CONSULTATION FINISHES: Provincial review of planning system

NRU
January 15, 2014
By Edward LaRusic

The provincial consultation on the land-use planning and development charges systems has ended, and municipalities have commented on what should change, what should have been asked. The compressed stakeholder consultation timeframe also drew some attention. Ontario Professional Planners Institute director Scott Tousaw says that OPPI welcomes the review.

“We appreciate the province’s interest in opening for discussion the land use planning process, and that like many stakeholders, OPPI has many suggestions for improvement, and those are contained in its submission.”

Oakville planning services director Dana Anderson agrees.

“It’s good that they’re doing this review, as the system absolutely needs to be reviewed.”

Anderson, along with other planning directors in Halton Region, made a joint submission to the Ministry of Municipal Affairs and Housing. NRU spoke with Anderson and Tousaw about key measures they hoped the province would implement. The first is the need to coordinate the cycles for reviews and updates in response to provincial policy releases to prevent municipalities from being in a constant state of conformity exercises. One issue is simply the sheer amount of documents that municipalities must conform to.

“There are many levels of documents, and there are more provincial direction documents than there used to be, such as the Greenbelt Act, the Growth Plan for the Greater Golden Horseshoe, and the Provincial Policy Statement,” said Tousaw. “One of the comments that we heard was that it can put municipalities into a constant state of review. It results in an ever-changing landscape, so it would be helpful if the documents were more coordinated both in their content, and in their review schedules.”

“Right now, the provincial plans that come out are all on different timeframes,” Anderson said. “Some of them are five-year, some of them are 10-year, and then we’re [also] trying to coordinate all five-year reviews both at a municipal level and a regional level. I think there has to be some way to handle these reviews in a comprehensive and coordinated way.”

Second, is the question of what can be appealed and when, particularly in regard to official plans. Anderson felt that private developers should not be allowed to appeal approved plans.

“If the province, the region, city council and the [OMB] have all said yes to a plan, to continue to open it up to private appeals makes no sense.” Tousaw agrees.

“There are tweaks that could be made to the system around timelines, and what is appealable.”

OPPI recommends that whole plans, such as official plans, not be appealable and that different thresholds be introduced to determine whether an appeal will be allowed. It also suggests that alternative OMB hearing formats be established for differing types of applications. Third, Anderson said that it should be more difficult to launch an appeal, especially given how relatively easy it is to become a party at the OMB.

“I think that threshold needs to raised, not to the extent of excluding parties, but we’re seen [stakeholders who don’t] participate in the process, but still show up with a motion to have a right to be included as a party.”

Fourth, concerns the manner in which people get notice of upcoming consultation under the Planning Act.

“Right now we’re still dealing with an act that refers to participation through an ad in the newspapers,” Anderson said.”

Most newspapers are now online, and there needs to be an understanding that there’s been a shift to online and social media.”

Davies Howe Partners partner Kimberley Beckman said her recommended changes would be those that led to more transparency and accountability in both the planning and development charges regime.

“The amount of legislative and regulatory control out there ultimately adds up to a lot of uncertainty, and I hope that is something that the province is prepared to tackle.”

Anderson noted that there was one important issue that was not addressed in any of the provincial consultation questions.

“[The province is] asking us to respond to [its questions] but not get into how the OMB is structured or functions, and I honestly don’t think you can do that. The appeal system is an integral part of [the planning system].”

Concerns were also raised about how quickly the consultation was conducted.

“The concern that we had was that it was a very short turnaround time, and the consultation seems to be quite broad in nature,” said Anderson. “From a municipal perspective it was a very difficult time to provide a response as the majority of municipalities are doing their year-end review and finalizing their budgets.”

Beckman mirrored Anderson’s concern.

“It was a challenge. The timeline was - given the scope of the consultation - quite short. With a return date of January 10, having lost two weeks due to the Christmas holidays in conjunction with the ice storm, it was a pretty small window for submissions.”

Tousaw disagreed that the process was rushed.

“The province really scoped the process. They didn’t say, ‘here’s the Ontario planning system. What do you think?’ They asked very specific and targeted questions, so we were able to give those questions some thought and answer those questions within the time provided.”

When asked for comment on the next steps, municipal affairs and housing senior media relations coordinator May Nazar e-mailed NRU and said that the ministry was reviewing and analyzing the submissions and comments received. The Ministry of Municipal Affairs and Housing announced the Land Use Planning and Appeal and Development Charges Systems Review on October 24, 2013. At the outset, the province said it would not consider changes to the OMB’s operations, practices or procedures, removing the province’s approval role and ability to intervene in matters, or changing the “growth pays for growth” principle of development charges.

Provincial review of planning system and DCs - Municipalities respond
Municipalities across the GTA have submitted their comments about changes to the land use planning and appeal systems, and the development charges system. The following is a sample of municipal recommendations.

Vaughan

Land Use Planning and Appeal System:

• Amend the Planning Act and provide more targeted support in the form of draft policy, updated ministry guidelines, training and resources for timely implementation of official plans that align with provincial policies
• Develop new and updated policies and proposed solutions to address intensification issues such as compact schools, and parkland standards for Urban Growth Centres and Intensification areas
• Minimize the “whole plan” appeal process through changes to the Planning Act
• Adjust timeframes and information requirements related to OMB appeals of official plan amendments and zoning by-law amendments.

Development Charges:

• Remove all or part of the list of ineligible services from the Development Charges Act and in particular: provision of local contributions towards hospitals, headquarters for the general admission of the municipality, cultural or entertainment facilities (including museums, theatres and art galleries), and waste management services
• Remove the 10 per cent discount on all service categories to which it currently applies
• Modify the 10-year historic average level of service capping methodology to utilize a 10-year forward looking level of service in order to better align with intensification servicing needs
• Continue to allow municipalities to define growth-related capital costs and benefits to existing development utilizing the existing legislation.

Mississauga

Land Use Planning and Appeal System:

• If a municipality has an in-effect official plan that has been reviewed and updated in accordance with provincially established timeframes, there should be no right of appeal to a council’s refusal of an application to amend the official plan
• No appeal to official plan amendments that have been brought forward to conform to provincial policy or legislation or an upper-tier municipal plan
• Require mandatory mediation if a municipality deems insufficient reason for an appeal has been provided
• Do not permit appeals of the entire official plan or zoning by-law
• Establish cut off dates for the submission of appeals where an upper-tier approval authority does not make a decision within the 180-day approval period
• Permit an extension, with notice, to the 180-day approval time for upper-tier governments in approving lower-tier official plan amendments; if no decision is rendered the official plan amendment should be deemed approved
• Link conformity to new provincial policy or legislation to a municipality’s five-year review
• Allow official plans to extend beyond 20 years so that land use policies can align with infrastructure and public service facility planning
• Increase the legislated timeframes within which council must make decisions on complete development applications before an appeal to the Ontario Municipal Board can be made.

Whitby

Land Use Planning and Appeal System:

• Encourage municipally-initiated amendments to update official plans on an as-needed basis outside of an official plan review
• Provide financial assistance such as grant programs to assist municipalities in hiring consultants for official plan reviews
• Information that is submitted with an application should be made available to anyone who requests it
• Amend the Planning Act to clarify that appeals must indicate the specific matters being appealed and how the appellant is affected by the matter
• Amend the Planning Act to provide that, once an appeal has been submitted on a non-decision, the OMB causes other interested parties to be notified that they have a specific amount of time (e.g., 60 days) in which to submit their own appeal, after which no additional appeals will be considered
• Allow alternative public consultation processes under the Planning Act.

Development Charges:

• Allow municipalities flexibility in how they determine the growth-related capital costs recoverable from development charges to account for local differences in approach to development and level of jurisdiction
• Capital costs should be 100 per cent eligible for development charges if they are needed to service growth within the municipality. Toronto council approved 19 staff recommendations December 16, 2013.

Peel Region

Development Charges:

• Include all services funded by a municipality
• Remove the 10 per cent discount for all services
• Replace the 10 year average historic service level limits with a service level that is forward looking
• Remove mandatory exemptions
• Continue to provide maximum flexibility to use alternate funding tools to finance significant growth related infrastructure to meet the provincial growth plan.

York Region

Land Use Planning and Appeal System:

• Expand the scope of the review to fully address the OMB
• Remove the ability to appeal municipal conformity exercises and whole plan appeals
• Place greater priority on local decision making
• Coordinate policy language and review dates of all provincial planning legislation

Development Charges:

Strengthen the growth pays for growth principle
Remove barriers to cost recovery to help align DCs with broader policy objectives
Ensure municipalities and appellants of DCs by-laws are on an even playing field at the OMB
Link improvements to key council-approved plans.