OLT Clarifies When Municipalities May Prescribe Affordable Housing Requirements in Official Plans

  • November 02, 2023
  • Matthew Lakatos-Hayward, Goodmans LLP

On September 6, 2023, the Ontario Land Tribunal (the “OLT”) issued its decision in Calloway REIT (Mississauga) Inc. v Mississauga (City) (the “Decision”). [1]  The OLT found that the Planning Act grants municipalities the authority to enact general policies encouraging and promoting affordable housing, but does not allow them to mandate specific requirements outside of inclusionary zoning.

Background

The Decision arose from the Phase 1 proceeding of appeals to Official Plan Amendment No. 115 (“OPA 115”), adopted by the City of Mississauga (the “City”).

OPA 115

OPA 115 forms part of the City’s “Re-Imagining the Mall” initiative to establish policies to guide the redevelopment of six of the City’s mall-based Community Nodes and Major Nodes.

Phase 1 of the appeals  concerned specific policies relating to affordable housing requirements, including the following (the “Affordable Housing Policies”):

  • A minimum requirement for residential development proposing 50 or more units to provide 10 percent of housing units as “below-market”, comprised of units targeted for a range of “middle income households” and at specific unit sizes (the “Affordable Housing Requirement”);[2]
  • Affordable housing for low income households will be encouraged, recognizing that the provision of affordable housing is subject to landowners being able to secure access to adequate funding (the “Incentive Policies”);
  • Below-market housing is to be comprised of a mix of rental and ownership across the Node, and individual development applications are encouraged to include this mix; and
  • other policies to incentivize the provision of affordable housing, including a consideration of reduced parking requirements and land conveyances to non-profit housing providers in lieu of the Affordable Requirement.

Certain landowners impacted by OPA 115 appealed to the OLT.  The appellants argued that the Affordable Housing Requirement included in OPA 115 was invalid and should not be approved because they exceeded the City’s authority under the Planning Act.