Le 28 février 2020, le gouvernement de l’Ontario a publié le cadre qu’il propose d’appliquer aux redevances pour avantages communautaires (les « redevances pour avantages communautaires »), afin d’obtenir les commentaires du public – étape préalable à l’adoption de règlements détaillés. Le montant maximal qu’une municipalité peut imposer au titre des redevances pour avantages communautaires, le calendrier de la transition au nouveau régime et les services publics et récréatifs qui pourraient être pleinement financés au moyen des redevances d’aménagement figurent parmi les aspects essentiels du cadre réglementaire proposé. Dans ce billet, nous abordons le cadre réglementaire que le gouvernement propose d’appliquer au régime de redevances pour avantages communautaires sur le point d’être adopté.
Une traduction de ce billet sera disponible prochainement.
On February 28, 2020, the Ontario government released its proposed Community Benefits Charge (“CBC”) framework for public comment – a precursor to detailed regulations. Key aspects of the proposed regulatory framework include prescribing the maximum amount that a municipality can charge as a CBC, specifying the timeline for transition to the new CBC regime, and enabling certain soft services to be eligible for full cost recovery through Development Charges. In this post, we look at the government’s proposed regulatory framework in view of the impending CBC regime.
In June 2019, Ontario’s More Homes, More Choice Act, 2019 (Bill 108) received Royal Assent. As summarized in our previous post, Bill 108 made amendments across 13 statutes, with the intention of cutting red tape, reducing costs, and increasing the supply of housing in Ontario. One of the key changes is the introduction of a new Community Benefits Charge (“CBC”) authority, which would replace existing density bonusing and parkland dedication provisions in favour of a single charge.
The changes related to the new CBC have yet to come into effect, and until they do, municipalities can fund the costs of new development through three primary funding means:
- Development Charges under the Development Charges Act, 1997;
- Height and Density Bonusing Contributions under Section 37 of the Planning Act; and
- Parkland Dedication under Sections 42 and 51.1 of the Planning Act.
Through Bill 108, municipalities will have two primary funding streams to pay for the increased need for services due to new development:
- Development Charges under the Development Charges Act, 1997; and
- Parkland Dedication under Sections 42 and 51.1 of the Planning Act at the basic rate based on percentage of land area (the alternative rate based on dwelling unit count will no longer be available); or
- Community Benefits Charges under the new Section 37 of the Planning Act.
The development industry, together with Ontario’s municipalities, have been awaiting the release of the full set of regulations for CBC’s.
The proposed CBC framework released on February 28, 2019 (the “Regulatory Proposal”) represents the Province’s current intentions with respect to the forthcoming regulations and provides an opportunity for stakeholders to submit comments until March 30, 2020.
Community Benefits Charges: an overview
What is a CBC?
The CBC is a levy that municipalities can impose in respect of development that requires a rezoning, minor variance, plan of subdivision approval, the conveyance of land subject to a part-lot control by-law, a consent, the approval of a condominium description, or the issuance of a building permit.
Through Bill 108, Development Charges continue to exist alongside CBCs, and both can be collected by a municipality. However, each mechanism applies to specific types of growth-related municipal infrastructure and services. Services funded through Development Charges cannot also be funded through CBCs, and vice versa.
CBCs are to fund a range of capital infrastructure for community services needed for new development. This could include libraries, parkland acquisition, daycare facilities, and recreational facilities, amongst other services.
By contrast, Development Charges will be limited to select hard and soft infrastructure expressly set out in the Development Charges Act, 1997 and the accompanying regulations.
CBC Strategy, By-law, and Appeal
To introduce a CBC regime, a municipality must first prepare a CBC strategy that identifies the facilities, services, and matters that will be funded through CBCs. In preparing the CBC strategy, the municipality must undertake public consultation.
Following the preparation of the CBC strategy, the municipality may pass a CBC by-law under the new Section 37 of the Planning Act. A municipality may only have one CBC by-law in effect at a time.
CBC by-laws are subject to appeal to the Local Planning Appeal Tribunal.
Determining the CBC Amount
The amount of a CBC is calculated based on the value of the land subject to development. The valuation date for this purpose is the day before the building permit is issued in respect of the development. If more than one building permit is required for the development, the valuation date is the day before the first permit is issued.
Bill 108 empowers the Province to set, through regulation, a maximum percentage of land value that municipalities can collect as a CBC. The proposed percentages are described below and are the subject of the Province’s current public consultation.
Disputing the CBC Amount
The CBC imposed by the municipality may be opposed by a landowner where the CBC is believed to exceed the maximum permitted amount. In such a situation, the landowner pays the CBC under protest, and a process will ensue whereby the landowner provides an appraisal, and if this appraisal is disputed, the municipality provides its own appraisal.
If the land values of the two appraisals are within 5% of each other, the municipality must refund the difference, if any, between the CBC amount imposed by the municipality and the maximum CBC amount based on the landowner’s or the municipality’s appraisal, whichever is higher.
If the land values of the two appraisals are not within 5% of each other, the municipality must request a further independent appraisal. The municipality must refund the landowner the difference, if any, between the amount of the CBC imposed by the municipality and the maximum CBC amount based on the independent appraisal.
Bill 108 introduces Section 37.1 to the Planning Act, which establishes a complex set of transition rules.
By way of high level summary: the new CBC regime and related amendments will not apply to developments that have a zoning by-law that includes any requirement to provide facilities, services, or matters under former Section 37 of the Planning Act (i.e., height and density bonusing)—provided that such zoning by-law is passed before either: (1) the date the municipality passes a CBC by-law; or (2) the outside date prescribed in the regulations, whichever is earlier.
Community Benefits Charges: Issues for Comment
The Province’s Regulatory Proposal outlines six aspects that are the subject of public consultation:
- Prescribing the required
content of a municipality’s CBC strategy.
- A CBC strategy is proposed to
- the anticipated type, amount, and location of development subject to a CBC;
- the anticipated increase in need for a specific community service resulting from new development;
- a parks plan examining the need for parkland;
- the amount of parkland per person currently being provided, and if this is planned to increase, decrease, or stay the same;
- the capital costs associated with the increased need for a specific community service resulting from new development;
- the excess capacity that exists in those specific services;
- whether the increased provision of those specific services would also serve existing residents; and
- any capital grants, subsidies, or contributions from other levels of government or sources.
- A CBC strategy is proposed to include:
- Prescribing services eligible
to be funded through Development Charges.
- The following soft services are
proposed to be eligible for full capital cost recovery through
- Public libraries (including library materials for circulation, reference, or information purposes);
- Long-term care;
- Parks development (but not parkland acquisition);
- Public health; and
- Recreation (e.g., community recreation centres and arenas).
- The following soft services are proposed to be eligible for full capital cost recovery through Development Charges:
- Prescribing the percentage of
land value for determining the maximum
CBC that a municipality can levy.
- The maximum percentage of land value
for a CBC is proposed to be fixed at:
- Single-tier municipalities: 15%
- Lower-tier municipalities: 10%
- Upper-tier municipalities: 5%
- The maximum percentage of land value for a CBC is proposed to be fixed at:
- Prescribing the timeline to
transition to the new CBC regime.
- The specified date for municipalities to transition to the CBC regime is proposed to be one year after the date the CBC regulation comes into effect.
- Prescribing the content and
format of the municipal clerk’s notice of passing
the CBC by-law.
- Notice of passing is proposed to be analogous to the notice requirements for Development Charge By-laws.
- Prescribing the minimum interest rate for CBC refunds where a CBC by-law has been successfully appealed.
- Adding the CBC to the Building Code’s definition of “applicable law”, which must be complied with prior to the issuance of a building permit.
For more detailed analysis and information on how the CBC regime could apply to your development proposal, please contact a member of our municipal and land use team.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.