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HomeMy WebLinkAboutPSD-137-03 .\-<<.-'\.,- ~ '. IlEPORT #3 CJ. fl L~~ REPORT PLANNING SERVICES Meeting: COUNCIL Date: Monday, October 20,2003 Report #: PSD-137-03 File #: PLN 20.4.7 By-law #: Subject: RECOMMENDED DECISION RESPECTING DEVELOPMENT CHARGES BY- LAW COMPLAINT - THE EDUCATION ACT OWNERS: MARTIN, ANN AND MARTIN D. GERKES 3700 Maple Grove Road, being within Part of Lot 19, Concession 3, former Township of Darlington RECOMMENDATIONS: It is respectfully recommended: 1. THAT Report PSD-137-03 be received; 2. THAT the decision contained in Report PSD-137-03 be adopted as the decision of Council to dismiss the complaint made by Martin, Ann and Martin D. Gerkes with respect to application of Education Development Charges By-laws of the District School Boards; and 3. THAT Mr. Gerkes, the Peterborough-Victoria-Northumberland and Clarington Catholic District School Board and the Kawartha Pine Ridge District School Board be advised of Council's decision. Submitted by: Reviewed bY:cJ ~......::- ~ Franklin Wu Chief Administrative Officer L T*DJC*df 14 October 2003 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1 C 3A6 T (905)623- 3379 F (905)623-0830 " -t. ,~. . REPORT NO.: PSD.137-03 PAGE 2 DECISION OF COUNCIL j 1.0 BACKGROUND 1.1 Mr. Martin Gerkes, Mrs. Ann Gerkes and Mr. Martin D. Gerkes by correspondence dated July 7, 2003, (Attachment 1) filed a complaint pursuant to section 257.85 of the Education Act 1990, c.E.2, as amended. The complaint was based on their contention that an error had been made in the application of the residential development charge imposed by the Education Development Charges By-laws passed by the Kawartha Pine Ridge District School Board and the Peterborough-Victoria-Northumberland and Clarington District School Board ("District School Boards") to the development of a seasonal agricultural bunkhouse. The residential charges were collected by the Municipality's Chief Building Official for the District School Boards when a building permit for the proposed development - a seasonal bunkhouse for migrant agricultural works - was issued. 1.2 Under Section 257.85(1) of the Education Act, an applicant has ninety (90) days from the date that the education development charge or any part of it is payable to submit a complaint to the Municipality which collects the charges. The Education Development Charges are collected on behalf of the District School Boards by the Chief Building Official of the Municipality at the time when a building permit is issued. The permit in this particular instance was issued June 27, 2003, The complaint was filed August 21. 2003, within the ninety (90) day time period. 1.3 Pursuant to the requirements of the Education Act, a hearing was held by Council on September 22nd, 2003 at 7:00 p.m. in the Council Chambers. The Education Act stipulates that a complaint is filed with and heard by the Council of the Municipality to which an education development charge is payable and not by the School Board which has passed the Education Development Charges By- law. 1.4 Mr. Martin D. Gerkes and Mr. Joe Hubbard representing the Kawartha Pine Ridge District School Board were present at the hearing and made verbal submissions to Council. Mr. Joel Sloggett, Manager of Planning of the Peterborough-Victoria-Northumberland and Clarington District School Board submitted the letter contained in Attachment 3 setting out his Board's position although he did not attend the hearing in person. 2.0 THE COMPLAINANT'S SUBMISSIONS 2.1 Mr. Gerkes contended in his letter dated August 21, 2003 (Attachment 2) which was filed with Council, that the application of the by-law to a bunkhouse structure to accommodate seasonal migrant workers was in error. At the public hearing on " "' , .' , REPORT NO,: PSD-137-03 PAGE 3 September 22, 2003 as well as in his letter of August 21, 2003, Mr. Gerkes made the following submissions in support of the complaint: i) The Municipality waived the development fees on the bunkhouse structure based on the nature of the intended use of the structure as a seasonal agricultural structure; ii) The Regional development fees had been reviewed and would be refunded. This was based on the fact the bunkhouse structure did not conform to the Regional definition of a structure that would be subject to development fees; iii) The bunkhouse structure is a seasonal use facility and not a permanent residence. It would provide lodging for migrant farm labour during the harvest season. The workers would never take advantage of any of the resources that the development fees are to establish and maintain. Their children are in Mexico; iv) The definition for the application of education development fees should be reviewed as it does not properly take into account the use or nature of special case structures. By definition the District Boards apply development fees to structures that incorporate a kitchen and washroom facilities. This definition is too broad and does not fairly apply to all structures; and v) Agricultural businesses (Family Farms) have always been afforded special consideration by the Federal and Provincial governments in recognition of the nature of the enterprise and the extreme risks that this sector is subject to. This special consideration has been extended by the Municipality with regard to the development fee issue in recognition of the nature of agricultural business. 3.0 DISTRICT SCHOOL BOARDS' POSITION 3.1 Mr. Joe Hubbard, the representative of the Kawartha Pine Ridge District School Board, submitted that Mr. Gerkes' seasonal bunkhouse development would fall within the definition of residential development in the Education Development Charges By-laws and as a result a charge must be imposed at the residential rate. No exemption exists for seasonal farm help structures in the existing By- laws. Therefore in his submission there was no error in the application of the existing Education Development Charges By-laws to the development in question. , , 'L~ '. , , REPORT NO.: PSD-137-03 PAGE 4 3.2 Mr. Joel Sloggett, Manager of Planning provided the written submission (see Attachment 3) on behalf of the Peterborough-Victoria-Northumberland and Clarington Catholic District School Board, 3.3 Mr. Sloggett stated that he had been in contact with officials at the Kawartha Pine Ridge District School Board and he had been requested to forward on the following information for Council's consideration: . At the time of issuance of the building permit, pursuant to Section 9 of the Peterborough-Victoria-Northumberland and Clarington District School Board Education Development By-law (2000) an education charge of $219.00 per dwelling unit was imposed on all residential development in Clarington. The corresponding By-law for the Kawartha Pine Ridge District School Board set the residential charge at $704.00 per residential unit. . Under both By-laws, "Residential Development" is defined as lands, buildings or structures developed or to be developed for residential use. "Residential Use" is defined as lands, buildings or structures used, or designed or intended for use as a dwelling unit or units, and shall include a residential use accessory to a non-residential use and the residential component of the mixed use or agricultural use. A "dwelling unit" is defined as a room or suite or rooms used, or designed or intended for use by one person or persons living together, in which culinary and sanitary facilities are provided for the exclusive use of such person or persons, . The subject building constitutes a dwelling unit and the residential charges set out under the By-law were applicable to the residential development for which the Municipality has issued a building permit to Mr. Gerkes. 4.0 REASONS FOR DECISION 4.1 Council does not have jurisdiction to decide whether the Education Development Charges By-laws passed by the District School Boards should be amended as Mr. Gerkes argues they should be amended. Council's jurisdiction is limited to determining under the By-laws as they exist now, whether the amount of the education development charge was incorrectly determined; whether a credit is or is not available or that the amount of the credit has been incorrectly determined; and whether there is an error in the application of the existing Education Development Charges By-laws to the development in question. Council can neither amend nor grant exemptions from the Education Development Charge By-law when a complaint like that of Mr. Gerkes' has been filed with the Municipality. Mr. Gerkes' argument that the By-laws should be amended, in effect, to exempt seasonal bunkhouses should be addressed to the District School Boards and not to Council. , , ~ '. , . REPORT NO,: PSD-137-03 PAGE 5 4.2 The content of the Education Development Charges By-law is different than the content of the Municipality's and Region of Durham's Development Charges By- laws. The provisions of the latter two by-laws are not relevant to Mr. Gerkes's complaint regarding the application of the existing Education Development Charges By-laws. 4.3 Council adopts the submissions of the District School Boards regarding the application of the Education Development Charges By-laws to the development in question. 4.4 The structural drawings that formed part of the building permit application filed by Mr. Gerkes confirmed that the bunkhouse structure contained all the necessary components to comply with the definition of a dwelling unit contained in the Education Development Charges By-laws, Neither By-law contains exemptions of residential buildings such as a seasonal bunkhouse that is occupied for part of the year only. As a result, payment of the educational development charges by Mr. Gerkes when the building permit was issued was required, and no error was made in the application either of the District School Boards' Education Development Charges By-laws. 5.0 CONCLUSION 5.1 For the above reasons the complaint filed by Mr. and Mrs. Gerkes is dismissed. Attachments: Attachment 1 - Letter dated July 7, 2003 from Martin D. Gerkes on behalf of all the owners to the Municipality Attachment 2 - Letter dated September 24, 2003 from Mr. Gerkes to the Municipality Attachment 3 - Letter dated September 24, 2003 from Mr. Joel Sloggett to the Municipality . > ''- '" , REPORT NO.: PSD-137-03 PAGE 6 Interested parties to be notified of Council's decision: Mr. M. Gerkes 4726 Rundle Road Hampton, ON LOB 1JO Mr. Langlois Director of Education and Secretary/Treasurer Peterborough Victoria Northhumberland and Clarington Catholic District School Board 1355 Lansdowne Street West Peterborough, ON K9J 7M3 Mr. Joe Hubbard Superindant of Education, School Operations Kawartha Pine Ridge District School Board P.O. Box 719 150 O'Carroll Avenue Peterborough, ON K9J 7A1 . , , ATTACHMENT 1 '03AUG21 I1t110:2<"1:1'9 CLARINGTON, Municipal Council 40 Temperance Street Bowmanville, Ontario L1 C 3A6 7 July 2003 Dear Sir or Madame: Martin, Ann, and Martin D. Gerkes, the owners of Lot N19, Conc. 3 Municipality of Clarington, wish to lodge a complaint with respect to the application of the development charge by-law to a proposed bunkhouse structure for the accommodation of seasonal migrant workers. The owners believe that the application of education development fees is in error particularly with respect to the nature and use of the bunkhouse structure. Martin D. Gerkes is the designated contact person and will speak on behalf of the other owners. The contact address for any notice is: 4726 Rundle Road Hampton, Ontario LOB 1 JO Phone: 905-263-8266 Cell: 416-243-5293 Respectfully Martin D. Gerkes (on behalf of all the owners) ATTACHMENT 2 ".... " CLARINGTON, Municipal Council 40 Temperance Street Bowmanville, Ontario L1 C 3A6 '03SEP2:-' 0- 24 September 2003 Dear Sir or Madame: Martin, Ann, and Martin D. Gerkes, the owners of Lot N19, Conc. 3 Municipality of Clarington, wish to lodge a complaint with respect to the application of the development charge by-law to a proposed bunkhouse stmcture for the accommodation of seasonal migrant workers. The owners believe that the application of education development fees is in error, particularly with respect to the nature and use of the bunkhouse structure. Martin D. Gerkes is the designated contact person and will speak on behalf of the other owners. The reasons for our belief that the application of the education development fees are in error are as follows: 1. The Municipality of Clarington has waived development fees on the Bunkhouse structure based on the nature and intended use of the structure as a seasonal agricultural structure. This was supported by a swam affidavit to the municipality with regard to the intended use of the structure. 2. The Regional development fees, (that have been paid), have been reviewed; consequent of this review, it has been determined that the fees will be refunded. This is based on the fact that the bunkhouse structure does not conform to the regional definition of a structure that is subject to development fees. (That is: any structure that incorporates a kitchen and washroom facilities.) The bunkhouse structure does incorporate kitchen and washroom facilities, however the washroom facilities are a shared use and are available to all visitors to the property via an exterior entrance. Accordingly, the Regional legal department has deemed that because of this shared use, the structure is not subject to development fees. (Please refer to Mr. Peter Nundy for more information) . 3. The bunkhouse structure is a seasonal use facility and as such, it is a shared use structure, One of these uses is to provide lodging for migrant farm labour (from Mexico) during the harvest season (usually from mid September to the end of October). It is not a pennanent residence and the workers that use the facility will never take advantage of any of the resources that the development fees are to establish and maintain. Typically, these labourers work ten hour days (by " " . . . choice) and up to six days a week. They do not have time to take advantage of our education system. Their children will never take advantage of our education system, as they are in Mexico while their fathers travel to Canada on worl< tenns to eam money so that they can enjoy a better Quality of life in their own home land, 4. The very definition for the application of education development fees should be reviewed as it does not properly take into account the use or nature of special case structures. By definition the school board applies development it;es to structures that incorporate a kitchen and washroom facilities, This definition is far too broad and does not fairly apply to all structures. For instance, houseboats contain kitchen and washroom facilities; are they subject to development fees? Are R.V.S subject to development fees? Are semi pennanent trailers or trailers in trailer parks subject to development fees? 5. Agricultural business (Family fanns) have always been afforded special consideration by the Federal and Provincial govemments in recognition of the nature of the enterprise and the extreme risks that this sector is subject to. This special consideration has also been extended by the Municipality with regard to the development fee issue, in recognition of the nature of agricultural business. For all of these reasons the owners believe that the application of Education development fees has been made in error and would appreciate a review of the application, and abrogation of these fees. Respectfully Martin D. Gerl<es (on behalf of all the owners) 4726 Rundle Road Hampton, Ontario LOB 1JO " . ~::> Peterborough Victoria Norlhumbet1and and C1aringtDn ~Vatholic District School Board ATTACHMENT 3 THE PETER L ROACH CATHOLIC EDUCATION CENTRE September 29,2003 Mrs, Patti L. Barrie, A.M.C.T. Municipality of Clarington 40 Temperance Street Bowmanville, Ontario LJ C 3A6 Dear Mrs. Barrie: Re: Gl!rkes Complaint filed Under the Education Act Concerning Application of Education Development Charge (Building Permit # 030478), I am writing further to receiving your letter of September 8, 2003 concerning the above noted matter. Thank you for the opportunity to make representation on behalf of the Board at this evening's hearing. I wish to advise that I have been in contact with officials at the Kawartha Pine Ridge District School Board and the following information is submitted jointly for Council '8 consideration in hearing the appeal lodged by Martin, Ann and Martin D. Gerkes in connection with the Education Development Charge applied to a new use on their property. At the time of issuance of the subject building permit, pursuant to section 9 of the Peterborough Victoria Northumberland and Clarington Catholic District School Board Education Development Charge By-law (2000), an education development charge of$219,OO per dwelling unit was imposed on all residential development in Clarington, The corresponding By-Law (2000) in place for the Kawartha Pine Ridge DSB sets the residential charge at $704.00 per unit. Under both By-Laws, "Residential Development" is defined as lands, buildings or structures developed or to be developed for residential use. "Residential Use" is defined as lands, buildings or structures used, or designed or intended for use as a dwelling unit or units, and shall include a residential use accessory to a non-residential use and the residential component of a mixed use or agricultural use. A "dwelling unit" is defined as a room or suite or rooms used, or designed or intended for use by one person or persons living together, in which culinary and sanitary facilities are provided for the exclusive use of such person or persons. 1355 lAN5DOWNE STREET WEST . PETERBOROUGH . ONTARIO . K9J 7M3 . TEL (705) 74B-4861 . FAXo (705) 748-9734 . J-800-461-8009 Given information provided by the Municipality to date, it is the respectful submission of the Boards that the subject building constitutes a dwelling unit and the residential charges set out under the By- laws were and are therefore applicable to the residential development for which the Municipality has issued the subject building permit. For your referer,ce, I have attached a copy of the PVNCDSB Education Development Charges By- Law for Clarington which was in place at the time the subject permit was issued. Should you require anything further in association with Council's review of this matter, please contact me at the Board Office. Sincerely, )J Joel Sloggett, R.P.P. Manger of Planning cc - Board of Trustees Bob Allison, Superintendent of Business & Finance, KPRDSB Ray Rigby, Superintendent of Business & Finance, PYNCDSB