Transportation Off-Site Levies
The County has postponed revising its Transportation Off-site (TOL) Bylaw until after the election. This means that Council will have failed to deal with the clear inequities in the existing bylaw on a timely basis. The current TOL places an unfair burden on small landowners undertaking minimal subdivision of their land relative to large developers.
As well as these serious inequities, the current TOL almost certainly does not comply with the legal requirements for such levies set out by the Province and confirmed in legal challenges to other municipalities’ levies.
The provincial regulation states that “all beneficiaries of development are to … participate in the cost… on an equitable basis” and that “there is to be a correlation between the levy and the impacts of the new development.”
Most objections to the TOL focused on the lack of correlation between the amount payable and the resulting impact on the road network. For example, subdividing a 20-acre parcel into five-acre parcels does not impose as much demand on the roads as does subdividing the same 20 acres into one- or two-acre parcels. Yet each would pay the same amount of TOL – an obvious inequity that needs to be addressed.
In municipalities where most subdivisions result in relatively comparable densities, a per acre levy may work. However, in Rocky View, there is a high degree of variability in post-subdivision densities. To provide the legally required correlation between the levy and the impact of the new development, the County needs to change the basis for its TOL to a “per door” or "per parcel" charge. Alternatively, it could base the TOL on traffic impact assessments which measure the incremental impact a proposed development will have on the road network.
The second flaw with the TOL is its apparent lack of compliance with the legal framework set out for off-site levies by the province and confirmed by the courts. The Town of Okotoks’ off-site bylaw was structured in the same manner as Rocky View’s. It was challenged in court and Okotoks lost in the Court of Appeals in 2011. The core of the Court’s decision was that “a municipality is not entitled to allocate the whole of the offsite costs of new … infrastructure … upon new development, unless it can be reasonably assumed that the existing residents derive no benefit therefrom.”
After the Court of Appeals decision, almost all Alberta municipalities amended their off-site levy bylaws to allocate only portions of costs of new infrastructure to new development. Rocky View has not followed suit. The latest proposed amendments to Rocky View’s TOL bylaw still do not incorporate the conclusions from this court decision.
Council should have recognized this reality long ago. They then might have exercised greater due diligence in their development approvals. Had Council acknowledged that these approvals would have a greater impact on existing residents’ property tax rates, one can at least hope that some of them might have been examined more critically. Relying on the fact that Rocky View’s TOL has not yet been legally challenged is no excuse to continue to ignore the reality that it does not comply with the legal requirements for such levies.