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Provincial Government Announces Sweeping Overhaul of The Land Use Planning Regime

Ontario’s Municipal Housing and Affairs Minister, Steve Clark, recently presented the province’s plan to address the province’s housing crisis, with Bill 108, the More Homes, More Choices Act, 2019, receiving its First Reading on May 2, 2019. The bill proposes extensive changes to the planning approval process, undoing many of the significant amendments to the process introduced by the previous government through Bill 139 (the Building Better Communities and Conserving Watersheds Act, 2017). A key component of the Government’s Housing Supply Action Plan, the stated purpose of Bill 108 is to increase housing affordability by facilitating the quick delivery of increased housing supply. In order to achieve this purpose, the following thirteen statutes are proposed to be amended:

  • Cannabis Control Act, 2017
  • Conservation Authorities Act
  • Development Charges Act, 1997
  • Education Act
  • Endangered Species Act, 2007
  • Environmental Assessment Act
  • Environmental Protection Act
  • Labour Relations Act, 1995
  • Local Planning Appeal Tribunal Act, 2017
  • Occupational Health and Safety Act
  • Ontario Heritage Act
  • Planning Act
  • Workplace Safety and Insurance Act, 1997

The Province has further announced that the Growth Plan for the Greater Golden Horseshoe, 2017 (the “Growth Plan”) is being revised. It is also anticipated that the LPAT (Local Planning Appeal Tribunal) Rules of Practice and Procedure will be modified when the LPAT Act revisions come into full force and effect.

Proposed revisions to the Development Charges Act, the Education Act, the Local Planning Appeal Tribunal Act, and the Planning Act are summarized below.

The Development Charges Act

Bill 108 puts forward several key changes to the Development Charges Act, 1997 (the “DCA”), including:

  • Amending Section 2(4) to set out the only services in respect of which a development charge by-law may impose development charges. The services are those currently listed in Section 5(5), which is repealed, and waste diversion services.
  • Establishing the payment schedule for development charges in respect of the following five types of development: rental housing, institutional, industrial, commercial and non-profit housing. Unless certain exemptions apply, the charge is payable in six (6) annual installments commencing on the earlier of the date of the issuance of a building permit and the date the building is first occupied.
  • Setting out the rules for when the amount of a development charge is determined: development charges are to be calculated based on the date of an application for site plan approval or, if there is no site plan approval application, on the date of an application for rezoning. If neither application has been made, the amount continues to be determined under Section 26 of the DCA, generally upon the issuance of a building permit for the development/redevelopment giving rise to the charge.
  • Transition rules are provided to allow coordination of development charge by-laws and the new community benefits by-laws under the Planning Act.

The Education Act

Bill 108 would grant the Minister greater oversight over the expropriating authority of School Boards. Under current legislation, a School Board, like municipalities, can act as both an expropriating authority and an approval authority in acquiring property for school sites. The proposed amendments would mandate Ministerial consent over any projected property takings by the Boards. Projected revisions include:

  • Giving the Minister notice if a School Board plans to acquire or expropriate land and providing the Minister with the opportunity to reject the Board’s plans.
  • Providing for alternative projects which, if requested by a School Board and approved by the Minister, would allow for the allocation of revenue from education development charge by-laws for projects that would meet the needs of the Board for pupil accommodation.
  • Providing for localized education development agreements which would allow an owner to provide a lease, real property or another perceived benefit to be utilized by the School Board for pupil accommodation in exchange for the Board agreeing not to impose education development charges against the land.

The Local Planning Appeal Tribunal Act

Bill 108 does not reverse the existing policy on mandatory case management conferences. However, key amendments to the current LPAT Act include:

  • Amending the restrictions on parties’ ability to introduce evidence and examine and cross-examine witnesses at hearings.
  • Granting the LPAT the power to limit any examination or cross-examination of a witness if the LPAT is satisfied that all matters relevant to the issues have been fully or fairly canvassed, or in other circumstances that the Tribunal considers fair and appropriate.
  • Limiting the submissions by non-parties to a proceeding before the Tribunal to written submissions and authorizing the Tribunal to examine such parties.
  • Repealing the provisions authorizing the LPAT to state a case to the Divisional Court on a question of law.
  • Providing for mandatory mediation in certain circumstances.

The Planning Act 

Not all of the previous government's amendments are proposed to be reversed. Bill 108's key non-reversals which retain some of the previous government reforms include:

  • Municipalities may still include policies in their official plans identifying and delineating Major Transit Station Areas (“MTSA”) and identifying minimum residents and jobs per hectare, authorized uses and minimum densities within such MTSA’s.
  • The two-year prohibition on applications to amend secondary plans and to amend or obtain minor variances to zoning by-laws following the approval of site-specific or comprehensive zoning by-laws continues in effect.
  • The Minister remains the only person who can appeal the initial passing of an interim control by-law.
  • There remains no right to appeal the Minister’s decision if the Minister is the approving authority for an official plan/official plan amendment.

Bill 108's key reversals to the changes made by the former Liberal government include:

  • Repealing the requirement that appeals of certain planning instruments be based solely on the ground that the approval of the instrument is inconsistent with the Provincial Policy Statement, fails to conform or conflicts with a provincial plan or fails to conform with an official plan. This change reintroduces the good planning test as the basis for decisions.
  • Repealing the current process by establishing the two-step appeal process for certain appeals.
  • Requiring municipal official plans to contain policies authorizing two residential units in a house and one residential unit in a building or structure ancillary to a home.
  • Limiting the use of inclusionary zoning (ensuring housing availability for a range of income levels) to those areas identified as a protected major transit station area or an area where a development permit system has been adopted or established in response to an order of the Minister.
  • Reducing the municipal processing period for development applications during which appeals may not be filed, as follows:
    • Official Plan/Official Plan Amendment – 120 days (from 210 days)
    • Zoning By-law Amendment – 90 days (from 150 days)
    • Draft Plan of Subdivision – 120 days (from 180 days
  • Reducing the processing timeline and limiting the right to appeal such non-decisions to the Municipality that adopted the plan, the Minister and, in the case of an amendment initiated under Section 22, the person or public body that requested the amendment.
  • Repealing and replacing Section 37 (height and density zoning). As re-enacted, Section 37 permits a municipality which has a community benefits charge strategy that permits facilities, services and matters to be funded by community benefits charges to pass a by-law imposing community benefits charges against land to pay for the capital costs of the identified facilities, services and matters that are required because of development or redevelopment within the area to which the by-law applies.
    • The proposed charge would apply to an approval of:
      • Zoning by-law or zoning by-law amendment
      • Plan of subdivision
      • Minor variance
      • Plan of condominium
      • Building permit
    • A community benefits charge cannot be imposed with regard to services and facilities that are prescribed or that are associated with any of the services set out in Section 2(4) of the Development Charges Act, 1997.
    • The amount of the community benefits charge will be capped in the regulations (as yet unavailable) as a prescribed percentage of the value of the land as of the day before the issuance of a building permit in response of the development/redevelopment.
    • A dispute resolution mechanism is provided in cases where landowners believe that the charge exceeds the maximum allowable charge under the regulations.
    • All money received under a community benefit charge by-law must be paid into a special account, and 60% of the monies in the special account must be spent or allocated each year.
    • Transmitted provisions relating only to Section 37 are provided.
  • Amending Section 42 to provide that, subject to a specified exception, a parkland dedication by-law passed under Section 42(1) is of no force and effect if a community benefits charge by-law passed under the new Section 37 is in effect. The alternative parkland requirement for residential development/redevelopment is proposed to be replaced.
  • Under Section 51(48), restricting the person who can appeal an approval of a draft plan of subdivision to those listed in new subsection 81(48.3). The listed persons are utilities and infrastructure operators.
  • Providing that development/redevelopment with a plan of subdivision is not subject to a community benefits charge by-law if the plan of subdivision is subject to a parkland dedication condition under Section 51.1. The alternative requirement is proposed to be repealed for parkland dedication under Section 51.1 as well.
  • Allowing the Minister to require a local municipality to adopt or establish a development permit system that applies to a specified area or to the area surrounding and including a specified location. If the order specifies a location, as opposed to an area, the local municipality is required to establish the system in respect of the location and has discretion to determine the boundaries of the surrounding area.
  • Granting the Minister the power to make regulations regarding the details of the new Section 37 and the new development permit process as transitional provisions.

Bill 108 may not be in its final form, and the proposed regulations have not yet been released. They are expected to deal with a number of details, including the transitional rules. Scargall Owen-King will continue to monitor Bill 108 and related provincial initiatives and to provide periodic updates regarding the effect of these initiatives on the planning regime in Ontario.

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