What we know and don’t know about Ontario’s massive new housing law

Thestar.com
May 7, 2019
Jennifer Pagliaro

The PC government introduced a complex piece of housing legislation Thursday.

Among other things, the Doug Ford government bill means that planning disputes will be handled under the old Ontario Municipal Board (OMB) rules. The bill is also aimed at opening up opportunities for “missing middle” densification, and changes the structure of some charges paid by developers.

The new housing bill, among other things, changes the structure of some charges paid by developers.

Here is what we know, don’t know and are wondering.

What is the OMB and how does it work?

The OMB was a provincial tribunal created in 1906 which handled most land use disputes for more than 100 years.

Under the new legislation, the OMB rules will again be in effect.

Municipal councils are responsible for voting on development applications that don’t conform with the rules the city has in place and requests to amend what can be built where -- like when a developer wants to build a highrise where only a midrise building is permitted or convert lands designated for employment use to allow a condo there.

Change will come slowly despite OMB reforms

It’s up to a city council to reject or accept applications after planning staff and others responsible for water, parkland, waste disposal and more weigh in and provide a recommendation.

The decision of council can then be appealed to the OMB. If council has approved the development, it might be neighbourhood groups who appeal. If council has rejected the application, the developer often appeals.

At the OMB, all sides involved might try to mediate the case and come to a settlement agreement. In some cases, appeals are dismissed.

If not, the case goes to a hearing, which operates much like a court and is presided over by appointed adjudicators. Each party involved presents a case, including new evidence about why the application did or did not represent good planning, guided by the province’s Growth Plan and other provincial policy.

In practice, this means developers can essentially relitigate their case as new at what is known as a “de novo” hearing and as though the council decision had never happened. The board has the power to order the proposed development be allowed, modify it, or reject it outright.

That power made it contentious in cities like Toronto, where the fast pace of growth has left some communities overwhelmed and lacking access to local schools, recreation spaces, libraries and other community amenities.

In 2017, the former Liberal provincial government moved to scrap the tribunal both in name and process. Looking to provide more deference to local decision-making, that government created a reformed tribunal called the Local Planning Appeal Tribunal (LPAT).

The power of the OMB was significantly curbed, with appeals to the LPAT only allowed on the basis there was an argument the municipal council had not adhered to provincial policy in making its decision. The LPAT adjudicators, if they agreed the council had erred, would only be able to send the case back to that council for review.

Though the OMB rules will once again be in place, the LPAT name will remain.

How will changes affect the yellowbelt?

Will Thursday’s Housing Supply Action plan open up neighbourhoods of detached homes, known in Toronto as the yellowbelt, to denser housing? And how will it help build more “missing middle” homes -- alternatives to towers and suburban style single-family homes?

Housing Minister Steve Clark has repeatedly signalled the need for more missing middle homes. But there is nothing explicit in Thursday’s More Housing, More Choice bill. Nor does it speak directly to intensifying stable neighbourhoods where zoning rules discourage building duplexes, triplexes and other denser housing forms.

There is some implied support, however, says private planner Sean Galbraith.

He calls the bill’s references to secondary suites “good stuff” that could see some intensification of stable neighbourhoods. Under the proposed changes, homeowners and builders could add secondary units in the form of laneway homes, coach houses and garages. Development charges on secondary suites would no longer apply to new construction homes.

If more of the 30,000 to 35,000 homes built in Ontario each year had a second unit, that would create a lot more rentals, says the government.

“The bones of this were already in the growth plan in 2006 but the province let the municipalities get away with a different interpretation,” Galbraith said.

“What the bill doesn’t say is anything about the yellowbelt,” he said. But changing the provincial policy statement “to encourage more and different types of housing” could imply denser kinds of homes in established neighbourhoods.

What about the Greenbelt?

Clark said the environmentally protected Greenbelt area around Toronto won’t be touched under changes to the growth plan that are part of the housing bill. But the legislation would give local governments more autonomy over where they intensify and to put homes closer to jobs, he said.

“We’ve tried to make sure the growth plan for the Greater Golden Horseshoe gave those local communities that flexibility in a more gentle way than they’ve been able to experience before,” he said.

Environmental Defence executive director Tim Gray said the bill’s previously announced lower density targets will encourage more sprawl particularly in the less urban areas farther from Toronto, using up the land available for housing faster.

“It brings the cities up against the Greenbelt more quickly. It sets the stage where you can try and create the argument we need the Greenbelt now,” he said.

What are community benefits and how will developers pay for them?

Under the current system, the city has several avenues to pay for needed infrastructure and services for local communities that result from new development.

Under the Development Charges Act, developers must “help pay for the capital costs of infrastructure that is needed to service new development,” the city’s website says. In Toronto, that includes helping to pay for new transit like the Toronto-York-Spadina subway extension or local needs like libraries and child-care.

Under the Planning Act, the city can also negotiate for community benefits payments, sometimes called density bonusing or what are known as section 37 funds, from developers wanting to build taller or denser than rules allow. Those funds pay for securing affordable housing units, public art or child-care benefiting the local community impacted by that specific development -- what a city guideline document calls an “essential tool.”

And under a separate section of the act, the city can ensure the developer provides parkland on the site of their development or cash-in-lieu of that land.

Under the proposed legislation introduced Thursday, some of the services and infrastructure currently under the development charges regime, section 37 funds and parkland dedication would be folded into one new tool called the “community benefits charge.”

The city would have to pass a bylaw in order to use this tool, after deciding on a strategy about which capital costs the charge would pay for and how much would be charged.

Any city that adopts a community benefits charge would no longer be allowed to secure parkland on a development through the existing Planning Act rules.

The province is also proposing a cap on what can be charged under the new community benefits tool. The amount charged would not be allowed to exceed a certain percentage of the land value of a development. The percentage will be set through regulation and has yet to be decided, a provincial spokesperson said.

The new rules also say the city must spend or allocate 60 per cent of all money in the special account for community benefits charges each year.