicated purpose.

Storm water sewers are a separate thing where Met Council has oversight via its comp plan approval/disapproval powers, along with statutory requirements and administrative rules such as they may be, per the comp plan procedures.

The worry is that SAC, for example could morph from the presently understood usage, in effect a sewer-attachment-charge as presently administered, into a sewer-availability-charge, i.e., it's embedded in your street, available, and you are accordingly charged, whether hooking up or not.

That is the big worry. Forced payment, really, not forced hookup. In effect, a forced payment even for those who woulld rather not hookup; and regardless of whether there is or is not a hookup.

The amounts charged are anything but insubstantial.

Next, these "charges" are by statute, taxation; Minn. Stat. Sect. 645.44 being unequivocal at its subd. 19:

Subd. 19.Fee and tax.

(a)"Tax" means any fee, charge, exaction, or assessment imposed by a governmental entity on an individual, person, entity, transaction, good, service, or other thing. It excludes a price that an individual or entity chooses voluntarily to pay in return for receipt of goods or services provided by the governmental entity. A government good or service does not include access to or the authority to engage in private market transactions with a nongovernmental party, such as licenses to engage in a trade, profession, or business or to improve private property.

(b) For purposes of applying the laws of this state, a "fee," "charge," or other similar term that satisfies the functional requirements of paragraph (a) must be treated as a tax for all purposes, regardless of whether the statute or law names or describes it as a tax. The provisions of this subdivision do not exempt a person, corporation, organization, or entity from payment of a validly imposed fee, charge, exaction, or assessment, nor preempt or supersede limitations under law that apply to fees, charges, or assessments.

(c) This subdivision is not intended to extend or limit article 4, section 18, of the Minnesota Constitution.

[a cut/paste text error has been corrected] Such taxation is the fiscal impact on citizens that these charges or fees cause, and that is the targeted perceived evil that Charter Sect. 8.6 aims to fully forestall.

As learned from franchise fee vs assessment, both being taxation, details of things can differ, and that is where wording of Charter Sect. 8.6 needs to be tightened so that its intent and purpose is fully stated whereas now, for reasons unknown to me, only "assessment" is in the language. It is clearly a scrivening mistake needing expedited correction; not any referendum, to fix it.

Last, and most imprecise and hence too-flexible, trunk charges. This is for the big pipes. Not the in street collectors.

The best practice, as evidenced in the extension of sewer and water to the gun club and Peterson's cornfield, is for the developer seeking the subdivision profits to front the full or at least lion's share of trunk extensions - as Peterson did to the tune of six million dollars a few years ago. Doing that, rather than socializing the cost to an entire citizenry to benefit single site or multi-site profit-making is how government should operate. The developer pays the fair price, and is not subsidized by trunk charges being proportioned out and included in a SAC imposition upon individual existing-home owners.

In an ideal world that Ramsey precedent should stand; but we live in a real world that often is non-ideal.

BOTTOM LINE: whether called an "assessment," a "fee," or a "charge," it is a TAX and the gist of Sect. 8.6 being in the charter is to forestall forced exaction of such amounts out of homeowners unless a property owner voluntarily connects. And the section also requires that upon a connection the imposition cannot have any punitive dimension; but must be "consistent with the original assessment."

Part of the bottom line is that fine-tuning of the Sect. 8.6 language to roll up "charge," "fee," and such with "assessment," expressly so, in line with the MS Sect. 645.44, subd. 19 text wording, would be nothing but a scrivening correction now, which might forestall uncertainty and worry over whether possible future judicial interpretation of "assessment" in the protective measure is read broadly or narrowly.

That's about it. In an extended, big nutshell.

____________FURTHER UPDATE____________
For those caring about further detail, 2006 c 259 art 13 s 15 is the Code Revisor's notation for the legislative act creating MS 645.44, subd. 19. That abbreviation means Laws 2006, chapter 259, Article 13, Section 15; which readers can reach from this link for the bill as passed into law, then do a search for "645.44."

From the get-go, the language that whatever you call it, it's a tax always carried the troublesome caveat, "The provisions of this subdivision do not preempt or supersede limitations under law that apply to fees, charges, or assessments." (With later 2009 amendment to the present subdivision wording, that change being irrelevant to this analysis.)

What that means is that any court decision prior to 2006 splitting hairs over "is it a fee, is it a charge, is it an assessment, what is it and what differing rules apply" remains relevant, back to original statehood code, if not earlier.

Judicial precedent on any such hair splitting can be anticipated to be littered with traps for the unwary, and we know from the "franchise fee" discussions in Ramsey, including those of Charter Commissioners and council members, that a "fee" is not an "assessment," never mind how a "charge" might differ from either.

AGAIN: THE PROTECTIVE CHARTER SECTION 8.6 LANGUAGE NEEDS TO BE EXPLICITLY TIGHTENED, AND THE PROCEDURE OF THE CHARTER COMMISSION RECOMMENDING A SCRIVENING CORRECTION TO COUNCIL, AND COUNCIL UNANIMOUS PASSAGE WOULD PREEMPT NEED OF A REFERENDUM OVER LANGUAGE NUANCES WITH POSSIBLY SEVERE REAL IMPLICATIONS. THE CHARTER COMMISSION MUST MEET AT LEAST ONCE IN EVERY CALENDAR YEAR, AND HAS NOT YET MET IN 2015.

____________FURTHER UPDATE____________
Trying to keep this added comment short and tight: With the Armstrong overpass coming into play with lag time between that and elimination of other traffic lights along Highway 10, will the upcoming comp plan public sessions be dominated by property owners up Armstrong, as the last one was dominated by property owners neighboring the Peterson cornfield-into-housing MUSA pocket? With Ramsey having shifted its paradigm from a northward moving MUSA line to having MUSA areas or MUSA pockets, or what has been called "leapfrog development," the notion of sewer/water being a community expense expanding along an ever-northward moving line has been replaced by "you want it you buy it" per Peterson paying an up front six million dollars to get trunk sewer service to the gun club and the cornfield on Nowthen Blvd, (west side, just south of Trott Brook).

Surely "the developer will pay for everything" is a fine tune, but socializing costs while seizing onto profits is the essence of Crabgrass thinking among the developer community. Like Crabgrass sends out runners to form clusters here and there in overtaking a lawn, so too will trunk sewer runners likely overgrow the entire Ramsey community. But in the long term we are all dead, while in shorter terms do you, as a citizen, want to pay the cost for the developers to be boss?

Likely not, is my bet.

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