On October 21, 2019, Calgary City Council passed a bylaw to amend its Off-Site Levies Bylaw (2M2016) to include the authority to levy developers for the capital costs of community recreation facilities, police stations, fire halls, and libraries ("Community Services Charges"). While this amendment was anticipated - The City had been collecting it for years as a putative voluntary charge - what was not anticipated was how amendments to the City of Calgary Charter, 2018 Regulation ("Charter Regulation") permitted The City to pass this amendment without industry consultation, public hearing, or right of appeal.
The Charter Regulation replaces sec. 648 of the Municipal Government Act ("MGA). The specific "override" provisions of the Charter Regulation are as follows:
- 35.1(13) dispenses with the requirement for industry stakeholder consultation and for a public hearing when the City amends Bylaw 2M2016 to include as an off-site levy the Community Services Charges; and
- 35.4 overrides the right to appeal The City's off-site levy bylaw for Community Services Charges.
These provisions are unique to Calgary. Edmonton, the other Alberta charter city, is not given these same powers to dispense with stakeholder consultation, public hearing, or the right to appeal in its charter regulation. Stakeholders in all other Alberta municipalities can rely on the MGA for these rights.
Apart from the broader concern expressed in a 2018 blog post titled " Alberta City Charters: Extraordinary Powers Handed Out with the Daily Rations of Government", about municipal bylaws overriding provincial legislation, the Calgary real estate development industry did not have the opportunity to participate as a stakeholder at both the administrative and council levels. For industrial greenfield developers in particular, who by paying this Community Services Charges levy would be funding community recreation facilities and libraries from which industrial development obtains little or no perceived benefit, this recent bylaw amendment is frustrating.
To provide some context, the 2019 Community Services Charges levy is $78,419 per hectare and ranks behind only the treatment plant levy at $142,925 per hectare and the transportation levy at $136,228 per hectare. The portion of Community Services Charges levy attributable to community recreation facilities is $41,679 per hectare, and $5,971 per hectare to libraries. As with all the infrastructure categories under the Community Services Charges levy, the requirement for community recreation facilities and libraries in Calgary is calculated on projected population growth of 340,918 in residential greenfield areas on a city-wide basis over 30 years (2015-2044). Nothing in the calculation of these levies, however, ties their costs to benefits accruing to industrial greenfield development. Tying cost of off-site infrastructure to benefit for the developer obliged to pay the levy is a general principle of the Off-Site Levies Regulation (AR 187/2017):
- 3(6) A municipality cannot compel an applicant for a development permit or subdivision approval to fund the cost of the construction of infrastructure, transportation infrastructure or facilities to be funded by a levy beyond the applicant's proportional benefit.
By longstanding agreement, The City renegotiates the off-site levies with the land development industry every five years. These negotiations will begin in earnest in 2020 towards a replacement off-site levy bylaw to take effect in 2021. This will be the opportunity for both The City and industry to address all the off-site levy calculations and underlying principles in accordance with the Off-Site Levies Regulation, including those pertaining to the Community Services Charges levy. The legislative "overrides" in the Charter Regulation apply only to "when the City amends Bylaw 2M2016 to include as an off site levy the Community Services Charges" (sec. 35.1) and are not carried forward to future amendments to the Off-Site Levies Bylaw.
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