Planning Law Update The South East Ontario Municipal Law Seminar October 21 and 22, 2015

OUTLINE Bill 73 Highlights Regulating Docks and Hunting Camps Located on Crown Land

Bill 73: The Smart Growth for Our Communities Act Introduced on March 5, 2015 by the Ministry of Municipal Affairs and Housing to reform the Planning Act and the Development Charges Act Goals and purposes of the Act include: –Giving residents more say in how their communities grow –Setting out clear rules for land use planning –Giving municipalities more independence to make local decisions, and –Making it easier to resolve disputes

Proposed Amendments to the Planning Act 1.Two Year Moratoriums on Development Applications a)Official Plan Amendments: During the two year period following the day any part of the new official plan comes into effect, no applications to amend the new official plan would be permitted. b)Zoning By-Law Amendments: During the two year period following the day that council adopts a new comprehensive zoning by-law and repeals all other zoning by-laws in effect in a municipality, no applications to amend the zoning by-law will be permitted.

Proposed Amendments to the Planning Act Intent of the previous proposed amendments is likely to provide stability and certainty However, effect is to tie the hands of a municipality for a two year period. Municipality would be unable to even make administrative amendments (to correct errors) or to approve a development that had not been considered as part of the creation of the new documents

Proposed Amendments to the Planning Act c)Minor Variances: During the two year period following an owner initiated site specific zoning by-law amendment, a minor variance application for the same property would only be permitted with Council approval.

Proposed Amendments to the Planning Act Again, intent of the previous proposed amendment is likely to provide stability and certainty However, changes will make the process for the applicant more onerous if a minor change in development plans is needed –The applicant will require the permission of Council rather that the Committee of Adjustments for a minor variance RESULT: Longer approval times and more items of a minor nature being brought before council

Proposed Amendments to the Planning Act 3.Council May Refer Appeals to Alternative Dispute Resolution Before Submitting them to the Ontario Municipal Board –On receipt of certain appeals, including appeals relating to official plan or zoning by-law amendments, consents or subdivision approvals –In such cases, time for submitting record to OMB would be extended from 15 days to 75 days

Proposed Amendments to the Planning Act This change has been supported by municipalities. Opportunities to resolve issues through mediation may result in cost savings for municipalities in terms of fees and staff time and resources.

Proposed Amendments to the Planning Act 4.Additional Emphasis on Public Consultation and Requirement for Express Consideration of Submissions from the Public a)Alternative forms of Public Consultation may be Extended to Plans of Subdivision and Consents b)Official Plans to Articulate Procedure for Public Consultation c)Councils and Approval Authorities Must Articulate the Effect of Oral and Written Submissions on Development Approval Decisions

Proposed Amendments to the Planning Act Serious concerns have been expressed with regards to c) Level of detail already covered in reports prior to making a recommendation for a development application Notices of decision are already very lengthy and technical in nature. Addressing individual submissions would add considerably to the length, especially in complex applications with significant public input Even more problematic in instances where the notice of decision must be included in the local newspaper, adding considerably to the cost

Proposed Amendments to the Planning Act 5.Ontario Municipal Board to have Regard to Information and Material Received by Council or an Approval Authority where Council or the Approval Authority has Failed to Make a Decision

Proposed Amendments to the Planning Act 6.Extension of the 180 Day Period for Decisions on Official Plans and Official Plan Amendments –Currently, any person may appeal an approval authority’s failure to decide in respect to an official plan or official plan amendment if a notice of decision is not delivered within 180 days –Bill 73 contemplates an extension of this period for an additional 90 days

Proposed Amendments to the Planning Act 7.Potential for New Prescribed Criteria for Minor Variances –New provision proposed that would allow the Minister to prescribe additional criteria governing the approval of minor variances over and above the four part test currently contained in subsection 45(1) of the Planning Act

Proposed Amendments to the Planning Act This provision has the potential to be very significant depending on what new criteria are imposed.

Proposed Amendments to the Planning Act 8.Provincial Policy Statement and Official Plan Review Cycles Extended –Provincial Policy Statements would be Reviewed on a 10 year cycle –New Official Plan would require revision 10 years after coming into effect and every 5 years afterwards

Proposed Amendments to the Planning Act This change may be beneficial, subject to there being no moratoriums on amendments following the approval of the official plans. Question whether updates still need to be done on a 5 year cycle.

Proposed Amendments to the Planning Act 9.Mandatory Planning and Advisory Committees –Planning and Advisory Committees, which have so far been optional for municipalities, would become mandatory for upper-tier and single-tier municipalities –Must include 1 member of the public

Proposed Amendments to the Planning Act 10. Minister and Upper-Tier Municipalities May Impose a Development Permit System for Prescribed Purposes

Proposed Amendments to the Planning Act While there are benefits to the DPS, it is a tool that requires all of the background and work to be done up front and takes a great deal of time and resources to initially put in place. the decision to adopt a DPS for a community should remain with the municipality.

Regulating Docks, Hunting Camps, and Other Structures on Provincial Crown Lands Discussed in the recent case of Glaspell v Ontario, 2015 ONSC 3965

Glaspell v Ontario Township concluded that it did not have jurisdiction to enforce the Building Code Act, 1992 or its zoning by-law on provincial Crown land This frustrated a local cottager, Glaspell, whose neighbours had constructed a two storey boathouse on a floating dock. This floating boathouse was tethered to the shore beyond the high water mark, but there was no structure attached to the bed of the lake.

Glaspell v Ontario As part of the application to the court to have the boat house removed, Glaspell brought a motion asking the court to answer five preliminary questions: –1) Does a municipality have jurisdiction under the Planning Act and the Municipal Act to enact and apply zoning by-laws to structures (e.g. docks, marine facilities, houses) built on, over, in, or under Ontario Lakes (i.e. on provincial Crown Land)? –2) Does the Ontario Building Code apply to the construction of such structures? –3) Do each of the dock and boat house require building permits?

Glaspell v Ontario –4) Does the boathouse require an occupancy permit under the Public Lands Act to occupy public lands? –5) Does the boathouse require a work permit under the Public Lands Act regarding construction of a structure on shore lands? The court answered all questions in the affirmative.

Glaspell v Ontario-Zoning By- Laws although the subject of zoning by-laws is land and zones are defined on the ground, zoning by-laws operate on the person using the land and not the land itself (Re Gay) Provincial Crown Land (including an Ontario Lake) can be located on the land within a municipality. Thus, a municipality is empowered to enact by-laws that regulate the use of such land by individuals. Qualification: The Provincial Crown and Crown Agents are immune from a municipality’s zoning authority by virtue of section 11 of the Interpretation Act.

Glaspell v Ontario – Zoning By- Laws Township Counterargument: –Council never intended to have its by-law apply to structures built entirely beyond the high water mark –HELD: The effect of this interpretation would be absurd The result of such interpretation is that had the anchor cable for the neighbours’ boathouse been moved past the high water mark onto their property by even an inch, then the boathouse would have had to comply with the zoning by-law. Such an interpretation would allow the municipality to abdicate its responsibilities over zoning

Glaspell v Ontario – Zoning By- Laws The Township could lawfully zone the lands under the lake and regulate the type of construction and the height, bulk, location, size, floor area, spacing, character and use of buildings or structures to be erected or located within the Township.

Glaspell v Ontario – Building Code Individuals (except for the Provincial Crown/ Crown Agents) using provincial Crown land located within a municipality must apply for and obtain a building permit before constructing on such lands. A municipality must enforce the Act on such lands as against individuals other than the Provincial Crown/ Crown Agents.

Glaspell v Ontario – Building Code TOWNSHIP COUNTERARGUMENTS REJECTED – of the Building Code requires that an application made under section 8 of the Act be made by the owner of the property –Rejected because this led to an absurd result. –Instead, section of the Building Code should be interpreted to mean the owner of the property on which or for which the proposed construction or demolition is to take place can make an application.