HomeMy WebLinkAboutLGL-009-12 Clarington REPORT
LEGAL DEPARTMENT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date: November 12, 2012 Resolution #: 9M-536-1 By-law M
Report #: LGL-009-12 File #: L2030-06-10
Subject: CANADIAN MOSPORT VENTURES LIMITED
DEVELOPMENT CHARGES COMPLAINT
3233 CONCESSION RD #10
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report LGL-009-12 be received; and
2. THAT the complaint dated September 14, 2012 filed by Canadian Mosport
Ventures Limited be dismissed.
Submitted by: �`�' Reviewed by:
Andrew C. Allison, B. Comm., LL.B. Franklin Wu, MAOM
Municipal Solicitor Chief Administrative Officer
Submitted by:
'ancy T4ylor,,B. .A., C.A.
DirectWof Finance
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
REPORT NO.: LGL-009-12 PAGE 2
1.0 BACKGROUND
1.1 In a letter dated September 14, 2012, Lyn Townsend, Townsend and
Associates, Solicitor on behalf of Canadian Mosport Ventures Limited, filed
a complaint under Section 20 of the Development Charges Act, 1997 with
respect to 3233 Concession Road 10, Bowmanville (Attachment 1). In her
letter, Ms. Townsend has asserted that the amount charged was incorrectly
determined and there was an error in the application of Development
Charges By-law No. 2010-058.
1.2 A description of the proposed development (storage building) and the
amount of the development charges paid are set out in the complaint letter.
1.3 At the October 22, 2012 Council meeting, Mr. Phil King appeared as a
delegation on behalf of the complainant (Canadian Mosport Ventures
Limited). Council referred the complaint to staff for a report.
1.4 The purpose of this Report is to provide Council with further information
respecting the complaint as well as information regarding Municipal
development charges collected as a result of a building permit issued to
Canadian Mosport Ventures Limited on October 16, 2012 for a pump house
on the same property.
2.0 COUNCIL AUTHORITY
2.1 Under subsection 20(1) of the Development Charges Act, 1997, "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."
2.2 Under subsection 20(6) of the Development Charges Act, 1997, Council "may
dismiss the complaint or rectify any incorrect determination or error that was the
subject of the complaint."
2.3 Council does not have the power to change Development Charges By-law No.
2010-058. This can only be done by following the process set out in the
Development Chagres Act, 1997.
2.4 Canadian Mosport Ventures Limited has also filed a complaint respecting the
development charges imposed by the Region. The Regional complaint is
REPORT NO.: LGL-009-12 PAGE 3
scheduled to be heard at the Region on November 14, 2012. This Report will only
deal with the payment of development charges under By-law No. 2010-058.
3.0 DISCUSSION
3.1 In the complaint, it is suggested that the proposed storage building is an
"accessory" use and therefore "the issuance of building permit 12.0678 does not
have the effect of increasing the need for services". Staff disagree.
3.2 "Accessory" is defined in the Development Charges By-law No. 2010-058 as
follows:
Accessory: where used to describe a building means that the
building is naturally and formally incidental, subordinate in purpose
or floor area or both, and is exclusively devoted to a principal use or
building located on the same lot;
3.3 "Building", "residential" and "non-residential" are defined in the By-law as follows:
Building: means a building or structure occupying Non-residential:
means buildings or portions of mixed-use buildings containing floors
or portions of floors contained therein which are used, designed or
intended to be used for a purpose, which is not a residential
purpose;
Non-Residential: means buildings or portions of mixed-use
buildings containing floors or portions of floors contained therein
which are used, designed or intended to be used for a purpose
which is not a residential purpose.
Residential: means buildings or portions of mixed-use buildings
and floors or portions of floors contained therein which are used,
designed, or intended to be used as living accommodation for one
or more individuals provided in a dwelling unit(s) and an accessory
building to the dwelling;
3.4 The word "accessory" is only used in four places in the By-law. It is used to clarify
which buildings or areas are "accessory" for purpose of determining what category
of development charge should apply or whether a particular building should be
exempt from payment. It is used in the definition of "agriculture" to clarify which
agricultural buildings will receive the benefit of an agricultural exemption under
section 19 of the By-law. It is used in the definition of "dwelling, garden suite" to
make it clear that garden suites will not have to pay development charges in the
higher amount that would otherwise be applicable to single detached dwellings. It
is used in the definition of "industrial" to differentiate areas that will attract a non-
residential development charge from areas that will attract an industrial charge.
Finally, it is used in the definition of "residential" to make it clear that "living
accommodation ... provided in an accessory building to the dwelling" (e.g. garage
REPORT NO.: LGL-009-12 PAGE 4
apartments) are residential uses that will require the payment of development
charges. "Accessory" is not used in the definition of "non-residential" because it is
not necessary.
3.5 Section 4 of Development Charges By-law No. 2010-058 provides as follows:
4. It is hereby declared by Council that the development of land
for residential buildings, non-residential buildings and mixed-use
buildings in the Municipality will increase the need for services.
3.6 When read together, these sections of By-Law No. 2010-058 make it clear that all
non-residential buildings (which include storage buildings) increase the need for
services, irrespective of whether they are "accessory".
3.7 This interpretation has been applied to the By-Law No. 2010-058 and its
predecessors on numerous occasions. The Municipality has consistently applied
development charges to accessory non-residential buildings.
3.8 Staff are therefore of the opinion that the amount of the development charge was
correctly determined and that that was no error in the application of the
Development Charge By-law No. 2010-058. Accordingly, it is recommended that
Council dismiss the complaint.
3.9 If Council feels that a different approach should be taken in terms of "accessory"
non-residential buildings (some municipalities do exempt "accessory" non-
residential buildings from the payment of development charges (e.g. Halton)), in
the opinion of staff it would require a change to the by-law.
4.0 PUMP HOUSE
4.1 During his delegation to Council on October 22, 2012, Mr. King referred to
development charges that had been paid in relation a building permit for the
construction of a pump house on the same property (3233 Concession Rd #10)
that was issued on October 16, 2010.
4.2 The building permit was for an in-ground 40,000 US gallon water storage tank (5.5
m by 13.92 m) with an above ground building that is 31 square meters (5.5 m by
5.5 m). The above ground building will house a diesel fuel pump, the sole purpose
of which will be to provide water for fire fighting to the Event Center (currently
under construction) and the storage building (described in the complaint letter)
located on the property. Both of these buildings require water for firefighting in
accordance to the Ontario Building Code because they are in excess of 600
square meters in area. The pump house will be located approximately 84 m from
the Event Centre and 13.7 m from the storage building.
4.3 This the first time that the Municipality has dealt with a building permit application
of this nature. When the building permit was issued, staff collected $1,937.50 for
Municipal development charges but did indicate that they would review the matter.
REPORT NO.: LGL-009-12 PAGE 5
After consulting with the Treasurer and the Municipal Solicitor, it was determined
that Municipal development charges are not payable in relation to the proposed
pump house under By-Law No. 2010-058. The reasons are set out below.
4.4 Development charges for non-residential buildings are calculated based on the
amount of "total floor area". The definition of "total floor area" in By-law 2010-058
"excludes any areas of the building or mixed use building used for elevators,
enclosed garbage storage areas, loading facilities, mechanical equipment related
to the operation or maintenance of the building or mixed use building, parking of
motor vehicles, retail gas pump canopies, stairwells and any separately enclosed
garbage storage area". This wording reflects an intention not to impose
development charges in relation to floor area that is used to house "mechanical
equipment related to the operation or maintenance of [a] building".
4.5 If the equipment in the pump room had been located within either the Event
Centre building or the storage building, the area that the equipment occupied
would have been deducted from the "total floor area" in order to determine the
amount of Municipal development charges payable. It would be an inconsistent
and unfair result, and it would be contrary to the intention of By-Law No. 2010-058,
to collect development charges simply because "mechanical equipment related to
the operation of the building" was housed in a separately enclosed area.
4.6 To be clear, the pump house should not attract Municipal development charges
because it is being used to house immoveable mechanical equipment related to
the operation of two other buildings on the property (as compared to a storage
building that is used for the temporary storage of moveable equipment and
materials associated with the racetrack). The refunding of Municipal development
charges for the pump house has nothing to do with whether the pump house is or
is not an "ancillary" building.
4.7 Based on the foregoing, the Municipal development charges paid in relation to the
construction of the pump room (Building Permit No. 12.1526) will be refunded to
Canadian Mosport Ventures Limited.
5.0 CONCURRENCE
5.1 The-Director of Engineering Services and the Chief Building Official have reviewed
this Report and concur with its recommendations.
CONFORMITY WITH STRATEGIC PLAN — Not Applicable
Attachment 1: Letter of September 14, 2012 from Townsend & Associates (with
Attachments)
ATTACHMENT NO. 1 TO
REPORT LGL-009-12
PLEASE send(x°TOWNSEND AND AssQCIATES T E222)
BARRISTERS AND SOLICITORS Email:lyn,townsend @ltoYmsend.ca
Assistant:Kate tong(Ext.221)
LvtaDA J.TOwNSEND PROFESSIONAL CORPORATION E-mall:kate.king @ltownsend,ca
September 14,2012
Mayor and Members of Council
The Municipality of Clarington
40 Temperance Street
BowmanAlle,ON
L1C 3A6
Attention Patti Barrie, Clerk
Dear Ms.Barrie:
Re: Development Charges Act,section 20
Complaint
3233 Concession Rd,#10, Bowmanviile,ON
We are the solicitors for Canadian Mosport Ventures Limited with respect to their property at 3233
Concession Road No. 10, Bowmanville, ON,(the"Subject Property"), Please accept this letter of complaint
filed under section 20 of the Development Charges Act, 1997, (the "Act") and proceed to schedule a
hearing of the complaint before Regional Council.
Under section 20 of the Act, the basis of the complaint is that the amount of the charge was incorrectly
determined and (here was an error in the application of the Municipality of Clarington's Development
Charge By-law 2010.058,
Our client Is proposing to construct a building which is identified on Building Permit 12,0678 as a 1 storey
maintenance shed ancillary to Mosport International Raceway, A copy of the building permit has been
enclosed for your ease of reference, The proposed maintenance shed has a gross floor area of 743,22
square metres (approximately 8000 square feet). In calculating the development charges payable, the
Municipality of Clarington has applied the non-residentlat, excluding Industrial rate to the proposed
maintenance shed,
Development Charges in the following amounts were required to be paid prior to the issuance of the
building permit:
Regional-$93,680
Municipal-$46,451,25
Separate School Board-$401.34
Public School Board-$3,039.77
Total-$143,572.36
A receipt showing payment of the above amount on September 13, 2012 is enclosed with this letter for your
convenience.
SUITE 10,1525 CORNWALL ROAD,OAKVILLE,ONTARIO L6J ot32
PHONE:(905)829 8600•FACSIMILE.,(905)829 2036- E-MAIL: mail @Itownsend.ee
Municipality of Cladnglon
Re: DC complaint
September 14,2012
Page 2 012
It is our position that there has been an error in the application of the Development Charges By-law 2010-
058, In that the issuance of building permit 12.0678 does not have the effect of increasing the need for
services. The proposed maintenance shed is merely to be used for the storage and maintenance of
equipment and materials associated with the raceway.
The Development Charge By-law 2010-058 defines accessory as:
where used to describe a building means that the building is naturally and normally
Incldental,subordinate in purpose or floor area or both and is exclusively devoted to a
principle use or building located on the same lot,
Therefore as an accessory use that does not increase the need for services, the proposed maintenance
shed should not have been subject to the payment of development charges under Development Charges
By-law 2010-058.Accordingly,on behalf of our clients,we are seeking a full refund with interest of the total
development charges paid to the Municipality of Clarington.
On the basis of the above grounds,and such further grounds as we may raise, please proceed to schedule
the hearing before Council, We will await notice of the hearing required pursuant to section 20(5)of the Act.
Yours truly,
TowN ND ND ASSOGATE
t.yn owns eon d
i
CORPORATION OF THE MUNICIPALITY OF
CLARINGTbN
40-.TEMPERANCE ST., BOWMANVIL.LE, ON LIC 3A6
TELEPHONE: 905-623-3379
WEBSITE:www.clarington.net
RECEIVED FROM: DATE;
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HST PAYABLE HST#10697980ORTOOOI
TOTAL PAID � � ����•�
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RECEIPT NO. COMPLETED BY:
302561
White-- Customer Copy, Yellow--Accounting Copy, Pink—Fiie Copy
r • 1
I Engineering Services Department- Building Division
4 ° 40 Temperance Street
..ZBowmanviile, Ontario L9C 3A6
Loading the Way I Telephone (905)6233379 Fax (905) 623-9824 Inspections (905) 623-7876
BUILDING" T
i
Permit No: 12.0678
Issue Date: September 13, 2012
Property Address; 3,233 CONCESSION RD 10, CLARKE i
Legal Description: CARLINTON CON 9 PT RDAL LOT;34 PT LOTS 33 AND 35
OWNER: APPLICANT:
CANADIAN MOSPORT VENTURES LTD. GLEN SCHNARR&ASSOCIATES INC
i
TO CONSTRUCT: 'I Stbrey Maintenance Shed (Ancillary to Mosport International Raceway))
Number of Units: 0
Gross FloorArea (sq. m.): 743.22
Finished BasementArea (sq, m.): 0,00
Model Type:
' Energy Design:
PERMIT CONDITIONS:
I
I
I
i
r
THIS CARD MUST BE PROMPTLY DISPLAYED ON THE PREMISES DESCRIBED
ABOVE AND VISIBLE FROM THE STREET
INSPECTIONS MUST BE CALLED IN BEFORE 3:04 P FOR N XT DAY INSPECTION.
CALL: 905-623<7$7
Issued By: -
Chief Building Official