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REPORT TO DEVELOPMENT SERVICES COMMITTEE |
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TO: |
Mayor and Members of Council |
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FROM: |
Jim Baird, Commissioner of Development Services |
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Valerie Shuttleworth, Director, |
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PREPARED BY: |
Dave Miller, Senior Project Coordinator, Special
Projects |
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DATE OF MEETING: |
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SUBJECT: |
Comments on Bill 51 – An Act to amend the Planning
Act and the Conservation Land Act |
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RECOMMENDATION
That the staff report entitled “Comments on Bill 51 – An Act to amend the Planning Act and the Conservation Land Act”, dated February 7, 2006 be received.
That staff report back to Development Services Committee, after the enactment of Bill 51, regarding impacts on Planning Department work flow, processes and resource allocation;
That the proposal to update municipal zoning by-laws within three years of completing a new or revised official plan be deleted from Bill 51;
That, prior to
third reading of Bill 51, the Province consider incorporating additional refinements
to the Act as outlined in the
- Further amend the Planning Act to:
a. introduce new provisions under Section 41 and 51 to require, as a condition of approval of a plan of subdivision or site plan, conveyance into public ownership, of valleylands and woodlots and associated ecological lands, where a municipality has identified such lands a part of a natural heritage system through its Official Plan, at no expense to a municipality or conservation authority;
b. introduce a new criterion under Section 51(24) to strengthen a municipality’s capability to conserve cultural heritage resources and provide for their incorporation in developing communities;
c. harmonize the Planning Act and Environmental Assessment Act processes;
d. place the onus of demonstrating an error or impropriety of decision-making or failure of process on the appellant at the Municipal Board.
That Council again request the Province, through the Minister of Finance
and the Minister of Municipal Affairs and Housing to make a commitment to
deliver new fiscal tools including Tax Increment Financing (TIF) and permanent
removal of tax capping in TIF areas, and changes to the Development Charges
Act, to assist municipalities with the implementation of the growth plan
policies, particularly as they relate to intensification and development of
higher order transit;
That Council endorse this staff report and submit it to the Province, along with the Council resolution as the Town of Markham’s comments on Bill 51 and Environmental Bill of Rights Registry No. AF05E0001;
And that the Clerk be directed to forward a copy of this report to the Minister of Municipal Affairs and Housing, the Minister of Finance, the Minister of Public Infrastructure Renewal, the Assistant Deputy Minister for the Smart Growth Secretariat, the Chair of the Greenbelt Task Force, York Region MPPs, the Association of Municipalities of Ontario and the Region of York.
PURPOSE
This report identifies
and reviews the major changes proposed by the Province to the Planning Act and
other related Acts. The changes will be
implemented with the enactment of Bill 51, which received 1st
reading on
This report reviews previous Town recommendations related to provincial planning reforms (see report of August 30, 2004), comments on their inclusion or exclusion in the proposed legislation, and outlines further actions that could be undertaken to improve the legislation and the municipal planning process.
The report also reviews some of the potential operational consequences, that may result when Bill 51 is in effect.
EXECUTIVE SUMMARY
In the fall of 2003 and the spring of 2004 the
The purpose of Bill 51 is to:
i.
Provide new
planning rules and planning tools to strengthen implementation of provincial
policies and municipal priorities;
ii. Provide new planning rules and expanded/enhanced planning tools to facilitate intensification and brownfield redevelopment, sustainable development, and community design features;
iii.
Provide new
planning rules to encourage early consultation with both the applicant and the
public (e.g. Public Open House);
iv.
Provide for
establishment of an optional local appeal body that, if established by a
municipality, will hear appeals of Committee of Adjustment decisions;
v.
Set new requirements
for information, materials and parties at Municipal Board hearings; and
vi.
Provide other
technical amendments to the Planning Act intended to improve administrative
planning processes, and clarify existing provisions in the Planning Act and
related regulations.
Bill 51 will provide additional tools to implement Provincial policies and on-going initiatives, such as the Growth Plan for the Greater Golden Horseshoe and Municipal Board reforms and give further support to sustainable development, intensification and brownfield redevelopment.
This report also discusses potential operational and financial impacts that may result from the passing of Bill 51. These include:
i. additional staff time spent at legislated Public Open Houses;
ii. additional staff time spent to ensure that the Official Plan is updated to conform with provincial plans, matters of provincial interest, provincial policy statements and designated areas of employment, not less frequently than every five years;
iii. changes to municipal processes resulting from new requirements to update zoning by-laws within three years of an amendment to the Official Plan, the consequence of this may include an increased demand on municipal staffing and resources, and a loss of zoning application fee revenues;
iv. opportunity to further implement architectural control; and
v.
work flow changes
resulting from the Local Appeal Body (in 2005 9 of 174 minor variance and 3 of
45 consent applications were appealed to
the Municipal Board), should Council choose to establish such a body.
Town staff generally support the proposed changes to the Planning Act. However, there are a number of refinements recommended to further improve the municipal planning process. These refinements are noted throughout the report and are included in the recommendations and in Tables ‘A’ and ‘B’.
BACKGROUND
In the fall of
2003 and the spring of 2004 the
i. requiring additional information to be provided with land use planning applications;
ii. changing the implementation provisions to make the planning system more responsive to the needs of municipalities;
iii. requiring municipalities to review and update their land use planning documents;
iv. harmonizing the Official Plan and Environmental Assessment processes;
v. clarifying the transition provisions for implementing Bill 26; and
vi. expanding planning tools such as newly defined Community Improvement Plans, a Development Permit System, and implementation support materials.
In the same August 2004 report, the Town provided comments to the Province, in response to the additional changes proposed. The recommendations from that report are summarized, and compared to changes now proposed by Bill 51, in Table ‘A’ attached to this report.
DISCUSSION
Bill 51 includes numerous amendments to the Planning Act. The majority of the changes proposed modify aspects of the municipal land use planning process. Additional tools for the implementation of provincial policies and for support of sustainable development, intensification and brownfield redevelopment are also proposed. The changes proposed by the Province can be grouped into three general categories: planning and financial tools, process changes and Ontario Municipal Board reform. The following sections highlight the proposed changes in each area.
Planning and financial tools
Planning and financial tools, intended to allow municipalities to regulate land use, resources and infrastructure in more strategic and efficient ways, to support intensification, sustainable and well designed communities include:
i.
Minimum
and Maximum Densities and Height
The authority to regulate, through zoning, minimum and maximum density and height to encourage a more compact community that uses lands and services more effectively;
ii.
Zoning
with Conditions
The ability to prescribe conditions on the use of land or the erection, location or use of buildings or structures. For example, municipalities could promote environmental sustainability by setting conditions for energy efficiency;
iii.
Architectural
Design
The authority to consider the exterior design of buildings, through
site plan control, to allow for consideration of the character, scale and
appearance of proposed buildings in relation to the surrounding environment will
be allowed, provided the Official Plan contains provisions relating to exterior
design;
iv.
Sustainable
Design
The list of matters of provincial interest will be expanded to include
the promotion of sustainable design.
Municipalities will be able to ensure that sustainable design is
incorporated into new subdivision proposals, including shaping the design to
promote energy conservation. Through
site plan control, the review and approval of the exterior of building could
extend to green roofs and solar panels, and preservation of on-site vegetation
and water-conservation landscaping;
v.
Development
Permit System
Expansion of the Development Permit System, Section 70.2 and (O. Reg. 246/01), which collapses three approval processes, minor variance, zoning amendment and site plan, into one to give municipalities a more streamlined and design driven process to regulate land use, density, setbacks and design matters;
vi.
Accessory
Apartments
The authority to designate areas within the municipality where second residential units (e.g. two unit houses) are permitted, with no right of appeal to the Municipal Board, except at the time of the five year municipal comprehensive official plan review; and
vii.
Community
Improvement Plans
Expansion of municipal planning and financial capacity to encourage and stimulate community improvement activities (e.g. brownfield redevelopment) that support intensification and the development of compact urban forms. For example, reform will:
a) allow municipalities to include new building construction related to energy efficient uses of lands, building structures and facilities (e.g. cogeneration, heat pumps, eco-friendly siting of buildings) as qualifying elements for municipal financial incentives under a Community Improvement Plan;
b) allow municipalities to register grant or loan agreements on title to increase the municipality’s ability to enforce agreements and to allow developers the ability to secure upfront financing for their projects;
c) allow upper-tier municipalities to establish community improvement plans for prescribed matters, such as inter-regional transit corridors;
d) allow upper-tier municipalities to participate in lower-tier community grant or loan programs to increase lower-tier capacity to stimulate private sector development activities;
e) require municipalities to provide public notice when they adopt a community improvement plan, to increase transparency and accountability in the municipal decision making process.
Process changes
Process changes intended to ensure that complete and transparent information is provided to the municipality and the public, to give stakeholders more opportunity to understand the development of their community, include:
i.
Complete
Applications
Municipalities will be able to establish, in the Official Plan, additional information required with the submission of any development application, above that required by the Planning Act. Until the required information is provided, Council may refuse to accept or consider an application and the statutory time period for Council to make a decision does not begin until a complete application (as defined in the Official Plan) is received.
ii.
Up-to-Date
Planning Documents
A municipality must update its Official Plans every five years to conform with provincial plans and to be consistent with the Provincial Policy Statement. Provisions in the Act have been rewritten to strengthen and clarify the requirement to update Official Plans with respect to provincial plans, matters of provincial interest, provincial policy statements and designated areas of employment. Regulations may also be made to specify additional matters to be included in official plans. New provisions are proposed specifying that municipal zoning by-laws must be updated within three years of completing a new or revised official plan.
iii.
Up-to
Date Decisions
All Municipal
decisions and documents will have to be consistent with and conform to provincial
policy statements and provincial plans in effect at the time of the decision,
not those in place at the time of application.
The list of matters of provincial interest is expanded to include the
promotion of development that is designed to be sustainable, to support public
transit and to be oriented to pedestrians.
iv.
Protecting
Employment Lands
Municipalities will be able to refuse proposals to convert employment lands into other uses, with no right of appeal to the Municipal Board, except at the time of a five year municipal comprehensive official plan review.
v.
Early
Consultation
Municipalities will be required to permit applicants to consult with municipalities prior to making a official plan, site plan, subdivision/consent and/or zoning applications and may, by by-law, require applicants to consult with the municipality prior to making an application. Requirements for public notice, information and consultation are expanded. For example, municipalities will be required to hold statutory Public Open Houses, prior to a Public Meeting for an Official Plan or zoning By-law amendment, to give the public an opportunity to review and ask questions about the application.
vi.
Regard
for Municipal Decisions
When making a decision with respect to a matter properly appealed, the Municipal Board will be required to “have regard to” decisions, made by Council on the same planning matter.
Proposed Municipal Board reforms are intended to ensure municipalities are more accountable on local planning matters, while allowing the Municipal Board to continue to hear appeals on matters that have the greatest impact on the broader public interest, including appeals relating to official plans, zoning, subdivision, site plans and development permits. The reforms proposed can be categorized into three areas:
i. How Municipal Board hearings will occur
a) the Municipal Board making a decision, relating to a planning matter, will be required to have regard to decisions made by municipal councils about the same planning matter;
b) a hearing before the Municipal Board will be limited to the information and material that had been before municipal Council, unless the Municipal Board determines that the new information could not have reasonably been provided to the municipality before Council’s decision. If new information could have caused a municipal council to make a different decision then the Municipal Board shall not admit the new information into evidence and will give Council an opportunity to reconsider its decision in light of the new evidence;
c) appeals to the Municipal Board will generally be limited to organizations or individuals who participated in the planning process at the local level; and
d) the Municipal Board will have enhanced authority to dismiss appeals without a hearing, in certain instances such as repeat applications.
ii. Local Appeal Bodies
a) municipalities may establish local appeal bodies, comprised of citizens from the community, to deal with matters of local significance such as minor variances and severances;
b) the Province will set minimum criteria for establishing local appeal bodies, process and standards;
c) members of the local appeal body will be appointed by Council under the Municipal Act and the terms will not extend beyond the term of Council;
d) matters, such as Official Plan, subdivision and zoning applications, that have the potential to affect the broader public interest will continue to be heard by the Municipal Board;
e) if there are related matters before the Municipal Board and the local appeal body, the Municipal Board will generally hear all matters related to the proposal; and
f) if a municipality chooses not to establish a local appeal body, all appealed matters will continue to be heard by the Municipal Board.
The Bill also provides for amendments to the Conservation Land Act, the Conveyancing and Law Property Act, the Land Titles Act and the Municipal Act, 2001 to facilitate conservation easements and covenants to include water quality and quantity, watershed protection and management, and further purposes that may be added by regulation. These amendments will facilitate conservation easements and covenants, to bolster the Town’s Official Plan policies and Zoning By-law provisions to protect environmentally significant lands.
Staff comments
Development Service Commission staff are generally pleased with the direction of the proposed changes. The changes generally complement the Town’s current practices and use of the planning tools such as, regulating minimum and maximum densities and height and considering the exterior design of buildings. The Province has recognized that these tools support intensification, sustainable development and greenspace protection, which is consistent with the recommendations contained in our August 30, 2004 report. However, staff has some concerns about the consequences to work flow, processes and resource allocation, that will result from the implementation of some of the provisions contained in Bill 51. The Official Plan conformity exercise will require additional staff time and allocation of resources. The reforms with the most significant impact to the Town are discussed below and include:
· Zoning conformity within three years of an Official Plan amendment;
·
Local Appeal Body
to deal with minor variances and consent applications; and
· Mandatory Public Open Houses prior to Public Meetings.
These reforms will have a permanent impact on work flow and processes. Other reforms such as amending the Official Plan to include provisions regarding complete applications and architectural design will need to be implemented immediately and reviewed on a regular basis.
Zoning Conformity within three years of an
Official Plan amendment
As mentioned earlier in this report, Bill 51 will require the Town’s zoning by-laws to be brought into conformity with the Official Plan, within three years of an Official Plan amendment. The work flow, staffing, resource and budget consequences of this may be numerous and significant. Typically, a property owner will submit a rezoning application, that either conforms with the Official Plan or they make a concurrent Official Plan amendment application. However, if the developer’s application conforms to Official Plan policies, that have been in effect for more than three years, the developer may be able to insist that the Town initiate the rezoning at our expense. For example, if lands are designated Business Park in the Official Plan but zoned agricultural, the Town may be responsible for the rezoning and the land owner may not have to submit an application and accompanying fees, background studies and detailed plans.
Staff are also concerned that a land owner, with no plans to develop, may consider a rezoning within three years of an Official Plan amendment premature. A change in zoning will potentially increase the property value and taxes. Consequently, a land owner may object to the passing of a Town initiated Official Plan amendment because within three years the Town will be required to pass a zoning By-law, which will increase the property’s value and therefore the taxes, which are based on the Market Value Assessment. Objections to Town initiated Official Plan amendments may delay the inclusion of important land use policies into the Town’s Official Plan.
Recently the Town has been pre-zoning lands in conformity with the Official Plan as an incentive to redevelopment, under certain circumstances, e.g. Milliken Main Street. However, there are many areas in the Town, that have not been pre-zoned. Identifying these lands and bringing the zoning into conformity with the Official Plan will require a great deal of staff time, and ongoing consideration by Committee and Council, without the detailed information and benefit of a development application.
Pre-zoning may not reduce staff, Committee and Council time when a development application is finally received. Development Services Commission staff are of the opinion that a pre-zoned site may still require a site specific By-law amendment or approval from the Committee of Adjustment, to tailor the uses and development standards to the proposal, which would result in an unnecessary duplication of effort.
It is recommended that the proposal to update municipal zoning by-laws within three years of completing a new or revised official plan be deleted from Bill 51.
Local Appeal Body to deal with minor
variances and consent applications
The Town’s Committee of Adjustment considered 174 minor variance and 45 consent applications in 2005. Of these, 9 of the minor variance and 3 consent applications were appealed to the Municipal Board. The limited number of appeals of Committee of Adjustment decisions may not be sufficient to justify a Local Appeal Body. Should Council choose to establish a Local Appeal Body, staff expect an impact on work flow through the Commission. For example, an owner may by-pass the Committee of Adjustment and make a rezoning and/or subdivision application(s) to preserve a right of appeal to the Municipal Board. Consequently, staff are of the opinion that there will be little benefit to the Town to establish a Local Appeal body. Following Royal Assent of Bill 51, staff will provide a report to Development Services Committee, regarding possible advantages and disadvantages of establishing a Local Appeal Body, administrative implications and implications to work flow and current processes.
Mandatory Public Open Houses prior to Public
Meetings
Prior to passing an amendment to the Official Plan or Zoning By-law the Town will be required to hold a public “Open House”, at least seven days before the statutory Public Meeting. The change is to improve public notice, information and consultation by giving the public an additional opportunity, prior to the Public Meeting, to review and ask questions about an application. It has been the Town’s practice to hold additional Public Information meetings for more controversial applications. Development Services Commission staff are of the opinion that to hold an additional statutory meeting, to which the public is invited, on every application, including minor routine matters, is not necessary. Options regarding the format and timing of the “Open House” will be reviewed in a subsequent report, once Provincial requirements are defined.
Additional Financial Tools such as TIF and Development Charges Act changes are required
While Bill 51
proposes new planning tools many of the financial tools, as noted in our
January 24, 2006 Growth Plan report, such as approval of Tax Increment
Financing legislation and changes to the Development Charges Act have not been
provided. These financial tools are
essential to assist municipal implementation of Provincial and Regional growth
intensification initiatives.
Conclusions
There are a
number of very positive initiatives being implemented in Bill 51. Some initiatives, such as required “complete”
application information and architectural design provisions will be implemented
through amendments to the Town’s Official Plan.
Reports regarding each of these amendments will be submitted to Development
Services Committee for review and approval, following the enactment of Bill 51. There are a number of initiatives, such as
zoning conformity within three years and a statutory “Open House” discussed in the report, that are of
concern. Staff will report back with
specific recommendations to Committee after the enactment of Bill 51.
Development Services Commission staff will provide detailed reports about impacts to work flow, processes and resource allocation resulting from the implementation of Bill 51.
Town recommendations on Planning Act amendments and Municipal Board reforms from the August 30, 2004 staff report, that have not been incorporated into recommendations on Bill 51, are again included in the recommendations of this report and summarized in Tables ‘A’ and ‘B’, attached to this report. These recommendations should be forwarded to the Province for consideration prior to second reading of the Bill.
FINANCIAL CONSIDERATIONS
Although staff
anticipate that there will be staffing and resource costs associated with
implementing Bill 51, the full legislative and process changes and financial
implications can not be determined yet.
Staff will report back to Development Services Committee as the
legislation is finalized and the financial implications become crystallized.
ENVIRONMENTAL CONSIDERATIONS
There are no
environment impacts directly attributable to the enactment of Bill 51.
ACCESSIBILITY CONSIDERATIONS
There are no
accessibility impacts directly attributable to the enactment of Bill 51.
ENGAGE 21ST CONSIDERATIONS
There are no Engage
21st impacts directly attributable to the enactment of Bill 51.
BUSINESS UNITS CONSULTED AND AFFECTED
This report
has been circulated to the Legal Department for review and comment.
ATTACHMENTS
Table ‘A’ - Planning Act Amendments
Table ‘B’ -
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Valerie Shuttleworth, M.C.I.P., R.P.P. Director of |
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Q:\Development\Planning\MISC\MI485
Smart Growth\Planning Reforms\DSC_Planning _Reforms_Feb 7 2006 (draft 5).doc