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Municipal, Land Use and Development – Art Linton

The Supreme Court of Canada recently clarified the law of injurious affection where no land is taken in its decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13. Unfortunately, the compound test set out by the Court has left many public sector professionals feeling uncomfortable about their ability to efficiently detect and assess potential claims without extensive legal assistance. Lawyers representing property owners in such cases often apply a simplified first pass test looking for construction that permanentlysubstantially, and disproportionately affects property values or causes personal or business damage. There is no reason that expropriating authorities can’t apply the same test to identify and mitigate the risk of unanticipated litigation expense.

The Expropriations Act (Ontario) requires an expropriating authority to compensate a landowner for reduction in market value as well as personal and business damages even where none of the owner’s land is taken. Before having an entitlement to compensation, claimants are required to prove any damage was caused by action taken under statutory authority, the damage would have given rise to liability in common law if not for the statutory authority, and the damage was caused by the construction, not the subsequent use of a public project. In most cases, it will be known whether the work was performed under statutory authority, and it will be reasonably clear whether a potential claim will arise from construction and not the use of a public work.

The legal test is complicated in practice because the Court requires that damage must be substantial and unreasonable. These terms are intentionally broad to permit consideration of the particular circumstances of each public project. The determination of what is substantial and unreasonable is subject to the moving target of Ontario Municipal Board and court decisions on various fact sets that come before them over time. Further, the legal test considers whether any damage to a property is, or is not, the kind of damage a property owner should be prepared to accept without compensation. An experienced expropriation lawyer is the best choice to conduct this legal analysis.

Public officials should diligently apply the simplified first pass test early in each project to identify potential claims and refer them for legal analysis. An experienced expropriation lawyer can then apply the full legal test set out by the Supreme Court to advise whether a potential claim is likely to materially affect the cost of a project. If serious potential claims are identified before construction begins, more time and options are available to mitigate liability and manage cost.

One illustration is a single business located on a short dead end side street off a main traffic artery. Vehicles travelling in either direction on the main road are able to reach the business using a left or right hand turn. Access to that business would clearly be affected by any permanent obstacle, such as a concrete safety barrier or a raised LRT service in the median of the main road. All customers who previously accessed that business by making a left hand turn off the main road would be prevented from doing so. An application of the simplified test would show likely permanent, substantial, and disproportionate affect from the construction, visited upon this single business. Early recognition of this problem might allow solutions like a left hand turn lane with permitted U-turns at the next intersection or opening a new access at the other end of the short dead end street.

The simplified first pass test is no replacement for a thorough strategic review of every project prior to construction. However, early detection of potential claims provides time to offer remedies that may not be available once a plan is approved and to make other reasonable efforts to reduce the impact of the project on affected property owners.

Art Linton is a lawyer with Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. 

* * This article is intended only to inform and educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

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Municipal, Land Use and Development – Michael Letourneau

The Ontario Planning Act provides municipal governments with a great deal of control over how their communities develop. It provides numerous mechanisms for municipalities to designate what can be done with the land within their borders. The general purpose of these mechanisms is to foster stable, healthy communities. They include the powers to establish zoning by-laws, collect development charges, and create official plans to guide community growth. One of the Act’s most powerful tools, however, is the power to decide how landowners can subdivide their land.

At common law, a landowner can subdivide a single piece of land by selling off portions of it to different owners. The Act, however, prohibits doing so without municipal approval (or provincial approval in remote communities without municipal governments). The most visible example of this is the process for creating new residential subdivisions, where prospective developers must submit detailed plans not only for the housing they intend to build and sell, but also for the services that they must build or pay for to serve those properties such as roads, drainage, utilities, parks, etc. The municipality must ensure that the plans meet their standards and conform to their official plan before they will be approved under the Act.

Another less visible, but still important, growth control mechanism under the Act is “consent to severance”. Through the granting of consent to sever, a municipality may authorize a person to subdivide land on a smaller scale, and without the need for a formal subdivision plan. These severance consents are used for a wide variety of land use and development purposes, including small scale property development.

In order to further control development allowed by severance consent, the Act empowers municipalities to attach conditions to consent approvals. The range of potential conditions is very broad, and covers anything that the approval authority feels is required for proper development. In order to provide stability to the severance consent process, the Act also imposes timelines on the processes for approving consent applications, satisfaction of conditions, and the validity of certain documentation. These timelines are highly technical in nature, and both municipalities and developers need to pay careful attention to exactly what they regulate.

In general, an applicant has one year to meet any conditions attached to the decision granting their severance consent; if they do not do so, their original application is deemed to be refused. The Act also requires that the municipality be satisfied that those conditions are met, but it does not connect that requirement to the “deemed refusal”. Once the municipality is satisfied that the conditions are met, it can issue a certificate saying that consent was granted, and that the consent is valid for at most two years from the date of issue.

While this system appears to be fairly straightforward, the technical language in the Act and the case law interpreting it has proved otherwise.

Unless a municipality imposes specific conditions in each consent decision describing when they are to be notified that the condition has been met, there is case law that establishes that a municipality cannot require that an applicant do so within the one year timeframe.

Many municipal consent authorities operate on the basis that if an applicant fails to inform them within one year that their conditions were satisfied, no consent exists. The Act, however, places such consent decisions
“in limbo” and a municipality who then refuses to grant final consent in those circumstances could be compelled to do so by a court. The court could also require the municipality to pay the legal costs of the applicant in obtaining the court order required.

All of these consequences can be avoided by municipalities simply taking a few simple steps. A municipality can attach conditions to each consent decision they issue that require the applicant to provide evidence that the other conditions involved have been satisfied within a year. Further, municipalities should be proactive in issuing consent certificates as soon as the conditions attached to a consent decision have been satisfied – doing so will immediately start the two-year validity period.

While all of this sounds like a potential windfall for land developers, developers need to consider the value of disputing the timeframe for making a consent valid. While a developer may be able to successfully obtain an order from the court extending the life of a severance consent despite the stance by the municipality that it has lapsed, these approaches can be both costly to pursue and may strain relations with the issuing municipality. Instead, developers dealing with land severance and consent issues ought to work towards being proactive in satisfying consent conditions. For example, they should appoint a single key person to manage the process of meeting the required conditions. That person should engage suppliers, consultants, and legal counsel early in the process, establish a timeline for satisfying conditions, and check in on the process regularly. Proper management will cost a developer relatively little compared to the costs required to salvage a lapsed consent decision that is necessary to accomplish a larger project.

Article written by
Michael Letourneau
, is a lawyer in the Municipal, Land Use & Development Group whose practice includes real estate law for land developers.

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Municipal, Land Use, and Development Law – David Sunday

Real estate developers in Canada and the United States will all be familiar with the due diligence issues that are common to most jurisdictions during the development land acquisition phase, such as the need to confirm zoning permissions and market feasibility. However, each Province and State will have its own unique variety of land use controls, some of which may “fly below the radar” of the development community but nevertheless can have a major impact on a property’s development potential. Ontario is no exception and this article flags three of its lesser known land use controls which should be considered when evaluating a possible development land acquisition in Ontario.

1. Endangered Species Act

Under the Endangered Species Act, the Province maintains a list of Species at Risk in Ontario (the “SARO List”). Once an endangered or threatened species is added to the SARO List, a variety of legislative provisions come into play, the overall goals of which are to protect species at risk and their habitats, and to promote the recovery of species at risk.

A site that provides habitat for a species at risk will typically be subject to very significant development constraints, as the Act prohibits any damage or destruction of species at risk habitat.

It bears noting that the SARO List includes not only mammals, but also various species of at risk trees and reptiles. In the Region of Waterloo, for example, the Jefferson Salamander and the Butternut Tree are two at risk species whose habitat has been identified on quite a number of sites proposed for development with significant resultant constraints.

Qualified biologists can assist a developer in determining if a site contains habitat for any species at risk and, if so, in assessing the extent of the development constraints.

2. Records of Site Condition under the Environmental Protection Act

In Ontario, what is known as a Record of Site Condition (“RSC”) must be registered with the Ministry of the Environment prior to changing the use of a property from industrial or commercial use to residential or parkland use.

An RSC is a document that summarizes the environmental condition of a property as determined by a “Qualified Professional” after conducting a Phase I Environmental Site Assessment, a Phase II Environmental Site Assessment (if appropriate), and confirmatory sampling (in the case of site cleanup).

The aim of this requirement is to ensure that contaminated industrial or commercial sites are not converted to more sensitive residential or parkland uses without first being properly remediated or risk assessed.

The effect of the RSC requirement is that any former industrial or commercial site in Ontario is unavailable for residential or parkland use until someone invests the time and money needed to obtain and register an RSC for that site.

3. Heritage Act

Ontario’s Heritage Act is intended to protect heritage properties and archaeological sites. It provides a framework for municipalities to designate individual heritage properties or to designate entire areas as Heritage Conservation Districts.

Once designated as a heritage property through the passing of a municipal by-law, a property becomes subject to restrictions on alterations which will affect heritage attributes. Before making such changes, an owner must obtain written consent from the municipal Council to such alterations.

An owner must also obtain written consent from the municipal Council prior to demolition of any building or structure on a designated property.

Developers will therefore find that heritage designated properties are more challenging development candidates than non-designated properties.

* * This article is intended only to inform and educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

 

Author: David Sunday is the Group Leader in the Municipal, Land Use & Development Law Group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. David may be reached at (519) 741-8010 or<dsunday@sorbaralaw.com>.   

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