In addition, the Province of Ontario enacted a new Municipal Act in 2001 which came into force on January 1, 2003.  As such, the legislative authority cited in By-law No. 95-9 is no longer in effect.  By-law No. 2011-24 cites the current legislative authority under the Municipal Act, Section 270, under which a municipality shall adopt and maintain policies with respect to the sale and other disposition of land.

There are two notable differences between the two by-laws - shown below in bold face.  By-law No. 95-9 required: "THAT Notice to the public of the proposed sale shall be given at least 10 days (including holidays) prior to the disposal of real property by posting a notice on the subject property or at a nearby location chosen by the Clerk or his/her delegate.  THAT the Council may direct by resolution that the notice to the public be given by publication in a newspaper having general circulation in the municipality."

Compared to the By-law 2011-24 requirement that: ". . . the Clerk shall give notice to the public by publishing a notice of the intended sale of the Surplus Land at least once in a newspaper having general circulation in the Township and with notice to be posted on the Township's website under Public Notices; The notice shall be given at least fourteen (14) days prior to the Council meeting which includes this item on the agenda . . ."

The second difference is that Clause 10 of By-law 95-9 directed that surplus real property shall not be directly or indirectly sold to employees of the township, reeve, councillors or their immediate families.  This clause does not appear in By-law 2011-24, however, By-law No. 2010-11 establishing a code of conduct for Councillors, Officers and employees states: "4.07.3 No Member of Council, Public Office Holder, and/or Employee shall bid on nor receive any Township Property that has been offered for sale."

CORPORATION OF THE TOWNSHIP OF MCKELLAR

WHEREAS Section 270 of the Municipal Act, 2001, as amended, requires Municipalities to adopt and maintain policies with respect to the sale and other disposition of land;

NOW THEREFORE the Council of the Corporation of the Township of McKellar hereby enacts as follows:

1. TITLE

This by-law may be cited as the "Sale of Real Property By-law".

2. DEFINITIONS:

a) "Act" means the Municipal Act, S.O. 2001 as amended from time to time;

b) "Appraisal" means a written opinion as to the amount that the real property might be expected to realize if sold in the open market by a willing seller to a willing buyer;

c) "Clerk" means the Clerk of the Township;

d) "Council" means the Council of the Township;

e) "Land" means lands owned by the Township, whether vacant or not, or any other proprietary interest in lands owned by the Township, and, without limiting the generality of the foregoing, includes easements, rights-of-way, leaseholds exceeding twenty-one (21) years, and an interest in lands under an agreement of purchase and sale;

f) "Sale" means the sale or other disposal of Surplus Land by the Township under this By-law and includes a lease of 21 years or longer;

g) "Surplus Land" means any Land declared surplus under Section 3.a) of this By-law;

h) "Township" means the Corporation of the Township of McKellar.

3. SURPLUS LANDS

a) Prior to the disposal of any land, Council shall, by resolution passed at a meeting open to the public, declare the land to be surplus to the needs of the municipality and in the same or subsequent resolution or by-law may proceed to sell such Land in accordance with the procedures set out in this By-law, as applicable.

4. APPRAISALS

a) Prior to selling any land and where there is no exemption under this by-law, Council shall obtain at least one appraisal of the fair market value of the land from an independent qualified appraiser, or from a real estate agent, firm or broker.

b) The Clerk or designate of the Township shall be and is hereby authorized, directed and empowered to obtain all such appraisals as may be required.

c) Any appraisals obtained shall be used solely as a guide and shall not be determinative of the terms or price upon which Council may sell any particular piece of land. Without limiting the generality of the foregoing, other factors including history of the land or related properties may be determinative.

d) Notwithstanding Section 4a) above, the Township shall not be required to obtain an appraisal with respect to the sale of those classes of land exempted from the requirements of this By-law pursuant to Section 7 of this By-law. However, Council may, in its discretion, determine that an appraisal is necessary for such excluded land.

5. NOTICE

Unless otherwise directed by Council, Public Notice shall be given as follows:

a) Where the land has been declared surplus and the intended manner or process by which the sale of land will be carried out has been approved, the Clerk shall give notice to the public by publishing a notice of the intended sale of the Surplus Land at least once in a newspaper having general circulation in the Township and with notice to be posted on the Township's website under Public Notices;

b) The notice shall be given at least fourteen (14) days prior to the Council meeting which includes this item on the agenda and shall specify that anyone wishing to comment on the proposed sale may do so by delivering such comment in writing to the Clerk at the Township Office. The final date for submitting such comments shall be on or before the subject matter is to be considered by Council. Any comments received shall be considered by Council which in its sole discretion shall decide if any further action shall be taken on same.

c) If a final decision is not made at the Council meeting specified in a notice given under this By-law and Council refers consideration of the matter to a future Council meeting for discussion, no further notice is required provided that a public statement was made of the Township's intent to continue its deliberations on the matter at a future meeting. On such specified date, notice shall be deemed to have been sufficiently given to continue the public meeting or consideration and pass the proposed by-law.

6. METHOD OF SALE

6.1 Sale by Public Tender

Should Council determine to sell the Surplus Land by public tender the following shall apply:

a) Costs incurred or anticipated for sale of the Surplus Land such as legal fees, survey fees, appraisal fees, encumbrances, advertising, administrative fees and improvements shall be established;

b) An estimated bid price shall be established which shall not be less than the appraised value plus the additional costs referred to in Section 6.1a) above. Notwithstanding the foregoing, Council may accept an amount less than the estimated bid amount;

c) The tender documents shall be delivered to the Clerk by the date specified therein; and

d) Any tender otherwise acceptable to the Township shall be submitted to Council for approval of the sale price. The highest or any tender shall not necessarily be accepted.

6.2 Sale by Real Estate Firm or Broker

Should Council determine to engage a real estate firm or broker to sell the Surplus Land, the following applies:

a) Costs incurred or anticipated for sale of the Surplus Land such as legal fees, survey fees, appraisal fees, encumbrances, advertising, administrative fees and improvements shall be established;

b) A listing price shall be established which shall not be less than the appraised value plus the additional costs referred to in Section 6.2a) above;

c) The Reeve and Clerk (or designate) shall be authorized to sign the listing agreement or agreement of purchase and sale;

d) The offers to purchase the surplus land shall be submitted to the Clerk on a standard offer to purchase form or form drafted by a lawyer and shall provide for an irrevocable period of at least twenty-one (21) days;

e) The Township may make a counter offer subject to Council approving the sale price; and

f) All offers otherwise acceptable to the Township shall be submitted to Council for approval of the sale price.

6.3 Direct Sale to a Landowner

Should Council determine to sell the Surplus Land directly to a landowner, (other than a mortgagee or chargee) who abuts the Surplus Land or an owner of other land in close proximity (other than a mortgagee or chargee) who claims legal interest in the property such as, but not limited to: an easement, a right-of-way, possessory title or a restrictive covenant, the following shall apply:

a) Costs incurred or anticipated for sale of the Surplus Land such as legal fees, survey fees, appraisal fees, encumbrances, advertising, administrative fees and improvements shall be established;

b) An estimated sale price shall be established which shall not be less than the appraised value, if an appraisal is required, plus the additional costs referred to in Section 6.3a) above. Notwithstanding the foregoing, Council may accept an amount less or higher than the estimated sale price;

c) In the event Section 7 applies to the Surplus Land and no appraisal is obtained, the estimated sale price shall not be less than the referred to cost in Section 6.3a) above; and

d) All agreements otherwise acceptable to the Township shall be submitted to Council for approval of the sale price.

6.4 Direct Sale to the Public

Should Council determine to sell the Surplus Land directly to the public, the following shall apply:

a) Costs incurred or anticipated for sale of the Surplus Land such as legal fees, survey fees, appraisal fees, encumbrances, advertising, administrative fees and improvements shall be established;

b) An estimated sale price shall be established which shall not be less than the appraised value plus the additional costs referred to in Section 6.4a) above. Notwithstanding the foregoing, Council may accept an amount less or higher than the estimated sale price;

c) The Reeve and Clerk (or designate) shall be authorized to sign the agreement of purchase and sale;

d) The Township may make a counter offer subject to Council approving the sale price; and

d) All agreements otherwise acceptable to the Township shall be submitted to Council for approval of the sale price.

7. EXEMPTIONS

This By-law shall apply to all classes of land owned by the Municipality, save and except the following exemptions:

a) Land 0.3 metres or less in width acquired in connection with an approval or decision under the Planning Act;

b) Highways, roads and road allowances if sold to an owner(s) of land abutting the closed highway and the sale would not impact on the access rights for any other landowner(s);

c) Easements granted to public utilities, cable or telephone companies;

d) Disposals conducted in connection with a Planning Act application or approval which disposal may be addressed and dealt with in a consent agreement, a subdivision agreement or site plan agreement;

e) Land sold to public bodies including a municipality, local boards including a school board and conservation authority and the Crown in right of Ontario or Canada and their agencies;

f) Sale of land under Part XI of the Municipal Act, 2001 - Tax Arrears;

g) Sale of lands under Section 106, 107, 108 and 110 of the Municipal Act, 2001

h) Land that does not have direct access to a highway if sold to the owner of land directly abutting that land;

i) Land repurchased by an owner in accordance with Section 42 of the Expropriations Act;

j) Any Land that is exempt by Regulation made by the Minister of Municipal Affairs and Housing.

k) Notwithstanding the above exemptions, Council may direct that any class of Land be sold in accordance with the requirements of this By-law.

8. REVIEW

a) The manner in which the municipality carries out the sale of its land, if consistent with this by-law, is not open to review by any court if the municipality may lawfully sell the land, the purchaser may lawfully buy the land and if the municipality acted in good faith.

9. REPEAL

a) By-law No. 95-9 as amended, and any other by-laws not consistent with this by-law are hereby repealed in their entirety.

10. EFFECTIVE DATE

a) That this by-law shall come into force and take effect upon final passing thereof.

READ a FIRST and SECOND time this 7th day of November, 2011

READ a THIRD time and PASSED in OPEN COUNCIL this 7th day of November, 2011.

BY-LAW NO. 95-9

WHEREAS Section 193(2) of the Municipal Act R.S.O. 1990,

Chapter M.45, as amended, requires a Council of a municipality to pass a by-law to establish procedures governing the sale of real property;

NOW THEREFORE the Council of the Corporation of the Township of McKellar hereby enacts as follows:

1. THAT where made applicable by Section 193 of the Municipal Act this by-law shall apply to the sale of real property by the Corporation including a lease of 21 years or longer.
2. THAT prior to the disposal of real property the Council shall by resolution declare the property to be surplus.
3. THAT prior to the disposal of real property and where there is no exemption under the regulations, the Councilshall obtain at least one appraisal of the fair market value of the real property.
4. THAT the form of appraisal shall be an "Opinion of Value from a Realtor."
5. THAT Council may direct by resolution that the appraisal shall be conducted by an independent qualified appraiser who is a registered member in good standing of the Appraisal Institute of Canada.
6. THAT notice to the public of the proposed sale shall be given at least 10 days, including holidays, prior to the disposal of real property by posting a notice on the subject property or at a nearby location chosen by the Clerk or his/her delegate.
7. THAT the Council may direct by resolution that the notice to the public be given by publication in a newspaper having general circulation in the municipality.
8. THAT the sale of surplus real property shall be by public tender which shall be advertised in a newspaper having general circulation in the municipality. The highest or any tender shall not necessarily be accepted.
9. (Amended February 2^nd, 1998) THAT the purchaser shall be responsible for all costs incurred or required to dispose of the real property including legal, survey, appraisal, encumbrances, advertising, improvements, administrative, and so on.
10. THAT surplus real property shall not be directly or indirectly sold to: a) an employee of the Township of McKellar; b) the Reeve or member of Council for the Township of McKellar; c) the immediate family of the above. Immediate family shall be defined as: spouse, brother, sister, son, daughter, mother or father.
11. THAT the fee for issuing a "Certificate of Compliance" pursuant to the Act shall be $25.00.
12. (Amended February 2^nd, 1998) THAT this by-law shall apply to all classes of land owned by the Municipality, save and except: a) classes of land numbered 1(1), 1(2), 1(4), 1(5), 1(8) and 1(9) described in Ontario Regulation 815/94, and b) classes of land described under Section 210.1 of the Municipal Act, and c) surplus land acquired for road widening.  Council shall determine the most appropriate method, in the best interests of the Municipality, to dispose of the real property noted in paragraph a), b) and c) above.
13. BY-LAW No. 89-12 is hereby repealed.

READ a FIRST and SECOND time this 5^th day of June, 1995.

Signed by:      David Moore, Reeve       Shawn Boggs, Clerk

READ a THIRD time and PASSED in OPEN COUNCIL this 5^th day of June, 1995.

Signed by:      David Moore, Reeve       Shawn Boggs, Clerk