Monday, April 30, 2012

Land vs Cash Vote Tonight Regarding Motion Estates

Land vs Cash Tug of War
The issue of Land vs Cash from subdivision developers has been getting a great deal of attention lately from those who are involved in and observe our municipal government. There has been a lot of back and forth regarding this particular issue over the past couple of months and certainly longer than that where Council is concerned. Will it all come to and end tonight with a vote in Council or is this just the beginning of a larger debate that will be a lightning rod of controversy every time a developer submits and application for a subdivision?

Lately this issue seem to dividing council and there are clear lines between those who support the land option and those who are in favor of taking the cash in this particular case. Over the years it seems that council has chosen to take the cash more often than not and that may be adding to the ferocity of the debate.

In the past few weeks the tone of this debate has certainly taken a turn for the worst with the Mayor accusing the Deputy Mayor of grandstanding in Council while trying to comment on the issue. The Deputy Mayor was ruled out of order in that case although he still probably questions the ruling. Just as troubling is the fact that in the latest issue of the North East Avalon Times and on some social media the Deputy Mayor pretty much called the Mayor a liar.

This is in regards to a suggestion by the Deputy Mayor that the town should take the land even if it decides to sell it later at market value. The Mayor said that would be illegal under provincial legislation in the latest edition of the Times. The Deputy Mayor posted a portion of a document on Facebook the other day that states the town can sell the land if it wants as long as it complies with the regulation. It should be noted however that the position of the Deputy Mayor on this particular motion before Council is 100% in favor of taking the land as per the Open Space Management Strategy guidelines. His reasoning for posting the regulations with regards to selling the land for market value was in response to the questioning of the legality of the proposal. The Following is from the towns own Development Regulations that are posted on the town website here, it is the document that the Deputy Mayor posted on the Torbay for Families Facebook Page recently.

78.  Land for Public Open Space 
(1) Before a development commences, the developer shall, if required, dedicate to the Council, at no cost to the Council, an area of land equivalent to not more than 10% of the gross area of the subdivision or 25 m² for every dwelling unit permitted in the subdivision, whichever is the greater, for public open space, provided that:
(a) where land is subdivided for any purpose other than residential use, the Council shall determine the percentage of land to be dedicated;
(b) if, in the opinion of the Council, no public open space is required, the land may be used for such other public use as the Council may determine;
(c) the location and suitability of any land dedicated under the provisions of this Regulation shall be subject to the approval of the Council but in any case, the Council shall not accept land which, in its opinion is incapable of development for any purpose;
(d) the Council may accept from the developer in lieu of such area or areas of land the payment of a sum of money equal to the value of the land which would otherwise be required to be dedicated;
(e) money received by the Council in accordance with Regulation 78(1)(d) above, shall be reserved by the Council for the purpose of the acquisition or development of land for public open space or other public purpose.
       (2) Land dedicated for public use in accordance with this Regulation shall be conveyed to the Council and may be sold or leased by the Council for the purposes of any development that conforms with the requirements of these Regulations, and the proceeds of any sale or other disposition of land shall be applied against the cost of acquisition or development of any other land for the purposes of public open space or other public purposes.
(3) The Council may require a strip of land to be reserved and remain undeveloped along the banks of any river, brook or pond, and this land may, at the discretion of the Council, constitute the requirement of land for public use under Regulation 78(1).
If the Town of Torbay's own development regulations say that the town can sell the land after it is given to the town then it can only be assumed that there must be another reason why the mayor would maintain that selling the land in this case would be illegal. It clearly states in the Urban and Rural Planning Act, 2000 that land conveyed to council under the regulation can be sold or leased by council. This stands to reason considering the Town's development regulations would have to be created within the regulations of the provincial act. The following is from the Urban and Rural Planning Act, 2000.
Dedication of land for public use 
37. (1) A council or regional authority may make regulations requiring that an applicant for a permit for a subdivision dedicate to the council or regional authority, not more than 10% of the subdivision or land to be developed for park land or other public use.
(2) Land dedicated under subsection (1) shall be conveyed at a cost of $1 to the council or regional authority under whose jurisdiction the land is located.
(3) Where it is not feasible or desirable to set aside a proportion of the land under
subsection (1), the applicant may pay an amount of money to the council or regional authority that is equivalent to the value of the land in that subdivision that would have been conveyed under subsection (2).
(4) Where an agreement cannot be reached on the amount of money to be paid under subsection
(3), a board of arbitrators shall fix the amount as if the land were expropriated under Part IX.
(5) Where the subdivision or land development for which a permit is required consists of land for which there are 2 or more persons holding an interest in the land, the costs of a land dedication, conveyance or money payable under subsection (2), (3) or (4) shall be shared proportionally among those persons.
(6) A council or regional authority may sell or lease land conveyed to it under subsection (2). 
(7) Land dedicated and conveyed for a park or another public use under this section that is not sold or leased under subsection (6) shall be used for that dedicated purpose.
(8) A council or regional authority may, for a development that is not a subdivision, require that the owner of the land being developed convey to the council or regional authority, for a public purpose, a portion of the land proposed for development.
(9) Where a council or regional authority and the owner of land to be conveyed under
subsection (8) cannot agree as to the cost of the land, Part IX shall apply to that conveyance.
This issue will be voted on tonight at Council and it is likely to be a very heated debate. There are very strong opinions on both sides of the table and it will be interesting to see how the vote plays out. There is a likely possibility that this vote will be a close one and may end up 1 vote deciding the matter one way or the other.


  1. Hi All,

    Provincial legislation, town regulations, open space guidelines, and public opinion on this issue are quite clear.

    All claims I and the Parks and Rec committee have made on behalf of supporting the 10% land have been well researched, backed up with specifics, and publicly shared to the best of our ability.

    Craig you are right, this issue has been surprising difficult. I have on multiple occasions been called out of order in chambers for trying to read from our guidelines under appropriate agenda items and I have been forced to respond to and correct unsubstantiated claims in the press. (no name calling used or needed, this is about the issue).

    I argue the case for 10% Open Space has more merit and is the logical best choice for the long term best interest for our residents. In fact, I have yet to hear any good case for the $35K cash (esp in light of reg 78(2)!!!)...

    Here is a detailed summary for the Case for Open Space...

    Hopefully, this whole thing has made the public more aware and engaged on this important issue.

    Make no mistake, open space decisions such as this - Land ($100K+) vs Cash (~$35K) - will determine the type of community we will become...

    The vote is tonight at 7:30...

    Geoff Gallant

  2. AnonymousMay 01, 2012

    I thankyou for all your effort Geoff.



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