Under legal pressure, the city of St. Paul all but scrapped direct billing for its annual “Right of Way” street maintenance program a few years ago and moved two-thirds of the $32 million in street funding onto property taxes.

Now, an attorney is going after the final third.

In a legal appeal served on the city Tuesday, Jack Hoeschler maintains that the city has no legal authority to charge property owners directly for about half the cost of mill and overlay work on major thoroughfares, which are used by residents and businesses citywide.

Hoeschler said he will file the case in Ramsey County District Court next week on behalf of homeowners Christina Anderson and Simon Taghioff, the Soo Line Railroad and more than 20 other property owners.

“Everyone assumes in a well-ordered city that you’ll have reasonably maintained streets,” said Hoeschler. “It is not a special benefit. If you were looking at a house along Victoria Street, would you pay more for that house because the street had been resurfaced? In most cases, no. If you were a smart buyer, you’d pay less, because now you have to pay for these years and years of assessments.”

City Attorney Lyndsey Olson said her office is still reviewing the appeal. Liz Xiong, a spokeswoman for Mayor Melvin Carter’s office, said a formal response will be ready soon.

The Anderson-Taghioffs have said they were charged $5,000 for a mill-and-overlay project along Victoria Street, unfairly burdening them with the cost of maintaining a road that is used by everyday commuters, school buses, Metro Transit buses and delivery vehicles alike.

The city later agreed to cover the cost of curb cuts, reducing their bill almost by half, but the couple maintain they should not receive a “fee” or direct assessment at all for general public services that might otherwise be funded through property taxes.

“Their neighbors on residential streets are not assessed at all,” Hoeschler said.

Hoeschler’s appeal calls the special assessments for mill and overlay work “an unconstitutional taking without due process,” and notes that the property owners received no special benefit or increase in property value to justify the assessment.

In fact, states the appeal, the city refers to the assessments as “fees” in many of their public materials, obscuring the process through which assessments can be challenged under the city charter.

“The fee moniker is purposely used to avoid describing any appeal rights,” reads the appeal.

CHURCH LAWSUITS BEGAN IN 2011

The appeal goes on to say: “The city seeks to solely burden properties adjacent to major thoroughfares for the disproportionately higher cost of maintaining those high use and high volume roads that serve wider segments of the public than the neighborhoods through which they run. Neither these high costs nor the high usage on those roads cause any special benefit to the plaintiffs’ properties.”

Beginning in 2011, Hoeschler started representing the First Baptist Church of St. Paul and a number of additional plaintiffs in a series of annual lawsuits against the city’s ROW assessment program.

The ROW program — which funded the city’s mill and overlay work, seal-coating, street lighting, snow plowing, pothole patching, street sweeping and other services through direct assessments to property owners — was ultimately scrapped. It was then reorganized into the “street maintenance program” after a negative ruling in 2016 from the Minnesota Supreme Court.

The court found that the right-of-way charges — which were applied to more than 81,000 homes, churches, nonprofits, universities and businesses each year — are effectively taxes aimed at benefiting the public as a whole. As such, the court found, they should not be treated as fees issued in exchange for special benefits awarded to individual property owners. Related Articles Sept. 30 is last day for public comment on Pigs Eye Lake makeover

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Moving the ROW charges to the city’s general fund — which is largely supported by property taxes — has shielded nonprofits, government buildings and other non-taxable properties from having to pay about 70 percent of the previous cost.

Most other property owners have not been not so lucky.

In 2018, the city’s tax levy, or sum total of all property taxes collected, increased by about 19 percent as a direct result of the shift.