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EDSR INFORMATION 08-11-1997 2200 FIRST NATIONAL BANK BUILDING s 332 MINNESOTA STREET SAINT PAUL. MINNESOTA 55101 TELEPHONE ) 223-6600•RIGGS AND MORGAN FACSIMILE (612) 223-6450 PROFESSIONAL ASSOCIATION WRITgiS213 CT J 0 Jul 24 1997 IUl 25 WRITER'S E—MAIL Y 'Nd 0414414 MEMORANDUM O4 4 O4P /04, FROM: Jim O'Meara DATE: July 24, 1997 RE: 1997 Tax Increment Changes • Governor Carlson signed the 1997 'Tax Bill" on June 2, 1997. It is Laws of Minnesota for 1997, Chapter 231, and its Article 10 contains the following tax increment changes. A. New Definition of "Tax Increment". The terms increment, tax increment, tax increment revenues, revenues derived from tax increment and "other similar terms" (?) are now defined to include: (1) "Raw" tax increments, meaning the taxes generated by the captured net tax capacity which are payable to the TIF authority; (2) The proceeds from the sale or lease of any property, real or otherwise, which was purchased by the authority with tax increments; (3) The repayments of any loans or other advances made from tax increments; and (4) Interest or other investment earnings on tax increments. There are two effective dates for this change, and they are important. Items (1) and (4) above, dealing with "raw" increment and the investment earnings on increment, III 357509.1 MINNEAPOLIS OFFICE•IDS CENTER•WWW BRIGGS.COM MEMBER—LEX MUNDI,A GLOBAL ASSOCIATION OF INDEPENDENT LAW FIRMS BRIGGS AND MORGAN are effective only for post-July 31, 1979 TIF districts and for earnings received after July 1, 1997. Where does that leave increment (arid earnings thereon) from pre-1979 districts and earnings on increments (from post-1979 districts) received before July 2, 1997? There is a difference of opinion on that question. I have generally thought that earnings on increment should be accounted as such, which means that those dollars too are subject to all the rules applicable to the expenditure of tax increment. I have not necessarily changed that view, and strictly speaking I'm not sure an inference either way should be taken from this legislative action. The key element may be whether or not the State Auditor will cite violations in cases where authorities have accounted for such investment earnings as something other than tax increments. The effective date for items (2) and (3) above, dealing with money derived from the sale or lease of property purchased with increment and repayments of loans or other advances made out of increment, is also important. My view has always been that as a general rule such monies would not be reclassified as tax increments. This change now means that some of them will be, specifically, the proceeds from the sale or lease of property which was purchased after June 30, 1997, and repayments of loans that were made after June 30, 1997, but this applies only to increment from districts requested for certification after June 30, 1982. Note that if the property were purchased or the loan were made on or before June 30, 1997, the revenues from the sale or lease thereof, or the loan repayments, would not be classified as • increment even if the actual receipt of those monies occurred after June 30, 1997. B. "Small Cities" Get A "Commercial" Break: Economic Development Districts. Small cities can now establish economic development tax increment districts to provide assistance to up to 15,000 square feet of commercial facilities, which is a use that otherwise would not generally qualify for economic development district treatment. "Small city" means a city having a population of 5,000 or fewer residents that is not located within 10 miles of a Minnesota city with a population of 10,000 or more. The distance between the two cities must be measured by drawing a straight line from the nearest municipal boundaries. Population is to be determined by the most recent federal census, a special census conducted by the United State Bureau of the Census, a population estimate made by the Metropolitan Council, or a population estimate made by the State demographer. A second exception which may benefit a few small cities is the establishment of economic development districts for "qualified border retail facilities,"which means a shopping center or one or more retail stores located in the small city which is within one mile or less of the State line. The development must contain new buildings or substantially rehabilitate existing buildings that together contain at least 25,000 square feet of retail space. This sounds like special legislation in the garb of general law and will most likely have relatively rare applicability. These changes are effective for tax • increment areas requested for certification after June 30, 1997. 357509.1 2 BRIGGS AND MORGAN C. Redevelopment Districts: Subdivision 4i Limitations "Fixed". Section 469.176, Subdivision 4j, requires that at least 90% of the increment derived from redevelopment and from renovation and renewal TIF districts be spent on the types of conditions which will allow those districts to be established. That Subdivision goes on to state certain examples of uses that are permitted. The State Auditor had interpreted the enumerated list as exclusive, a viewpoint which garnered widespread disagreement. The law has now been clarified to state expressly that the permitted costs are not limited to the enumerated list and that they would also include, among others, the costs of rehabilitating structures and remediating hazardous substance or contaminated conditions. This provision is retroactive in the sense that it applies to all tax increment districts to which this 1989 rule ever applied and states that they conform to these requirements if they meet the new version of the Subdivision. D. Fiscal Disparities Must Now Come Out of Economic Development Districts. Effective for tax increment areas requested for certification after June 30, 1997, the fiscal disparities contribution must now come out of all economic development districts. Heretofore, the authority had the option to retain all of the captured tax capacity for tax increment purposes and effectively make the fiscal disparities contribution from properties outside of the district. This affects the metropolitan area and the Iron Range. It obviously reduces the amount of tax increment which such new districts can generate. It does not affect the ability of these cities to have fiscal disparities retained as increment in the other types of districts. E. Economic Development District: Inflation Factor. The base value of an economic development district is increased annually by the average percentage growth of the market value of the property during the five years prior to the establishment of the district, the so-called "inflation factor." This is an old rule which was presumably intended to counteract generating increment from"inflationary"increases in land and property values. However, in a number of instances it resulted in a huge inflation factor and the bizarre result that virtually no tax increment could be generated from the district even following the completion of significant building value. The change is that in computing this average percentage increase in the market value over the applicable five year period, market values are to be excluded which are attributable to new construction; extension of sewer, water, roads or other public utilities; or platting of the land. This is a very welcome and sensible change, effective for tax increment areas requested for certification after June 30, 1997. F. Interior Inspections of "Structurally Substandard" Buildings Required; Exception. For redevelopment and renewal and renovation districts, a certain percentage of the buildings must be "structurally substandard." The law now requires that this determination cannot be made unless there has been an interior inspection of the building. This requirement does not apply if the city or the authority is unable to gain access to the property after a "best efforts" attempt to obtain permission and if • the evidence otherwise supports a reasonable conclusion that the building is substandard. Such evidentiary support would include recent fire or police inspections, 357509.1 3 BRIGGS AND MORGAN • on-siteroPertY tax appraisals or housing inspections, exterior evidence of P PP deterioration, or"other similar reliable"evidence. Written documentation of all these findings and the reasons why the inspection could not be conducted must be made available at the time of TIF decision-making and retained for the life of the district. In a similar change, the law now specifies that the reasons and supporting facts must be documented as to why a district qualifies as a redevelopment or a renewal and renovation district. That seemed already required. These changes are effective for tax increment areas requested for certification after June 30, 1997. G. Longer Duration Limit For Soils Condition Districts. New soils condition districts are under current law restricted essentially to polluted or contaminated sites. Heretofore, the duration limit was 12 years from date of approval of the tax increment plan,which in practical terms usually meant no more than 10 years of tax increment. The change is that the duration may extend until 20 years after receipt by the authority of the first increment. This, in practical terms, means a maximum of 21 years of increment. In a related note, the State Auditor has recently advised the County Auditors about duration limits applicable to redevelopment districts and to economic development districts, respectively. The duration limit for redevelopment districts is 25 years from the receipt of the first increment. This has been interpreted by the Auditor to effectively allow 26 years of increment because the annual receipt of increment is deemed to be a unitary event, notwithstanding first • and second half tax settlements. Therefore, if 1997 is the first increment year, 2022 is the last increment year, thus yielding 26 years of increment. It is on that same theory that a new soils district could generate up to 21 years of increment. For economic development districts, however,the duration limit is 11 years from date of TIF approval or 9 years from date of receipt of first increment, whichever is less. It has been a fairly common practice, particularly where one establishes a tax increment district in the first six months of a year (and thus uses the previous year's market value for determining the base value of district), to waive any increment that might be generated in the following year simply due to a small increase in the property value of the district. It was still possible to stay within the 11 year limit and retain 9 "full" years of increment, that is, the increment generated by the new development. The State Auditor, however, has decided that since there is no express authority in the Tax Increment Act to waive that potential and incidental first year of increment, it can't be done. Whatever technical merit this view may have, waiving the first year of partial increment was practical and sensible. This should not be a problem when one is setting up a tax increment district in the second half of the year because one then uses the market value as of January 2 of that same year for base purposes, so there is generally no opportunity for a marginal tax increment to be generated in the following year. As you are probably well aware by now, there were significant reductions in the class IP rates which apply to various classes of property for payable 1998 and subsequent taxes. One of the more significant changes occurred in the commercial/industrial area. Heretofore the 357509.1 4 BRIGGS AND MORGAN • first $100,000 of market value had a class rate of 3% rate, with the remainder at 4.6%; 0 however, that"first tier"3% rate was a_one-time only in each county for each taxpayer. Now the first $150,000 of market value has a class rate of 2.7%, with no one-time limitation, except for contiguous properties owned by the same "person," and everything over$150,000 has a 4% class rate. That 4% figure has been a "target" class rate for some time, and the Legislature has now established a new target C/I class rate of 3.5%. Rental and other kinds of properties also received significant reductions in their class rates. This obviously will affect, and probably negatively, the amount of tax increment which existing TIF districts will generate. There has been a $2 million fund established at the Department of Revenue to offset tax increment authorities which have certain such "losses" due to these tax changes, such as not being able to meet bond or contract obligations. There is also limited ability to pool otherwise non-poolable increment to meet such shortfalls. It is my intention in the near future to elaborate on this fund and also on the new "abatement" tool in separate memorandum. For now, a few preliminary observations about "abatement": (1) Abatement comes with a lot less baggage than TIF. For example, the use restrictions, local contribution requirements and other expenditure limitations are not present. Projects which don't qualify for TIF may well qualify for abatement. In general, abatement doesn't pack near the financial wallop as TIF does. (2) In some respects, abatement is more cumbersome and less useful than TIF. It compartmentalizes each of the taxing jurisdictions (county, city, and school). Each would have to approve the abatement of its share of the taxes. The maximum term of the abatement is generally ten years. (3) General obligation bonding cannot be done under abatement without a bond referendum; by contrast, if TIF is expected to cover 20% of the cost of a project, general obligation bonds can be issued without election. (4) Representative Abrams was one of the proponents of abatement. One of his watchwords is "accountability" and on that basis he does not sound entirely enamored of TIF. The TIF changes mandated the establishment of a "recodification" task force composed of six members from the House and six from the Senate. This supposedly is not meant to be a "substantive" or policy- driven exercise. However, simply picking up the law and putting it somewhere else in the statute, whether it is next to other similar laws or not, is in my view rearranging the furniture. Some things may be gained and some lost in the move. It will not"s"implify" anything unless the Legislature is willing to change the rules of all the various vintages of tax increment districts retroactively. One wonders whether the objective of some might simply be to leave this new, • and generally less useful abatement tool on the books and delete TIF. 357509.1 5 BRIGGS AND MORGAN • The above tax increment changes are fairly modest. If anything, most of them are slight improvements. Several more restrictive proposals which came out of the House Tax Committee did not survive, including the requirement lo hold public hearings for many implementation steps of the tax increment process, the proposed limitation on using increment for "public" buildings and projects, and the proposal to limit the expenditure of redevelopment tax increments to the "subdivision 4j" partial, enumerated list. I would also like to advise you that Mary Ippel of our office and I are co-chairing a tax increment seminar to be held at the Bloomington Marriott on Thursday, November 13. We will hear various perspectives on tax increment from Representative Dennis Ozment, Senator John Hottinger, and lobbyist Diane Koebele. Richard Gardner of the Department of Revenue will speak on what does and doesn't work for making qualifying local contributions in lieu of the LGA/HACA penalty. Gary Carlson of the League of Minnesota Cities will speak about the 1997 property tax changes and their impacts. Gary is expected to have several specific "before" and "after" comparisons for actual cities, tracking the tax burden shift and the effect on tax rates. Jennifer Mohlenhoff, the Director of the State Auditor's Tax Increment Financing Division,will present the State Auditor's views on various TIF issues. Mary and I will be speaking briefly on technical tax increment issues during nap time, including the new TIF changes, abatement, and $2,000,000 fund. The seminar is sponsored by the Minnesota Institute of Legal Education. I believe it will be an interesting (and not too long a) day, and I hope your schedule will permit you attend. Let me know • if you need further information. • 357509.1 6 S ELK RIVER ECONOMIC DEVELOPMENT AUTHORITY w�O MEMORANDUM ®ww,, IN_ TO: EDA Finance Committee 04,4_ r FROM: Paul T. Steinman, Director of Economic 04, Development DATE: August 5, 1997 SUBJECT: Review Modifications to Micro Loan Fund A meeting of the EDA Finance Committee has been scheduled for 4 p.m., Thursday, August 14, 1997, here at City Hall to review proposed modifications to the EDA Micro Loan Fund Guidelines. In addition to reviewing the modifications which are being proposed and are attached to this memo, staff would like to discuss with the Finance Committee a creative • loan package to finance improvements to the former Snyder Drug building at the corner of Jackson Avenue and Main Street. Such proposal has not yet come forward, but staff has been discussing a number of different options with the buildings owner, including the use of the EDA Micro Loan Fund. Staff feels it would be appropriate at this time to discuss these conceptual ideas with the Finance Committee. Attached to this memo are the modified Micro Loan Fund Guidelines as proposed for discussion by staff. Those areas that contain an asterisk and are underlined represent the major modifications which staff would like to discuss with the Finance Committee. Please call me with your comments on the attached material if you are unable to make the meeting. I can be reached at 441-4905. Thanks, and we'll see you on Thursday, August 14, at 4 p.m. here at City Hall. 0 \eda\meetings\mmfincom.doc 13065 Orono Parkway • R. O. Box 490 • Elk River, MN 55330-1743 • (612) 441-7420 • Fax (612) 441-7425 Equal Opportunity Housing and Equal Opportunity Employment