Missouri Municipal Review, September/October 2019

REVIEW

A U N I T E D V O I C E F O R M I S S O U R I M U N I C I PA L L E A G U E C O M M U N I T I E S

THE MISSOURI MUNICIPAL

September/October 2019

Washington, Missouri: A City On The Move 1 Conservation In The City | Religious Displays At City Hall | Comprehensive Planning Municipal Government 101 • Positive Policing • Annual Conferencewww.mocities.com Photos

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THE MISSOURI MUNICIPAL

September/October 2019; Volume 84, No. 5

CONTENTS Features 6 Washington, Missouri: A City On The Move

by Sal Maniaci

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10 Conservation Goes To Town

by Francic Skalicky

15 Religious Displays At City Hall

by Texas Municipal League Legal Staff

19 Comprehensive Planning

by Avery Share

Departments 5 Director's Review

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24 Local Review: Pension Investments For Missouri

28 FAQ: Tax Increment Financing

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Local Review: Gateway 311 App

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Local Review: FCC Cable Order

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MML Calendar Of Events/ Members' Notes

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MISSOURI MUNICIPAL LEAGUE BOARD OF DIRECTORS President: Council Member Chris Lievsay, Blue Springs: Vice President (and Immediate Past President): *Matthew G. Robinson, Mayor, Hazelwood; Eric Berlin, City Administrator, North Kansas City; Rob Binney, Council Member, Lee's Summit; Paul Campo, Attorney, Williams and Campo, PC; Chuck Caverly, Councilman, Maryland Heights; Adam Couch, Mayor, Odessa; Michele DeShay, Mayor, Moline Acres; Joe Garritano, Council Member, Wildwood; DJ Gehrt, City Administrator, Platte City; Barry Glantz, Mayor, Creve Coeur; Debra Hickey, Mayor, Battlefield; *Bill Kolas, Mayor, Higginsville; *Norman McCourt, Mayor, Black Jack; Marcella McCoy, Finance Director, Harrisonville; Cindy Pool, Council Member, Ellisville; *Kathy Rose, Mayor, Riverside; *Carson Ross, Mayor, Blue Springs; Samuel Snider, Alderman, Willard; *Gerry Welch, Mayor, Webster Groves; Jeanie Woerner, City Clerk, Raymore *Past President AFFILIATE GROUPS Missouri City Management Association; City Clerks and Finance Officers Association; Government Finance Officers Association of Missouri; Missouri Municipal Attorneys Association; Missouri Park and Recreation Association; Missouri Chapter of the National Association of Telecommunications Officers and Advisors; Missouri Chapter of the American Public Works Association; Missouri Association of Fire Chiefs EDITORIAL Laura Holloway / Editor Lholloway@mocities.com Dan Ross, Richard Sheets, Lori Noe Contributing Editors The Review September/October 2019; Volume 84, No. 5 The Missouri Municipal Review (ISSN 00266647) is the official publication of the Missouri Municipal League state association of cities, towns and villages, and other municipal corporations of Missouri.

Publication office is maintained at 1727 Southridge Drive, Jefferson City, MO 65109.

Subscriptions: $30 per year. Single copies: $5 prepaid. Advertising rates on request.

Published bi-monthly. Periodicals postage paid at Jefferson City, Missouri.

Postmaster: Send form 3579 to 1727 Southridge Drive, Jefferson City, MO 65109.

Cover Photo: Washington, Missouri

To contact the League Office call 573-635-9134, fax 573-635-9009 or email the League at info@mocities.com.

Website: www.mocities.com.

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Director's Review

by Dan Ross, Executive Director, Missouri Municipal League

Thank You For Allowing Us To Serve You! “MML is an incredible asset to municipalities, both large and small. I greatly appreciate knowing that answers are only a phone call or email away!”

~Survey Comment

The results of our 2019 MML Membership Survey are in. Nearly 500 municipal officials participated and shared how MML can better serve you.

Based on the results, a major reason municipalities belong to MML is to stay up to date with the latest legislative information affecting local government. Eighty-eight percent of members who responded to the survey indicated this was a primary focus when joining MML.

"

By far, the biggest issue you shared is a lack of finances for your city to provide the services your citizens rely upon.

We recognize that your budget needs to stretch further than ever before, and it makes us value your membership more than ever.

"

Other reasons for joining MML include the valuable conference and training opportunities along with a wide variety of networking opportunities. It is important to remember that no official or city is alone when it comes to community challenges. Member cities and MML staff offer ideas, tools and resources that can turn your challenge into a community success.

Join us for an upcoming conference, regional meeting or webinar and learn for yourself the value of continued training and networking!

Nearly 60% of you are taking advantage of MML’s valuable inquiry service, where answers to everything from animals to zoning are just a phone call away. MML staff answers more than 5,000 questions annually to assist you with budgets, council procedures, planning and zoning and much more. Inquiry services can be utilized by calling (573) 635-9134 or emailing info@mocities.com.

Sixty-five percent of those surveyed not only read The Review magazine, but indicated that they read each or nearly each issue that is sent each year. We also heard that you value the monthly e-newsletter, particularly for advocacy and grant information. MML will continue to work to bring more of that important information directly to you.

Your communities are not without challenges. By far, the biggest issue you shared is a lack of finances for your city to provide the services your citizens rely upon. We recognize that your budget needs to stretch further than ever before, and it makes us value your membership more than ever. MML will continue to answer your questions, provide critical training and resources, and most of all, advocate for the needs of cities to state and federal legislators.

When we work together and speak as one voice, it’s powerful.

The survey made it abundantly clear that legislative topics and advocacy information is a top service we can provide. It is so important that you participate in the advocacy efforts and add your voice. If you are not part of one of MML’s four policy committees, or are not in regular contact with your state legislator, we urge you to contact us and learn more about how you can participate in the process and help ensure that state and federal legislators understand how proposed legislation affects your citizens directly. Again, when we speak as one voice, we are a powerful presence!

Thank you to all members who participated and provided valuable information back to the board of directors and MML staff. Your ideas and suggestions are crucial to help us benefit communities across the state. Thank you also for the many encouraging and positive statements about MML staff, products and services.

We are humbled and thankful that you allow us to serve you. Contact us any time we can assist your community! Contact us If you would like to see a copy of the full survey results. www.mocities.com

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FEATURE Review

by Sal Maniaci

Washington, Missouri: A City On The Move

About Washington

A Call To Action

Washington, Missouri, located approximately 45 minutes west of St. Louis, has the benefit of being part of the St. Louis Metropolitan Statistical Area (MSA), while still being able to provide its own residential and commercial opportunities with a unique sense of place. With a population of approximately 15,000, Washington is a historic community situated at the southernmost point of the Missouri River. Originally explored

by Lewis and Clark and settled by German immigrants in 1839, today Washington boasts a strong manufacturing and commercial economy and a thriving downtown. Washington serves a trade area of approximately 60,000 people, and over the years has made a name for itself as the Heart of Wine Country with a strong tourism economy. With the City’s expansive park system, the bustling downtown, and festivals and events put on throughout the year, there is never a shortage of things to do and see while in Washington.

While Washington has become an excellent place to take a weekend trip, it has always been home to a regional workforce. Since its incorporation, Washington has always been a strong manufacturing town. For more than 100 years, the commercial and residential growth would follow the new industry and, although commercial development moved out to the highway and new subdivisions followed suit, downtown remained the core of the community.

From 2000–2010, the City helped facilitate the development of a new industrial park with continued business expansion and job growth, even through the brunt of the recession.

Retail development followed this trend through the same time period with the completion of a major shopping center and expansions to the highway system. The resiliency of the commercial and industrial economy in Washington remained apparent through the recession.

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City staff realized, however, after reviewing the 2010 census data that residential growth did not mirror the commercial and industrial growth.

Washington’s population had increased by .08%. A workforce study was completed and showed that 79% of the City’s workers lived outside the city limits solidifying Washington as a magnet for industry, but not as a destination for families.

Given the amenities downtown and throughout the City, it was logical to derive from the study that the potential for residential growth existed but the main deterrent was the cost of land in Washington. City planning staff along with the community and economic development department recognized the issue and proposed several policy updates to facilitate more affordable residential growth. A new comprehensive plan was written with hundreds of comments and input from the community. It was determined that a main goal was to diversify housing options in Washington and facilitate more opportunities for renters and first-time home buyers. This resulted in three major development code changes and an overhaul of the City’s zoning code.

The first proposal was meant to tackle land cost. The cost per acre in Washington in some cases was twice as much as the cost in two neighboring communities. At the time, the City required all new subdivision lots created to be at least 10,000 square feet in size. The City created two new zoning districts to increase the housing density. One allowed lots sized down to 7,500 square feet. The other allowed 6,000-square-foot lots. Washington saw an increase in subdivision development almost immediately.

The second proposal included an attempt to lower development cost that in turn was passed on to the homebuyers. In one instance, this included allowing for narrowed street widths on certain streets that would not have through traffic on them. It also allowed for narrower streets and right of way when restricting parking to one side of the street.

The third development policy proposal included increasing the density allowance for multi-family development. It became clear that the outdated code from the early 80’s discouraged developers from investing in multi-family development. The City increased the density maximum by 33% to help meet the goal set forth in the comprehensive plan. Within one month, the City received requests for 160 units over three sites.

Lastly, Washington made the decision to completely overhaul the zoning code. Major updates had not occurred since the 1980s and the City saw this as an opportunity to

A comprehensive plan, with hundreds of comments and input from the community, determined that a main goal was to diversify housing options in Washington, facilitating more opportunities for renters and first-time home buyers.

modernize the code. The new code section updated zoning definitions and created policies for more modern uses, such as microbreweries and distilleries. The new code made it easier to develop mixed uses in the downtown district and created an opportunity for more planned developments.

Continued Revitalization Downtown Washington saw an opportunity to facilitate growth throughout the community and provide housing options with the code changes allowing for new development throughout the City. All the while, attention was never shifted away from downtown; the City recognized it as its best asset. Today, someone returning to visit downtown Washington for the first time since 2007 might find portions

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of it unrecognizable. Over the past 12 years, Washington has focused on underutilized areas of the downtown with great success. The City utilized tax increment financing (TIF) districts to not only identify blighted and underutilized land downtown but to facilitate swift redevelopment. It began in 2007, with the Bank of Washington choosing to invest in downtown by rebuilding their $7-million headquarters on Main Street. Their commitment to the district allowed the creation of a conservation district that covered most of downtown and gave the City a tool to invest in much-needed improvements. This allowed for the completion of large projects that cleaned up the district and encourage continued investment. These projects include burying all overhead utility lines, streetscape enhancements, public parking, and other aesthetic enhancing projects. As a result, over the past 12 years, downtown Washington received more than $30 million of private investment in three active TIF districts that include 40 new residential units, new bars and restaurants, and 20,000 square feet of newly constructed retail space.

All of this was constructed on underutilized or vacant lots downtown and has encouraged redevelopment of existing historic structures.

With the success of major redevelopment projects, the City and Downtown Washington, Inc. also realized an opportunity to assist property owners on smaller projects.

The active TIF districts proved a success for downtown as a whole, but Washington wanted to expand that opportunity to property owners in the district that were not part of the major redevelopment. The City introduced The Small TIF Program. This program allowed owners of existing structures in a TIF district to recoup some of the property taxes captured from the increased development. If an owner of an existing structure agreed to add upstairs commercial or residential space, make façade improvements, or redevelop with environmentally friendly materials, they became eligible for a rebate of 80% of the increase in property taxes. The rebate is taken out of the sales tax generated TIF district fund and given back to participating property owners in the district. The City wanted to recognize the commitment and investment of existing downtown owners and the Small TIF Program proved a good way to do so.

Downtown Washington, Inc., also created a low-interest loan program for owners of existing buildings in the district.

These funds were made available through a Neighborhood

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(Left) Part of the City's development code changes included increasing the density allowance for multi-family development.

(Middle) The ability to offer large- and small-scale incentives for developers and property owners increased investment in the district. (Right) The progressive actions of the City and Downtown Washington, Inc., since 2007, are what drove the recent increase in investment and residential development.

Assistance Program Grant from the Missouri Department of Economic Development and allows downtown property owners to apply for up to a $100,000 loan offered at a 1% interest rate. As the loans are paid back, Downtown Inc. can loan the money out again to additional property owners in the area. Owners were able to participate in both programs. The ability to offer large- and small-scale incentives for developers and property owners, increased investment in the district and solidified downtown Washington as a destination.

When marketing Washington as a place for young families to land, the downtown area became the City’s most effective recruitment tool.

Moving Forward The progressive actions of the City and Downtown Washington, Inc., since 2007, are what drove the recent increase in investment and residential development. In true Washington fashion, a new group of young citizens have been encouraged by the development and taken on a call to action of their own heading in to the new decade. A group called the Washington Young Ambassadors has formed and aims at continuing the progress by attracting more like-minded young professionals and the employers for whom they work.

The group actively organizes networking events, pub crawls and happy hours, and speaking events to engage the young professionals of Washington. In 2019, with the support of the local banks, they contracted with a video production company to create a video series on Washington. The sixpart series will display Washington as a great place to live, work and play, and as a destination for young professionals to build a career and family life. A website, www.washmoworks. com, has also been created to highlight job opportunities in the area. Now, anyone looking for a new job or graduating from school can visit the site and search by job description or major to find the right position for them in Washington.

The group also works with regional high schools, community

colleges and universities on reaching out to alumni lists to highlight all the opportunities Washington has to offer.

Adopting the slogan, “Washington, MO … Plan on Staying,” the Washington Young Ambassadors are giving people all the tools they need to do just that — to plan on staying in Washington.

For more information on Washington, visit www.WashMo.org.

Sal Maniaci is a 2014 graduate from Missouri State University, where he received his bachelor’s degree in community and regional planning. He began his career as a county planner for Jefferson County, Missouri. In 2016, he was offered a position as city planner in Washington, the town he grew up in. Today, he is serving as community and economic development director for Washington, working to retain and attract new business as well as grow the community’s workforce.

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FEATURE Review

by Francis Skalicky

Conservation Goes To Town

Building with nature is becoming an important part of urban planning.

It is 5:15 p.m. on a Wednesday, and Springfield’s Martin Luther King Jr. Bridge depicts a tale of two cities.

The pulsating swoosh of vehicles passing across the bridge is the tempo of an urban rush hour going smoothly.

It is an auditory narrative of a thriving midtown economy.

Beneath the bridge, a different story of city life is portrayed. Here, the bridge supports trees, not traffic. Users of the greenways trail that passes beneath the bridge can observe a wealth of forest facts from a Tree City USA mural that adorns the bridge’s abutments.

The artwork that is a cooperative effort of civic and state organizations, has information on the functions and features of trees growing in and around Springfield. Adjacent to the bridge is an array of trees planted along the trail.

A concrete underbelly of a downtown bridge may seem like an unusual place to read about natural resource

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stewardship but using routes to talk about roots is one example of how a growing number of resource experts, architects, developers, city planners and residents are making conservation a part of life in the City. Communities across the state are realizing the same conservation practices that help the state’s forests, prairies and streams thrive, also have a place in urban areas.

Conservation Heads Uptown And All Over Town “Today we are learning how to interweave nature throughout our cities,” said Ronda Burnett, a community conservation planner for the Missouri Department of Conservation (MDC) in Springfield. “Community conservation matters to the citizens of Missouri because it is a way to preserve our sense of place and our cultural heritage. It helps us to understand the natural world in which we live and to connect to nature in ways that make us healthy and happier.”

The Martin Luther King Jr. Bridge’s tree information is an example of promoting resource stewardship in an urban setting, but community conservation consists of more than informational signage and decorative plantings. Incorporating natural features and native habitats into a site’s design through the use of vegetated swales (small depression planted with native plants), rain gardens, green roofs, tree shelter belts, wetlands, pervious (porous) pavement and other lowimpact development (LID) practices can provide economic and safety advantages, as well as conservation benefits. Statewide examples show how.

In Springfield, a system of microdetention basins (wide, shallow, vegetated basins) on the grounds of the Brentwood Library improves water quality by filtering out pollutants carried in runoff from the roof and Photographs by Noppadol Paothong, courtesy of the Missouri Department of Conservation.

parking lot. It also benefits nearby drivers and residents by reducing the amount of water that drains onto adjacent streets following heavy rains.

At the corporate headquarters of Alberici Constructors Inc., a construction firm based in St. Louis, extensive use of native plants on the site eliminates the need for an irrigation system. A catchment system consisting of two retention ponds collects rainwater from the garage roof area.

This rainwater is stored in a cistern, treated and then used for sewage conveyance, saving nearly 150,000 gallons per year. The site’s constructed wetland and prairie-style landscaping has kept paving to a minimum and has reduced the “heat island” factor. Heat islands form in urban areas where large, paved areas absorb and retain heat from the sun. These areas increase energy costs and contribute to heat-related illnesses.

Helping Humans And Habitats “Community conservation practices are becoming more common in cities because they are now better understood and viewed as viable options for achieving project goals,” Burnett said. “The marketplace is supplying the products needed for these practices and the incentives, via green certification programs, to construct them. Professionals are now trained to design and specify these practices, and facility and grounds managers are learning about their longterm maintenance needs. Everyone is becoming more aware of the benefits of community conservation practices.”

As more architects, engineers and city governments realize there is a need for nature in urban development, MDC staff has played increasingly important roles in communities around the state.

“Planning, design and development professionals, many of whom were educated out of state, benefit from

technical assistance offered by the Missouri Department of Conservation,” Burnett said. “They come to us to better understand local wildlife that native plants will provide the functions needed for green infrastructure systems to work as intended, and how people benefit from nature. Department staff are able to provide site-specific information about natural resources that help make the integration of nature into cities a successful endeavor.”

Some of community conservation’s benefits do not show up as figures on a spreadsheet or numbers on a construction budget, but they are just as important.

“Community conservation also provides health benefits,” said Carrie Lamb, the water quality coordinator for the city of Springfield. “I think most people would agree that it is more pleasant to walk down a tree-lined street than one with no trees. More and more studies show that trees, views of nature, and access to nature in our daily

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Download a free copy of the M i s s o u r i D e p a r t m e n t of Conservation's "Conservation Planning Tools for Missouri Communities – A Reference Manual," by visiting short.mdc.mo.gov/ ZMg.

lives reduce stress and crime, provide a better work environment, and even help people heal faster from illness.”

A n d , of c ou r s e , c om mu n it y conservation efforts provide habitat benefits.

“Even though urban wildlife habitats tend to be relatively small, they still contribute to natural diversity and provide considerable wildlife benefit,” said Josh Ward, MDC community conservation planner in St. Louis. “For example, researchers are finding that native bee abundance and diversity in urban areas like St. Louis is comparable to that of other high-quality Missouri habitats.

“Think of it as providing habitat for wildlife and people,” Ward continued.

“Improving wildlife habitat is the main component, but community conservation is also about people. A benefit of providing public access to urban wildlife habitat is to provide educational opportunities to a larger audience.”

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Slower, Safer, Cooler Flows An example of the benefits habitat can provide in an urban setting can be found in the city of Columbia’s Median and Roundabout Native Habitat Project.

In an e f for t to c re ate m ore productive green spaces, the Columbia Public Works Department, Office of Neighborhood Services, and the Sustainability Office have partnered to design and implement native plantings at selected medians and roundabouts across the City. In addition to providing habitat for butterflies and other pollinating insects, these medians will better serve people. Studies have shown that these types of areas vegetated with native plants tend to slow the traffic that makes the area safer, and also increase the property values of neighboring buildings. Native plantings also reduce drivers’ fatigue, anger and stress. On top of that, maintenance costs are reduced because they do not have to be mowed.

An MDC-assisted refurbishing of Springfield’s Government Plaza,

completed in 2015, is an example of how construction and conservation can go hand in hand. When the complex’s parking lots were built decades earlier, the design was typical of that era’s prevailing function of paved areas — to move water off the site as quickly as possible. However, the problems associated with fast water runoff provided clear signs there had to be a better way to build a parking lot. In particular, flooding washes pollutants into nearby streams. In hot weather, rainwater warmed by hot pavement flows into streams, killing fish and degrading habitat. The reconstruction of the parking areas featured pervious pavement, rain gardens and bioswales planted with natives. Together, these features capture a portion of the rainfall through infiltration. This reduces the runoff volume and associated pollution into nearby Jordan Creek, a stream that carries water through the center of the City into Wilson’s Creek, then into the James River and, ultimately, into Table Rock Lake. The project will also feature signage to help educate the public and professionals who visit the city offices to procure permits for construction and development projects.

Science And Economics Besides adhering to smart biological principles, incorporating conservation practices into the design of streets, buildings and business districts is making good use of another science architects and engineers rely on — physics.

“Let’s take water, for instance,” Burnett says. “The rougher the surface that runoff flows over, the slower it will travel. This is due to the coefficient of the friction provided by the surface.

Gravel has a higher coefficient of friction than concrete, and tall native vegetation has a higher coefficient of friction than mowed grass.”

Lamb said that conser vationfriendly construction was once viewed as having a higher price tag, but that perception is changing.

“It may not be true for every site, but there are more and more examples and studies showing that LID methods can actually be cheaper than conventional development practices,” Lamb said.

“If the environmental costs were factored in, that would definitely make LID a more cost-effective option.

There are economic tools available to architects and designers that can be used to measure the environmental costs and benefits to help make a true comparison.” When it comes to community conservation, the best economic tool a developer can use is advanced planning.

“The environmentally-friendly method of site development often requires more preconstruction planning for something like a heavily treed piece of property,” said MDC Community Forester Cindy Garner. “But if the planning process involves the saving of trees from the very beginning — just as, say, the planning of a utility hookup to a site is something that is considered from the outset — then these methods (conservation-friendly

development) can occur just as easily and inexpensively. Decisions made on paper will always be cheaper than when the equipment is moving.”

Connecting Citizens To Nature Spreading the conservation message to citizens is an important part of community conservation. Whether it is a mural about trees in downtown Springfield or a sign promoting native-

Learn More About Building With Nature MDC employs three community conservationists in urban areas around Missouri. They can help civic leaders and planners use green infrastructure to solve problems, save money and improve life for people and nature.

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In Springfield, call Ronda Burnett at (417) 836-8407.

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In St. Louis, call Josh Ward at (314) 301-1506, ext. 4213.

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In Kansas City, call Stephen Van Rhein at (816) 759-7305, ext. 1128.

For information about community grants, responsible construction, and other urban land-management topics, visit MDC’s Your Property webpage at www.mdc.mo.gov/property.

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plant landscapes in Columbia, it is important that urban conservation efforts deliver a take-home message.

“E du c at i on a n d o ut re a c h i s an important part of community conservation,” Ward said. “Many of our projects include an interpretive sign to help the public understand what we are doing and why we are doing it. We hope that these efforts are helping us inform and educate people to promote conservation stewardship now and into the future.”

“Community conservation is all about people and their needs,” said Jason Jenson, MDC private land services chief for the Ozarks. “After understanding the needs of citizens in our urban areas, we find ways to meet those needs by applying conservation practices.

Connecting Missouri’s citizens to nature helps meet social, economic and environmental needs.”

Habitat stewardship and economic benefits are key components of community conservation, but perhaps the practice’s most important take-away message for professionals and citizens – is connectivity.

“Community conservation matters because it affects our quality of life,” Lamb said. “Humans are a part of, and not separate from, the environment.”

Francis Skalicky is the southwest regional media specialist for the Missouri Department of Conservation (MDC). He lives in Springfield and has been with MDC for 23 years. He is a native of Bolivar, Missouri, and a graduate of Southwest Missouri State University (now Missouri State University).

This article was first published in the April 2018 edition of the Missouri Conservationist, and appears here courtesy of the Missouri Department of Conservation.

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FEATURE Review

by Texas Municipal League Legal Staff

Religious Displays At City Hall

City officials should use caution when placing or allowing religious displays of any type on public property.

Although this topic can be troublesome all year long, the issue always seems to come to the forefront during the holiday season. Even well-intentioned religious displays may run afoul of the Establishment Clause of the United States Constitution that reads in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof … ” This prohibition against governmental advancement or inhibition of religion is more commonly known as the “separation of church and state,” and it applies to all governmental entities: federal, state and local.

The “separation of church and state” does not mean that government agencies are entirely barred from recognizing or celebrating holidays or events that have religious connections. City holiday displays that are limited to more secular images, like Santa Claus and Christmas trees, will generally survive a constitutional challenge. According to the Supreme Court in Allegheny

County v. Greater Pittsburgh ACLU, the government may acknowledge Christmas as a cultural phenomenon, but it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus. Thus, a snowman and an angel displayed at a city are more justifiable as signals that Christmas is a time for peace on earth and good will toward men.

It is unclear whether a religious symbol, like a Nativity scene, can lawfully be displayed by a city or on city property. There is no federal or state statute covering this topic. Moreover, the case law provides very few hard and fast rules for such displays. As United States Supreme Court Justice Clarence Thomas observed, the Supreme Court’s Establishment Clause “jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess. . . .” Utah Highway Patrol Ass’n v.

Am. Atheists, Inc., 132 S. Ct. 12, 13 (2011) (Thomas, J., dissenting from the denial of cert.) Therefore, it is difficult to formulate a specific set of

rules to ensure that a given display is constitutionally permissible if it has religious symbols in it.

The Supreme Court has held that a Hanukah menorah has both religious and secular connotations and may properly be displayed if the context presented is an overall holiday setting rather than the endorsement of religion.

In Alleghany County, the Supreme Court found constitutionally permissible a holiday display that consisted of a menorah next to a larger Christmas tree that was the “predominant element” of the display, and less significantly, a sign saluting liberty.

Part of the difficulty in determining whether a given holiday display will survive an Establishment Clause challenge is that the United States Supreme Court has adopted a very fact-specific approach to dealing with this issue. The best way to summarize the Court’s approach is that, if the dominant theme of a holiday display seems to be an endorsement of a particular religion, or if someone could believe that the dominant theme of the display is religious, then the

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display might not survive a challenge.

For instance, a manger scene mixed in with a Santa figure, a snowman, a menorah, and a Christmas tree will be more likely to survive an Establishment Clause challenge than a manger scene alone. However, if the manger scene is the centerpiece of the larger display, and the other figures are much smaller than the manger or placed in such a way that the manger scene is the dominant theme of the display, then the display will probably not survive a challenge.

In what has been described as the leading case on the topic of city Christmas displays, the United States Supreme Court upheld the authority of a Rhode Island city to erect a Christmas display in a park owned by a nonprofit organization. The scene included such objects as a Santa Claus house, a Christmas tree, a banner that reads “Seasons Greetings,” and a Nativity scene. Lynch v. Donnelly, 465 U.S. 668 (1984). Focusing on the context of the Christmas season, the Court found that the City had a secular purpose for including the Nativity scene as one component of its holiday display that did not impermissibly

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advance religion or create an excessive entanglement between religion and government. According to the Court, any benefit to one faith or religion or to all religions by the inclusion of the Nativity scene in the display is indirect, remote and incidental, and is no more an advancement or endorsement of religion than the exhibition of religious paintings in governmentally supported museums. See also Town of Greece v.

Galloway, 134 S.Ct. 1811, 1821 (2014) (explaining why legislative prayer does not have to be generic or nonsectarian).

In 2005, the United States Supreme Court decided two cases that provide further guidance for city officials. Both cases concerned the display of the Ten Commandments on public property.

The cases applied the same law but yielded contrary results. In Van Orden v. Perry, the Texas Capitol was allowed to keep a large stone monument bearing the Commandments. On the other hand, in McCreary County v. ACLU of Kentucky, two Kentucky county courthouses lost their framed copies of the mandates entrusted to Moses.

In both cases, the Supreme Court was asked to decide the legality of nearly

identical texts erected on government property. Both cases forced the Court to review previous cases in an effort to balance the religious and historical significance of the Commandments.

So, why different outcomes?

The sole point upon which all nine justices agreed was that the Ten Commandments communicate both a secular moral message and a Judeo/ Christian religious message. The Court reminded us that the purposes of the Constitution’s “Religion Clauses” are to ensure religious liberty and tolerance for all, to avoid religious divisiveness, and to maintain the separation of church and state. The Court wrestled with two competing principles for applying the Establishment Clause: (a) the strong role religion and religious traditions have played throughout our nation’s history; and (b) that government intervention in religious matters can itself endanger religious freedom.

In McCreary County, the Court continued to rely on the three-part test of Lemon v. Kurtzman, a 1971 decision that questioned whether: (1) the government activity in question has a secular purpose; (2) the activity’s primary effect advances or inhibits religion; and (3) the government activity fosters excessive entanglement with religion.

While the Court did not employ the Lemon test in the Texas case, in both the Texas and Kentucky cases, the Court focused on the “secular purpose” of the monuments by looking at the context of the displays. (The Lemon test has increasingly been criticized by the Court and replaced by a historical approach.) Were the Commandments there to communicate a religious message? Or did they merely show a moral and historical basis for our governments?

Alt houg h t he C our t did not specifically organize its analysis in the following manner, these were the factors carefully considered by the justices in both the Texas and Kentucky cases:

• Initiative: Ere c t ion of t he monument in Texas was initiated by the Fraternal Order of Eagles, a national civic, social and patriotic organization, that strives to reduce juvenile delinquency. County officials initiated the courthouse displays in Kentucky.

• Funding: The Fraternal Order of Eagles donated the Texas monument.

The Eagles also paid the cost of erecting the monument. The displays in Kentucky were paid for by the counties.

• Approvals: Evidence from the legislative journal entries in Texas indicated an acceptance of the donation by the state legislature. The Historic Preservation Commission recommended the actual site for the monument. The displays in the Kentucky courthouses were ordered to be installed by each county’s judge and later ratified by the legislative body of each county. The Court has also looked for evidence of governmental contact with church authorities concerning the

content or design of the exhibit prior installation.

• Ceremonies: The dedication of the monument in Texas was presided over by two state legislators. The ceremony opening the display in one Kentucky county was presided over by the county judge and included a clergyman who “testified to the certainty of the existence of God.” • Location: The Texas monument is located outside on 22 acres. According to the state’s brief, its “location and orientation make it one of the least conspicuous monuments on the grounds.” The displays in Kentucky were located inside on the walls of hightraffic hallways frequently used by the public on a daily basis.

• Surroundings: The monument in Texas is one of 22 monuments and 17 historical markers, including tributes to soldiers and peace officers. Initially, the Commandments in Kentucky were alone. The county expanded the

display twice, after the initial suit was filed – first to include similarly framed county resolutions stating that the Commandments were “the precedent legal code” and referring to Jesus Christ as the “Prince of Ethics,” and second (after the counties changed lawyers) to include framed copies of the Magna Carta, Mayflower Compact, Bill of Rights, Declaration of Independence, and the lyrics of the "Star Spangled Banner."

• Intensity: The placement of the monument on the Texas State Capitol grounds was found to be “far more passive” than other examples previously considered by the Court.

The displays in Kentucky were posted in the courthouses in a “high traffic area,” those being hallways “readily visible to … county citizens who use the courthouse to conduct their civic business, to obtain or renew driver’s licenses and permits, and to register cars, to pay local taxes and to register to vote.”

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Recruiting Assessing and Developing Innovative Collaborative Authentic Leaders • Duration: The Texas monument had existed at that location for more than 40 years before being challenged by the plaintiff, who had first encountered the monument six years prior to filing suit. Kentucky erected the courthouse displays in the summer of 1999 and suit was brought that fall.

The differing results handed down by the Court demonstrate that context is crucial when determining a secular purpose. In Kentucky, even though other historic documents hung on the two county courthouse hallways separate from and in addition to the display at issue, the majority of the Supreme Court characterized the display (as a whole) as a “solo exhibit,” stating that when “the government initiates an effort to place this [religious] statement alone in public view, a religious object is unmistakable.”

The “fact-based” nature of any religious display case means that a set of standard guidelines is difficult to cultivate. For example, two lower courts held that if the County had erected the third expanded display in McCreary (which included the Magna Carta and other documents) first, it most likely would have withstood scrutiny. A case in 18

theReview September/October 2019

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the 10th Circuit, Green v. Haskell County Board of Commissioners, also dealt with a Ten Commandments display.

In that case, unlike in Van Orden, the court concluded that the display had a primarily religious effect because two of the three county commissioners made statements, attended events and generally supported the monument in their capacity as commissioners.

Further, the monument was challenged in the same year it went on display, like the display in McCreary County. Thus, the court found that the display was unconstitutional.

What if a private entity, with the city’s consent, places a religious holiday display on public property?

City attorneys advise that a city may diminish the likelihood that such a display is unconstitutional by placing a sign disclaiming any city endorsement or participation in the display, or views depicted by the display. But that’s not always the case. For instance, in Felix v. City of Bloomfield, the court found certain restrictions on religious displays bind even private entities.

841 F.3d 848 (10th Cir. 2017), cert. denied. In Felix, the 10th Circuit found a Ten Commandments display

unconstitutional even though, it was created and donated by a private party; was accompanied by several secular monuments; was erected pursuant to a public-forum policy; and included a sign disclaiming any government endorsement of religion. These cases demonstrate that, while cities can look to precedent for guiding principles, ultimately the outcome in any given case may not be predictable.

Because the law in this area is not black-and-white, the only way to ensure safety from litigation would be for cities to make sure their holiday displays are strictly secular in nature.

Of course, many cities will decide to include certain religious imagery as a part of their holiday or other displays.

In these cases, remember that religious symbols should not generally form the main theme of the display and be sure to contact your city attorney to determine if the display will run afoul of the Establishment Clause.

Reprinted with permission of Texas Town & City, published by the Texas Municipal League.

FEATURE Review

by Avery Share

Comprehensive Planning: Building Your Community's Future From Today's Vision

Learn what makes comprehensive planning so important – and how to make sure you develop the right plan for your community.

As a local government official, you want to guide you community toward positive growth and expansion. But how do you ensure your government is driving this growth with a unified, citizen-driven vision for the future of your community? The answer is through comprehensive planning based on community input and thoughtful placemaking.

“Everybody wants your community to grow and succeed,” says Institute for Building Technology and Safety (IBTS), Development Manager Doug Moore. “A comprehensive plan helps your community figure out how to grow and expand while maintaining the character and values that are important to your citizens.”

What Is A Comprehensive Plan?

A comprehensive plan provides a blueprint for future government action. They address compatibility issues between various uses of land, management, and preservation of natural resources; to identify and preserve historically significant sites and properties; and to adequately plan for infrastructure needs and improvements.

“Successful communities don’t just happen, they must be continually shaped and guided,” Moore explains. “A comprehensive plan is what builds the community for your community.”

The best comprehensive plans are based on community input and provide ample opportunities for community engagement throughout the planning process. “By understanding your entire community, your plan will embody its true values and visions,” says Moore. “It’s really about dreaming the future of your community together with your citizens.”

The plan should look and feel like your community, a living document that constantly evolves to address your community’s changing needs and priorities. You will likely

want to revisit the plan to make minor tweaks throughout the year to keep moving it along as your community evolves.

Why Are Comprehensive Plans Important?

Comprehensive plans have numerous benefits for your local government and your community. For economic development purposes, they are vital, if not required, for securing grant funding and piquing the interest of the development community.

When applying for a grant, many funders want to know that your community has a vision and goals, and that you are working toward them. Some even require submittal of a comprehensive plan. Likewise, businesses considering locating in your community want to know you have a plan for continued growth and expansion to help ensure their success.

“Having a comprehensive plan that clearly identifies your future and what you want as a community sets you up to win grants and also helps bring in new business,” says Moore.

Comprehensive plans also help guide the work of every function of municipal government. By guiding your boards,

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commissions, city council and municipal departments, they ensure each local government department does not just move your community forward but moves it forward in the same direction.

Likewise, they tie zoning code and development regulations back to your community’s vision.

Comprehensive plans give elected officials insight on the pulse of the community. By engaging your citizens, you can uncover the key values and priorities of residents and ensure these are reflected not just in the comprehensive plan, but in every decision you make for your community.

Should You Partner With A Planning Firm?

Before jumping into the comprehensive plan, it is important to assess your staff ’s ability and capacity to give the plan the time and attention it needs. For many communities, large and small, the biggest hurdle to comprehensive planning is finding the time and focus to complete the plan amidst day-to-day responsibilities. Many communities collaborate with third-party planners to overcome this obstacle.

Even if your community does have the staff to complete the plan in house, you may find it beneficial to partner with a planning firm to bring a broader, unbiased perspective approach.

“Even large cities with a lot of staff will hire out consultants because they want that outside vision,” explains Moore. “A good planning firm can bring that bigger picture of the world, but also have the heart to bring that back and relate it to your community.”

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theReview September/October 2019

When it comes to choosing a planning partner, you will want to find a planning firm that adequately meets your needs.

You may need to look for a team that has planners, but also landscape architects, main street designers, housing study analysts, and code writing experience. You can even bring in specialists to help with just a specific aspect of the plan if needed – such as for corridor plans or bikeability components.

Although it may seem counterintuitive to ask for outside help identifying the core values of your community, an external, unbiased perspective can help bring out the true values of your citizenry and tie the various components of your community into a single overarching vision.

Engaging Your Citizens As an elected official, you are in the best position to spearhead communication efforts and bring the plan out to the

community.

“You have to understand what the quality of life is that your citizens want in order to identify what to improve to move forward,” Moore says. “You can’t find out what’s important to your citizens without making community engagement central to your comprehensive planning process.”

This engagement could happen through community surveys, advisory committees, and bringing together groups from a wide variety of backgrounds. Consider meeting with student groups, senior citizens, hospitals, county representatives and more.

With a comprehensive plan as the blueprint for your community, you will have an easier time attracting grant funding and developers, better retain your citizens, and preserve the sense of place, history, and social ties that make your community the place where your citizens choose to

work, live, and raise their families.

Avery Share is a research analyst with the Institute for Building Technology and Safety (IBTS).

The Institute for Building Technology & Safety (IBTS), a nonprofit organization dedicated to strengthening communities, has collaborated with communities across the country to guide them through the comprehensive planning process. Our planners have served in the public sector, so they understand both the daily challenges of local governments and how to get buy-in for a comprehensive plan from your community and your colleagues across divisions.

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www.ICSandCDARS.com Placement of funds through the ICS or CDARS service is subject to the terms, conditions, and disclosures in the service agreements, including the Deposit Placement Agreement (“DPA”). Limits apply and customer eligibility criteria may apply. In the ICS savings option, program withdrawals are limited to six per month. Although funds are placed at destination banks in amounts that do not exceed the FDIC standard maximum deposit insurance amount (“SMDIA”), a depositor’s balances at the relationship institution that places the funds may exceed the SMDIA (e.g., before ICS or CDARS settlement for a deposit or after ICS or CDARS settlement for a withdrawal) or be ineligible for FDIC insurance (if the relationship institution is not a bank). As stated in the DPA, the depositor is responsible for making any necessary arrangements to protect such balances consistent with applicable law. If the depositor is subject to restrictions on placement of its funds, the depositor is responsible for determining whether its use of ICS or CDARS satisfies those restrictions. When deposited funds are exchanged on a dollar-for-dollar basis with other banks in the network, the relationship institution can use the full amount of a deposit placed through ICS or CDARS for local lending, satisfying some depositors’ local investment goals/mandates. Alternatively, with a depositor’s consent, and in states where this is allowed by law, the relationship institution may choose to receive fee income instead of deposits from other banks. Under these circumstances, deposited funds would not be available for local 05/18 lending. ICS, Insured Cash Sweep, and CDARS are registered service marks of Promontory Interfinancial Network, LLC.

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23

LOCAL Review

by Jeff Kempker

Pensions Are A Good Investment In Missouri

•

About half of Americans age 55 and older have nothing saved for retirement. However, 20% of these have access to a defined benefit pension plan.

• Defined benefit pensions are the preferred retirement plan for state and local government employers.

•

Defined benefit plans help government employers attract and retain good workers to serve the communities.

•

Defined benefit plans are a good investment for Missouri as most pensioners remain in the state and spend their pension income within the community they served while working.

The U.S. Government Accountability Office (GAO) recently reported that about half of Americans age 55 and older have nothing saved for retirement.

This is a dim statistic. However, the numbers get slightly better when you factor in defined benefit pension plans.

Of the 48% of Americans age 55 and older with no retirement savings, 20% of the people in this group have access to a defined benefit pension plan. The good news here is that this group will at least have two of the three legs on the three-legged stool for a secure retirement. The two legs being a defined benefit pension and social security. The missing leg is personal savings.

A defined benefit pension plan is one where payments to a retiree are “defined” because they pay a predetermined amount for a person’s remaining life after work. Individuals participating in the plan do not direct their own investments; rather, the funds in the plan are pooled together and invested in one portfolio that is managed by professionals. Returns from the investments are used to help pay for the benefits.

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The GAO report doesn't specify, but it is a safe assumption that the majority of those reported as having access to a defined benefit pension plan are state and local government workers.

While defined benefit pension plans are continuing to be phased out in the private sector, around 90% of state and local government workers in the U.S. still have access to these plans. There are 77 defined benefit pension plans covering over 600,000 public workers in Missouri. The majority of these plans are sponsored by municipalities. While each plan is unique, the public pensions in Missouri are financially sustainable as a whole with an average funded ratio of 82%.

Local governments choose defined benefit pensions over other types of retirement plans to attract and retain good workers to serve the taxpayers. They choose defined benefit pensions so that employees can leave the workforce with dignity when they're ready to retire. They choose defined benefit pensions because they know benefits will be there for workers that become disabled or pass away before reaching retirement. They understand

the importance of continuity of public services and how detrimental high turnover and low moral can be to communities. They choose defined benefit pensions to reduce uncertainty and promote stability.

Defined benefit plans are also a good investment for Missouri as most pensioners remain in the state and spend their pension income within the community they served while working. In fact, benefit payments from Missouri’s public pension plans totaled over $5 billion in 2017!

Defined benefit pension plans are not a dying breed. In Missouri, these plans are alive and well in the public sector and continue to be a good investment for Missouri.

Jeff Kempker is the assistant executive director, External Affairs, at the Missouri Local Government Employees Retirement System (LAGERS).

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FAQ: Tax Increment Financing

by Missouri Economic Development Financing Association

The material for this issue's Frequently Asked Questions is provided by the Missouri Economic Development Financing Association (MEDFA).

Questions can be directed to Doug Stone, MEDFA’s legislative chair and a partner at the Lewis Rice law firm in Kansas City, at dstone@lewisricekc.com.

What is Tax Increment Financing?

Tax increment financing (TIF) is an economic development tool authorized by Missouri statutes (Sections 99.800 – 99.865, RSMo, the TIF Act). It allows cities and counties to encourage development in areas of the community that would not otherwise develop or redevelop “but for” TIF financial assistance. When a city or county adopts a TIF Plan, the expectation is that increased taxes (the new increment) will result from the new development. The new increment comes from the increased real property value being applied to most, but not all, real property tax levies, and 50% of the increased economic activity being applied to most sales and utility (and in some cities, earnings and profits) tax levies. This new increment is captured and used to pay for certain project costs. Existing taxes are not impacted. The creation, approval and implementation of TIF plans are governed by the TIF Act, although the decision to adopt a TIF plan and the extent of TIF assistance provided rests with the local governing body.

Does the use of TIF increase tax rates?

No. Approval of a Tax Increment Financing plan is not a tax rate increase. The incremental taxes referred that are captured are the newly created taxes resulting from the project. It is this new tax revenue used to pay for a portion of the project costs.

Is TIF a tax abatement program?

No. All property owners and businesses located in a TIF project area pay the same amount of taxes that would have been paid if the area was not a TIF project, no less and no more. Instead, TIF alters the distribution of the tax revenue stream. The taxes existing prior to TIF designation continue to flow to the taxing districts that previously received those tax dollars. The new increment of taxes over the “base” level is set aside as it is generated over time (up to 23 years) in a separate fund, and used to either reimburse the developer for certain specified project costs as TIF revenue is generated over time, or make periodic payments to pay private financing or (at the discretion of the governing body) bonds that financed the reimbursable project costs.

What conditions have to exist to adopt a TIF plan?

A TIF plan can be adopted for an area that meets the TIF Act’s definitions of a “blighted area,” a “conservation area” or an “economic development area.” After a hearing and

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recommendation by a TIF Commission, the governing body can adopt a TIF Plan after making certain findings that include a finding that the redevelopment “has not been subject to growth and development through investment by private enterprise and would not reasonably be anticipated to be developed without the adoption of tax increment financing.”

This is commonly referred to as the “but for” test.

What is required to satisfy the “but for” test?

The TIF Act specifies that in order to make this finding, there must be detailed evidence of the factors that supports the finding and a signed affidavit of the developer attesting to the conditions supporting this finding. Some municipalities engage consultants to review project financial information to assist in this determination.

Do the county, the school district and other taxing districts lose revenue from the creation of a TIF Plan?

No. Where the “but for” test is satisfied, the area being developed with TIF assistance would not have otherwise developed. Under a TIF plan, the taxes existing prior to TIF designation continue to flow to the taxing districts that previously received those tax dollars. In addition, taxing districts that levy economic activity taxes (such as sales or earnings taxes), receive 50% of the new taxes generated by the project. Certain property and sales tax levies are not captured

by TIF at all. When the TIF plan terminates, the taxing districts will receive substantial revenue from property that previously generated little or no taxes.

What type of improvements or costs can be reimbursed out of TIF revenues?

TIF revenue can be used to pay for any reasonable or necessary costs incidental to the TIF plan or one of its projects. This can include, among other things, costs of studies, architectural, engineering, legal, marketing, financial and planning costs, property assembly costs, demolition, clearing and grading of land, costs of rehabilitation, reconstruction, or repair or remodeling of existing buildings and fixtures; costs of construction of public works or improvements and financing costs. However, the TIF Act includes certain limitations on the use of TIF revenues that apply to specific types of projects or to specific areas or types of areas.

How is a TIF Commission created?

In all cities and counties, the governing body creates the TIF Commission. The size of the TIF Commission varies depending on the municipality creating it. All TIF Commissions have the same mix of nine members, comprised of six members appointed by the governing body, two members appointed by the affected school district and one member appointed by the other taxing districts who levy property taxes. In the city of St. Louis and in any county (other than St. Louis County), the TIF Commission is made up of those nine members. In St. Louis County and cities in St. Louis County, three additional members are appointed by St. Louis County, making a 12-member TIF Commission. All other cities have 11-member TIF Commissions comprised of the nine basic members, plus two members appointed by the affected county.

Do other states permit the use of TIF? Yes. Today more than 47 states use TIF to some extent, including all states bordering Missouri.

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29

LOCAL Review

by Don Guenther

Gateway 311 App Assists With Citizen/Government Communication Increasingly interconnected and dependent on technology, our world relies on apps. “Smart Cities” have been proposed as the future of urbanism, yet individual communities continue to wrestle with how to leverage new technology to facilitate a more convenient way of life.

According to James Ellsmoor of Forbes, “Smart cities bring together infrastructure and technology to improve the quality of life of citizens and enhance their interactions with the urban environment.”

With a diverse population spread out over 523 square miles, St. Louis County sought accurate and timely twoway communication with constituents, but this was becoming more and more difficult each day for the County Administration.

Rick Nolle, CIO and technological pioneer for St. Louis County, recognized the need for easier, more effective communication with citizens. His passion to invest into his city led to the birth of the Gateway 311 app.

Contracting with Technology Partners, the incorporation of a new citizen-facing app makes it easier to share pothole locations, voter information, power outages, calendars and essential, non-emergency information for responsive results.

“With rapid advancement in technology and our lagging adoption of 21st-century technology, we knew it was time for a big change,” said Nolle. “The Gateway 311 is a leap forward in how the County can communicate with each individual we serve.”

Residents can download the application for free on Android and iPhone. This app, among other features, allows a resident to directly report potholes to the appropriate “pothole person.” The resident simply uses the pothole reporting function within the app, snaps a picture of the pothole, and sends the picture through the application to the County. The geo-tagging function marks the location of the pothole and sends the information directly to the individual responsible for scheduling repairs.

This process does two things. For the public works group, it allows them to efficiently locate and schedule repair crews with detailed information on location. For the resident, the app is a simple way to easily communicate with the County.

“Increasingly citizens prefer mobile technology over phone calls and we are building to support that demand. Our goal is to provide personalized experience for residents of St Louis County using technology,” said Nolle.

Future plans of St. Louis County include cultural enhancements, such as implementing a feature with QR codes on artwork in local parks. This will enable residents to scan the code and find out more details of the specific artwork.

Further, the app will provide the ability to apply for permits, eliminating a trip to the Government Center. The consistent goal is to improve information flow between residents and the County.

As smart technology continues to evolve, citizen apps will be a strong way for cities to bring practical information to citizen’s fingertips.

Don Guenther is the vice president of Business Development for Technology Partners. He helps guide cities and municipalities on how to allocate their resources for digital transformation in the most costeffective manner possible. Embodying a core value of Technology Partners, his initiative is to innovate and transform organizations through leveraging new technologies.

SERVING MISSOURI MUNICIPALITIES SINCE 1966.

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LOCAL Review

by Angelina Panettieri

What Do Local Leaders Need To Know About The FCC Cable Order?

On Aug. 1, 2019, the Federal Communications Commission (FCC) voted 3-2 to approve a report and order that will make dramatic changes to cable franchises managed by state and local governments. The order, that went into effect 30 days after it is published in the Federal Register, has two major components that will impact local governments. The first addresses “in-kind” components of franchise agreements and their relationship to franchise fees, and the second addresses regulation of “mixed use” networks by state and local franchising authorities.

The National League of Cities (NLC) opposed the order, as did a large number of local governments; Public Education and Government (PEG) channel operators; and 49 members of Congress.

Despite these protests, the FCC moved forward with the order. It is likely to reduce franchise revenues at the state and local level and wholly preempt state and local authority over the growing broadband and wireless services being provided by cable companies. The FCC claimed this order was done to expand broadband access but provided no requirement or assurance from cable companies that reduced franchise obligations would reduce costs for consumers or increase broadband deployment in underserved areas.

In-Kind Changes Franchise fees, charged by state or local governments on cable providers, were set at a limit of up to five percent of cable revenues by the Cable Act of 1984. Many jurisdictions also negotiate additional non-cash provisions when creating franchise agreements with cable companies to operate in their state or locality. For example, many Americans have broadband access via cable because of build-out obligations negotiated in franchise agreements years ago that ensured cable infrastructure was built in their neighborhoods.

When the order goes into effect, cable providers will be able to deduct the “fair market value” of any in-kind franchise obligations from their cash franchise payments. This includes any obligation other than build-out requirements, customer service requirements, PEG capital costs or channel placement value. This also includes the value of service or infrastructure to government buildings or schools, discounted service for seniors or low-income households or institutional networks (I-Nets).

Mixed-Use Changes The order contains a “mixed-use” provision that preempts state and local authority over non-cable service and infrastructure on cable networks.

An increasing number of residents get broadband service from their community’s incumbent cable provider.

Federal data indicates that a rising number of residents are “cutting the cord,” and dropping their cable television subscriptions in favor of broadbandonly subscriptions and over-the-top streaming video. In addition, some cable providers are augmenting existing wired cable service with wireless service built from a base of their cable infrastructure.

The order ensures that state and local governments are unable to regulate these broadband services and infrastructure and may not create franchise agreements for those services in the future. This exempts a major and growing portion of the communications market from any state or local oversight and from being obligated to contribute to the community in the way that cable companies traditionally have.

What Is Next for Local Governments?

Fifteen U.S. Senators sent a letter opposing the FCC vote shortly before the meeting. Sixty-three members of

Congress from both chambers have sent formal correspondence over the past year opposing FCC preemption of cable franchising. While the FCC has finalized its regulations, cities, towns and villages should contact their members of Congress to inform them about the impact this preemption will have on their constituents and urge them to use their congressional authority to overturn the FCC’s actions.

Communities should gain a firm understanding of their current franchise agreements, whether state or local, and what in-kind provisions are currently included. Twenty-three states currently conduct cable franchises at the state, rather than local level, and any payments localities receive from those franchise agreements will be impacted. While cable companies are not obligated to alter their existing franchise payments, they may begin deducting the value of those in-kind franchise obligations as soon as 30 days after the FCC order is published in the federal register. Communities should work to understand what the budgetary loss will be if those franchise payments are reduced.

Cities, towns, and villages remain very concerned that the FCC will further preempt local governments in the name of providing concessions to industry. Commissioners Carr and O’Reilly clearly indicated during the August meeting that they would have liked to go further on the franchising order. It appears these preemption efforts will not slow down.

A n g e l i n a Pa n e t t i e r i i s t h e Principal Associate for Technology and Communication at the National League of Cities. Reprinted with permission from the NLC blog, CitiesSpeak, from Aug. 8, 2019. Learn more at www.citiesspeak.org.

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MEMBERS' Notes MML Calendar of Events September 2019 1 ����� Deadline to set property tax levies 9-11 ����� Missouri Highway Safety and Traffic Blueprint Conf., Columbia, Missouri 11 ����� Missouri General Assembly Veto Session 26 ����� Government Technology, Ransomware

October 2019 16 ����� MML Central Region Meeting, Marshall, Missouri 3-4 ����� MOPELRA Annual Conference, Columbia, Missouri

Certified Municipal Clerk Congratulations to Fulton City Clerk Courtney Crowson, who has earned the prestigious Certified Municipal Clerk (CMC) designation from the International Institute of Municipal Clerks (IIMC)! To earn the CMC designation, a municipal clerk must attend extensive education programs often totaling more than 120 educational hours. The CMC designation also requires pertinent experience in a municipality.

9-12 ����� American Planning Association Quad State Conf., Tulsa, Oklahoma 20-23 ����� ICMA Annual Conference, Nashville, Tennessee 22 ����� MML Northeast Region Meeting, Edina, Missouri 24 ����� MML West Gate Region Meeting, Riverside, Missouri 25 ����� GFOA Fall Seminar, Columbia, Missouri 29 ����� MML Southwest Region Meeting, Ash Grove, Missouri

November 2019 7 ����� MML Northwest Region Meeting, Trenton, Missouri 3-5 ����� Missouri APWA Fall Conference, Branson, Missouri

December 2019 1 ����� Pre-filing of bills begins for the 2020 Legislative Session 3-4 ����� Missouri S&T Asphalt Conference, Rolla, Missouri

January 2020 8 ����� Second Session of the 100th Missouri General Assembly convenes 3-4 ����� Missouri S&T Asphalt Conference, Rolla, Missouri Find more events and details on www.mocities.com and in the MML monthly e-newsletter.

MML Policy and Membership Associate Ramona Weidel Huckstep and MML Executive Director Dan Ross attended Governor Mike Parson's proclamation ceremony designating Aug. 1824, 2019, as Water and Wastewater Treatment Workers Week in Missouri. It is wonderful to see the dedication of hard-working local employees recognized!

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Lou Czech Award Winner Congratulations to Gilmore Bell Attorney Mark Grimm, honored as the 2019 recipient of the Missouri Municipal Attorney Association’s Lou Czech award.

Grimm received the award in July at the association’s annual meeting in Osage Beach. The award recognizes public service that displays the same high standard of accomplishment, professionalism and ethical conduct as exhibited by Czech. Grimm was nominated and chosen by his peers in MMAA..

ICMA Certificates Of Excellence The International City/County Managers' Association recognized the cities of Kansas City and Clayton,with a Certificate of Excellence in Performance Management.

Certificates of Excellence recognize communities that conduct surveys of residents and local government employees, incorporate data into performance dashboards, and foster a performance culture throughout the organization. ICMA Certificates of Excellence represent the highest level of recognition for performance management.

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Missouri Rural Services Workers’ Compensation Insurance Trust P.O. Box 104268, Jefferson City, MO 65110-4268 800-726-9304 www.missouriruralservices.com

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