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.