This commentary was first published in The Lawyers Weekly on August 26, 2011.
What does a property owner do to build a high density condo/retail development on its parcel in Brampton, Ontario - the heartland of suburban sprawl - or to build a low density subdivision on its green field in Markham, Ontario - the capital of 'new urbanist' design? It does what few applicants for a state-issued license would ever think of doing: it makes a deal.
As those in the field well know, deal-making is authorized under section 37 of the Planning Act. What Canadians lightly dub "bonuses", and Americans more darkly label "exactions", have become an integral part of the development approval game. For owners and communities, the game is one of materially high stakes; and for constitutional theorists, the struggle between an individual's rights and the collectivity's needs are as high as the normative stakes can get.
As a starting point, the courts have ensured that no personal gain can be bargained for by officials in a conflict position. Moreover, the Ontario Municipal Board has expressed the view that section 37 bargains must be "commensurate with the additional density or development rights" achieved in the application, and that city officials keep in mind that "the public should receive some tangible benefit." Beyond that, however, just about any deal goes.