The cost of roadway infrastructure included by the City of Edmonton in its offsite levy program is in the order of $3.0 Billion. The recovery of this money is dependent entirely upon the willingness of the development community to pay and upon the levies conforming with the requirements of Sections 648 and 649 of the Municipal Government Act (the "MGA") and the Principles and Criteria for Offsite Levies Regulation 48/2004 (the "Regulations"). The Regulations are aptly named. They restate the principles reflecting a consensus reach between municipalities and developers after the Minister of Municipal Affairs advised the development community that roadways would be a levyable item under new Offsite Levy provisions with or without the concurrence of the development industry. The moderator at the symposium maintained a white board and the principles and criteria reflected in the Regulations were copied virtually verbatim from the whiteboard notations. The development sector had a reasonable expectation that the principles would form the basis for properly drafted Regulations. This never occurred. The ability to impose and recover levies is cast in obscurity. Expressing an opinion on the validity of an off-site levy bylaw must be qualified by whatever interpretation the court elects to give to the Regulations. This is a queasy foundation at best for recovery of $3.0B.
Municipalities, in large measure, have relied upon the unwillingness of the development sector to challenge the validity of off-site bylaws or other assessments. The willingness of the development sector to withstand the levies imposed upon it is very much dependant upon the developers ability to continue to visit that cost upon the lot purchaser. With levies increasing exponentially by virtue of the addition of roadways and unauthorized miscellaneous levies under a capital contribution levy, the developer's ability to absorb costs may reach its limit. It should be assumed that as levies increase, the tolerance of developers to pay levies decreases and litigation will become more frequent.
PRAIRIE COMMUNITIES V. OKOTOKS, 2011 ABCA 315
In November 2011, the Alberta Court of Appeal rendered its decision in the case of Prairie Communities v. Okotoks. It has become the leading case on off-site levies and the use of natural person powers to enforce payment of development charges imposed for recreational or park facilities and other items not expressly authorized by the Act. It also endeavours to "divine" some meaning and guidance respecting the Regulations for the benefit municipalities and the development community.
Acreage Assessments - Natural Person Powers
The Town of Okotoks by resolution adopted an agreement entitled "Contribution and Recovery of Expenses Agreement" attached as Schedule "A" to this paper. By this Agreement the municipality required the developer, upon the execution of the Agreement, to pay $16,822 per acre, which was anticipated over the new development to generate approximately $22,000,000, to be applied towards the costs of new or expanded public facilities required to accommodate growth. The facilities to which the acreage assessments were to be applied included police service facilities, outdoor facilities, Centennial Arena, spray park facilities, off-leash park and a performing arts centre with an estimated cost in the order of $40M. The report to Council confirms that Okotoks has a public facility infrastructure deficit of $40M. This deficit creates the need to capitalize on the opportunity to recover funding from newly expanding communities, the window of opportunity for which exists primarily at the subdivision approval stage.
At the Court of Queen's Bench, the Town of Okotoks successfully argued that the municipality did have jurisdiction to impose the acreage assessment under the authority of the natural person powers set out in Section 6 of the Act. Section 6 of the Act states:
- "A municipality has natural person powers, except to the extent they are limited by this or any other enactment."
Okotoks argued that natural persons do not have the power to pass bylaws. If adoption of the Contribution Agreement assessments are not required to be done by bylaw, they must fall under the natural person powers. Since the recovery of acreage assessments for police stations, concert halls, etc. is not expressly required to be done by bylaw, it is properly exercisable under the natural person powers. The unsigned form of the agreement approved by Council for imposition of capital contributions at the time of subdivision approval or development approval specifically acknowledges that the developer will benefit significantly by the completion of the improvements and, on that premise, Madame Justice Hunt Macdonald concluded the levies were voluntary.
Debate at the Court of Appeal of this issue was limited. The Court concluded readily that there did not appear to be anything in either the reports that preceded the adoption of the resolution approving the Contribution Agreement or in the Contribution Agreement that suggested it was being made on a voluntary basis. Since acreage assessments were to be visited upon all persons who submitted applications for development approval or subdivision approval, the court concluded that such impositions were unlawful.
The argument advanced by Prairie Communities was that, under Part 17 of the Act, the municipality is acting as a regulator. Natural persons have no regulatory authority. Regulators cannot both wear the hat of regulator and natural person. The field of authority of the regulator is fully occupied by the provisions of Part 17. Part 17 is one specific area where the natural person and regulatory powers cannot be concurrently exercised under Section 6 of the Act.
At paragraph 50 of the decision the Court states:
- "nor can the Town, in these circumstances rely upon its natural person powers to collect these unauthorized assessments and levies. The self-serving form and language of the contribution agreement cannot be allowed to obscure its purpose of compelling the payment of unauthorized off-site levies. The MGA spells out the facilities and infrastructure for which off-site levies may only be made. The natural person powers cannot be used to impose levies on other facilities and infrastructure. Section 6 of the MGA speaks to the limitation on natural person powers by accepting such powers "to the extent they are limited" by that enactment. It cannot be supposed that the legislature intended the Town could impose off-site levies through the use of its natural person powers in respect of facilities and infrastructure that are not identified in Section 648."
The specific circumstances alluded to above were that the payment required was not being made "voluntarily", and it therefore was a levy that must be authorized by Section 648. The Court did not preclude the use of natural person powers in connection with regulatory powers under Part 17 of the MGA, having instead adopted the statement by Professor Laux in Planning Law and Practice in Alberta at 14-33 which reads:
- "While a municipality has the capacity, due to the natural person powers conferred on it in Section 6 of the Act, to enter into a contract to provide for almost anything in a servicing agreement, it does not have power to compel a developer to sign a contract to do anything more than is expressly set out in Section 650, 651 and 655. The natural person power does not enlarge a municipality's coercive powers."
The marriage of natural person powers in Section 6 with the express authority set out in Sections 650, 651 and 655 in which the municipality is entitled to require the execution of an agreement is, in my opinion, a practice to be avoided. If natural person powers are to be exercised in conjunction with subdivision approval or development approval, they should be exercised independently of the agreement authorized under Sections 650 and 655. Any contracts drafted in this context should be mindful that the courts have long recognized that performance by an administrator of its statutory duties is not consideration which in law supports a contract. Planning approvals without legislative authority cannot support a promise to pay absent other consideration.
Okotoks Off-Site Levy Bylaw
As with many communities, the off-site levy bylaw for Okotoks is readopted annually to re-establish rates relating to a number of improvements determined to qualify for off-site levies. The Okotoks bylaw divided levies into two categories: site specific levies and common levies. Site specific levies were determined to benefit site specific areas and, consequently, provide no benefit to the community at large and are charged exclusively to the designated benefiting area. Common levies were expressed in the report to benefit the community as a whole. The bylaw provides for the recovery of 100% of the net cost of the improvement (except for two improvements to the water distribution system), through an assessment upon not only new neighbourhoods, but upon redevelopment in existing neighbourhoods. For redevelopment areas, the formula adjusted the amount of the levy with the result that in most cases it would exceed the amount of the levy charged to greenfield development on the premise that in most circumstances, there would be a resulting increase in density.
The net cost of each improvement was determined as the construction cost or anticipated construction cost exclusive of any grant monies received in respect of such improvements. Two of the common levies imposed in respect of improvements to the water treatment system were determined to benefit the community at large to an extent that it warranted a reduction in the amount recoverable under the off-site levy bylaw and, accordingly, only 50% of the cost of those two improvements was included for purposes of calculating the levy. In form, each individual off-site improvement was determined to contribute to an aggregate off-site levy. The aggregate off-site levy was the cumulative sum of the levyable component of the 23 improvements, expressed as a single amount. The bylaw then attached as schedule descriptions for each of the improvements and provided a ledger in respect of that improvement which set out the initial project cost, its status, the areas from which the amounts were to be collected, the balance remaining to be collected over the remaining area and the amount of the levy.
Back-up materials were available in terms of traffic analysis and water analysis in order to facilitate a determination as to the nature of the off-site improvements for which a levy was to be recovered. The argument, in essence, before the Court of Appeal by Prairie Communities was that, if the improvement benefited all residents of Okotoks, Okotoks should not assess 100% of the cost of the improvement to greenfield development.
The Court of Appeal in reading subsection 3 of the Regulations in conjunction with subsection 5 and relying upon Keyland Development Corp. v. Cochrane (Town), 2007 ABQB 160 [32 MPLR 4th 180] concluded that the bylaw must allocate the cost based on the perceived degree of benefit that infrastructure would provide generally to the municipality and to the benefiting area. The Court speaks at paragraph 64:
- "Interpreting the principles and criteria of the Regulations as a whole, it is reasonable to divine an intent that those benefiting from the types of infrastructure and facilities identified in Section 648 should contribute to their costs."
As observed by Professor Laux at 14-40, FN203, of his text:
- "In practice, the type of facilities described in Section 648(2) are likely to benefit not just new developments and new subdivisions but also the existing community. For that reason, fairness dictates that a municipality ought not to place the burden of the entire costs of the facilities on newcomers."
Two prior decisions of the Court of Queen's Bench, each yielding different results, were presented to Madam Justice Hunt Macdonald at the Court of Queen's Bench. In UDI v. Leduc, 2006 ABQB 952 [208 AWLD 2478], Justice Agrios concluded that the standard of review was patent unreasonableness and, in so doing, concluded that it was not "irrational" to apply the "but for" test, which suggests that "but for" new development, such off-site improvements would not be required, as a result of which new development must pay 100% of the costs of the improvement.
In contrast, in Keyland v. Cochrane, Justice MacIntyre concluded that the Act and Regulations required sharing of the cost based on benefits obtained and that there must be a correlation between the levy and impact of development.
The Court of Appeal in Okotoks agreed with Justice MacIntyre and concluded, at paragraph 70:
- "The Town is not entitled to offload the whole of the costs of new or expanded infrastructure and facilities upon a developer, in circumstances where it is reasonable to suppose that the existing residents will share in the benefit. In other words a municipality is not entitled to allocate the whole of the off-site costs of new or expanded infrastructure or facilities upon new development unless it can be reasonably supposed that the existing residents derived no benefit therefor."
Prairie Communities argued that all users should have the obligation or opportunity to pay and that, essentially, the legislation was based upon a user pay principle. This argument relies upon the obligation to pay being assessed exclusively on the degree of benefit. The Town of Okotoks argued that Justice Agrios was right and the "but for" test should be determinative of the issue. In so doing, the Town seeks to rely exclusively upon the "impact of new development" and disregard the degree of benefit. The Court essentially concluded that the two requirements operated in tandem and you could not rely upon one to the exclusion of the other. Paragraphs 71 and 72 of the decision read as follows:
- Nor do I find the so called "but for" test determinative, i.e., requiring new development to pay for all costs of new infrastructure or facilities in situations where the projects would not have been undertaken but for the new development. The regulation does not speak in such terms. Rather the issue is benefit, not necessarily what prompted obtaining the benefit. For example, a new facility may result in greater reliability of service, improved quality of service or longer lifetime of the service. If existing residents derive such benefits then they should contribute to the costs of a new development whether or not occasioned by new development. It is the responsibility of the municipality enacting an off-site levy bylaw to address the issue of respective degree of benefit between existing residents and new development and allocate the costs in a reasonable and responsible manner. In addition, it must include this allocation in the bylaw." (emphasis added)
It is not insignificant that in Okotoks, the 32nd Street Bridge was assessed entirely to new development, notwithstanding that it had been identified as early as the 1980's as being desirable to service the needs of the existing residents. In Cochrane, 99% of the cost of the bridge was to be assigned exclusively to new development. In both the Cochrane decision and in the Okotoks decision the assessment for the bridge was quashed. It is interesting to note that the Town of Okotoks argued that the bridge was designed to be a four-lane bridge, that the developers were assessed only for the first two lanes and that the municipality was intending to pick up the balance of the costs (if ever those two lanes were constructed) at a subsequent point in time. The Court did not accept this basic premise. Could it have been different if evidence was introduced that the bridge was designed as a four lane structure?
Notwithstanding that the evidence before the Court was that the common levies benefitted all residents, notwithstanding that such levies were assessed to all residents (although inner city development received different treatment than greenfield development) and notwithstanding that Okotoks made no attempt to allocate costs based on benefits to each of the existing residents and new development but applied the "but for" test, the Court did not find sufficient evidence to overturn the presumed finding of Madam Justice Hunt Macdonald - that this issue was considered by the trial court, and 100% of the cost properly assessed to new development. The Court of Appeal was therefore not in a position to set aside the trial court decision. In doing so, the Court stated that the burden of proof lay of course with the developer seeking the declaration of the bylaws invalidity (paragraph 75).
A prima facie case was clearly made that the common levies fell outside of the law in the sense that there was an acknowledged benefit to the community at large and no corresponding reduction in the assessment to newcomers. The Court concluded that there was insufficient evidence to conclude that Okotoks had not considered the degree of benefit to the existing residents when assessing 100% of the cost of the improvements to all others. In the result, except for the bridge and related 32nd Street corridor improvements, the balance of the common levies in the bylaw were preserved.
In the final analysis, the resolution approving the Contribution and Recovery of Expenses Agreement was struck and those portions of the cost that related to roadway improvements along and pertaining to the bridge were struck and remaining levies left intact. In my view, the following areas remain sensitive:
- The development of new roads would appear not to exclusively benefit only new areas. Whether the roadway is a bridge or otherwise, there is a duty to assess the benefit and allocate the costs reasonably and responsibly to all. The assessment of the benefits should be supported by some detailed analysis, such as a traffic impact analysis but that assessment need only appear in the report to Council and be reflected in the allocation amongst various beneficiaries in the Bylaw.
- There must be a clear identification for each levy contained in the bylaw as to the result of the assessment made by the municipality of the degree of benefit to the various sectors of the community.
- Based on general municipal jurisprudence, the Court is unlikely to interfere with an assessment made by a municipal council reasonably and responsibly made. It is difficult for an opponent of the Bylaw to prove otherwise.
- Neither "user pay" nor the "but for" test can be applied to the exclusion of the other.
THE POLICY DEBATE
It is clear that the development industry is obliged to pay 100% of the cost of the improvements which are required to provide access to or service a subdivision. That obligation includes the responsibility to oversize the roadways and/or services to accommodate upstream development. Off-site levies, however, provide the only mechanism by which greenfield development is given "the opportunity" to contribute to the costs of growth generally. The costs of growth arise not because of a single subdivision but because of a multitude of subdivisions, each of which are annexed to an existing and likely greater population base stimulating the need for development of recreational or other public infrastructure. The debate that needs to be addressed at a policy level and at the legislative level is what part of the costs of growth should be allocated to those who choose to live in greenfield development.
Fundamentally, while there may be minor disagreement on whether or not all of the facilities and infrastructure which may be included in an off-site levy bylaw or acreage assessment are "required" or are a luxury, it is well understood that, in the course of time, such infrastructure will be put in place and the municipality is seeking to address the funding of such costs at the outset. It is understood that in respect of many recreational facilities, not all new residents benefit directly by each of them or, for that matter, any of them. It is also clear that some existing residents will directly benefit by all of them.
The development community passes each and every of the costs that are visited upon it onto the lot purchaser and they do it with an increased rate of return. So long as the costs of infrastructure area recoverable through lot sales, developers are prepared to absorb the initial cost. Eventually, however, the costs will become an obstacle to continued growth. The development community generally does not cause growth, it provides the infrastructure to accommodate growth. It has assumed the responsibility for developing public infrastructure upon public land to facilitate timely, efficient and cost effective lot production and in doing so has relieved the municipality of the obligation to incur that liability and that risk. Shelter, particularly in a northern climate, is of more significance to those who choose to reside in a northern climate than are the utilities that are provided, although, both are deemed essential.
Municipalities and developers have a joint and common interest in ensuring that affordable housing is provided within the municipality and a responsibility to strive to provide the most cost effective means of building infrastructure that pertains to growth. No developer will argue that, because the new home owner is the primary beneficiary and at the front line of any benefits of infrastructure constructed to accommodate growth that there should not be additional contribution by the new home owner towards those costs. Similarly, new home owners benefit from existing infrastructure that is already part of the capital inventory of the urban centre to which that growth in attached. No community wants negative growth. All communities appreciate that there is benefit to the community at large from continued growth.
Seeking to recover the cost of growth from greenfield development alone simply adds an amount to the mortgage of all new home purchases. It increases the cost of new housing and each increase reduces the number of qualified purchasers, shifting a portion of the market to existing housing. The existing housing supply being static with increased demand, will inevitably experience an increase in price which, too, will appear ultimately in the mortgage of most purchasers of existing housing. In the final analysis, there is an increase throughout the community in the cost of housing. There is increase in the amount paid on the cost of housing annually through increases in the interest payments on mortgages. The beneficiaries of the program predominantly are banks. In the meantime, the municipality is recovering some portion of the costs of growth at the rate of 2% based on a 2% per annum growth rate. Recovery of those costs assuming a 2% growth rate will take not less than 50 years.
I offer, by way of example, a user pay contribution for new roadway construction. All users of roadways use fuel. In the City of Edmonton, the 2009 figures for fuel consumption appear as follows:
- Gasoline 1,287,231,000 litres
- Diesel 858,447,000 litres
Recently published materials relating to gas prices across Canada and across Alberta and the level of taxes that are assessed in respect of those identified jurisdictions appear as follows:
The price of gasoline and diesel fuel throughout Alberta is less than elsewhere in Canada. The tax rates on gas are less than elsewhere in Canada. The need for new roadway construction in Alberta is greater than in most jurisdictions across Canada. Gasoline tax affords the ability to recover from all users, commuters and others a contribution towards the costs needed to construct the new roadways. It would do so year after year and not be dependent to a significant degree to new housing starts which inevitability, from time to time, yield substantially less revenue from levies to pay for the roadways which have likely already been built. This is not promoted as a complete answer but certainly should be a significant part of the equation. And while approximately eight cents per litre is now paid by the province to the municipalities, its use is not earmarked for roadway construction or otherwise and in the City of Edmonton funds the growth of rapid transit. A further tax on fuel can readily be accommodated and designated for roadway construction.
Additionally, water service is also a revenue utility and the costs of some part of the infrastructure required for the treatment, distribution and storage of water can readily be included in rates. Sanitary sewage treatment is a by-product of water usage and can and has historically been addressed through water rates. There is no need to saddle new growth exclusively with those costs.
It is not in the best interests of the community to assess only new homeowners for the costs of infrastructure related to growth nor to have such costs absorbed entirely by the community at large. Only by working together can we build better communities with affordable housing. Municipalities and developers part ways on how best to finance the infrastructure. That debate is ongoing and requires reasonable and responsible assessment and allocation of the costs of having regard to the benefits to be realized.
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