Canada: Review Of Bill 73 Smart Growth For Our Communities Act, 2015

On July 1, 2016, multiple Planning Act amendments introduced by Bill 73, Smart Growth for our Communities Act, 2015, ("Bill 73") came into effect. While other amendments came into effect when Bill 73 was passed on December 3, 2015, the key amendments came into effect on July 1, 2016. Corresponding revised Planning Act Regulations implementing these amendments also came into force on this date.  

Background

Continuing on the Government's path of Smart Growth for Smart Communities, Bill 73 emerged from two years of province-wide public consultation which were held between October 2013 and January, 2014.  Extensive workshops and stakeholder meetings were held across Ontario to discuss the land use planning and appeal system, and the development charges and Section 37 (density bonusing) systems.

Two inter-related issues emerged from this consultation – a continued lack of transparency and flexibility in the planning process, and a need to make the system of development charges more predictable and accountable. Accordingly, Bill 73 makes changes to both the Development Charges Act, and to the Planning Act.

Scope

In respect of changes to the Development Charges Act, Bill 73 should help municipalities better fund their growth, particularly public transit.  However, proposed changes will place increased requirements on municipalities in terms of the quality of required background studies underpinning the municipal development charge, and the reporting requirements placed on the municipal treasurer respecting the use of the development charge funds.

In respect of changes to the Planning Act, Bill 73 will provide municipalities with more control and stability over their planning instruments; Bill 73 will give residents more meaningful say in the future growth of their communities, and it will provide developers with more accountability in both the Section 37 density bonusing and the parkland dedication systems, again, through more rigorous annual reporting requirements placed on the municipal treasurer respecting the use of these funding mechanisms. Bill 73 will also give municipalities more independence and make it easier to resolve planning disputes.

Key Planning Act Changes

  • Ensures that "built form" will be considered in planning decisions by requiring that Official Plans contain policies that relate to the built environment.  Additionally, Section 2, Provincial Interest, is expanded by adding a built form consideration – "built form that is well designed, encourages a sense of place, provides for public places that are of high quality, safe, accessible, attractive and vibrant" (Section 2).
  • OMB must now have regard to all information received from the municipality when adjudicating non-decision appeals; this includes both written and oral submissions received at the municipal level (Section 2.1).
  • The Provincial Policy Statement review cycle has changed from 5 to 10 years (Section 3).
  • All upper tier municipalities and lower tier municipalities in southern Ontario are now required to establish Planning Advisory Committees ("PAC's"), comprised of at least one resident member. PAC recommendations are not binding (Section 8).
  • Municipal Official Plans must now include a description of measures and procedures for informing and obtaining the views of the public on official plan amendments, zoning bylaws, plans of subdivision and consents. Currently this is permitted, but not mandatory (Section 16).
  • Where the Minister is the approval authority, and the Official Plan or amendment is not exempt from its approval, municipalities must provide the draft Official Plan or amendment to the Minister at least 90 days prior to the giving of notice of public meeting (Section 17).
  • Municipalities are now authorized to expand alternative notice procedures for a broader list of planning matters including plans of subdivision and consents, and for additional processes i.e., complete application and open house notices (Section 17).
  • Implementation of provincial interests is further entrenched by eliminating the possibility of appeals where municipalities are simply implementing certain provincially approved matters into their planning documents (Section 17).
  • To assist in streamlining the planning approval process, the ability for an appellant to appeal an entire Official Plan is removed (Section 17).
  • The ability to appeal second unit policies at time of Official Plan update is removed (Section 17).
  • Appellants now need to specifically explain their reasons for appeal in the context of "inconsistency" with a provincial policy, or provincial plan or failure to conform with a municipal official plan.  A complementary change now gives the OMB the authority to dismiss an appeal if this added specificity has not been provided in the appeal letter (Sections 17 and 22). 
  • The approval authority and the applicant are now able to extend the 180 day decision timeline by up to an additional 90 days to resolve disputes without the threat of a 3rd party appeal (Section 17(40)).
  • After receiving a "non-decision" appeal, approval authorities now able to impose a maximum 20 day time limit for additional "non-decision" appeals. This helps streamline OMB hearings and allows for the focusing of appeals earlier in the process Section 17(41.1).
  • Notices of Decision of municipalities and approval authorities must now include an explanation of the effect that public input (both written and oral submissions) had on its decision making (Sections 17, 22, 34, 45, 51 and 53).
  • After an appeal is submitted, the municipality or approval authority is now able to determine if Alternative Dispute Resolution is an appropriate technique prior to sending the appeal record to the OMB, and where it is deemed appropriate, the deadline for forwarding the appeal record to the OMB would be extended to 75 days from the current 15 days (Sections 17, 22, 34, 51 and 53).
  • No privately initiated applications to amend a newly adopted Official Plan or a new comprehensive Zoning Bylaw are permitted within 2 years of the coming into force of these new instruments unless sanctioned by municipal council (Sections 22 and 34).
  • Municipalities are no longer required to revise their employment policies every 5 years in order to assist in preventing potential erosion of the employment land supply through OMB appeals (Section 26).
  • Currently, Section 26(1) requires Official Plan updating at 5 year intervals to ensure that it aligns with provincial policies. The revision schedule is adjusted to require revision 10 years after the official plan comes into force and at five year intervals thereafter (Section 26)
  • In the context of density bonusing, money collected shall be kept in a special account about which the municipal treasurer is required to release an annual financial statement (Section 37). 
  • To help incent acquisition of land for parks rather than collecting money, the maximum alternative rate has changed from 1 hectare for 300 units to 1 Hectare for every 500 units for cash-in-lieu (Section 42).
  • In order to better position municipalities to plan for parks and potential opportunities to acquire parkland, municipalities now required to develop park plans in consultation with school boards as a prerequisite to adopting new alternative parkland official plan policies (Section 42).
  • Similarly, in the context of an applicant-initiated zoning bylaw amendment, the ability to immediately apply for a minor variance has been removed – a 2-year freeze has been imposed unless permitted by municipal council (Section 45).
  • New authority through provincial regulation and through municipal bylaws for municipalities to establish additional criteria for assessment of Committee of Adjustment applications. Applications would be assessed based on the "4 tests" including any additional criteria in regulation and any local criteria established through municipal bylaw (Section 45).
  • Development Permit System renamed to Community Planning Permit System ("CPPS").  Name change meant to reflect the strength of this system – that community form and shape best determined by the community itself (Section 70).
  • No privately initiated amendments to the CPPS are allowed for 5 years unless supported by the municipality. New legislative authority authorizing Minister to establish a CPPS for specified purposes. No regulation is currently proposed (Section 70.2).

Key Development Charges Act Changes

  • Regulations may be made to require municipal councils to use development charge bylaws only with respect to prescribed services and areas (Section 2(9)) or to use different development charge bylaws for different parts of the municipality (Section 2(11)).
  • Transit services are added to the list of services for which no reduction of capital costs is required in determining development charges (Section 5(5)).
  • The requirements for development charge background studies are expanded to include consideration of the use of multiple development charge bylaws and preparation of an asset management plan Section 10(2)).
  • Background studies must be made available to the public within 60 days before the bylaw is passed and until the bylaw expires or is repealed (Section 10(4)).
  • In the context of phased development requiring multiple building, there is added clarity that the development charge for the whole is payable when the first building permit is issued (Section 26(1.1)).
  • The contents of the municipal treasurer's financial statement are expanded to include additional details on the use of funds (Section 59(1). New restrictions on the use of charges related to development gives the Minister power to investigate whether a municipality has complied with the restrictions and authorizes the Minister to require the municipality to pay the costs of the investigation (Section 59.1)).

New/Amended Planning Act Regulations (July 1, 2016)

  • Official Plans and Plan Amendments

O. Reg. 543/06 (amended by O. Reg. 180/16)

  • Zoning, Holding, Interim Control By-laws

O. Reg. 545/06 (amended by O. Reg. 179/16)

  • Plans of Subdivision

O. Reg. 544/06 (amended by O. Reg. 178/16)

  • Consent Applications

O. Reg. 197/96 (amended by O. Reg. 176/16)

  • Minor Variances

O. Reg. 200/96 (amended by O. Reg. 175/16)

  • Minister's Zoning Order – Requests to Amend or Revoke

O. Reg. 546/06 (amended by O. Reg. 177/16)

  • Transition – Matters and Proceedings

O. Reg. 174/16 (new regulation)

  • Development Permit System

O. Reg. 173/16 (new regulation; replaces prev. O. Reg. 608/06)

Transition

Under the transition regulations, pursuant to O.Reg 173/16, if a municipality introduces a new Official Plan, and if the first day that any part of the new plan comes into effect is on, or after, July 1, 2016, then the two-year prohibition period discussed in #13 above, will apply to any subsequent official plan amendment applications received by the municipality before July 1, 2018.

Similarly, In the context of a new comprehensive zoning bylaw passed on or after July 1, 2016, then the two-year prohibition period will apply to subsequent zoning bylaw amendment applications. However, if the new comprehensive zoning bylaw is passed before July 1, 2016, then the two-year prohibition period will not apply to subsequent zoning bylaw amendment applications received by the municipality before July 1, 2018.

With respect to minor variance applications, if an owner-initiated minor variance application is passed on or after July 1, 2016, then the two-year prohibition period will apply to subsequent minor variance applications. However, if the owner-initiated minor variance application is passed by July 1, 2016, then the two-year prohibition period will not apply to subsequent minor variance applications received by the municipality before July 1, 2018.

With respect to a Community Planning Permit System, if a bylaw establishing such system is passed before July 1, 2016, then the five-year prohibition period as discussed in #20 above, will not apply to any subsequent application to amend this bylaw, provided that such amendment application is initiated before July 1, 2021.

Similarly, a request to amend related official plan policies to a Community Planning Permit System will also not be subject to the five-year prohibition period unless the request is to amend policies relating to a Community Planning Permit System that was established by a bylaw passed on or after July 1, 2016.

Analysis

Bill 73 is broad in scope, designed to increase the transparency of the planning process, to enhance citizen participation, to support investment in growth, and elevate the use of dispute resolution as a way to reduce OMB hearing time. Municipalities will also be provided with greater control over their official plan and zoning instruments, but there are concerns.   

For example, the two year moratorium on minor variance applications following a site-specific rezoning is very onerous as it will place significantly more up-front pressure to get the fine details of the redevelopment concept right, before going to Council for the bylaw amendment.

Also of concern is the extension of the review cycle of a "new" official plan from 5 to 10 years.  This is concerning given that the Bill 73 is not clear on what constitutes a "new" official plan.  It means that urban boundary expansions and employment land conversions could effectively be frozen, raising the prospects of more appeals to the new official plan as a way to protect future development interests.

The planning review period of 180 days is already generous.  The municipality, if it unilaterally decides at the end of the process that alternative dispute resolution is a preferred approach, then the proponent will now be delayed by an additional two months in a process that he may otherwise choose not to be a party to.  

It will be interesting to monitor the new power of the Minister to order a municipality to adopt a Community Planning Permit System (CPPS) for prescribed purposes.  With the increased focus of the provincial government on the coordination of land use intensification and infrastructure investment in strategic growth areas, it may be that the province is setting up to direct more detailed planning using the CPPS in strategic locations (for example along Priority Transit Areas, or around Major Transit Station Areas), in order to force more mixed-use development, and build up densities that have historically been kept low in these areas.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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