WHAT THE CHANGES WILL MEAN FOR MUNICIPALITIES

WHAT THE CHANGES WILL MEAN FOR MUNICIPALITIES
BILL 139 WHAT THE CHANGES WILL MEAN FOR MUNICIPALITIES March 1, 2018 By Quinto Annibale, Mark Joblin, Steven Ferri, Brendan Ruddick, and Cindy Yi

OVERVIEW OF TOPICS Overview of the biggest changes from Bill 139
Types of matters unaffected by Bill 139, and what has not changed New requirements for official plan policies Procedural fairness and Bill 139 Changes to reports to Council “New decisions” by municipalities after a first hearing What to expect from developers and their applications “Complete application” requirements

OVERVIEW OF BILL 139 CHANGES – BROAD CHANGES
OMB to be replaced and continued as the Local Planning Appeal Tribunal (“Tribunal”) Narrow the scope and application of section 2.1 of the Planning Act A second appeal concerning a decision on an official plan or official plan amendment, either public or private (17 (49.7)); An official plan or official plan amendment appeal where the Minister provided notice of provincial interest 17 (53); A private official plan amendment where Minister provided notice of provincial interest (22 (11.3)); A second appeal concerning a decision on a zoning by-law or zoning by-law Amendment, either public or private (34 (26.8)); An appeal of a zoning by-law or zoning by-law amendment where the Minister has declared a provincial interest (34 (29)); Appeals with respect to interim control by-laws (38 (4) and 38 (4.1)); Site Plan appeal by applicant of conditions imposed (41 (12.0.1)); Subdivision appeal of decision, lapsing provision, or conditions imposed (51 (39)) Subdivision appeal of conditions by applicant or public bodies (51 (43)) Subdivision appeal of changed conditions (51 (48)) 53 (19) – Consent – appeal of decision or conditions imposed 53 (27) – Consent – appeal of changed conditions Non decisions 17 (40) – op or opa where approval authority failed to make a decision 51 (34) – subdivision non-decision appeal 53 (14) – consent non-decision appeal

OVERVIEW OF BILL 139 CHANGES – BROAD CHANGES
This means that section 2.1 will no longer be applicable to: public or private OP, OPA, ZB, or ZBA refusals or approvals unless it is on a second appeal or the Minister has declared a provincial interest in the matter; non-decisions of private OPA applications or ZB applications; site plan non-decision appeals, or, minor variance appeals. Under LPAT Act, Tribunal will no longer have all the powers of a court of record, authority limited to making orders and directions within powers conferred upon it, orders can no longer be filed with the Superior Court of Justice New provision in the LPAT Act stating that it will prevail over SPPA in the event of any conflict

OVERVIEW OF BILL 139 CHANGES – SUBSTANTIVE CHANGES
This set of changes will apply only to the following types of matters: a decision by council to adopt or approve an official plan or an official plan amendment (ss. 17(24)); a decision of an approval authority that approved or did not approve all or part of an official plan or official plan amendment (ss. 17(36)); a decision to pass a zoning by-law (ss. 34(19)); a council refusal or a non-decision on a privately-initiated official plan amendment (ss. 22(7)); and a council refusal or non-decision on a zoning by-law amendment (ss. 34(11)) Not affected: a non-decision of an approval authority for a municipally-initiated official plan or an official plan amendment (ss. 17(40)) or a non-decision by an approval authority for a plan of subdivision (ss. 51(34)) Not affected: a non-decision of an approval authority for a municipally-initiated official plan or an official plan amendment (ss. 17(40)) or a non-decision by an approval authority for a plan of subdivision (ss. 51(34))

Hearings will no longer be “de novo” Two stage hearing process Two new tests to meet on appeal: 1. Consistency/Conformity Test: applies to a decision by council to adopt or approve an official plan or an official plan amendment (ss. 17(24)); a decision of an approval authority that approved or did not approve all or part of an official plan or official plan amendment (ss. 17(36)); a decision to pass a zoning by-law (ss. 34(19)); 2. Dual Appeal Test: applies to a council refusal or a non-decision on a privately-initiated official plan amendment (ss. 22(7)); and a council refusal or non-decision on a zoning by-law amendment (ss. 34(11))

First Appeal – Municipally-initiated OP or OPA
Municipality adopts OP or OPA 17(22) Approval authority fails to approve OPA within 210 days Appeal to Tribunal of failure to approve within 210 days ss. 17(40) Tribunal permitted to approve/modify/refuse on any ground ss. 17(50) Approval authority makes decision approving or refusing OPA ss. 17(34)* Appeal to Tribunal of decision of approval authority or municipality** ss. 17(24), ss. 17(36) Does the decision meet the consistency/conformity test? If Yes Appeal is dismissed. ss. 17(49.1) If No Tribunal gives municipality opportunity to make new decision ss. 17(49.3) Exempt from approval by approval authority

Second Appeal – Municipally-initiated OP/OPA
Municipality fails to make a new decision within 90 days No right of appeal Municipality adopts new OP/OPA within 90 days and it is exempt from approval by approval authority Appeal to Tribunal ss. 17(24) Municipality adopts new OP/OPA within 90 days and it is sent to approval authority ss. 17(49.6) and ss. 17(22) Approval authority fails to make a decision within 90 days ss. 17(40) Appeal of non-decision to Tribunal Tribunal may refuse/approve/modify on any ground ss. 17(50) Approval authority approves or refuses to approve OPA ss. 17(34) ss. 17(49.7) Tribunal may refuse/approve/modify on basis of consistency/conformity test

First Appeal - Municipally-initiated ZB/ZBA
Municipality adopts zoning by-law/zoning by-law amendment Appeal to Tribunal ss. 34(19) If Yes appeal is dismissed ss. 34(26) Does the by-law meet the consistency/conformity test? If No matter returned to municipality for a second decision ss. 34(26.2)(b)

Second Appeal - Municipally-initiated ZB/ZBA
Refusal or failure to make a decision within 90 days No right of appeal Municipality adopts new zoning by-law/zoning by-law amendment ss. 34(26.5) Second Appeal to Tribunal ss. 34(26.8) Does the decision meet the consistency/conformity test? If Yes appeal is dismissed ss. 34(26) If No Tribunal may amend by-law

First Appeal – Private Official Plan Amendment - Adoption
Official Plan Amendment Application Filed Municipality adopts OPA ss. 17(22) Approval authority fails to approve OPA within 210 days ss. 17(40) Appeal to Tribunal of failure to approve within 210 days ss. 17(40) Tribunal permitted to approve/modify/refuse on any ground ss. 17(50) Approval authority makes decision approving or refusing OPA ss. 17(34)* Appeal to Tribunal of decision of approval authority or municipality** ss. 17(24), ss. 17(36) Does the decision meet the consistency/conformity test? If Yes Appeal is dismissed. ss. 17(49.1) If No Tribunal gives municipality opportunity to make new decision ss. 17(49.3)

First Appeal – Private Official Plan Amendment – Refusal or Non-decision
Official Plan Amendment Application Filed Municipality refuses OPA or fails to make a decision within 210 days Appeal to Tribunal for refusal or failure to adopt within 210 days ss. 22(7) Does the OPA fail the dual appeal test? If Yes Appeal is dismissed. ss. 22(11.0.8) If No Tribunal gives municipality opportunity to make new decision ss. 22(11.0.9)

Second Appeal – Private Official Plan Amendment
Municipality fails to make a decision within 90 days Appeal for failure of municipality to adopt OPA within 90 days ss. 22(7) Tribunal may approve/modify/refuse on any ground ss. 22( ) Municipality refuses to adopt an OPA Appeal of refusal Tribunal may approve/modify/refuse on the basis of the dual appeal test ss. 22( ) Municipality adopts OPA within 90 days and it is sent to approval authority ss. 17(49.6) and ss. 17(22) Approval authority fails to make a decision within 90 days ss. 17(40) Appeal of non-decision to Tribunal Tribunal may refuse/approve/modify on any ground ss. 17(50) Approval authority approves or refuses to approve OPA ss. 17(34) Appeal to Tribunal ss. 17(49.7) Tribunal may refuse/approve/modify on basis of consistency/conformity test ss. 17(49.7)

Private Zoning By-law Amendment – First Appeal
Zoning By-law amendment application filed Zoning By-law amendment refused or failure to make a decision within 150 days* Appeal to Tribunal ss. 34(11) Does the by-law amendment fail the dual appeal test?** If Yes appeal is dismissed ss. 34(26) If No matter is returned to municipality for a second decision ss. 34(26.1) Zoning By-law amendment Passed Appeal to Tribunal ss. 34(19) Does the by-law meet the consistency/conformity test? If No matter returned to municipality for a second decision ss. 34(26.2)(b) *Time for non-decision extended to 210 days if application made on the same day as OPA application required to permit ZBA **Zoning by-laws not deemed to conform to OP for purposes of two part test. Subsection 24(4) does not apply

Private Zoning By-law Amendment – Second Appeal
Failure to make a decision within 90 days Second appeal to Tribunal ss. 34(11) Tribunal may amend or direct by-law be amended on any grounds ss. 34(26.6) Zoning By-law amendment refused Second Appeal to Tribunal ss. 34(11) Does ZBA fail the dual appeal test? If Yes appeal is dismissed If No Tribunal may amend by-law ss. 34(26.7) Zoning By-law amendment Passed Second Appeal to Tribunal ss. 34(19), ss. 34(26.8) Does the ZBA meet the consistency/conformity test? If No Tribunal may amend/repeal the by-law ss. 34(26.2)(b)

Notices of appeal: must specifically outline how the Consistency/Conformity Test or Dual Appeal Test is being met Expanded powers to dismiss without a hearing: “shall dismiss” instead of “may dismiss”

OVERVIEW OF BILL 139 CHANGES – PROCEDURAL CHANGES
The following procedural changes apply to the same set of matters affected by the substantive changes, plus more Includes: a decision by council to adopt or approve an official plan or an official plan amendment (ss. 17(24)); a decision of an approval authority that approved or did not approve all or part of an official plan or official plan amendment (ss. 17(36)); a decision to pass a zoning by-law (ss. 34(19)); a council refusal or a non-decision on an official plan amendment (ss. 22(7)); and a council refusal or non-decision on a zoning by-law amendment (ss. 34(11)), and a non-decision of an approval authority for a municipally-initiated official plan or an official plan amendment (ss. 17(40)) or a non-decision by an approval authority for a plan of subdivision (ss. 51(34))

Oral hearings will no longer be held as of right, more hearings held by writing At oral hearings, no party or person is permitted to adduce evidence, call, examine or cross-examine witnesses, or make oral submissions beyond time limits prescribed in regulations Current regulation proposes 75 minutes for parties and 25 minutes for participants At any stage of the proceeding, Tribunal may call or examine witnesses Restrictions on parties at oral hearings: default will be municipality/approval authority and appellant Any one else wishing to be a party or participant must make written submissions to the Tribunal

Current regulation also proposes timelines for proceedings: 10 months for appeals of a municipality or approval authority’s decision or a municipality’s failure to make a decision in respect of an official plan or zoning by-law described in s. 38(1) of the LPAT Act; 6 months for “second” appeals of matters that were sent back to the municipality for a new decision after a first Tribunal hearing; 12 months for appeals of an approval authority’s failure to make a decision in respect of an official plan or plan of subdivision as described in s. 38(2) of the LPAT Act; and 6 months for any other proceeding before the Tribunal under the Planning Act (e.g. minor variances) Case management conferences will now become mandatory

Matters exempt or restricted from appeal: No requests to amend secondary plans for two years, unless municipal council adopts a resolution otherwise; No appeals of Minister approving an OP or OPA, and of Minister’s Zoning Orders; No appeals of ICBLs when first passed for a period of up to 1 year, except by the Minister; and No appeals will be permitted of official plan policies or zoning by-laws respecting a “protected major transit station area”, including policies or by-laws setting densities and heights of buildings or structures within such area; Two additional policy statements to be issued (Metrolinx Act, 2006 and Resource Recovery and Circular Economy Act, 2016)

“Provincial plan” amended to include policies in Lake Simcoe Protection Act, 2008, the Great Lakes Protection Act, 2015, and the Clean Water Act, 2006 Some changes we are lacking details about: Only summaries of regulations released, not actual regulations No regulations prescribing practices regarding admission of evidence and format of decisions No regulations prescribing “eligible” persons to whom Local Planning Appeal Support Centre services will be provided Not clear whether restrictions on adducing evidence and examining/cross- examining witnesses at oral hearings will apply to written hearings

WHAT IS NOT CHANGING Bill 139 directly affects only how land use planning matters will be heard No changes to appeals related to: Minor variance and consent applications; The refusal or non-decision of an application to remove a holding symbol; The refusal, approval or conditions imposed for a plan of subdivision; Site plan appeals, although local appeal bodies will now be permitted to hear them; Appeals made pursuant to the Aggregate Resources Act; Appeals related to demolition permits under either the Planning Act or the Ontario Heritage Act; Other appeals made pursuant to the Ontario Heritage Act, such as heritage conservation district appeals; Appeals made pursuant to the Development Charges Act; Appeals made pursuant to the Expropriations Act; and Appeals made pursuant to the Municipal Act, such as ward boundary reviews and petitions, and approvals of local improvement charges by-laws.

NEW REQUIREMENTS FOR OFFICIAL PLAN POLICIES
OPs now require policies related to: affordable housing, climate change, and protected major transit station areas Climate change policies: need to specifically identify goals, objectives and actions to mitigate greenhouse gas emissions Protected major transit station area: single-tier and upper-tier to identify area and boundaries for higher order transit station or stop For lower-tier municipalities, will be top-down process driven by the upper-tier municipality If upper-tier implements policies, lower-tier will have one year to amend its OP No right of appeal for these policies

PROCEDURAL FAIRNESS AND BILL 139
Concern about lack of Procedural Fairness due to: New appeal procedures No oral hearings as of right Inability to lead evidence in oral hearings Inability to examine or cross examine witnesses Time limits on length of submissions 75 minutes for parties 25 minutes for participants (ss. 17(40) OP appeals and subdivision non-appeals only) Record before Tribunal may be limited to record before Council

Section 61 of the Planning Act: 61. Fair hearing Where, in passing a by-law under this Act, a council is required by this Act, by the provisions of an official plan or otherwise by law, to afford any person an opportunity to make representation in respect of the subject-matter of the by- law, the council shall afford such person a fair opportunity to make representation but throughout the course of passing the by-law the council shall be deemed to be performing a legislative and not a judicial function.

Common law duty of fairness Applicable to quasi-judicial or administrative action Not applicable to legislative decisions Effect of Section 61 Common law requirements of natural justice and procedural fairness inapplicable to decisions made under the Planning Act?

Judicial treatment of section 61 When passing by-laws under the Planning Act Council acting in a legislative capacity and are not undertaking adjudicative function Councils “act as publicly elected bodies whose statutory obligations are clearly defined in the Planning Act” (IPCF Properties Inc. v Brampton (City) CarswellOnt 542, para 118) Scope and effect of section 61 not clear Meaning of “fair opportunity” and “throughout the course of passing the by-law” not defined Not clear that common law duty of fairness entirely ousted from planning process Standards of procedural fairness and natural justice may be scoped or defined legislatively but where statute silent common law rules of procedural fairness apply (Gaudaur v Etobicoke (City), 1997 CarswellOnt 3401

Spence v York 1985 CarswellOnt 670 By-laws adopting OPA and passing ZBA quashed for failure to meet statutory preconditions Applicant’s lawyer made representation directly to Council after public meeting concluded Council made amendments to OPA and ZBA as a result of representation Other interested parties not given opportunity to respond to representation Process unfair and public meeting undermined Requirement of providing persons an “opportunity to make representation” read by court to mean a “fair opportunity to make representation”

Spence v York 1985 CarswellOnt 670 Case not determined on common law principles of natural justice or procedural fairness Court noted: “This is not a matter of natural justice in the abstract; rather it is a matter of statutory construction of plain words.” To note: Court did not describe what “fair opportunity to make representation” entails Instead, court held that there had not been a “fair opportunity” in this case due to the solicitor’s comments after public meeting

Council may act in legislative capacity but Tribunal is quasi-judicial Implication: Tribunal process subject to principles of natural justice and duty of fairness may be owed Municipalities may want to go beyond minimum statutory requirements to avoid challenge on procedural grounds at Tribunal stage

Potential responses: Provide more opportunities for submissions and representations Increase delegation time limits Increase in time limits could be made applicable only to Planning Act matters affected by Bill 139 changes Make staff reports available early Provides public more time to review recommendations and gives municipality and staff time to get responses to submissions on the record

REPORTS TO COUNCIL Substance of the reports to Council will need to refer to Consistency/Conformity Test or Dual Appeal Test Affects: municipally-initiated official plan or official plan amendments, decision to pass a zoning by-law, and privately- initiated requests to amend an official plan or the zoning by-law When Dual Appeal Test is engaged, will require analysis of existing planning instruments in place Structured like a witness statement, and may want to consider structuring as affidavit evidence, including acknowledgement of expert’s duty

Timelines for municipal processing all extended by 30 days
REPORTS TO COUNCIL Timing of the release of reports: recommend at least 30 days before Council meeting for decision Allow interested members of public and applicant to know staff’s position, formulate submissions, and allow staff to respond if necessary Timelines for municipal processing all extended by 30 days 150 days for ZBLAs (if accompanied by OPA, review time is 210 days) 210 days for OPA applications 150 days for applications to lift an “H” holding symbol

Challenges for reports to Council in non-decision appeals:
Not clear if report following appeal forms part of the record Cautious about preliminary reports or recommendations for approval in principle If Council makes a decision that differs from recommendation in report: Report recommends approval, and Council refuses  left to rely on portion of report considering analysis of existing policies meeting Consistency/Conformity test Report recommends refusal, and Council approves  rely only on applicant’s materials on the record Seeking outside planning opinions

NEW DECISIONS FOLLOWING FIRST APPEAL
Opportunity to Make New Decision: Municipalities only given 90 days to prepare and adopt new OP/OPA or ZB/ZBA Failure to make decision in 90 days means on appeal Tribunal may approve/modify/refuse on any ground This includes approval authority non-decision within 90 days after adoption

Statutory Preconditions for Second Decision Required Consultation with and review by approval authority (ss. 17(15)(a)) Consultation with and review by prescribed public bodies (ss. 17(15)(b)) Providing copy of plan and adequate information and material to public (ss. 17(15)(c)) At least one public meeting and opportunity for public to make representation (ss. 17(15)(d)) Not Required Open house where plan or by-law revised under s. 26 or in relation to development permit system (ss. 17(16) and ss. 34(12)(b)) Providing copy of proposed plan to Minister 90 days before notice of public meeting (ss. 17(17.1))

Opportunity on Second Decision Address concerns with application Flexibility in making modifications/amendments to OPA or ZBA ss. 22 ( ) For greater certainty, a condition set out in subsection (7.0.2) is not met if the council or the planning board adopts an amendment in response to a request under subsection (1) or (2), even if the amendment that is adopted differs from the requested amendment. ss. 34 ( ) For greater certainty, council does not refuse an application for an amendment to a by-law passed under this section or a predecessor of this section or fail to make a decision on the application if it amends the by-law in response to the application, even if the amendment that is passed differs from the amendment that is the subject of the application.

Given tight timing municipalities may consider: Making preparations in advance of decision in anticipation of unsuccessful appeal Difficulty is that planning process should be public. Private deliberations could undermine public process

Petro Canada Asset Management v Ajax 2008 CarswellOnt 318, 58 O.M.B.R. 495 at para. 33: … legitimate concerns are raised when council meets privately in camera on planning matters. When there is proof of planning in camera that can void the process. In this case the municipal planner asserts that earlier in camera meetings during interim control were for legal reasons and without planning decisions being made. Subsequently, the municipal planner refers to a briefing of the Council on the planning study prior to an Open House (non statutory meeting on the Study) and the statutory public meeting on the implementing Official Plan and Zoning By- law amendments. To the degree that Council may have provided direction to staff, that raises concerns as to fair process. … The Board maintains the position that planning ought to be in public.

WHAT TO EXPECT FROM DEVELOPERS AND OTHER INTERESTED PARTIES
Lawyers at Meetings Feeling that advocacy and submissions must be front-ended in the planning process Old Reports in Submissions To overcome limitations on leading evidence before the Board Challenging Qualifications Challenges to expert qualifications may occur when application is before Council for fear that this will not be possible before the Tribunal

Voluminous Records Developers and interested parties likely to increase volume of materials submitted Increase in Volume and Detail of Submissions To overcome limitations on leading evidence before the Board Increase in FOI Requests and Informal Requests Staff notes, draft reports, councillor correspondence

Increased Participation Due to ability for unsuccessful appeal of refusal to set precedent for other applications in the municipality Requests for Consolidation Decisions within Timelines Requests for Increased Submission Time Delegates likely to ask for increased time to make submissions

Reports Sworn Elements of acknowledgment of expert’s duty Concept Plans Planning Appeals Support Centre Questions from public – municipality should be prepared to address these

“COMPLETE APPLICATION” REQUIREMENTS
Cautious about prematurely deeming an application to be complete Avoid having to request additional materials after deeming complete application Municipalities may want to consider adding to or changing OP policies regarding required material (e.g. specifying what a report, study, or assessment must include)

“COMPLETE APPLICATION” REQUIREMENTS
Try and review applications and supporting materials for completeness as soon as possible Try and undertake substantive review of materials as they are received – don’t wait until application is complete to start circulating for comments The Corporation of the Town of Oakville v ClubLink Corporation ULC, Clublink Holdings Limited, 2018 ONSC 589 (Div Ct) decision: if application is deemed complete by the OMB, date is retroactive to date materials were submitted

Quinto M. Annibale Tel: J. Mark Joblin Tel: Steven C. Ferri Tel: Brendan Ruddick Tel: Cindy Yi Tel:

WHAT THE CHANGES WILL MEAN FOR MUNICIPALITIES

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