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Mixed reviews for Planning Act revisions - Limited appeals

March 11, 2015
By Edward LaRusic

Legal experts question proposed new limits on appeal rights under the Planning Act, but praise recommended changes to the conveyance of land for park purposes.

Since the March 5 introduction of the “Smart Growth for Our Communities Act, 2015”-the Ontario government’s proposed changes to the Planning Act and the Development Charges Act-planners and lawyers have been analyzing the new rules that still require adoption by the provincial legislature. According to the government, the revised legislation would give residents more say in the planning process, add clarity to land use planning rules, increase the independence of municipalities and offer new alternatives to resolving disputes without involving the Ontario Municipal Board.

Of particular concern, however, are proposed changes that lawyers warn could restrict a landowner’s ability to appeal.

New additions to section 22(2) (official plan amendments) and section 34(10) (enactment of a new comprehensive zoning by-law for a municipality) would freeze appeals for a two-year period unless the amendment were initiated by a municipality. In addition, a new section 45(1.3) would prevent an owner from applying for a minor variance for two years following the enactment of a site-specific zoning by-law amendment.

Matthew Di Vona (Davies Howe) told NRU the proposed changes would have a “deleterious effect” on the development industry.

“From a developer’s standpoint, that would be a problem, because if you’re wanting to do business in a municipality that has adopted a new official plan, and you’re considering making an acquisition on that property, you’d have to be prepared to sit on this property for two years before you can even apply…It would lead to waves of appeals, if you know there’s going to be a new [official plan]. It’s almost like the fi re starting. The clock is ticking, you have to appeal at that time. So you’re going to have these floods of appeals to deal with all at the same time. Then it’s going to radio silent for two years.”

Di Vona added that the two-year freeze on zoning by-laws would create a similar wave of zoning by-law amendments, as developers and landowners try and squeeze their applications in before approval of a new comprehensive zoning by-law. He noted that the two-year freeze on minor variances would also be a nuisance for property owners.

“It appears, on its face, to be deleterious to a property owner that’s applied for a zoning by-law, [and has] attained it, but now needs a minor variance to make changes to a plan that’s gone to market. Your hands are tied.”

Meanwhile, a proposed change to section 37 and section 42 on the conveyance of land for park purposes would appear to add some much-needed transparency, said Lynda Townsend (WeirFoulds).

“[Under the proposed changes,] when a municipality collects section 37 and it collects parkland, there’s an obligation on the municipality to account for what the money has been spent for. It helps the councillors so they are aware of what the money that is being negotiated through section 37 is being spent on, and they can see improvements in their community and be responsive to their ratepayers,” she told NRU. “From the developer’s perspective, there was a perception that the money wasn’t being spent for the purposes that they were giving it, and now they’ll have the ability to see where it’s being spent.”

Mark Flowers (Davies Howe) agrees, also welcoming a new requirement that municipalities develop a parks plan to justify any alternate parkland dedication rate they may try to impose.

“I think that’s a positive in terms of the added transparency around there particularly, as was demonstrated in the Richmond Hill case, (See the January 21 edition of NRU) parkland contributions can be very high,” he said.

Finally, some lawyers caution that the good intentions behind new alternative dispute mechanisms may not have the desired effect.

Under the revised Planning Act, municipalities would be encouraged to use dispute resolution techniques to seek remedies to applications before going to the Ontario Municipal Board. When using mediation, municipalities would be allowed to extend the period for council to make a decision before an appeal record is fi led to the board. For official plans and zoning by-laws, the extension translates to 60 days compared to the current limit of 15 days.

Leo Longo (Aird & Berlis) said alternate mediation could be constructive but noted some drawbacks. One is that board can already request mediation and secondly, a city-led process might not carry as much weight as an OMB ruling.

“Who’s going to do the mediation?” he asked. “Is it just the city itself, or is it going to bring a person in and talk to [the parties]? When the OMB does the mediation, it has the gravitas that it’s the OMB doing the meeting ... I’m not sure if [a city-led mediation] has the same level of buy-in.”

The proposed mediation option-as written-would entail only voluntary attendance, so parties not interested in participating would not be compelled to show up.

“[As a municipality, you have instead] just delayed it 60 days before the inevitable, sending it off to the board,” said Longo.”

However, Townsend sees some benefits to an alternative resolution mechanism.

“It’s not tied to the structure of the OMB, so it can be done in a more timely way. No criticism of the OMBs process, it’s very positive, but this is a way you could get into earlier, and avoid the OMB altogether.”

NRU will be examining other aspects of the proposed Planning Act changes in future articles. Next week, NRU will be speaking with experts about the proposed changes to the Development Charges Act that are also proposed as part of the Smart Growth for Our Communities Act, 2015. Stay tuned.