Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 24, 2023
CASE NO(S).: OLT-22-004424
PROCEEDING COMMENCED UNDER subsection 37(17) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: The Building and Land Development Association
Subject: Community Benefits Charge By-law No. 2022-48
Municipality: City of Markham
OLT Case No.: OLT-22-004424
OLT Lead Case No.: OLT-22-004424
Case Name: The Building and Land Development Association v. Markham (City)
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: City of Markham
Request for: Request for Directions
Heard: April 24, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Building Industry and Land Development Association
S. Kagan I. Kagan (in absentia)
City of Markham
J.P. Patterson M. Grant
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS AND SHARYN VINCENT ON APRIL 24, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter is before the Tribunal as a Motion for Settlement (“Motion”) initiated by the City of Markham (“City”) with the concurrence of the Building Industry and Land Development Association (“BILD”) (“Appellant”), relating to the City’s implementation of a Community Benefits Charge By-law No. 2022-48 (“CBC”).
2The matter was appealed under subsection 37(17) of the Planning Act (“Act”) and the Appellant was of the position that the "Value of the Land" definition together with Section 4 applied a greater charge than prescribed by regulation because the CBC by-law failed to exclude all existing pre-development buildings or structures that would remain post development.
3The Affidavit of Service of Notice of the motion was filed with the Tribunal and is marked as Exhibit 1.
SETTLEMENT PROPOSAL
4The Parties established at the hearing that agreement was achieved by proposing that the by-law be brought into alignment with the recent changes introduced through Bill 23, specific to sections 37(17) and 37(32) respectively, of the Act.
5The Motion was supported by an Affidavit sworn April 5, 2023, from Craig Binning, who was qualified to give opinion evidence in the area of Land Economics, with a specialty in CBC by-laws.
6It was the opinion of Mr. Binning that Amending section 4 of the CBC by-law by repealing it and replacing it with the language set out below would make the by-law consistent with s. 37(32) of the Act as amended by Bill 23:
- The amount of the Community Benefits Charge payable is 4% of the Value of the Land that is the subject of the Development or Redevelopment on the day before the first Building Permit is issued in respect of the Development or Redevelopment, multiplied by the ratio of “A” to “B” where,
“A” is the Gross Floor Area of any part of a Building or structure, which part is proposed to be erected or located as part of the Development or Redevelopment, and
“B” is the Gross Floor Area of all Buildings and structures that will be on the land after the Development or Redevelopment. (Bolding omitted)
7Mr. Binning also opined that the proposed amendments to the CBC By-law were appropriate and have regard for matters of provincial interest set out in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020 (“PPS”), and conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2019 as amended in 2020 (the “Growth Plan”), the Official Plan of the Regional Municipality of York 2010 (“Region OP 2010”), the Official Plan of the Regional Municipality of York 2022 (“Region OP 2022”) and the Official Plan of the City of Markham (“City OP”).
8In summary, Mr. Binning recommended that in his opinion, it was appropriate to amend section 4 of the CBC By-Law in order to reflect the wording set out above in paragraph 6.
ANALYSIS AND DISPOSITION
9Based on the agreement between the Parties, also supported by the expert witness testimony of Mr. Binning, the Tribunal concurs with the recommendation that it is appropriate to amend section 4 of the CBC By-law as reflected in the wording set out above in paragraph 6.
10The Tribunal agrees with the witness opinion that the recommended changes are in line with s. 2 of the Act, including but not limited to:
(h) the orderly development of safe and healthy communities;
(h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies;
(i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;
(j) the adequate provision of a full range of housing, including affordable housing;
(l) the protection of the financial and economic well-being of the Province and its municipalities; (q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;
(ii) encourages a sense of place, and
(iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;
11The Tribunal also concurred with the opinion from Mr. Binning which emphasized there was conformity with the GP, the Region OP 2010, the Region OP 2022 and the City OP of which a key element is the creation of vibrant, complete, sustainable communities where people can live, work, play, learn and enjoy a high quality of life.
ORDER
12THE TRIBUNAL ORDERS that the appeal against CBC By-law No. 2022-48 of the City of Markham is allowed in part, and By-law No. 2022-48 is amended in accordance with Attachment 1 to this order. In all other respects, the Board orders that the appeal is dismissed.
“Steven T. Mastoras”
STEVEN T. MASTORAS
MEMBER
“Sharyn Vincent”
SHARYN VINCENT
VICE CHAIR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
Attachment “1”
AMENDED CBC BY-LAW
That section 4 of the CBC By-law be repealed and replaced with the following:
- The amount of the Community Benefits Charge payable is 4% of the Value of the Land that is the subject of the Development or Redevelopment on the day before the first Building Permit is issued in respect of the Development or Redevelopment, multiplied by the ratio of “A” to “B” where,
“A” is the Gross Floor Area of any part of a Building or structure, which part is proposed to be erected or located as part of the Development or Redevelopment, and
“B” is the Gross Floor Area of all Buildings and structures that will be on the land after the Development or Redevelopment (bolding omitted)