Municipal Real Estate Law | Brownfield Redevelopment | Land-Use Planning
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What is a Brownfield?
Brownfields are potentially contaminated lands due to historical uses, such as commercial, manufacturing or industrial. Brownfields may contain environmental contaminants due to the historical lack of regulation of environmental contamination prior to the introduction of the Environmental Protection Act in 1971. Previously, there were no regulations preventing property owners from polluting their own land so long as it did not interfere with the rights of others. Brownfield lands are typically underutilized, abandoned or vacant and are often located within key or downtown areas with historical or cultural significance to the community.
People often fear redevelopment of these areas because of the potential chemical contamination. While it is more complex to redevelop a brownfield area as opposed to a greenfield area, this type of redevelopment is becoming increasingly popular as a response to a trend towards greater intensification and sustainable growth.
The Benefits of Brownfield Redevelopment
Brownfield redevelopment is beneficial for municipalities for the following reasons:
- Remediation of pollution
- An opportunity for intensification and more sustainable growth
- Brownfields are often located in central areas, such as in the downtown core or along waterfronts
- An opportunity to revitalize older neighbourhoods
- Provides new development and employment opportunities
Despite the increased risks and time involved in a brownfield redevelopment project, these projects can be very viable for land use planners and developers for the following reasons:
- Can be very profitable, especially where market demand for the location is high
- Brownfield areas are often overlooked for redevelopment
- Municipalities often offer incentives to encourage redevelopment of these areas through grants or tax benefits
Record of Site Condition
When a developer wants to redevelop on brownfield land they must demonstrate that the property is safe. Anytime that a property is redeveloped to a more sensitive use, such as a residential or retail use, a Record of Site Condition (“RSC”) must be filed with the Municipality and the Ministry of Environment and Climate Change (“MOE”). For example, redevelopment of a former gas station into a condominium building would require a RSC to be filed.
The RSC is a report that details the environmental condition of a property at a specific point in time. If the property meets the environmental standards set out by the province, the RSC will be filed on the Brownfield Environmental Site Registry and the redevelopment will be permitted. Before a RSC can be created, an Environmental Assessment (“EA”) must be conducted.
The Environmental Assessment
The EA is completed in two phases. In the first phase, previous use of the property is reviewed to determine the likelihood that chemical pollutants are present in the land. If the phase one assessment has identified a potential contaminate, a phase two assessment will be necessary. Phase two is a more in depth assessment, characterizing the location and concentration of the substances.
EAs must be completed by a qualified person who meets the provincial regulation requirements.
Once the environmental assessments are completed, the project can be approved in one of the following two ways:
- The Generic Approach
If the project meets the appropriate human and ecological health standards, the project may be approved. The standards used in this approach consider all of the ways humans, plants and animals may be exposed to contamination.
- The Property Specific Approach (Risk Assessment)
If the project does not meet the appropriate standards, approval can be obtained from the MOE for property-specific standards. A qualified person must complete a risk assessment report and submit it to the MOE. The report may detail the potential uses of the property and may provide information demonstrating that certain types of exposure are unlikely to occur. The MOE will respond to the risk assessment and may require remediation work to be completed before a RSC can be filed.
Municipalities as Key Partners
Municipalities play a significant role in encouraging brownfield redevelopment within their communities. Municipalities can remove barriers to redevelopment by decreasing wait times for processing the necessary approvals and by creating a long-term community vision for the brownfield area to reduce any negative stigmas attached to the land.
Municipalities can offer incentives to encourage brownfield redevelopment, such as community improvement plans, grants or tax assistance. For example, the City of Waterloo and the Region of Waterloo offer a Joint Tax Increment Grant program to encourage the remediation of brownfield sites. This sort of financial assistance can offset the costs and risks to developers.
Brownfield Redevelopment in Ontario
This type of development has significantly increased throughout Ontario in areas such as Toronto, Waterloo Region and Mississauga as a response to a trend towards greater intensification and sustainable growth.
Toronto has several redevelopment projects along the downtown waterfront area, historically used for industrial purposes. One major redevelopment project is the Port Lands project, involving the redevelopment of 356 hectares of waterfront port lands into new communities. Due diligence efforts have determined that the area requires flood protection measures and significant infrastructure, such as roads, parks and bridges to be built. Construction has begun on this project and will take over 20 years to complete. Another area that is being redeveloped along the waterfront is East Bayfront. This underutilized waterfront area is being redeveloped into a mixed-use community.
Mississauga has a major ongoing brownfield redevelopment project in the Port Credit West lakefront area. This 73-acre site is being redeveloped into a waterfront community with a variety of housing units.
Waterloo Region and the City of Kitchener completed a brownfield redevelopment project in 2016 in the downtown core of Kitchener. An abandoned industrial site on Breithaupt Street containing pollutants such as hydrocarbons, zinc and benzene was transformed into showcase offices. This project has increased employment opportunities in downtown Kitchener.
Conclusion
While brownfield redevelopment may be more time-consuming and riskier than greenfield redevelopment, with Municipal incentives and cooperation, brownfield redevelopment can be a viable project for land-use planers and developers. Lawyers can assist with development goals by offering guidance with applications and appeals relating to official plans, zoning by-laws, rezoning of lands, plans of subdivision, severances and minor variances.
Please contact Michael Paiva for more information about brownfield redevelopment, or if you require assistance with a redevelopment project.
