County Choses Costly Future for Paving Subdivisions

On December 3, 2013 Kings County Council voted 6 to 4 to spend approximately $1.2 Million dollars from “reserve funds” to cover 50 percent of the cost for paving subdivision roads.  The majority of these roads are in Kingston, Greenwood, Aylesford and Coldbrook.  This is a costly departure from prior practices that is not supported by the intent of the current by-law.

Until now, with few exceptions, local improvement costs for the 50 percent not covered by the province have been charged to the homeowners of the subdivisions paved.  Between 1996 and 2011 hundreds of tax-payers paid out of their own pockets to pave their subdivision roads. Some, on a 10-year plan, will continue to pay during the years immediately ahead.

It is also notable developers of new subdivisions (since 1996) post bonds to ensure that paving is completed. The charges related to that paving gets covered by those purchasing lots or homes in the subdivision. This is another indication that it is not the intention of Kings County to cover the costs of subdivision paving.

What happened at the December 3 council meeting was a good deal for those living along about 15-kilometres of roads but it is questionable why and how this occurred.  Most councillors at the horseshoe gave no indication of why they voted as they did despite the fact that they were voting on a $1.2 million dollar item. 

Here’s what happened on December 3 and why I voted against the motion

A motion to not charge a local improvement charge was quickly put on the table and seconded, despite the fact that a very similar motion had been tabled, and rejected, in September.  Further, a referred motion from that same date in September, that I argued should have been returned to the table first, was not recognized by the chair. That motion looked at a flexible payment plan where the county paid for roads with a more generalized use, and homeowners paid the remainder.

For me the debate on December 3rd was not only about roads. It was more important than that. It was about fairness and the responsible use by council of the scarce resources entrusted to us by taxpayers from one end of this county to the other.  

A two-pager is usually how I try to clear my head on complex issues that are taking unexpected twists and turns at the council table.  The following is informed by the two-pager I prepared in advance of December 3rd. This is the information that ultimately, in the absence of any substantive debate by those in favour, guided my decision to vote against the motion that waived all costs to homeowners.  Some additional background information is also provided.

Fairness

To date the vast majority of home-owners have paid considerable amounts from their household budgets to have their subdivision roads improved under By-law 50.

Most usually, local improvement charges have been done after a successful petition. Charges paid by homeowners to date are in the range of $1.094.52 to $3,318.56 or by frontage… $3.67 to $19.08 per foot.

Some home-owners have also paid interest on a 10-year plan at an annual rate of 8 percent to make the paving of their subdivision roads affordable to their household. Some will still be making payments for several years to come. 

By my estimate, based on the number of roads paved to date, 100s of homeowners have paid out of their own pockets for paving in their subdivision under Bylaw 50.

On the other hand, a few years back, some homeowners on a few roads eligible for upgrading under Bylaw 50 were exempted from local improvement charges. 

Most notably, at a special meeting of council (September 22, 2009), homeowners on Oak Avenue and Fales River Road, Kingston, were exempted from contributing from local improvement charges. No reason is recorded in the minutes.

ON MOTION OF DEPUTY WARDEN BROTHERS AND COUNCILLOR HALL, MUNICIPAL COUNCIL ACCEPTS THE RECOMMENDATION OF THE EXECUTIVE COMMITTEE AND APPROVES THAT THE RESIDENTS OF OAK AVENUE AND FALES RIVER ROAD BE EXEMPT FROM CONTRIBUTING TO THE RE-PAVING OF OAK AVENUE AND FALES RIVER ROAD AS DESCRIBED IN BY-LAW 50-STREET SURFACING BYLAW, APPROVAL THAT THE FUNDING MODEL DESCRIBED ABOVE BE USED FOR PROCEEDING WITH THE RE-PAVING OF OAK AVENUE AND FALES RIVER ROAD, AND FURTHER, APPROVAL TO PROCEED WITH FURTHER CONTRACT ADMINISTRATION FOR POTENTIAL AWARD DURING OCTOBER COUNCIL. MOTION CARRIED. [Exerted from official minutes]

It appears to me that following these exemptions in Kingston By-law 50 petitions started to routinely fail. From the information available we see that:

• A total of 46 Bylaw 50 petitions were completed between 1996 and 2011.
• A total of 28 Bylaw 50 petitions were successful.
• Of the 18 failed petitions --- I noted only one failed prior to 2009.

Did the 2009 exemption of local improvement costs for Oak Avenue and the Fales River Road have an impact on the success rate following that decision of council?

Procedure

Time was not on our side: The season was advancing and temperatures were soon to be unfavourable for paving activities. From the beginning of this project we had to decipher if it would be possible for council to apply a local improvement charge after paving has been completed and/or without a petition.  Throughout the process we were assured by staff that these issues were surmountable.  That is, council did have the option to move forward without petitions and did have the ability to apply a local improvement charge to homeowners post paving.

Is a petition an essential factor? Another way to address this was to uncover if any roads had previously been paved under By-law 50 without a petition being completed. 

I found an answer to that in a second report prepared by the CAO at the request of council (in response to unanswered questions I was seeking that had not been forthcoming). This second report included a listing of 6 roads paved in 1999 under Bylaw 50 where a petition was not held.  These roads were in 3 districts: 4 in Greenwood; 1 in New Minas; and 1 in Port Williams.

Unfortunately, information regarding whether or not a local improvement charge was paid by homeowners on these roads was missing.

Applying a local improvement charge post paving.  We all know that the paving of this 15-K of roads had already occurred prior to a decision being made about how much homeowners should pay.

At all points along the way staff indicated timing wasn’t a factor. Council could go ahead and pave and decide on the funding formula after. Councillors were told that charges could be applied after the fact: Once drafting and approval of by-law changes concluded.

This was most strongly indicated in staff report dated September 3, 2103.

Option 2 submitted by staff was to: "direct staff to draft a bylaw for first reading which would allow the Municipality to recover the Municipal cost portion of the 2013 J Class Paving Project, without the requirement for a successful petition.”

So, in the end we see that:

·    With few exceptions, roads eligible for paving under By-law 50 are paid for, with a 50% contribution from the Province of Nova Scotia, and a 50% local improvement charge covered by homeowners on the street.

·      Petitions are the usual starting point for action on a road in need of paving, but there are a few exceptions to that as well.

·      To date, hundreds of homeowners have paid local improvement charges, often well over a $1,000 per household (with some home-owners on a financing plan still paying).

·      Since 1996 every home owner in a new subdivision pays for the compulsory paving of their streets.  Likely, thousands of their own household dollars.

Taking all that into consideration my conclusion is that:

·      It was not fair to exempt the home-owners who had their roads paved this fall from local improvement charges.

·      Council has the right and duty to apply a local improvement charge to all home-owners enjoying the benefits of newly paved roads in their subdivisions.

Heading into the council meeting where the decision took place to not charge homeowners anything for the recent paving of their subdivision, I leaned strongly toward option 3 that was recommended by motion on September 3, referred, and ultimately ignored by council.  That option provided some relief to homeowners for roads that are of a more generalized public use (usually at the entrance of subdivisions) while applying an appropriate local improvement charge similar in scope to what other taxpayers had been required to pay in the past.

Ongoing costs. The decision to pave at no cost to home-owners in subdivisions is, in my opinion, unsustainable without increasing the tax rate, or decreasing other services.  The December 3 decision set a precedent for the future costs of improving roads in subdivisions to be paid for by the municipality until all J-class roads are improved. 

To date this council has not set corporate spending priorities for infrastructure renewal and I for one anticipate great challenges ahead and the need for the capital funds we have just spent (unnecessarily) for subdivision paving. 

THE DECISION MADE BY COUNCIL ON DECEMBER 3, 2013, IS, IN MY OPINION AKIN TO A HOME-OWNER PAVING THEIR DRIVEWAY WHEN THEY KNOW THE SEPTIC TANK OR WELL IS LIKELY TO FAIL IN THE YEARS AHEAD, WHILE THERE IS VERY LITTLE MONEY IN THE HOME-OWNERS BANK ACCOUNT.  

I was interested to hear a robust, detailed debate from those councillors in favour of charging the paving of these roads to the general tax-payer versus the home-owner who, under By-law 50 is accountable for such costs. Several councillors were disappointingly mute on this important issue.

Other Issues

Transparency of Selection Process

For me, there were also issues related to the list of roads approved on August 13. I voted against that list based on the lack of information and clarity about the selection process.

It is notable that two meetings between council and the Department of Transportation and Infrastructure Renewal were scheduled and then cancelled. 

A July 26th meeting of councillors with DTIR was cancelled due to the need for more work by staff on the scoring system.

An August 9th meeting of councillors with DTIR was cancelled too… in lieu of a presentation at COTW with DTIR in attendance.

Councillors were assured that the selection was fair/non-political and based on assessments of needs and efficacy determined by consultation and discussion between MOK and DTIR. However, once a complete list of all roads was provided, it was apparent that several roads with high scores in terms of poor conditions were not prioritized while roads with very low scores were. There may be justifiable reasons for this, but council did not have the benefit of debate.

As well, there may have been suitability in the years ahead for some of the selected roads to have been paved through gas tax money... that would prevent the need for using as much of our general tax revenue base for paving them.

Background

This record of motions below charts council's journey on this J-class road issue. The final motion will be added once council approves the minutes of December 3, 2013.

15-Jan-13	Motion approved: Approve Fales River Subdivision as the 2013/14 priority for chip-sealing under the J-Class Road Paving Program.	Unanimous
16-Jul-13	Motion Approved: direct the CAO to review bylaw #50 and provide recommendations on methods through which the County can finance its portion of the cost for J-Class roads and treats all residents equitably in roads rehabilitation	Unanimous
16-Jul-13	Committee of the Whole recommend that Municipal Council: approve for the Warden to write a letter to the deputy Minister of Transportation & Infrastructure Renewal requesting they earmark one-million dollars under the J-Class roads program for the 2013/2014 year for the County of Kings.	No Vote Recorded in Minutes.
13-Aug-13	Motion approved: Approve, under the J Class Paving Project 2013, to pave the roads as presented to COTW August 13, 2013.   Discussed: issues regarding deciding on the list of roads to pave prior to deciding on policy and funding; need to address policy issues prior to committing to funding; need to address other pressing matters with funding, including aged infrastructure.	For (7): Ennis. Winsor. Best. Lloyd. Atwater. Hirtle. Brothers. Against (3): Bishop, Raven, MacQuarrie. Abstain (1). VanRooyen.
3-Sep-13	Motion approved: Direct the CAO to execute the notice of acceptance and return to the Minister, with the funding method to be determined by Council.	For (): Against (3): MacQuarrie. VanRooyen. Bishop.
3-Sep-13	Motion defeated: Approve utilizing $545,000 of current year forecasted surplus and transfer $567,000 from the General Capital Reserve to fund the J class Road paving list as approved at the August 13, 2013 Council.[This was option 1].	For (4): Atwater. Brothers. Winsor. Ennis. Against (7): MacQuarrie. VanRooyen. Raven. Hirtle. Lloyd. Best. Bishop.
3-Sep-13	Motion defeated: Approve option #4.[This was the option "Do not continue with 2013 J class project]	For (4): MacQuarrie. VanRooyen. Brothers. Bishop. Against (7): Raven. Atwater. Hirtle. Lloyd. Best. Winsor. Ennis.
3-Sep-13	Motion referred: On motion of Councillor Raven and Councillor Hirtle, that Municipal Council approve option 3.   Motion approved: Refer the discussion of option three and any other options to a meeting no later than the middle of October.   Option 3 outlined a flexible cost recovery: "approve utilizing $312,000 of the forecasted surplus to fund the J Class Road paving list as approved at the August 13, 2013 Council. Direct staff to draft a by-law for first reading which would allow the Municipality to recoup the remaining Municipal cost of $800,000, regarding the 2013 J Class Paving Project, without the requirement for a successful petition.   Option 2 was to "direct staff to draft a bylaw for first reading which would allow the Municipality to recover the Municipal cost portion of the 2013 J Class Paving Project, without the requirement for a successful petition.	For (8): Raven. Hirtle. Lloyd. Best. Winsor. Ennis. Brothers. VanRooyen.   Against (3): MacQuarrie.  Atwater. Bishop.
15-Oct-13	Motion approved: Refer this item to the CAO until Council has the answers to Councillor Raven’s questions, to come back to Council at the November Committee of the Whole.	Against (5). Atwater. Brothers. Lloyd. Best. Ennis.   For (6). MacQuarrie. VanRooyen. Raven. Hirtle. Bishop. Winsor.
15-Oct-13	Motion approved: Receive the J-Class Roads petition. [from Kingston].	For (10). MacQuarrie. VanRooyen. Raven. Hirtle. Brothers. Lloyd. Best. Bishop. Winsor. Ennis. Abstain or missed (1): Atwater.
12-Nov-13	Not motioned.  Set a Special Council Meeting to discuss J Class Roads. Tom MacEwan commented that a Special Council or Special Committee of the Whole meeting could be held to discuss J Class Roads.   Council decided to discuss J Class Roads at the beginning of the December 3, 2013 Council meeting before the Planning items.
3-Dec-13	Motion approved: Fund costs associated with the 2013 J Class Road Paving Project entirely ($1.2 million) from the reserves identified by Staff.	For (6): Ennis. Best. Lloyd. Atwater. Hirtle. Brothers. Against (4): Bishop. Raven. VanRooyen. MacQuarrie. Absent (1): Winsor

While much has been circulated about By-Law #81… And significant time was given to its discussion on September 3, it is important to note that none of the roads in the 2013 project are governed by By-Law #81.

So that's it folks.  I have tried to very diligently present the facts as presented and studied.  Please do not hesitate to be in touch if you have questions.