ONTARIO REGULATION 322/12

made under the

MUNICIPAL ACT, 2001

Made: October 23, 2012
Filed: October 25, 2012
Published on e-Laws: October 26, 2012
Printed in The Ontario Gazette: November 10, 2012

Amending O. Reg. 586/06

(LOCAL IMPROVEMENT CHARGES — PRIORITY LIEN STATUS)

Note: Ontario Regulation 586/06 has previously been amended. For the legislative history of the Regulation, see the Table of Consolidated Regulations – Detailed Legislative History at www.e-Laws.gov.on.ca.

1.  Ontario Regulation 586/06 is amended by adding the following heading before section 1:

PART I
GENERAL

2.  (1)  Subsection 1 (1) of the Regulation is amended by adding the following definitions:

“private” means, with respect to a work or property, a work or property that is not owned by the municipality or a local board of the municipality;

. . . . .

“sufficient agreement” means an agreement determined to be sufficient under section 36.4;

(2)  Clause 1 (2) (b) of the Regulation is amended by striking out “or distribution of water” and substituting “distribution or conservation of water”.

(3)  Subsection 1 (2) of the Regulation is amended by striking out “and” at the end of clause (o), by adding “and” at the end of clause (p) and by adding the following clause:

(q) constructing energy efficiency works or renewable energy works.

(4)  Section 1 of the Regulation is amended by adding the following subsection:

(3)  If a municipality undertakes a work as a local improvement, a special charge imposed with respect to the work in accordance with this Regulation has priority lien status as described in section 1 of the Act.

3.  Section 2 of the Regulation is revoked and the following substituted:

Scope of local improvement

2.  (1)  If a municipality has the authority to undertake a work, including a private work, under section 9, 10 or 11 of the Act or under any other provision of any Act, the municipality may undertake the work as a local improvement in accordance with this Regulation.

(2)  The power to undertake a work as a local improvement includes, without limitation, the power to,

(a) undertake the work as a local improvement, including undertaking the work on private property;

(b) acquire an existing work and where it does, this Regulation applies as if the municipality were undertaking the work so acquired;

(c) undertake a work as a local improvement for the benefit of a single lot; and

(d) raise the cost of undertaking a work as a local improvement by imposing special charges, including special charges on a single lot.

(3)  Where a municipality undertakes a private work as a local improvement, this Regulation applies to undertaking the private work as a local improvement as if the municipality were undertaking its own work.

(4)  Nothing in this Regulation authorizes a municipality to enter and undertake a work as a local improvement on private property without the permission of the owner or other person having the authority to grant such permission.

4.  Subsection 4 (2) of the Regulation is amended by striking out the portion before clause (a) and substituting the following:

(2)  A notice to an owner under this Regulation is sufficiently given if it is,

5.  The Regulation is amended by adding the following heading before section 5:

PART II
IMPOSITION AND APPORTIONMENT OF THE COSTS OF LOCAL IMPROVEMENTS ON THE BASIS OF FRONTAGE

6.  Paragraph 2 of subsection 12 (2) of the Regulation is revoked and the following substituted:

2. Reasonable administrative costs, including the cost of advertising and of giving notices.

7.  The Regulation is amended by adding the following Part:

PART III
LOCAL IMPROVEMENTS ON PRIVATE PROPERTY BY AGREEMENT

Purpose, Sufficient Agreements and By-Laws

Local improvements, private property

36.1  In accordance with this Part, a municipality may raise the cost of undertaking works as local improvements on private property by imposing special charges on the lots of consenting property owners upon which all or part of the works are or will be located.

Local improvements by agreement

36.2  (1)  This Part applies to a municipality undertaking work as a local improvement on private property if,

(a) the municipality and the owners of the lots which would be specially charged to raise all or any portion of the cost of the work enter into a sufficient agreement in which the owners consent to their lots being specially charged; and

(b) the municipality is not undertaking the work in accordance with Part II.

(2)  An agreement described in subsection (1) may provide for the apportionment of the cost of the work among the specially charged lots on any basis that the municipality considers appropriate, but the method of apportionment must be authorized under Part XII of the Act.

(3)  Despite subsection (2), the method of apportionment provided for in an agreement described in subsection (1) shall not result in special charges that are based on, are in respect of or are computed by reference to the assessment of the specially charged lots as shown on the assessment roll for any year under the Assessment Act.

(4)  An agreement described in subsection (1) shall be signed by the municipality and the owners of all the lots which would be specially charged, if the municipality undertakes the work as a local improvement in accordance with this Part.

(5)  The agreement signed by the municipality and the owners of all the lots which would be specially charged must include,

(a) the estimated cost of the work;

(b) the estimated lifetime of the work;

(c) a description of the apportionment method and the amount of the special charges for the lots to be specially charged;

(d) without limiting clause (c), the manner in which a cost over run or under run is to be dealt with, if the actual cost of work differs from the estimated cost of the work; and

(e) when the special charges for the lots are to be paid.

Cost of a work

36.3  The following may be included in the cost of a work under this Part:

1. Engineering expenses.

2. Reasonable administrative costs, including the cost of advertising and of giving notices.

3. Interest on short and long-term borrowing.

4. Compensation for lands taken for the purposes of the work or injuriously affected by it and the expenses incurred by the municipality in connection with determining the compensation.

5. The estimated cost of incurring long-term debt, including any discount allowed to the purchasers of the debt.

Sufficient agreement

36.4  (1)  An agreement described in section 36.2 is sufficient if it meets the requirements of section 36.2 and of this section.

(2)  The clerk of the municipality shall determine the sufficiency of an agreement and, where it is sufficient, the clerk shall certify the agreement.

(3)  The clerk’s certification of the agreement as sufficient is final and binding.

(4)  A person who has signed an agreement may withdraw his or her name from the agreement by filing a written withdrawal with the clerk, before the clerk has certified the sufficiency of the agreement but the person cannot withdraw his or her name from the agreement after the clerk has certified the sufficiency of the agreement.

(5)  In determining the sufficiency of an agreement, where a lot is owned by two or more persons, the owner of the lot is deemed not to have signed the agreement unless all of the owners of the lot have signed the agreement.

Local improvement charges by-law

36.5  (1)  If the municipality has the authority to undertake a work, it may, in accordance with this Part, pass a by-law to undertake the work as a local improvement for the purpose of raising all or any part of the cost of the work by imposing special charges on lots upon which all or some part of the local improvement is or will be located.

(2)  A by-law under subsection (1) may be a by-law to authorize the undertaking of a specific work for which the municipality has given notice under clause 36.6 (2) (a) or a by-law to authorize the undertaking of works which satisfy the requirements of a municipal program for which the municipality has given notice under clause 36.6 (2) (b).

Notice of local improvement charges by-law

36.6  (1)  Before passing a by-law to undertake a work as a local improvement under section 36.5, the municipality shall give notice to the public of its intention to pass the by-law.

(2)  The public notice of the intention to pass the by-law shall include,

(a) a description of a specific work the municipality intends to undertake; or

(b) a description of a program that the municipality has or intends to establish to undertake the types of works set out in the notice.

Clarification

36.7  A municipality may undertake a work as a local improvement under this Part in accordance with a sufficient agreement despite receiving a petition under subsection 7 (1) against undertaking the work as a local improvement under Part II within the previous two years.

Application of ss. 31-36

36.8  Sections 31 to 36 apply, with necessary modifications, for the purpose of a municipality undertaking a work as a local improvement under this Part.

Non-application of exemption

36.9  If an Act, regulation or by-law provides that special charges under this Regulation are not required to be paid with respect to a lot, despite the exemption, the lot is subject to this Part for all purposes and shall be specially charged.

Procedure for Imposing Special Charges

Local improvement roll

36.10  Before a special charge is imposed, the treasurer of the municipality shall prepare a local improvement roll setting out,

(a) the cost of the work;

(b) every lot to be specially charged and the name of the owner of each lot;

(c) the special charges with which each lot is to be specially charged;

(d) when the special charges are to be paid; and

(e) the lifetime of the work.

Notice and certification of proposed roll

36.11  (1)  Before a special charge is imposed, the municipality shall give notice of the proposed local improvement roll that is prepared to the owners of lots liable to be specially charged.

(2)  The treasurer shall certify the proposed local improvement roll after,

(a) considering objections to the roll received from the owners, if any;

(b) considering proposed revisions to the roll received from the municipality, if any; and

(c) making any corrections to the roll that the treasurer considers fair and equitable as a result of the objections and proposed revisions.

Public access to local improvement roll

36.12  Copies of the proposed local improvement roll shall be available for inspection at the office of the clerk of the municipality until the treasurer of the municipality has certified the local improvement roll.

Effect of certification of local improvement roll

36.13  When certified by the treasurer under subsection 36.11 (2) or section 36.15,

(a) the certified local improvement roll and the special charges set out in it are final and binding, except where otherwise provided in this Regulation; and

(b) the work in respect of which the roll has been prepared and certified is conclusively deemed to have been lawfully undertaken in accordance with this Regulation.

Special charges by-law

36.14  (1)  After the treasurer of the municipality has certified the local improvement roll under subsection 36.11 (2) or section 36.15, the municipality shall by by-law provide that,

(a) the amount specially charged on each lot set out in the roll is sufficient to raise that lot’s share of the cost by a specified number of annual payments; and

(b) a special charge is imposed in each year on each lot equal to the amount of the payment payable in that year.

(2)  The amount of each annual payment shall be entered in the local improvement roll by the treasurer.

(3)  The annual payments with respect to a work shall not extend beyond its lifetime.

Amendments to local improvement roll

36.15  The treasurer of the municipality shall make any corrections in the local improvement roll that are necessary to give effect to changes made in accordance with sections 36.16 and 36.17 and shall certify the corrected roll.

Apportioning special charges if lot subdivided

36.16  (1)  If a lot that is or is to be specially charged is subdivided into two or more new lots, the municipality shall apportion the amount of special charges that would have otherwise been charged on the original lot among the new lots by imposing special charges.

(2)  The apportionment of the amount of special charges among the new lots shall be done as follows:

1. If the sufficient agreement provides for a specified method of apportioning special charges among the new lots when an original lot is subdivided, the municipality shall apportion the amount among the new lots in accordance with the specified method of apportioning special charges.

2. If the sufficient agreement does not provide for a specified method of apportioning special charges among the new lots when an original lot is subdivided, the municipality may apportion the amount in any manner the municipality considers just and equitable, having regard to the relative degree of benefit received by each of the new lots.

Reduction or increase in special charge due to gross error

36.17  (1)  The treasurer shall, at any time after the certification of the local improvement roll, reduce or increase any special charge for the current year and the remaining years for which the special charge is imposed if the treasurer determines that the special charge is incorrect by reason of any gross or manifest error.

(2)  Before reducing or increasing a special charge, the municipality shall give notice of the proposed reduction or increase to the owners of the lots specially charged for the work and to which the reduction or increase applies.

(3)  By filing an objection with the clerk, a person may object to the reduction or increase to the special charge on the grounds that the reduction or increase is incorrect or not warranted.

(4)  The treasurer shall consider the objection and may make any decision the treasurer considers fair and equitable.

(5)  Where there is a reduction in the special charge, the amount of the reduction shall be borne by the municipality.

(6)  Where there is an increase in the special charge, the amount of the increase shall be applied towards payment of the special charges imposed to raise the owners’ share of the cost of the work.

Proportion of municipality’s and owner’s share cannot be changed

36.18  The treasurer shall not change the proportion of the municipality’s and the owners’ share of the cost, except to the extent that the proportion may be affected by a decision made under section 36.11 or 36.17.

8.  The heading before section 37 of the Regulation is revoked and the following substituted:

PART IV
TRANSITIONAL PROVISIONS

Commencement

9.  This Regulation comes into force on the day it is filed.

Made by:

Kathleen O’Day Wynne

Minister of Municipal Affairs and Housing

Date made: October 23, 2012.

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