The Municipal Government Act (MGA) provides municipalities with planning authority and several key tools to successfully enact municipal plans and bylaws.
A person wishing to divide a parcel of land into two or more parcels must apply for subdivision approval from the municipality in which the land is located. A municipality may approve the application, with or without conditions, or may refuse the application.
A person wishing to undertake development must obtain a development permit from the municipality. Development is defined very broadly to include excavation, stockpiling, building, or the use of land or change in the intensity of use of land or buildings. The land use bylaw sets out the specific requirements for applying for a development permit and the conditions that may be attached to any development permit approval. The municipality may approve, with or without conditions, or refuse a development permit.
Development agreements and offsite levies
A municipality may require an applicant for subdivision or development to enter into a development agreement to construct or pay for the construction of roads, walkways, and utilities. The agreement may also require the developer to construct or pay for the construction of an improvement with excess capacity. A companion agreement called a Servicing Agreement sets out the standards for construction of municipal roads and utilities. A developer is normally required to sign this agreement as well to ensure compliance with municipal standards. A municipality may require a developer to enter into an agreement to pay an offsite levy to cover the capital cost of new or expanded facilities and land relating to water, sewer, storm water or roads. As of October 26, 2017 in addition to the capital cost of these facilities an off-site levy may be used to pay for all or part of the capital cost including the cost of any related appurtenances and any land required for or in connection with the purpose:
- New or expanded community recreation facilities
- New or expanded fire hall facilities
- New or expanded police station facilities
- New or expanded libraries.
The Off Site Levies Regulation sets out the factors to be considered in developing an off-site levy bylaw and the requirements for consultation with affected parties prior to adoption. The regulation specifically states that in determining the basis on which the levy is calculated the municipality must at a minimum consider and include or reference the following in the bylaw imposing the levy:
- A description of the specific infrastructure and facilities;
- A description of each of the benefitting areas and how these areas were determined;
- Supporting technical data and analysis;
- Estimated costs and mechanisms to address variations in cost over time.
A significant challenge arises in apportioning costs between improvements that are necessary to serve the new development and those that benefit the municipality as a whole. Various court cases have determined that a reasonable allocation must be made between the two elements. The split in these costs is often a matter of contentious discussion with developers.
The larger challenge, however, is that, as several analyses have shown, new residential development does not generate sufficient revenue to cover the cost of servicing the development over its lifetime. In the past municipalities have relied upon increasing the amount of commercial and industrial assessment in a municipality and shifting an increasing proportion of taxes onto the commercial and industrial tax base. Municipalities can ensure that land use planning enables appropriate commercial and industrial development. Ultimately, however, the ability to attract such uses is subject to external market forces. Shifting the tax burden to commercial and industrial assessment also has limits. Changes to development agreement and offsite levy legislation may assist in redressing the imbalance but it may not be sufficient. Moreover, these charges place the burden of new development entirely on new residents which raises questions of the impact on housing prices and housing affordability as well as the fairness of placing all costs on new residents.
At the time of subdivision a developer may be required to provide the following lands at no cost to the municipality:
- up to 30 percent of the land that is the subject of the application for roads and utilities
- land that is a swamp, gully, ravine, coulee, or natural drainage course; land that is subject to flooding; or a strip of land not less than 6 metres in width adjacent to the bed and shore of a body of water as environmental reserve
- up to 10 percent of the land that is the subject of the application for park, school and recreation purposes or to separate areas of land that are used for different purposes
The MGA has been amended to clarify that land can only be taken as environmental reserve for the purposes of:
- Preserving the natural features of the land;
- Preventing the pollution of the land or the bed and shore of an adjacent body of water;
- Ensuring public access to the bed and shore of an adjacent body of water;
- Preventing development of the land where the natural features present a significant risk of natural features or property damage during development or use of the land.
Reserve lands are designated on title as either environmental reserve (ER), municipal reserve (MR), school reserve (SR), or municipal and school reserve (MSR). Lands with these designations can only be used for park, recreation or school authority purposes. ER must be left in its natural state or used as a park although a municipality may pass a bylaw allowing ER to be used for some other purpose or lease an ER for a term not exceeding three years.
Municipalities may now enter into an agreement with an owner of land prior to a decision on a subdivision application providing that the owner either will not be required to provide environmental reserve or will be required to provide environmental reserve with the boundaries specified in the agreement. The subdivision authority may not require additional environmental reserve at the time of subdivision. The boundaries defined in the agreement can only be changed if both parties agree there is a material change affecting the parcel of land that occurred after the agreement was signed.
A new provision in the MGA allows municipalities to require a developer to provide land for conservation purposes if the taking of the reserve is consistent with the municipal development plan and any area structure plan and the municipality compensates the land owner at the market value of the land. A municipality must not sell lease or otherwise dispose of conservation land and the land must remain in its natural state. Conservation reserve is identified by a number and the suffix “CR”. The designation can only be removed if the natural features are wholly or substantially destroyed by events beyond the control of the municipality. The municipality must then give notice and hold a public hearing. After considering the presentations at the hearing the municipality may direct the registrar of land titles to remove the “CR” designation. Proceeds from the lease, sale or other disposition of the property can only be used for the purchase of land with significant environmental features or for a matter connected to that purpose.
If a municipality no longer requires municipal reserve land to be used for park or recreation purposes, it may dispose of the land after giving notice and holding a hearing to consider the views of those affected. The proceeds from the sale of reserve land may only be used for park, recreation or school authority purposes. If a school board no longer requires a site that has been designated SR or MSR for school purposes it may not dispose of the land itself. Rather, it may declare the site surplus and if the Minister of Education approves this surplus declaration the school board may transfer the land to the municipality. The municipality may dispose of the land as noted above or alternatively, the municipality may designate the school building envelope portion of the site as community service reserve (CSR). A community service reserve may be used for a broader range of public purposes including
- A public library,
- A police station, a fire station or an ambulance services facility,
- A non-profit day care facility,
- A non-profit senior citizen facility,
- A non-profit special needs facility,
- A municipal facility providing direct service to the public, and
- Affordable housing.