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HomeMy WebLinkAboutFND-008-07 Cllllpn REPORT FINANCE DEPARTMENT Date: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE MONDAY MARCH 26, 2007 Resolution #: Gp{f -;)71-07 Meeting: Report #: FND-008-07 File #: By-Law #: Subject: COMPLAINT BY R. SIVAKUMAR OF EASTMAN STEVE'S HOLDINGS LTD. UNDER SECTION 20 OF THE DEVELOPMENT CHARGES ACT Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report FND-008-07 be received; 2. THAT the objection to development charges levied on 216 King St. East Newcastle by Eastman Steve's Holdings Ltd. be received and the decision of the Chief Building Official be upheld; and 3. THAT Eastman Steve's Holdings Ltd. be notified of Council's decision. .~.'\~Q . ~'k Reviewed by:U - Franklin Wu, Chief Administrative Officer. NT /na FND-008-07 Page 2 BACKGROUND: 1.0 Council held a hearing into a municipal development charges complaint on Monday, February 26, 2007. Mr. Aru made a presentation to Council on behalf of Mr. R. Sivakumar of Eastman Steve’s Holdings Ltd. regarding a gas bar canopy being constructed at 216 King St. East, Newcastle. A copy of Mr. Sivakumar’s submission is attached (Attachment A). 1.1 Under By-Law 2005-108, development charges are payable in respect of the development of residential and non-residential buildings or structures at the rates set out in Schedules “1” and “2” of the By-Law, subject to certain exemptions set out in the By-Law. With respect to the building in question, it is ‘non-residential’ as the term ‘non-residential’ is defined in subsection 1(1) of the By-Law. Accordingly, the non-residential development charge per square metre rate would be payable in respect of this development unless they are exempted from the development charge by an exemption provision contained in By-Law 2005- 108. 1.2 Whether or not development charges are payable in respect of any development is determined in the first instance by the Chief Building Official when an application for a building permit is received. His determination is based on the characteristics of the development that is proposed, other evidence provided by the applicant to establish the use to which the development will be put, and the provisions of the Development Charges By-Law. 1.3 The Chief Building Official, in interpreting the By-Law, concluded that the building in question was non-residential with no exemption eligibility. While Mr. Sivakumar’s letter is focused only on dollar value, the verbal presentation by Mr. Aru questioned whether development charges are applicable to a canopy. 1.4 Section 20 of the Development Charges Act is attached for the information of Council (Attachment B). A person can only file a complaint on the grounds specified in S.20.(1) (a) to (c). They can complain that the amount was incorrectly determined, a credit should have applied, or that there was an error in the application of the by-law. Mr. Sivakumar did not base his letter on any of these items. However, staff did review the wording of the by-law with respect to a gas bar canopy. 1.5 The Building Code Act from the 1997 Ontario Building Code defines a building as “a structure occupying an area greater than 10 sq. m. consisting of a wall, roof and floor or ANY OF THEM OR A STRUCTURAL SYSTEM SERVING THE FUNCTION THEREOF…”. FND-008-07 Page 3 1.6 Clarington’s Development Charges By-Law Number 2005-108 defines total floor area including the following: “Where a building does not have any walls, “total floor area” means the sum total of the area of land below the roof of the building and the total areas of the floors in the building.” This was specifically included in order to include canopy-type structures in the calculation of development charges payable. 1.7 The amount of development charges payable by Mr. Sivakumar is $5,767.76 for Clarington and $7,961.72 for the Region of Durham. CONCLUSION: 2.0 As mentioned above, the applicant could not establish that there was an error in the application of the by-law. As a result, development charges are levied under the By-Law. It is recommended that this decision be upheld. Council cannot provide relief to Mr. Sivakumar as this could only take the form of a grant, which is prohibited under the Municipal Act. Mr. Sivakumar can appeal this decision to the OMB. ______________________________________________________________________ Attachment “A”: Complaint from Mr. Sivakumar of Eastman Steve’s Holdings Ltd. Attachment “B”: Section 20 of the Development Charges Act Interested Parties: Eastman Steve’s Holdings Ltd. CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T (905)623-3379 F (905)623-4169 Attachment A '07FEB06 AM 9:39:19 Eastman Steve'. Holdings Ltd. 216 King Street East Newcastle, ON LIB 185 To: Patti L Barrie 40 TemperaDee St. BowmaDviUe, ON LtC 3A6 Dear Ms. Barrie, We have been developing our commercial property at 216 King Street East. To date we have spent over $20, 000 in fees and permits including the Parkland Contribution as well as for the Site Plan Agreement We have also applied for a permit to build a canopy for the existing gasoline station on this property and were informed that we would be charged an additional development fee of approximately $14,000 extra. Considering that the total cost of building the canopy itself will be approximately $30, 000, and we have already paid over $20, 000 in permits and fees, we would really appreciate if this additional fee of $14, 000 can be waived. This fee would nearly double the cost of building the canopy. These numerous fees have made it very difficult for us to continue the development of our property which we hope will be an asset to the denizens of Newcastle. We thank you for your time and consideration. Sincerel?" ~ J" Thyagarajah Sivakumar Attachment B Complaint to council of municipality , 20. (1 )A person required to pay a development charge, or the person's agent, may complain to the council of the municipality imposing the development charge that, (a) the amount of the development charge was incorrectly determined; (b) whether a credit is available to be used against the development charge, or the amount of the credit or the service with respect to which the credit was given, was incorrectly determined; or (c) there was an error in the application of the development charge by-law. 1997, c. 27, s. 20 (1). Time limit iliA complaint may not be made under subsection (1) later than 90 days after the day the development charge, or any part of it, is payable. 1997, c. 27, s. 20 (2). Form of complaint illThe complaint must be in writing, must state the complainant's name, the address where notice can be given to the complainant and the reasons for the complaint. 1997, c. 27, s. 20 (3). Hearing ffiThe council shall hold a hearing into the complaint and shall give the complainant an opportunity to make representations at the hearing. 1997, c. 27, s. 20 (4). Notice of hearing illThe clerk of the municipality shall mail a notice of the hearing to the complainant atleast 14 days before the hearing. 1997, c. 27, s. 20 (5). Council's powers (Q}After hearing the evidence and submissions of the complainant, the council may dismiss the complaint or rectify any incorrect determination or error that was the subject of the complaint. 1997, c. 27, s. 20 (6). Notice of decision and time for appeal 21. (] )The clerk of the municipality shall mail to the complainant a notice of the council's decision, and of the last day for appealing the decision, which shall be the day that is 40 days after the day the decision is made. 1997, c.27,s.21 (1). . Requirements of notice iliThe notice required under this section must be mailed not later than 20 days after the day the council's decision is made. 1997, c. 27, s. 21 (2). Appeal of council's decision 22. (1 )A complainant may appeal the decision of the council of the municipality to the Ontario Municipal Board by filing with the clerk of the municipality, on or before the last day for appealing the decision, a notice of appeal setting out the reasons for the appeal. 1997, c. 27, s. 22 (1). Additional ground iliA complainant may also appeal to the Ontario Municipal Board if the council of the municipality does not deal with the complaint within 60 days after the complaint is made by filing with the clerk of the municipality a notice of appeal. 1997, c. 27, s. 22 (2).