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2012-01-30_Supplemental Agenda Packet--Dossier de l'ordre du jour supplémentaireCity of Saint John Common Council Meeting Monday, January 30, 2012 Location: Common Council Chamber Supplemental to Agenda 13.2 Committee of the Whole: Congestion/Commuter Tax/Charge 13.3 Committee of the Whole: Late Submission Respecting the Proposed Municipal Plan 13.4 Committee of the Whole: Stop Up and Close Saddlebrook Court 13.5 Committee of the Whole: Proposed Settlement, Rothesay Avenue Reconstruction City of Saint John Seance du conseil communal Le Lundi 30 janvier, 2012 Lieu: Salle du conseil communal Ordre du jour supplementaire 13.2 Comite plenier: La Congestion Impot /Frais de banlieue 13.3 Comite plenier: Soumission en retard respectant le projet du plan d'amenagement. 13.4 Comite plenier: Fermeture et barrage de trongons de la cour Saddlebrook 13.5 Comite plenier: Le regement propose, Reconstruction de Favenue Rothesay Z City Solicitors Office Bureau de Pavocat municipal The City of saint John January 9, 2012 Committee of the Whole of Common Council of The City of Saint John Mayor Court and Committee Members: Re: Congestion /Commuter Tax/Charge Council at its open session meeting of January 3, 2012 adopted the following resolution: RESOLVED that the City Manager and the City Solicitor be directed to investigate and explore possible new streams of revenue such as, but not limited to, establishing a congestion tax; and further that possible amendments to parking rates for the new parking garage be considered. The prospect of such an arrangement has garnered considerable media attention. Consequently, I am writing this opinion prior to the presentation of any more comprehensive report on possible revenue sources, in order to minimize the unproductive expenditure of time and energy by those concerned. During this Council's term I might have had occasion to discuss the fact that municipalities in Canada are not a constitutionally recognized order of government and that consequently, the only power and authority enjoyed by them is that delegated by their respective Provincial Legislatures. The Municipalities Act in New Brunswick is generally the first statute to which reference is had respecting the operations of a municipality in this jurisdiction. There is, in my opinion, neither expressed nor implied authority to be found in the Municipalities Act enabling a municipality in this province to impose a tax or make a charge upon non - residents of a municipality entering the territory of that municipality. Nor am I aware of any other statutory provision which would confer such authority. By contrast, a municipality's authority to impose a tax or to levy a fee is provided with respect to a number of other activities: for example, - authority to charge a fee for the use of recreational facilities or 44)—,participation in recreational programs is addressed in section 11(1)(d.1, SAINT JOHN P.O. Box 1971 Saint John, NB Canada E2L 4L1 I www.saintjohn.ca I C.P. 1971 Saint John, N. -B. Canada E2L 4L1 2 Common Council January 9 , 2010 d.2) of the Municipalities Act; authority to charge a fee for garbage collection and disposal is stipulated in section 7.1(2, 3) of the Municipalities Act; parking metering and the fees related thereto are dealt with in section 164 of the Municipalities Act; building permit fees are authorized to be included in a by -law pursuant to section 59(2)(b) of the Community Planning Act as are fees associated with a rezoning application in section 34(3)0) of that Act; and authority to impose fees attendant upon the submission for approval of a tentative subdivision plan is dealt with at section 42(3) of the Community Planning Act. And our authority to impose a property tax is founded on section 87 of the Municipalities Act and section 5(2)(a) of the Real Property Tax Act. The nature of a public street or road is also relevant in considering the proposed Congestion /Commuter Tax/Charge. That public dimension is not restricted to those members of the public residing within a particular municipality. I believe this is abundantly clear from the historical experience and reality of municipalities in this province. Therefore the likelihood of success for the arguing of the contrary is slim to be generous. This recognition might give rise to the theoretical or novel concept of closing all the public streets within the City pursuant to section 186 of the Municipalities Act and then to give permission or license to the residents (defined as the municipality would choose) to use those private streets. That is not an idea to which I have given serious examination from a legal perspective and might well have serious legal weaknesses as possibly being impracticable in any event. The result is that the imposition by the City of a Congestion /Commuter Tax/Charge would first require the Provincial Legislature to enact legislation to enable the City to do so. Respectfully Submitted, /Z, - , t,,,i �/, c Z -/V John L. Nugent City Solicitor X356 A m n City Solicitors Office Bureau de Pavocat municipal The city of saWt jo4ganuary 12, 2012 Committee of the Whole of Common Council of The City of Saint John Mayor Court and Committee Members: Re: Late Submission Respecting the Proposed Municipal Plan By -Law The Common Clerk's Office has advised me that it received on January 10, 2012 a written submission with respect to the proposed Municipal Plan By -Law. As you know, the hearing in this matter has concluded and consequently in order to avoid establishing a basis upon which a legal challenge to the by -law's adoption could be made, it is my advice that members of Council refrain from reading this submission and discard it. If the author of the submission wishes to pursue with Council amendment of the proposed Municipal Plan By -Law should it be enacted, then he may do so in the normal course following that enactment: i.e. by submitting an application for amendment to the by -law. At the open session of Council meeting of January 16, 2012, the following motion should be adopted: "RESOLVED that the minutes of the January 16, 2012 open session meeting of Common Council confirm that members of Common Council received and have followed written advice from the City's Solicitor that they not read, and discard the submission from Mr. Ian McQueen, received by the Common Clerk's Office on January 10, 2012, respecting the proposed Municipal Plan By -Law, such advice having been delivered to the members of Council prior to their receiving Mr. McQueen's submission." Respectfully Submitted, John . Nugent City Solicitor JLN /brn SAINT JOHN P.O. Box 1971 Saint John, NB Canada E2L 4L7 I www.saintjohn.ca C.P. 1971 Saint John, N. -B. Canada E2L 4Ll ---� City Hall 15 Market Square January 30, 2012 P.O. Box 1971 Saint John New Brunswick Canada E2L 4L1 :i'1A Common Council of the City of Saint John City of Saint John His Worship Mayor Court, Deputy Mayor Chase and Councillors, Subject: Committee of the Whole: Stop Up and Close Saddlebrook Court The Committee of the Whole, having met on January 30, 2012, directed the Clerk to add the following proposed resolution to Council's open session agenda: "RESOLVED that the Public Hearing for the consideration of the passing of a By- law to Stop -up and Close a public street known as Saddlebrook Court, in its entirety, be set for Monday, February 27, 2012 at 7:00 pm in the Council Chamber; and, That Common Council authorize the publishing of a notice of the intention to consider passing of such By -law. " Question being taken, the motion was carried. Respectfully Submitted, Jonathan Taylor Assistant Common Clerk City Hall P.O. Box 1971 15 Market Square Saint John New Brunswick Canada E2L 4L1 January 30, 2012 � 110 Common Council of the City of Saint John City of Saint John His Worship Mayor Court, Deputy Mayor Chase and Councillors, Subject: Committee of the Whole: Proposed Settlement, Rothesay Avenue Reconstruction The Committee of the Whole, having met on January 30, 2012, directed the Clerk to add the following proposed resolution to Council's open session agenda: "RESOLVED that the amount of $100,000.00, all inclusive, be accepted for the settlement of the legal action against Debly Enterprises Limited, ING Insurance Company of Canada, Ray's Paving Ltd. and ADI Limited in full satisfaction of the City's entitlement pursuant to Contract 2003 -1, Rothesay Avenue (McLean Street to Sunnyside Avenue), street reconstruction, in exchange for a discontinuance of the action and that the Mayor and Common Clerk be authorized to sign any Releases or any other required documents." Question being taken, the motion was carried. Respectfully Submitted, Jonathan Taylor Assistant Common Clerk