DUNNVILLE—Last week, two developers appeared at a Council in Committee meeting to request that the County enter into a cost-sharing agreement related to the construction of a wastewater pumping station in Dunnville, to the tune of over $800,000.
The developers are working on separate projects that are both in the area of Cross St. W. and George St., one being a 43-unit townhouse developed by Mountainview Homes and the other a 36-unit adult-lifestyle development from developer Archie Merigold.
While the developers have agreed to front end the cost of building the station, budgeted at approximately $1 million, they are asking that the County reimburse them for a portion of the cost upon completion. The current policy sees the County deploying a ‘best effort’ approach that relies on future developers utilizing the lands paying their fair share for access to the finished station.
“These works will benefit multiple land parcels within the northwest quadrant of Dunnville that are intended for development, including a large parcel owned by the County and the development proponent’s lands,” said lawyer Jennifer Meader, representing the two developers. “The applicant’s lands account for about 12% of the developable lands benefitting from this infrastructure.… It would be completely unreasonable and unfair for the County to expect my clients to front end the entire cost of these services without any guarantee that they will be repaid, other than a simple best-efforts commitment which is not a guarantee in any way.”
She continued, “The County is a significant benefitting party to the proposed pump station and related works, taking up about 30% of the allocation that in our view will enhance the values of these lands and bring them closer to development interests.”
Financial and Data Services Manager Mark Merritt countered, “This ask is in contravention of our local servicing policy. Localized pumping servicing multiple properties from one basin is our policy. It’s been our policy since the inception of our county. It’s been revisited in our 2014, 2019 Developer Charges update, for which we did public consultation, and specific consultation with developers, including the proponents and their consultants. They’re aware of our local servicing policy.”
Merritt warned that altering the policy based on the delegation’s request might put the County at risk: “It would put into jeopardy other projects that are already underway. There’s a lot of implications.”
Richard Pellerin, Principal Engineer with Sco-Terra Consulting Group Limited, outlined the scope of work the developers are undertaking, and how it will encourage future development, explaining, “Within Cross St., we expect to implement a sewer that will take out the road in front of the development, so there will be a road reconstruction that will extend through the George St. intersection. It will improve and loop a 10-inch watermain that is currently separated at Cross St. and George St. All of those works are part of this development project. The pump station is a different part of the infrastructure in our view, because it significantly benefits outlying lands, of which 88% of its capacity is assigned to.”
He said that while his clients still expect to front end the station, they believe that once the station is assumed by the County, they should be reimbursed for 82% of the overall costs. That would put the County on the hook for roughly $820,000, and it could set a precedent for future developers seeking similar compensation.
Meader claimed that in careful review of the County’s Planning Act, requiring a developer to pay for “significant municipal services” is “beyond the jurisdiction of the County,” implying that should the County continue on the path they’re on currently, their actions could be interpreted as illegal.
She called a cost-sharing agreement an “appropriate alternative” to a long, drawn-out legal process that could delay work on the developments at a time where the Province is pushing municipalities to build faster.
“In terms of the principles of cost-sharing, The Court of Appeal has found that if cost-sharing is not imposed on benefitting landowners, it would defeat the principles of good planning and the purpose of the statutory regime by giving future benefitting developers an unfair windfall at the expense of the developer that paid for the services up front,” said Meader.
Council had a chance to reply to the ask ahead of voting on the next step. Councillor Rob Shirton was the first to speak, “I’d like to see if we can find some kind of solution about having to pay the full amount up front, when we know some of these lands might not be built for 30 or 40 or 50 years? I’m not sure about that.… This can’t be precedent setting. We can’t as Council be setting ourselves up for other areas to ask, ‘why didn’t you help us’. I do agree though that the lands will benefit the County; this is a little bit unusual.”
Councillor Patrick O’Neill requested a report covering the many legal implications laid out by Meader and Pellerin. Councillor Stewart Patterson countered the ask, “Would it not also be unreasonable and unfair for the taxpayer to front load this?”
Meader concluded, “The ask is that you seek whatever legal counsel you need to confirm that what we are proposing is legal within your rights, and to proceed otherwise is arguably illegal. We’re not asking you to revisit your local service policies, we’re asking you to look at them and interpret them. The local service policies clearly state that sanitary pumping stations not required for an individual development; that’s this pumping station – it’s not required for one individual development, shall be paid for through the DC. We’re not asking you to revisit your policies.”
Merritt held firm, reiterating, “This pumping station is considered local service within our local servicing policy. It always has been, and it’s been communicated to the proponent multiple times over the last several decades.… This is how we’ve treated every other development similar to this. We consider this one basin.… None of these specific types of sanitary pumping stations are included in our DC background and would not be included because of our servicing policy…. That’s how we’ve treated every situation like this, since the inception of the County.… We’ve got other situations exactly the same as this occurring in the County today.”
Council voted unanimously in favour of having staff present a report on the matter at the September 19, 2023 Council meeting.