Canada: Provinces Passes Bill 73, The "Smart Growth For Our Communities Act, 2015"

Bill 73 at First Reading

On December 3, 2015, the Ontario Ministry of Municipal Affairs and Housing passed Bill 73, "Smart Growth for Our Communities Act, 2015". Bill 73 proposes the most significant reform to the planning and development law regime in almost a decade and involves over 120 amendments to the Planning Act and the Development Charges Act, 1997.

According to the Ministry, the intent of Bill 73 is to give Ontario's residents a greater say in how their communities grow, provide municipalities with more opportunities to fund growth-related infrastructure and community services, give municipalities more independence to make local decisions and make it easier to resolve disputes. A comprehensive review of the changes proposed by Bill 73 on its First Reading on March 5, 2015 is provided in the BLG Bulletin, Province Announces Bill 73, the "Smart Growth for Our Communities Act".

Some of the key changes to the Planning Act include:

  1. Imposing a two-year moratorium to certain development applications, including applications to amend a new official plan, applications to amend a global replacement of a municipality's zoning by-laws and applications for minor variances following an owner-initiated site specific re-zoning.
  2. Narrowing the scope of appeals that may proceed to the OMB by:

    1. prohibiting certain appeals to an official plan, including "global" appeals, appeals to certain Provincially-protected areas like the Greenbelt Protected Countryside, appeals to population and employment forecasts identified under the Growth Plan and appeals to settlement area boundaries in lower-tier official plans if the boundaries are reflected in an approved upper-tier official plan;
    2. requiring appellants to an official plan or zoning by-law alleging inconsistency, non-conformity or conflict with the relevant provincial plans, policy statements and official plans to explain the alleged inconsistency, non-conformity or conflict in their notice of appeal;
    3. allowing approval authorities to set a "sunset clause" for appeals to a non-decision of an official plan by providing notice after receiving notices of appeal to the official plan; and
    4. prohibiting upper-tier municipalities from approving a lower-tier official plan if the lower-tier official plan does not conform to the upper-tier official plan, and effectively prohibiting any appeals to the lower-tier municipality for non-decision by the approval authority until the non-conformity is resolved.
  3. Providing municipalities with alternative mechanisms to resolve disputes after a notice of appeal has been filed, by allowing municipalities to invoke mediation, conciliation or other dispute resolution techniques within a certain period of time before forwarding the matter to the OMB.
  4. Requiring committees of adjustment to apply prescribed criteria for minor variances if the criteria have been established by the Minister, in addition to the test for minor variance established under Section 45(1).
  5. Extending the review period for policy statements and new official plans from 5 years to 10 years, including the requirement for the Minister to review policy statements and the requirement for municipalities to review a new official plan.
  6. Promoting greater transparency and accountability throughout the development approval process, by:

    1. requiring councils and approval authorities to explain the effect of written and oral submissions on their decisions;
    2. setting a process for the collection and use of moneys received through Section 37 agreements through a "special account" and requiring that financial statements relating to this special account be reported to council and made available to the public on a yearly basis;
    3. requiring municipalities to establish a parks plan to identify the need for parkland before requiring parkland dedication and requiring that financial statements relating to the special account established for cash-in-lieu of parkland be reported to council and made available to the public on a yearly basis; and
    4. requiring official plans to set out the public consultation procedures to be undertaken for proposed plans of subdivision and consents and permitting municipalities to use alternative forms of public consultation for this purpose.

The key changes to the Development Charges Act, 1997, while arguably not as extensive as those to the Planning Act, include (a) allowing municipalities to recover capital costs for transit, (b) moving the list of ineligible services from the legislation into the regulations, and (c) requiring the preparation of an asset management plan as part of the development charge ("DC") background study.

Amendments to Bill 73 Since First Reading

Although the version of Bill 73 that received Royal Assent is by and large the version introduced to the Legislature for First Reading, there are a few significant amendments made by the Standing Committee on Social Policy that warrant further review. The key changes to both the Planning Act and the Development Charges Act, 1997 since First Reading are listed below:

  1. The two-year moratorium on certain development applications can be waived by municipalities (Planning Act) — As noted earlier, Bill 73 had originally imposed a two-year moratorium on applications to amend a new official plan, a global replacement of a zoning by-law or an owner-initiated site specific rezoning. Municipalities can now waive this moratorium with council approval on a specific application, class of applications or on a general basis.
  2. Municipalities may pass by-laws establishing additional criteria for minor variances (Planning Act) — In addition to the prescribed criteria that may be set by the Minister, Bill 73 now permits municipalities to pass by-laws setting out the criteria required to be met before a minor variance can be authorized by the committee of adjustment. These by-laws can be appealed to the OMB in a manner similar to the process for appealing zoning by-law amendments.
  3. The promotion of built form is recognized as a matter of provincial interest (Planning Act) — Under Section 2 of the Planning Act, decision-makers must have regard for matters of provincial interest including the protection of ecological systems and agricultural resources, the supply, efficient use and conservation of energy and water and the protection of public health and safety. Bill 73 adds the promotion of built form that is "well-designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant" to this list of matters of provincial interest.
  4. Municipalities must publish the DC background study in advance of passing a DC by-law (Development Charges Act, 1997) — Currently, municipalities must complete a DC background study before they are permitted to pass a DC by-law. However, there is no requirement that this study be made available to the public. Bill 73 now requires that this study be made available at least 60 days prior to the passing of the DC by-law through the municipality's website or, if there is no website, at the municipal office.

Final Thoughts

The general thrust of the amendments proposed by the Standing Committee to Bill 73 is consistent with the Ministry's intent.

First, the Planning Act amendments clearly offer more flexibility to municipalities in managing their land use planning affairs. Granting municipalities the freedom to set criteria for minor variances and recognizing built form that "encourages a sense of place" as a matter of provincial interest provide decision-makers with more authority to justify differences in planning decisions among municipalities. The Legislature's shift away from a "one size fits all" approach to planning is consistent with the recent changes to the Provincial Policy Statement (2014), which recognize that municipalities across Ontario are diverse and that local context is important.

Second, the requirement to publish DC background studies before a by-law is passed underscores the importance of providing the public with access to documents earlier, rather than later, in the municipal decision-making process to promote greater transparency and accountability.

Given the scope of amendments, both old and new, it is evident that Bill 73 represents a fundamental shift in the way municipalities, developers and other stakeholders must practice at all stages of the development process. How the OMB and the courts interpret (a) the new requirements imposed on councils, approval authorities and appellants alike, and (b) the differences in decision-making among municipalities as permitted by Bill 73, while still maintaining good planning principles, will dictate how the intent of this Bill as expressed by the Legislature will be captured in future planning processes for years to come.

Although certain provisions of Bill 73 are in force as of Royal Assent (December 3, 2015), the majority of the amendments will come into force on a day to be named by proclamation of the Lieutenant Governor.

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