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08/05/1997 - City Council Public Works Committee1p - AGENDA PUBLIC WORKS COMMITTEE MEETING Tuesday August 5, 1997 3:30 p.m. City Hall Conference Room (2"d Floor) I. ROLL CALL & ADOPTION OF AGENDA II. BOULEVARD TREE MANAGEMENT III. VILLAUME INDUSTRIES - STORM WATER CONNECTION CHARGE IV. OTHER BUSINESS V. ADJOURNMENT MEMO ( — city of eagan TO: PUBLIC WORKS COMMITTEE FROM: CITY ADMINISTRATOR HEDGES DATE: AUGUST 1, 1997 SUBJECT: PUBLIC WORKS COMMITTEE MTG/TUESDAY, AUGUST 5,1997 A Public Works Committee meeting has been scheduled for Tuesday, August 5, 1997 at 3:30 p.m. in the second floor conference room at the Eagan Municipal Center. The purpose of the meeting is to discuss the boulevard tree management issue that was continued from the July 29 Public Works Committee meeting and to further discuss the storm water utility connection charges with representatives of Villaume Industries. BOULEVARD TREE MANAGEMENT Several recent factors, including safety concerns of a resident regarding driveway sight line obstructions caused by a neighbor's spruce tree in the boulevard area, have encouraged staff to examine the management of trees and other plant material growing within street right-of- way areas. A recent boulevard tree inventory has indicated that there are and could be a number of problem areas where trees in the boulevards obstruct sight lines. Consultation with the City Attorney's office has indicated that a section of the City Code requiring the homeowner to perform tree pruning/removal is invalid and should be removed. Staff is seeking direction from the Council as to whether the City should develop a standard by which the City would be responsible to see that maintenance is performed. This would be done by first asking the property owner to do the work. If the property owner does not; staff recommends that the City would then perform the maintenance, using staff or a contractor, and the costs would then be assessed to the property owner. The City Code would be revised to reflect this standard. Enclosed on pages —? through -,!r is a copy of a detailed memo from the Director of Parks & Recreation regarding this issue. ACTION TO BE CONSIDERED: To provide a recommendation to the City Council as a whole for direction to staff regarding the City Code pertaining to boulevard trees and the responsibility for their care/removal. VILLAUME INDUSTRIES - STORM WATER CONNECTION CHARGE At the July 29 Public Works Committee meeting, staff was directed to provide two (2) calculations relative to the storm water connection rates pertaining to Villaume Industries. Villaume Industries paid $7,405 for an assessment for storm water area trunk improvements on 8.5 acres of property. Villaume Industries owns a total of 16 acres. Staff has calculated the storm sewer trunk area charge on the remaining 7.5 acres as a connection charge obligation at a charge of $39,530.70. The per acre rate in effect in 1970 was $871 and the per acre rate in effect in 1997 is $5,150. Staff was directed to calculate the amount Villaume would have paid in 1970 had their entire 16 acre obligation been satisfied at that time. That amount would have been $13,939, based on 16 acres at $871 per err Given thi"cenario, the balance due, without any -interest is6 534. A second request was made of staff to calculate an inflation adjustment for 27 years and what would be the total amount with this adjustment. The Consumer Price Index (CPI) for all U.S. cities was 116.3 in 1970 and 468.8 in 1997 (1967 = 100). Based on the CPI increase, the balance would be $26,339. Also enclosed on pages _,6 through J for review by the Public Works Committee is a copy of the memo and correspondence that was distributed in the July 29 Public Works Committee packet for the Villaume Industries item. ACTION TO BE CONSIDERED: To provide a recommendation to the City Council as a whole regarding whether Villaume Industries should be required to pay the identified storm sewer drainage connection charge or whether some or all of the identified charge should be deferred, waived or modified. This item has been placed as a matter of Consent on the August 5 City Council agenda pending a recommendation by the Public Works Committee. OTHER BUSINESS There are no additional items for Other Business at this time. If time permits, the Public Works Committee may want to address a strategy and time frame for discussing the street reconstruction policy. Director of Public Works Colbert will be present. /S/ Thomas L. Hedges City Administrator cc: Gene VanOverbeke, Director of Finance Ken Vraa, Director of Parks & Recreation Tom Colbert, Director of Public Works TLH/vmd FH City of eagan MEMO TO: TOM HEDGES, CITY ADMINISTRATOR HONORABLE MAYOR AND CITY COUNCIL FROM: KEN VRAA, DIRECTOR OF PARKS AND RECREATION DATE: JULY 23, 1997 RE: BOULEVARD TREE MANAGEMENT ISSUE: Staff is seeking specific direction as It relates to the City code pertalning to boulevard trees and their care/removal. Several recent factors have encouraged staff to examine the management of trees and other plant material growing within street right-of-way areas. These factors Include a request from a resident who Is concerned about driveway sight line obstructions caused by a neighbor's spruce tree. More generally, a recent boulevard tree Inventory performed by staff has revealed very Interesting statistics about the amount and type of vegetation now located within the "utility easement" area adjacent to the public street right-of-way. An actual case In point Is being presented to help understand why this review Is necessary at this point In time: REQUEST FROM RESIDENT: Staff received a customer request from Mrs. ]III Stenzel, 1666 Mallard Drive, on May 31, 1996. Jill was concerned about the obstruction of sight lines that was created by the presence of three spruce trees planted within the ROW area by her neighbor to the west; 1670 Mallard Drive. The trees are all white spruce trees approximately 15 feet in height, currently about six feet In width, and are located within ten feet of the curb. The Tree Inspector, Mark Rehder, responded to this request on June 5, 1996, by inspecting the site and requesting that Mr. Jim Vaughn, 1670 Mallard Drive, trim the spruce trees to Improve sight lines. Mrs. Stenzel has also taken the direct approach with the neighbor who, she states, is not willing to comply with her request to significantly trim or remove the tree. During the summer a small amount of trimming was done on these trees by both Mr. Vaughn and staff. A follow-up request was received from Mrs. Stenzel on December 10, 1996, stating that the problem was not sufficiently corrected and that she still was not satisfied. Supervisor of Forestry Gregg Hove called her on December 13, and then personally visited with her at her residence on December 16. Because of the signlficant amount of snow around the base of the tree at that time, It was hard to determine how much pruning had taken place. It appeared, however, that the trees In question still presented a visual obstruction. Mrs. Stenzel was Informed that staff would research further solutions to this problem. 3 STAFF RESEARCH The Cily Code The Eagan City code addresses the issue of trees In the boulevard In Section 7.08, "Regulation of Grass, Weeds, Trees", and "Landscaping". Pertinent subdivisions are: Subd. I D.3. trees ... must be at least 10 feet from the back of the curb in an urban section ..." Subd.1.D.4. "Trees ... shall not be planted or maintained on public or private property In such a manner as to obscure or impede the visual sight lines... " Subd.4. "Every owner of property abutting City street rights-of-way shall ... maintain ... all living trees..." Subd.5. "City may order work done" Subd.6. "Assessment" Appropriate City staff from Parks and Recreation and Public Works have met with the City Attorney's office to review the issue of removal of tress and who has the authority and the responsibility for remedial action In instances such as this. Should it be the homeowner or the City? The City Attorney's office has determined that the boulevard/right-of-way area Is private property, owned by the lot owner, but that the.City has the right to utilize this area (sometimes up to 23 feet from curb to end of easement) as needed to ensure public safety and welfare. However, the City Code, which requires the homeowner to be responsible for tree trimming or removal Is invalid. The City can ask the homeowner but It cannot require them to maintain the boulevard trees even though they may have planted them without authorization or knowledge of the City. The City does have the authority to do pruning or tree removal. Staffs inventory of boulevard trees reveals the following: • There are 15,600 trees currently located within 15 feet of curb. 0 24% (3,700) of all boulevard trees are spruce trees and there are 1,234 spruce trees within 10 feet of the curb, where their growth Is likely to Impact visual sight lines. Again, If the City removes or prunes the trees, the costs associated with that removal/pruning can be assessed against the property Past Boulevard Tree Trimming Activities City tree trimming activities to date have primarily consisted of removing "hazardous" or obstruction trees. For example, In the Cedar Grove Addition, a number of large trees have branches hanging over the street which may Interfere with snow plowing trucks that have their boxes up for sanding. In the fall of 1991 staff identified 760 boulevard trees that needed to be trimmed. Seventy letters were sent to property owners requesting that this maintenance be performed. There was 50% compliance. During November of 1992, 700 notices were sent to property owners requesting that maintenance be performed. There was 59% compliance. During December of 1992, a survey was done of 12 area cities regarding boulevard tree maintenance. All 12 said they dosome type of tree pruning and 9 perform boulevard tree trimming, either by parks, forestry, or street personnel. None of the cities assessed the work to property owners. Funding for maintenance was provided through the general fund from either streets or parks. Some cities stated that they now don't allow boulevard tree planting. Some used to require property owners to perform maintenance but now do it as a City function. FOR COUNCIL CONSIDERATION • Mr. Dougherty suggested that Subd.4, which requires the homeowner to do tree pruning/removal, be removed from the City ordinances. • A proposed solution was that the City should be responsible to see that maintenance is performed. First by asking the property owner to do the work, but If there Is no compliance, the City, should then perform the maintenance using staff or a contractor. The cost would then be assessed to the property owner. The point is that the City would have the responsibility to see that the problem Is resolved, not the property owner. • It was also suggested that Subd.5 and 6 be clarified to make the City's position clear regarding assessments. COUNCIL REVIEW OF HOMEOWNER'S COMPLAINT: Relative to the complaint from the homeowner whose vision Is obstructed as she backs out of her driveway, If the Council adopts the position that the City will take action to resolve this, and other similar problems, It would be appropriate to develop a uniform standard that staff can use. It would also be appropriate to develop a systematic approach of notification to the affected property owner, Le.: 1. Adopt "standards" that pertain to visual sight lines and physical clearances required. 2. City staff should apply standards to solve situations as they arise (Street Dept.). 3. Develop a form letter to be sent as notification of action needed to the affected property owner (Forestry staff make recommendation as to type of action needed, i.e., trim, raise crown, transplant, remove). 4. If no action taken by property owner, send second letter. S. If no action Is taken on second notice, the City would contract the work to be done and assess the property owner. (Set fee; time/material/equipment/contract work) 6. What would be the appeal process? 7. Allocate funds for seasonal work program In operating budgets. ALTERNATIVE FOR CONSIDERATION • The Council could take the approach that unless the tree Is a public obstruction to the normal flow of traffic on public streets, as opposed to private driveways, that the problem Is between neighbors, and should not Involve the City. • Respond on a complaint basis only. PUBLIC EDUCATION PROGRAM Critical to the solution of this boulevard tree situation Is the education of the public on what dilemmas can and do arise when trees are located In inappropriate areas. This education can occur In many forms; personal and telephone conversations, newsletter or newspaper articles, presentations through Parks and Recreation classes, brochures and pamphlets, or by providing actual examples of appropriate landscaping methods. To reduce the occurrence of future problems, or even to correct present problems, the practice ofcontinued public -education should -probably-be expanded. SO, city of eagan TO: PUBLIC WORKS COMMITTEE FROM: CITY ADMINISTRATOR HEDGES DATE: July 18, 1997 MEMO SUBJECT: VILLAUME INDUSTRIES CONNECTION CHARGE OBJECTION Officials of Villaume Industries, including their attorney, are objecting to certain connection charges identified as due from them as a condition of a building permit issuance. They have requested a determination by the City Council of the appropriateness of the charge and staff has suggested a preliminary review by the Public Works Committee. Background Facts The City staff, through the consulting services of Jerry Wobschall, review all development applications and all commercial./industrial building permit applications to ensure that all property has paid its proportionate share of all area charges and lateral benefit charges. e From time to time, these charges are referred to as assessments which they are not; they are connection charges and lateral benefit charges provided for in the City Code for water, sanitary sewer and storm drainage utilities. + The connection charge obligation is unique to each parcel of property depending upon previous assessments, previous agreements, development activity, etc. ♦ Villaume Industries applied for a building permit to construct what appears to be the ninth building on what is essentially two parcels totaling approximately 16 acres. The customary review determined that storm sewer trunk area charges had been assessed to 8.5 acres in 1970. The balance of 7.5 acres was noticed as subject to a connection charge of $39,530.70 (7.5 acres X 43,560 sq ftlacre X $.121 sq ft). This connection charge obligation was placed as a condition on the issuance of the building permit. ♦ To allow construction to begin, the building permit was issued with the understanding that the issue needed to be resolved before a certificate of occupancy would be issued. The anticipated completion date, as estimated by City staff, is mid to late September. r • + The City is usually agreeable to collecting the connection charges over a period of time. This is accomplished by the execution of a waiver of hearing which allows the City to assess the property. + The City's process is not designed to find or correct errors; it is in place to ensure that all properties pay their proportionate share of the area charges and lateral benefit charges. As previously noted, errors, although not present in the case of Villaunie Industries, may or may not be a part of the unique circumstances associated with particular property. + The City uses ponding credits when appropriate in the storm sewer system of area charges. All area is otherwise included in the area charges regardless if runoff flows to natural ponds or drainage systems. In other words, the system is based on total acreage across the entire City. Issue Should Villaume Industries be required to pay the identified storm sewer drainage connection charge or should some or all of the identified charge be deferred or waived. Attachments: + Letter from James M. Njus, Attorney representing Villaume. + Copy of the City Code authorizing storm drainage connection charges. City Administrator Attachments TLH/vmd Alan R Nettles* Daniel B. Johnson* Fade T. Anderson, Jr.*j James M. Njus*t• Neil M. Meyer* Michael B. Braman* *Admieed in M;naerata 1Admingd in Fkride *Admitted it Miehiam Tom Hedges City Administrator CITY OF EAGAN 3830 Pilot Knob Road Eagan, Minnesota 55122 MEYER & NJUS, F.A. 5000 NORWEST CENTER 90 SOUTH SEVENTH STREET MINNEAPOLIS, MINNESOTA 55402.4121 (612) 341.2181 Fax (612) 337.5894 Offices also located in Chicago, Illinois and Southfield, Michigan June 3, 1997 RE: Storm Sewer Trunk Assessment - Lot 5, Block 1, Eagandale Centre Industrial Park No. 2 Dear Mr. Hedges: Carrie L. Selton-Hess*• Paul Iw Boh nsack II* Steven A. Linder** J. Scott Winstont• Paige A. Wildenberst• Andrew W. Martin*o *A"aed in Wbwrain =Admitted it 111W) e *Admitted in Iowa This office represents Villaume Industries, Inc., the fee owner of Lot 5, Block 1, Eagandale Centre Industrial Park No. 2. Villaume Industries has owned this tract of land continuously since November 9, 1967. Please note that Villaume Industries took title as Villaume Box & Lumber Co., but subsequently changed its name to Villaume Industries, Inc. It is our understanding that the Town of Eagan assessed Lot 5, Block 1 in the amount of $7,405.00 as and for storm sewer trunk on April 13, 1970. I believe it is also undisputed that that assessment has been paid in full. Additionally, there were also special assessments for street improvement and drainage, and sewer and water laterals made on September 15, 1969, and September 24, 1968 respectively. The amounts of these assessments, $3,527.34 and $8,698.50, respectively, have also been paid in full. It is my further understanding that the City of Eagan is now claiming that when it made its storm sewer trunk assessment in 1970 that it made an error in that it only assessed 8.5 acres of the 16 acre tract. To support that interpretation, the City of Eagan has produced handwritten notes indicating that the area assessed in Lot 5 was 8.5 acres. My client questions the interpretation that assessment in 1970 was, in any way, in error. Robert M. Linsmayer, President of Villaume -Industries in 1970 and now the Chairman of the Board, recalls a discussion with the City of Eagan regarding the natural drainage of Lot 5. It is an established fact that the front 8.5 acres of Lot 5 drains into the sewer system. However, the remaining 7.5 acres drains naturally towards the rear of the P '01 45 Tom Hedges City of Eagan June 3, 1997 Page Two property and the run-off water flows along the railroad right-of-way to the highway and then into ponds north and west of Lot 5. My client assumes, we believe correctly, that Eagan made the logical assumption when it assessed the property in 1970 that as the topography was such that only 8.5 acres drained into the storm sewer system, that it would be inequitable to base the assessment on more than that acreage amount. Obviously, property may not be assessed unless it is benefited, and the assessment must be proportionate to the benefit. If you research the title to Lot 5, you will find that Villaume Industries acquired the tract as a 16 -acre tract and has never done anything to separate the acreage in any way, shape, or form. To the extent that the City of Eagan chose to assess the tract as if the acreage were less than the total acreage, it can only be presumed that this was done for reasons of fairness rather than reasons of any mistake. Based upon the history of this assessment, the fact that it was made with full knowledge of the total acreage owned by my client, and that the assessment made has been paid, my client respectfully requests that you undertake to investigate this matter further and, if your investigation concludes that the facts represented in this letter are accurate, that the City waive any further assessment of Lot 5 for the storm sewer trunk. JMN:baw CC: Villaume Industries, Inc. 9 Very truly yours, MEYER & NJUS, P.A. 6`tv, -X7 ames M. Njus MUNICIPAL AND PUBLIC UTILITIES $ 3.07 arrangements for payments .have not been made, all such delinquent accounts shall be certified to the city clerk who shall prepare an assessment of the delinquent accounts against the property served or to be served. Zb each account, there shall be added a certification charge (preparation for certification of taxes of delinquent accounts) in the amount provided for by council resolution. This assessment roll shall be delivered to the council for adoption. Such action may be optional or subsequent to taking legal action to collect delinquent accounts. (Code 1983, J 3.06, eff. 1-1-83; Ord. No. 90, 2nd series, eff. 10-27-89; Ord. No. 194, 2nd series, eff. 1-12-95) Sec. 3.07. Stormwater drainage connection and availability charge. Sub& 1. Stormwater drainage utility. A stormwater drainage utility for the city is hereby established. The municipal storm sewer system shall be operated as a public utility pursuant to Minn. Stat. J 444.075, from which revenue will be derived subject to the provisions of this chapter and to Minnesota Statutes. The stormwater drainage utility will be a part of the public works department and under the administration of the director of public works. Sub& 2. Purpose of funds derived and allocation of revenue. The purpose of all funds derived is to pay for all or part of the construction, reconstruction, repair, enlargement, improvement or other obtainment and the maintenance, operation and use of the storm sewer utility as established by the city. All revenues derived from the fee shall be credited to the appropriate storm sewer fund. Subd S. Storm sewer utility fee. A. A storm sewer utility fee for connection and availability of the storm sewer facilities shall be determined by resolution of the council and shall be just and equitable. A charge for the connection and availability of storm sewer service may be imposed for all premises abutting on streets or other places where municipal storm sewers are located, whether or not connected to them. A charge for the availability and connection to the storm sewer service may, in the discretion of the council, be Sled by reference to the portion of the cost which has been paid by assessment of the premises. B. A storm sewer utility fee for use of the storm sewer facilities shall be determined by resolution of the council and shall be just and equitable. Charges made for the use of the facilities may be Swed on the basis of water consumed, or by reference to a reasonable classification of the types of premises to which the service is furnished, or by reference to the quantity, pollution qualities and difficulty of disposal of the water, or in any other equitable basis including, but without limitation, any combination of those referred to above. Subd 4. Adjustments. The council may adopt, by resolution, policies and standards for the adjustment of the fee for parcels. Such a4justments shall not be made retroactively. Subd 5. Exemptions. A. Public rights-of-way are exempt from the fees established in subdivision 3, above. CD3:7 ILI) 0. § 3.07 EAGAN CODE B. Vacant, unimproved land with ground cover and city -owned land are exempt from the fees established in subdivision 3, subparagraph B, above. Subd 6. Billings. Bills for charges for the fee shall be made by the finance department. All bills shall be payable at the office of the finance director. Subd 7. Recalculation of fees. If a property owner or person responsible for paying the fee questions the correctness of such charge, that person may have the determination of the charge recomputed within six months of mailing, by submitting to the director of public works a written request for the recomputation. Subd 8. Collections. All fees are due on the due date specified by the city for the respective account and shall be delinquent 15 days thereafter. It is the duty of the city to endeavor to promptly collect delinquent accounts, and in all cases where satisfactory arrangements for payments have not been made, all such delinquent accounts shall be certified to the city clerk who shall prepare an assessment of the delinquent accounts against the property served or to be served. Tb each account there shall be added a certification charge (preparation for certification of taxes of delinquent accounts) in the amount provided for by council resolution. This assessment roll shall be delivered to the council for adoption. Such action may be optional or subsequent to taking legal action to collect delinquent accounts. (Ord. No. 101, 2nd series, eff. 5-25-90; Ord. No. 195, 2nd series, efi: 1-12-95) Sec. 3.08. Sanitary sewer connection and availability charge. Subd I. Purpose of funds derived and allocation of revenue. The purpose of all funds derived is to pay for all or part of the construction, reconstruction, repair, enlargement, improvement or other obtainment and the maintenance, operation and use of the sanitary sewer utility as established by the city. All revenues derived from the fee shall be credited to the appropriate sanitary sewer fund. Subd 2. Sanitary sewer utility fee. A sanitary sewer utility fee for connection and availability of the sanitary sewer facilities shall be determined by resolution of the council and shall be just and equitable. A charge for the connection and availability of sanitary sewer service may be imposed for all premises abutting on streets or other places where municipal sanitary sewers are located, whether or not connected to them. A charge for the availability and connection to the sanitary sewer service may, in the discretion of the council, be fixed by reference to the portion of the cost which has been paid by assessment of the premises. Subd 3. Adjustments. The council may adopt, by resolution, policies and standards for the adjustment of the fee for parcels. Such adjustments shall not be made retroactively. Subd 4. Exemptions. Public rights-of-way are exempt from the fee. Subd 5. Billings. Bills for charges for the fee shall be made by the finance department. All bills shall be payable at the office of the finance director. CD3:8 TEL: Aug 05 97 Nick Linsmayer Villaume Industries, Inc. 2926 Lone Oak Circle - St. Paul, MN 55121 VIA PAX ONLY - 12:25 No . 003 P.02 August 5, 1997 Carrie L. Selton-Hess•` Steven A. Under* - J. Seott Winston*. Pglge A. Wildonbersp Andrew W. Martin*o David T. Zalewski MdRditd u whoamla tAdmkW Ja llliaoir `AiWttcd Is Iowa Re: Storm Sewer Truck Assessment - Connection Charge Lot 5, Block 1, Eagan Dale Centre Industrial Park Number 2 Dear Mr. Linsmayer: You have -asked us to opine upon the question of whether or not the City -of Eagan may collect from Villaume Industries, Inc. a connection .charge of $39,530.70. The answer to this question is in two parts. First, we have found two cases on point which support the right of the -City to collect a connection charge. This issue was first presented to the Supreme court in the case of Crown Cork & Seal Co. v. City of Lakeville, 313 N.W.2d 196 (1981). In that case the Court.held that M.S.A. 5 444.075 Subd. 3 empowers the local Government to collect a connection charge provided -that the connection charge is, in the language in the statute, "just and equitable". This statute does not require the City to use any particular method in determining what is a just and equitable charge. The next case to visit this issue was Nordgrdn v. City of Maplewood, 326 N.W.2d 640 (1982). In this case the Court held 1. The levy of a connection charge is authorized by M.S.A. 9 444.075; 2. Connection charges May be imposed without a showing that the..land is benefited; 3. The.imposition of a connection charge must be prescribed by formal enactment of an ordinance or a resolution of the City Council.. The Court held that either one is necessary. The Court made the comment that "[w]ithout an ordinance or resolution showing MEYER & NJUS, P.A. ATTORNEYS AT LAW Alan R. Nettles* Daniel H. Johnsov 1100 PILLSBURY CENTER James M. Njus*# • 200 SOUTH SIXTH STREET MINNEAPOLIS, MINNESOTA 534OZ ae B.BrMeyer* Michael Michael $. Iiroanmt* (612)341.2181 Fax (612) 337.5894 *Adndnod In Mipom as 'AdridUW In Mi ftu Offices alae located in Chicago, Illinois and Southfield, Michigan Nick Linsmayer Villaume Industries, Inc. 2926 Lone Oak Circle - St. Paul, MN 55121 VIA PAX ONLY - 12:25 No . 003 P.02 August 5, 1997 Carrie L. Selton-Hess•` Steven A. Under* - J. Seott Winston*. Pglge A. Wildonbersp Andrew W. Martin*o David T. Zalewski MdRditd u whoamla tAdmkW Ja llliaoir `AiWttcd Is Iowa Re: Storm Sewer Truck Assessment - Connection Charge Lot 5, Block 1, Eagan Dale Centre Industrial Park Number 2 Dear Mr. Linsmayer: You have -asked us to opine upon the question of whether or not the City -of Eagan may collect from Villaume Industries, Inc. a connection .charge of $39,530.70. The answer to this question is in two parts. First, we have found two cases on point which support the right of the -City to collect a connection charge. This issue was first presented to the Supreme court in the case of Crown Cork & Seal Co. v. City of Lakeville, 313 N.W.2d 196 (1981). In that case the Court.held that M.S.A. 5 444.075 Subd. 3 empowers the local Government to collect a connection charge provided -that the connection charge is, in the language in the statute, "just and equitable". This statute does not require the City to use any particular method in determining what is a just and equitable charge. The next case to visit this issue was Nordgrdn v. City of Maplewood, 326 N.W.2d 640 (1982). In this case the Court held 1. The levy of a connection charge is authorized by M.S.A. 9 444.075; 2. Connection charges May be imposed without a showing that the..land is benefited; 3. The.imposition of a connection charge must be prescribed by formal enactment of an ordinance or a resolution of the City Council.. The Court held that either one is necessary. The Court made the comment that "[w]ithout an ordinance or resolution showing TEL: Aug 05 97 12:26 No.003 P.03 adoption -of a standard charge imposed. -for all co r ect.ions for sewer and water service, it is impossble•'to.ascertain whether the charges imposed varied from that .imposed on others. We hold that the City ofFMaplewood did not violate .... if there exists an authorizing resolution or if the City ratifies and adapts ==the�-°aiction .... We reverse the order of the distr#ct court and remand for hearing.at which the City of -NJaplawood may show council approval for the chaxge.;and:xeecpondents-may be heard as to whether the charge is just and equitable as -required by statute". Essentially, -what appears to be going on in your case is that the City wants to impose a connec.tlon .charge on--a-basis that the property -never paid -an assessment. However, the.entire property.was,:assessed in 1970 and that assessment was paid. The doctrine of laches.;..may. prevent ..the _City from challenging the adequatenese of 'the assessment made i:n 1970. See., for example, Gadey v. City of Minneapolis, 517 N.W.2d.344 (14inn. App. 1994) where the Court held that "(.1]aches is an .equitable doctrine that prevents those parties -who have not,been 'diligent in asserting a known right from. -recovering at the..expense of one who hag been prejudiced by the delay, 'Municipalities are prejudiced if there is no point in time at which their assessments become final.— By analogy, if a tax payer may be barred ^by the doctrine of laches from challenging an assessment, I believe that a City may like wise be -barred. The issue in this case is what would the connection fee be of it were assumed that all assessments that were permitted to be made have in fact been made and paid in full. If that connection fee is', for example, $1,500 then the City may impose that connection fee and you will have to pay it. If, on the other hand, the -city is attempting to use the connection fee to collect an assessment dating back to 1970, that is another matter.. It may be -worth while for you to test in District....Court whether or not the City may collect an assessment dating back'to 1970 by imposition of a connection fee in 1997. If you have any further qu convenience. estione.,,please call at your Very truly yours, MEYER & NJUS, P.A. �m qeJpa'�ms M. N j u �71�T:jlk city of eagan FAX TRANSMITTAL TO: FAX # - 8 S ATTENTION S w,, COMPANY 3830 PILOT KNOB RD EAGAN, MINNESOTA 55122 DATE S ( `(2 TIME IL� # OF PAGES TO FOLLOW FROM: -T-Q' a PHONE # ` Comments: These are being transmitted as checked below: For approval 7Z— For your use As requested For review and comments For publication High priority 'AX #: Administration/Finance/Parks (612) 681-4612 Community Development/Engineering (612) 681-4694 Central Maintenance (612) 681-4360 )FFICE #: Municipal Center (612) 681-4600 Central Maintenance (612) 681-4300 TDD - (612) 454-8535 Originals forwarded Originals not forwarded ate to Facsimile to Facsimile Operator. lease deliver this fax transmission to the above addressee. if you did not receive all of the pages in good condition, please intact us. Thank you. THE LONE OAK TREE...THE SYMBOL OF STRENGTH AND GROWTH IN OUR COMMUNITY Equal Opportunity/Affirmative Action Employer MEMO city of eagan TO: VILLAUME INDUSTRIES FROM: CITY ADMINISTRATOR HEDGES DATE: August 5, 1997 SUBJECT: REQUEST FOR INFORMATION Per your request, please find the following information included in this facsimile. As previously mentioned, some of the material has been provided earlier. 1. Memo to Public Works Committee dated July 18, 1997. 2. Copy of City Code authorizing storm water drainage connection and availability charges. 3. Subject to approval, minutes from the Public Works Committee meeting of July 29, 1997. 4. Memo to Public Works Committee dated August 1, 1997. 5. Page 18 from the 1997 approved fee schedule. 6. Calculation of 1997 connection charge. 7. Memo from the City Attorney's office dated November 2, 1995. I believe this is everything that you have requested and is all the material pertinent to this issue. City Administrator TLH/vmd city of eagan TO: PUBLIC WORKS COMMITTEE FROM: CITY ADMINISTRATOR HEDGES DATE: July 18,1997 MEMO SUBJECT: VILLAUME INDUSTRIES CONNECTION CHARGE OBJECTION Officials of Villaume industries, including their attorney, are objecting to certain connection charges identified as due from them as a condition of a building permit issuance. They have requested a determination by the City Council of the appropriateness of the charge and staff has suggested a preliminary review by the Public Works Committee. Background Facts ♦ The City staff, through the consulting services of Jerry Wobschall, review all development applications and all commercial/industrial building permit applications to ensure that all property has paid its proportionate share of all area charges and lateral benefit charges. From time to time, these charges are referred to as assessments which they are not; they are connection charges and lateral benefit charges provided for in the City Code for water, sanitary sewer and storm drainage utilities. ♦ The connection charge obligation is unique to each parcel of property depending upon previous assessments, previous agreements, development activity, etc. ♦ Villaume Industries applied for a building permit to construct what appears to be the ninth building on what is essentially two parcels totaling approximately 16 acres. ♦ The customary review determined that storm sewer trunk area charges had been assessed to 8.5 acres in 1970. The balance of 7.5 acres was noticed as subject to a connection charge of $39,530.70 (7S acres X 43,560 sq ftlacre X $.121 sq ft). This connection charge obligation was placed as a condition on the issuance of the building permit. ♦ To allow construction to. begin, the building permit was issued with the understanding that the issue needed to be resolved before a certificate of occupancy would be issued. The anticipated completion date, as estimated by City staff, is mid to late September. The City is usually agreeable to collecting the connection charges over a period of time. This is accomplished by the execution of a waiver of hearing which allows the City to assess the property. + The City's process is not designed to find or correct errors; it is in place to ensure that all properties pay their proportionate share of the area charges and lateral benefit charges. As previously noted, errors, although not present in the case of Villaume Industries, may or may not be a part of the unique circumstances associated with particular property. ♦ The City uses ponding credits when appropriate in the storm sewer system of area charges. All area is otherwise included in the area charges regardless if runoff flows to natural ponds or drainage systems. In other words, the system is based on total acreage across the entire City. Issue Should Villaume Industries be required to pay the identified storm sewer drainage connection charge or should some or all of the identified charge be deferred or waived. Attachments: + Letter from James M. Njus, Attorney representing Villaume. 4 Copy of the City Code authorizing storm drainage connection charges. City Administrator Attachments TLH/vmd MUNICIPAL AND PUBLIC ITrn IES 13.07 arrangements for payments have not been made, all such delinquent accounts shall be certified to the city clerk who shall prepare an assessment of the delinquent accounts against the property served or to be served. 7b each account, there shall be added a certification charge (preparation for certification of taxes of delinquent accounts) in the amount provided for by council resolution. This assessment roll shall be delivered to the council for adoption. Such action may be optional or subsequent to taking legal action to collect delinquent accounts. (Code 1983, § 3.06, eff.1-1-83; Ord. No. 90, 2nd series, efE 10-27-89; Ord. No. 194, 2nd series, eff. 1-12-95) Sec. 3.07. Stormwster drainage connection and availability charge. Subd 1. Stormwater drainage utility A stormwater drainage utility for the city is hereby established. The municipal storm sewer system shall be operated as a -public utility pursuant to Minn. Stat. J 444.075, from which revenue will be derived subject to the provisions of this chapter and to Minnesota Statutes. The stormwater drainage utility will be a part of the public works department and under the administration of the director of public works. Subd 2. Purpose of funds derived and allocation of revenue. The purpose of all funds derived is to pay for all or part of the construction, reconstruction, repair, enlargement, improvement or other obtainment and the maintenance, operation and use of the storm sewer utility as established by the city. All revenues derived from the fee shall be credited to the appropriate storm sewer fund. Subd. 3. Storm server utility fee. A. A storm sewer utility fee for connection and availability of the storm sewer facilities shall be determined by resolution of the council and shall be just and equitable. A charge for the connection and availability of storm sewer service may be imposed for all premises abutting on streets or other places where municipal storm sewers are located, whether or not connected to them. A charge for the availability and connection to the storm sewer service may, in the discretion of the council, be fixed by reference to the portion of the cost which has been paid by assessment of the premises. B. A storm sewer utility fee for use of the storm sewer facilities shall be determined by resolution of the council and shall be just and equitable. Charges made for the use of the facilities may be feed on the basis of water consumed, or by reference to a reasonable classification of the types of premises to which the service is furnished, or by reference to the quantity, pollution qualities and difficulty of disposal of the water, or in any other equitable basis including, but without limitation, any combination of those referred to above. Subd d. Adjustments. The council may adopt, by resolution, policies and standards for the adjustment of the fee for parcels. Such adjustments shall not be made retroactively. Subd & Exemptions. A. Public right"f--way are exempt from the fees established in subdivision 3, above. CD3:7 /0 3.07 EAGAN CODE r B. Vacant, unimproved land with ground cover and city -owned land are exempt from the fees established in subdivision 3, subparagraph B, above. Subd 6. Billings. Bills for charges for the fee shall be made by the finance department. All bills shall be payable at the office of the finance director. Subd 7. Recalculation of fees. If a property owner or person responsible for paying the fee questions the correctness of such charge, that person may have the determination of the charge recomputed within six months of mailing, by submitting to the director of public works a written request for the recomputation. Subd 8. Collections. All fees are due on the due date specified by the city for the respective account acid shall be delinquent 15 days thereafter. It is the duty of the city to endeavor to promptly collect delinquent accounts, and in all cases where satisfactory arrangements for payments have not been made, all such delinquent accounts shall be certified to the city clerk who shall prepare an assessment of the delinquent accounts against the property served or to be served. 7b each account there shall be added a certification charge (preparation for certification of taxes of delinquent accounts) in the amount provided for by council resolution. This assessment roll shall be delivered to the council for adoption. Such action may be optional or subsequent to taking legal action to collect delinquent accounts. (Ord. No. 101, 2nd series, eff. 5-25-90; Ord. No. 195, 2nd series, eff. 1-12-95) Sec. 8.08. Sanitary sewer connection and availability charge. Subd 1. Purpose of funds derived and allocation of revenue. The purpose of all funds derived is to pay for all or part of the construction, reconstruction, repair, enlargement, improvement or other obtainment and the maintenance, operation and use of the sanitary sewer utility as established by the city. All revenues derived from the fee shall be credited to the appropriate sanitary sewer fund. Subd 2. Sanitary seiner utility fee. A sanitary sewer utility fee for connection and availability of the sanitary sewer facilities shall be determined by resolution of the council and shall be just and equitable. A charge for the connection and availability of sanitary sewer service may be imposed for all premises abutting on streets or other places where municipal sanitary sewers are located, whether or not connected to them. A charge for the availability and connection to the sanitary sewer service may, in the discretion of the council, be fixed by reference to the portion of the cost which has been paid by assessment of the premises. Subd S. Adjustments. The council may adopt, by resolution, policies and standards for the adjustment of the fee for parcels. Such adjustments shall not be made retroactively. Subd 4. Exemptions. Public rights-of-way are exempt from the fee. Subd 5. Billings. Bills for charges for the fee shall be made by the finance department. All bills shall be payable at the office of the finance director. CD3:8 6 v ®4 July 29, 1997 A Public Works Committee meeting was held on Tuesday, July 29, 1997 at 3:30 p.m. in r,nference Rooms A and B of the Municipal Center building. Those present were City Councilmembers Blomquist and Wachter, who comprise the Public Works Committee, and Director of Public Works Colbert, Director of Finance VanOverbeke, Superintendent of Streets Erhart and City Administrator Hedges. VILLAUME INDUSTRIES/STORM WATER CONNECTION CHARGE Representatives of Villaume Industries, including Bob Linsmayer, Nick Linsmayer and Jim Luzum appeared to question a storm water utility connection fee the City is charging as a condition of a building permit issuance. Director of Finance VanOverbeke explained that all property in the City pays an assessment or connection fee for trunk area improvements. He further explained the difference between assessment and connection fees and the quarterly storm water utility fee, stating that assessment and connection fee amounts are used to pay for infrastructure, while the storm water utility fee is collected for ongoing maintenance. Bob Linsmayer, on behalf of Villaume, raised several questions, including why Villaume has taken out a number of building permits since 1970 and the issue of a storm water area trunk connection fee for the remaining property has never been questioned to date. Director of Finance VanOverbeke stated that in recent years City staff, at the direction of the City Council, does review commercial/industrial building permit applications to determine whether all trunk area charges have been paid to the City. He stated that in the case of Villaume, 8.5 acres were assessed in 1970; however, the remaining 7.5 acres, for whatever reasons have not been charged for the storm sewer trunk area improvements. Mr. Luzum and Mr. Linsmayer stated that it is the position of Villaume that their building, along with accessory buildings, have continually been used for the same purpose since 1970 and have been a good loyal commercial resident since that time. Mr. Linsmayer further stated that it is the opinion of Villaume that the bill paid in 1970 was for all storm water area trunk fees. He further stated that to come back 27 years later and request payment at today's rate is not acceptable and further that Villaume might not have built had they known this was a potential issue. After further discussion, City Councilmember Wachter, Chair of the Public Works Committee, asked representatives of Villaume what amount they felt would be a fair settlement. Mr. Nick Linsmayer, representing Villaume, stated that $1,500 seemed like a reasonable compromise so their company could assure an occupancy permit in September. Councilmember Wachter stated that it would be necessary to take any action back to the City Council. City Councilmember Blomquist stated that the whole policy of charging a connection fee for improvements that were made a number of years ago should be reevaluated. She further asked about the 1997 rates in effect for storm water trunk area charges. Director of Public Works Colbert stated that the single family rate is .079 per square foot or $3,362 per acre, the multi family rate is .099 per square foot or $4,213 per acre and the commercial/industrial rate is .121 per square foot or $5,150 per acre. After further discussion, the Public Works Committee directed staff to calculate what the charge would have been in 1970 for the entire 16 acres and also as a second scenario, use an inflation adjustment for 27 years to calculate that new amount. The Public Works Committee agreed to meet on Tuesday, August 5, at 4:00 p.m. with representatives of Villaume in an effort to resolve payment of the reconnection fee. BETTY ALLEN/PINES EDGE ADDITION City Administrator Hedges stated that Betty Allen was a resident of Inver Grove Heights who has expressed a concern regarding the current condition of her private access road from Weston Hills Drive to the east. She contends that the developer of the Pines Edge Addition (Shamrock Development) disturbed her preexisting private access drive and has not properly restored it to an acceptable fashion. She is requesting the City of Eagan to take the necessary steps to repair and/or restore her private drive to an acceptable condition. He further stated that Ms. Allen is asking for permission to change her address to Weston Hills Drive instead of Trunk Highway 3. The City Administrator stated that staff is able to accommodate that request. Public Works Committee Chairperson Wachter welcomed Betty Allen, Tom, King, Shorty MacMullen and to the meeting. Tom King, who resides at — Weston Hills Drive, provided a summary of the MINUTES OF A PUBLIC WORKS COMMITTEE MEETING Eagan, Minnesota v ®4 July 29, 1997 A Public Works Committee meeting was held on Tuesday, July 29, 1997 at 3:30 p.m. in r,nference Rooms A and B of the Municipal Center building. Those present were City Councilmembers Blomquist and Wachter, who comprise the Public Works Committee, and Director of Public Works Colbert, Director of Finance VanOverbeke, Superintendent of Streets Erhart and City Administrator Hedges. VILLAUME INDUSTRIES/STORM WATER CONNECTION CHARGE Representatives of Villaume Industries, including Bob Linsmayer, Nick Linsmayer and Jim Luzum appeared to question a storm water utility connection fee the City is charging as a condition of a building permit issuance. Director of Finance VanOverbeke explained that all property in the City pays an assessment or connection fee for trunk area improvements. He further explained the difference between assessment and connection fees and the quarterly storm water utility fee, stating that assessment and connection fee amounts are used to pay for infrastructure, while the storm water utility fee is collected for ongoing maintenance. Bob Linsmayer, on behalf of Villaume, raised several questions, including why Villaume has taken out a number of building permits since 1970 and the issue of a storm water area trunk connection fee for the remaining property has never been questioned to date. Director of Finance VanOverbeke stated that in recent years City staff, at the direction of the City Council, does review commercial/industrial building permit applications to determine whether all trunk area charges have been paid to the City. He stated that in the case of Villaume, 8.5 acres were assessed in 1970; however, the remaining 7.5 acres, for whatever reasons have not been charged for the storm sewer trunk area improvements. Mr. Luzum and Mr. Linsmayer stated that it is the position of Villaume that their building, along with accessory buildings, have continually been used for the same purpose since 1970 and have been a good loyal commercial resident since that time. Mr. Linsmayer further stated that it is the opinion of Villaume that the bill paid in 1970 was for all storm water area trunk fees. He further stated that to come back 27 years later and request payment at today's rate is not acceptable and further that Villaume might not have built had they known this was a potential issue. After further discussion, City Councilmember Wachter, Chair of the Public Works Committee, asked representatives of Villaume what amount they felt would be a fair settlement. Mr. Nick Linsmayer, representing Villaume, stated that $1,500 seemed like a reasonable compromise so their company could assure an occupancy permit in September. Councilmember Wachter stated that it would be necessary to take any action back to the City Council. City Councilmember Blomquist stated that the whole policy of charging a connection fee for improvements that were made a number of years ago should be reevaluated. She further asked about the 1997 rates in effect for storm water trunk area charges. Director of Public Works Colbert stated that the single family rate is .079 per square foot or $3,362 per acre, the multi family rate is .099 per square foot or $4,213 per acre and the commercial/industrial rate is .121 per square foot or $5,150 per acre. After further discussion, the Public Works Committee directed staff to calculate what the charge would have been in 1970 for the entire 16 acres and also as a second scenario, use an inflation adjustment for 27 years to calculate that new amount. The Public Works Committee agreed to meet on Tuesday, August 5, at 4:00 p.m. with representatives of Villaume in an effort to resolve payment of the reconnection fee. BETTY ALLEN/PINES EDGE ADDITION City Administrator Hedges stated that Betty Allen was a resident of Inver Grove Heights who has expressed a concern regarding the current condition of her private access road from Weston Hills Drive to the east. She contends that the developer of the Pines Edge Addition (Shamrock Development) disturbed her preexisting private access drive and has not properly restored it to an acceptable fashion. She is requesting the City of Eagan to take the necessary steps to repair and/or restore her private drive to an acceptable condition. He further stated that Ms. Allen is asking for permission to change her address to Weston Hills Drive instead of Trunk Highway 3. The City Administrator stated that staff is able to accommodate that request. Public Works Committee Chairperson Wachter welcomed Betty Allen, Tom, King, Shorty MacMullen and to the meeting. Tom King, who resides at — Weston Hills Drive, provided a summary of the UTILITY FEES FEE TYPE Trunk Utilit:r/Connection/Availability Charae 1997 FEE Trunk Sanitary Sewer Oversize Unplatted $1,730/Ac. Platted Residential 830/Lot Trunk Water Main Oversize Unplatted and Platted Comm. & Ind. 1,810/Ac. Platted Residential 865/Lot Water Supply a Storage (WAC) Non -Residential 2,855/Ac. Trunk Storm Sewer Oversize Single Family .079/S.F. Multi -Family .099/S.F. Comm. & Ind. .121/S.F. Lateral Benefit UtililX/Connection/Availability Charge Lateral Benefit from Trunk Sanitary Sewer Lateral Benefit from Trunk Water Main Single Family Multi -Family and Comm. 6 Ind. Lateral Benefit from Trunk Storm Sewer(l) 12" Storm Sewer 15" Storm Sewer 18" Storm Sewer 21" Storm Sewer 24" Storm Sewer 41.20/Centerline Foot 41.60/Centerline Foot 52.50/Centerline Foot 45.10/Centerline Foot 46.90/Centerline Foot 50.10/Centerline Foot 53.70/Centerline Foot 61.80/Centerline Foot '"Rates are based on a pipe at 15 foot depth. Cost for additional depth will be reviewed on a case by case basis. 18 Calculation Total Acreage 16.0 Acres Collection of Storm Drainage Area Charges: 1. Assessment in 1970 8.5 Acres 2. Balance collected as a connection charge 7.5 Acres 1997 Rate $.121/sq ft $.121 X 7.5 Acres - $39,530.70 11/06/95 16:26 EAGAN MICE FAC -> CITY HALL • r:. J p MEMORANDUM a� TO: Tom Colbert, Director of Public Works FROM: City AttorMLYs Office DATE: November 2, 1995 RE: Prior Assessments and Subsequent Utility Connection Charges Our File No. 246-7304 NO.070 P002f ZE In accordance with your recent request, our office examined the issue of whether the City of Eagan may impose utility connection charges on land against which assessments have been previously levied for the construction of the utilities. Specifically, this office understands that this issue arises under your department's consideration of the following hypothetical scenario: Jn 1990, a parcel of land was assessed a trunk area charge for sanitary sewer. In connection with an assessment appeal, the amount of the assessment was reduced to a lesser figure. A number of years later, that same property seeks a utility connection permit in order to hook-up to the sanitary sewer system. Based on the foregoing scenario, you requested an advisory opinion on the following issues: L Does the City have the authority to impose a connection charge on top of the prior assessment? 2. If so, what may the City impose as the connection charge: a. The current rate as set forth by City Council resolution? b. The current rate as set forth by City Council resolution, less the assessment previously paid? c. The difference between the property's original trunk area assessment and its actual proportionate cost of the trunk area improvement? The City has the authority to impose connection charges on property against which assessments for the utility improvements have been previously levied Minn. Stat. §444.075, Subd. 3; Crown Cork & Seal C==, Inc. v. Cfty of Lakeville 313 N.W.2d 196 (Minn. 1981); and Nordgren v. City of Maplewood. 326 N_W.2d 640 (Minn. 1982). R=96% 612 681 4300 11-06-95 04:24PM P002 #34 1 11/06/95 16:27 EAGAN MTCE FAC 3 CITY HALL NO.070 P003/005 Minn. Stat. §444.075, Subd. 3, grants to municipalities the authority to impose various sewer and water charges " [t]o pay for the construe :iM reconstruction, repair, enlargement, improvement, or other obtainment and the maintenance, operation and use..." of municipal water and sewer facilities.- As the Minnesota Supreme Court in Crown Cork explained: The statute speaks of three types of sewer and water charges; the City has the authority to impose "just and equitable charges for the use and for the availabilitr of such facilities and for connections therewith * * *." 313 N_W.2d at 198 (emphasis not added). The Minnesota Supreme Court explicitly held that the City's discretionary authority to impose a use, availability and connection charge, either separately or a combination thereof, to finance municipal sewer and water facilities is clearly granted in §444.075, Subd. 3. The essential facts in Crown Cork are of significance to the issues presented in this memorandum. In 1992, Crown Cork purchase property in the Airlake Industrial Park in the City of Lakeville. At the time of the purchase, the properly was improved with an industrial building used for the assembly of mobile homes and was already serviced by city sewer and water. The City project which brought sewer and water to the property had been fully assessed. The previous owners had connected to the municipal sewage and water facilities and paid assessments and connection charges for such hook-ups. In 1977, Crown Cork installed a canning manufacturing operation which required more water and produced more sewage and in tarn requimd the installation of larger service lines to be connected to the municipal facilities. The City of Lakeville levied a connection charge of $147,415,80. $45,204.00 of the connection charge represented the Mc opolitan Waste Control Commission's SAC charges levied upon the City. The remaining portion of the connection charges, $102,215.00, constituted the City's own connection charge. The formula for calculating the City sewer and water connection charge was patterned after the Metropolitan Waste Control Commission's formula for its SAC charge. Crown Cork argued that its property is exempt from connection charges because it has been previously assessed sewer and water unit charges. It was not disputed that the previous owner of the property paid four connection charges and the City credited Crown Cork for those four previous connection charges. The Supreme Court rejected Crown Cork's argument that any portion of a connection charge which exceeds the actual cost of making or supervising the connection to the facility May only be "fixed by reference to the portion of the cost thereof which has been paid by assessment of the premises to be connected, in comparison with other premises * * *." The Coot interpreted the above -quoted language from §444.075, Subd- 3, as merely setting forth "Vermissible methods of calculating connection charges, i.e. connection charges mgY be set by reference to the actual cost of connection as well as by reference to assessments paid by the coxwecting property, or, 'in the discretion of the governing body', III R=96% 612 681 4300 11-06-95 04:24PM P003 #34 11/06/95 16:27 EAGAN MICE FAC 3 CITY HALL NO.070 P804/005 . i by my other method, as long as the connection charge is, in the language of the statute, 'just and equitable: " 313 N.W.2d at 201 (emphasis not added). The Supreme Court a concluded that its interpretation "tallows local government maximum fleinbility in financing municipal sewer and water services * * *." 313 N.W.2d at 201. One year after the Supreme Court's decision in Crown Cork the Court reaffirmed its decision in Nordgren v. City„ of Maplewood 326 N.W.2d 640 (Minn. 1982). In ord the City assessed the properly owners undeveloped lots for water and sewer system improvements. The property owner appealed the assessments and the trial court reduced the assessments on three lots and voided the assessments on three others. The City did not appeal the triad court's decision and reduced the assessments accordingly. Subsequently, the property owner attempted to develop a lot and they City charged 54,202.00 as connection charges for hooking up to the water and sewer mains. When the City originally levied its assessments, this lot was assessed in the amount of $6,914.00, which was entirely voided by the Court in the challenge to the assessment. The district court in No en ordered the City to refund the cash connection charge to the property owner and held that the City was reimposing a charge already prohibited by the Court and thereby undermining the property owner's successful appeal of the assessment. The Minnesota Supreme Court, reversed the district court's order-- The rder= The levying of the connection charge in this case is authorized by Minn. Stat. §44.4.075. * * * As we noted in Crown Cork. connection charges are not assessments and may be imposed gn top of prior assessments. Thus, the City here could properly impose a connection charge on the land for which assessments were voided, so long as the charge is just and equitable as the statute requires. The April 1979 order voided assessments because there was no benefit to the land. Crown Cork held that the benefit to the land is not material to the different and separately authorized connection charge. Thus, imposition of a connection charge on. land where assessments were voided is.permissible when the landowners make connection with the improvements. 326 N.W.2d at 642 (emphasis added). The Court noted,, however, that the imposition of a connection charge would be impermissible if it were imposed discriminatorily, or if the charge was not just and equitable. 326 N.W.2d at 642. Finally, it is noteworthy to point out the Court's observation that "without an ordinance or resolution showing adoption of a standard charge imposed for all connections for sewer and water services, it is impossible to ascertain whether the charge imposed varied from that imposed on others. 326 N.W.2d at 642. Thus, the formal enactment of either an ordinance or a resolution describing a connection charge is necessary. 326 N.W.2d at 642. 3 R-96% 612 681 4300 11-06-95 04:24PM P004 #34 11/06/95 16:28 EAGAN MICE FAC i CITY HALL NO.040 P005/005 Applying the Minnesota Supreme Court's decision in N'or and Cn)wn Cork, the following may be concluded: 1: The City may impose a connection charge for property against with prior assessments for the utilities were levied; 2. The connection charge must not beimposed discriminatorily, i.e. the charge must also be levied against other similarly situated property owners; 3. The amount of the connection charge has no relation to the amount of benefit to the land as a result of the uctiiity impmvcmnts and may be in excess of the actual benefit and the actual cost of connection; and 4. Connection charges may be determined by: (1) reference to the portion of the cost of connection which has been paid by assessment of the premises to be connected in comparison with other premises; (2) by reference to the actual cost of connection; and (3) the cost of making or supervising the connection. SKH/wkt 4 R-96% 612 681 4300 11--06-95 04:24PM P005 #34