The Ontario Divisional Court recently weighed in on the authority of the Ontario Municipal Board to set parkland dedication rates. Nordheimer, J. was critical of a January 15, 2015 Board decision that approved a 25% overall cap on parkland dedication for residential projects. This limit is neither the 5% permitted by subsection 42(1) of the Planning Act, nor the alternative rate of one hectare per 300 dwelling units set out in subsection 42(3). Nordheimer, J. considered the negative effect of a higher parkland dedication rate on high-density residential development, however, he commented that, “no matter how legitimate that concern may be, it does not operate to alter the plain wording of the statute, nor does it serve to provide authority to the OMB to impose conditions where that authority cannot otherwise be found in the plain wording of the statute.”
Nordheimer, J. rejected the characterization of the 25% cap (or any cap) as a matter of policy. The cap is not a general guideline that provides a broad overview of how a municipality can make parkland dedication decisions. Rather, the “imposition of a fixed rate that unnecessarily fetters the discretion of the municipality to make its own decision on the appropriate rate that should apply for the implementation of the alternative requirement within its boundaries.”
The Court remitted the decision back to the Board for determination. Nordheimer, J. expressed the crux of the case in commenting that the Board decision, “…effectively abrogates the role that the Legislature clearly intended municipalities would perform and instead bestows that role onto itself. And in doing so, the OMB finds authority to establish a maximum rate for the alternative requirement that is different from the maximum provided by the Legislature in the statute.”
The respondents have sought leave to appeal the Court’s decision, the outcome of which is anticipated before the end of the year, and will be closely watched by municipalities and the development community.
The decision can be accessed for free here.
