Canada: Province Announces Bill 73 The "Smart Growth For Our Communities Act"

Significant Changes to Provincial Land Use Planning Regime

The Ontario Ministry of Municipal Affairs and Housing has announced Bill 73, the "Smart Growth for Our Communities Act," which proposes significant changes to the Planning Act and DevelopmentCharges Act, 1997 which is intended to "give residents a greater, more meaningful say in how their communities grow," and "provide more opportunities to fund growth-related infrastructure like transit and recycling through the development charges system."

Bill 73 received first reading before the Legislative Assembly on March 5, 2015 and remains subject to revision as it moves through the legislative process; however, Bill 73 is evidence of the current government's commitment to enacting significant change to the land use planning regime in Ontario. As such, Bill 73 has implications for municipalities, developers, and stakeholders at all stages of the development process.

Key provisions of Bill 73 include:

A. Proposed Amendments To The Planning Act:

1. Two Year Moratoriums on Development Applications

  1. Official Plan Amendments: During the two year period following the day on which any part of a new official plan comes into effect, no applications to amend the new official plan would be permitted.
  2. Zoning By-law Amendments: During the two year period following the day that Council adopts a new comprehensive zoning by-law and repeals all other zoning by-laws in effect in a municipality, no applications to amend the zoning by-law would be permitted.
  3. Minor Variances: During the two year period following an owner initiated site specific zoning by-law amendment, a minor variance application for the same property would only be permitted with Council approval.

2. Proposed Limitations on Appeals to the Ontario Municipal Board

  1. Time Limit for Related Appeals: Following receipt of an appeal of the approval authority's failure to give notice of a decision respecting an official plan or an official plan amendment, the approval authority may give notice to persons and entities entitled to receive notice of a decision. Any Subsection 17(40) appeal of the same official plan or official plan amendment must be filed within 20 days of the date of such notice.
  2. No Global Official Plan Appeals: Global appeals of entire official plans would no longer be permitted.
  3. No Appeals With Respect to Proposed Amendments to Lower-Tier Official Plans if not in Conformitywith Upper-Tier Official Plan: No appeal will be permitted with respect to an application for an amendment to the official plan of a lower-tier municipality to the extent that the approval authority determines that the proposed amendment is not in conformity with the upper-tier municipality's official plan. The approval authority's decision in this regard would not be subject to appeal to the Ontario Municipal Board.
  4. Appeals to Specifically Identify Issues Relating to Inconsistency with Provincial Policy Statements orUpper-Tier Official Plans: Appellants arguing that a decision is inconsistent with a provincial policy statement, provincial plan or upper-tier municipal plans would be required to identify these issues in their notices of appeal, failing which the Ontario Municipal Board could dismiss all or part of the appeal without a hearing.
  5. Prohibition Against Appeals Relating to Certain Matters: No appeals would be permitted of any part of an official plan implementing certain matters relating to vulnerable areas under the CleanWater Act ; the Lake Simcoe watershed; a Greenbelt, Protected Countryside or specialty crop area under the Greenbelt Act ; the Oak Ridges Moraine Conservation Plan Area; Growth Plan forecasts; or settlement area boundaries in lower-tier official plans.

3.Council May Refer Appeals to Alternative Dispute Resolution Before Submitting them to the Ontario Municipal Board

On receipt of certain appeals, including appeals relating to official plan or zoning by-law amendments, consents or subdivision approvals, municipal Councils and other decision makers could elect to first refer the appeal to mediation or another form of alternative dispute resolution prior to submitting the record to the Ontario Municipal Board, in which case the time for submitting the record to the Ontario Municipal Board would be extended from 15 days to 75 days.

4. Additional Emphasis on Public Consultation and Requirement for Express Consideration of Submissions from the Public

  1. Alternative Forms of Public Consultation to be Extended to Plans of Subdivision and Consents:Municipalities would be entitled to make provision in their official plans for the use of alternative forms of public consultation for plans of subdivision and consents (alternative forms of public consultation are already permitted for official plan amendments and zoning by-law amendments).
  2. Official Plans to Articulate Procedure for Public Consultation: Official Plans would be required to include a description of public consultation procedures to be undertaken in respect of proposed official plan amendments, zoning by-law amendments, plans of subdivision and consents.
  3. Councils and Approval Authorities to be Required to Articulate the Effect of Oral and WrittenSubmissions on Development Approval Decisions: When issuing decisions on development approval applications such as official plan amendments, zoning by-law amendments, minor variances, consents, and plans of subdivision, municipal decision makers would be obliged to explain the effect of written and oral submissions received with respect to their decision on the application.

5. Ontario Municipal Board to "Have Regard To" Information and Material Received by Council Where Council Has Failed to Make a Decision

When deciding appeals resulting from the failure of a municipal Council or approval authority to make a decision, the Ontario Municipal Board would be required to "have regard to" information and material (including written and oral submissions from the public) received by the municipal Council or approval authority in relation to the matter, if any.

6. Extensions of 180 Day Period For Decisions on Official Plans and Official Plan Amendments

Currently, any person may appeal an approval authority's failure to give notice of decision in respect to an official plan or official plan amendment if a notice of decision is not delivered within 180 days. Bill 73 contemplates the extension of this period by the person or public body that requested the official plan amendment or, in the case of an official plan, by the municipality for an additional 90 days.

7. Potential for New Prescribed Criteria for Minor Variances

A new provision has been proposed which would allow the Minister to prescribe additional criteria governing the approval of minor variances over and above the existing four part test currently contained in Subsection 45(1) of the Planning Act. (No regulation containing additional criteria for the approval of minor variances is currently available).

8. Provincial Policy Statement and Official Plan Review Cycles Extended

Provincial Policy Statements would be reviewed on a ten year cycle as opposed to the current five year cycle. A new official plan would require revision ten-years after coming into effect and every five years thereafter.

9. Park Plan Requirements and Reduction in Cash–in-Lieu of Parkland for Residential Subdivisions

  1. Park Plans: Before adopting a by-law which provides for parkland dedications for residential subdivisions to be calculated on the basis of the number of units proposed, a municipality would have to have in place a park plan that examines the need for parkland in the municipality.
  2. Reduction in Limits for Cash-in-lieu of Parkland For Residential Subdivisions: Cash-in–lieu of parkland payable with respect to residential subdivisions would be calculated by using a rate of up to one hectare for each 500 dwelling units proposed, down from the current limit of one hectare for every 300 units.

10. Additional Transparency and Accounting Requirements for Section 37 Receipts 

Additional reporting requirements would be imposed on municipalities collecting money in respect of additional density benefits under Section 37 of the Planning Act. All money paid in respect of Section 37 would have to be paid into a special account.

11. Mandatory Planning and Advisory Committees

Planning and Advisory Committees, which have so far been optional for municipalities, would become mandatory for upper-tier municipalities and single-tier municipalities in southern Ontario (except the Township of Pelee).

12. Minister and Upper-Tier Municipalities May Impose a Development Permit System for Prescribed Purposes

The Minister would be empowered to make an order requiring a local municipality to adopt a development permit system for prescribed purposes. Upper-tier municipalities would also be empowered to pass by-laws imposing similar requirements on their lower-tier municipalities for these prescribed purposes.

B. Proposed Amendments To Development Charges Act

1. Increased Capital Cost Recovery for Transit Through Development Charges

The Development Charges Act currently provides that capital costs for services are to be reduced by 10% when calculating development charges, unless the service is included in the list of services for which no such reduction is required. Bill 73 would add transit to this list and would therefore increase the amount of transit related capital costs which can be included in development charges.

2. Additional Requirements for Development Charge Background Studies

The requirements for background studies would be expanded to include the preparation of an asset management plan dealing with all assets whose capital costs are proposed to be funded under the development charge by-law and demonstrating that all the assets are financially sustainable over their full life cycle.

3. Additional Reporting Obligations

The contents of the treasurer's financial statement would be expanded to include additional details on the use of funds.

Please contact a member of our Environmental, Municipal, Expropriations and Regulatory Group for more information about Bill 73 and its implications.

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