Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
June 02, 2025
CASE NO(S).:
OLT-24-000391
PROCEEDING COMMENCED UNDER subsection 42(10) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant:
T. Valeri Construction Ltd.
Description:
Determination of Value of land
Reference Number:
Building Permit No. 23 132533 00 R3
Property Address:
1021 West 5th Street
Municipality/UT:
City of Hamilton
OLT Case No.:
OLT-24-000391
OLT Lead Case No.:
OLT-24-000391
OLT Case Name:
T. Valeri Construction Ltd. v. Hamilton (City)
Heard:
March 27, 2025 by Video Hearing
APPEARANCES:
Parties
Counsel
T. Valeri Construction Ltd.
(“Applicant”)
Russell Cheeseman
City of Hamilton
(“City”)
Peter Krysiak
DECISION DELIVERED BY w. DANIEL BEST AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1This Decision and Order arises from an appeal filed by the Applicant pursuant to s.42(10) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), of the decision of the City regarding the amount required for the cash-in-lieu fee contribution for parkland (“parkland fee”) paid by the Appellant under protest, related to the development project municipally located at 1021 West 5th Street (“Subject Property”).
2On October 20, 2022, the Subject Property was created from the consolidation of a number of properties into one parcel of land. The former properties are as follows:
Property
Date Property Acquired
73 Stone Church Road W
April 2, 2019
77 Stone Church Road W
April 2, 2019
83 Stone Church Road W
July 30, 2010 by Valfour Developments
89 Stone Church Road W
December 2, 2013
1029 West 5th Street
July 29, 2018
3On November 28, 2022, the More Homes Built Faster Act, 2022 (“Bill 23”), amended the Act by reducing or establishing maximums for parkland dedication requirements. The legislation establishes where the alternative rates for parkland dedication are used:
Establish the maximum alternative rate for parkland dedication to one hectare for each 600 net residential units proposed or at such lesser rate as may be determined by the municipality for the conveyance of land and one hectare per 1,000 units for cash-in-lieu; and
Cap the alternative dedication rate at (a) where land proposed for development or redevelopment is five hectares or less in area, 10 per cent of the land or value of the land, as the case may be; and (b) where land proposed for development or redevelopment is greater than five hectares in area, 15 per cent of the land or the value of the land, as the case may be.
4The Applicant’s position is that the calculation changes related to the parkland fee under Bill 23 should apply to the development on the Subject Property based on the issuance of the first building permit for the installation and shoring for future construction on September 26, 2023.
5Conversely, the City’s position is that a demolition permit is a building permit for the purposes of s.42(2.1)(c) of the Act, which states that the amount of land or payment-in-lieu required is determined at the time of the first building permit or if more than one building permit is required for the development or redevelopment, the day the first permit was issued. The City argues that the demolition permits for 73 and 78 Stone Church Road W. and 1029 West 5th Street facilitated the redevelopment of the Subject Property.
6The following Table highlights the number of permits issued prior to the consolidation of properties and on the Subject Property:
Property
Permit Number
Type
Date
73 Stone Church Road W
22 105573 00 DP
Demolition
May 19, 2022
77 Stone Church Road W
22 105578 00 DP
Demolition
May 18, 2022
83 Stone Church Road W
13 1166766 00 DP
Demolition
September 11, 2013
89 Stone Church Road W
13 177057 00 DP
Demolition
September 11, 2013
1029 West 5th Street
23 117734 00 DP
Demolition
May 24, 2023
1021 West 5th Street
23-122131-00 R3
Installation and Shoring
September 26, 2023
1021 West 5th Street
23-132533-00 R3
Construction
November 29, 2023
7The following materials were identified as Exhibits and marked as follows:
Exhibit 1: Joint Document Book
Exhibit 2: Executed Agreed Statement of Facts
Exhibit 3: Book of Authorities for the City
8The Tribunal heard arguments from Counsel for the Parties identifying the key issue of the appeal as the interpretation and application of a building permit as referenced in s. 42(3.5) of the Act.
BACKGROUND
9On September 6, 2023, the Applicant received final Site Plan Approval for the Subject Property.
10On September 26, 2023, the City issued the installation and shoring permit.
11On October 11, 2023, the City issued an invoice for the parkland fee in the amount of $650,000.
12On November 29, 2023, the City issued the building permit to construct the nine-storey building with 216 units and below-grade parking.
13On January 31, 2024, the City advised the Applicant that the parkland fee for the development on the Subject Property was calculated incorrectly. The revised fee was calculated to be $1,908,576.
14On April 10, 2024, the Applicant made a payment under protest in the amount of $1,258,576. On April 15, 2024, the Applicant filed a Notice of Appeal.
15The Parties agreed that the value of the cash-in-lieu of parkland dedication amount without the caps as provided for in s. 42(3.3) of the Act would be $1,908,576.00. This figure is based on a per unit amount of $8,836 for 216 units in accordance with the City Parkland Dedication By-law No. 22-218.
16The Parties agree that if the City is successful in this appeal, then the calculated cash-in-lieu of parkland dedication amount of $1,908,576.00 will stand, and no refund would be owing to the Applicant.
17The Parties agree that if the Applicant is successful in this appeal, the original cash-in-lieu of parkland dedication amount of $650,000 would stand, and the Applicant would be entitled to a refund of $1,258,576.00, subject to any interest payable from April 10, 2024 (the date of payment).
POSITION OF THE APPLICANT
18Mr. Cheeseman, Counsel for the Applicant, argued that there is a distinction between a building permit and a demolition permit and that permits issued prior to the consolidation of properties resulting in the creation of the Subject Property are not applicable in accordance with s. 42(3.5) of the Act.
19Mr. Cheeseman asserted that there is no retroactivity for permits issued prior to November 28, 2022. Mr. Cheeseman referenced paragraph [51] in Centurion (Dundas) Holdings Ltd. v. City of Hamilton, 2024 CarswellOnt 1397 (“Centurion”) to support his position on retroactivity that the parkland fee is paid at the time of a building permit and not for a demolition permit.
The purpose of Bill 23 was to increase housing supply. The subject section imposed a cap on the max amount of parkland requirement presumably to provide some financial relief to developers. However, the legislature wanted that relief to apply to development that began after November 28, 2022, rather than to apply retroactively. Retroactive application could go back years, creating financial unpredictability for municipalities. The Appellant’s interpretation would create such a scenario and benefit developers whom the Planning Act never meant to benefit. This offends the interpretative approach of balance between the grammatical and ordinary sense of the words and the purpose of the legislation. Lastly, a Tribunal decision that a type of building permit is not a building permit would open the floodgates for parties to dispute the existence of building permits when it benefits them to do so.
20Mr. Cheeseman stated that no parkland fee was requested at the time of the demolition permits for the separate land parcels. He continued that the scheme of the Act supports his assertion that it is the permit that results in the “breaking of land to put a building up” that s. 42 of the Act relies on.
POSITION OF THE CITY
21Mr. Krysiak argued that the proposal for the Subject Property was a redevelopment. Buildings were removed, changes of use were required, and demolition permits were required to allow for the new building to be built. It was the demolition of buildings that facilitated the redevelopment of the Subject Property.
22Mr. Krysiak maintained that the City agrees with the Centurion case, but it relies on 488-500 Upper Wellington Nominee Inc. v. City of Hamilton, 2024 CarswellOnt 17362 (“Upper Wellington”) to support its position in this matter. Mr. Krysiak contended that the Upper Wellington case is similar to this appeal. Mr. Krysiak explained that in Upper Wellington, a determination of whether a demolition permit is a building permit in respect of the development or redevelopment was before the Tribunal and arguments put forth by the Applicant in this matter are identical to those articulated in Upper Wellington regarding an alleged distinction between a building permit and a demolition permit and applicability to s. 42(3.5) of the Act.
23Mr. Krysiak submitted that for the purpose of s. 42(3.5) of the Act, a demolition permit is a building permit, as the permit needs only to relate to the development or redevelopment.
ANALYSIS
24For the reasons that follow, the Tribunal dismisses the appeal, as the first building permit was issued prior to November 28, 2023, and the legislative changes to parkland dedication as a result of Bill 23 do not apply.
25Section 42(3.5) of the Act provides the framework for the conveyance or parkland fee payment that is applicable in this appeal.
(3.5) Subsections (3.3) and (3.4) do not apply to land proposed for development or redevelopment if, before the day subsection 12 (11) of Schedule 9 to the More Homes Built Faster Act, 2022 comes into force, a building permit has been issued in respect of the development or redevelopment unless the land proposed for development or redevelopment is designated as transit-oriented community land under subsection 2 (1) of the Transit-Oriented Communities Act, 2020. 2022, c. 21, Sched. 9, s. 12 (11).
26The Tribunal finds that a demolition permit is a building permit in respect of a development or redevelopment as required by the Act. The Agreed Statement of Facts (“ASOF”) provides a clear chronology of events that are linked to the proposed development on the Subject Property. It is the consolidation of land parcels and demolition permits that facilitates the proposal for the Subject Property.
27The OPA and ZBA applications filed on April 18, 2019, were to construct a nine-storey multi-residential building on the Subject Property. The Site Plan Control Application was dated August 14, 2020. These applications were prior to the consolidation of the five land parcels in October 2022. The proposal provides a clear linkage between the demolition permits on the individual land parcels and the construction of the building on the Subject Property.
28The key phrase in s. 42(3.5) of the Act is “a building permit has been issued in respect of the development or redevelopment”. The Tribunal finds that authorization by the City Council for demolition permits for 73 and 77 Stone Church Road W and 1029 West 5th Hamilton Street on April 25, 2022, and their subsequent issuance would meet the requirements of s. 42(3.5) of the Act and have been issued “in respect of the development or redevelopment” on the Subject Property.
29As in Upper Wellington, the Tribunal finds that the words “in respect of” mean that a permit needs only be in some way related to the development or redevelopment. In this matter, the Tribunal agrees that the demolition permits were needed to allow for the proposed nine-storey multi-unit development to occur on the Subject Property.
30The Tribunal was persuaded by the position of the City and finds that the building permit issued on May 18, 2022 (77 Stone Church Road W) would be the first building permit issued in respect of the proposed development on the Subject Property. This demolition permit, as well as the demolition permits for 73 Stone Church Road W and 1029 West 5th Hamilton Street, were issued prior to the date when Bill 23 came into effect on November 28, 2022.
31As no cap applies, the calculated parkland fee of $1,908,576.00 stands and no refund is owing to the Applicant.
ORDER
32THE TRIBUNAL ORDERS THAT the appeal is dismissed.
W. Daniel Best”
W. DANIEL BEST
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.