Since we filed our appeal, several cases all related to the SMSP program were consolidated for trial, as they all involve substantially the same issues.
Before the hearing, the parties agreed to a series of factual stipulations, limiting the issue to be decided to whether the City’s assessments are properly regarded as taxes or fees. It has been our position from the beginning that, following First Baptist and subsequent judicial opinion, the City’s assessments are taxes subject to the Special Benefit Test.
A written ruling detailing the Judge’s decision is anticipated in April. We will post an update once it is available.
We have received word that the City of St. Paul has started sending out initial invoices for its 2019 Mill & Overlay projects.
As with the 2018 projects, the City’s policy of burdening property owners on thoroughfares with the vastly disproportionate costs of maintaining those streets for everyone is unfair and contrary to the law.
Based on initial conversations with Downtown property owners, there is considerable anger and a desire to contest these charges. We are therefore planning to appeal the 2019 charges for those owners, just as we have done on behalf of more than 45 appellants for 2018. We are also gathering initial expressions of interest from owners with property on any of the other 2019 streets.
As with our 2018 appeals, our attorney Jack Hoeschler will represent us in any 2019 joint appeals.
The form is your initial expression of interest in appealing the 2019 Mill & Overlay charges collectively on a contingency basis. You can also call us on (612) 351-2311 or email us at email@example.com if you have questions about appealing.
Following the City’s decision to approve the remaining four sets of assessments on September 28th, we have served our second appeal against the 2018 mill & overlay charges on the City clerk. This new appeal is from property owners on Franklin Ave., Prior Ave., Third St. and Western Ave. and comprises an additional 16 properties. We’ll file our appeal notice with the District Court within the next 10 days.
This takes us up to 36 properties and 45 named appellants in total across the two appeals. Typically, the city relies on a mixture of short deadlines, specific procedural requirements, and economic reality to make it impractical for folks to appeal their assessments. With this many people standing together, that’s not an option this time.
The city council has approved the remaining assessments for Franklin Avenue, Prior Avenue, Third Street, and Western Avenue. The assessments returned to the agenda for the 9/25/19 city council meeting. Here’s the video stream of the assessments being approved.
The city declined to comment on its reasoning. They proceeded directly to the votes, each 6-1 with CM Jane Prince casting the dissenting votes. We admire CM Prince’s principled stand. At the same meeting, she voted against the 22% proposed trash increase, noting in a subsequent statement that the city needed to “get back to basics: public safety, parks, libraries and street maintenance, and stop continually raising property taxes as if we elected officials have a blank check.”
The approval means that the short appeal window is now officially open. Our second appeal must be filed by October 15th to be timely. If you were assessed for 2018 on Franklin, Prior, Third, or Western, express your interest by completing a short form, or read more our appeal page.
Yesterday, the city held a closed door meeting “to discuss pending litigation in First Baptist Church of St. Paul, et al v. City of Saint Paul and Christina Anderson, et al v. City of Saint Paul”.
No further details were shared, but it’s likely that the city attorney has (finally) looked at the adverse decision by Judge Millenacker in First Baptist (2018) that assessments under the SMSP are still taxes, not fees, despite the changes the city made to the old ROW program in 2016. Although that case relates to street sweeping rather than mill & overlay, the legal principles are broadly similar. In fact, it could be said that the city has even less of a case to call street resurfacing a fee than it does for street sweeping under Minnesota law.
Making – or amending – policy with the benefit of solid legal advice is a basic principle of good government. With the broader conversation happening around how to maintain a sustainable transportation policy in St. Paul, there’s a real opportunity to start afresh.
The City Council has laid over votes on Franklin, Prior, Third and Western for a further month to September 25th.
While the council did not share their reasoning for the layover, the most likely reason is to allow them to obtain a legal opinion from the city attorney, as we and Mr. Hoeschler urged at last week’s council meeting and in subsequent correspondence.
In a letter to the City Council sent after last week’s meeting, Mr. Hoeschler warned the city not to proceed without the backing of a legal opinion:
…the council would be proceeding in the face of contrary written opinions by both the Supreme Court and the District Court. This would amount to at least bad faith and possibly even fraud as proscribed by the city charter.
In our email and executive summary to the council, we reiterated similar concerns:
The city attorney’s statement at the Council Meeting on August 21st that the city was simply ‘proceeding’ under the fee power and not the tax power is not credible and not in line with Minnesota law.
Over the past few years, the City’s default position has been to press on regardless of the law. This has resulted in much expensive, time-consuming, and ultimately avoidable litigation. The recent litigation over organized trash collection is a prime example. Judge Millenacker’s decision on SMSP is a clear signal to the city that the fee theory is no more legal under the rebranded SMSP than it was under ROW. With this information now in hand, we’re glad the City Council is taking the time to reconsider its position on the legality of these assessments.
We’ve reached out to the council for comment on the layover, and will update this post if we hear any more from them.
Update (9/3/19): As we thought, the council has asked for this layover to give the city attorney time to assess the legal and policy implications of Judge Millenacker’s recent decision. That decision is clear: despite the changes the City made to the old ROW program, these assessments are taxes, not fees, and must pass the ‘special benefit’ test in order to be legal.
The City Council has delayed a vote on the revised assessments for Franklin Ave., Prior Ave., Third Ave., and Western Ave by a week to August 28th.
Simon Taghioff from Fair Streets St. Paul and our attorney Jack Hoeschler both spoke at the public hearing (video).
Public Hearing: Mill & Overlay Unfair and Illegal
Referencing the Mayor’s own words in his budget remarks last week, as well as the Street Conditions Report from the City’s own Public Works Department, Simon highlighted the inadequacy of the current Mill & Overlay policy as a means to pay for our streets:
It would cost $46.5m annually just to maintain the city’s streets at their current, crumbling level, and $51m to bring them up to where they should be. Mayor Carter’s budget allocates just $20m.
If approved today, these Mill & Overlay assessments would raise just $220,000 in revenue over 10 years. Against a $29m annual shortfall. That’s a drop in the bucket. It does nothing to fix our streets. All it does is leave people with bills for thousands of dollars to pay for wear and tear they didn’t cause.
Hoeschler: City “Naked” Without Written Legal Opinion
Mr. Hoeschler drew attention to the precedent established in First Baptist, recently affirmed as applicable to the current Street Maintenance Program at the District Court level in a recent opinion from Judge Millenacker:
The fact of the matter is the Minn. Supreme Court and now the District Court…has repeated that the key question for the City to look at is “What is the purpose of this expenditure?”
If the purpose of this charge is to regulate behavior on the part of the residents, then there could be a legitimate fee associated with that. But if the purpose of this charge is to raise revenue, and I think that’s what it is…then it can only be done by regular taxes, or as a special assessment if you can show that there is a special benefit involved.
When CM Prince asked the City Attorney, Ms. Tierney, to respond, her only reply was that the city was proceeding under its fee power, an argument that has been rejected repeatedly by the courts.
Council Members Not Briefed on Millenacker Judgment
In light of the remarks from Mr. Hoeschler, CMs Prince and Thao moved to lay over the matter for an additional week to August 28th, in order to give them a chance to get a better understanding of the points raised and to read Judge Millenacker’s recent opinion. It’s clear that even after an additional 2 months to reconsider this matter, the Council is not in possession of the information they need to make an informed decision.
From the beginning, our preferred option has been to work with the City Council and City Attorney to reach a productive, fair outcome for all. We will be submitting a short explainer to the City Council to help them get up to speed and put them in a position to ask probative questions of the City Attorney.
As Mr. Hoeschler stated – if the City Council wants to proceed, the bare minimum requirement is for the City Attorney to submit a reasoned written legal opinion to explain why they are continuing to rely upon a legal theory which the courts have clearly and repeatedly struck down.
Mayor Carter launched his proposed 2020 budget for St. Paul yesterday, and finding a sustainable way to fund our streets was a central theme.
Referencing last week’s report from the city’s public works department, Mayor Carter accepted that “keeping street spending at the current rate would render more than half our roads undrivable in just 20 years.” The $20m in spending allocated (already an increase from historic funding levels) falls well short of the $46.5m needed annually to meet the existing target of 65% PCI, with $51m needed to meet the ideal target of 70% PCI. At current spending rates, roads with a supposed lifespan of 60 years will be resurfaced every 289 years.
Mayor wants to share the load
In a statement dripping with irony in light of the city’s current mill & overlay policy, Carter added:
Saint Paul taxpayers are not alone in using and causing wear and tear on city streets, and we should not have to bear the cost of maintaining them alone.
The Mayor promised to “work actively with our partners in county and state government” to get help paying for the existing street network. He has a point. St. Paul residents aren’t causing the majority of damage to the street network directly. As the capital city of the state of Minnesota, the seat of Ramsey County, and a regional economic hub, St. Paul attracts all kinds of road users beyond its residents, including heavy commercial vehicles that disproportionately damage the roads.
And with the city’s population set to grow by 30,000 in the next 20 years, simply pouring more money in to the existing street networks isn’t sustainable. Carter set out a vision for a broader transportation policy that incentivizes people to use other options such as walking, cycling, shared vehicles and public transit. An example of this approach is a newly announced plan for Ayd Mill Road, which would convert its east side to a bike path, halving the number of lanes and reducing wear by shifting traffic to county and state-funded roadways.
Following the address, the mayor fielded questions from reporters. When asked about pending lawsuits against the city on mill & overlay, organized trash collection, and right of way assessments, amongst others, the mayor stressed that it was important to “take a fresh look” and to “work with our residents”.
When we first started organizing to voice our objections to the mill & overlay assessments we and other residents on Victoria St. had received, we needed to put up a webpage, fast. We registered www.victoriastreetassessment.com.
Today, our focus is on advocating for a fair and sustainable system to pay for much needed street maintenance throughout Saint Paul. That affects everyone who lives and works in our city.
Our new name reflects our focus: from here on out, we’ll be known as Fair Streets St. Paul.
The latest edition of The Villager leads with two issues that underscore St. Paul residents’ current frustrations with their elected representatives – mill & overlay, and organized trash collection, both of which are now the subject of lawsuits against St. Paul.
The mill & overlay article covers the city’s decision on June 19th to reduce mill & overlay rates and notes our upcoming appeal. It also quotes city real estate manager Bruce Engelbrekt, confirming the city’s intention to issue partial refunds to the approximately 100 property owners who had already paid the higher assessment.
The trash referendum saga has similar hallmarks. Most notably, the City’s willingness to ignore its own Charter provisions to shut down referenda, public hearings, and other measures designed to keep it accountable to its citizenry.