Kenneth Brown
of The Clarion
A planning appeal decision in February continues to spark debate in the community.
Developer Sheldon Goodheart of Goodheart Electric Ltd. filed an appeal to the planning appeals committee for the Saskatchewan Municipal Board (SMB). The developer argued that the Town of Kindersley was not justified in seeking about $84,000 in servicing fees as part of his servicing agreement with the town.
Goodheart filed for a subdivision in 2014 and the appeal decision came in February 2017, so the matter had been ongoing for three years. A servicing fee must be applied at the time of subdivision but the developer argued that the fees didn’t apply in his situation.
The appeals committee sided with the developer and the town was ordered to strip the fees out of its servicing agreement with Goodheart. The developer and town were in agreement on all other aspects.
This is the third article in a three-part series regarding municipal and provincial policies and legislation for development levies and servicing fees. The initial article on May 3, which appeared in the print edition of the Clarion, highlighted a successful planning appeal by a local developer.
A second article on July 5, which also appeared in the print edition of the Clarion, explored the Town of Kindersley’s bylaw and policies in place for development levies and subdivision servicing fees.
Municipalities can collect development levies at the time of a new development and servicing fees at the time of a new subdivision to recover a range of costs the municipality has to incur with respect to the new development or subdivision. A municipality must have a development levy bylaw and policies in place to collect development levies, but a servicing fee is permitted under provincial legislation.
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The province’s Planning and Development Act, 2007, has a section dedicated to development levies and servicing fees. The article in July questioned the Town of Kindersley’s bylaw and policies, along with the single formula used by the town to calculate levies and fees.
Bernie Morton, the town’s chief administrative officer (CAO), said in July that the town was reviewing its bylaw and policies regarding levies and fees. He explained that the town was planning to change its Development Levy and Servicing Fee Bylaw.
The town was told by provincial officials that including anything about servicing fees in a development levy bylaw could be confusing for developers. Morton said the town was going to remove servicing fees from the bylaw.
He noted that the act covers development levies and servicing fees under the same heading, so he questioned why the province would encourage municipalities to separate the two items when its own act groups them. The CAO said the act is under review.
Morton also said he hopes provincial officials separate the two items in the act to provide greater clarity to municipalities. He also claimed the legislation is inadequate in the area of development levies and servicing fees, so he hopes a review and subsequent changes lead to improvements.
The town official said the act is being amended to provide “better clarity” to the SMB and its appeals committee, a quasi-judicial board that repeatedly shows that its people are “over their head and challenged” by current legislation.
He noted that the town disagrees with the decision, but the town didn’t appeal in court due to the time and expense it would consume. He said the town’s position that the legislation needs to be improved to assist the SMB is supported by the Saskatchewan Urban Municipalities Association (SUMA).
Morton said he’s not aware of any other appeal committee decision where the members ruled that no servicing fees were to be paid. He said he’s aware of decisions where the fees were adjusted but not removed altogether.
Jay Teneycke, director of communications for the Ministry of Government Relations, responded to questions in an email. He noted that provincial acts are opened for review when there’s “a significant need and rationale to do so.”
He confirmed that the Planning and Development Act is open and before committee review. When an act is opened, consultations are held with stakeholder groups, who can advocate for specific changes after consulting with their members. Municipal organizations such as SUMA have been consulted.
Teneycke said the ministry has officials to provide interpretation and advice to municipalities regarding the legislation. He said the government accepts SMB appeals committee decision and the matter is considered closed.
He said interpretations regarding any law might result in differing opinions during the application of a particular statute, but the ministry strives to bring as much clarity as possible to the legislation it maintains. The ministry is aware of Kindersley’s concerns regarding the legislation, and any concerns with interpretation or clarity are included as part of the review process, he added.
Kris Pennete, a director for the SMB’s planning appeals committee, said the committee has three members for all hearings: one full-time member and two part-time members. The members have to meet specific requirements to sit on the committee.
“All panel members meet the requirements of Saskatchewan Municipal Board Member Qualifications (and) Regulations, 2003,” Pennete explained. “In addition, most members have a Foundation of Administrative Justice certificate, or are in the process of getting one.”
Furthermore, he said all members of the planning appeals committee are selected in accordance with legislation in the Municipal Board Act.
Panel members provide all of their analysis in written decisions.
Pennete said servicing fees were fully removed after two appeals in 2008 involving the rural municipalities of Blucher and Aberdeen. There were three other appeals in 2013 when the SMB panel members removed the fees in decisions.
In 2013, the committee ruled that all future costs would be removed in a matter involving the Town of Pilot Butte. The committee also ruled in 2013 that a servicing agreement would not be required in one instance and that servicing fees had to be removed in another. Servicing fees have been fully removed in several cases, so the matter involving the Town of Kindersley did not set a precedent.
He said legislation is black and white, and all of the appeals committee decisions are based on the legislation in place at the time. Any concerns regarding the legislation need to be directed to the ministry, he said. According to Pennete, each matter is unique for committee members.
“All appeals are dealt with solely on the merits of that case,” he added, recognizing that the SMB operates at arm’s length from the government. “We make all of the decisions as per the legislation and without any external influences.”
Gordon Barnhart, the president of SUMA, said the association doesn’t get involved with disputes or disagreements among its members and other parties. He said SUMA officials would not comment on individual situations that involve disputes or take sides in disputes.
He said the association will offer advice to its members, and represent its members by taking their concerns to various officials. He said SUMA tries to take concerns to the government in a unified manner, but the association is aware the planning act is under review and it supports the process.
“We try to steer middle ground and find out how we can best represent our members,” Barnhart added. “We would also support the province in reviewing planning legislation and hopefully improving it and streamlining it.”
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