There will be no reimbursement of allegedly overpaid development charges for a local builder, city council ruled. That $143,080 will remain in municipal coffers.
Meeting as a tribunal, city council heard the overpayment complaint during a special meeting on Feb. 14. Council heard from a lawyer representing the developer, as well as a city solicitor, followed by a one-hour in-camera discussion with legal staff.
In the end, council returned to open session that evening and Mayor Cam Guthrie announced a decision had been made. However, council’s verdict was not publicly released until eight days later.
“On consideration of all of the submissions made, as well as a review of the written material submitted … council finds that there was no error in the application of the city’s DC bylaw,” reads the decision. “The complainant has failed to adduce sufficient compelling evidence that a prepayment agreement … was entered into by the city, as alleged.”
The dispute centres around what the developer argued was a $143,080 over payment of development charges (DCs) for its residential buildings at 1098 Paisley Rd. – which stretches between Elmira and Whitelaw roads.
Paisley & Whitelaw Inc. signed a pre-payment agreement with the city regarding the first phase of the development and provided more than $4 million in DCs.
In exchange, the developer locked in 2019 development charge rates for the first two of four planned buildings.
However, the number of units and bedrooms in those first two buildings was decreased, meaning the full amount of pre-paid DCs wasn’t used and some funds remained with the city.
That’s not in dispute.
The disagreement comes from an email exchange between the developer and a finance department staff member.
As explained by Jennifer Meader, lawyer for Paisley & Whitelaw Inc., the exchange left the developer thinking the 2019 DCs rate would be applied to a portion of the third building. However, the leftover funds were simply put against the amount owing based on the 2023 rate.
City lawyer Allison Thornton told council that may be the case, but it would be up to council to approve an extension of that pre-pay agreement.
There’s nothing in the email exchange that specifically states the developer’s request or the staff member’s agreement that the lower rates would be applied.
Meader argued the developer’s implication is clear. Thornton argued it’s not, but the staffer didn’t have authority to approve such a request anyway.
"I don't believe the taxpayers should be held responsible for a vague communication," Thornton said.
