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GTA NHL Arena "Compulory Voluntary Contribution"

GTA NHL Arena "Compulory Voluntary Contribution"

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Published by Jim Jones
Requesting voluntary contributions is not a problem, but, taking punitive action against anyone who doesn't contribute is, particularly if it results in financial and/or other damages. If contributions are truly voluntary then there would be no mandated donation amount, like fund-raising for a hospital..... if Markham adopts some kind of donation "policy" establishing or suggesting a per unit/application/or acre charge and makes this payment a pre-condition for processing development applications, in my opinion,this could be contrary to the Development Charges Act regulations governing the adoption and administration of development charges and possibly a violation of the Municipal Act in respect of theregulations geared to preventing discriminatory or arbitrary treatment of development applicants.
Requesting voluntary contributions is not a problem, but, taking punitive action against anyone who doesn't contribute is, particularly if it results in financial and/or other damages. If contributions are truly voluntary then there would be no mandated donation amount, like fund-raising for a hospital..... if Markham adopts some kind of donation "policy" establishing or suggesting a per unit/application/or acre charge and makes this payment a pre-condition for processing development applications, in my opinion,this could be contrary to the Development Charges Act regulations governing the adoption and administration of development charges and possibly a violation of the Municipal Act in respect of theregulations geared to preventing discriminatory or arbitrary treatment of development applicants.

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Published by: Jim Jones on Oct 02, 2012
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08/21/2015

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 LEGAL OR ILLEGAL?
www.scribd.com/jjones_926209
Compulsory
Voluntary Contribution for GTA Sports Center
Howard, the only
comparison between Markham’s Professional NHL Arena Facility
financing structure and
Milton’s
Amateur Veledrome Facility financing methodology
is both Cities start with the letter “M”
. Theestimated capital cost of the Veledrome is $38.000.000. The PAN AM contribution is 56% or $21,280,000,Mattamy Homes (Peter Gilgen - Owner enthusiastic cyclist) is contributing $10,000,000 and Miltonthrough their development charges and other donations is contributing $7,720,000 towards theconstruction cost. Development charges and other donations in kind (like labour, material, constructionequipment) are leaving no costs to the community. We should have followed the Milton miracle and havedone this type of creative financing and donations for the badminton center and aquatic facility withanother 50 meter pool and diving tank. You know what; it is not too late to do it right now.The problem with Markham's so-called "voluntary" contribution is that there has been lots of publicityabout it being related to the processing of developers' applications i.e. don't contribute and yourapplication languishes, contribute and applications get expedited. Any developer will be able to presentcopies of newspaper articles and witnessed statements to prove the practice was coercive and illegal, butthis will likely not happen now, rather sometime in the future.Developers may pay Markham's "mandatory contribution" to get their applications approved, but later,particularly if the development market cools, don't be surprised if increasing numbers come back topetition us for the return of their money. Any waiver Markham requires them to sign can be successfullychallenged as having been made under duress owing to the threat of punitive actions and delays by themunicipality..... No one can be made to contract out of their legal rights and any waiver that otherwiseattempts to do so can easily be declared null and void.....that's the big problem with Markham's situation;too much evidence confirming it's not really voluntary but
mandatory
if you want to do business inMarkham.
If it’s a donation, do the developers get a tax receipt?
 The second problem is the Town cannot legally enforce or guarantee payments because the charge has nostatutory basis. All funds collected by the City are at risk and cannot be relied on to be available to offset
Markham’s debt obligations.
CAO
’s April 2012 report sets out a fee structure, indexing policy and phase
-in
 
VOLUNTARYCOMPULSORY
 
period that is a development charge in all but in name and legal authority. The
 
arbitrary nature of thecalculation and how it is being applied is a serious problem
.
Again, stories that has been in the paperssuggests developers who contribute early (and often) will pay less or get some kind of break on the amountthat they have to pay because being a "charter member" in good standing is somewhat like becoming amember of an exclusive club to enjoy "the privileges of membership"...the primary benefit is to avoid beingtargeted for inequitable and discriminatory treatment by the City of MarkhamWhat happens down the road when sewer allocation is not a problem? The developers or at least onedeveloper may take Markham to the OMB or court claiming the "compulsory
voluntary contribution isillegal? I believe there was a meeting on March 18
th
, 2012 held in the Canada Room, hosted by the CAOand Mayor, where several members of the development community and a representative from BILDattended. The developers
who didn’t
attend, the CAO had separate meetings to update them. Several of the developers were told in the meeting if they didn't go along with the "compulsory voluntarycontribution
schema (levy), that their subdivision agreements may take longer to process and sign off. Thedevelopers told me that they had no choice as they wanted to do business in the City of Markham. Councilwas briefed of the
compulsory
voluntary contribution plan on April 16, 2012. I had already heard aboutthis from several developers but
couldn’t believe
it.My concern is in a couple of years, the developers challenge the "compulsory
voluntary contributionschema (levy) in the courts and win. The Judge declaring the "compulsory" voluntary contribution schemaas illegal and orders Markham
s "compulsory" voluntary contribution practice stopped immediately and allmonies collected returned back to the developers with interest. This could be a huge financial liability tothe taxpayers of Markham.What liability does this put Members of Council in who vote for the "compulsory" voluntary Contributionschema (levy) and even council members who vote against it? Especially, if they knowingly are aware of the illegalities of the "compulsory" voluntary contribution levy and the potential financial commitment theywould be committing the taxpayers of Markham.When a municipality sets development charges it must do so through a strict process regulated by the
 
Provincial Government all of which is subject to appeal. Just because the Upper Unionville developers orLiberty have agreed to make a certain payment to expedite their current applications, don't count on it inthe
future from everyone. And once one challenge is successful all the rest will follow, it’s just good
business after all.The matter of liability is something our CAO, all senior staff, legal and auditors should be advising councilon. At the very least we need a proper independent due diligence done on this proposal:1.
 
Financial
 –
to comment on liability of taxpayers if GTA Sport Facility defaults2.
 
Marketing
 –
to comment on viability
 –
prove3.
 
Sport Consultant
 –
to review and comment on viability of arena4.
 
Legal
 –
independent advise on contract and DC By-Law
 
5.
 
Transportation
 –
Engineer and Transportation Planner
 –
To analyze site and impact on all streets inarea as well as parking6.
 
Table the Raymond James Report7.
 
Table BDR Report on Financial Framework8.
 
Engineering and Environmental Constraintsa.
 
Markham Live Street crossing of the tributaryb.
 
407 Rail Transitway Alignmentc.
 
High water table - under the GTA Arena and Event Plazad.
 
Transit Hub interface with the arena9.
 
Expertise in urban design in creating place - citing of the arena, local roads and block sizesRequesting voluntary contributions is not a problem, but, taking punitive action against anyone whodoesn't contribute is, particularly if it results in financial and/or other damages. If contributions are trulyvoluntary then there would be no mandated donation amount, like fund-raising for a hospital..... if Markham adopts some kind of donation "policy" establishing or suggesting a per unit/application/or acrecharge and makes this payment a pre-condition for processing development applications, in my opinion,this could be contrary to the Development Charges Act regulations governing the adoption andadministration of development charges and possibly a violation of the Municipal Act in respect of theregulations geared to preventing discriminatory or arbitrary treatment of development applicants.I believe it is important to ensure that Markham has not
 
violated the provisions of the Municipal Actgoverning the announcement in April of Council's decision
to
incur a $325 million debt with no prior public
 
meetings,
 
even after 18 months of in-camera private deliberations by the CAO and the Mayor with the GTASports Center and partners. There is a whole section in the Act strictly limiting and qualifying what matterscan be dealt with in-camera. Financial and budget matters such as the intention to incur a 1/3 of a billiondollar debt are not listed as permitted in-camera items. All discussions and decisions must be made inpublic.
 
In addition, no one may discuss or otherwise deal with any matter in-camera that should be open tothe public if it materially advances the business or decision-making of Council.. At best the public is beinggiven nominal input on the site plan and next to nothing on the aspects of the financial agreement. It isclear to the public that they have been shut out of the decision making process to incur this debt, and thatCouncil has since made it clear in the press and at meetings, that the decision is not debatable leaving theimpression the decision had already been made
 
behind closed doors.
 
I would not want to speculate on the outcome if someone was to formally request the Ministry of Municipal Affairs to review the procedure surrounding the decisions that have been made.The City of Markham should not be in the professional sports and professional entertainment business orborrowing money to facilitate private enterprise. The best solution for GTA Sports Center and partners is tolook for additional private investors, removing the City from the financing equation completely.From Jim JonesMarkham Local and Regional CouncillorCity of Markhamemail: jjones@markham.ca
===============================================================
 

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