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HomeMy WebLinkAboutPDS-041-23Clarftwn Staff Report If this information is required in an alternate accessible format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. Report To: Council Date of Meeting: June 19, 2023 Report Number: PDS-041-23 Submitted By: Carlos Salazar, Director of Planning and Infrastructure Services Rob Reviewed By: File Number: Maciver, Deputy CAO/Solicitor Resolution#: JC-068-23 By-law Number: 2023-042 Report Subject: Parkland and Open Space Dedication By -Law Recommendations: 1. That Report PDS-041-23 and any related delegations or communication items, be received; 2. That the proposed Parkland and Open Space Dedication By-law Attachment 1, to Report PDS-041-23, be approved; and 3. That all interested parties listed in Report PDS-041-23 and any delegations be advised of Council's decision Municipality of Clarington Report PDS-041-23 Report Overview Page 2 This report has been prepared to explain the proposed changes to the Municipality's Parkland and Open Space Dedication By-law as a result of the recent legislative changes of Bill 23, More Homes Built Faster Act, 2022 ("Bill 23") and associated amendments to Sections 42 and 51 of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Planning Act"), which implements parkland dedication. The proposed By-law has also been revised to address some minor technical issues with the existing by-law and clarify procedures and exemptions. 1. Background 1.1 Council recently approved the Municipality's current Parkland and Open Space Dedication By-law (By-law 2022-043) on September 12, 2022. This was a reaction to one of the legislative changes in Bill 197 that set to expire all municipal parkland dedication by-laws on September 18, 2022, which contained alternative rates, unless a new parkland by-law was passed in accordance with the Act. Any new parkland by-laws passed would enable municipalities to continue to use the alternative rates. 1.2 On October 25, 2022, just one month after most municipalities updated their parkland by-laws, the Provincial Government introduced legislation (Bill 23) that made significant changes to the planning approval process, including parkland dedication rates, in order to build housing faster and bring costs down (refer to report PDS-054-22). Bill 23 received Royal Assent on November 28, 2022. Standard Rate and Alternative Rate for Parkland Dedication 1.3 There are two ways to calculate the residential parkland dedication rates as set out in the Planning Act. The Standard Rate, which is based on a percentage of the total land area proposed for development and the Alternative Rate, which is based on the total number of proposed units. The purpose of the alternative parkland dedication rate is to address parkland requirements for higher density residential developments. In such cases the 5% parkland dedication rate does not yield sufficient lands in relation to the population levels generated by higher density developments. Therefore, using a rate based on the number of units yields a higher parkland dedication rate for these types of projects. The Planning Act requires that local Official Plans contain specific policies in order for the alternative rate provision to be utilized in a by-law. 1.4 The most significant changes to the parkland dedication provisions in the Planning Act introduced by Bill 23 are the reductions to the alternative rates by half (from 1 ha per 300 dwelling units to 1 ha per 600 dwelling units where parkland is conveyed or from 1 ha per 500 dwelling units to 1 per 1000 dwelling units for cash -in -lieu contributions). It Municipality of Clarington Page 3 Report PDS-041-23 also introduced a maximum cap for the residential alternative rate of 10% for development that is 5 ha or less and 15% for lands that are greater than 5 ha. 1.5 Municipalities do not have the authority to collect more than what the Planning Act allows for, therefore, the new residential alternative rates takes effect immediately regardless of what the recently approved Parkland and Open Space Dedication By-law states, subject to certain transitional regulations. This effectively makes all the new municipal parkland by-laws that referenced the previous alternative rates out of date given the new changes. 1.6 However, it is still important to update the by-law to be consistent with the Act to eliminate any confusion. Given the recent changes to the Planning Act, and in anticipation of any future changes to the alternative rate, the proposed by-law eliminates any specifics about the rates and instead defers to the Act directly for the rates. 1.7 The Municipality is taking this opportunity to update the Parkland and Open Space Dedication By-law and add some clarity to the By-law after working with it over the last few months. The proposed By-law would replace the current By-law 2022-043. 2. Proposed Parkland and Open Space Dedication By-law 2.1 A copy of the proposed Parkland and Open Space Dedication By-law is attached to this report (Attachment 1). In addition to referring directly to the Planning Act for the alternative rates, a few inconsequential changes are introduced to address some minor technical issues with the existing by-law and clarify procedures and exemptions. Headings are also proposed in the By-law to add further clarity to the different sections. Proposed General Revisions 2.2 Any references to "cash in lieu" have been revised to "payment in lieu" to be consistent with the terminology under the Planning Act. Mixed Use Developments 2.3 For Mixed use developments greater clarity is added to only be applicable to the mixed - use building, as opposed to a mix of uses on the same site. Only the residential rate is applicable to the mixed -use building. The intent is to encourage no extra charge for the commercial tenants on the ground floor of an apartment building and to eliminate complex calculations between the different rates. The definition of mixed -use development is proposed to be removed, while the definition of mixed use building remains. Redevelopment of Lands Municipality of Clarington Page 4 Report PDS-041-23 2.4 For redevelopment of lands, Section 9 of the current By-law, is proposed to be removed, which speaks to expansions to buildings that are greater than 100 sqm. This section was mainly used for industrial and commercial uses but is being removed because expansions to buildings do not trigger a payment in lieu of parkland since the entire developable area of the land is used to calculate payment in lieu of parkland when the initial building is built, typically 2% of the entire site area. Collection of parkland payments when there is an expansion to the building on a site which has already contributed towards parkland payment based on the site area would be a double charge and would not be permitted under the Act. Encumbered Lands 2.5 Some minor edits were added to the encumbered lands section to refer to the Act in anticipation of changes made through Bill 23 but have not been proclaimed. The Municipality may need to allow for the acceptance of certain encumbered lands for parkland purposes, such as strata parks or privately owned public spaces for example. The details of this requirement is anticipated to be provided by the province through regulations. Once the regulations have been developed, this section of the Act is anticipated to be proclaimed. Exemptions 2.6 Two new exceptions from parkland dedication and payment are proposed to be added, in addition to the already exempted developments for registered charitable, non-profit and hospital organizations, as well as all public facilities developed by a government agency. The two new additions reflect the recent changes to the Act from Bill 23 which now includes non-profit housing development as defined in subsection 4.2 (1) of the Development Charges Act, as well as additional dwelling units. It should be noted that the municipality has never collected payment in lieu of parkland for additional dwelling units, therefore this provision only adds clarity to what is already in practice. Further Review of Parkland By-law 2.7 There may be a desire to have a reduced rate to encourage higher densities within Clarington's core areas, an updated by-law would be required to determine where the appropriate locations would be and to what extent the rate should be reduced. Further review of the parkland dedication rates for the identified Priority Intensification Areas within the Clarington Official Plan would be reviewed through the next comprehensive Official Plan Review. 2.8 The Province has also indicated exceptions for affordable or attainable residential units, however this section of the Planning Act is not in force. If legislation comes into force, the Municipality will have to review the effects on the Parkland and Open Space Dedication By-law and implement the changes as required. Staff have chosen not to Municipality of Clarington Report PDS-041-23 Page 5 include these provisions in the proposed By-law at time until more information is released from the Province and until the implementation tools are better understood. Appeal of Parkland By-laws 2.9 Bill 197 also introduced amendments to the Planning Act to provide individuals the ability to appeal the passing of a new municipal parkland dedication by-law. The Municipality will be required to provide Notice of Passing of any new parkland dedication by-law within 20 days of passing, and any person or public body will have 40 days to file an appeal to the Ontario Land Tribunal. It should be noted that when the parkland by-law was amendment in September of last year, the Municipality did not receive any appeals. The proposed changes to the By-law are intended to add clarity to the parkland requirements and implements recent changes to the Act which generally favour the developer, therefore no anticipated appeals are expected. 3. Financial Considerations 3.1 The acquisition of parkland and collection of payment -in -lieu of parkland fees through alternative parkland dedication rates, is necessary to ensure that the Municipality can fund the ongoing acquisition of parkland and open space. For this reason, it is critical to ensure that the Municipality has the ability to continue to apply an appropriate parkland dedication rate in the most efficient and clear manner for all development in Clarington, to enable the Municipality to maximize the total amount of parkland or payment -in -lieu that the Municipality can acquire through the development approvals process. 3.2 While development charges are collected for recreational purposes including playgrounds, trails, and facilities; the land for these amenities is not eligible for recovery under the Development Charges Act. The parkland dedication fees provide a funding source for the lands that will be needed as the Municipality grows. 3.3 By advancing the recommended By-law, the Municipality will have the opportunity to continue to use the parkland dedication rates with added clarity and consistency with the Planning Act changes. 3.4 Should Council choose to not advance a new parkland dedication by-law, the rates in the Act are still applicable but will remain outdated in the current by-law and the clarity on how to determine parkland dedication or payment, especially for mixed use developments will remain unclear. Further the added exceptions for the defined non- profit and for ADUs, will remain obsolete in the current by-law. Municipality of Clarington Page 6 Report PDS-041-23 4. Concurrence 4.1 This report has been reviewed by the Deputy CAO/Treasurer 5. Conclusion 5.1 Considering the revisions to the Planning Act under Bill 23, it is recommended that Council approve the proposed Parkland and Open Space Dedication By-law. This will address some minor technical issues with the existing by-law and clarify procedures and exemptions. It is also consistent with the recent changes in the Planning Act and may not require such frequent updates to the By-law now that it proposes to defer to the rates as set out in the Planning Act, as they change from time to time. Staff Contact: Nicole Zambri, Senior Planner, 905-623-3379 ext. 2422 or Nzambri(c�clarington.net . Attachments: Attachment 1 — Parkland Dedication By -Law Interested Parties: List of Interested Parties available from Department. Attachment 1 to PDS-041-23 If this information is required in an alternate format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131 The Corporation of the Municipality of Clarington By-law Number 2023- being a By -Law to govern Parkland and Open Space Dedication in the Municipality of Clarington. WHEREAS Section 42(1) of The Planning Act, R.S.O. 1990 provides the Council with the authority to enact a by-law to require the conveyance of land to the municipality for park or other public recreational purposes as a condition of development or redevelopment of land. AND WHEREAS Section 51.1 of The Planning Act, R.S.O. 1990 provides that the approval authority may impose, as a condition of the approval of a plan of subdivision, that land be conveyed to the municipality for park or public recreational purposes; AND WHEREAS Section 53 of The Planning Act, R.S.O. 1990 provides that the approval authority may impose, as a condition of approval of a consent, that a payment of money be required by the municipality in lieu of the conveyance of land for park or recreational purposes; AND WHEREAS Section 42(3) of The Planning Act, R.S.O. 1990 provides the Council with the authority pursuant to the Official Plan policies to require the conveyance of land at an alternative rate to the conveyance of land under Section 42(1) of The Planning Act, R.S.O. 1990; AND WHEREAS Section 42(6) of The Planning Act, R.S.O. 1990 provides the Council with the authority to require a payment in lieu of the value of land otherwise conveyed under Section 42(1) of The Planning Act, R.S.O. 1990; AND WHEREAS Section 42(6.0.1) of The Planning Act, R.S.O. 1990 provides the Council with the authority to require a payment -in -lieu of the value of land otherwise conveyed under Section 42(3) of The Planning Act, R.S.O. 1990 at the alternative rate for development or redevelopment, as an alternative method to the conveyance of land under Section 42(6) of The Planning Act, R.S.O. 1990; AND WHEREAS the Council of the Corporation of the Municipality of Clarington deems it appropriate to repeal By -Law 2022-043. NOW THEREFORE BE IT RESOLVED THAT the Council of the Corporation of the Municipality of Clarington enacts as follows: 1. For the purpose of interpretation of this by-law, the following definitions shall apply: (a) "Act" means the Planning Act, R.S.O. 1990, c. P.13, as amended; (b) "Consent" shall refer to the subdivision of land as defined in Section 53 of the Act; (c) "Development" shall refer to i. the construction, erection, or placing of a building or structure, excluding infrastructure authorized by the Environmental Assessment Act; ii. the addition to or alteration of a building or structure; iii. the creation of a new lot and/or increase in the number of permitted units on a lot; iv. the change in use or the increase in intensity of use of any building, structure, or premises; V. site -grading, excavation, removal of topsoil or peat, the placing or dumping of fill, or the extraction of mineral aggregate; vi. drainage works, except for the maintenance of existing municipal and agricultural drains; or vii. redevelopment. (d) "Dwelling Unit" shall refer to one or more habitable rooms, occupied or capable of being occupied as an independent and separate housekeeping establishment, in which separate kitchen and sanitary facilities are provided for the exclusive use of the occupants; (e) "Gross Developable Area" shall refer to the area of the site or lot less the area designated Environmental Protection and the Minimum Vegetation Protection Zone, and major infrastructure that is built or approved under the Environmental Assessment Act; (f) "Municipality" shall refer to the Corporation of the Municipality of Clarington, or its geographical area, as the context requires; (g) "Minimum Vegetation Protection Zone" shall refer to a vegetated buffer area surrounding a natural heritage feature or hydrologically sensitive feature within which only those land uses permitted within the feature itself are permitted. A vegetation protection zone is intended to be restored with native, self-sustaining vegetation and be of sufficient width to protect the feature and its functions from effects of the proposed change and associated activities before, during, and after, construction, and where possible, restore and enhance the feature and/or its function; (h) "Mixed Use Building" shall refer to a building containing residential units and at least one non-residential use; (i) "Natural Heritage System" shall refer to a system made up of natural heritage features and areas, hydrologically sensitive features and linkages intended to provide connectivity (at the regional or site level) and support natural processes which are necessary to maintain biological and geological diversity, natural functions, viable populations of indigenous species, and ecosystems. These systems can include natural heritage features and areas, hydrologically sensitive features, federal and provincial parks and conservation reserves, other natural heritage features, lands that have been restored or have the potential to be restored to a natural state, areas that support hydrologic functions, and working landscapes that enable ecological functions to continue; (j) "Park" shall refer to municipally owned or leased sites that are designated, and appropriately developed (including un-serviced sites), for community use for indoor and/or outdoor, programmed and/or self -directed sport, fitness, physical activity, culture, leisure and social pursuits; (k) "Park Purposes" shall refer to the use of land for public park or other public recreational purposes; (1) "Plan of Subdivision" shall have the same meaning as found in the Act; (m) "Site Plan" shall have the same meaning as found in the Act; (n) "Regulatory Shoreline" shall refer to the lands identified in the Municipality's Official Plan and the implementing Zoning By-law in accordance with the detailed Lake Ontario Flood and Erosion Risk Mapping of the relevant Conservation Authority; (o) "Unserviced Park" shall refer to a park that provides recreational opportunities and facilities, including playing fields, but without outdoor lighting, accessory commercial facilities, paved parking lots or permanent water or sewer facilities; Parkland Dedication Rates 2. As a condition of the development of land, including approval of a plan of subdivision, site plan or consent, land shall be conveyed to the Municipality for park purposes at the rate of two percent of the lands for commercial or industrial development, and a rate of five percent in all other cases. 3. Notwithstanding Section 2, for land that is developed for residential purposes, land shall be conveyed to the Municipality for park purposes at the standard or alternative rate as set out in the Act, whichever is greater. Mixed Use Building 4. For mixed use buildings, only the residential rate is applicable to the development proposal. Payment in lieu 5. At the discretion of the Director of Planning and Infrastructure Services, the Municipality may, in substitution for the conveyance of land, require payment in lieu, or a combination of payment in lieu and the conveyance of land under the following circumstances: (a) The use of the alternative parkland conveyance or dedication consumes more than 10% of the site area thereby rendering the site undevelopable. (b) The amount of land for parkland dedication does not result in a sufficient area for park development; or (c) The dedication of land is not deemed necessary. 6. If a payment in lieu of parkland is required pursuant to this by-law, the rate and value of the land will be determined in accordance with the Act. 7. Notwithstanding Section 6, for land developed for residential purposes, the rate for the payment in lieu will be the standard or alternative rate as set out in the Act, whichever is greater. 8. For the purposes of this by-law, any land valuation shall be supported by a certified land appraisal, to the satisfaction of the Director of Planning and Development Services. Redevelopment of Lands 9. If land has been conveyed or is required to be conveyed for park purposes or a payment in lieu of land for park purposes has been received or is owing under a condition imposed under Sections 51.1 or 53 of the Act, no additional conveyance or payment in respect of the land subject to the conveyance or payment may be required unless; (a) there is a change in the proposed development or redevelopment that would increase the density of development; or, (b) land originally proposed for development or redevelopment for commercial or industrial purposes is now proposed for development or redevelopment for other purposes. Open Space Lands 10. The Municipality shall not accept any natural heritage system, minimum vegetation protection areas, regulatory shoreline, flood susceptible lands or lands with hazardous characteristics in fulfilment of the land conveyance requirements of this by-law. 11. Notwithstanding the above requirements, the Municipality shall request the gratuitous dedication of open space lands including natural heritage system, minimum vegetation protection areas, regulatory shoreline, flood susceptible lands and lands with hazardous characteristics within development or redevelopment proposal. 12. These lands may be required to be dedicated to the Municipality or appropriate Conservation Authority where such dedication is consistent with the Municipality's Official Plan objectives or the long term goals of such Conservation Authority. 13. In determining the area of land required for conveyance of land or payment in lieu of land conveyance for park purposes, gross developable area shall be used, provided the lands referred to in Section 11 are dedicated to the Municipality gratuitously. Encumbered Lands 14. Lands conveyed to the Municipality pursuant to this by-law shall be free of encumbrances except in accordance with the Act or as may be satisfactory to the Municipal Solicitor and conveyed in a condition satisfactory to the Municipality, bearing the full depth of its original topsoil, being clear of unconsolidated fill or refuse and graded in accordance with the Municipality's policies. Exemptions 15. Notwithstanding other applicable sections in this by-law, the following uses shall be exempt from the requirement of parkland dedication: (a) An Additional Dwelling Unit as defined by the Zoning By-law for the Municipality; (b) Residential uses proposed for non-profit housing development defined in subsection 4.2 (1) of the Development Charges Act; (c) all private structures developed by registered charitable and hospital organizations; and, (d) all public facilities and buildings developed by a government agency. General 16. Should any part of this By -Law be declared by a Court of competent jurisdiction to be invalid in part or in whole, the validity of the other provisions of this By -Law shall not be affected thereby, the intent of Council being that each provision of the By -Law shall be determined to be separately valid and enforceable to the fullest extent permitted by law. 17. By -Law 2022-043 is repealed on the date of passing hereof. Passed in Open Council this day of June, 2023 Adrian Foster, Mayor John Paul Newman, Deputy Clerk