The Ontario Divisional Court recently weighed in on the authority of the Ontario Municipal Board to set parkland dedication rates. Nordheimer, J. was critical of a January 15, 2015 Board decision that approved a 25% overall cap on parkland dedication for residential projects. This limit is neither the 5% permitted by subsection 42(1) of the Planning Act, nor the alternative rate of one hectare per 300 dwelling units set out in subsection 42(3). Nordheimer, J. considered the negative effect of a higher parkland dedication rate on high-density residential development, however, he commented that, “no matter how legitimate that concern may be, it does not operate to alter the plain wording of the statute, nor does it serve to provide authority to the OMB to impose conditions where that authority cannot otherwise be found in the plain wording of the statute.”
Nordheimer, J. rejected the characterization of the 25% cap (or any cap) as a matter of policy. The cap is not a general guideline that provides a broad overview of how a municipality can make parkland dedication decisions. Rather, the “imposition of a fixed rate that unnecessarily fetters the discretion of the municipality to make its own decision on the appropriate rate that should apply for the implementation of the alternative requirement within its boundaries.”
The Court remitted the decision back to the Board for determination. Nordheimer, J. expressed the crux of the case in commenting that the Board decision, “…effectively abrogates the role that the Legislature clearly intended municipalities would perform and instead bestows that role onto itself. And in doing so, the OMB finds authority to establish a maximum rate for the alternative requirement that is different from the maximum provided by the Legislature in the statute.”
The respondents have sought leave to appeal the Court’s decision, the outcome of which is anticipated before the end of the year, and will be closely watched by municipalities and the development community.
The decision can be accessed for free here.
In 2012 Halton Region passed a Development Charge By-law that reduced the number of classifications for residential units. Specifically, the By-law eliminated the distinctions between different sizes of apartments and multiple dwellings. According to the Region this was done to make administration of the Development Charge By-law easier. The By-law also introduced a new charge to benefit the Halton Region Conservation Authority.
The Development Charge By-law was appealed by the Hamilton-Halton Home Builders’ Association to the Ontario Municipal Board. The effect of the new by-law, according to the Home Builders, was that smaller apartments and multiples would subsidize larger ones. The Home Builders pointed out that size differentiation exists to account for the differing demands larger and smaller units place on infrastructure as a result of their occupancy rates.
The Ontario Municipal Board sided with the Home Builders, citing the Development Charges Act anti cross-subsidization rule. The rule prevents one use having a lower charge that is made up for by a higher charge on another use. The Board also addressed housing affordability and the impact of the By-law, stating, “Development charges, by their very nature, add to the cost of housing. The home purchaser pays those costs and to assert anything to the contrary is a fiction.”
It was also argued by the Home Builders that the Conservation Authority portion of the development charge was outside the purview of the Development Charges Act. The Board sided with the Home Builders on this issue as well. The Act only allows municipalities or a local board to impose charges. The Board confirmed that conservation authorities simply are not a municipality or local board. The fact that the Region funds much of the work of the Conservation Authority was not enough to overcome the legal reality that conservation authorities are independent bodies.
The Region sought leave to appeal the OMB decision to the Divisional Court, which was granted. On appeal, the decision of the Board was upheld. The Court found that the Board did not commit an error of law, and that its decision was reasonable. The Court further commented that the reasoning of the Board was transparent, justifiable and intelligible.
The Divisional Court Decision is here: http://canlii.ca/t/gs1qz
The Leave to Appeal Judgement is here: http://canlii.ca/t/gmc81
The OMB Decision is here: https://www.omb.gov.on.ca/e-decisions/dc120006-may-05-2015-1.pdf
New legislation intended to curb Strategic Lawsuits Against Public Participation (SLAPPs) was recently put to the test in a decision on a motion allowing a developer to continue its breach of contract case following an OMB hearing. This represents the first reported decision under the Protection of Public Participation Act, 2015 which was passed in November, 2015.
In 1704604 Ontario Ltd. v. Pointes Protection Association et al., representatives of a residents’ group entered into a memorandum of understanding with the would-be developer of a subdivision. The memorandum included a provision that at any hearing before the OMB, the residents’ group would not take the position that the local Conversation Authority, which provided an approval with respect to impacts to an on-site wetland, acted illegally, invalidly, or contrary to their mandate. Despite the contract, the developer alleges, a member of the residents’ group gave evidence before the OMB that the development would result in a loss of wetland and cause significant environmental damage. The Board refused the subdivision application.
Following the OMB hearing, the developer sought damages in Court for the alleged breach of contract. The residents’ group then brought a motion to dismiss the action under the anti-SLAPP legislation. The new provisions allow a Court to dismiss an action if the moving party proves that the lawsuit arises from an expression made by the person that relates to a matter of public interest. The residents’ group successfully met this burden.
The legislation then shifts the burden to the respondent, here the developer, to prove there are grounds to believe that (i) the proceeding has substantial merit, and (ii) the moving party has no valid defence in the proceeding. The responding party must further prove that the harm likely to be suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.
In this case, the developer was able to show that there were grounds to believe that the breach of contract proceeding had substantial merit. Further, since a defence to the breach of contract proceeding had yet to be proffered by the residents’ group, the Court was unable to determine the existence of a valid defence. The judge resolved the test balancing the public interest in favour of the developer.
The judge was critical of the new legislation, commenting, “I was surprised to find this legislation buried in the Courts of Justice Act given the substantive nature of its provisions and the significance of the remedies provided in it. I would have thought it would be stand-alone legislation or part of the legislation to which it is most applicable, such as the Libel and Slander Act”. Also problematic was that there is no definition for the term “a matter of public interest”. Lastly, and most importantly, the Judge commented that the bar that the responding party, here the developer, must meet to save their case from early dismissal is low. In the Judge’s words, “In my view, the threshold for the responding party to meet the test … must be a low one given the significant remedies in Section 137.1 and the protection for litigants to bring legitimate claims before the court.”
On May 18, 2016, the Minister of Municipal Affairs and Housing introduced Bill 204 (Promoting Affordable Housing Act, 2016). The Bill is intended to enable municipalities to use inclusionary zoning. Inclusionary zoning requires development proposals with residential units to include affordable housing units and provide for those units to be maintained as affordable over a period of time. Private-market development would be required to provide below market-rate rental and/or ownership housing. The Bill would result in amendments to six acts, among them the Planning Act and Development Charges Act. If enacted in its current form, the Bill would result in a number of changes. As an overview, the Bill would:
- Require certain municipalities to have inclusionary zoning policies in its official plan and to pass one or more implementing zoning by-laws to give effect to such policies
- Allow any other municipality to include inclusionary zoning policies in its official plan and to pass one or more zoning by-laws to give effect to the policies
- Require that certain matters be addressed in an inclusionary zoning by-law, such as:
- Rates of provision for affordable housing units
- Period of time units must remain affordable
- Requirements and standards that affordable housing units must meet
- Provision of measures and incentives as specified by regulation
- Setting of prices for sale or lease according to regulation or municipal by-law
- Requirements for owner of lands, building or structures to be development or redeveloped under the by-law enter into agreements with the municipality
- Allow municipalities to choose to provide incentives where they are not otherwise required
- Restrict municipalities from passing a section 37 by-law with respect to any land, building or structure that is subject to inclusionary zoning policies and an implementing by-law, unless permitted by regulation
- Where a municipality passes an inclusionary zoning by-law, the Bill does not authorize the municipality to:
- Accept payment in lieu of affordable housing units
- Accept off-site provision of affordable housing units
- Permit registration of implementing agreements on title
- Require municipalities to establish a procedure for ensuing that inclusionary zoning units remain affordable over time
- Prevent a Committee of Adjustment from authorizing minor variances from inclusionary zoning provisions
- Exempt land being leased for a period of between 21 and 99 years for the purpose of constructing or erecting a building or project that will contain affordable housing units from subdivision and part-lot control restrictions
- Require affordable housing units to be shown on draft plans of subdivision if proposed, including the shape and dimensions of each proposed affordable housing unit and the approximate location in relation to other proposed residential units
- Allow municipalities to impose, as a condition of approval, shared facilities agreements that are satisfactory to the approval authority where proposed to be used in a condominium with affordable housing units
- Site plan drawings must display the exterior access to each building that will contain affordable housing units if both the official plan and the by-law designating the site plan control area contain exterior access requirements or standards related to inclusionary zoning
- Prohibit appeals on decisions, implementing by-laws and conditions relating to official plan policies that authorize the use of a second residential unit or policies that authorize inclusionary zoning, except by the Minster.
- Allow the Minister to set maximum processing fees for planning applications including affordable housing units, including nil
- Allow regulations made under the proposed Act to be retroactive to May 18, 2016
- Allow the Minister to make regulations regarding the provision of loading and parking facilities (including no minimum parking requirement for specified lands, buildings or structures)
Development Charges Act
- Prohibit municipalities from imposing development charges when a second dwelling unit is created in prescribed classes of proposed new residential buildings.
On May 10, 2016 the province unveiled proposed versions of the four major provincial plans (details at the link here). A co-ordinated review of the Growth Plan for the Greater Golden Horseshoe, the Greenbelt Plan, the Oak Ridges Moraine Conservation Plan and the Niagara Escarpment Plan began in February 2015.
The proposed minimum intensification target in the Growth Plan would increase from 40% to 60% and the minimum density target for “designated greenfield areas” would increase from 50 to 80 residents and jobs per hectare. In some cases, outer ring municipalities may request an alternative target. In the Greenbelt Plan update, only four areas are proposed for removal from the Greenbelt Protected Countryside. Additions to the Greenbelt Protected Countryside are proposed in Hamilton and Niagara Region. A new Urban River Valleys designation is introduced to the Greenbelt Plan to apply to certain publically owned lands.
The themes that animated the review are: (1) building complete communities; (2) supporting agriculture; (3) protecting natural heritage and water; (4) growing the Greenbelt; (5) addressing climate change; (6) integrating infrastructure; (7) improving plan implementation and (8) measuring performance, promoting awareness and increasing engagement.
Each proposed plan has been posted on the Environmental Registry for public comment. For a link to the Environmental Registry, click here. The registry numbers are as follows:
- Proposed Growth Plan for the Greater Golden Horseshoe, 2016. Notice #012-7194
- Proposed Greenbelt Plan (2016). Notice #012-7195
- Proposed Oak Ridges Moraine Conservation Plan (2016). Notice #012-7197
- Proposed Niagara Escarpment Plan (2016). Notice #012-7228
- Proposed Amendment to the Greenbelt Area Boundary Regulation. Notice #012-7198
The deadline for comment is September 30, 2016.
Earlier this week DHP sponsored BuzzBuzzHome’s symposium on the future of Toronto. The event was full of an excited group of tech savvy real estate professionals.
The crowd was told that while mixed use is becoming the norm, more creative implementations need flexibility in order to flourish. The panel seemed to agree that there is a disconnect between business demands and the law of city building, an issue DHP addresses daily.
In order to improve mixed use development the panel said that there is a need for buildings that are future proof. Future proofing starts with superb design. The idea is that a well-designed building can accommodate a full range of current and future uses.
The challenge going forward is syncing great building design, development acumen, and law to build the best Toronto possible.
The Development Permit System (“DPS”) is a planning tool intended to streamline, expedite and provide flexibility in the planning approval process. Under the DPS, zoning, minor variance and site plan approvals are combined into a single process for one or more areas as designated by a municipality.
In a DPS by-law a municipality can set out permitted “as-of-right” uses and discretionary uses, subject to identified criteria. The DPS also provides flexibility by allowing variations from permitted standards, subject to criteria adopted within the DPS by-law.
Lake of Bays, Carleton Place and Gananoque have implemented a DPS. Council of the City of Brampton has adopted two DPS OPAs and a DPS by-law, all of which are under appeal before the Ontario Municipal Board, (the “OMB”). City of Toronto Council has also adopted a DPS OPA and it too has been appealed to the O.M.B.
On December 1, 2014, Ontario once again tabled legislation targeting litigation brought for the purpose of stifling debate on matters of public interest, known as Strategic Litigation against Public Participation (“SLAPP”).
A SLAPP lawsuit typically involves a defamation claim against an expression made by the defendant that is contrary to the plaintiff’s interests. Proponents of anti-SLAPP legislation say these lawsuits are usually meritless and are brought by wealthy corporate entities against individuals or community groups for the purpose of discouraging public opposition.
It has long been clear that a landowner who grants a right-of-way over his land does not give up the right do what he wants with that land, as long as the use does not interfere with the easement, as granted.
On October 24, 2014, the Ontario Court of Appeal affirmed this principle and provided a helpful overview of the law as it relates to encroachments on rights-of-way.
The case of Weidelich v. de Koning involved a right-of-way running behind a series of six row houses in Toronto. The right-of-way allowed the owners of these houses, known in law as the “dominant owners”, to access their garages. The owners of the house at the entrance to the right-of-way built an addition to their home that encroached upon a part of the right-of-way.
On Sept 15th Pickering Council voted 4-3 to endorse Durham Live, a proposal made by Pickering Developments Inc. Durham Live is a proposal to re-zone vacant land in the Bayly and Church Streets area to a major tourist destination, which may include a variety of 40+ uses including a casino. DHP partner Katarzyna Sliwa, represented Durham Live.
For additional media coverage please see the following links:
“Ajax still questioning massive Pickering casino proposal” – durhamregion.com, Sept 03
“Pickering casino proposal marathon meeting forced to halt at 1 a.m.” – durhamregion.com, Sept 03
“Pickering casino project takes a step forward” – durhamregion.com, Sept 10
“Pickering council approves Durham Live re-zoning: What happens next?” – durhamregion.com, Sept 17