Runaround

Council balks at $250,000 for nearly complete boardwalk

The new boardwalk—which is nearly complete at the former Tip of the Bay property in Picton—has run into a roadblock. At the first council meeting of the new year, Council rejected a staff report that would see $250,000 be put towards the reconstruction of the boardwalk along the harbour.

In 2011, the County entered into an agreement with a development group that owned the former Tip of the Bay property, in order to create public access to Picton Harbour through way of an easement that is now registered on title across the shoreline. At that time, the group planned to redevelop the property with condominium townhomes, commercial buildings and a waterfront boardwalk that required some land use planning work to be completed to facilitate the development plans. To fulfill the conditions of the consent application that created the easement, the property owners and the municipality had to establish a Memorandum of Understanding (MOU) that outlined a front-ending agreement where the developer planned to undertake the boardwalk capital project in exchange for $250,000 in development charge credits for use in future developments. Ultimately, the redevelopment of the Tip of the Bay property as proposed did not occur at that time, nor did the reconstruction of the boardwalk as per the MOU. As a result, the benefit of DC credits to the development group was not realized and the outcome of the MOU was not fulfilled.

In 2017 the property ownership changed hands to the current owner, Tenacity Capital PEC Inc., and it began the process of reconstructing the boardwalk to facilitate their marina operations and honour the pre-existing MOU registered on title to the property. The County’s Community and Economic Development Commission and its Picton Harbour task team met with Tenacity to discuss the 2011 MOU. It was determined that the DC credits were of no use to Tenacity as it was not a land development organization. Instead, Tenacity asked for a cash payment of $250,000 to help complete the boardwalk. Staff also drafted a new MOU, which was brought before Council. The installation of a public boardwalk with finger docks began last summer and the construction of the boardwalk is expected to be complete and operational in early spring 2022.

The staff report suggested legal advice was sought on whether the benefit could be withheld, and since the original MOU does not address turnover in property owners, legally, the obligation to provide these funds to the new property owner could be questioned. The municipality also has already received the easement of access to the boardwalk on title, and while not providing the funds would result in upfront financial savings, the report states it does not eliminate the municipality’s liability for the property and would likely result in the municipality having to assume the ongoing repairs, maintenance and long-term capital replacement costs associated with the boardwalk.

Councillor Janice Maynard questioned where the money would be coming from, as Council had already approved its 2022 capital budget. CAO Marcia Wallace explained that this project wasn’t itemized in the budget because staff hadn’t had the opportunity to bring the report forward. “The bulk of this is coming from DCs, but there is about $79,000 that would be from the tax levy, and would come out of the Capital Sustainability Reserve and is within the CAO envelope in terms of ability to allocate,” said Wallace.

Ongoing maintenance and who was responsible was a factor for Councillor Ernie Margetson. He wanted to confirm that the maintenance goes on in perpetuity by the current and any future owners.

Interim Director of Community Development and Strategic Initiatives Emily Cowan said that new MOU covers that well.

“In the new MOU, it does mention that the owner and any of its successors will be responsible for maintenance and capital upkeep.” she said.

A recorded vote was called. Councillors Roberts, St-Jean, Bailey, Harper, MacNaughton and Mayor Ferguson were in favour. Councillors Bolik, Forrester, Margetson, Maynard, McMahon, Nieman, and Prinzen were opposed. The vote was lost 7-6.

After the vote, Councillor Phil St-Jean asked where this left Council and the municipality, as the boardwalk is nearly complete. “What implications does this have on the current MOU?” he asked.

CAO Wallace confirmed that the relationship with Tenacity could be damaged and legal proceedings could follow. “As the report indicated, there is liability on the part of the municipality due to the MOU. With legal advice, this was our best direction in terms of how to address that. If the decision tonight is not to move forward then I think we are going to have to see what the owners of this property…what their next steps might be.”