Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 27, 2024
CASE NO(S).: OLT-22-004443
PROCEEDING COMMENCED UNDER subsection 37(17) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: The Building Industry and Land Development Association (BILD)
Appellant: Oxford Properties Group
Subject: Community Benefits Charge By-law No. 99-22
Municipality: City of Richmond Hill
OLT Case No.: OLT-22-004443
OLT Lead Case No.: OLT-22-004443
OLT Case Name: Oxford Properties Group v. Richmond Hill (City)
Heard: September 18, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| City of Richmond Hill ("City") | Meredith Baker Jennifer Meader (in absentia) |
| The Building Industry and Land Development Association (BILD) ("BILD") | Ira Kagan |
| Hillcrest Holdings Inc. and Montez Hillcrest Inc. (known as Oxford Properties Group) ("Oxford") | David Bronskill |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. L. DIONNE ON SEPTEMBER 18, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal are appeals of the City’s Community Benefits Charge By-law No. 99-22 (“By-law”), filed by BILD and Oxford.
2City Council passed the By-law on July 6, 2022.
3BILD’s appeal was filed on August 10, 2022. As set out in its Notice of Appeal, BILD’s reason for its appeal is a concern that under the By-law (as passed by the City), the “Value of Land” definition, together with Section 5 therein, would result in too great a charge than what is warranted. More specifically because the By-law:
Fails to exclude all existing pre-development buildings or structures which will remain post-development. BILD’s position is that the 4% charge should only apply to the new development or re-development, and not to the value of existing buildings and structures; and
Applies the 4% charge in circumstances where the re-development on its own is less than 10 residential units and /or less than five storeys. Section 5 would apply the 4% in cases where less than five storeys are added to an existing building, but where the resulting building, post redevelopment, is five storeys or greater. BILD’s position is that the 4% charge should only apply where the addition itself is five storeys or greater and contains at least 10 residential units.
4Oxford filed its appeal on August 11, 2022. As set out in Oxford’s Notice of Appeal, the reasons for its appeal relate primarily to the definitions of “Value of Land” and “Development”, and the potential application of the By-law to the redevelopment of large sites. More specifically, there is a concern that the By-law may be interpreted to result in an assessment of the land value to include the entire property and not just the portion of a property which is subject to an application for development/redevelopment.
5The Tribunal held a Hearing in accordance with s. 37(21) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”), on September 18, 2024. This was a first hearing event on the appeals, and it was scheduled upon receipt of a request of the Statutory Parties that they had reached a settlement in respect of all issues between them.
6The Tribunal marked the Affidavit of Service as Exhibit 1, confirming that proper notice of the Hearing was served. No requests for status were received by the Tribunal.
7In accordance with Rule 12.1 of the Tribunal’s Rules of Practice and Procedure, the Hearing was converted to a Hearing on the merits of the settlement.
THE SETTLEMENT
8On November 28, 2022, Bill 23, More Homes Built Faster Act, 2022 (“Bill 23”) received Royal Assent. This legislation made significant changes to s. 37 of the Act. As a result, the By-law was modified to bring it into conformity with Bill 23, and those changes also addressed the Appellants’ reasons for appeal. It is the modified version of the By-law that is before the Tribunal in the Hearing.
9The following documents were filed with the Tribunal and marked as follows:
- Exhibit 2 – Affidavit of Gary Scandlan, dated September 5, 2024.
- Exhibit 3 – Affidavit of Maria Flores, dated September 5, 2024.
- Exhibit 4 – Tracked Changes version of By-law No. 99-22.
10Gary Scandlan was qualified and called on the consent of all Parties to provide viva voce evidence in land economics and municipal finance. In his testimony, he provided an overview of the changes to the By-law found in Exhibit 2 (Exhibit “C” of his Affidavit), with the aid of Exhibit 4.
11In summary, it was his opinion evidence that the key change in Bill 23 was to provide clarity on the application of Community Benefits Charge (“CBC”) to development done in stages, and that with respect to redevelopment, the existing square footage of development on the land would be assumed to be a redevelopment credit in the calculation of the CBC. Mr. Scandlan had reviewed the Affidavit of Maria Flores, and he agreed that the By-law complies with the Act, as amended by Bill 23, and that the By-law is supportable from a land economics perspective.
12The Tribunal received the Affidavit of Maria Flores, a registered professional planner, and qualified her on consent of the Parties to provide expert opinion in land use planning.
13It was Ms. Flores’ written opinion evidence that:
- The By-law provides a tool for the City to help pay for the cost of infrastructure, services and facilities associated with development or redevelopment, therefore having regard to matters of provincial interest under ss. 2(f) and 2(i) of the Act;
- Building strong, healthy communities is an underlying principle of the Provincial Policy Statement, 2020 (“PPS 2020”), and that the By-law is supported by policies in sections 1.1.1 e), g), 1.5, and 1.6, which together promote and ensure that land use planning / growth management is in alignment with the planning and delivery of infrastructure and public service facilities, so as to ensure that any such necessary infrastructure or facilities are financially viable and available to meet the current and projected needs of the City.
- In recognition of its place within the Greater Golden Horseshoe and the policies of the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), the City has planned for growth by way of minimum intensification and density targets to direct the majority of its growth to strategic growth areas, its intensification centres and corridors, which are serviced by rapid transit and nearby public service amenities. The City’s CBC Strategy and By-law applies an allocation of costs to eligible high-density growth, in accordance with regulatory requirements, and the majority of medium and high-density development (typically more than five storeys and containing more than 10 units) is to be located within these centres and corridors. The integration of the City’s land use planning for its strategic growth areas, as set out in the City’s Official Plan (“COP”), combined with the planning of infrastructure investments identified in the City’s master plans, forms the basis of financial planning for capital projects that support those strategic growth areas – and as a basis for the City’s CBC Strategy and By-law as a revenue tool.
- The COP is currently being updated, contains policies such as section 5.5 with respect to Bonusing By-laws in reference to the previous density bonusing framework permitted under s. 37 of the Act, and includes more generic policies that refer to the type of community benefits similar to those included in the City’s CBC Strategy, as per the current regulation. Housekeeping amendments are anticipated to be brought forward, which as amendments under s. 26 of the Act, will require adoption by City Council and approval by the Minister of Municipal Affairs and Housing.
- Good planning considers the overall well-being of a community by balancing the social, economic, and environmental factors valued by a community and which they depend on. Through the By-law, the City will be able to access revenue generated from new development or redevelopment in intensification areas to help offset costs of providing needed infrastructure and services to a growing community, and the By-law is consistent with good planning.
14The Tribunal accepts the uncontroverted opinion evidence of Mr. Scandlan that the By-law is appropriate from a land economics perspective and in compliance with the Act.
15The Tribunal also accepts the uncontroverted opinion evidence of Ms. Flores and finds that the By-law has regard to matters of provincial interest, is consistent with the PPS 2020, conforms with the Growth Plan and the COP, and that the By-law represents good planning.
16The Tribunal, having reviewed the final form of the By-law, found in Exhibit 2, finds that the By-law is in accordance with the evidence in the Hearing and the Act.
ORDER
17THE TRIBUNAL ORDERS THAT the appeals against By-law 99-22 of the City of Richmond Hill are allowed in part, and By-law No. 99-22 is amended as set out in Attachment 1 to this Order. In all other respects, the Tribunal Orders that the appeals are dismissed.
“S. L. Dionne”
S. L. DIONNE MEMBER
Ontario Land Tribunal Website: www.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