An Ontario Municipal Board (OMB) hearing was held here on Jan. 22 to hear an appeal by Jens Dam.
The Wellington North resident is challenging the township’s handling of its revised development charges bylaw and whether council was allowed to make the charges retroactive to Jan. 1, 2012, after the bylaw was passed at the end of May.
Dam is appealing council’s right to pass the amended bylaw, which saw development charges dropped from about $15,800 for a single family detached home to $10,000, retroactive to before the bylaw was passed by council. He has also questioned payments made to contractors of about $80,000 prior to the bylaw being passed.
“From a common sense point of view a bylaw cannot come into force until it is passed,” Dam told OMB vice-chair Susan Schiller at the beginning of the two-hour hearing held at the municipal office.
Municipalities impose development charges to cover the cost of water and sewer services connected to new construction.
Dam also contends the refund money, which he claims has not been publicly accounted for, should be returned.
Township lawyer Robert Mullin, of the firm Smith Valeriote, acknowledge Dam does not oppose the bylaw and is only appealing the retroactive procedure.
Mullin raised concern that if the OMB rules the “retroactivity does fall” it could “dictate the entire bylaw will fall.”
Gary Scandlan, of Watson and Associates Economists Ltd., the company which has conducted development charge studies for Wellington North needed prior to the municipality imposing development charges mandated by the Development Charges Act, was the only witness called by the township.
Scandlan explained how the development charge study was conducted prior to council approving the reduced charges.
Development charges were first brought in by township council in 2008.
Reducing the charges was one issue brought up by newly-elected councillors in the 2010 municipal election – and followed up by the new council after the election.
The study, according to Scandlan, involved, in part, a review of predicted growth, and township capital needs. It also stated a public meeting should be held before the study and bylaw go to council.
“Council was concerned about economic stimulus,” Scandlan said of council’s move to reduce charges. “I think they took reasonable steps in attempting to stimulate the economy.”
Dam also questioned whether the decision to reduce the charges, including the single family dwelling charge, was based on a council “wishes” or warranted by the findings in the study that led to the new charges.
Scandlan said the new charge was based on study findings in consultation with council.
He also stated the study findings were “released” two weeks prior to the public meeting being held.
Mullin, using case law, noted the decision to reduce charges should be considered “beneficial” by the OMB in its findings.
Based on case law, Mullin added, retroactivity should not be considered because “the reduction was to stimulate growth in the township.”
“That decrease is allowed retroactively because of the beneficial effect,” the lawyer added.
Schiller was told the cost reductions applied to all development in the new bylaw, not just single family dwellings.
She reserved judgment and is expected to make a final ruling in the coming weeks.
