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HomeMy WebLinkAboutADMIN-6-95 REPORT #2 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON 2Q=l ANY=-Tu REPORT Meeting: COUNCIL MEETING File# Date: FEBRUARY 27, 1995 Res. #C Zi ADMIN-6-95 By-Law# Report#: File BY-LAW TO ESTABLISH PROCEDURES RESPECTING THE SALE OF LAND Subject: BY THE MUNICIPALITY Recommendations: It is respectfully recommended that Council approve the following recommendations : 1 . THAT Report ADMIN-6-95 be received; and 2 . THAT the By-law attached to Report ADMIN-6-95 be enacted by Council . BACKGROUND AND COMMENT: On January 1, 1995, Section 55 of the Planning and Municipal Statute Law Amendment Act 1994, was proclaimed to be in force . This section repealed and replaced Section 193 of the Municipal Act, R. S .O. 1990, c .M.45 with a new Section 193 dealing with the sale of surplus land by a municipality or a local board. This new section requires every council with authority to sell or otherwise dispose of real property to pass a by-law establishing procedures, including the giving of notice to the public, governing the sale of real property. Section 193 of the Municipal Act now details other requirements and procedures . Subsection 193 (4) of the Municipal Act provides as follows : Before selling any real property every council and local board shall, (a) by by-law or resolution passed at a meeting open to the public declare the real property to be surplus; (b) obtain at least one appraisal of the fair market value of real property; and (c) give notice to the public of the proposed sale . Continued . . . /2 Report ADMIN-6-95 - 2 - February 27, 1995 Only if the sale of surplus property is consistent with the municipality' s procedure by-law respecting the sale of land and with Section 193 of the Municipal Act, will the manner in which the council or local board carries out the sale of its property not be open to question or review by any court if the council may lawfully sell the property, the purchaser may lawfully buy it and the council acted in good faith. It is, therefore, respectfully recommended that the by-law attached to Report Admin-6-95 be enacted by Council . Respectfully submitted W.H. Stoc wel ! Chief Administrative Officer WHS/ms Attachment i I Shibley Righton Barristers & Solicitors RICHARD E.SHIBLEY,Q.C. RUPERT F.RIGHTON,Q.C. HAROLD H.ELLIOTT,Q.0 DENNIS C.HEFFERON DENNIS C.HEFFERON DONALD K.ROBINSON,Q.C. RICHARD E ANKH,Q.C. LESLIE S.MASON BARRY S.WORTZMAN,Q.C. DEZ WINDISCHMANN DIRECT LINE:(416)214-3461 JOHN P.BELL MICHAEL FITZPATRICK,Q.C. GEORGE CORN V.ROSS MORRISON LINDA S.BOHNEN MICHAEL C.BIRLEY PETER C.WILLIAMS PAUL E.McINNIS PETER G.NEILSON FAX:(416)214-3438 CLIFFORD 1.COLE JONATHAN H.FLANDERS CHARLES SIMCO THOMAS A.STEFANIK WILLIAM L.NORTHCOTE JAMES ROSSITER HELDER M.TRAVASSOS PETER V.RAYTEK J.JAY RUDOLPH CYNTHIA J.GUNN MARTIN J.HENDERSON NICHOLAS T.MACOS WARREN S.RAPOPORT RICHARD E.COLES ALEXANDER P.TORGOV CHARLES M.GASTLE PHILIP P.HEALEY CHARLES G.T.WIEBE BOX 32-401 BAY STREET J.PAUL R.HOWARD WADE D.JAMIESON LEONARD D.RODNESS TORONTO,CANADA SANDRA E.DAWE LINDA J.GODEL JANIS E 1NGRAM CHRISTINE M.SILVERSIDES SALVATORE G.P.FRISINA THOMAS McRAE MSH 2Z1 JAMES W.BUSSIN KAREN 1.McMASTER CRAIG A.LEWIS JENNIFER L.PERRY WILLIAM A.CHALMERS ELIZABETH G.MARTIN COUNSEL SUITE 1800 MARTIN L.O'BRIEN,Q.C. BARRY D.LIPSON,Q.C. THE SIMPSON TOWER February 21, 1995 File No. 8801183 CONFIDENTIAL Mr. W.H. Stockwell Chief Administrative Officer Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1C 3A6 Dear Mr. Stockwell: Re: Draft By-law to Establish Procedures respecting the Sale of Land by the Municipality Section 55 of the Planning and Municipal Statute Law Amendment Act, 1994 was proclaimed to be in force on January 1, 1995. It repealed and replaced Section 193 of the Municipal Act, R.S.O. 1990 c.M.45 with a new Section 193. Section 193 of the MunicipalAct. deals with the sale by a municipality or a local board of surplus land, The former Section 193 provided that the determination of a council as to the time when, the manner in which, the price for which or the person to whom any property of'the corporation of the council may lawfully sell shall be sold, is not open to question, review, or control by any court, if the purchaser is a person who may lawfully buy and the council acted in good faith. The new Section 193 of the Municipal Act requires every council with authority to sell or otherwise dispose of real property to pass a by-law establishing procedures, including the giving of notice to the public, governing the sale of real property. The procedure by-law required by subsection 193(9) of the Municipal Act may establish different procedures for different classes of real property, as well as incorporate a procedure for the sale of real property of a council required by the Municipal Act or any other Act. It is a condition precedent to a municipality exercising its power to sell land that it first enact a procedure by-law under subsection 193(2) of the Municipal Act. Celebrating 30 fears 1964- 1994 Shibley Righton -2- Section 193 of the Municipal Act now details other requirements and procedures. Subsection 193(4) of the Municipal Act provides as follows: Before selling any real property, every council and local board shall, (a) by by-law or resolution passed at a meeting open to the public declare the real property to be surplus; (b) obtain at least one appraisal of the fair market value of real property; and (c) give notice to the public of the proposed sale. Only if the sale of surplus property is consistent with the municipality's procedure by-law respecting the sale of land and Section 193 of the Municipal Act, will the manner in which the council or local board carries out the sale of its property not be open to question or review by any court if the council may lawfully sell the property, the purchaser may lawfully buy it and the council acted in good faith. Obviously, this is a substantial change from the provisions of the former Section 193 which previously delegated extensive discretionary powers to a municipality the exercise of which could not be questioned before a court if done in good faith. Subsection 193(7) of the Municipal Act also requires every council and local board to establish and maintain a public register listing and describing the real property owned or leased by the municipality or local board. You may wish to report further to Council on this matter before requesting Council to direct that the public register be prepared. Subsection 193(6) of the MunicipalAct authorizes the Minister to make regulations, (a) prescribing classes of real property for which an appraisal or a listing in the public register is not required; and (b) prescribing public bodies or classes of them for which an appraisal is not required for sale of real property under Section 193. Regulation 815/94 which became effective on January 1, 1995 defines classes of real property which may be sold without obtaining an. appraisal; authorizes a municipality or local board to sell real property to another municipality, a local board, a conservation authority, and the Crown in Right of Ontario or of Canada or their agencies without obtaining an appraisal; and saves the municipality or a local board from the. requirement i i I Shibley Righton -3- of listing land 0.3 metres or less in width acquired in connection with an approval or decision under the Planning Act, all highways, roads and road allowances, and land formerly used for railway branch lines from the requirement that they be listed in the public register to be established by the municipality under subsection 193(7) of the Municipal Act. Subsection 193(9) of the Municipal Act authorizes the clerk of a municipality or the secretary of a local board to issue a certificate with respect to the sale of real property by the municipality or local board verifying to the best of his or her knowledge and belief certain matters. These include that a procedure by-law required by Section 193 was in force at the time the resolution or by-law required by subsection 193(4) to declare the real property to be surplus was passed; the measures required for giving notice to the public required by the procedures by-law have been carried out; the required appraisal has been obtained or that the property is of a prescribed class that does not require an appraisal; and certain other matters. Under subsection 193(9) a certificate is required to be included in a deed or transfer of land and unless the person to whom the real property is sold has notice to the contrary, shall be deemed to be sufficient proof that Section 193 has been complied with. As requested by you, I enclose herewith a draft sale of land procedure by-law which Council may enact pursuant to subsection 193(2) of the Municipal Act. Yours very truly, SHIBLIEY RIGHTON Dennis Hefferon DH/bg Encl. C. Mrs.P.Barrie Mr.I Caruana Mr.W.Evans Mrs.M.Marano Mr.F.Wu Draft #4 February 21, 1995 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 95- being a by-law to establish procedures governing the sale of real property pursuant to subsections 193(2) and (3) of the Municipal Act, R.S.O. 1990 c.M.45, as amended WHEREAS Section 55 of the Planning and Municipal Statute Law Amendment Act, 1994 was proclaimed to be in force on January 1, 1995. It repealed and replaced Section 193 of the Municipal Act, R.S.O. 1990, c.M.45 with a new Section 193; AND WHEREAS the new subsections 193(2) and (3) of the Municipal Act require every council with authority to sell or otherwise dispose of real property to pass a by-law to establish procedures, including the giving of notice to the public, governing the sale of real property; AND WHEREAS it is expedient to enact this By-law to establish procedures governing the sale of real property under subsection 193(2) of the Municipal Act, as amended, NOW THEREFORE BE IT ENACTED BY THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON AS FOLLOWS: 1. In this by-law, the term: • ".Act" means the Municipal Act, R.S.O. 1990 c.M.45, as amended from time to time and includes regulations made under it; • "Council" means the council of the Corporation of the Municipality of Clarington; • "Municipality" means The Corporation of the Municipality of Clarington; • "sale" includes a lease of 21 years or longer; and • "surplus property" means real property owned or leased by The Corporation of the Municipality of Clarington which is not required for the purposes of the Municipality. i i i -2- 2. The Municipality's Chief Administrative Officer, or a Director or other head of a department of the Municipality to whom Council has assigned responsibility for real property owned or leased by the Municipality in consultation with the Director of Planning and Development, from time to time shall: (a) identify real property that should be declared to be surplus property by Council; (b) report to Council recommending that Council declare the particular real property to be surplus property and setting out the reason why it should be declared to be surplus property; and (c) advise in every report recommending that Council declare particular real property to be surplus property that at least one appraisal of the fair market value of the real property in question should be obtained before Council decides to sell, or exchange and transfer the real property in accordance with the Act and this by-law, unless an appraisal is not required under the Act. 3. Despite Section 2 but subject to the requirements of the Act, where real property owned by the Municipality consists of highways, public lanes, roads or road allowances, the Director of Public Works in consultation with the Director of Planning and Development from time to time shall: (a) identify the real property that should be declared surplus property by Council; (b) report to Council complying with the Act and Report WD-3-90 which was adopted by Council at its meeting on February 12, 1990, recommending that Council declare that the particular real property to be surplus property and setting out the reasons why it should be declared to be surplus property; (c) advise in every report recommending that real property be declared by Council to be surplus property that at least one appraisal of the fair market value of the real property in question should be obtained before Council decides to sell, or transfer the real property in accordance with the Act and this by-law, unless an appraisal is not required under the Act; and (d) advise in every report recommending that real property be declared to be surplus property, appropriate terms and conditions for the sale or transfer of the real property if it is declared to he surplus property. -3- 4. Where a report to Council is made by the Chief Administrative Officer, a Director or other head of a department of the Municipality pursuant to Section 2 of this By- law, the Director of Planning and Development may also report to the same meeting of Council in all cases in which he is of the opinion that the real property in question, if it is declared by Council to be surplus property, should be sold at its appraised fair market value to a property owner for development in accordance with a land use plan of the Municipality rather than being sold by public tender, and shall set out his recommendation as to the terms and conditions under which such surplus property should be transferred to a property owner by the Municipality. Where in reviewing a report to Council pursuant to Section 2 of this By-law the Director of Planning and Development considers that it to be appropriate in the interest of the Municipality in order to achieve an objective of a land use plan of the Municipality that the real property in question if declared by Council to be surplus property be sold to a property owner for a consideration which is the exchange and transfer to the Municipality of real property of an equivalent or higher value after at least one appraisal of the fair market value of the real property to be exchanged and transferred for the surplus property has been obtained by the Municipality, the Director of Planning and Development may recommend the sale by way of exchange and transfer to Council setting out his recommendation as to the terms and conditions under which the surplus property should be sold by way of exchange for other real property. 5. After complying with the provisions of the Act, and in the case of highways, roads or road allowances the aforesaid Report WD-3-90: (a) before selling or otherwise disposing of real property, Council by by- law or resolution shall declare the real property in question to be surplus property in public session; and (b) Council shall also determine whether the surplus property referred to in clause (a) shall be sold by the acceptance of an offer to purchase submitted by members of the public in response to an invitation to the public to tender offers to purchase, sold at its appraised fair market value to an adjacent property owner, or exchanged and transferred for property of equivalent or greater value as recommended by the Director of Planning and Development pursuant to Section 4 of this By-law. 6. Before selling any surplus property whether for cash or the exchange and transfer of other real property for it, unless otherwise provided by the Act, Council shall obtain at least one assessment of the fair market value of the surplus property. I r -4- 7. (1) In addition to complying with all relevant provisions of the Act, the Clerk shall give notice of a proposed sale of surplus property of the Municipality whether for a consideration to be paid in cash or the exchange and transfer of other real property for the surplus property shall by causing a notice to be published at least once in a newspaper of general circulation in the area in which the surplus property is located not less than seven days prior to the date of the meeting of Council at which the proposed sale of surplus property for cash or exchange and transfer is to be considered. (2) The notice referred to in subsection 7(1) shall: (a) briefly describe the surplus property; (b) shall state whether it is proposed to be exchanged, sold by public tender, or sold to a property owner; (c) shall specify in the case of a sale of surplus property by public tender the name and address of the official of the Municipality from whom interested persons can obtain an information package containing the terms and conditions of the invitation to members of the public to tender offers to purchase the surplus property and containing terms and conditions of any sale; and (d) shall state that the decision of Council to sell the surplus property in question for cash or exchange for other real property will be considered at the public meeting of Council on the date and at the time specified in the notice. By-law read a first time this day of February, 1995. By-law read a second time this day of February, 1995. By-law read a third time and finally passed this day of February, 1995. MAYOR CLERK I I THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 95-22 being a by-law to establish procedures governing the sale of real property pursuant to subsections 193(2) and (3) of the Municipal Act, R.S.O. 1990 c.M.45, as amended WHEREAS Section 55 of the Planning and Municipal Statute Law Amendment Act, 1994 was proclaimed to be in force on January 1, 1995. It repealed and replaced Section 193 of the Municipal Act, R.S.O. 1990, c.M.45 with a new Section 193; AND WHEREAS the new subsections 193(2)and(3)of the Municipal Act require every council with authority to sell or otherwise dispose of real property to pass a by-law to es(ablish procedures, including the giving of notice to the public, governing the sale of real property; AND WHEREAS it is expedient to enact this By-law to establish procedures governing the sale of real property under subsection 193(2) of the Municipal Act, as amended, NOW THEREFORE BE IT ENACTED BY THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON AS FOLLOWS: 1. In this by-law, the term: • "Act" means the Municipal Act, R.S.O. 1990 c.M.45, as amended from time to time and includes regulations made under it; • "Council" means the council of the Corporation of the Municipality of Clarington; • "Municipality" means The Corporation of the Municipality of Clarington; • "sale" includes a lease of 21 years or longer; and • "surplus property" means real property owned or leased by The Corporation of the Municipality of Clarington which is not required for the purposes of the Municipality. 2. The Municipality's Chief Administrative Officer, or a Director or other head of a department of the Municipality to whom Council has assigned responsibility for real property owned or leased by the Municipality in consultation with the Director of Planning and Development, from time to time shall: (a) identify real property that should be declared to be surplus property by Council; (b) report to Council recommending that Council declare the particular real property to be surplus property and setting out the reason why it should be declared to be surplus property; and I (c) advise in every report recommending that Council declare particular real property to be surplus property that at least one appraisal of the fair market value of the real property in question should be obtained before Council decides to sell, or exchange and transfer the real property in accordance with the Act and this by-law, unless an appraisal is not required under the Act. i - 2 - 3. Despite Section 2 but subject to the requirements of the Act, where real property owned by the Municipality consists of highways, public lanes, roads or road allowances, the Director of Public Works in consultation with the Director of Planning and Development from time to time shall: (a) identify the real property that should be declared surplus property by Council; (b) report to Council complying with the Act and Report WD-3-90 which was adopted by Council at its meeting on February 12, 1990, recommending that Council declare that the particular real property to be surplus property and setting out the reasons why it should be declared to be surplus property; (c) advise in every report recommending that real property be declared by Council to be surplus property that at least one appraisal of the fair market value of the real property in question should be obtained before Council decides to sell, or transfer the real property in accordance with the Act and this by-law, unless an appraisal is not required under the Act; and (d) advise in every report recommending that real property be declared to be surplus property, appropriate terms and conditions for the sale or transfer of the real property if it is declared to be surplus property. 4. Where a report to Council is made by the Chief Administrative Officer, a Director or other head of a department of the Municipality pursuant to Section 2 of this By-law, the Director of Planning and Development may also report to the same meeting of Council in all cases in which he is of the opinion that the real property in question, if it is declared by Council to be surplus property, should be sold at its appraised fair market value to a property owner for development in accordance with a land use plan of the Municipality rather than being sold by public tender, and shall set out his recommendation as to the terms and conditions under which such surplus property should be transferred to a property owner by the Municipality. Where in reviewing a report to Council pursuant to Section 2 of this By-law the Director of Planning and Development considers that it to be appropriate in the interest of the Municipality in order to achieve an objective of a land use plan of the Municipality that the real property in question if declared by Council to be surplus property be sold to a property owner for a consideration which is the exchange and transfer to the Municipality of real property of an equivalent or higher value after at least one appraisal of the fair market value of the real property to be exchanged and transferred for the surplus property has been obtained by the Municipality, the Director of Planning and Development may recommend (he sale by way of exchange and transfer to Council setting out his recommendation as to the terms and conditions under which the surplus property should be sold by way of exchange for other real property. 5. After complying with the provisions of the Act, and in the case of highways, roads or road allowances the aforesaid Report WD-3-90: (a) before selling or otherwise disposing of real property, Council by by-law or resolution shall declare the real property in question to be surplus property in public session; and (b) Council shall also determine whether the surplus property referred to in clause (a) shall be sold by the acceptance of an offer to purchase submitted by members of the public in response to an invitation to the public to tender offers to purchase, sold at its appraised fair market value to an adjacent property owner, or exchanged and transferred for property of equivalent or greater value as recommended by the Director of Planning and Development pursuant to Section 4 of this By-law. I - 3 - 6. Before selling any surplus property whether for cash or the exchange and transfer of other real property for it, unless otherwise provided by the Act, Council shall obtain at least one assessment of the fair market value of the surplus property. 7. (1) In addition to complying with all relevant provisions of the Act, the Clerk shall give notice of a proposed sale of surplus property of the Municipality whether for a consideration to be paid in cash or the exchange and transfer of other real property for the surplus property shall by causing a notice to be published at least once in a newspaper of general circulation in the area in which the surplus property is located not less than seven days prior to the date of the meeting of Council at which the proposed sale of surplus property for cash or exchange and transfer is to be considered. (2) The notice referred to in subsection 7(1) shall: (a) briefly describe the surplus property; (b) shall state whether it is proposed to be exchanged, sold by public tender, or sold to a property owner; (c) shall specify in the case of a sale of surplus property by public tender the name and address of the official of the Municipality from whom interested persons can obtain an information package containing the terms and conditions of the invitation to members of the public to tender offers to purchase the surplus property and containing terms and conditions of any sale; and (d) shall state that the decision of Council to sell the surplus property in question for cash or exchange for other real property will be considered at the public meeting of Council on the date and at the time specified in the notice. By-law read a first and second time this 27th day of February, 1995. By-law read a third time and finally passed this 27th day of February, 1995. MAY(R CLERK