City Councillor Kevin Klein serving Charleswood-Tuxedo-Westwood
Following a lengthy court battle the City of Winnipeg was ordered to pay back all the Impact Fees collected since the inception under Mayor Bowman plus interest. The Mayor and Public Service has since been publicly claiming victory in the case and have not confirmed if or when they will pay the fees back as ordered.
That uncertainty does not sit well with me, I believe that money belongs to taxpayers and should be given back in a timely fashion. Therefore I moved a motion during a Winnipeg Council meeting on July 23rd requesting the Public Service repay the Impact Fees within 90-days.
In an effort to work collaboratively with all members of the council I sent an email, prior to the City Council meeting, providing a review of the decision points in the Court's decision.
Para.55 - "Although the [City's] Technical Report involved quantifying the cost of new development and deducting "grants/subsidies/other recoveries" no specific account was taken of the developer contributions to offsite infrastructure or the fact that utility rates cover the cost associated with water and waste infrastructure." Meaning, the developers were being double-charged by the developer contributions (which I understand are negotiated with the City prior to development beginning) and the impact fee.
On Issue I (Is the impact fee ultra vires?), the judge finds no. The judge finds the City does have the authority to enact the by-law and resolution. (Para 152)
On Issue II (Does the impact fee constitute an invalid indirect tax, not saved as a user fee or as regulatory charges?) Four-part test to determine whether it is a regulatory charge or an indirect tax, and the impact fee is found to be an indirect tax on part 2 of the test (Is it intended to alter behavior or to raise revenue? - Raise revenue para.177), part 3 (Proper estimation of the costs being defrayed - no linkage between impact fee and estimation of costs means indirect tax para.183) and part 4 (existence of a relationship between the regulation and the person being regulated - Impact fee goes to general revenue and can be used at the discretion of the CFO and Council for any project. para.189-190).
There is insufficient linkage between the impact fees collected and the expenses generated by growth under the regulatory scheme, in establishing a relationship between the impact fee and regulatory scheme. para 200
Para 202 - "I find that the impact fee imposed pursuant to the by-law and resolution is an invalid indirect tax, and therefore an unenforceable tax beyond the legislative authority granted to the City to collect."
On Issue III (Does the Impact Fee discriminate against developers, builders, and homeowners within certain developments such that the impact fee is discriminatory, arbitrary, and invalid?) the court found in favour of the City.
Appropriate Remedy for Issue II (where the answer is "yes"): para.228-229 - Return impact fees plus interest to developers, who in turn must return to homeowners, as the cost was passed on to the final purchaser.
There is no question the City of Winnipeg needs to better understand the cost of development and work with stakeholders to prepare a better by-law that clearly outlines the uses for the fees.
However, the City is required under law to refund all impact fees collected with interest, and everyday that goes by it is costing taxpayers more money and that is simply unacceptable.
The motion was not heard at council, it instead will be decided upon by the Mayor and his EPC party sometime in September.