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Municipal lawyers gear up for change

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|Written By Julius Melnitzer

The 120 amendments to the Planning Act and the Development Charges Act, 1997 found in Ontario’s Bill 73, which were passed in early December, represented the most significant changes to the province’s land use and development laws in about a decade.

Implementing new law could be ‘problematic,’ says Maggie Bassani.

In tabling The Smart Growth for Our Communities Act, 2015 early last year, the Liberal government promised that the legislation would give residents more say in how their communities grew, set out clear rules for land-use planning, give municipalities more independence in local decisions, and make it easier to resolve disputes.

To these ends, the amendments to the Planning Act impose a two-year moratorium on certain development applications, narrow the scope of appeals to the Ontario Municipal Board, allow municipalities to invoke alternative dispute resolution techniques before matters proceed to the OMB, and extend the initial review period for official plans to 10 from five years.

Whether the legislation will achieve its aims, however, remains to be seen.

“Bill 73 — primarily the goals of providing more transparency to the public and more tools for municipalities to control development in their cities — is well intentioned, but there are many open questions as to how the changes will be implemented, and implementing some of them could be problematic,” says Maggie Bassani of Stikeman Elliott LLP in Toronto.

Catherine Lyons of Goodmans LLP believes that Bill 73 contains some components that have not been thought through carefully enough.

“The legislation is a bit of a reactive response to the length and complexity of the hearings aimed at bringing official plans in Ontario into conformity with the province’s growth plan,” she says.

The Places to Grow Act came into force in 2005. It mandated growth plans that identified where and how growth should occur within a region. Since then, municipalities have been scrambling to rationalize their official plans with regional growth plans.

“Milton, for example, is still without a new official plan, although its conformity amendment was adopted in 2010,” says Mark Flowers of Davies Howe Partners LLP in Toronto.

Of particular concern is Bill 73’s two-year moratorium on development applications, which includes applications for minor variances after a developer has obtained a site-specific rezoning.

“It’s inevitable, for example, that during construction there will be changes that require a variance, but Bill 73 doesn’t allow such an application for two years from the time the property was originally rezoned for development,” Bassani says. “All the developer can do then is rejig the project so as to fit within the original rezoning.”

To be sure, the legislation allows municipal councils to override the prohibition by resolution.

“But then it becomes more of a political thing,” Bassani says.

Bassani is also concerned about provisions that allow councils to pass additional criteria for determining what amounts to a minor variance. Currently, the Planning Act contains a four-part test.

“Potentially, the new criteria could make minor variances more difficult to obtain and could result in more rezoning applications, which are less timely and more costly to submit and process,” Bassani says.

Initial indications are, however, that additional criteria will be few and far between.

“The Ministry of Municipal Affairs and Housing set up a stakeholders committee and asked them to come up with additional criteria and they couldn’t, which indicates how difficult it will be to do so,” says one veteran municipal lawyer.

Particularly impractical are the provisions of Bill 73 that require councils to provide descriptions of how submissions from the public have influenced decisions.

“I think that the province is just trying to have councils explain their decisions, but they’ve done it in a very clumsy way,” Lyons says.

To be sure, in many cases municipal staff members make recommendations to council by way of a report.

In these cases, council could merely cite the reasons given in the report.

“But there are situations where councillors don’t take staff’s advice and other situations where decisions are not unanimous,” Lyons notes.

As well, given that transcripts of public hearings are hardly the norm, councillors may have difficulties recalling individual submissions.

“That’s not as much of a problem in large municipalities, where media coverage can provide a record, as it is in smaller places,” Lyons says.

Besides, public submissions are frequently not to council.

“In practice, most of the deputations are made to committees of council,” Flowers observes. “In Toronto, that means about seven or eight out of 45 councillors are present to hear the submissions. Some are not always there, some leave in the middle, and some aren’t always listening. So how is council going to explain how oral submissions made at an earlier committee impacted their decisions?”

However that may be, Bill 73 has received Royal assent. Some provisions are in force, but most will come into force at future dates that have not yet been identified.

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