Bill 108, More Homes, More Choice Act, 2019
PLANNING ACT
The Schedule makes various amendments to the Planning Act. Here are some highlights:
New subsections 17 (40.1) to (40.1.3) provide rules respecting when the Minister as an approval authority can provide notice to suspend the period of time after which there may be appeals of the failure to make a decision in respect of a plan.
New subsections 17 (55) to (64) provide a process for the Minister as an approval authority to refer plans to the Ontario Land Tribunal for a recommendation or a decision.
New subsection 34 (10.12) provides rules respecting when municipalities are required to refund fees in respect of applications under that section.
An additional type of Minister’s order is added to the Act in section 34.1. These orders are made by the Minister at the request of a municipality. This section sets out the process and rules respecting such orders.
New subsections 37 (54) to (59) require regular reviews of community benefits charge by-laws and provide rules respecting such reviews.
A number of amendments are made to section 41. A number of subsections are added that set out the rules respecting consultations with municipalities before plans and drawings are submitted for approval and respecting completeness of applications made under this section. New subsection (4.0.1) provides for the appointment of an authorized person for the purposes of subsection (4). New subsection (11.1) provides for rules respecting when municipalities are required to refund fees.
Amendments are made to sections 42 and 51.1 with respect to parkland requirements on land designated as transit-oriented community land under the Transit-Oriented Communities Act, 2020.
New rules are added to section 51 with respect to extensions of approvals by approval authorities.
New section 70.3.1 provides the Minister with authority to make certain regulations respecting surety bonds and other instruments in connection with approvals with respect to land use planning.
Note: On January 1, 2023, section 41 of the Act is amended by adding the following subsection: (See: 2022, c. 12, Sched. 5, s. 7 (5))
Refund
(11.1) With respect to plans and drawings referred to in subsection (4) that are submitted on or after the day subsection 7 (5) of Schedule 5 to the More Homes for Everyone Act, 2022 comes into force, the municipality shall refund any fee paid pursuant to section 69 in respect of the plans and drawings in accordance with the following rules:
1. If the municipality approves the plans or drawings under subsection (4) within the time period referred to in subsection (12), the municipality shall not refund the fee.
2. If the municipality has not approved the plans or drawings under subsection (4) within the time period referred to in subsection (12), the municipality shall refund 50 per cent of the fee.
3. If the municipality has not approved the plans or drawings under subsection (4) within a time period that is 30 days longer than the time period referred to in subsection (12), the municipality shall refund 75 per cent of the fee.
4. If the municipality has not approved the plans or drawings under subsection (4) within a time period that is 60 days longer than the time period referred to in subsection (12), the municipality shall refund all of the fee. 2022, c. 12, Sched. 5, s. 7 (5).
Notable amendments to the Planning Act include:
Requiring municipalities to provide refunds for zoning by-law amendment and site plan application fees where no decision is made during the statutory timeframe;
The introduction of a new ministerial zoning tool, referred to by the Minister as the Community Infrastructure and Housing Accelerator (“CIHA”);
An established review process for community benefit charge (“CBC”) by-laws;
Amendments to parkland requirements on lands designated as Transit-Oriented Communities (“TOC”);
Empowering the Minister with new powers regarding certain official plan amendments (“OPAs”) and new official plans; and
Empowering the Minister to make regulations for the use of surety bonds as security for conditions imposed by a municipality on planning approvals.
Each change is discussed further below.
Application Fee Refunds
Changes to the approval process for zoning by-law amendment and site plan applications will require municipalities to refund application fees if a decision is not made within the legislative timelines. Refunds will be calculated on a graduated basis (i.e. 50%, 75% or 100%) depending on the number of days following the application. This change will apply to applications made on or after January 1, 2023.
The stated intent of this change is to expedite the approval process by facilitating faster decisions on applications.
Site Plan Control
Changes to both the Planning Act and the City of Toronto Act, 2006 will require municipal councils to delegate site plan control decisions to staff (i.e. an officer, employee or agent of the municipality). This will apply to all applications received on or after July 1, 2022.
Bill 109 also extended the site plan application review timeline from 30 days to 60 days. This means that an applicant can only appeal a municipality’s failure to approve their site plan application to the Ontario Land Tribunal (the “Tribunal”) beginning 60 days after the application was submitted, rather than 30 days.
Lastly, the changes establish complete application requirements for site plan applications, similar to current complete application requirements for other types of applications under the Planning Act, with recourse if the application has not been deemed complete within 30 days of acceptance by the municipality.
Plans of Subdivision
Bill 109 permits the establishment of a regulation-making authority to determine what cannot be required as a condition of draft plan approval. These requirements will be prescribed by a regulation made under the Planning Act, which has not been released yet.
In addition, the changes permit an approval authority to allow municipalities to reinstate draft plans of subdivision that have lapsed within the past five years without a new application. This exemption does not apply where the approval has previously been deemed not to lapse using this provision of the Planning Act, and if there is an agreement entered into for the sale of the land by a description in accordance with the draft approved plan of subdivision. If the draft plan of subdivision is deemed not to have lapsed, the approval authority shall specify a time when the approval lapses.
Community Infrastructure and Housing Accelerator
A new section to the Planning Act was added, which creates an additional type of Minister’s order notwithstanding that the Ministerial Zoning Order (“MZO”) under s. 47 of the Planning Act still exists. The Minister has indicated that the s. 47 MZOs will instead be reserved for provincially significant infrastructure projects like the TOC program.
The CIHA tool permits the Minister to make a zoning order at the request of the municipality, by Council resolution.
The Council’s resolution must:
Identify the lands to which the order will apply; and
Identify the manner the municipality’s powers will be exercised with respect to the lands.
The inclusion of a draft by-law in the resolution is deemed to satisfy these requirements. However, before passing such a resolution, the municipality must give notice to the public and consult with persons, public bodies and communities as the municipality considers appropriate. Within 15 days after Council passes the resolution, the municipality shall forward the resolution to the Minister, where it may make an order under s. 34 of the Planning Act or by way of a development permit by-law.
An order may not be made in respect of any land in the Greenbelt area. However, the order does not have to be consistent with the Provincial Policy Statement, 2020, nor does it have to conform, or not conflict, as the case may be, with provincial plans or official plans.
The Minister may also impose conditions on such an order, and the order prevails in the event of a conflict with other by-laws passed under s. 34 of the Planning Act.
Finally, before an order is issued, the Minister must establish guidelines respecting orders and publish the guidelines on a Government Website. Draft Guidelines were posted on March 30, 2022.
Currently, the Draft Guidelines indicate:
Where CIHAs cannot be used (e. the Greenbelt);
That CIHAs can be used to regulate the use of land and the location, height, size and spacing of buildings and structures to permit certain types of development; and
That the Minister may make CIHAs to expedite certain developments, including planning approvals that support the quality of life for people and communities, any type of housing (particularly community housing, affordable housing and market-based housing), buildings that would facilitate employment and economic development and mixed-use developments.
CBC By-law Reviews
New subsections are proposed to the Planning Act, as well as the provincial regulation O. Reg. 509/20 regarding CBCs and Parkland, that increase the existing municipal reporting requirements. Municipalities that pass a CBC By-law will be required to undertake and complete a review of the by-law at least once every five years. The review will include public consultation.
Parkland Requirements for TOCs
The amendments implement a maximum and tiered alternative parkland dedication rate for municipal parkland in areas designated by the Minister of Transportation as TOC land under the Transit-Oriented Communities Act, 2020 (i.e. development projects that are connected with the construction of a station that is part of a defined priority transit project). The rate is based on a percentage of the development land or its value (10% on sites 5 hectares or less, and 15% on sites more than 5 hectares).
The changes also provide the Minister of Infrastructure with authority to identify encumbered land at TOC development sites that could be conveyed to a municipality as parkland.
Ministerial Powers Regarding Official Plan Approvals
The changes give the Minister new discretionary authority when making decisions on certain OPAs, or new official plans. The Minister is permitted to refer these matters to the Tribunal for a recommendation on whether the Minister should approve or modify the OPA or new official plan, or for a final decision. In either instance, the Tribunal may hold a hearing before making its recommendation or rendering its decision. If an Official Plan was submitted to the Minister for approval prior to April 14, 2022, and no decision respecting the Plan has been made, the Minister may still refer all or parts of the plan to the Tribunal for recommendation or a decision.
The changes also allow the Minister to suspend the time period in which to decide on all official plan matters subject to Minister’s approval (with transition for matters that are currently before the Minister).
Regulation-Making Authority for the Use of Surety Bonds
Lastly, another new section was added to the Planning Act that, once in force, will permit the Minister to make regulations prescribing and defining surety bonds and other prescribed instruments. Such instruments will authorize landowners and applicants to stipulate the type of surety bond (or other prescribed instrument) to secure obligations imposed by the municipality in connection with land use planning approvals. This new section will come into force on a day to be named by proclamation of the Lieutenant Governor.
Increased Funding to the Ontario Land Tribunal and the Landlord and Tenant Board
While not a result of a legislative amendment, the province has also announced that it will provide $19 million in funding over three years to the Tribunal and the Landlord and Tenant Board. This was a key recommendation in the Housing Affordability Task Force Report, and according to the province, the extra funding will support faster case resolution by increasing the number of adjudicators, mediators and case coordinators as well as by improving access to online services.
Conclusion
Bill 109 is purported to be the province’s first step in implementing the Ontario Housing Affordability Task Force’s report recommendations. Davies Howe LLP will continue to monitor how these changes unfold at a practical level.
https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-108
Development Charges ACT
Exemption for second dwelling units in new residential buildings.
What Services can be charged for,
Annual Installments of DC, after occupancy, (rental housing, institutional, industrial, commercial)annual payments for 5 years, unpaid amount added to taxes,
ADU. Need OP Policies
Inclusionary Zoning, can add an inclusionary zoning requirements in OP,
Community Benefits Charge, Council may by by-law impose CBC
The Schedule amends the Development Charges Act, 1997.
Subsection 2 (4) of the Act is amended to set out the only services in respect of which a development charge by-law may impose development charges. The services are those set out in current subsection 5 (5), which is repealed, and ambulance services and waste diversion services.
A new section 26.1 is added to the Act setting out rules for when a development charge is payable in respect of five types of development: rental housing, institutional, industrial, commercial and non-profit housing. Unless certain exceptions apply, the charge is payable in annual instalments (21 instalments in the case of non-profit housing development, and six instalments in the case of the other types). The instalments begin on the earlier of the date of the issuance of a permit under the Building Code Act, 1992 authorizing occupation of the building and the date the building is first occupied. Section 52 is amended to set out equivalent rules in respect of these five types of development in the context of non-parties to a front-ending agreement.
A new section 26.2 is added to the Act setting out rules for when the amount of a development charge is determined. The amount is determined based on the date of an application under section 41 of the Planning Act or section 114 of the City of Toronto Act, 2006 (site plan control area) or, if there is no such application, on the date of an application under section 34 of the Planning Act (zoning by-laws). If neither such application has been made, the amount continues to be determined in accordance with section 26 of the Act. If a specified period of time has elapsed since the approval of the relevant application, the amount continues to be determined in accordance with section 26 of the Act.
Transitional provisions are set out.
The Schedule amends the Ontario Heritage Act as follows.
The Act is amended to require a council of a municipality, when exercising a decision-making authority under a prescribed provision of Part IV or V of the Act, to consider the prescribed principles, if any.
Section 27 of the Act currently requires the clerk of each municipality to keep a register that lists all property designated under Part IV of the Act and also all property that has not been designated, but that the municipal council believes to be of cultural heritage value or interest. Amendments are made to the section to require a municipal council to notify an owner of a property if the property has not been designated, but the council has included it in the register because it believes the property to be of cultural heritage value or interest. The owner is entitled to object by serving a notice of objection on the clerk of the municipality and the council of the municipality must make a decision as to whether the property should continue to be included in the register or whether it should be removed. Other technical amendments are made to the section.
Currently, section 29 of the Act governs the process by which a municipal council may, by by-law, designate a property to be of cultural heritage value or interest. The process set out in the section is amended to require a municipal council, after a person objects to the notice of intention to designate the property, to consider the objection and to make a decision whether or not to withdraw the notice of intention within 90 days after the period for serving a notice of objection on the council ends. If no notice of objection is served or the council decides not to withdraw the notice of intention, the council may pass a by-law designating the property, but must do so within 120 days after the notice of intention was published. If a by-law is not passed within that period, the notice of intention is deemed to be withdrawn. A person who objects to a by-law passed under the section may appeal to the Local Planning Appeal Tribunal. Similar amendments are made to section 30.1 in connection with proposed amending by-laws and to section 31 in connection with proposed repealing by-laws. However, those amendments do not include the restriction that the amending by-law or repealing by-law, as the case may be, must be passed within the 120-day period.
Section 29 of the Act is also amended to provide that, if a prescribed event occurs, a notice of intention to designate a property under that section may not be given after 90 days have elapsed from the prescribed event, subject to such exceptions as may be prescribed.
Section 32 of the Act currently governs the process by which an owner of a property may apply to a municipal council to repeal a by-law designating the property. The section is amended to provide that the municipal council must give notice of the application and that any person may object to the application. The council must, within 90 days after the period for serving a notice of objection on the council ends, make a decision to refuse the application or consent to it and pass a repealing by-law. If the council refuses the application, the owner of the property may appeal the council’s decision to the Tribunal or if the council consents to the application, any person may appeal the decision to the Tribunal.
Currently, section 33 of the Act restricts the alteration of a property designated under section 29. Amendments are made to provide that an application under the section must be accompanied by the prescribed information and materials and any other information or materials the municipal council considers it may need. Re-enacted subsection 33 (4) provides that the council must, upon receiving all of the required information and material, notify the applicant that the application is complete. The council is also permitted, under re-enacted subsection 33 (5), to notify the applicant of the information and material that has been provided, if any, or that has not been provided. The council must make a decision on the application within 90 days after notifying the applicant that the application is complete. However, if the applicant is not given a notice under subsection (4) or (5) within 60 days after the application commenced, the council’s decision on the application must be made within 90 days after the end of that 60-day period. Similar amendments are made to section 34.
In addition, section 33 of the Act is amended to enable the owner of a property to appeal the council’s decision to the Tribunal.
Currently, sections 34 and 34.5 of the Act restrict the demolition or removal of a building or structure on properties designated under Part IV. Those sections are amended to also restrict the demolition or removal of any of a designated property’s heritage attributes. Similarly, section 42 currently restricts the demolition or removal of buildings or structures on properties located in heritage conservation districts designated under Part V. That section is amended to also restrict any demolition or removal of an attribute of a property if the demolition or removal would affect a heritage attribute described in the plan for the district in which the property is situated. Consequential amendments are made to sections 34.3, 41 and 69. Section 1 is amended to provide that, for the purposes of certain specified provisions of the Act, the definition of “alter” does not include to demolish or remove and “alteration” does not include demolition or removal.
Technical amendments are made to section 34.1 of the Act, which governs appeals to the Tribunal in relation to decisions made under section 34.
Section 70 of the Act is amended to provide regulation-making powers in connection with the amendments described above. Also, a new section 71 is added to give the Lieutenant Governor in Council the power to make regulations governing transitional matters.
Other technical and housekeeping amendments are made to the Act.
The Schedule amends the Planning Act. The amendments include the following:
Additional residential unit policies
Currently, subsection 16 (3) of the Act requires official plans to contain policies authorizing second residential units by authorizing two residential units in a house with no residential unit in an ancillary building or structure and by authorizing a residential unit in a building or structure ancillary to a house containing a single residential unit. The subsection is re-enacted to require policies authorizing additional residential units by authorizing two residential units in a house and by authorizing a residential unit in a building or structure ancillary to a house.
Inclusionary zoning policies
Currently, under subsection 16 (5), official plans of municipalities that are not prescribed for the purposes of subsection 16 (4) may contain inclusionary zoning policies in respect of all or part of a municipality. Under subsection 16 (5), as re-enacted, official plans of those municipalities may contain those policies in respect of an area that is a protected major transit station area or an area in respect of which a development permit system is adopted or established in response to an order made by the Minister of Municipal Affairs and Housing under section 70.2.2, as re-enacted.
Reduction of decision timelines
Timelines for making decisions related to official plans are changed from 210 to 120 days (see amendments to sections 17, 22 and 34), those related to zoning by-laws are changed from 150 to 90 days (see amendments to sections 34 and 36) and the timeline for making decisions related to plans of subdivision is changed from 180 to 120 days (see amendment to subsection 51 (34)).
2017 amendments to the Act
Certain amendments made to the Act by the Building Better Communities and Conserving Watersheds Act, 2017 are repealed. These repeals include the repeal of provisions relating to appeals that were added by that Act to sections 17, 22 and 34. These provisions include subsections 17 (24.0.1) and (36.0.1) which restrict the grounds of appeal under subsection 17 (24) (decision to adopt an official plan) and subsection 17 (36) (decision to approve an official plan) to inconsistency with a policy statement, non-conformity with or conflict with a provincial plan or, in the case of the official plan of a lower-tier municipality, non-conformity with the upper-tier municipality’s official plan. Also repealed are subsections 17 (49.1) to (49.12) which set out rules applicable to those appeals. The Schedule adds subsections 17 (25.1) and (37.1) and 34 (19.0.1) to require an appellant who intends to appeal on those grounds, to explain in the notice of appeal how the decision is inconsistent with, fails to conform with or conflicts with the other document.
Third party appeals for non-decisions on official plans
Currently, under subsection 17 (40), any person or public body may appeal to the Local Planning Appeal Tribunal with respect to all or part of an official plan in respect of which no notice of a decision was given within the specified timeline. In addition to changing the timeline to 120 days, subsection 17 (40), as re-enacted, gives appeal rights to the following persons or public bodies: the municipality that adopted the plan, the Minister and, in the case of a plan amendment adopted in response to a request under section 22, the person or public body that requested the amendment.
Community benefits charge by-law
Currently, under subsection 37 (1), a local municipality may, in a zoning by-law, authorize increases in the height and density of development otherwise permitted by the by-law that will be permitted in return for the provision of such facilities, services or matters as are set out in the by-law. Section 37, as re-enacted, replaces the current section 37 and also replaces the power to impose a development charge under the Development Charges Act, 1997 in respect of services described in subsection 9.1 (4) of that Act. (See amendments to that Act set out in Schedule 3).
Under section 37, as re-enacted, a municipality may by by-law impose community benefits charges against land to pay for capital costs of facilities, services and matters required because of development or redevelopment in the area to which the by-law applies. Here are some highlights:
A community benefits charge may be imposed in respect of development or redevelopment that meets specified requirements set out in subsections 37 (3) and (4). Subsection 37 (5) provides that a community benefits charge may not be imposed with respect to facilities, services or matters that are prescribed or that are associated with any of the services set out in subsection 2 (4) of the Development Charges Act, 1997.
Under subsection 37 (12), the amount of the charge cannot exceed an amount equal to the prescribed percentage of the value of the land as of the day before the day the building permit is issued in respect of the development or redevelopment. A dispute resolution process is provided in cases where the landowner is of the view that the charge exceeds the maximum allowable charge.
Under subsection 37 (25), all money received under a community benefits charge by-law must be paid into a special account. Under subsection 37 (27), a municipality must spend or allocate 60 per cent of the monies in the special account each year.
Subsections 37 (29) to (31) are transitional provisions relating to the following: a special account established under repealed subsection 37 (5); a reserve fund established in accordance with the Development Charges Act, 1997 in respect of services described in subsection 9.1 (4) of that Act; and any credit under section 38 of that Act that relates to any of those services.
New section 37.1 sets out transitional provisions relating to the repeal of current section 37.
Parkland by-laws under section 42
A local municipality may, under subsection 42 (1), pass a by-law applicable to the whole or any defined area of the municipality to require as a condition of development or redevelopment of land, that land in an amount not exceeding a specified amount be conveyed to the municipality for park or other public recreational purposes. Subsection 42 (2) is added to provide that, subject to a specified exception, a by-law under subsection 42 (1) is of no force and effect if a community benefits charge by-law under section 37, as re-enacted, passed by the municipality is in force.
Subsection 42 (3) currently provides that, as an alternative to requiring the conveyance provided under subsection 42 (1), the by-law may, in the case of land proposed for development or redevelopment for residential purposes, require that land be conveyed to the municipality for park or other public recreational purposes at a rate not exceeding the specified rate. Subsection 42 (3) and related subsections are repealed.
Currently, under subsection 42 (17), the treasurer of the municipality must give each year to council a financial statement relating to a special account the municipality is required to maintain under subsection 42 (15). Subsection 42 (17) and related subsections 42 (18) to (20) are repealed. Subsection 42 (17), as re-enacted, imposes reporting requirements on municipalities that pass a by-law under section 42.
Third party appeals of plans of subdivision
Currently, under subsection 51 (39), a person or public body has a right to appeal the decision of an approval authority to approve a plan of subdivision (including the lapsing provision and conditions) if the person or public body has, before the approval authority made its decision, made oral submissions at a public meeting or written submissions to the approval authority. Amendments to subsection 51 (39) add the requirement that the person also be a person listed in new subsection 51 (48.3). Similar amendments are made to appeal rights under subsections 51 (43) and (48).
Parkland condition to approval of plan of subdivision under section 51.1
Currently, under subsection 51.1 (1), the approval authority may impose as a condition to the approval of a plan of subdivision that land in an amount not exceeding a specified amount be conveyed to the local municipality for park or other public recreational purposes. Subsection 51.1 (6) is added to provide that the development or redevelopment of land within a plan of subdivision is not subject to a community benefits charge by-law under section 37, as re-enacted, if the approval of the plan of subdivision is the subject of a condition that is imposed under subsection 51.1 (1) on or after the day section 37, as re-enacted, comes into force. New subsection 51.1 (7) sets out transitional provisions.
Currently, under subsection 51.1 (2), if specified requirements are met, a local municipality may require, as an alternative to the conveyance described in subsection 51.1 (1), that land be conveyed to the municipality for park or other public recreational purposes at a rate not exceeding the specified rate. Subsection 51.1 (2) and related subsections are repealed.
Mandatory development permit system
Currently, under section 70.2.2, the Minister and an upper-tier municipality may require a local municipality to adopt or establish a development permit system for one or more purposes as the Lieutenant Governor in Council may specify by regulation. The local municipality has discretion to determine what parts of its geographic area are to be governed by the development permit system. Under section 70.2.2, as re-enacted, the Minister may require a local municipality to adopt or establish a development permit system that applies to a specified area or to an area surrounding and including a specified location. If the order specifies a location (instead of an area), the local municipality is required to establish the system in respect of that location and has discretion to determine the boundaries of the area surrounding the specified location that is to be governed by the system.
Regulation-making powers
Several amendments are made to the regulation-making powers set out in sections 70.1 and 70.2. Section 70.10 is added to give the Minister the power to make regulations governing transitional