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HomeMy WebLinkAboutPSD-027-03 , Clw:-!!Jgton REPORT PLANNING SERVICES Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: Monday, March 3, 2003 Report #: PSD- 027 -03 File#: f)o1 GfR~ I 'JD- 03 By-law #: Subject: COMPLAINT BY PAUL CHRISTENSEN 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 PSD-027-03 be received for information. Submitted by: Da' J. Crome, MCIP, R.P.P. Director of Planning Services ReVieWedbY:c)~-~ ~ Franklin Wu, Chief Administrative Officer Cp.DJC.sh February 24, 2003 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1 C 3A6 T (905)623- 3379 F (905)623-0830 604 REPORT NO.: PSD-027-03 PAGE 2 1.0 BACKGROUND 1.1 On Thursday January 30, 2003, an Ontario Municipal Board Hearing was held in the Council Chambers with respect to a complaint by Paul Christensen against a development charge imposed on a property at 7700 Carscadden Road. In August 2001, Mr. Christensen applied for a building permit for a single detached dwelling for the referenced property. There was no other dwelling on the property at the time, and the applicant paid a total of $9953 in development charges, which was distributed as follows: . Municipality of Clarington Public School Board Separate School Board Region of Durham $6916 $704 $219 $2114 . . . 1.2 Council may recall that in December 2001, Mr. Christensen filed a complaint, pursuant to the Development Charges Act, that an error in the application of the Municipality's development charges was applied against his property. In accordance with the Development Charges Act a hearing date was set for February 25, 2002, for Council to hear the complaint. Mr. Christensen addressed Council advising that he believed his property should be exempt from paying development charges for the following reasons: . He was of the understanding that development charges are not imposed on agricultural properties; . This is an existing lot and there was previously a house on the property until 1989, therefore this is not new development; . The taxes for this property have included a garbage removal fee; and . The Municipality installed the green municipal address sign at the entrance to the property. He argued that these last two items are not done on vacant parcels. Therefore, the Municipality must not consider the lot to be vacant. 1.3 Council referred the issue to staff for a report. In June staff reported acknowledging there had been an error in the application of garbage removal fee to the property tax. As a result, a rebate was available for payment made for the last three years. Also it was acknowledged that the municipal street address sign was placed on the property in 605 REPORT NO.: PSD-027-02 PAGE 3 advance of the house, nevertheless with the building permit issued in September 2001 the address sign was now required. The report noted the development charge by-law allows a credit where a dwelling previously existed on the lot, provided a building permit, for a new dwelling, is issued within 24 months of the removal of the original house. The previous dwelling was demolished in August 1990 and the building permit for the new house was not applied for until 2001. The report concluded that the development charge was applied properly and Mr. Christensen's request for a refund be denied. Council supported the staff recommendations. 1.4 Mr. Christensen appealed the decision of Council to the Ontario Municipal Board. Mr. Christensen also appealed a similar decision by the Region of Durham to impose a regional development charge on the subject property. The OMB heard both appeals together, on January 30, 2003. 2.0 OMB Hearing 2.1 Planning staff together with the municipal solicitor attended the hearing in support of Council's position. Mr. Christensen provided similar argument as to why he should not pay a development charge as he did when he appeared in front of Council. The thrust of his argument was that this is an existing lot, no additional services are required, and therefore, he should be exempt. The Board advised that its role is limited to a determination of whether the By-law has been properly applied (i.e. The amount correctly calculated or whether a credit is available). The question of whether a vacant lot should be subject to a development charge is not a consideration, as both the Municipality and the Region have development charge by-laws in effect. 2.2 Staff provided uncontradicted evidence that the development charge for a single detached dwelling was properly calculated. In addition, as more than 2-years had passed following removal of the original dwelling from the lot, this exemption was not available to Mr. Christensen. The Board concurred and dismissed the complaint against the Municipality. 606 REPORT NO.: PSD-027-02 PAGE 4 2.3 In dealing with the complaint against the Region of Durham development charge it became evident there was uncertainty as to the exact date the demolition/removal of the previous dwelling took place. Originally Mr. Christensen suggested it occurred in the fall of 1989. During the hearing, the Municipality presented evidence that a demolition permit was issued August 15, 1990, however a final inspection confirming the work was complete did not occur until February 1993. As there was no way of knowing the exact date demolition occurred, and because the Region's Development Charge By-law provides a 10-year window between demolition and issuance of building permit for exemption. The Region agreed that a development charge should not have been applied. The Board allowed the appeal against the Durham Region Development Charge By-law. Attachments: Attachment 1 - O.M.B. Decision 607 ATTACHMENT" 1 0213 WlE ~ ! rE8 1 B 2D03 Ontario ' Ontario Municipal Board MUNICIPALlTYOf ClARINGTQN . . . . . P N NG.uEPARTMENT Commission des affalres mUnlclpales C020005 C020006 ISl1UE DAr!': Feb. 13,2003 DECISION/ORDER NO: Paul Christensen has complained to the Ontario Munidpal Board under subsection 20 of the Development Charges Act, 8.0. 1997 c. 27 against a development charge imposed on a property at 7700 Carscadden Road by the Munidpality of Clarington O.M.B. File No. 0020010 (OC020005) Paul Christensen has complained to the Ontario Municipal Board under subsection 20 of the Development Charges Act, 8.0. 1997 c. 27 against a development charge impOSed on a property at 7700 Carscadden Road by the Regional Municipality of Durham ,'. '~,; O.M.B. File No. 0020011 (DC020006) I ~ ~ APPEARANCES: Parties Counsel ~ Paul Christensen Municipality of Clarington Regional Municipality of Durham N. Macos M. Gaskell MEMORANDUM OF ORAL DECISION DELIVERED BY M. F. V. EGER ON JANUARY 30, 2003 AND ORDER OF THE BOARD At the conclusion of the hearing, the Board advised the parties of its decision. The following are the Board's written reasons. Mr. Christensen purchased the lands at 7700 Carscadden Road in the fall of 1997. The lands are located in a rural part of the Municipality and are not serviced with municipal sewer or water. At the time of purchase, there was not a dwelling on the lands. An earlier dwelling had been demolished prior to Mr. Christensen's involvement with the property. A new single family home is currently under construction on the site. At the time Mr. Christensen obtained his building permit he was required to pay development charges to the Municipality totalling $9953. The charges were _ 608 -2- DC020005 DC020006 Municipal Development Charae Single or semi $6916 EducationaJ Development Charae Public School Separate School $ 704 $ 219 Reaional Development Charae Single detached dwelling $2114 $9953 TOTAL Mr. Christensen paid the charges on September 17, 2001. Part of Mr. Christensen's objection to paying the Municipal and Regional charges is that 7700 Carscadden Road is an existing lot of record and there was previously a residence on the property. He concludes that in such circumstances no additional municipal services are required and he should be exempt from paying development charges to the local and regional municipalities. Neither Clarington's Development Charge By-Law No. 2000-108 or the Regional Municipality of Durham, By-Law No. 50- 99 provide for a blanket exemption for existing lots of record from payment of development charges upon redevelopment. The complaints before the Board were filed under subsection 20 of the Development Charges Act. The Board's jurisdiction, on appeal, is the same as that of council - 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 detennined; 609 -3- DC020005 DC020006 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. -and- 20. (6) 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 In such cases, the Board's role is clearly limited to a determination of whether the by-law has been properly applied and to determine whether the amount of the development charge was correctly determined. The question of whether existing vacant lots of record in Durham Region and/or the Municipality of Clarington are subject to development charges was determined at the time the respective Development Charge By-laws were adopted and the evidence before the Board is that these By-laws are currently in full force and effect. In either case before the Board, Mr. Christensen does not take exception to the amount of the charges only their applicability to his property. Before considering the two separate complaints, it is important to set out the facts related to the date of demolition and application for building permit at the time of the hearing as they vary from those at the time Durham and Clarington Councils dealt with the complaints. Prior to his purchase of the subject property, Mr. Christensen had no personal knowledge of the property. When he filed his complaints with the Region and the Municipality he indicated that the original house had been on the lot until the fall of 1989. This was information obtained from a former resident of the property. That is the information that both municipal councils had when they considered Mr. Christensen's complaints. During the preparations for this hearing the staff at the Municipality of Clarington located a copy of the Application for Permit to Demolish the existing residence at 7700 Carscadden Road, dated August 15,1990 (Exhibit 3, Tab 2). 610 -4- DC020005 DC020006 Staff also located the Building Inspection Report indicating that a final inspection was made on February 26, 1993 and that the work was complete (Exhibit 3, Tab 3). The parties now agree that the previous residence was removed between August 1990 and February 1993, which is later than the 1989 date indicated in the complaints filed with the Municipalities. The Board will now consider the appeals in the context of the appropriate by-law. Municipality of Clarinqton Mr. Pellarin is currently the Manager of Community Planning and Design for the Municipality of Clarington and is familiar with By-Law No. 2000-108. He. reviewed in considerable detail the By-Law, the Definition 'for single-detached dwelling and the applicable charges, based on indexing since the time the By-law came into effect, which were charged at the time the building permit application was made. Again, Mr. Christensen took no exception to the method of calculation or amount of the charge. Mr. Pellarin also reviewed the list of exemptions provided for in the By-Law. Subsection 22 (1) states that ....a credit shall be allowed against the development charge otherwise payable by the owner pursuant to this By-law for the portion of the previous building or structure that is still in existence being converted to residential purpose or for the residential portion of the building that has been demolished..... Subsection 22 (2) limits the credit - "A credit in respect of the demolition of an existing building shall not be given under subsection 22(1) unless within two years from the date on which the demolition permit for the demolition in question was issued, either a building permit has been issued..... It is Mr. Pellarin's opinion that the only possible exemption available to Mr. Christensen is that referred to above and based on the evidence today the application for building permit is well past the 2-year window for exemption. On this basis, the Board finds that the Development Charge By-law of the Municipality of Clarington was correctly applied and Mr. Christensen's complaint is dismissed. 61 I , ~ -5- DC020005 DC020006 Reqion of Duriham Mr. Curtis was the Manager, Development Approvals Division with the Region of Durham at the time Mr. Christensen's Application for Building Permit was being processed by the Municipality. He also reviewed in detail the Region's By-Law and its applicability to the subject lands. Subsection 15(1) provides for a reduction in charges where 'as a result of the redevelopment of land, a building or structure existing on the land within ten years prior to the date of payment of development charges in regard to such redevelopment was, or is to be demolished, in whole or in part...". Mr. Curtis indicated that had he been aware in 2001 of the demolition permit application and inspection reports filed with the Board at the hearing, Mr. Christensen would have been exempted from any charges. On this basis, the Board finds that with respect to the Regional Development Charge By-law, there was an error in the application of the By- law and no Regional Charges are indicated. The Hoard allows the appeal. Pursuant to subsection 25 (1) and (2) of the Act, the $2114 charge paid by Mr. Christensen is to be refunded by the Municipality with interest from September 17, 2001. So orders the Board. 'M. F. V. Eger" M. F. V. EGER VICE-CHAIR 612