The following article is the first in a series of articles I hope to write that addresses how governing/planning decisions have been made, who has made the decisions, and the quality of those decisions.
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COUNCIL KINDLY GAVE A $9,000+ GIFT TO THE 292 MAIN ST. DEVELOPMENT
The Town and 292 Main Street Developments Limited made an agreement (the “Development Agreement” or “DA”) in August 2019. The DA contains details about about the parties’ obligations regarding the proposed building located at 292 Main St., issues of timing, and more.
The DA includes Clause 5.1.11.1 that states:
“The Developer shall pay all costs and expenses incurred by the Town related to this Development Agreement.”
In November, 2023, the Town’s Director of Planning and Development informed Council that the Developer had requested that the DA be amended for the second time. The proposed amendments included changes to the design of the building. Because some of the proposed changes were substantive, a public hearing was triggered.
As of January 19, 2024, the Town had incurred $4,821 in legal costs related to the proposed DA amendments. More legal costs were likely incurred after January 19th since the Town Solicitor attended the public hearing held on January 30, 2024. Additionally, the Town incurred costs of $4,000 for pictorial renderings of the proposed building.
By letter, dated December 6, 2023, I asked Council about the Town seeking repayment from the Developer for the expenses incurred by the Town. I never received a response.
I sent a second letter to Council, dated January 12, 2024. In the letter I asked whether the Town had either received or would it be seeking reimbursement for the money the Town spent related to the DA.
I received the following responses: seeking expenses from the Developer “has not been part of our practice in the recent past.”; “it is not common for municipalities to require developers to pay the municipality’s legal costs related to development applications”; and seeking reimbursement “could be considered a barrier to development in the Town”.
The reasons the Town provided for not seeking reimbursement from the Developer are not convincing. Do past “practices” dictate what the Town does in current or future cases? Were there special circumstances in this case? This was the second time the Developer sought an amendment. And the second amendment triggered a public hearing. The Town relies upon what other municipalities do, but does not provide any details to support its reliance. And why should the Town do what other municipalities have done? If the Town did not plan to make use of clause 5.1.11.1, why was it included in the DA?
The Town does not provide any evidence that seeking reimbursement from a developer for expenses incurred more than 4 years after an original development agreement was signed will lead in the future to a “barrier” to development.
Regarding the rendering expenses, the Town explained: “These [renderings] were done at the request of Council for additional viewpoints”. While it is true that the Council asked for renderings, it did so only because the Developer requested substantive design changes to the project.
More concerning than the weak arguments the Town provided to justify its failure to seek reimbursement is the Town’s (Council and Staff’s) apparent failure to even raise the issue of seeking repayment. (Recall that clause 5.1.11.1 says: “Developer shall pay all costs and expenses“.)
I have reviewed the minutes of all town council meetings held after November, 2023. I could find no evidence that Council ever discussed or voted on the question of whether clause 5.1.11.1 should be enforced.
Who had the responsibility to inform the Council that it was able to seek reimbursement from the Developer for costs and expenses related to the DA incurred by the Town? Why didn’t one or more members of Council raise the issue themselves since the they all were provided with a copy of the DA in their agenda package?
By not requiring the Developer to reimburse the Town for the expenses it incurred, the Council has, in effect, given the Developer a $9,000+ gift. Did the Town at least receive a thank you note from the Developer?