Planning Act amendments in effect - Questions remain

NRU
July 6, 2016
By Geordie Gordon

Among the amendments to the Planning Act that came into effect July 1, the one that is most concerning to lawyers and municipal staff is the two-year ban on minor variance applications following an owner-initiated zoning by-law amendment.

Intended to prevent developers from gaining additional height and density through the variance process following a re-zoning application, Stikeman Elliot associate Maggie Bassani told NRU that the two-year timeout period for minor variance applications will negatively impact the flexibility of the planning process, even with municipal councils’ ability to override the prohibition by resolution.

“This prohibition also fails to afford the flexibility for some changes that are appropriate to go through the variance process. Oftentimes when you’re going through the construction process....some technical and very necessary changes are brought forward after re-zoning,” she said. “Sometimes we are talking about [a change] of a few inches... I do think that is most appropriate to go through the variance process.”

Bassani said that while the owner may ask council to permit an exception to the prohibition, it can become a political decision, which may depend, in part, on how controversial the project approval process was.

“There’s no guarantee that council will give [the owner] this permission, so the question comes up, does that mean [the owner] is going to have to go through another re-zoning to afford a change of a couple of inches?” she said.

Prior to a July 5 briefing of Hamilton’s Planning Committee, chief planner Steve Robichaud told NRU that the minor variance prohibition will have a significant impact on the planning process. Not being able to “tidy things up” through minor variances at the site plan stage makes it important to identify all necessary variance through the rezoning process.

“It puts a bit more onus both on the applicant and on staff to ensure that those site-specific zoning by-laws capture all the necessary amendments to the by-law,” he said.

Robichaud said that the prohibition will also provide a greater degree of certainty during the rezoning process, especially in instances of protracted applications that involve the surrounding community. “You [can’t] just rezone a property today and then tomorrow [the owner] comes in for variances that could have the effect of changing what was agreed to with the community,” he said.

While less concerning the implementation of other Planning Act amendments are raising questions, including the ability of a municipality to voluntarily pursue alternative dispute resolutions, such as mediation, at the local level when an appeal is fi led at the OMB. Municipalities are now able to extend the time period within which it is required to forward information related the appeal to the OMB from 15 to 75 days if they intend to pursue a mediation process.

Bassani said that there are a lot of questions surrounding the alternative dispute resolution process, such as who will be paying- the municipality or the applicant. But a bigger question she says is whether the process will be effective, given that OMB-led mediations are effective, in part, because of the board members’ expertise.

“Right now, [OMB] assisted mediation has been very effective... but we don’t know who these [municipal] mediators will be. Will they have subject matter expertise? I would hope so, otherwise it may not produce the goals and objectives that it’s intended to achieve,” she said.

While the intent of the amendment is good, Bassani said there are concerns that local mediation could be used as a delay tactic. This concern is based on the wording of the amendment, which says the extension is dependent on a notice of council, not acceptance of the invitation to engage in alternative dispute resolution.

“Based on the reading [of the act], the extension of 15 to 75 days to forward the appeals record still applies, even if the invitees decline the invitation to participate,” she said. Hamilton council adopted a formal mediation process in 2003, and Robichard said staff have been trained on how to be effective mediators. But staff will be reviewing current practices to identify opportunities to avoid proceeding to the OMB. He said the extension will give municipalities more time to address and potentially resolve issues.

“Rather than having to go through that whole process of preparing appeal packages and sending it all to the board... this would allow us to say what ‘is the issue here, and is there a way that we can quickly resolve this issue without having to go through the process of a formal OMB appeal?’” he said.

Hamilton Ward 11 councillor and planning committee chair Brenda Johnson told NRU that one of the amendments that her council colleagues are happy about is the municipality’s ability to extend the approval period for official plan amendments for an additional 90 days-a total of 270 days from the time an application is deemed complete.

“We’re really excited about that, because we’ve had the odd developer who has circumvented the process and jumped right to the OMB after a non-decision within that 180 days. And often times it’s because it’s a very complicated application and it takes a long time to go through everything,” she said.

Johnson said that with the additional review time, council should be in a better position to respond to applications. This will help to avoid difficult situations where council is unsure how to direct staff to respond to OMB appeals based on council’s failure to make a decision.

Other amendments that came into effect include the requirement that municipal councils report on how public input, such as letters and deputations, are factored into the planning decision making process. Additionally, municipalities are permitted to develop local criteria on what constitutes a minor variance.

Most of the amendments to the Planning Act contained in the Smart Growth for Our Communities Act came into effect July 1, coinciding with the enactment of revised Planning Act regulations. A few amendments came into effect December 3, 2015. The remaining amendments are mostly technical in nature and relate to the subdivision of land. It is not known when they will come into effect.