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HomeMy WebLinkAboutPD-69-97REPORT #2 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON DN: WALSH.COU C ®T REPOR Meeting: Council File # F21.DE Date: Monday, April 28, 1997 Report #: PD-69-97 File #: PLN 20.4.4 Res. # , By -law # DEVELOPMENT • - • - RL AND VALERIE WALSH PART LOT 7, CONCESSION 8, FORMER TOWNSHIP OF DARLINGTON 2926 CONCESSION ROAD FILE: PLN 0. Recommendations: It is respectfully recommended to Council the following: 1. THAT Report PD -69 -97 be received; 2. THAT the Development Charges By -law complaint submitted by Mr. Dan Strike, solicitor on behalf of his clients, Mr. and Mrs. Walsh requesting an exemption for the payment of the Municipality's Development Charge for the property located at 2926 Concession Road 8 - Part of Lot 5, Concession 7, former Township of Darlington, be APPROVED; and 3. THAT Mr. Dan M. Strike and all interested parties listed in this report and any delegation be advised of Council's decision. 1. BACKGROUND 1.1 By correspondence dated February 25, 1997 addressed to the Clerk, Mr. Dan Strike, solicitor on behalf of his clients, Earl and Valerie Walsh, filed a complaint pursuant to Section 8(1)(d) of the Development Charges Act. 1.2 The Clerk's Department, pursuant to the requirements of the Development Charges Act, advised Mr. Strike that a hearing had been scheduled for March 24, 1997 at 7:00 in the Council Chambers, Municipal Administrative Centre, 40 Temperance Street, Bowmanville, Ontario. REPORT NO. PD -69 -97 PAGE 2 1.3 Mr. Strike highlighted for Council's benefit, at the March 24, 1997 hearing, a brief history of Mr. and Mrs. Walsh's property, noting that the house previously located on the property was destroyed by fire in 1987. The property was bought by the Walsh's in 1989. Their intention was to build on the property immediately. When Mr. Walsh initially applied for a building permit, he was advised that one was not available as the property did not have frontage onto an open public road. The Walsh's were able to provide frontage onto an open public road in 1996 by purchasing a strip of land from owners of an adjacent property. A building permit was subsequently obtained in November 1996. At that time the development charge was paid. Mr. Strike in conclusion submitted that the reconstruction of the residence on this rural property does not increase the need for services in the areas and, therefore, he believes that the Development Charges By -law 92 -105 was applied in error. 1.4 Council, in light of Mr. Strike's presentation, endorsed the following resolution; "THAT the correspondence dated February 25, 1997, from D. M. Strike of Strike, Salmers and Furling, Barristers & Solicitors, on behalf of Earl and Valerie Walsh regarding a Development Charges by -law complaint, be received; THAT the correspondence be referred to the Director of Planning and Development for review and preparation of a report to be submitted to the General Purpose and Administration Committee; and THAT Dan M. Strike be advised of Council's decision" 2. APPLICABLE DEVELOPMENT CHARGES ACT PROVISIONS 2.1 Under Section 8 of the Development Charges Act, the Owner has ninety (90) days from the date that a building permit is issued to submit a complaint. Upon receipt of a complaint, and before Council makes a decision on the request, Council must give the complainant the opportunity to make representations to Council. REPORT NO. PD-69-97 PAGE Such a hearing was held on March 24, 1997. mStaff would confirm that the requirements of the Development Charges Act leading to Council's consideration of this report have been met. 3. STAFF COMMENTS 3.1 The Municipality's Development Charges Policy Report provided the background principles and direction through which the Development Charges quantum was calculated, culminating in the enactment of the Development Charges By -law 92- 105. 3.2 Within the Development Charges By -law, Section 2(1) states that development charges are to be imposed against all land in the Municipality including all existing lots of record. This principle is based on the fact that residential development would increase the need for services. Where a building permit has not been issued, a development charge will be required prior to its eventual issuance. 3.3 The By -law did however contain an exemption to this principle. Where a dwelling has been demolished, a 24 month grace period from the time of demolition to the receipt of the building permit was provided within which a development charge would not be required. This was deemed to be a reasonable timeframe within which the owner can complete insurance claims and /or obtain the necessary approval steps for a building permit. 3.4 The Walsh's did not qualify for exemption under the 24 month grace period as the building was destroyed by fire in 1987 and building permit wasn't issued until November 1996. In this regard, the Development Charges By -law is clear and there was no error made by staff in the application of the development charge by- law to the Walsh's as suggested by Mr. Strike. REPORT NO. PD -69 -97 PAGE 4 3.5 Although the Walsh's have not met the exemption provisions of the Development Charges By -law in this respect, staff in reviewing the "Reasons for Complaint" filed by Mr. Strike (see attachment No. 1) would not disagree that the Walsh's intention from day one clearly was to obtain a building permit for this property when they acquired the property in 1989, three years before the Development Charges By- law was passed. Our records confirm that Mr. Walsh approached the Municipality back in January 1990 to ascertain the possibilities of having the road allowance between Lots 4 and 5 opened to Municipal standards. Its construction would have permitted the issuance of a building permit for their property. Council of the day approved Mr. & Mrs. Walsh's request, subject to their entering into an agreement with the Town to satisfy all requirements, financial and otherwise. It is staff's understanding that in light of the costs associated with the works required to construct the road allowance, Mr. Walsh turned his attention to obtaining ownership of a strip of land from an abutting property to the south thereby providing the necessary access to an open public road allowance. This strip of land would provide frontage to the road allowance between Concession 7 and 8. A subsequent severance application was filed in 1996 and approved by the Region of Durham Land Division Committee leading to the issuance of a building permit in November 1996.. In clearing the conditions of approval, Mr. Walsh satisfied the Municipality's concerns with respect to access to the road allowance between Concessions 7 and 8 as well as meeting the requirements of the Fire Department for fire fighting purposes. Under the provisions of the Development Charges Act, a development charge was collected there. 3.6 It appears, due to various circumstances, the Walsh's were not able to qualify under the 24 month grace period for a development charges exemption. In consideration of the complaint filed, Council could deny the exemption request as staff has stated previously that there was no error in the application of the charge. However, Council could consider granting the request for exemption on REPORT NO. PD -69 -97 PAGE 5 the grounds of extenuating circumstances, that being the Walsh's had pursued a building permit from day one and obviously would not have anticipated that the Municipality would bring in a Development Charges By -law in 1992. 3.7 Should Council, in light of the history and circumstances surrounding the property, deem it appropriate to approve the request as filed, staff will make the necessary arrangements to process the refunding of the development charge. Respectfully submitted, Franklin Wu, M.C.I.P., R.P.P., Director of Planning and Development LDT *FW *cc Attach. April 23, 1997 Reviewed by, Interested parties to be notified of Council and Committee's decision: Mr. Dan M. Strike Strike, Salmers and Furlong Barristers and Solicitors 38 King St. W. P.O. Box 7 BOWMANVILLE, Ontario L1 C 3K8 COUNCIL DIRE. .\ION D -13 Strike, Salmers and Furlong Barristers & Solicitors Allan W. Furlong A. Alan H. Strike, QC Ronald R. M. Strike David W. E. Salmers Catherine L. Salmers Dan M. Strike Zenovi T. Salmers, Law Clerk W. Ross Strike (1895 - 1987) February 25, 1997 Clerks Department Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1C 3A6 Attention: Patti Barrie Dear Ms. Barrie: Re: Development Charges By -Law Earl and Valerie Walsh Part of Lot 5, Concession 8 FEB 25 1 13 Pn 197 Reply to: Complaint (Darlington) Bowmanville We are the Solicitors for Earl and Valerie Walsh who wish to file a complaint pursuant to Section 8(1)(d) of the Development Charges Act (R.S.O. 1990 Chap. D.9) . On November 27, 1996, the Walshs obtained a Building Permit from the Municipality to replace the house on their property which had been destroyed by fire. They had to pay a lot development charge at the time and believe that the Municipality's Development Charges, By -Law No. 92 -105, was applied in error. The Municipality is not required to provide any new services that were not already being provided when original house burned down. Attached to this letter are the facts and reasons for the complaint. Please forward the notice of the hearing at which be able to make representations to council to my you. Yours very truly, STRIKE, SALMERS & FURL G Per: Dan M. Strike DMS : gj Encl. 1 38 King Street West, P.O. Box 7, Bowmanville, Ontario L1C 3K8 905 -623 -5791 Fax: 905 -623 -8336 the Walshs will of f-i -ce Thank. --- -- CGS �Xa 55 William Street E ft, �vlcT augFilin Square, j P.O. Box 2096, Oshawa, Ontario L1H 7V4-.-,,7- 905 - 723 -1101 905 - 723 -4634 Fax: 905-723-1157 -February 25, 1997 EARL AND VALERIE WALSH Development Charges By -Law Complaint Part of Lot 5, Concession 8 (Darlington) REASONS FOR COMPLAINT 1. In 1987 the existing house on the property was destroyed by fire. 2. In 1989 Valerie and Earl Walsh bought the lot with the intention to build on it immediately. 3. In October, 1989, Earl Walsh applied to the Durham Department of Health for the installation of a septic bed on the property. 4. In May, 1990, the Walsh entered into an agreement with C.L.O.C.A. to place fill on and grade the property for residential purposes. 5. In June, 1990, Earl Walsh approached the Municipality to obtain a building permit but was advised one would not be issued because the property had no frontage on an open public road. 6. After trying to negotiate a solution with the Municipality and C.L.O.C.A. periodically since they were denied a building permit in 1990, the Walsh were finally able to convince an owner of adjacent lands to sell them a strip of land on which C.L.O.C.A. would allow them to build a road to provide their property the frontage required to get a building permit. 7. The Walsh obtained a building permit on November 27, 1996 , and paid the lot development charge to the Municipality at the time. 8. The original house on the property was destroyed by fire in 1987 and would have been replaced in 1990 but for the legal complications that arose in trying to obtain a building permit. The Walsh submit that but for the aforesaid legal complications the house destroyed by fire would have been replaced before the inception of the development charges. 9. The Walsh further submit that the reconstruction of their principal residence on their rural property does not increase the need for services in the area. The level of municival services required because of the Walsh new house will not increase from the level provided prior to the housing burning down. 10. This is not a case where a builder wilfully demolishes the house and delays rebuilding. In this instance the owners are rebuilding a house destroyed by fire and they have taken steps in a timely fashion to rebuild taking into account the legal complication of not having access on an open road. rxxxMo. WALSH PROPERTY (2926 CONCESSION ROAD 8) PROPOSED ACCESS 0 AVM !• •• 61 CONCESSION ROAD 8 S 0 w Z W 0_ 0 Z r a Z 0 U) V) W U Z 0 U • ► • • CONCESSION ROAD 8 S 0 w Z W 0_ 0 Z r a Z 0 U) V) W U Z 0 U