HomeMy WebLinkAboutDTS-06-014 - Bill 51: Proposed Provincial Planning & OMB Reform1
Kd LR
Development&
Technical Services
6 REPORT
Report To: Development and Technical Services Committee
Date of Meeting: January 23, 2006
Submitted By: Jeff Willmer, Director of Planning (741 -2325)
Prepared By: Terry Boutilier, Brownfield Coordinator & Senior Planner,
Special Projects - (741 -2303)
Wards Involved: City Wide
Date of Report: January 11, 2006
Report No.: DTS -06 -014
Subject: Bill 51: Proposed Provincial Planning & OMB Reform
RECOMMENDATION:
That Staff Report DTS 06 -014 be received for information and that the comments, concerns and
questions of Kitchener Staff and City Council be communicated to the Ministry of Municipal
Affairs and Housing in a timely manner.
EXECUTIVE SUMMARY
Proposed Bill 51, which received 1s' Reading in the Legislature on December 12th, 2005, has the
following key areas of interest for City Council, Staff and our Committee of Adjustment:
• Municipalities to have authority over architectural control on development applications;
• Additional mandatory Public Meetings;
• Reduced rights for appeal to the OMB on certain decisions of Council on employment
lands and expansion of settlement areas;
• Ability to set up a Local Appeal Body for Committee of Adjustment decisions;
• Expanded powers for Upper Tier municipalities to participate in community improvement;
• Retro- activity of new legislation to affect planning applications;
• Revised OMB format whereby only information presented to municipal councils will
be eligible for consideration at Hearings,
• Municipal authority to approve Zone Changes with conditions.
BACKGROUND:
The Province of Ontario recently announced a proposed set of reforms to local planning and the
Ontario Municipal Board. The proposals are contained in Bill 51: An Act to amend the Planning
Act and the Conservation Land Act and to make related amendments to other Acts..
The Ministry of Municipal Affairs and Housing (MMAH) web -site indicates that the proposed
legislation "would, if passed, give local councils and residents more say in how their
communities will grow and prosper by:
• Requiring that municipalities have up -to -date official plans to help them make better
decisions for their communities
• Allowing councils to consider architectural and design features as a condition of planning
approval — to improve the look and feel of our communities —and to promote
innovative and energy efficient buildings and communities or neighbourhoods
• Providing the public with more opportunity to have a say in the planning decisions that
affect their communities
• Making it easier for municipalities to redevelop former industrial sites (brownfields) to
help meet housing and other community needs
• Giving municipalities the ability to promote the use of innovative ideas and technologies,
such as solar panels, through land -use planning decisions.
The proposed legislation would also clarify the role of the OMB and protect local decision -
making by:
• Returning it to its original role as an appeal body on local planning matters, not the main
decision maker
• Requiring the OMB to give greater weight to the decisions of local councils during the
appeal process, and limiting appeals to information and materials that were provided to
the council when it made its decision
• Enabling municipalities to establish local appeals bodies for some planning decisions
such as minor variances."
(Source: www.mah.gov.on.ca)
It is the purpose of this Staff Report to outline, in more detail, the changes which are being
proposed and to facilitate City of Kitchener's response to the Provincial proposals.
Provincial Review Process
Bill 51 received 1s' Reading in the Legislature on December 12, 2005. Comments will be
accepted by the Province, through the EBR Website, until February 26th, 2006. Following this
date, the Province would consider all comments, and adjust the proposed Legislation
accordingly. The Revised Bill 51 would then return to the Legislature for 2nd Reading. At that
point the proposed Bill would be reviewed by the Standing Committee(s) of the Legislature.
Public Hearings are a regular function of the Standing Committee review process. With approval
at Committee, the revised Bill returns to the Legislature for 3rd and Final Reading.
Proposed Planning Act Changes
1. The Definitions, Section 1, is proposed to be amended to add the following new terms:
"area of employment' – means an area of land designated in an official plan for clusters
of business and economic uses including, without limitation, manufacturing,
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warehousing, office, retail associated with any of the above and facilities that are
ancillary to the above uses.
"local appeals body' — means an appeal body for certain local land use planning matters.
"provincial plan" — means the Greenbelt Plan, the Niagara Escarpment Plan, the Oak
Ridges Moraine Conservation Plan, a Places to Grow growth plan, or a prescribed plan
approved by any Minister or agency of the Province.
"residential unit" — means a unit that,
(a) consists of a self contained set of rooms located in a building or structure,
(b) is used or intended to be used for use as residential premises, and
(c) contains kitchen and bathroom facilities that are intended for the use of the unit only.
Comment: Staff will seek clarification on the meaning and value of the terms "cluster ", "retail"
and "associated ", as it relates to area of employment.
2. The list of matters of Provincial Interest, Section 2, is expanded to include:
(q) the promotion of development that is designed to be sustainable, to support public
transit and to be oriented to pedestrians.
Comment: If approved, there will be 18 matters of Provincial Interest in the Planning Act. All
planning approvals "shall have regard to" matters of Provincial Interest. Staff will seek
clarification on the meaning of "sustainable ", where it will be defined, and by whom.
3. When any approval authority, including the Ontario Municipal Board, makes decisions
relating to planning matters, it is proposed that the decision will be required:
"to have regard for the decisions made by municipal councils, and approval authorities
relating to the same planning matters. " Section 2.1
Comment: Staff understand the intent of this clause is to move the role of the OMB from that of
an approval board to one of an appeal board. A `local appeals body', if adopted for Committee
of Adjustment decisions would similarly need "to have regard' .
4. Any decision of a municipal council or agency of the Province, including the Ontario
Municipal Board:
a) shall be consistent with the policy statements issued under Section 2 which are in
effect on the date of the decision; and
b) shall conform with the provincial plans that are in effect on that date, or shall not
conflict with them, as the case may be. Section 3
Comment: Historically, planning applications which precede changes in legislation were
permitted to be processed under the rules which were in effect on the date of the application.
This provides a level of fairness to the applicant so it does not appear that the province or the
municipality has "moved the goal posts" after consideration of their particular application has
occurred. The effect of the proposed legislation is that any planning proposal would need to
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conform to the new policy statement and provincial plans as of the date of consideration by the
approval authority, regardless of the date of the planning application.
Staff will seek clarification on this intent and what level of discretion will be afforded for
applications which precede the new legislation and are currently in the approval or appeal
stages.
4. Provided that a municipality meets the prescribed conditions,
"the council may by by -law constitute and appoint an appeal body for certain local land
use planning matters, composed of such persons as the council considers advisable,
subject to sub - sections (2), (3) and (4)." Section 8
(NOTE: SEE APPENDIX "A ", attached, for complete eligibility and the prescribed
conditions a municipality must meet in order to exercise this provision).
Comment: This provision is to allow municipalities to appoint their own local appeal body to
deal with appeals on decisions of the Committee of Adjustment on applications to permit minor
variances and consents. In addition to fostering more local authority on planning matters, the
intent of this proposal is to narrow the involvement of the OMB hearings to those appeals which
involve matters of provincial interest. Staff have a number of points of clarification on this
proposal, including what the qualifications would be for appointment, how would the members
be held accountable, and would the members be paid for their services. In some respects, the
formation of a local appeal board could be viewed as the "down- loading" of a function currently
funded by the Province.
5. The public participation process used for the preparation of Official Plans and Amendments
is proposed to be amended to require:
a) the appropriate approval authority and prescribed public bodies to be consulted on the
plan and given the opportunity to review all supporting information and materials;
b) at least one public information open house is to be held for the public to review the
information and ask questions; and
c) at least one ,public meeting to be held for the purpose of the public to make
presentations on the proposed plan. Section 17
Comment: Staff see no major change as a result of clause a) above, as this opportunity is
provided now. Regarding clauses b) and c), the proposal is to have two separate meetings on
all Official Plan matters prior to presentation to City Council. This will require additional
processing time for applications, and municipal expense to hold the additional meeting.
6. The right to appeal a Council decision on an Official Plan or Zoning Bylaw matter to the
Ontario Municipal Board is currently open to "any person or public body ". It is proposed that this
right to appeal would be limited as follows:
a) a person who is not a public body and did not, before the plan was adopted, make
oral submissions at a public meeting or written submissions to the council is not entitled
to appeal; and
b) there is no appeal in respect of official plan policies that are adopted to permit two
residential units in a detached house, semi - detached, or rowhouse situated in an area
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where residential use is permitted. Section 17 (24) (24.1) (24.2); Section 34 (19.1)
(19.2)
Comment: The intent of clause a) is similar to but more restrictive than the current wording,
which states such appeals may be dismissed without a Hearing. It is interesting to note that the
limitation only refers to those who are not a public body.
With regard to clause b) the Kitchener Municipal Plan and Zoning Bylaw 85 -1 presently permits
two residential units in the structures in all areas of the municipality with the exception to the
community of Upper Doon, and Cedar Hill (subject to appeal).
7. The right to appeal a Council decision on an Official Plan Amendment (Section 22) is
proposed to be limited as follows:
There is no appeal in respect of a refusal or failure to adopt or approve an official plan
amendment that proposes to:
a) alter all or any part of the boundary of an area of settlement in a municipality;
b) establish a new area of settlement in a municipality;
c) remove any land from an area of employment, even if other land is proposed to be
added; or
d) amend or revoke official plan policies adopted to permit two residential units in a
detached house, semi - detached house or rowhouse situated in area where residential
use is permitted.
However, a lower -tier official plan amendment concerned with any of the above matters can be
appealed provided it conforms to the official plan of the upper -tier municipality.
Comment: Clauses a) and b) refer to decisions of Regional Council since they are the
approval authority for expansion of settlement areas in Kitchener. This legislation would be a
key tool for the implementation of the Places to Grow provincial policy plan and the Regional
Official Policies Plan. However, settlement area expansions which are approved by Regional
Council could still be appealed.
Clause c) is intended to conserve employment lands in accordance with the intent of the Places
to Grow Act and policy plan. City Council and Regional Council could still approve the
conversion of employment lands to another land use designation, provided a comprehensive
review of all employment lands has been conducted. Approvals could still be appealed to the
Board.
8. Section 26 currently requires municipalities with official plans to hold special meetings that
are open to the public, at least every five years, to determine whether official plan revisions are
needed. This section has been re- written to clarify the requirement to update official plans with
respect to provincial plans, matters of provincial interest, provincial policy statements, and
designated areas of employment. Section 26
Comment: The provision for review of the Official Plan every five years is not new. Staff
would note that it is very difficult to effectively meet this requirement, and keep pace with the
balance of the workload. In any event, where there is conflict between a local Official Plan and
a provincial plan or policy, the provincial interest prevails.
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9. The scope and powers of community improvement plans has been expanded, as follows:
a) the definition of community improvement has been expanded; Section 28 (1)
b) upper tier municipalities are permitted to prepare Cl plans for upper -tier (regional
matters); Section 28 (2) (3)
c) both upper and lower tier municipalities may make grants or loans (i.e. financially
participate) in each other level's community improvement plans. Section 28 (7.2)
Comment: The revised Section 28 would allow the Region of Waterloo to directly participate in
our Brownfield Remediation Program, as well any of our other Cl plans. Further, it would allow
the Region to develop and implement its own financial incentives for the implementation of
Regional functions, such as the protection of the community's drinking water supply, transit &
transportation, etc.
There is the possibility of incompatibility or conflict between upper and lower tier Cl plans.
Clarification will be sought on the method to resolve these kinds of issues.
10. Section 34 of the Act (zoning) is proposed to be revised to clarify the municipality's powers
to regulate the density of development, including:
a) the authority to regulate minimum lot area, minimum and maximum density, and
minimum and maximum height of development. Section 34 (3)
b) municipalities shall permit `pre- application meetings' on proposed Zone Changes, and
may, by by -law, require applicants to consult prior to application submission. Section 34
(10.0,1)
Comment: Clause a) is for clarification only. Regarding clause b), the City of Kitchener
currently offers this service for design - related planning applications such as Sub - divisions
(Section 52) and Site Plans (Section 41). We would question the real value of holding pre -app
meetings for Zone Changes. Typically, consultation does take place prior to application, but not
in the format of a pre -app. The proposed legislation would also allow the Cityl by by -law, make
this introductory level of service mandatory.
11. The public participation process used for the consideration of a Zoning Bylaw Amendment is
proposed to be amended to require that:
a) sufficient information and material is made available to enable the public to
understand generally the zoning proposal that is being considered by the council;
b) at least one public information open house is to be held for the public to review the
information and ask questions; and
c) at least one public meetincr to be held for the purpose of the public to make
presentations on the proposed plan. Section 34 (12) (13)
Comment: Same as those in #5 above (on page 2).
12. When considering a Zoning Bylaw Amendment, it is proposed that municipal councils be
permitted to impose one or more prescribed conditions on the use, erection or location of
buildings or structures; and that these conditions be enforced through an agreement between
the land owner and the municipality. Section 34 (16.1)
rel
Comment: Municipalities have a form of conditional zone changes currently by using the
Holding Provisions of the Planning Act (Section 36). Requiring a Record of Site Condition prior
to residential use is an example of this type of `pre- conditional' zoning. Staff would like to
enquire as to what kinds of other conditions could be attached to the Zoning Bylaw amendment.
For example, could the City approve a Zone Change, subject to the submission of an EIS
(Environmental Impact Statement) where the proposed Zone Change is in proximity to an
identified natural area. Or, could we approve a Zone Change for a restaurant or night club,
subject to stipulated hours of operation? In this instance, the Agreement would specify the
kinds of conditions which the applicant would need to maintain following the Zone Change.
The prescribed conditions will eventually be specified in provincial legislation.
13. Ontario Municipal Board Hearings relating to Official Plan, Zoning or other planning matters
are proposed to be generally limited to the information and parties that were before the
municipal council whose decision was appealed. Section 17 (24.1), 34 (11.0.2) (119.1) (24)
Comment: Staff will seek clarification on the details of this proposal, and precisely what is
meant by "that were before the municipal council'. There is a concern that this proposal
could require all parties to appear before Council for all applications, regardless of the
level of complexity. Further, the length of time for each delegation may need to be
significantly increased in order to meet the intent of the proposed legislation
14. No later than 3 years following the approval of an OP or OPA, the Zoning Bylaw shall be
appropriately amended. Section 26 (8)
This is intended to ensure timely implementation of new OP policy. In the past, the City has not
always had the staff resources to achieve this. For example, Inner City Secondary Plans, while
approved in the 1980's, were not fully implemented until 1994.
15. Site Planning provisions under Section 41 are proposed to be amended as follows:
a) municipalities are permitted to regulate matters relating to exterior design, including
without limitation the character, scale, appearance and design feature of buildings, and
their sustainable design, but only to the extent that it is a matter of exterior design, if an
official plan and a by -law Chas been] passed under subsection (2) that both contain
provisions relating to such matters ... Section 41(4)
b) the current list of exclusions from site plan control (colour, texture & type of materials,
window details, construction detail, etc — Sections 4.1, 4.2, 4.3) is proposed to be
repealed and limited to:
1. Interior design;
2. Layout of interior areas, excluding interior walkways, stairs, elevators and
escalators; and
3. Manner of construction and standards for construction. Section 41 (4.1)
Comment: This proposal provides a significant level of clarity for municipalities for the site
planning function. The wording of the current legislation has generated a significant amount of
debate as to what constitutes "architectural details" (which currently cannot be regulated); and
what constitutes "massing and conceptual design" (which can be regulated). .
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In particular, the proposed revisions to Section 41 would assist Kitchener Staff in our continuing
efforts to develop meaningful urban design guidelines for those portions of our City designated
"Nodes and Corridors" in our Municipal Plan.
Clause a) also contains new wording referring to "exterior design,..... and their sustainable
design" Staff believe this intent relates to a building's external features which promotes or
contributes to energy efficiency or improved environmental quality. Examples could include
green roof technology, solar panels or access, LEED Certification, etc. However, the term
"sustainability' needs to be clearly defined to avoid ambiguity. Staff will seek clarification.
16. The Parkland Dedication requirement for Site Plan applications under Section 42 (6) is
proposed to be amended to allow municipalities, by by -law, to reduce the amount of any
payment where:
b) the council is satisfied that no land is available to be conveyed for park or other public
recreational purposes; and
c) the part by whose value the payment is reduced meets sustainability criteria set out in
the official plan.
Comment: As noted is #16 above, `sustainability' would need to be defined, either by the
Province or by City Staff as part of the preparation of the required Official Plan Amendment
policies.
Finally, we would note that Brandon Sloan has reviewed the proposed provisions of Bill 51 with
the members of Kitchener's Committee of Adjustment. Their comment, questions and concerns
will be incorporated into the Kitchener submission, along with those of Staff and Council.
Further, Members of the Committee of Adjustment have been circulated this Report.
Bill 51 proposes other changes to the Conservation Land Act, and other Acts which do not have
significant relevance to the City of Kitchener (e.g. Niagara Escarpment Plan, Oak Ridges
Moraine Plan, Greenbelt Plan.)
FINANCIAL IMPLICATIONS
Recognizing that Bill 51 legislation is in the early stages of development, Staff anticipate the
following financial implications:
a) additional resources will be required to complete and maintain an up -to -date Municipal Plan;
organize and staff the additional Public Information meetings for all Zone Changes and
Municipal Plan Amendments;
b) potential long term savings could be realized by the City with the introduction of financial
incentives at the Regional level for community improvement activities such as brownfield
renewal; and
c) potential costs and revenues for the operation of a local appeals body.
COMMUNICATIONS:
No circulation of this Staff report was conducted, nor is it required.
P
CONCLUSION:
Staff generally support the direction of proposed Bill 51. However, several areas of clarification
are required to fully understand the benefits and consequences to City of Kitchener planning
and development processes and our Municipal Budget.
All of which is respectfully submitted,
Terry Boutilier, MCIP, RPP
Brownfield Co- ordinator, and
Senior Planner (Special Projects)
AttanhmPntn
Jeff Willmer, MCIP, RPP
Director of Planning
• Appendix "A" — Proposed Section 6 of Bill 51 — Local Appeal Body
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