Presented by Alexander Fane and Olga


May 1, 2012



Municipal control of development

• Creatures of statute

• Local Government Act

• Community Charter

• Stages of involvement with a development

• Subdivision

• Land use (to be discussed in this presentation)

• Development permit

• Building/occupancy/other permits

Land use planning

• The power to zone is the ability to control what can and cannot be done with any particular property

• Discretionary power: municipal council makes a decision, at its will, provided they follow due process and decide in good faith

• Public participation is required (“Not In My


Types of land use bylaws

• Regional growth strategy

• Adopted by a regional district

• Municipal bylaws must be consistent

• Official community plan

• Includes a regional context statement

• Broad stroke land use policy

• Zoning bylaws must be consistent

• Zoning Bylaw

• Per-lot land use bylaw

Zoning bylaws

• Spectrum of discretion

• Process

• Three readings

• Public hearing

• Adoption

• *no vested rights until adoption

Zoning bylaws

• Key contents

• Land use

> residential/commercial/industrial

> specific lists of uses

> usually, use is prohibited unless specifically permitted

• Density


“means (a) the density of use of the land, parcel or area, or

(b) the density of use of any building and other structure”


Example: “all buildings and structures together must not exceed a gross floor area of 0.9 times the lot area” (City of

Coquitlam - residential)

Community Amenity Contributions

• Three main methods

• Works and services contributions

• Density bonusing contributions

• Voluntary amenity contributions upon rezoning

Works and services contributions

• Rooted in statute (s.938/939/941 LGA; s.565 VC)

• Requirement to pay for works and services that are needed to serve a new development

• Excess or extended services

• Development cost charges/development cost levies

Density bonusing

• Rooted in statute (s.904 LGA/s.565.1 VC)

• Density cannot be varied by a permit

• Authority to require community amenities in return for bonus density

• Base density by bylaw

• Exceed base density in return for community amenities

• Example: base density = 2.5 times the lot area; to achieve additional density of 0.5 times the lot area, a contribution of 75% of the land value of the additional density is required

Voluntary amenity contributions

• No statutory basis

• Rooted in discretion to rezone

• Cannot enter into an agreement to rezone

(other than a phased development agreement)

• Often negotiated after third reading, prior to final adoption (remember, no vested rights!)

Voluntary amenity contributions

• Example – Vancouver (“Community Amenity

Contributions – Through Rezonings”)

• Mix of density bonusing and voluntary contributions

• Standard rezonings: flat rate of $3 per square foot of additional floor space

• Non-standard rezonings: negotiations on a site-bysite basis (usually includes engineering analysis, market analysis, financial analysis etc. to determine the “lift” in land value as a result of rezoning

Due diligence

• Extent, timing and opportunities

• How far along is the transaction

• Nature of client

• Nature of development, vendor, location

• Initial considerations:

• who is the owner

• share or asset transaction

• title review

> Restrictive Covenants

> Mineral Tenures


> Airport

Due Diligence

• Standard Searches

• Zoning


• Bankruptcy

• Corporate

• Employment

> Employment Standards Branch

> Workers Compensation Board

Due Diligence

Due Diligence

• Standard searches continued:

• Environmental Management Act (British


> Site Registry

> Phase 1, Phase 2

• Riparian

• Material leases or land use agreements

• First Nations

Origins of REDMA

 Real Estate Development Marketing Act (“REDMA”) brought into force on January 1, 2005

 Replaces Part 2 of Real Estate Act. Real Estate Services Act

Replaces Part 1 of the Real Estate Act .

 REDMA governs marketing, sales, and long-term leases of development units

 When considering REDMA, also consider regulations and the

Superintendent of Real Estate’s 15 Policy Statements

Overview of REDMA

 Mechanics of REDMA

 No marketing without a disclosure statement (Section 3(c))

 Disclosure statement must:

 Be in the form and content required by the superintendent;

 Without misrepresentation, plainly disclose all material facts;

 Set out the substance of a purchaser’s rights to rescission as provided under Section 21; and

 Be signed as required by the Regulations

(Section 14(2))

Overview of REDMA

• “ Material Fact ” – Means in relation to a development unit or development property, any of the following:

(a) a fact, or proposal to do something, that affects, or could reasonably be expected to affect, the value, price or use of the development unit or development property;

(b) the identity of the developer;

(c) the appointment, in respect of the developer, of a receiver, liquidator or trustee in bankruptcy, or other similar person acting under the authority of a court;

(d) any other prescribed matter.

Overview of REDMA

• Mechanics of REDMA

• If a developer becomes aware that a disclosure statement does not comply with

REDMA, or contains a misrepresentation, the developer must immediately file with the superintendent:

(i) a new disclosure statement, or

(ii) an amendment to the disclosure statement

(Section 16)

Overview of REDMA

• Mechanics of REDMA

• New Disclosure Statement – Required if :



Is respecting a matter set out in paragraph (b) or (c) of the definition of “Material Fact” (the identity of the developer or the appointment of a receiver, liquidator or trustee in bankruptcy, does not apply to CCAA Proceedings)

Is respecting a matter set out in paragraph (d) of “Material

Fact” (any other prescribed matter (Policy Statements?))

> Is of such a substantial nature that the superintendent gives notice to the developer that a new disclosure statement must be filed (has not happened)

Overview of REDMA

• Mechanics of REDMA

• A developer must file an amendment to a disclosure statement in any case where a new disclosure statement is not required

• Paragraph (a) – Material Fact


“a fact or proposal to do something, that affects, or could reasonably be expected to affect, the value, price or use of the development unit or development property.”

• disclose all “Material Facts” or agreement not enforceable against purchasers.

Overview of REDMA

• Mechanics of REDMA

• New Disclosure Statement = Right of rescission

• Amendment to Disclosure Statement = No right of rescission

• (Section 21)

• A promise or an agreement to purchase or lease a development unit is not enforceable against a purchaser by a developer who has breached any provision of Part 2 [Marketing and Holding Deposits]

• (Section 23)

Overview of REDMA

• Practical Application

• Risks

• When and what to disclose

• Overview of sales centre