Precedent set

Shawn Hayward
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Town's case against shopping centre strengthened by court ruling in Gander

A ruling in supreme court could have repercussions on the dispute over who should bear the cost of repaving the Clarenville Shopping Centre parking lot.

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The Town of Clarenville owns the parking lot land, while customers of businesses in the shopping centre use the lot.

The Town of Gander has a similar situation, with a publically-owned parking lot being used by private business. The town began charging the business owners for the cost of snow clearing and repair work on the lot, and some owners responded by taking the town to court.

In a decision dated April 3, Justice James P. Adams of the Provincial Supreme Court ruled the Town of Gander had legal right to charge fees for the lot's upkeep.

"The Town clears snow from the parking lots and service roads and maintains them as necessary, including repaving, and charges the defendants for the cost of doing so proportionately according to the frontage the defendants have on the parking lots and service roads," the judge stated in his ruling.

"In respect of the parking lots, the Town is authorized to impose these charges either under section 149(1) of the (Municipalities) Act as a local improvement assessment or under section 149(2) as a service levy. It is not authorized to impose the charges in respect of the parking lots as a user fee pursuant to section 169."

In February the Packet reported several shopping centre business owners were willing to pay for parking lot repaving, but others weren't. With no consensus among the owners, the town didn't want to go ahead with the work.

Mayor Frazer Russell says the court ruling gives the town precedent if it choses to impose fees against the will of some business owners.

"It certainly gives some strength to our case in terms of the legality of proceeding along those lines," he says. "If there are, in fact, several people who aren't on side, they'll kind of have to come on side, because it appears the town has some legal grounds to do this."

Bob Hiscock, the chief administrative officer for Clarenville, says he's been reading the court's decision and isn't surprised by the ruling.

"That is a process that we would have taken anyway. Had we gone in to do it, we would have billed him back through a local improvement charge or levy," he says.

The town has been trying to arrange a meeting with shopping centre owners but some of them have been out of province. Russell says if the lot is to be repaved this year, they'll have to act fast, because the construction season has already begun and the town would need to get the engineering work done quickly if the work is to be done before the Fall.

While the town might be able to recover costs from business owners over time, there is still a problem of how to pay for the up-front costs. The town has a limited capital works budget, and repaving the lot would come at the expense of work to public roads.

Russell says the town will repair potholes but he's unsure whether it can resurface the lot this summer.

"(The lot) is in deplorable condition, and of course we'll be at our own streets as soon as possible. We'll have to divert attention to that to get these holes patched up as best we can until something takes place here, but it will be only a patchwork situation until we get a more long-term solution."

"We're certainly not dragging our heels on this; we're good to go, but there are a lot of ducks that need to be lined up," he says.

Geographic location: Gander, Clarenville

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