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HomeMy WebLinkAboutLGL-009-13ClarjMWR LEGAL REPOR LEGAL DEPARTMENT 1 Meeting: COUNCIL Date: September 30, 2013 Resolution#: By-law #: Report#: LGL-009-1 3 Fille#: L2030-06-12 ;[oil I *;In;[$] ZO-Al ITI IN] ill 1;q 01 Is 11010 B14TV4 W_0j :1 k1i 1:4 0 1 ELM M ViU.11901*"M I N xet1h I k7i I ;I N PY-11% d L91 0 It is respectfully recommended to Council the following: 1. THAT Report LGL-009-13 be received for information. Submitted by: Reviewed by: XAZnd!r w C. Allison, 8, Comm,, LL.B. Franklin Wu, MAOM Municipal Solicitor Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379 1 A At its meeting on September 16, 2013, Council referred Correspondence Itern D- 9 (a letter from Martin D. Gerkes dated August 7, 2013) to staff for a report. A copy of this letter is attached to this Report (Attachment 1). 1.2 In his letter, Mr. Gerkes has requested that Council amend Development Charges By-law No. 2010-058 (the, "DC By-law") in order to "transfer ... demolition rights" from property that is being expropriated by MTO (4726 Rundle Road) for purposes of the future, 407 extension to another property (3700 Maple Grove Road). A Location Map showing both properties is attached to this Report (Attachment 2). 1.3 The Gerkes property is one of the many properties that has been or will be acquired or expropriated by MTO for purposes of the 407. MT► is required to follow andl apply all of the requirements of the Expropriations Act if it is unable to reach an agreement with affected property owners on issues such as compensation. 1A The circumstances described by Mr. Gerkes are not unique. Staff are aware of at least 4 similar situations involving M!TO expropriations for the 407 Highway., Staff are also aware of a similar situation involving an acquisition by Central Lake Ontario Conservation Authority. 1.5 The correspondence from Mr. Gerkes raises expropriation issues and development charges issues. Both will be addressed in this Report. Deve/opment Charges 2.1 Under Section 22 of the DC By-law, no development charges wound be payable if the existing house at 4726 Rundle Road was dernolished and a new house reconstructed on the same property. Essentially, the total amount of the development charges otherwise payable is offset by a demolition credit in situations where an existing building or structure is demolished in order to permit redevelopment on the same property. The credit will be given if demolition takes place within 5 years of the date that the redevelopment takes place. The credit is given on the theory that there will not be any increase in the need for Municipal services if what is built effectively replaces what was previously located on the same property. 2.2 Because the DC By-law does not allow demollition credits to be transferred from one property, to another, development charges would be payable if a new home is constructed at 3700 Maple Grove Road. If a building permit was issued today for a single-detached dwelling at 3700 Maple Grove Road, the development charges would be as follows: Clariington $15,5 18 Region • Durham • ,966 Public School Board 994 Separate School Board 120 Total U6,598 This figure does not include any amounts for water supply ($7,246) or sanitary sewerage ($8,365) because these services are not available at 3700 Mapie Grove Road. 2.3 Council does not have the ability to waive or amend any portion of the Regional development charge ($9,966). Council only has the ability to deal with the local and school board development charges which total $16,632. Staff's understanding is the Mr. Gerkes has requested relief from the Region for the Regional development charges. 2.4 As stated above, the DC By-law only allows demolition credits in situations where redevelopment occurs (on the same property) - it does not allow for credits to be transferred to the development of a different property. The reason for this is that even in situations where the number and type of dwelling units that are demolished on one property is the same as the number and type of dwellings that are constructed on a different property, there may be an increase in the need for services. This is fundamental to the position of the Municipality on the appeal of the DC By-law that is currently before the Ontario Municipal Board, Our position on the appeal is that "excess capacity" for a particular service in one part of our geographically diverse municipality (with 4 separate urban areas) will not necessarily be used by residents in other parts of the Municipality. A second reason underpinning the position of the Development Charges By-law revolves around the future use of any portion of the property where the demolition is occurring, In general, if a transfer of the credit is permitted and in future redevelopment occurs on the original site, the demolition credit would no longer be available. Expropriations Act 2.,5 Staff's understanding is that Mr. and Mrs. Gerkes are represented by legal counsel who has a great deal of experience in dealing with expropriation matters, but that the issue of compensation has not yet been resolved. In his letter, Mr. Gerkes has indicated that there is a fundamental disagreement with the MTO regarding the appropriate level of compensation under the Expropriation Act. 2.6 Under the Expropriations Act, compensation is payable to an owner whose land has been expropriated based upon several heads of damage, most notably the market value of the land. Staff are not aware of any head of damage under the Expropriations Act that requires an expropriating authority to directly compensate an owner for development charges paid to construct a new home. Indirectly, development charges are factors that are considered when comparing property values in order to determine the fair market value of the expropriated land. If appropriate compensation has been provided for the home being demolished, this would, in theory, represent the cost to replace the current residential status. It is generally accepted that the construction of a new home incorporates the development charges fee as part of the ultimate cost, 3,1 The DC By-law does not allow demolition credits to be transferred from one property to another primarily for reason set out in Section 2.4 of this Report, 3.2 Whether or not the Expropriations Act requires expropriating authorities, to compensate land owners for development charges in situations hike this is a matter to be determ,iined in accordance with the Expropriations Act, 33 Whether development charges are payable under the DC By-law has no legal relationship to the issue of compensation under the Expropriations Act. 3A In the opinion of staff, it would be inappropriate for Council to amend the DC By- law in order to make up for any perceived deficiencies in expropriation process. This would effectively have the Municipality subsidizing, some of MTO's 407 expropriations. Any amendments, such as the one made by Council for heritage homes, should promote a broader public interest to the municipality as a whole. 15 If Council nonetheless wishes to amend the DC By-law, it is recommended that staff be directed to process an amendment that meets the procedural requirements (includingi, notice) of the Development Charges Act, 1997. It is also recommended that any such amendment not be linked to the 407 or any other expropriation, but rather that it be focused on the issue of transferring demolition credits in situations where there clearly will not be an increase in the need for services. This wound be very important in order to limit future implications. 9 I� �." : �k 4.1 The Director of Finance, Director of Engineering! Services and Acting Director of Planning Services concur with the recommendation in this Report. 190101 - 0 I'll, rr A ■ an . Attachment 1. Letter from Martin D. Gerkes dated August 7, 2013 Attachment 2,: Location Map August 711, 2013 To: Patti Barrie Municipal Clerk 40 Temperance Street, Bowmanville, ON U Dear Ms Barrie: D REVIEVEC BY I 1A L TO, _Xallj VL CII GDUTA U FILE fl� 01PEC i ION' I OF;LIATON Cop Y TC: ❑ UAYOR 0 P, ❑ CAO i" V �,C c S S F R V I GES a 1)-;'�';B j (-j 0 VMAIIUS hUS (V Jil's 'VI LKuCJTt)2 YeT��ASURY I ❑ OTHER I am writing to request an amendfii,otito them to be made transferable. L�L�_ ATTACHMENT NO. I TO REPORT LGL-009 -13 ­_ R EC E IVEI A U 6 1 "', 2013 , MUNICIPALITY OF Gl_/011 re, -IN itions, rights in order for I am making this request for an amendment to the existing bylaw because of an impending expropriation, by the Ministry of Transportation, of our home and property, located at 4726 Rundle Road, in Hampton, Ontario. Through no fault of our own, our home and property are being taken, from us in order to facilitate the construction of a link highway between, the 4011 East and 407 East extension. We have owned this 101 acre property since 1964. We erected a custom built home on this property between 1974 —1976, and have resided at this location ever since. In addition to the house, we have established a viable, commercial orchard on the property, as well as cold storages and equipment outbuildings. We have al, ways paid our taxes, and have never been in arrears. Our farm business has provided employment for local people as well as injecting revenue into the local economy. The reason for our request for this amendment has to do with the demolition of the existing residence on 4726 Rundle Road, a demolition that will be enacted by the M,T,01. Unfortunately, the M.T.O. is taking the entire property, which leaves ouir family no option of re- building the home on the same site. We do, however, own a nearby farm property, and as such, we would like to construct a replacement home on this other property. I must emphasize that this home will be a replacement for the current dwelling that we have had taken from us. I understand that if we were to apply for a building permit to erect a home on the second property, located at 3700 Maple Grove Road, development fees would be charged against this construction. I wish to ask for an exception to this, as it is our contention that since our family has been long-time residents of the area, and has dutifully paid our taxes, in addition to providing other revenue streams to the local economy, that consideration be made concerning our forced displacement. In the spirit of the Expropriation Act, there is call for "equivalent re-instatement". Contrary to this concept, the M.T.O. has indicated that it would not be liable for the reimbursement of development fees; additionally, the M.T.O."s interpretation of "market value" differs, drastically from the actual real and true market value of properly. These positions place us at a distinct disadvantage, and as such, I am requesting that our demolition rights — guaranteed on our original property of 4726 Rundle Road -- be transferred to our property located at 3700 Maple Grove Road. Again, I must emphasize that the home to be built at 3700 Maple Grove Road is strictly a replacement of the home that is being taken from us on Rundle Road. It is not in addition to that structure. Given these details, I respectfully ask that due consideration be given to the transfer of our demotion rights, and that this request be placed as an item of concern on the Fall 2013 agenda of your governing body. I sincerely hope that your governing body will do the right thing, and allow this amendment to be granted. We, and families like us, should be allowed our municipal rights, permitting these rights to be transferred as we attempt to re- establish ourselves within the area, without the burden of development fees, as We have paid taxes in the municipality for many years. I look forward to hearing from you with regard to the processing of my request. Should further information be required to process this request, please advise me immediately, and I will then do my best to provide whatever is needed to expedite this process. Finally, I would like to be informed of the date and time this request for amendment will be presented to Council, as I would like to attend this meeting and make myself available should there be questions. Sincerely, Martin D. Gerkes 4726 Rundle Road 1 k r� I r1 1 I 407 APPROVED ROUTE 1 I ATTACHMENT NO. 2 TO REPORT LGL- 009 -13 3700 Maple Grove Road 1,000 Metres