Report to/Rapport au :
Planning and Environment Committee
Comité de l'urbanisme et de
l'environnement
and Council / et au Conseil
9 February 2004 / le 9 février 2004
Submitted by / Soumis par : Joanna Dean, Chair / Présidente,
Ottawa Forests and Greenspace
Advisory Committee /
Comité consultatif sur les forêts et les
espaces verts
Contact Person /
Personne ressource : Robbie Tremblay, Advisory Committee Coordinator /
Coordonnateur de comité consultatif, Secretariat Services / Services de
secrétariat
(613) 580-2424 x28135, Rob.Tremblay@ottawa.ca
REPORT RECOMMENDATION
That the Planning and Environment Committee and
Council:
1. Approve that the City of Ottawa Greenspace Acquisition Strategy include the use of special services levies and local improvement charges;
2. Direct staff to ensure that these tools are used in consultation with the Ottawa Forests and Greenspace Advisory Committee and in accordance with the principles and processes outlined in this report.
RECOMMANDATION DU RAPPORT
Que le Comité de l’urbanisme et de
l’aménagement et le Conseil municipal :
1. approuve que la Stratégie d’acquisition
d’espaces verts de la Ville d’Ottawa prévoie l’utilisation de redevances
spéciales pour les services et l’amélioration locale;
2. enjoigne le personnel de s’assurer que ces outils sont utilisés en consultation avec le Comité consultatif sur les forêts et les espaces verts d’Ottawa et conformément aux principes et au processus décrits dans le présent rapport.
BACKGROUND
The Ottawa Forests Advisory Committee was created in 2001 to advise City Council. On December 3, 2003 the committee was renamed the Ottawa Forests and Greenspace Advisory Committee (OFGAC) and its mandate was expanded to include the following responsibilities:
· Protection, management, acquisition and conservation of greenspace and other environmentally sensitive areas in Ottawa.
· To work to reduce the burden on the City’s Environmental Resources Areas Acquisition Fund by promoting partnerships with developers (in the form of land bequests and conservation development) and with other stakeholders (in the form of land trusts and conservation easements).
OFGAC considered and approved the report recommendations at its February 2, 2004 meeting. A written inquiry on this matter was sent to the City Solicitor in February 2003. The inquiry and response are attached as Document 1.
ANALYSIS
Available Funding Options:
OFGAC is currently considering a number of opportunities for residents and the City to partner in the acquisition of greenspaces, including land trusts, conservation development, and conservation easements.
The Ontario Municipal Act, 2001 provides at least two mechanisms that could be utilized to initiate such a partnership approach to the acquisition of public greenspace.
The first option involves the use of a Special Services Levy. The City Solicitor has advised that “Under Section 326 (of the Municipal Act), City Council may designate a defined area of the municipality that will be subject to a “special services” levy as a result of “special services” that will benefit that particular designated area.” The solicitor went on to note that “Under a recently enacted regulation (305/02), the term “special services” has been defined to include, inter alia, “culture, parks, recreation and heritage systems”. It is the Solicitor’s opinion that the acquisition of greenspace would be permissible under section 326 and reg. 305/02.
The second option is the use of a Local Improvement Charge, again under the authority of the Ontario Municipal Act. The Solicitor has indicated that under the regulations associated with Part XII of the Municipal Act, “the City may levy a local improvement charge for specified “works”. The term “works” is defined to include “constructing a park, square or other public place.” A further section states that “the power to undertake a work as a local improvement includes the power to acquire” the work in question”. Given the regulations associated with Part XII of the Municipal Act, the Solicitor has advised that it is his opinion that the acquisition of greenspace could be undertaken as a local improvement and funded through a local improvement charge.
One of the significant differences between using a Special Services Levy, as opposed to a Local Improvement Charge, is that City Council can impose the Special Services Levy completely at its discretion, as long as Council is acting within the confines of the Ontario Municipal Act and other relevant authority. In other words, Council could unilaterally determine that certain lands conferred a “special service” on an area of the City and impose a levy for the acquisition of the subject lands.
Implementation of a Local Improvement Charge requires approval of the majority of benefiting property owners. Such approval can be obtained in one of two ways. In the first instance, Council may initiate the local improvement process. Council would do so through advising all property owners subject to the proposed charge of Council’s intent, with the information provided including an estimate of the annual charge to be levied to the impacted property owners. In the absence of an Ontario Municipal Board Order, such a levy could not be implemented if more than 50% of those to be subjected to the charge, and representing at least 50% of the property to be charged, objected to the local improvement. A Local Improvement Levy can also be initiated through a petition of impacted property owners. In this scenario, the ability to proceed requires the agreement of 66 2/3% of the impacted property owners, representing at least 50% of the value of the property to be levied the Local Improvement Charge.
In all cases, the City has the authority to contribute municipal funds to the special services or work, as deemed appropriate by City Council. Presumably, the extent of any municipal contribution would be based on an assessment of the overall community value of any proposed acquisition, together with considering the availability of municipal funding.
Principles:
Given the range of options available, OFGAC considered the principles it should apply in recommending that City Council acquire lands utilizing either a Special Services Levy or a Local Improvement Charge. It is OFGAC’s belief that the following principles should apply:
· These tools should NOT become the norm for the acquisition of greenspace. Such acquisition should normally be provided for through development processes, or through allocation of municipal dollars;
· The use of such tools should be limited to circumstances where greenspace is at immediate risk of being lost to a community, some other imperative requires immediate intervention or there is insufficient municipal dollars to proceed with a strategic acquisition;
· Community initiated petitions would normally be the basis for pursing any of these acquisition options;
· As required for a local improvement project initiated by the community, OFGAC believes that, as a general rule, there should be support from two-thirds of the impacted residents, with that two-thirds representing the majority of the impacted property holdings.
Process:
Where OFGAC determines that the use of the tools outlined above should be recommended to Planning and Environment Committee and Council, OFGAC believes the process to be followed should be as follows:
· In consultation with OFGAC, the impacted neighbourhood or community initiates a petition to determine whether there is general support for acquiring lands using the subject tools;
· If it appears there is general support, the City is asked to provide an appraisal of the subject lands and advises property owners subject to the proposed charge;
· The City determines the percentage funding it is prepared to allocate to the land purchase, considering a variety of factors, including but not limited to the value to the overall City, the level of environmental sensitivity associated with the lands, the availability of greenspace in the community, and potential passive and recreational uses for the subject lands;
· A community meeting is held to review the details of the proposed acquisition and the cost of same to the impacted property owners;
· A formal petition is circulated seeking support of at least two-thirds of the impacted property owners, representing more than half of the impacted property holdings. (Only in unique circumstances would OFGAC recommend proceeding with an acquisition without this level of support);
· Assuming the requisite level of acceptance by the community, the City acquires the subject lands and initiates the special services levy or local improvement charge, as applicable.
Conclusion:
OFGAC believes that the Ontario Municipal Act, 2001 provides tools that may be appropriately used to acquire municipal greenspace. These tools relate to statutes and regulations relative to Special Services Levies and Local Improvement Charges. Such tools should be used in consultation with the community and in accordance with the principles and processes articulated in this report.
ENVIRONMENTAL IMPLICATIONS
If approved, this proposal would provide City Council and the City additional tools to ensure the protection and acquisition of community greenspace.
CONSULTATION
The following divisions were internally circulated on this report: Planning and Development Department (Environmental Management Unit), Transportation, Utilities and Public Works Department (City Forester), Corporate Services Department (Real Property Assessment Management, Legal Services, Financial Services, Secretariat Services) and People Services Department (Community Services).
FINANCIAL IMPLICATIONS
As outlined in this report, the proposal provides for additional tools for the protection and acquisition of community greenspace.
It is noted that the City has the authority to contribute municipal funds to the special services or work, as deemed appropriate by City Council. As previously stated, presumably, the extent of any municipal contribution would be based on an assessment of the overall community value of any proposed acquisition, together with considering the availability of municipal funding.
When such a tool is used to acquire greenspace, staff time would be required with respect to consultation, appraisal, determination of the level of City funding, administering the petition and levy, as well as acquisition.
SUPPORTING DOCUMENTATION
Document 1 - Inquiry and Response by the City Solicitor
DISPOSITION
The Ottawa Forests and Greenspace Advisory Committee and appropriate divisions will proceed with the implementation of the recommendations.
INQUIRY AND CITY SOLICITOR RESPONSE Document 1
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Inquiry / Demande de renseignements Ottawa Forests Advisory
Committee Comité consultatif sur les forêts d’Ottawa |
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From/Exp.
: Robbie Tremblay, Coordinator Ottawa Forests Advisory Committee |
Date
: 27
February 2003 |
File/Dossier
: INQ-OFAC-2003-01 |
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To/Dest.
: City Solicitor |
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Subject/Objet : Using
the Local Improvement Act to allow homeowners to initiate and
contribute to the purchase of greenspace.
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Inquiry/Demande
de renseignements Motion Joanna Dean submitted the attached written inquiry at the 24 February 2003 meeting of the Ottawa Forests Advisory Committee. Councillor Peter Hume, Chair, Environmental Services Committee was consulted in the preparation of this inquiry. Your response to this motion is appreciated and will be forwarded to the Committee.
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Response/Réponse
Under the new Municipal Act, which came into effect on January 1, 2003, there are two options available if a City Council wishes to consider levying a neighbourhood or defined area of the municipality for the cost of acquiring green space: 1) a special service area levy under Section 326; or 2) a local improvement charge under Part XII (Section 400). The Act or the regulations there under include a large number of detailed procedural provisions. However, what I will outline below are the basic parameters of both processes. Special Services Levy Under Section 326, City Council may designate a defined area of the municipality that will be subject to a “special services” levy as a result of “special services” that will benefit that particular designated area. Under a recently enacted regulation (305/02), the term “special services” has been defined to include, inter alia, “culture, parks, recreation and heritage systems”. In my opinion this phrase would include “green space”. Under this statutory option, there are no specific provisions for any type of citizen-initiated petition and the decision to levy for this “special service” is completely within the discretion of Council. However the willingness of citizens in the proposed designated area to be subject to a levy would undoubtedly be a major factor in Council’s decision to pursue this option. A condition precedent for a special services levy is the inclusion of the cost of the special services in the annual budget of the municipality and, accordingly, there would have to be some lead time involved prior to embarking on this process. In establishing the actual amount of the levy, Council also has a fair amount of discretion: · It can decide whether both acquisition and improvement costs will form part of the levy; · It can include debenture charges if applicable; · It can reduce the levy amount based on a determination that a portion of the cost should be borne by the general population if the special services will also be of some benefit to areas outside the designated area; and · It can determine the time period in which the levy will be in effect. This is a new provision in the Act and, accordingly, there are no precedents that one can turn to give us further guidance on how the process would work. Further, City Council has not had an opportunity of developing any policy guidelines to determine if and when this option would be considered. Local Improvement Levy Although the Local Improvement Act has been repealed, it will be replaced by regulations under Part XII of the new Municipal Act. Draft regulations were released in January and it is anticipated that the final form of these regulations will not significantly differ from the draft that has been produced. It is also expected that these new regulations will come into force within the next two months.
The draft regulations substantially follow the process that municipalities followed under the old Local Improvement Act. There have been many “technical” changes, but the broad format has not changed. Under the regulations, the City may levy a local improvement charge for specified “works”. The term “works” is defined to include “constructing a park, square or other public place”. A further section states that “the power to undertake a work as a local improvement includes the power to acquire” the work in question. It would be my opinion, therefore, that the cost of acquiring (and improving if required) green space could be undertaken as a local improvement. The local improvement charge can be levied against any lot (whether abutting or not abutting on the work) “that will be immediately benefited by the work.” A local improvement can be initiated in two ways – on the initiative of Council itself or by way of “petition”. If Council initiates the local improvement, it must give notice to everyone who will be subject to the local improvement charge of the intent. The notice must include an estimate of the estimated annual charge. Council has discretion to base the proposed charge on the total cost of the local improvement or only a portion of the cost. If a majority of those subject to the proposed charge representing at least one-half of the value of the lots to be charged object to the local improvement, the Council cannot proceed with the local improvement unless it seeks and obtains the approval of the Ontario Municipal Board. The objectors would, of course, have the right to make full representations at a board hearing. The second method of initiating a local improvement is by a citizen-initiated petition. A petition in favour of undertaking a work (e.g. purchasing green space) must be signed by at least two-thirds of the owners representing at least one-half of the value of the lots liable to be specifically charged for the cost of the work. Once a petition has been received in accordance with the provisions of the Act, Council must then give notice of the proposed local improvement after calculating the cost and the estimated annual charge as above. Preferred Option The preferred option in any particular case will depend upon the facts in each case. It is suggested that when a potential site is identified by a community for acquisition as green space, a meeting should be arranged involving the community, the local councillor and City staff. At that meeting, the advantages of each option could be considered.
The inquiry also requests that we seek precedents in other jurisdictions. The two options noted above are the only options available in this province at this time. The Province generally discourages the seeking of city-specific legislation if feasible options are available to accomplish what is being sought. In my opinion, the above two options adequately provide a process for accomplishing what is proposed. I can, however, inquire as to whether other municipalities have used the Local Improvement Act to acquire green space. I will make this inquiry at a meeting of the Municipal Law Departments Association scheduled at the end of April. If the Committee has any further questions or seeks clarification on any of the above matters, I would be pleased to provide same. J. Jerald Bellomo City Solicitor |