A program that collects millions of dollars from developers in 91原创 Township can't be overturned by the courts because the contributions are voluntary, the Township argued in recent filings.
In September, Lorval Developments, G&T Martini Holdings, and other companies owned or run by siblings Gemma and Thomas Martini petitioned B.C. Supreme Court to declare the Township's policy on community amenity contributions (CACs) "null and void."
They claimed that they could have to pay up between $32 and $39 million in CACs related to their development of a massive new sound stage project proposed for a 70-acre site in the Williams neighbourhood in north east Willoughby, near 216 Street and Highway 1.
Legally, the Lorval petition claimed that the Township's CAC policy, and specifically amendments made on June 10 this year, are beyond the Township's authority, that their adoption failed to meet legal standards of reasonableness, and that their adoption was a breach of procedural fairness.
If successful, overturning the Township's CAC policies could have impacted numerous other developments, and projects the Township was planning to fund from CAC revenues.
The Township filed a response to the Lorval petition in early October.
The court filing goes through the history of CACs in B.C., starting from the early 2000s when they were introduced, and noting that they are not directly regulated by any provincial laws.
However, the provincial government did publish some guidance for cities and towns using CACs in 2014.
"A change or increase in density generally boosts the value of land, and provides the possibility of a financial benefit to the land owner, developer or local government," said the provincial document. "Increasingly, local governments and residents see this as a reasonable opportunity to help fund community amenities."
The document also noted that CAC policies should be fair, clear and consistent, and follow good planning principles.
The Township's response says that CAC programs "recognized the inherent dilemma" of landowners "receiving unearned windfalls when their property was rezoned鈥� local governments essentially created private wealth through changes in the law."
CACs were intended to have the law work to public benefit, the Township argued.
The Township's filing emphasizes that the CAC policy "sets targets for voluntary contributions which staff are to try to negotiate with developers on a site-by-site basis."
Since the CACs aren't based on a "statutory power" controlled by cities, there is no decision for the courts to review, the Township argued.
"91原创's policy does not purport to have the force of law," it says. "Nothing in the policy requires or compels the petitioner [Lorval] to pay a certain amount of CACs to 91原创."
The Township also argued that there is no evidence that the CAC policy played any role in the Township council's decisions on approving a neighbourhood plan for the Williams area.
None of the claims made by Lorval or the Township has been proven in court.
On Monday, Oct. 7 the Township council voted to reconsider a motion passed earlier this year regarding CACs.
Mayor Eric Woodward also proposed an amendment to the policy being reconsidered: "That all target contribution rates specific to the Williams Neighbourhood Plan be removed."
In addition, the mayor asked council to approve more consultation with the public and property owners about potential CACs in the Williams area, as well as holding off on the final adoption of the Williams Neighbourhood Plan until after an updated CAC policy for the area could be considered by council.
All the changes were passed.
The current legal dispute is the second time this year that the developers of the new film studio have sued the Township over the development project.
