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AGENDA - Special Council - 20091124SPECIAL COUNCIL MEETING AGENDA N0.09-31 TUESDAY, NOVEMBER 24, 2009 5:30 P.M. COUNCIL CHAMBERS AURORA TOWN HALL PUBLIC RELEASE November 20, 2009 AURORA TOWN OF AURORA SPECIAL COUNCIL MEETING AGENDA NO. 09-31 Tuesday, November 24, 2009 5:30 p.m. Council Chambers 1 DECLARATIONS OF PECUNIARY INTEREST ll APPROVAL OF AGENDA RECOMMENDED: THAT the agenda as circulated by the Customer and Legislative Services Department be approved as presented. III CONSIDERATION OF ITEM IV READING OF BY-LAWS RECOMMENDED: THAT the following listed by-law be given 1st, 2nd and 3rd readings, and enacted: 5189-0,9 BEING A BY-LAW to confirm actions by pg. 17 Council Resulting from Special Council Meeting 09-31 on November 24, 2009 V ADJOURNMENT Special Council Meeting Agenda Tuesday, November 24, 2009 Page 2 of 2 AGENDA ITEMS Submissions from Aurora Investments Inc. RECOMMENDED: THAT the submissions from Aurora Investments Inc. be received. 2. Submissions from The Corporation of the Town of Aurora To be distributed under separate cover. pg. 1 SPECIAL COUNCIL AGENDA - November 24, 2009 ITEM # - AURORA INVESTMENTS INC. 145 INDUSTRIAL PARKWAY SOUTH, AURORA SUBMISSIONS APPEAL TO COUNCIL SECTION 20 DEVELOPMENT CHARGES ACT SECTION 4, DEVELOPMENT CHARGES ACT AND AURORA DEVELOPMENT CHARGES BY LAW 1. 145 Industrial Parkway South, Aurora is the property owned by Aurora Investments Inc. 2. The property consists of 8 acres of land upon half of which is built an existing . industrial building of.80,000 sq ft of which 58,994.00 sq fi (65%) is leased to industrial tenants. The balance. of 21,000 sq ft (35%0) in the building is, at present, unleased. 3. The zoning of the property is site specific by law 4908-07D which zones the property as M2-7. Exception Zone [See Schedule A attached]. Although there are non industrial uses permitted in this zone, the present tenants are all industrial uses and Aurora Investments Ine, has stated that it is prepared to and will give a written binding undertaking not to allow any nonindustrial uses on the property. 4.. Aurora Development Charge By Law 513 9-09defines "industrial", "Means lands buildings or structures used or designed or intended for use for manufacturing processing fabricating or assembly of raw goods warehousing or storage of goods and includes office uses and the sales of commodities to the general public where such uses are accessory to an industrial use but does not include the sale of commodities to the general public through a warehouse club" 5. Aurora investments Inc. submitted to the Town Building Department a permit application to enlarge the existing industrial building by slightly less that 50% of the size of the existing industrial building. 6. The DEVELOPMENT CHARGES ACT provides: Exemption for, industrial development 4. (1.) If a develo ment includes the enlargement of the gross floor area of an existing industrial building, the amount of the development charge that is payable in -1= SPECIAL COUNCIL AGENDA - November 24,22009 ITEM # 1- 2 -respect of the enlargement is determined in accordance with. this section. 1997, c. 27, s. 4 (1). Enlargement 50 per cent or less (2) If the gross floor area is enlarged by 50 per cent or less, the amount of the development charge in respect of the enlargement is ZERO. 1997, c. 27,.s. 4 (2). Enlargement more than 50 per cent (3) If the gross floor area is enlarged by more than 50 per cent the amount of the development charge in respect of the enlargement is the amount of the development charge that would otherwise be payable multiplied by the fraction determined as follows: 1. Determine the amount by which the enlargement exceeds 50 per cent of the gross floor area before the enlargement. 2. Divide the amount determined under paragraph 1 by the amount of the enlargement. 1997, c. 27, s. 4 (3). 7. The same provision is set cut in the Aurora Development Charge By Law. 8. Aurora Investments Inc. was deified the exemption provided in the Development Charges Act and the Aurora Development Charge By Law.[See attached Schedule B to which is attached a letter from Dan Elliott, Director of Finance and Treasurer of Aurora] and Dan Elliott stated as his reason that Aurora Developments Inc "phased or staged construction of the extension of a planned development site so as to avoid development charges is not consistent with the intent of the exemption clauses or regulations" 9. There is no such "intent" expressed in the Development Charges Actor the Aurora Development Charge By Law nor in the study undertaken by the Town preceding the passage of the Aurora Development Charge By Law to support such statement 10. It was never the intention of Aurora Developments Inc to deliberately avoid development charges as stated by Dan Elliott and there is no evidence existing that it did. Aurora Developments Inc Aurora Developments Inc submitted plans with its original building permit application which showed clearly a future extension of the original building and the Town and Building Department were fully aware of this from the beginning. Therefore avoidance is not an issue. -2- SPECIAL COUNCIL AGENDA - November 24,3 2009 ITEM # - 11. Aurora Developments Inc is entitled to plan its business affairs in accordance with the law (Development Charges Act) and Aurora Developments Inc clearly announced its intention so to do on its original building permit plans. Neither the Development Charges Act nor the Aurora Development Charge By Law provide anti avoidance rules and, in any event, anti avoidance rules are designed. only .to prevent unlawful activities not to prevent proper and lawful use of the law. . 12. It is submitted that Aurora Developments Inc wishes only to lawfully make use`of a provision in both of the Development Charges Act and the Aurora Development Charge By Law to gain an exemption from development charges lawfully provided therein and which the Town clearly allowed in its own By Law. 13.. Attached hereto as Schedule C is, a memorandum which sets out the events which occurred between Aurora Investments Inc. and. the staff of the Town of Aurora between February 6, 2009 and May 4, 2009, all dealing with Development, Charges. As can be seen, the Town staff gave myriad of excuses regarding Development Charges culminating with the final one from Dan Elliott set out in the paragraph 8 herein. Techa Van Leeuwen took it upon herself to contact the Region and the Board of Education who now agree with the Town of Aurora forcing. Aurora Investments Inc. to begin the path toward the Ontario Municipal Board.' 14. There have been no cases either in the Ontario Municipal Board or the Ontario Superior Court of Justice dealing directly with this issue although in some cases it is clear that there is no definition of "existing industrial building" and one case dealing with multiple requests on the same land .for serial exemptions in which two exemptions were approved. ALL OF WHICH IS RESPECTFULLY SUBMITTED AURORA INVESTMENTS INC. Per: GERALD GRUPP B.A., LLB., LL.M. Vice President, Legal Services 3-