Resident Jens Dam has won an Ontario Municipal Board (OMB) ruling against the township over its decision to make its newest development charges bylaw retroactive.
It is the second OMB ruling won by Dam regarding Wellington North council’s handling of changes to its development charges bylaw.
In the latest ruling issued on March 5, OMB vice chair Susan de Avellar Schiller, ruled the township did not have the right to make its bylaw retroactive to January 1, 2011 when the bylaw was officially approved by council on May 28, 2012.
The retroactive section (Section 8) of the bylaw, known as DC-33-12, was struck down by Schiller after consideration of provisions contained in the Development Charges Act.
Schiller heard arguments on the appeal from both Dam and township lawyers at a hearing on Jan. 22.
“The board orders that the appeal is allowed in part and the township of Wellington North Development Charges bylaw 33-12 is amended by deleting section 8 and amending any corresponding dates in the schedule to comply with the requirement that the effective date of the bylaw is the date of passage on May 28, 2012,” Schiller ruled.
The ruling brought conflicting views from Dam and the township, which called the decision a win because it upheld the lower development charge contained in the bylaw. However, Dam’s appeal dealt solely with the bylaw’s retroactivity and not the reduced charges contained therein.
The decision also means the township will have to look at potential reimbursements for some $80,000 in rebates given to developers retroactive to January 2011 to reflect the lower charge.
“It shows the little guy can take municipal council to task and win,” Dam told the Advertiser upon receiving the ruling. “If they had done the right thing there would not have been a ruling.”
The bylaw lowered the development charge for single family homes to $14,000 from the previous $21,090. However those charges would be in place with the official passage of the bylaw, drawing into question rebates based on retroactivity.
Development charges are levied by municipalities to cover additional costs associated with new development for water and sewer services.
A township News release did not mention the $80,000 in rebates already paid out.
“I am very pleased that the reductions were upheld on appeal,” Mayor Ray Tout said in the release. “If we have to take a look at the retroactivity issues, we are prepared to do that, without losing sight of the savings that were recently won for our residents. Despite the goal of making the bylaw effective on January 1, 2011, the bylaw was held effective on May 28, 2012.”
Lawyer Robert Mullin, of Smith Valeriote, which represented the township at the January OMB hearing, said the board could have ruled on the entire bylaw, not just the section of retroactivity.
“That was all upheld,” he said. “There was a significant reduction in development charges.”
Mullin said he hasn’t been instructed by the township on potential rebates being repaid.
Councillor Dan Yake said he sees it differently than the mayor and Mullin.
“We lost plain and simple,” he said of the OMB ruling. “We were wrong and we got caught.”
In a phone interview with the Advertiser on March 11, Tout said council will look at how it will deal with the rebates. According to the mayor, developers who received rebates signed an agreement where some of the money might have to be refunded if township regulations were changed.
“You can’t say you didn’t know,” Tout said, referring to refunds and the individual agreements. “We’re going to have to go through with our obligations now.”
The lower charge was part of Tout’s election campaign promises in 2010, in a bid to bolster development in the township.
Dam won his first OMB appeal when council passed a new development charge bylaw without the required study and public meeting set out in the Development Charges Act.
Council at the time was forced to rescind its bylaw, conduct a study and pass it again with the new, lower charges.
Dam successfully argued the bylaw could not be retroactive and also contends another $60,000 in interest and development charges were lost because the rebates were based on retroactivity, which the OMB ruled against.
“I’m quite happy the ratepayers won. You can’t make retroactive bylaws,” Dam said. “I want to know how much they gave in discounts.”
“The taxpayers should not pay for it, it should be (the) insurance,” Dam added, referring to shortfalls in the township’s development charges account as a result of the rebates.
