Nov. 26, 2014
By Edward LaRusic
A private member’s bill, according to the author, would level the playing field between municipalities and developers. Solicitors, however, warn it could negatively impact landowners and impair the board’s ability to make decisions.
Bill 39, An act to amend the City of Toronto Act, 2006, the Planning Act and certain regulations, authored by former Toronto councillor now Liberal MPP Peter Milczyn, has passed second reading in the provincial legislature. Milczyn told NRU that essence of the bill is the City of Toronto’s response to consultation the provincial government started in fall 2013 on the land use planning system.
“When I was chair of the city’s planning and growth management committee, I was in charge of drafting a response to the provincial consultation. It went through our committee, we had deputations from various stakeholders on it, and it went to city council, which overwhelmingly endorsed the [response]. So I wanted to put [the city’s recommendations] into a private member’s bill, put it before the legislature and say these are well thought out ways to reform the planning process in Ontario [for all municipalities].”
Milczyn said the bill falls into three broad themes: restoring local planning decision making, modernizing the Planning Act and giving municipalities more tools to deal with the impacts of development.
Some elements of the bill have raised concerns that it wouldn’t level the playing field, but imbalance it in favour of political decisions over policy ones.
One major change the bill proposes is amending the Planning Act to change the discretion approval authorities, such as the Ontario Municipal Board, have when making decisions. Under the proposed amendment, the board would have to craft decisions that are consistent with the decision made by the relevant municipality, based on the supporting information and material the municipality used in creating its decision.
Milczyn said he believes this will strengthen local decision making, while still leaving the door open for the OMB to correct poor decisions.
“If a municipality, for a zoning by-law for instance, disregarded the policies in its official plan, than that would be a circumstance where the OMB should be able to make a completely new finding. Where a municipality is making decisions consistent with provincial policy statements, with growth plans, with its own official plan, the OMB should not [be able to] walk in and completely overrule a municipality.”
Solicitor Patrick Devine (Dentons Canada LLP) told NRU the idea is good in theory, but he’s not sure how it would work in practice. He said the bill appears to try and give municipal decisions more deference at the board, but the wording is confusing.
“The ‘consistent with’ test is currently the one that’s applied when dealing with provincial policy statements. Provincial policy statements are broad, general documents that have a number of different interpretations [with respect to the] matters contained within them,” said Devine, who noted that many council decisions do not go into great detail.
Jane Pepino (Aird & Berlis LLP) agreed with Devine, noting that it may force the board to make a decision consistent with a municipal decision that was “poorly founded or not supportable on facts or policy, or if they just made a mistake.”
“I wonder if it’s a round-about-way to say we don’t need the board anymore. Because if the requirement is that they have to be consistent, then all the board can do is tinker around the edges of any issue. Pity the poor ratepayer who feels wronged about a decision on a piece of property next door to theirs.”
Another major change proposed in Bill 39 is limiting appeals to municipally-initiated official plan and zoning bylaw amendments. Once that official plan or zoning by-law amendment is approved, the bill would remove any right of appeal for a period of five years. It would also allow municipalities to prevent minor variances for a three-year period.
Milczyn said this is to bring certainty to the process.
“Maybe it’s just a Toronto perspective, but constant revisiting of approvals, something gets negotiated and approved, [then] six months later applicants come back for more, whether through zoning or committee of adjustment. At a certain point, there is no certainty about [zoning] by-laws and they become guidelines.”
Sharmini Mahadevan (Wood Bull LLP) said this change would be a huge blow against the rights of landowners.
“If there has been a change of ownership, a change in circumstances, or the economy changes and something is no longer feasible, this would restrict that ability to have a hearing on a matter should the municipality not be supportive,” Mahadevan said.
“If it’s a five-year timeframe that they’re talking about, and that’s a fairly long timeframe in the context of development, there are always changing circumstances where landowners have to respond to changing circumstances. You might find that after a site has been acquired, something that might have feasible three or four years ago is no longer feasible.”
A more subtle change but with potentially huge ramifications in the bill is the lengthening of timeframes in which councils have to make decisions on zoning by-law amendments from 120 to 180 days and official plan amendments from 180 days to 240. Milcyzn said this simply reflects the reality of how long complex planning applications take to process.
“To the credit of most players in the development industry, they appreciate the volume and the complexity of what’s going on and they appreciate that it’s going to take longer than 180 days. But there are occasions that someone pulls the trigger the first day they can.”
Devine said this is an amendment he could potentially get behind.
“When I was first in practice in 1978, you could appeal to the OMB after 30 days of having filed a rezoning application. These days with the complexity of all the reports and studies that need to be done and the process itself, that is unrealistic. I don’t know if the number of days that Peter Milczyn has put forward is for everyone, but I can see some need to extend that time period to allow municipalities to give greater consideration to rezoning applications.”
Pepino however, was highly critical of extending the timeframes.
“The longer things take, the more difficult it is and the less beneficial it is [for developers], particularly when you want things like affordable housing,” said Pepino, adding that she doesn’t think timeline extensions would be of much benefit to municipalities either. “Simply extending the time gives permission to miss longer deadlines. The only outcome of having the 120 or 180 days is that you’re then allowed to appeal. The way the board is going, it takes six or eight months for the board to give you a hearing. Any municipality should have time to get its act together and decide whether it wants any changes to the application or if it’s even going to support it. If you don’t appeal, you don’t get the attention. It just sits on the pile on somebody’s desk.”
Bill 39 is now before the standing committee on general government. Milczyn said he’s spoken to municipal affairs and housing minister Ted McMeekin and his bill has the support of the Liberal and NDP caucuses. But he recognizes that private member’s bills have a rougher time than government bills.
“I thought it was important to put forward, put in front of members of the legislature, highlight the issues early on, get a good debate going and inform future government action... I’m cautiously optimistic that if my bill doesn’t pass, that future government legislation would address some of these issues.”