GREATER TORONTO HOME BUILDERS' ASSOCIATION
ONTARIO HOME BUILDERS' ASSOCIATION
CANADIAN ENVIRONMENTAL LAW ASSOCIATION
DUFFERIN-PEEL ROMAN CATHOLIC SEPARATE SCHOOL BOARD
ASSOCIATION OF MUNICIPALITIES OF ONTARIO
CANADIAN INSTITUTE OF PUBLIC REAL ESTATE COMPANIES
CONTENTS
Tuesday 13 September 1994
Planning and Municipal Statute Law Amendment Act, 1994, Bill 163, Mr Philip / Loi de 1994 modifiant des lois en ce qui concerne l'aménagement du territoire et les municipalités, projet de loi 163, M. Philip
City of Mississauga
Tom Mokrzycki, commissioner, planning and building
Greater Toronto Home Builders' Association
Peter Langer, president
Laurie Gordon, second vice-president and chair, planning reform task force
City of Brampton
Peter Robertson, mayor
John Marshall, planning commissioner
Ontario Home Builders' Association
Ward Campbell, first vice-president
Ian Rawlings, past president
City of Burlington
Walter Mulkewich, mayor
Ros Minaji, planner
Kathryn Dean
Morry Smith
Canadian Environmental Law Association
Kathleen Cooper, researcher
Dufferin-Peel Roman Catholic Separate School Board
Art Steffler, chair
Ken Adamson, trustee
Association of Municipalities of Ontario
Bill Mickle, president
Terry Mundell, first vice-president and chair, task force on planning
Peter Atcheson, co-chair, task force on planning
John Harrison, member, task force on planning
Canadian Institute of Public Real Estate Companies
Ross Cullingworth, past president
Mark Noskiewicz, legal counsel
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
*Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)
Bisson, Gilles (Cochrane South/-Sud ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
*Curling, Alvin (Scarborough North/-Nord L)
*Haeck, Christel (St Catharines-Brock ND)
Harnick, Charles (Willowdale PC)
Malkowski, Gary (York East/-Est ND)
Murphy, Tim (St George-St David L)
Tilson, David (Dufferin-Peel PC)
*Wilson, Gary (Kingston and The Islands/Kingston et Les Iles ND)
Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Eddy, Ron (Brant-Haldimand L) for Mr Murphy
Grandmaître, Bernard (Ottawa East/-Est L) for Mr Chiarelli
Hayes, Pat (Essex-Kent ND) for Mr Malkowski
McLean, Allan K. (Simcoe East/-Est PC) for Mr Tilson
Murdoch, Bill (Grey-Owen Sound PC) for Mr Harnick
Perruzza, Anthony (Downsview ND) for Mr Bisson
White, Drummond (Durham Centre ND) for Mr Winninger
Also taking part / Autres participants et participantes:
Ministry of Municipal Affairs:
Boeckner, Pat, manager, plans administration branch
Hayes, Pat, parliamentary assistant to minister
McKinstry, Philip, acting director, municipal planning policy branch
Sidebottom, Peter-John, senior policy adviser, local government policy branch
Clerk / Greffière: Bryce, Donna
Staff / Personnel: McNaught, Andrew, research officer, Legislative Research Service
The committee met at 0907 in room 151.
PLANNING AND MUNICIPAL STATUTE LAW AMENDMENT ACT, 1994 / LOI DE 1994 MODIFIANT DES LOIS EN CE QUI CONCERNE L'AMÉNAGEMENT DU TERRITOIRE ET DES MUNICIPALITÉS
Consideration of Bill 163, An Act to revise the Ontario Planning and Development Act and the Municipal Conflict of Interest Act, to amend the Planning Act and the Municipal Act and to amend other statutes related to planning and municipal matters / Projet de loi 163, Loi révisant la Loi sur la planification et l'aménagement du territoire de l'Ontario, la Loi sur les conflits d'intérêts municipaux, et modifiant la Loi sur l'aménagement du territoire et la Loi sur les municipalités et modifiant d'autres lois touchant des questions relatives à l'aménagement et aux municipalités.
The Vice-Chair (Ms Margaret Harrington): I'd like to call to order this meeting of the standing committee on administration of justice dealing with Bill 163.
CITY OF MISSISSAUGA
The Vice-Chair: This morning we have before us the city of Mississauga representatives. I'd like to ask you to introduce yourselves. You have half an hour, and hopefully you'll leave some of that time for questions.
Mr Tom Mokrzycki: My name is Tom Mokrzycki. I'm the commissioner of planning and building for the city of Mississauga. On my right I have Mr Robert Johnston, who is a consultant for the city right now, formerly a director of realty services for the municipality for many years, and I have our counsel with us as well.
My presentation this morning will focus on the legislative component of Bill 163, and more specifically part III of the legislation and proposed amendments to the Planning Act. Before outlining the concerns that we have as well as some of the solutions that we're proposing, it's important to address the comprehensive set of policy statements that were prepared by the Ministry of Municipal Affairs and released as part of the package of information along with Bill 163 on May 18, 1994.
Mississauga continues to support the need for and concept of a provincial framework to provide guidelines for municipal planning. However, we really object to the policy statements in their present form. The details that are contained in those policy statements are far-reaching and really allow the province to become involved in several aspects of land use planning that are clearly of local municipal interest.
The expected outcome of adopting these policy statements and the proposed legislative statements that are before this committee today is to shift decision-making authority to the provincial level while still leaving political accountability at the local municipal level. We don't think that's appropriate. This approach that's being promulgated through the legislation offers limited involvement for public consultation at the local community level, where the greatest impact of all the policy changes and the legislative impacts that you're looking at today will be felt. It's also totally contrary to one of the basic principles of Bill 163, and that's to empower municipalities to make development decisions.
In the legislation, as you're looking at it today, every planning decision shall be consistent with the provincial policy statements where it is really the empowerment element, and I'll speak to that particular section a little bit later in my presentation.
I should point out, as I've already mentioned, that there are certain positive aspects of Bill 163, so we are trying to present to you a balanced position. We're not totally negative about all aspects of Bill 163. Items dealing with greater protection of the environment are welcome. Requirements for open government are also welcome. Resolution of delays at the Ontario Municipal Board through the legislation provisions is also quite welcome. In fact, there may be one or two items of streamlining of the process, but in general I don't think that the implementation of this legislation will help in streamlining the overall planning process to the extent that was originally intended or envisioned.
Some of the areas that we feel are positive changes to the legislation are contained in your brief and form exhibit 1, so I won't go through those in detail. You can take a look at those at your leisure.
What I'd like to focus on are the problematic aspects of Bill 163. We have serious concerns with several of the proposed revisions to the Planning Act. Let me start with section 4 of Bill 163, which deals with the purpose of planning.
We support the need for the purpose of planning to be defined in the act. However, the purpose as defined focuses primarily on the province's role in defining policies in Ontario, and the reference to land use planning in the definition is really far too restrictive. As far as we're concerned, the solution to this whole situation is that the purpose section should be amended, "to provide for a land use policy system led by provincial policy which respects the decision-making authority and accountability of local municipal councils."
In addition, the reference to land use planning, as it's currently contained in the legislation, should be deleted and rather it should be referred to as planning in general in order to reflect other aspects of planning, not just land use planning. There's economic planning, there's social policy, there's environmental planning. Planning is much broader than simply land use planning, so the definition should be revised.
The next section I'd like to focus on is section 5 of Bill 163, which speaks to provincial interests. Section 2 of the act is intended to require that all planning jurisdictions have regard to provincial interests in carrying out their responsibilities under the act. This section should really be extended to every minister, every board, every commission, every agency and the Ontario Municipal Board as well as Ontario Hydro. No one should be excluded from that legislation as currently proposed. Therefore, section 5 of Bill 163 should be revised to reflect that sort of a position.
In addition, in discussing matters of provincial interest, there's a clause (q) in that section of the legislation that says "any other matters prescribed" can be considered. That is far too open-ended and quite frankly should be deleted. It confers upon the province an extraordinary power which would enable it to regulate municipalities and land use planning on virtually any matter, circumventing the legislative and public consultation process, perpetuating uncertainty at the local municipal level and making it very unclear for municipalities as to when the province will interfere in new policy areas and in local decision-making practices.
The next section I'd like to focus on is section 6 of Bill 163, which deals with the review of policy statements. Bill 163 did not include the recommendation of the Sewell commission regarding a regular review of policy statements, nor did it include a process for the introduction of new provincial policies or even amendments thereto. This type of regular review is really necessary in order to keep these policies current. Section 6 of the bill should be amended to include a requirement for the minister to review policy statements at least every five years, which is not dissimilar to what municipalities have to do with their official plans.
Next is subsection 6(1), and that deals with public consultation on policy statements. There is no formal requirement for the minister to hold public meetings, in the conventional sense, regarding the introduction of new policy statements or for the amendment. The proposal in the act is that "the minister shall confer with such persons or public bodies that the minister considers have an interest in the proposed statement."
This, quite frankly, could result in a situation where there's no public consultation if the minister so decides, and yet, depending on the content of the policy statement that he's considering, it could have a significant implication for a variety of interest groups. The act must establish a mandatory public consultation process with adequate notice for any new, or amendments to, provincial policy statements. It doesn't do that at this time.
The next section I'd like to talk about is subsection 6(2) of the bill that talks about the infamous phrase "shall the consistent with" versus "shall have regard to." As mentioned previously, the city of Mississauga doesn't oppose the legislation per se. However, when you read it in conjunction with the policy statements that the province has in their present form, it creates a situation where the implication for municipal councils and local neighbourhoods will quite frankly be devastating in terms of loss of authority at the local municipal level over matters that are clearly of local interest.
The section that includes those words should be deleted and we should really retain the current provision of "shall have regard to" as opposed to "shall be consistent with," especially if the existing policy statements that the provincial government is putting forth remain unchanged.
The next section is section 10, that deals with mandatory or discretionary official plans. The bill currently provides that where an official plan is mandatory for regional municipalities, it's not for local municipalities, for example, and municipalities of local nature "may prepare and adopt a plan and submit it...for approval."
This totally undermines the need for strong land use planning and local authority and this is decision-making at the municipal level. Any municipality that wants to engage in planning activity, as far as the city is concerned, "must" have an official plan in order to guide the policy framework within which those decisions are made.
Official plans should be mandatory for all local municipalities and, further, upper-tier or regional official plans or even county plans should only be strategic in nature and should really provide a value added to the process and not duplicate and repeat that which is contained in local plans. Local plans, that's where the action really is at the local municipal level, and they should be mandatory and should provide for that sort of level of service.
The next section of the bill I'd like to speak to in section 10 deals with the expression of views of public bodies. Section 10 proposes to amend section 17 of the Planning Act with respect to time frames for dealing with official plans. With respect to referral to the Ontario Municipal Board, subsection 17(29) identifies the conditions under which an "approval authority may refuse to refer all or part of" a plan "to the Ontario Municipal Board."
Mississauga supports these conditions, but in subsection 17(30), the one immediately following, it allows for these conditions to be waived for public bodies. This not only affects the timeliness of the process; it implies that public bodies -- that means provincial ministries, agencies and municipalities -- can ignore the process and intervene at the very last minute. As far as we're concerned, all public bodies should be required to participate through the entire process. Otherwise, if you haven't, you don't really have the opportunity to intervene at the very last minute. Subsection 17(30) of the bill should therefore be deleted.
Perhaps one of the most important sections I'd like to spend some time on is section 23 of the bill, and that speaks to section 42 of the Planning Act, which essentially addresses cash payment in lieu of conveyance for park purposes. It's very interesting that, as part of the commission's recommendations, this subject matter was not touched upon, wasn't even addressed. There was no recommendation dealing with this matter in the form in which this legislation has come forward. It's materialized, as far as we are aware, out of thin air.
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It amends the parkland dedication provisions to ensure that municipalities cannot require more than one parkland dedication in respect of development, unless there's an increase in density, between the draft plan of subdivision approval and the issuance of a first building permit.
We of the city of Mississauga support principles of fairness and equity in the assessment of cash-in-lieu-of-parkland dedication. The underlying rationale for the changes that are being proposed through this piece of legislation assumes that there is an inequity in the way in which it's being applied that in fact does not exist. Mississauga does not double-dip, nor do we exploit section 42, as it exists, to take parkland or cash in lieu beyond that which is permitted by the act. We utilize the provisions of the act to take an amount of parkland cash in lieu in combination to meet the needs of our approved official plan standards. Our ultimate parkland requirement for any development is based on either 5% of the land or the alternative requirement of one hectare per 300 dwelling units.
Because that's the way in which we operate, we have tremendous difficulty in understanding why this proposal to amend the legislation has been introduced. This amendment also destroys the equity within municipalities that have negotiated in good faith, with the development industry, development charge bylaws. The Development Charges Act places a limit or a cap on the parkland service level that a municipality can provide through revenues collected under the provisions of the Planning Act or the Development Charges Act. Any increase or decrease in revenues collected through the cash-in-lieu-of-parkland is adjusted in the development charges levy. Amending section 42 of the Planning Act, as proposed, will cost the city of Mississauga more than $11 million in currently owed final payments. I can't overemphasize that.
Bill 163 also, as is proposed in this particular section, fails to ensure any retroactivity in terms of this provision, so developers of plans that are registered under existing city policy and in accordance with the Planning Act, as it currently exists, will not necessarily now be able to pay their fair share and don't receive a windfall, quite frankly, at the expense of taxpayers and future developers. If this amendment proceeds, our development charges bylaw will have to be immediately amended to adjust for the lost revenue, and the planning and provision of parkland in the city of Mississauga will be severely undermined──not only in the city of Mississauga. Other municipalities in the province of Ontario that utilize this legislation the same way, whether they realize it or not, will be impacted in the same way. There is a serious flaw in this portion of the legislation.
A recent decision of the Divisional Court on this type of issue endorsed the policy of the city of Mississauga in collecting parkland dedication in two stages. Mississauga's policies in applying the provisions of the Planning Act are also followed by other major urban municipalities and, in our view, are quite farsighted. They're a critical requirement for parkland provision and planning in sophisticated growing municipalities. The court recognized the differences between valuing lands under section 51, which is a subdivision approval process, which is raw land, and they recognized the cost of land and the increased value resulting from the subdivision approval process. That's why they provided another section under 42 of the act for increased density.
The amount of money that can be collected under section 51, the subdivision section, is insufficient to acquire the parkland needed to meet our official plan standard, as the land that is obtained through that process is valued as of the day before the day of draft plan approval and it's not paid until actual registration of the plan occurs. The city would be required to pay a substantially higher value if the lands in a draft-approved plan of subdivision had to be purchased at market value at some later stage.
The calculation of densities at a draft plan approval stage in the process is imprecise at best and the actual number of units constructed is subject to, among other things, market demands, from the industry's perspective. Ranges of density are often approved to permit some flexibility in development based on a fair assessment of the land value on the day before the issuance of the building permit. The two-stage process that we utilize merely allows for a down payment of land or money at the subdivision approval stage, and it is paid immediately prior to registration of the plan of subdivision, with the final payment due at the building permit issuance, with full credits provided for the first payment of land or money that was originally dedicated──again no double-dipping in keeping with the current legislation.
In the interest of equity, the city requires land to be dedicated at the lower range of the zoned density on a parcel. We don't require developers to pay parkland dedication based on the highest density that could be allowed. We ask them to pay it at the lower range of density, and then we compensate owners for land that is required for park purposes above the minimum permitted units under the zoning designation. In the event that more than the minimum density is constructed, the increase is adjusted by that second step, or the section 42 payment.
Another concern that really is not addressed in the legislation is the situation where you have partial parkland dedication on a plan of subdivision where the balance of parkland dedication is collected as cash-in-lieu at the time of permit issuance. If the legislation is enacted, it may be more prudent for municipalities to require total parkland requirements to be dedicated at the outset. This practice will create a dilemma as the parkland would be preserved but it would not be equally distributed throughout the municipality; ie, it would not necessarily be the right amount of parkland in the right location in the municipality. The moneys required to purchase additional parkland in underserviced areas therefore would have to be funded through the mill rate, as the municipality would be increasing the service level above that which is provided under the Development Charges Act.
As I've discussed, section 42 does not provide for the consideration of previous dedication of parkland and as a remedy available for any applicant who is of the opinion that the municipality was unfair in the assessment of cash-in-lieu. As I've mentioned, there have only been two assessments since 1983 in the city of Mississauga that have been referred to the municipal board. In both of those situations the Divisional Court has upheld the city's policies, practices, as well as the values that attribute to the lands in question.
Bill 163 does not provide for an approval process in estimating the cash-in-lieu-of-parkland amount. The city of Mississauga's policy however does. It requires the approval of council and fixes the amount for a period of six months to provide for better certainty as to costs to builders or purchasers.
In conclusion on this particular section, it's imperative that the provisions of Bill 163 to amend section 42 of the Planning Act be deleted or, at the very least, be further studied and revised in order to make them workable. The integration of parkland funding between the Planning Act and the Development Charges Act must be carefully analysed so as not to reduce the provision of parkland in any Ontario municipality. In particular, this amendment will cost the taxpayers of Mississauga $11 million, as I mentioned before, that cannot be immediately replaced by the use of the Development Charges Act and will in fact become a windfall to the developers and builders who have not paid their fair share.
Section 25, the next section I'd like to speak about just for a few minutes, deals with appeals. Basically there is a series of questions that I think till need to be addressed:
(a) How will the whole process be structured? Should it be a committee of council to hear the appeals?
(b) The proposed amendments make no provision for council deciding to not hear a review of the reasons or the request, whether it's frivolous or vexatious.
(c) Will it really save time?
(d) Can costs be awarded? The legislation makes no provisions for either party to ask for council to award costs.
(e) What happens in situations where staff and council positions differ? The end result of this process is one where council will only be in a position to review a decision of the committee of adjustment in a fair and impartial manner where that council has not previously received and dealt with staff recommendations.
Bill 163 should be amended to address those sorts of questions. We don't have solutions for you this morning.
Section 28 of Bill 163 deals with the requirements for public meetings for plans of subdivision. Mississauga and most municipalities hold public meetings on official plans and official plan amendments. There is no need and we do not support the need for holding a public meeting on a plan of subdivision.
Clauses 51(14)(a) and (b) of the Planning Act should be deleted. It's a duplication and a waste of time.
Two last items and I'll finish, and we can have questions if there are any.
Planning on a watershed basis is one item. Generally speaking, Mississauga supported the commission's recommendations to ensure planning is done on a watershed basis, yet Bill 163 makes no reference to planning on a watershed basis. This matter should be re-examined.
On the question of automatic appeals to the Ontario Municipal Board, the bill requires appeals of official plans and amendments thereto to be first referred to the approval authority, which then determines if there are legitimate grounds for referral to the OMB. The similar situation, in our view, should apply to rezoning, subdivisions and consents, and they should all be evaluated under subsection 17(29) to determine if really a referral to the OMB is appropriate.
That concludes the presentation from the city of Mississauga. We are available for any questions or discussion.
The Chair (Mr Rosario Marchese): Very well, thank you. Two minutes per caucus. M. Grandmaître.
Mr Bernard Grandmaître (Ottawa East): Thank you for your presentation. I'd like to take you through section 42 of the proposed changes to the Planning Act. Take me through the Mississauga process and explain to me, or this committee, how your city will lose $11 million in final payments. Take me through those steps.
Mr Mokrzycki: Mr Chair, I wonder if I might have Mr Robert Johnston respond to that question directly.
The Chair: Of course.
Mr Robert Johnston: In our current process we prepare two values prior to registration of a plan of subdivision. The first value estimates the value the day before the day of draft approval, which could be three years prior to the registration of the plan of subdivision.
Mr Grandmaître: I see.
Mr Johnston: Currently in Mississauga, a 10-acre subdivision would have a value that would yield cash in lieu of parkland of about $162,000 at the day before the day of draft approval. We then prepare a second estimate of value which estimates the value at building permit issuance. In Mississauga, that same 10-acre subdivision at single-family densities would yield $300,000 cash in lieu of parkland. What we will be losing is the $137,500 that we would collect under the two-stage process and be left with the original value of $162,500. We are losing 50% of our revenues.
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Mr Grandmaître: You also go on to say that "if this amendment proceeds, our development charges bylaw will have to be immediately amended to adjust for the loss of revenue." If you do this, wouldn't your amendment indicate to developers that they're not welcome in Mississauga? If you were to amend your bylaw, then you wouldn't be as competitive as you are today.
Mr Johnston: I don't think so. When we brought in our Development Charges Act, it was negotiated with the development industry. We opened our books. We showed our inventories of parkland. We provided estimates of cash in lieu that we would collect under the existing system. They agreed to that levy. What is happening now is, with the amendment to section 42, $11 million will be taken away from the city, which it has to replace in some other fashion. So it is either the Development Charges Act or it's the tax rate.
The Chair: Okay. Thank you, Mr Grandmaître. We've gone beyond the three minutes almost. Mr McLean.
Mr Allan K. McLean (Simcoe East): Mine will be short, and it refers to the section with regard to policy statements. Most municipalities now have to coincide with the provincial policy statements. You are indicating in your brief that the implications on municipal councils and local neighbourhoods will be devastating in terms of loss of authority over matters that are clearly of local interest. You're indicating that they're taking the power away by changing the wording to "be consistent with" the provincial policy, and you want "shall have regard to" retained. That's correct?
Mr Mokrzycki: In response, let me give you an example to illustrate. The current housing policy requiring 25% affordable housing has resulted in a situation where provincial staff, through the individual approval of official plan amendments or zoning amendments, is dictating where in a municipality that affordable housing is provided. Okay? That's a local, municipal concern. As long as a municipality has the ability and is fulfilling its requirements in that regard, providing across its municipality 25% affordable housing, that decision should be left to the neighbourhoods and the communities that are most impacted by that -- as long as we meet the 25%. That's not happening now.
One of the proposed policy statements even deals with parkettes, the location of parkettes and the planning of parkettes. I'm baffled as to how the location of a parkette could be a matter of provincial interest, yet it is there.
Those are the sorts of examples of issues and concerns that we've got with the policy statements which, when translated through the legislation in having to be consistent with, poses us the greatest problem. If you change the policy statements, make them more palatable, then "be consistent with" is okay. If you don't change the policy statements, "be consistent with" is not okay; "regard for" is acceptable.
Mr McLean: I thank you for appearing before the committee this morning. Your views are well taken.
The Chair: Government members? Ms Harrington.
Ms Margaret H. Harrington (Niagara Falls): Very briefly on another issue that you raise here, you stated you felt that planning should be much broader than land use planning. I'm wondering if you could give examples of the type of thing that you would like the province to address in this legislation for all the municipalities of the province with regard to other planning issues.
Mr Mokrzycki: In response, the phrase "land use planning" is a descriptor. The phrase "land use," in our view, is just too restrictive because it simply implies the physical use or the actual use of land.
Official plans, quite frankly, are major policy documents which guide many decisions of municipalities as well as the private sector. They shouldn't be restricted to just dealing with issues of land use. They should also deal with social issues. They should also deal with economic issues, business development. They should also deal with some of the other issues that are currently mandated through the legislation under the various regional acts; for example, police services, school board levels of service. There are other things that affect the overall planning of communities that should be allowed to be included in official plans because official plans are basically the visions and the guidelines for future total development of a municipality, in all of its parts, and not just land use.
Ms Harrington: I thought when a municipality did make up an official plan, it would think about the economic future of that city and how much was needed for residential-industrial and, obviously, services, whether it's schools or libraries, and put all of those pieces together in an official plan. So I think actually official plans now are in a sense broader than land use.
Mr Mokrzycki: The concern here is that by defining it as only land use, it doesn't recognize that which you're speaking of at this point in time. We're concerned that we don't want to limit it. We want to make sure that we can very clearly cover all of those aspects you're talking about, and then some on top of that, that are legitimate issues for official plans to actually contain.
Ms Harrington: Such things as the transportation pattern are very important to the future of a municipality. Thanks.
Mr Pat Hayes (Essex-Kent): Philip will clarify.
The Chair: Mr McKinstry, a clarification.
Mr Philip McKinstry: Just to clarify, in terms of our intent in the purpose of planning, it was never our intent to limit municipalities to considering only land use issues. In fact, in the policy statements it makes it clear that they should be thinking of social planning and human services planning as well. I guess our intent was that, in terms of what planning actually does, it's the impacts of all these other things on land use issues, so that those other things should be considered and then the land use determined following those. That was our intent in writing the legislation.
Mr Mokrzycki: I think I understand that intent. I guess what I'm saying is, the actual implementation of the intent perhaps could be improved by broadening the definition so that it's not exclusive, but inclusive.
Mr McKinstry: Okay.
The Chair: We thank the city of Mississauga officials for coming and thank you for sharing your views.
GREATER TORONTO HOME BUILDERS' ASSOCIATION
The Chair: We invite the Greater Toronto Home Builders' Association, Mr Peter Longet and Ms Laurie Gordon, second vice-president.
Clerk of the Committee (Ms Donna Bryce): It's Langer.
The Chair: Langer, is it? Longet is equally beautiful, by the way.
Mr Peter Langer: Good morning. Mr Chairman, the PQ did not win in Ontario. But I do enjoy the multicultural aspects of life in Ontario.
The Chair: Of course.
Mr Langer: Mr Chair, members of committee, my name is Peter Langer and I am president of the Greater Toronto Home Builders' Association. Joining me this morning is Laurie Gordon, second vice-president of the association and chair of our planning reform task force. Laurie is also a town planner by profession. In our non-voluntary lives, Laurie and I are both senior executives of major land development companies -- in Laurie's case, a home-building corporation -- and we are both active throughout the greater Toronto area.
The GTHBA represents over 720 member companies which collectively build over 80% of all new housing constructed in the greater Toronto area. This industry is by far the largest provider of employment and is the industry that will be most affected by the proposed changes to the land use planning system in Ontario. In the greater Toronto area alone, we build approximately 15,000 new housing units a year, directly generating over 37,000 person-years of employment.
I would like, first, to say that we are in agreement with the government that the planning system in Ontario is in need of overhaul. It is the single most significant factor in making housing more expensive than it need be and, as a consequence, it has a very direct and negative impact on Ontario's competitive position in attracting new business investment providing sustainable, permanent employment growth opportunities.
Planning reform is needed. However, it is absolutely imperative that we take whatever time is required to understand the broad economic impact of this bill and the accompanying set of policy statements and get it right.
The GTHBA has taken every opportunity available over the past few years to provide its input and to express its concerns as the draft policies and legislative proposals have evolved. Regrettably, for the most part our comments seem to have fallen on deaf ears.
The planning system and the intricate relationships between the industry, municipal and provincial governments, the environment, the business community and the home-buying public are matters of enormous complexity. This legislation will have a major impact, affecting the lives and lifestyle of Ontario residents for many years to come.
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We respectfully submit that it is of paramount importance to understand its full impact before we proceed with amendments and policies that may not have the desired effect. We submit that the proposed legislation and policy statements are flawed in many respects and that very little regard has been paid to the broad economic impact, in particular.
The government, to its credit, and in recognition of these facts, has created under the chair of Mr Dale Martin an implementation task force, which we are happy to be part of. As this group proceeds, the enormity of its task is just starting to become apparent. In due course it should lead to a better understanding of the role and impact that the proposed legislation will have on all major stakeholders.
We submit that it is only after this process has been completed that we can all properly assess the economic and social impact of the proposed changes -- and that should then be a matter of public consultation. To do otherwise would clearly be putting the cart before the horse, and a horse with obscured vision is a horse without direction.
Mr Chairman, the Greater Toronto Home Builders' Association, together with the Urban Development Institute, has submitted a joint response which you have already received. This afternoon you will hear from the Association of Municipalities of Ontario. We are joined with that organization and many others in echoing many of the same concerns.
We are the people who must operate within the system day in and day out. We are the people who have an intimate understanding of the current process, with all its flaws, and the people who will have to work with the new system. In your deliberations you ought to give great weight to what we are saying.
In our joint submission we have raised a number of concerns and have made a number of recommendations. This morning we would like to comment on just one of those issues, an issue that has been touted as one of the primary objectives of planning reform, and that is the issue of streamlining. Laurie will deal with that for you.
Ms Laurie Gordon: As Peter mentioned, the minister has constantly claimed that Bill 163 will streamline the process. Every time I hear this I ask myself, either the minister doesn't understand how the planning process works or I don't.
First, these changes are so sweeping and comprehensive that, in the transition, everything will be slowed down as the players seek to interpret the huge amount of legislation, regulations, guidelines and policy statements. In planning matters, everything comes down to words on paper and how those words are interpreted. Even though we have not seen the complete package, as promised, the volume is already overwhelming.
Just to highlight a few examples of how streamlining has not been achieved, I'd like to touch on a couple of points.
The first one: Bill 163 requires that a public meeting be held on plans of subdivision. This is a new requirement which we've never had before. It will take time. It will cost time if we allow special interest groups, the NIMBY consequences, to generate issues at the 11th hour, that being at draft plans of subdivision. More important, the meeting is totally redundant because the public interest is fully served by the regime of official plans that have to be consistent, as they are proposed, with policy statements, plus the public meetings which have already been placed on official plans and zoning bylaws.
The provision is overkill. It will not streamline the process and it should be eliminated, as should the provision for circulation on conditions to draft plan amendments and red-line draft plans.
Furthermore, Bill 163 proposes that section 3 of the wording shall be "consistent with." We are strongly opposing that recommendation and suggest that we revert back to the present wording, "with regard to."
Bill 163 gives council 180 days to hold a public meeting on an official plan amendment, followed by a 30-day waiting period before council can make a decision, followed by 150 days for the upper tier to make its decision -- potentially one year in the process. By that time, the applicant just might go and build his plant in the US.
With respect to 180 days, we suspect that this maximum will become a minimum. Six months is a long time to wait, particularly if your application is ultimately turned down. We feel that it would not be unreasonable for councils to hold a public meeting within 90 days, and the right to appeal to the Ontario Municipal Board should also kick in at that 90-day period.
The 30-day statutory waiting period between the public hearing and a council decision on an official plan amendment is wasteful. Given the schedule of municipal council meetings, the delay may be much longer; and where there are no issues, it's just a waste of time. The 30-day waiting period should also be eliminated.
Bill 163 has also dramatically limited the applicants' rights of appeal. Under the current system, an applicant can appeal to the OMB after 30 days. Under the proposed system, the applicant cannot go directly to the board. There are no limitations on the time the approval authority may take to refer an application, and the referral authority can deem an application premature with no recourse to the applicant. Clearly, this is arbitrary and unfair to the applicant and needs to be amended. We have to have an absolute right of appeal.
The way the bill is currently drafted, a provincial ministry can seek referral to the OMB at the end of a process, whether or not they have participated in that process. We call this sandbagging. It is one of the biggest problems with the existing system today. All provincial ministries must be subject to the same rules as everybody else.
Furthermore, several sections of the proposed act prevent the running of time for the right of appeal until the approval authority has the "prescribed information and material." A complete application will be described in an as-yet-unwritten regulation. We are very fearful that we may never get in the door or that we will have to spend an inordinate amount of time and money to do so. The complete application should not be a condition precedent to the running of time for an appeal.
These are just a few examples in the many ways that Bill 163 lengthens the process, not shortens it. Neither the minister nor the ministry has ever advised us that we are interpreting the bill incorrectly, and we have sought guidance many times on this. Yet the minister continues to promote the streamlining aspects of the bill.
We've made suggestions that will have the effect of improving upon the worst problems with the bill, and further suggestions are outlined in our joint brief with the Urban Development Institute. We hope that the committee will recommend these amendments during your clause-by-clause referral.
Mr Langer: As a further demonstration of the prematurity of this legislation, I would like to comment on one of the accompanying policy statements, and that is section C, the housing policies. This section seeks to increase the component of affordable housing in all new developments from the current 25% to 30% at the 60th income percentile. It further states that one half of these units are to be affordable to the 30th income percentile.
It is focused exclusively on new housing and is an unattainable goal at the 30th income percentile in the greater Toronto area without some form of subsidization. The cost of land, together with development charges and the cost of servicing and financing, will be very close to the price threshold before the units are even constructed.
To the best of our knowledge, the government is not budgeting to provide the required subsidies. How then will this goal be attained if the development application is to be consistent with the policy? Will it be on the backs of all other new home purchasers who will have to pay more for their homes in order to make up the shortfall? This is an unanswered question of implementation.
Furthermore, this policy does not allow municipalities to consider existing housing stock as part of the equation. It is a known fact that the vast majority of first-time buyers purchase homes on the less expensive resale market. Based on projected demographics, this is a reality that will continue and likely increase.
The GTHBA has addressed this problem, and we are pleased to provide you with a position paper that demonstrates its lack of justification and suggests a reasonable solution. I believe that's already been circulated.
In conclusion, we recommend that the government not proceed at this time with enacting legislation whose total impact is not yet fully understood and which so many groups are telling you is badly flawed. The current system, with all its warts, is at least working, and there is no crushing urgency to make changes that could matters worse. Let's take the time to consider all concerns, make the amendments, and get it right.
Thank you.
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The Chair: Thank you. Mr McLean, three minutes.
Mr McLean: That's where I want to start my question, for the people of the province and the developers who are putting in plans of subdivision with regard to the affordable policy requirement being changed from 25% to 30%. The home builders' association and your group are going to have to increase the units. If you have a 100-unit subdivision, 30 of them would have to be for affordable housing. Is that what the policy reads? Is that your interpretation of it?
Mr Langer: Yes. Thirty of those 100 units would have to be for affordable housing at the 60th income percentile, and 15 of those units would have to be affordable at up to the 30th income percentile.
Mr McLean: Who's going to determine what's affordable and what's not?
Mr Langer: The government has a methodology of determining that and it issues bulletins that indicate what the price thresholds are, and I believe it is throughout the greater Toronto area.
Mr McLean: Is this going to affect the rest of the homes in that plan of subdivision?
Mr Langer: What we're seeing is you cannot buy the land, service the land, finance it, pay the development charges and build the houses to meet that price. We've done a quick calculation and --
Mr McLean: But who's going to pay the difference?
Mr Langer: That's exactly my point: We don't know. We don't see that the government is guaranteeing to make up the difference in the form of subsidy, so it would have to be added to the price of the other homes in the subdivision, in effect.
Mr McLean: That's what I said; it would be on to the other homes.
Mr Langer: That's right. This is one of our biggest concerns, of course: What is going to happen to the price of housing? When you look at the impact of all these things, the end result is going to be to drive up the price of housing, and that's not good for Ontario, it's not good for its residents and it certainly doesn't help us to be competitive in trying to attract industries to locate here.
Mr McLean: But then the Mississaugas of the world say, "Well, you're taking $11 million from us in fees, so that will go to the other end to build the houses." They're not happy because they're losing money on the fees of parkland or whatever. So therefore you say that it's going to go up anyway.
Mr Langer: I'm saying the combination of factors. I haven't looked at the Mississauga numbers to measure what effect that would have, quite honestly, but the combination of factors -- the restrictiveness of this legislation, the restrictiveness of the policies in total, the limitation on land supply -- is going to have the effect of driving up prices. It's going to be more costly to produce housing in this province.
Ms Christel Haeck (St Catharines-Brock): Ms Gordon, I appreciate your comments. I don't necessarily agree with all of them, needless to say. I'm interested in your approach with regard to the complete application and your comments with regard to public meetings for plans of subdivision.
Let me just give you a brief preamble to explain where I'm coming from. The constituents I represent down in the Niagara Peninsula have raised with me on a fairly regular basis their concern that they have no real idea of what is happening with their subdivisions. Official plans change regularly. Amendments happen almost the day after they're supposedly approved and concluded. So they advocate very strongly to know completely what is going to be happening to their neighbourhood, and the idea of having a complete application, for them, as people who will be directly impacted by a subdivision, is something they consider extremely important as part of this legislation. So I'd be interested in your reaction.
Ms Gordon: Okay. First, the comment on public meetings for draft plans of subdivision: It's our position that in the time it takes to get to the draft plan of subdivision, chances are you've had a number of informal and formal public meetings for the official plan and the zoning bylaw. In most instances, big presentations are brought forward that outline the particulars of a draft plan of subdivision that's there for display at all stages of the public meeting process. When it gets down to a draft plan of subdivision, you're getting down to how a particular street is laid out, how a combination of unit mixes is placed together, how a functional engineering issue is being addressed. In terms of the official plan, which is a guiding document that's supposed to balance all interests that are trying to be weighed against each other, and when the zoning bylaw official plan comes down that looks at particular densities etc, there's very little left, except for perhaps the colour of a house, that needs to be addressed at a public meeting.
Furthermore, in most municipalities, if not all, the public process, all council meetings, all planning committee reports are open for public information. They can be viewed at any time. The way that my company works is we have many non-legislative-required public meetings with our community participants so we can find out what their concerns are. To require it is just another step that, quite frankly, is redundant, in my view.
The Chair: Very briefly, Ms Haeck.
Ms Haeck: Yes. I just wanted to make the comment that possibly you'd like to look at the reality of other parts of the province, because maybe your company operates that way but that surely isn't the case for what's happened in Niagara on a fairly regular basis. It has made for a very cynical public, and they're much more happy with this than what you're proposing.
Ms Gordon: I cannot comment on the Niagara situation.
On the second part of your question addressing my views on the complete application regulation, one of the things that we are strongly of the view is that to interpret policies that have been laid on the table today and a bill, you need the guidelines and the regulations in front of you to truly assess what the picture is and how the game will be played with respect to both the public and private interests.
The complete application is being handled by a regulation that no one has seen. What we suspect is that that regulation is going to outline a vast number of studies etc; that it is going to be extremely expensive. That's fine for developers and home builders who are big public corporations and can afford -- I don't know -- $250,000 worth of studies, for example, but the small builder and small developer, chances are they probably won't be able to continue doing business any more because they won't be able to afford the expense associated with it.
I have no difficulty with a reasonable amount of application information required to properly assess an application. I think that's expected, and the development and home building industry is quite professional and sophisticated today and we're quite happy to do that, but what that regulation will unfold, there isn't anybody around the table who knows that today.
Mr Alvin Curling (Scarborough North): Thanks for an excellent presentation. You've echoed what we have heard around the province, very much so, especially in regard to the housing policy.
Now, could you help me too, because I'm trying to get a definition. What would be the difference between a non-profit developer and people who come under your jurisdiction?
Ms Gordon: Are you going to handle it, Peter?
Mr Langer: Many of our members do build non-profit housing when projects and funding are available and allocated.
Mr Curling: So, in other words, you do have people who consider themselves non-profit developers under your jurisdiction.
Mr Langer: Absolutely.
Ms Gordon: The predominant difference, though, if I may interject, is the non-profit home builder or developer is more a turnkey general contractor and developer, and the allocation to build that non-profit unit has predominantly come from this government's allocations. I do not see any more allocations coming down; I have not seen any announcements or financial resources associated with that. So how another non-profit unit is going to be built is beyond me, and how we're going to meet that 50% affordability at the 30th percentile, which we interpret as a purchase price of about $85,000 -- the private sector cannot build an $85,000 unit anywhere in the greater Toronto area.
Mr Curling: So as long as the government continues to give heavy subsidy or support in the non-profit sector, they can continue. As soon as that ceases, they'd have to revert to the other process in which they normally operate.
Mr Langer: This is exactly the predicament, because the policy says that this percentage of units must be provided, and if the funding isn't available to provide it, it can't be achieved.
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Mr Curling: Because the fact is too, and that's why I'm trying to find out -- would you say that those non-profit people operating on that non-profit concept make a profit or make money?
Mr Langer: The people that build, supply materials etc throughout of course make a profit. The only person who doesn't make a profit in non-profit housing is the person who lives in them.
The Chair: Briefly, Mr Curling.
Mr Curling: These are rather big questions --
The Chair: I know, but we ran out of time.
Mr Curling: It's a pity because we get a bit of understanding for all of this. There was a little contradiction in your comment. You said the system is working fine. In the meantime, would it be accurate to say that we don't need an elaborate legislative change but a more efficient way of working in the system? In other words, cutting out the time, as you said, the red tape, and really effectively doing that. That would save money. Get back to the small business you're talking about.
The Chair: Mr Curling, I don't want to interrupt you but we're running out of time.
Mr Curling: Yes, I'll be very short. Would you say in that aspect would make it more efficient, to get back, as you said, the small builders to build and make affordable housing?
Mr Langer: I would agree with that.
Mr Hayes: In regard to the housing policy, I think if we look at section 2(b), it does say that opportunities will be provided wherever feasible, and I think that's very important and that is noted in there. I just wanted to make that point.
There's a couple of more areas where I'd like to clarify. With the new section 22, you were talking about the deadlines and there being no time frame for the approval authority to send to the OMB for example, but just moving back to if council does not deal with an application for official plan amendment within 180 days, the applicant may request that council forward the amendment to the approval authority and it has to be forwarded within 15 days. So there is a time frame there.
The other area where there's no time frame -- I think you mentioned there was no time frame for the approval authority to send to the OMB. Section 22(8) refers to the time frame in 17(34). For example, the approval authority has 150 days to give notice of the decision and if they fail to do that, the applicant can appeal to the OMB and that has to be forwarded to the OMB within 15 days. We are hearing what you're saying and we'll be certainly taking a serious look at these, but there are time frames there.
The Chair: Do you have a quick response?
Mr Langer: I will speak to "wherever feasible": What does it mean? Who decides? Who defines what's feasible and what's not feasible? This is one of those points that's going to hold us up as we go through the process. Do we have to do a study to determine that? We don't know. We don't know a lot of what's here and that's why we're saying that this legislation should wait until all the implementation task force studies are done, and then we can measure what that means and correct it. Laurie, maybe you would speak --
The Chair: Very briefly again, please, because we're running out of time.
Ms Gordon: We are aware of those time frames but if you combine them with the prematurity evaluation, there would probably be an argument on either side of the table for any planning issue today to be premature or not be premature, depending if they decide to deal with it or not deal with it, for a whole host of reasons. So combined with the prematurity evaluation, the time frames are not worthwhile if you can veto it with that kind of consideration.
The Chair: Thank you. Anything further?
Mr Hayes: Well, you do raise a very good point about who decides what is feasible. I'm not questioning that but I think there has to be a decision made between the developer and municipal council, and look at the needs in their municipality. These policies are not just strictly cut and dried and you have to do it exactly this way. There is room for flexibility to meet the needs of the community.
The Chair: Okay. Thank you, Mr Hayes.
Mr Langer: We don't see flexibility with the wording "be consistent with." There is flexibility with "have regard to."
The Chair: We thank your association for coming today and for communicating your concerns to this committee.
CITY OF BRAMPTON
The Chair: We invite the city of Brampton, Mayor Peter Robertson, Mr John Marshall, commissioner of planning and development.
Mr Peter Robertson: Good morning. Thank you for having us. My name is Peter Robertson, and my colleague is our commissioner of planning, John Marshall. I'm going to make a brief submission, and hopefully John will be able to answer all your questions, unless they're of a political nature, and then I'll try.
Mr Chairman and committee members, I am here to present to you a summary of the Brampton response to Bill 163. A formal response with respect to the planning and development reforms has been submitted to you, on August 15. It was a 36-page report.
I would like to note that the city of Brampton has made many submissions and participated extensively in the deliberations related to the various reports issued by the Commission on Planning and Development Reform in Ontario, and the consultation paper too, and we appreciate and respect that cooperation between the municipal level and the provincial counterparts.
With respect to the revisions to the Ontario Planning and Development Act and the amendments to the Planning Act and the Municipal Act that deal with planning and development reform, the provincial government has proposed legislative changes that will substantially implement the vision that Brampton has on planning and development for the greater Toronto area. So from the outset, we want to say that we're pleased with the direction of the report.
Here are some of the highlights, as we see them, that are positive:
The province is stating the planning policy in areas of extensively defined provincial interest.
The province will delegate the approval of local official plans, secondary plans and related amendments to the regional municipalities that have approved official plans.
If the proposed legislation is passed as intended, regional municipalities will be enabled to delegate the approval authority for plans of subdivision and condominiums to the local municipalities. That's something we feel we're capable of in Brampton, to have the region of Peel delegate some of the approval authority to us. We already have a resolution on the books at the region of Peel agreeing to that. We have been informed by the provincial staff that they inadvertently failed to include that particular provision in the written material so far and that you are proposing an amendment. Brampton would appreciate confirmation of that fact in writing as soon as possible.
The proposed amendments will provide the minister and the Ontario Municipal Board with the ability to expedite the consideration of legitimate appeals and to refuse to consider appeals that have no planning grounds, that are frivolous and are only for the purposes of delay or those that have been made at the last minute with no objections raised before the council. As you likely know, in the city of Brampton we've had experience with such a frivolous appeal recently, and we're pleased that the OMB recognized that. We're happy that your documentation recognizes the game that people play.
Local councils will be enabled to hear appeals of committee of adjustment decisions.
The local councils will be able to implement a development permit process that provides flexibility, within pre-stated limits, in the interpretation of zoning bylaws by staff.
Local councils will have expanded powers related to the regulation of site alterations, eg, dumping of fill and altering the grading.
That's very critical, because in our community we presently have some waste companies, for example, that are in violation of the environmental laws and abusing the existing laws in my city, and for the life of me, for the life of our bylaw and legal department, we can't clear them up with the present legislation. It's just an embarrassment to see, in this case, grades on a particular property in a subdivision, an industrial subdivision, 30 feet high with waste. The Attorney General, through the Ministry of Environment and Energy, is going to deal with it, but it's now been three years in the process.
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The city of Brampton therefore endorses the proposed legislation that is before you, but we have some suggestions for improvements. We request that the following changes be made to Bill 163 before the third reading, and I'll list them now.
(1) That the proposed section 2 of the Planning Act, the provincial interest, be revised to indicate that the province has a "general" or "broad" interest in the matters set out in the section. Otherwise, the extensive list of items of provincial interest is an invitation for the minister or his staff to interfere with a broad range of general and specific local considerations in the planning process. We ask that that be clarified and changed.
(2) That the proposed subsection 3(5) of the Planning Act be revised to indicate that decisions of a municipality shall "be consistent with the intent of" provincial policy statements, thereby giving some latitude for interpretation while still improving on the current wording of "shall have regard to." I'm sure many people are going to be talking about that issue. Our suggestion from planning staff is the words "be consistent with the intent of" would help.
(3) That proposed subsection 17(7) be revised to require that the preparation of an official plan is mandatory by local municipalities in regional municipalities that have a two-tier planning system and that preparation of the official plan is a prerequisite of a plan of subdivision or condominium approval authority powers being delegated to the local municipality.
The current wording makes regional plans mandatory and local plans permissive, thereby implying that regional plans are a more important component of the planning process. That, just at the last council meeting at the region, was brought to light in that the region, by its composition, just parochially can outvote the smaller municipality in the community, and the shift of giving the power to the region for approval isn't necessarily as objective as perhaps it was with the province. So we're going to need some help in that particular area where the local authority, the local city in this case, is improved. We find this present wording offensive. The recent treat-ment I've mentioned could be documented if you wish.
(4) Subsection 34(11) of the Planning Act should be amended to change the time period allowed for the processing of a zoning bylaw amendment from 30 days to 150 days, rather than 90 days as proposed by Bill 163, in order to provide a realistic period for even very expeditious processing of such an amendment, considering the requirements of the act related to the public notification and public meetings. Because we're in the business of hosting public meetings, sending out notices and all that, our staff are saying it's only practical to give the 150 days.
(5) That appropriate sections of the Planning Act and the Ontario Municipal Board Act be amended to establish the following time limits on the municipal board's consideration of appeals from the date the appeal is received: holding a pre-hearing conference, three months; commencement of the hearing, six months; issuing the decision, 30 days from the adjournment of the hearing except for very lengthy or special hearings.
We feel the Ontario Municipal Board should be subject to deadlines in the same way that municipalities are. This will discourage objections that are for the purpose of delaying development and will force the board to maintain the staff resources necessary to expedite the hearings. We at the municipal level are very frustrated when something is referred to the municipal board and we know and everybody knows that the hearing won't be set for a long time. It just slows things down.
(6) The proposed amendments to subsection 41(8) of the Planning Act, related to site plans, should be expanded to authorize local municipalities, not just regional municipalities, to require the conveyance of land for public transit rights of way.
(7) That Bill 163 be amended by including an amendment to the Planning Act that enables the province, regional municipalities or counties to delegate the approval authority for plans of subdivision and condominiums to local municipalities that have approved official plans. I dealt with that in my introduction, and it's absolutely critical that you come through with that.
(8) That the proposed section 223.1 of part XXVII of the Municipal Act be amended by adding provisions that enable the councils of local municipalities to regulate tree-cutting, vegetation removal and the removal of topsoil and peat.
As you're aware, the proposed provisions currently address only the dumping of fill and the alteration of grading of land. In our community, there are examples where developers come in and cut down the trees the week before their application is put forward to the city, and there is no recourse. By the time we get in touch with the province or the region and the bureaucracy that is in those levels of government, you just can't deal with it. So you should realize that you must empower the municipalities to deal more effectively with this issue that needs fast, prompt action, and the closer to the situation, the closest government to the people, is the municipal council. You must trust us if you want to save groves of trees and significant vegetation.
With respect to the revisions to the Municipal Conflict of Interest Act and amendments to the Municipal Act that address other municipal administrative matters, the city of Brampton provided comments back to the ministry in 1992 with a response to the white paper, Open Local Government. Those continue to be the reflection of Brampton's views and we hope that we'll be invited to participate in the regulations and review of the regulations once they've been drafted, just as we were for the planning process.
That concludes my brief summary of our 36-page brief. We're open to questions.
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The Chair: Thank you very much. We'll begin with Ms Haeck for three minutes and a half or so.
Ms Haeck: I do want to thank you, Mr Robertson, for bringing forward your recommendation regarding tree-cutting. A number of other deputants have likewise encouraged the addition of tree-cutting and vegetation removal to that section, and I know you're speaking for a number of people in my riding as well who feel very strongly about that.
I am interested, because I have the Niagara Escarpment going through my riding as well, and I just happened to look at the back, page 19, the very back, and you followed that along, that you have some concern about the Oak Ridges moraine. I know that's not something you made a verbal comment about, but it definitely is reflected in the written presentation here. I'm wondering if you could expand what your concerns are with regard to the Oak Ridges moraine.
Mr Robertson: I'm going to ask John Marshall, our chief planner, to do that.
Mr John Marshall: Our concern is that the province, having empowered municipalities to deal with various types of application without involving the province in planning on a day-to-day basis, is going to substitute that control with layering of provincial policies, such as the Oak Ridges moraine. We're using it as an example of another provincial layer that can be put on the local planning process. Another example is that the office of the greater Toronto area is developing policies that are, say, overlaid by the stated provincial policies. Now that we've been empowered to deal with various detailed issues at the local level, we're going to be put in a straitjacket with the Oak Ridges moraine, the Niagara Escarpment Commission, which applies to the town of Caledon in our area, the parkway belt west plan, the OGTA policies and whatever policies come up.
That was the concern we expressed in our brief, and certainly the province has been responsive in terms of our comments on the existing policies, but we're just concerned that the bureaucracy at the province will have the ability, through the statement of detailed policies, just to tie us up in knots anyway in a different way. That's the general concern we're expressing. Certainly we're involved in the development of those policies and we'll make those views very strongly expressed as we go through the process.
Ms Haeck: I thank you for your remarks. I know there's sort of a mixed set of feelings with regard to the escarpment commission, but most constituents that I know -- definitely not all, but a great many of them -- are highly supportive of the escarpment commission, and obviously the designation of those lands in keeping them special and limiting the kind of development that occurs. I'm not sure how far along the Oak Ridges moraine study is. It's been going on, I guess, for a couple of years. Again, it's one of those special areas that I think a lot of people would feel very strongly about at least maintaining in some natural form if at all possible.
Mr Grandmaître: After two years of Mr Sewell's tour of the province, do you think the three main objectives of the government were achieved? Cutting red tape, giving municipalities more power, the environment: Do you think the three main objectives were achieved?
Mr Marshall: Certainly in terms of empowering municipalities, I think the legislation has gone a long way to enabling regional and local government to deal with their affairs in terms of planning and development. In the region of Peel, once the region adopts an official plan, the city of Brampton will not have to go to the province for approval of very site-specific-type official plan amendments, where there was absolutely no value added at the provincial level. That's one instance where I think the legislation has really helped a great degree to empower us to deal expeditiously with the development, because it's in fact an embarrassment right now with all the various levels of government involved and everybody pointing fingers in terms of who's holding it up. So definitely I think that objective has been met.
In terms of dealing with the environment, I think the legislation, and I think you have to read it in conjunction with the policy statements -- I feel that certainly the province has put its cards on the table. In my view, some of the policies are too specific, but I think it's a step in the right direction. I think allowing us to deal with both planning and environmental issues at the same time, concurrently, helps a great deal.
All in all, I think the objectives have been met, and as Mayor Robertson indicated, we're generally pleased. Certainly we would write the policies differently if it were up to us, but I've been in planning for 25 years and I think this is a tremendous step forward for municipalities.
Mr Robertson: A lot will have to do with the interpretation, as the words say that the province is stepping out of it to a large extent, but if they step back in with special purpose bodies, the bureaucracy is going to be just the same.
Mr Grandmaître: And you haven't seen the regulations yet.
Mr Robertson: Yes. If the spirit is carried out that the province is stepping out, great. But if it comes back in and you allow a special purpose body to be part of the vetting and the slowing down of the process, perhaps we won't have moved forward at all. We just get into a group of people who don't have accountability in a special purpose body, and there's no way to get the response back in a timely manner.
Mr Grandmaître: Especially when you look at the provincial interest, which is ambiguous at the present time. I think it'll have to be clarified in order to achieve what local municipalities really want, and that's power. Right now with the provincial interest designation, which we haven't seen a full definition of, I think it makes it very difficult for a local government to say, "Hey, we're going to have power," because we don't know what that real provincial interest is all about. We haven't seen the definitions or the regulations, which makes it very difficult for you to say, "Hey, we're going to have power, or more power than we had before."
Mr Marshall: I would say we're at the stage where it's "Stay tuned for the 11 o'clock news." We're halfway through the process, the spirit appears to be in the right direction but, as I indicated to Ms Haeck, the overlaying of policies and regulations may just tie us up in knots and make it very difficult for us to exercise our powers in the way that we're capable of doing.
Mr McLean: I can assure you that the ministry staff and some of the members of government are pleased to hear you here this morning, because you're telling us something that a lot of other delegations have not told us. Most of them are very much opposed to the legislation and you think it's great, to a certain extent, although we have nine different areas that you want looked at.
You talked about the OMB deadline. Do you feel there should be something in this legislation that would allow the OMB to have a deadline on any hearing that it may have?
Mr Robertson: Absolutely. As we stated, there should be some regulations that say, when the application goes forward, the least they should do is have a pre-hearing conference within three months. To say you have at the present time an OMB hearing, and it'll be some time in August 1995, flies in the spirit of this streamlining of the planning process. We're insisting that there is a pre-conference, at least, so you can sort out whether it's frivolous or not, maybe come to an arbitration or an agreement in that pre-hearing without even having an OMB hearing, commencing the hearing within six months and then having the board make its decision within 30 days of the hearing, in most cases.
Mr McLean: The other question I have is with regard to the time period for zoning, and you talked about 150 days. Could you give us a little more background on how that would be staged?
Mr Marshall: As you know, the zoning bylaw process initiated with an application to the municipality and involved a very comprehensive technical review by municipalities, the region where they're involved in water and sewer, for example, and conservation authorities. There's usually at least a 30-day period, in optimum sense, for those various agencies to comment.
The staff has to develop a comprehensive staff report that deals with all the issues and then goes through an internal staff process, then to a planning committee of council and then a council meeting, just for approval to go to a public meeting. There's at least a month turnaround in terms of going through a public meeting and coming back to the planning committee and then going to council. When you start adding the commenting period, plus the time period to prepare a report, along with many other reports, going to the council, considering the council's schedules and to have the public meeting process, five months is a very quick time period to turn around a zoning bylaw, in my view.
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Mr McLean: In closing, you made a presentation apparently to Bill 120 to the housing and you indicated your comments were ignored, I think, if I read your brief right. I hope you have better luck in your comments in the nine points that you put forward on this one. Thank you for appearing.
Mr Hayes: I don't think it's a case of luck, I think it's a case of this government listening and we will be acting on several of these issues.
One of your concerns about subdivision approval -- I just want to let you know that we have a proposed amendment for that, and I'll read it very quickly. It's an amendment to enable:
-- "upper tiers assigned with the subdivision approval power to further delegate this power to a committee of council, to staff and to the lower-tier municipalities.
-- "separated municipalities assigned with subdivision approval power to further delegate this power to a committee of council and to staff; and
-- "upper tiers assigned with the official plan approval power to further delegate this power to a committee of council and to staff."
I'm sure that will meet your concern there.
Mr Robertson: Yes, we're very pleased with that and we hope the committee will endorse that.
Mr Hayes: This is a proposal from the government side, and all members have had this for a little while.
I'd like to make one more comment, just to kind of clear the air on one of the issues. It comes up several times that people are saying they don't have the regulations. I do not know of any other piece of legislation where you've had the regulations prior to having the legislation.
Mr Curling: So you'll be different.
Mr Hayes: We should make that clear, and we shouldn't be playing games with words, Mr Chair.
Mr Grandmaître: We're not playing games; we're telling the truth.
Mr Hayes: We have an implementation task force that will be working on the regulations, on the guidelines and implementation, and this'll probably be one of the first times that I'm aware in this province where the regulations will be ready when the legislation is ready. That is where we are way ahead of the game from other previous pieces of legislation in the history of this --
Mr Grandmaître: So where is the consultation on the regulations? And you're going to have this in place by December. Come on.
Mr Hayes: The consultation is done and every presenter that has come in here, whoever they represent, has representation on the implementation committee. I thought I'd make that clear, Mr Chair, and I hope it is.
The Chair: Thank you, Mr Hayes.
Mr Ron Eddy (Brant-Haldimand): I think we just heard a promise.
Mr Robertson: At the end of our brief, Mr Hayes, we did ask for additional consultation on the conflict of interest, which heretofore we haven't been involved in. John has been very involved in the planning components with the Sewell commission, but when you put that other part of the equation into this bill, we don't know where the regulations are at, and we'd appreciate it perhaps if you could arrange such a consultation.
Mr Hayes: Does somebody want to comment on that, because I can't comment on it.
The Chair: Is there a staff comment? Is that something that happens?
Mr Peter-John Sidebottom: As you know, the open local government component of this has been around since late 1991 and we've had consultations ongoing since this time. The draft legislation was sent out in 1991. We received almost 600 submissions during that initial consultation. There was an AMO-led provincial working group that looked at it and changes were made. As a result of all of that consultation, we end up with the open local government components of Bill 163 as they appear now.
At this time, I know of no plans for further consultation. We have provided the draft regulations for AMO. I understand they'll be commenting on not only the bill but also the regulations later this afternoon.
The Chair: We've run out of time. We want to thank the city of Brampton for coming and for participating in these hearings.
Mr McLean: On a point of privilege, Mr Chair: The parliamentary assistant has read that one amendment about four times. Perhaps it's time we had some other amendments that you plan on presenting so we can hear what they are.
The Chair: Okay, Mr McLean. Thank you very much for that comment.
ONTARIO HOME BUILDERS' ASSOCIATION
The Chair: We invite the Ontario Home Builders' Association. Welcome to the committee. Please begin any time you're ready.
Mr Ward Campbell: My name is Ward Campbell. I'm the first vice-president of the Ontario Home Builders' Association and I'm a home builder and developer in the Hamilton area. With me today is Ian Rawlings. Ian is a planner in the Ottawa area. He became involved in the government's planning reform exercise when he was president of the Ontario Home Builders' Association in 1991-92 and he has closely followed the developments ever since.
Everyone who appears before this committee is representing a special interest and we are no exception. If we are any different, it rests with the fact that the Ontario Home Builders' Association represents two distinct interests. One is the home building industry in Ontario and the 125,000 men and women directly employed by it. The other is the 50,000 or so families who, each year, buy or rent one of the new housing units we have built.
Both of these groups have a very clear interest in a more streamlined planning system. The need for a streamlined system is going to be the focus of our remarks today. I understand we have about 30 minutes; our remarks should take approximately 15.
For the home builder, streamlining reduces risks and lowers production costs. For a buyer or tenant, it means responding to changing needs more quickly and producing more affordable housing.
Streamlining is not a new concern for the home building industry. OHBA's current concerns date back to the 1980s when the planning and approvals process was under enormous pressure and backlogs were driving up the cost of building lots. Back then we proposed a number of streamlining initiatives. These eventually found their way into the Streamlining Guidelines that were released in 1992.
Maybe an example will best explain the problem. When the Don Mills area was being developed in the 1950s, approvals took an average of nine months. Twenty years later, when the Erin Mills area was being developed, this average had quadrupled to 36 months. This was an average. In 1978, David Greenspan reported a case in which a seemingly perfect parcel of land took six years to get the approvals. By the end of the 1980s, six years was the norm.
If long approvals guaranteed good decisions, there may be less objection to them, but they do not do this. What they do accomplish is to increase production costs, and this has two effects. One effect of higher production costs is to increase the cost of housing. The other effect of higher production costs is to increase the financing burden which, in turn, increases concentration in the industry. Greater concentration reduces competition, one of the key market forces that helps hold down costs. This is why it is so vitally important to streamline the planning and approvals process.
When we first met with the Commission on Planning and Development Reform, we pressed the need for streamlining. This is a message that we have repeated over and over with both the commission and government officials whenever we discuss planning reform. Unfortunately, we are hard pressed to see much evidence of streamlining in the reforms that have been introduced.
Ian will now discuss some specific aspects of Bill 163 that will complicate and lengthen the process.
Mr Ian Rawlings: I would like to begin by putting my remarks in some context. The province has declared an interest in affordable housing. It has even gone so far as to set out a policy under section 3 of the Planning Act to ensure that this interest is protected.
I want to put a choice before the government. The choice is simple: Either the housing policy statement goes or Bill 163 goes. You can't have it both ways. You cannot say you want housing to be affordable while, at the same time, you continue to throw obstacles in the way of affordability.
Some of you may find this remark puzzling. After all, the minister and the government have gone out of their way to explain how the new policies and Bill 163 will lead to faster decisions. The theory is that the comprehensive and clearly stated policies will add certainty in decision-making, the decisions will be made within specific time frames and frivolous appeals can be identified and rejected. If it were all so simple.
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We could spend the day talking about the first assumption. Suffice it to say that nobody outside of government thinks the policy statements are clearly written or will increase certainty, but we're not here to talk about the policies.
Bill 163 proposes that decisions be consistent with the new policies. Even if they were clear, nobody knows how a decision can be consistent with policies that conflict with each other. How do you ensure that 30% of your housing is affordable while you use up the limited supply of expensive urban land that must be consumed before a municipality expands its boundaries? And how will it ever expand these boundaries if it has to conserve "significant landscapes"?
My years in planning have taught me that the key to success is to convince everyone that you are balancing competing interests in the fairest and most reasonable way possible. People may not be entirely satisfied, but if they see there is balance, they are less likely to complain. By demanding consistency with preordained standards, this balance becomes more elusive than ever. That makes the search for it longer and more costly and it increases the likelihood of complaints and appeals to the Ontario Municipal Board.
The "be consistent with" framework, in my view, is a knee-jerk reaction to an unsubstantiated fear that provincial policies are being disregarded. I believe the framework should be abandoned.
One of the things that attracted me to planning as a profession was the idea that it made a difference. Good planning improves cities and towns and it improves the lives of the people who live in them. What I learned in the intervening years+ -- and there are perhaps more years than I want to remember -- is that planning also involves a lot of minutiae. Literally hundreds of minute decisions must be made about a subdivision. These decisions are both important and in need of constant fine-tuning.
Planning decisions also fall along a continuum. At one end of the continuum is the big picture of official plans; at the other end is the fine-grained detail in an individual subdivision application. The general public clearly has an interest in the big picture and equally clearly should be involved in the decision-making process at that level. It is, however, less clear that they have an interest at the other end of the continuum, and it's very clear that society cannot afford to have the general public involved in that level of minute detail.
To say the least, it was startling to read Bill 163 and learn that the government has decided the public should be involved in all levels of decision-making. This was never discussed by the commission, at least not in its reports, and it was never discussed by the government, at least not with us.
The current system requires public meetings for official plans, official plan amendments and zoning bylaws. Below this level, the details are so fine they will not affect the general public. There are no clear benefits of public meetings for plans of subdivision, only costs.
This same argument could be made even more emphatically for redline changes. We can perhaps, if we need to, discuss what those are after our remarks. But to require public notice of these minor changes would serve no public interest and hopelessly bog the process down in red tape.
Our written submission to the government was handed out to you along with the text for these remarks. I commend that submission to you, especially section 3 that outlines specific proposed amendments that we feel are problematic.
I want to close by touching on the time frames for decisions in Bill 163. The time frames begin when a complete application is finally received and end when the approval authority has made a decision. We still haven't seen what a complete application is, by the way. This means that a very substantial portion of the approvals process is not even affected by time frames.
But the time frames have another problem. One of the big problems facing the housing industry is inaction. Under the current system, if you think a municipality or a review agency is dragging its feet, you can appeal to the OMB after 30 days. Under the new system an applicant's hands will be tied for much longer periods of time. The net result of all this is that nothing is being sped up by the time frames.
The government's planning reform exercise had three major objectives. One was to provide more protection for the environment, the second was to provide for more openness and accountability in decision-making about planning matters, and the third was to streamline the process and make it more responsive to changing needs. There's no question that the first two objectives have been achieved, the first in the policy statements, the second in Bill 163. But at best, only lipservice has been paid to the third. Approvals will take longer under the new system and, as a result, housing will become more expensive.
Thank you for your attention.
Mr Curling: What you've stated is consistent, of course, with the other home builders and other developers, small and large, who have indicated some of the concern that you've expressed there. This is very well done, because the fact is you get away from the old rhetoric and right to the point.
One of the things that Sewell had stated in his report is that the policy itself should be reviewed, just as a plan should be reviewed, every five years. Cities change -- the complexion, the direction -- and you know it all. You are the planner. We are the politicians who hear the complaint itself.
Again, do you feel the government is hearing? Because as you said in your remarks, we're not here to discuss the policy, but we must discuss the policy, because everything is based on the policy. As you said, the confusion is there that that is said, so we cannot touch the rest of it.
Is there any strategy you'd recommend to us, my colleagues on this side, especially the Liberals here, who want to get the attention of the government that one has to discuss the policy because it has a bearing on the legislation? Furthermore, how is it that we can have it reviewed every five years like an official plan?
Mr Rawlings: I'm going to thank you for that question and I'll take a shot at providing you an answer. I personally and our association have been saying since about halfway through Mr Sewell's commission that the responsible process would entail putting the entire package out for consultation. That would mean the policy statements, the legislation, the regulations, the implementation guidelines. Let's see the whole package.
This is not the dance of the seven veils. We cannot responsibly deal with individual components when they're so inextricably linked one to the other. I would suggest to you that that commendation is still appropriate: Let's stop dealing with this process piecemeal. Let's stop the train that has been set on a track to have everything implemented January 1995. Let's take the time that is necessary to put the entire package out and have some responsible and intelligent consultation on it. Whatever time that takes, it should take, because at the end of the day the time frame is irrelevant. What's important is to do the job right.
Mr Curling: A quick question to you too, and that is well said. On page 2 of your remarks you said something that -- and I want to address the fact about affordability and not-for-profit builders or developers. Your colleague previously stated, confirmed to me, that if subsidies from government stop, those who are in the business who are considered not-for-profit developers more or less who make a profit, if the government stops that subsidy, therefore the affordability aspect of it would just go: I presume all developers who are being subsidized.
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On the efficiency you said, and I want to read this for the record because it is so well done: "One effect of higher production costs is to increase the cost of housing. The other effect of higher production costs is to increase the financing burden which, in turn, increases concentration in the industry. Greater concentration reduces competition, one of the key market forces that helps hold down costs." Do you see that more subsidies will be coming to build so-called non-profit housing, and if you see that coming and when that stops, what would be the impact on the affordability?
Mr Rawlings: I believe the concept of non-profit housing exists only as a consequence of the market's inability to provide affordable housing in and of itself. I do not by that remark suggest that there is some solution to that dilemma that would see non-profit housing disappear in its entirety, because I'm not so naïve as to believe that our industry, unfettered in the broad sense of the word, is able to provide all housing for everybody. But I am equally certain that, unfettered again, our industry can provide a much better job of providing a broader range of affordable housing.
In that context, I certainly see non-profit housing, if I can call it, subsidized housing -- the potential exists, in my view, for it to be significantly reduced, for it to become a far less significant part of our annual housing production in this province. Two years ago virtually 50% of the production in this province was subsidized housing. Quite apart from my scepticism about how long we can afford to do that, I'm absolutely convinced that for this significant proportion of housing being built by the public sector, there is a capability and the capacity and an ability of the private sector to produce a significant component of it equally well at worst, and at best, far better.
The Chair: Mr McLean. I'm sorry, we went over six minutes.
Mr McLean: I have a question with regard to redline changes. You indicate that to require public notice of these minor changes would serve no public interest. What changes would you want to see made there with regard to the minor changes?
Mr Rawlings: I quite frankly have no difficulty with the way the process exists today in that for the large part, in my experience, where there is an identified need to make a minor revision to a plan of subdivision that might entail or involve a particular agency, you would approach that agency, get that particular agency's approval to the revision as well as the approval of the broader approval authority, and make the revision. End of story. It seems to work today. I'm not aware of it not working today. I am quite frankly rather at odds as to why, if it was an expressed intent to preclude that from happening, that would be.
Mr McLean: But in your opinion, it will slow --
Mr Rawlings: No question, because it involves sending out notice of that change to every agency and giving them 30 days to respond.
Mr McLean: The other question I have is with regard to time frames. It doesn't kick in until the complete application is finally received. We could be looking at three years before the application is finally received, or four years. There's nothing in the whole process that speeds that up.
Mr Rawlings: That's true, but I will give you an analogy. I left my home at 10 to 7 this morning and arrived here at Queen's Park at 10 after 10. I was 38 minutes in the air. Was my trip 38 minutes or was it something in excess of three hours?
Your point is well taken. Nevertheless, I think the time frames that you have in front of you to deal with by necessity require an application to be made, and so therefore you can only start that clock running at that point in time. My concern is, then, what those time frames are once the clock does start running. I believe the time frames that are encompassed in Bill 163 now are significantly longer than they are today.
Mr McLean: But some of the consultants and some of the planners that we have had before us have indicated to me that this process here will slow it up even more than what it is now.
Mr Rawlings: No question. As I indicated to you, for example, on the time frames that are associated with opportunities to appeal, currently for some applications those appeals can be made within 30 days. They would now await 150 to 180 days for those appeals to be made in the future.
Mr McLean: Thank you for appearing this morning.
Ms Haeck: You have provided some comments which are obviously echoed by other home builders' associations but which my constituents take some great exception with. The residents of St Catharines-Brock to a large degree want to be involved in the process of finding out what's going to impact their homes. Possibly you'd like to consult the Hansard of the meetings in Niagara Falls to hear some of the very clear comments made by people like Olga Pawluk, who represents a neighbourhood organization and who very much wants to be part of the process.
Mr Rawlings, particularly your comments on page 3 at the very bottom definitely are not something that I think a great number of the constituents that I represent would agree with. They would want something like the policies that we have put forward, that you would be "conforming" with them, as opposed to "be consistent with." They would like it stronger rather than weaker.
I also want to make at least a quick remark with regard to page 4. About halfway down, you make some comments relating to the complete application. I believe that if you consult the technical briefing that Mr Martin gave us at the first day of the hearings, he made it very clear that he has been working with a number of groups on facilitating this whole process and making sure that by having a complete application, it in fact deals with the needs of the various sides and everyone knows what they're dealing with, rather than the psychic experience that it currently is.
So if you wish to make some additional remarks, I'm happy to hear them, but obviously we do have some different perspectives from which we come.
Mr Rawlings: I think that really comes to the heart of the issue here. There clearly are different perspectives. You've referred me to some of my remarks and I will, not in rebuttal, also refer you to some of my comments, the comment in particular with respect to finding some balance and the issue of finding, um -- excuse me.
Mr Campbell: I don't think that we object to the public being involved in the process. We want them involved in the process at the upper level, but when it gets down to redline changes and some of the minor things, it's just going to add time and money to the process, Ms Haeck.
Ms Haeck: They want to be involved. They feel that as taxpayers involved in their communities they have a right to find out what's happening in their neighbourhoods. I guess I'm one of those who advocate that they should be informed as much as possible and involved as much as possible.
I know that Ms Harrington wants to get involved, so I really think --
The Chair: I would prefer that you ask your question now.
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Ms Harrington: Thank you for coming, Mr Rawlings, on behalf of the builders.
It is actually following up on Ms Haeck's question. First of all, I want to mention that you have stated that for both the first objective and the second objective -- that is, the protection of the environment and, secondly, more openness and accountability in decision-making -- there's no question that these two objectives have been achieved. I certainly thank you for that indication of support. But where we are concerned, both you and I and all of us, is about the third aspect, and that is the streamlining.
I want to pose this question to you. Two weeks ago we had Dale Martin here before this committee, and he talked about what he had been doing. The whole idea of what he's doing is changing the character of the process and making it less confrontational. To do that, you have to get people together right at the beginning. Do you not think that this streamlines the process? Do you not think that Mr Martin is in effect streamlining the process by bringing people together?
Mr Rawlings: I believe in bringing the different parties together at the outset of the process. In my comments with respect to involving the public with the official plans and zoning matters -- those are the big-picture matters in official plans, the more detailed level with zoning bylaws -- clearly I believe there's a benefit and a public good to be achieved by bringing all of the parties together at that time to reach a balance and try and resolve competing interests. No question. My problem, however, is that when you go to the next step of doing that, at the detail level of subdivision, I don't believe there is any balance between the gains achieved of involving them in that relative to the time frame that will be added to the process, number 1. So I have some difficulty with that.
I also want to say to you that despite the fact that the two objectives I suggested have been achieved -- there's no question that they have -- my difficulty of course is not achieving the third. You might, for clarity, understand me therefore to say that I think you've gone far too far in achieving the first two, and as a consequence of that you've found yourself floundering on the issue of streamlining. So I think, as I said in response to Mr Curling, we have to go back and take an appropriate time period to go and look at this whole package and try to do a better job of it.
I'm well aware of what Mr Martin is doing; in fact, I'm on his implementation task force. I was also involved in the Sewell commission on the chair's committee. So I have lived with this since its outset and I think it needs an awful lot of work.
Ms Harrington: I'm really pleased that the nature of the process is less confrontational, and that will help the process.
The Chair: I'm sorry, Ms Harrington, we ran out of time. I wanted to thank the Ontario Home Builders' Association for coming and for communicating your concerns to us.
CITY OF BURLINGTON
The Chair: We invite the city of Burlington to come forward. Welcome to the committee.
Mr Walter Mulkewich: Thank you very much, ladies and gentlemen of the committee, for having us. My name is Walter Mulkewich, and I'm the mayor of the city of Burlington. With me is Ros Minaji, one of our planners. When I conclude talking about some of the points we're making in our brief to you, I'll be pleased to answer questions, and I know Ros will be able to assist at that point. You should have had distributed to you by the clerk a brief that looks like so. What I will try to do, as briefly and as concisely as I can -- and I see you're almost on time; that's very well done -- is keep to my 15 minutes so that you can have whatever questions and so forth.
I do want to say at the outset that the city of Burlington is generally supportive of the Ontario planning reform initiatives. We're pleased with the creation of a comprehensive set of provincial planning statements and the increased emphasis on the protection of natural features and the possibility of establishing a development permit system, which we think has some interesting possibilities, and also with the clear definition of time frames for various approvals. There are, however, some concerns that the city of Burlington would like to raise, with the hope that solutions can be found and put into the bill before final reading.
The concerns are summarized. With respect to the Planning Act amendment, I'd like to deal with three areas: the role of the local municipality, development rights versus environmental protection and the committee of adjustment appeals to council.
First of all, dealing with the role of local municipalities, I want to emphasize the word "local." We're very sensitive to that at the local level. I know at the provincial level sometimes you just think of municipalities, and it's easier maybe to deal with regional municipalities because there are less of them. But we want to remind you that it's the local municipalities which are closest to the people and they're very, very important. Although Bill 163 has increased the planning responsibilities and powers of local municipalities, more emphasis has been placed on the regional level, and we're very concerned about that.
Within the proposed legislation, regional municipalities "must" prepare an official plan, but for local municipalities an official plan "may" be prepared. We think that the local planning policy should not be optional. We've recently undertaken the adoption of a new official plan in the city of Burlington and we're well aware of the importance of planning. At the very least, we suggest that the wording of subsection 17(8) be amended to state "should prepare" rather than "may prepare" for local municipalities.
The city also notes that the approval of plans of subdivision is a function of the upper-tier municipality in a region but that within a county or territorial district a city becomes the approving authority for the subdivision process. You're going to have a situation where cities such as Brantford and Kingston, which are smaller than Burlington, will therefore be responsible for approving plans of subdivision, while in the city of Burlington that will remain under the authority of the region. We feel that's just plain wrong and sends the wrong message about local municipalities and local governance and the importance of local municipalities.
Since plans of subdivision implement municipal zoning bylaws and reflect local land use character, the new Planning Act should permit delegation of the approval authority for subdivisions downward to any lower-tier municipality.
I'm trying to summarize these things because I know you people can read as well. Going on to development rights versus environmental protection, I think the point I want to make is that in order to achieve the provincial goals of environmental protection, municipalities must be in a position to insist on the preservation of significant natural features without the necessity of their purchase by a municipality. How this is to be achieved should be an integral part of the policy statement, since ultimately the owner of a protected natural environment feature will seek compensation for this land.
Provincial planning legislation routinely has ignored the fact that when value is added by planning actions of municipalities, municipalities must then pay these enhanced values to buy parkland and other natural features beyond the basic subdivision park dedication. I can tell you that the effort to save woodlands in the past few years has cost our city millions of dollars. We feel the province must act to neutralize this fiscal and economic impact rather than continuing to frustrate the expectations of the public, the municipality and the land owners.
On the matter of committee of adjustment appeals to council, the city of Burlington does have concerns about the removal of the right to appeal committee-of-adjustment decisions to the OMB. Under the revised system as we understand it, councils will be reviewing the decisions of the appointed committees of adjustment to which they have delegated their power. Councils will therefore be faced with the dilemma of reversing or changing a decision made by their committee under delegated authority.
Councils fulfil a legislative function by developing and approving planning policy. It will be difficult for many councils to provide an impartial review of variances to their own council-approved zoning bylaws. In addition, these minor variances often involve disputes between citizens. Council would be forced to choose between the positions of these citizens, and this review function could conflict with the primary role of a city council, which is mainly to represent all of its constituents.
There are a couple of administrative matters which we deal with on page 3, that the proposed Planning Act gives councils, the minister or approval authorities the ability to refuse to consider official plan amendment, subdivision and consent applications until the applications are complete and the required fees are paid. The bill indicates the legislated time periods to process these applications do not begin until the applications have been "perfected." However, no such refusal-to-consider provisions have been prescribed for rezoning and variance applications, and we note that for you to take into consideration.
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Secondly, our legislated time frames should be consistent in the case where a rezoning application and official plan amendment or subdivision application are being processed concurrently. For instance, councils are given 180 days to consider an official plan amendment or subdivision application but only 90 days for a rezoning application. We feel these times should be concurrent.
With regard to the section of the act that deals with disclosure of interest, our council does have some points to make there. With regard to the financial disclosure statement, a provision of the bill states that if the Local Government Disclosure of Interest Act is proclaimed into force after 1994, every member of council or board to whom the act applies shall file a financial disclosure statement not more than 60 days after the act comes into force. Successful candidates in the upcoming municipal elections, and they're coming soon, may find that they have to provide certain financial information to the clerk that, had they known in advance, may well have influenced their decision to seek office. We feel the specific details as to what the financial disclosure covers ought to be included in the bill and not solely prescribed in the regulations. It should be clear. I know there's a form floating around, but it should be clarified and in the legislation.
The next point is very important to a number of members of our council and we'd ask you to take it into consideration: the need for a saving provision. We feel very strongly and object to the passage of disclosure-of-interest legislation which does not contain a saving provision for members of council who honestly believe they have no interest to disclose when in fact they do.
There could be many, many examples. I'll just give you one where a member of council happens to be a lawyer and that lawyer's partner in the firm has a file which that member of council has no way of knowing about. That's one example. There could be many others.
The local disclosure commissioner, we have no objections to that but we see there is no specific provision in the proposed act regarding the operating costs of the commissioner's office. Since this office is established by and responsible to the Legislature and since the municipality will not control the efficiency of the operation, this cost should be borne by the province. We feel that should be clarified.
With regard to closed meetings -- we like to pride ourselves as being a very open government; we in the city of Burlington are and I think most municipalities are -- you're proposing that a resolution be passed, before holding a meeting or part of a meeting that is closed to the public, stating the fact of holding the closed meeting and the nature of the matter to be considered. This requirement is cumbersome in that a resolution will be required every time an in camera session is contemplated. Reference in a procedural bylaw as to when a meeting is to be closed to the public should be considered sufficient. We want to be open, we want to move things along and we don't want to be too bureaucratic.
With the matter of acquisition and disposal of public property, the proposed amendments to the Municipal Act state that surplus public property must be declared surplus at an open meeting of council. We have no problem with that, nor with the statement that at least one appraisal of the property must be obtained, the proposed sale must be publicly advertised and that the report recommending the sale be considered in public.
However, we feel that matters related to the valuation of real property should not be debated in a public forum, and I think you can understand there are many reasons for that. Moreover, the city feels that more flexibility is required in the proposed legislation. For example, from time to time small, unmarketable parcels of land become available which can only be sold to abutting land owners. This happens all the time for a variety of reasons. The full public property sale procedure simply would be cumbersome and not really very appropriate in such cases.
These are a number of suggestions. We have tried to be very specific and therefore hopefully helpful to you in looking at ways in which you could improve the legislation. I've taken less than 15 minutes. If you don't have any questions, you could be even ahead of time, but I'll be very pleased to answer any questions and I know Ros would assist as necessary.
The Chair: Mr McLean, five minutes.
Mr McLean: Welcome to the committee and thank you for your brief. I have two questions for you. Mainly, the first one is a clarification with regard to establishing a development permit system. What do you mean by establishing a development permit system?
Mr Mulkewich: I can have Ros expand on that, but my understanding is that this could be somewhat of an alternative to a traditional zoning system and could be just as effective in protecting the public interest. The Niagara Escarpment Commission has a development permit system, and perhaps Ros could expand on that.
Ms Ros Minaji: We do have a certain area of our city which is neither urban nor rural and we think perhaps a development permit system can be something we could logically use to control the appearance of any development in that area. That was one of the suggestions that conceivably, within this new act, might be considered. We were just stating we thought it would be a good idea.
Mr Grandmaître: Would that be a progressive building permit?
Ms Minaji: It would be similar to a Niagara Escarpment development permit.
Mr McLean: Would you expect all of that to be in the legislation so that all municipalities would have access to that same --
Ms Minaji: I think that's envisioned as a follow-up exercise to this legislation. We were just saying we would be supportive of that.
Mr McLean: The other question I have has to do with disposal of public property, your last issue that you read about: "From time to time small, unmarketable parcels of land become available which can only be sold to abutting land owners." I've been involved many years in municipal politics too and I know there's somebody in a back-lot property who may want to walk over that land, and it's their right to do that, perhaps specifically if it's leading to a lake or to water. Would there be an exception? I don't know how you would make an exception for that in the act that wouldn't affect all property that's public-disposal.
Mr Mulkewich: I think maybe that has to be thought out in terms of all the possibilities. But you say there could be a situation where this parcel has been used by the public for access. That may have been because it simply happened, and in fact the access was illegal and shouldn't have happened, because if it is city-owned property, it doesn't mean that it's necessarily public access. I think that has to be considered.
Mr McLean: It could have been set aside for parkland.
Mr Mulkewich: That's right. There are many parcels of land, if you start looking around, because of previous planning approvals, road widenings, purchases etc that, when you look at the details, the city or the municipality still owns and they're not declared as parkland. To be parkland it has to be declared as such by bylaw, and we know from experience that once you do that, it's almost impossible to do anything but to have it as parkland.
The Chair: Ms Haeck first and Mr White, if there's time.
Ms Haeck: I wanted to actually compliment the city of Burlington. I sit as Chair of the standing committee on regulations and private bills and your municipality came through with a bill relating to heritage, having the building permit in advance of getting a demolition permit. Many local architectural conservation advisory committees across the province really would like to see that take place in their communities. I want to give a kudo where I can.
You do raise some interesting points in your presentation and I actually just wanted to follow up very quickly with regard to the local disclosure commissioner. There are those who have recommended before this committee that the office we as members use for our conflict-of-interest statements could be expanded to provide that service. There are others who have recommended possibly another office. Have you got a preference? I know you make a recommendation, raise a concern, but have you got a preference with regard to that?
Mr Mulkewich: I don't personally have a preference and this was not discussed by the council. It was not brought up as a preference. The major concern we had was, the way the act is presently stated, that we'd be asked to pay for something over which we have no control or jurisdiction. That was our major concern. We have no preference that I can suggest to you.
Ms Haeck: There's another point I'll follow up with your planner, maybe, outside and in the meantime defer to one of my colleagues.
Mr Drummond White (Durham Centre): Thank you very much, Mayor Mulkewich, for your presentation. You make some very interesting points. Of course, I want to pick up on one that's not even here: the issue of the protection of the environment. As my colleague pointed out, you've taken the lead in heritage protection and I'm wondering, in regard to your experience in terms of the protection of vegetation and natural heritage, whether in your opinion that should be enhanced within this legislation so that local municipalities could have that form of power to protect the trees and other forms of vegetation from being ravaged.
Mr Mulkewich: That is essentially the point that we're making, and we're saying that we've had some difficulty in doing it. I think, in fairness not only to the municipality but to the public and to the land owners, the rules and all the provisions should be stated up front and they should be in the legislation. Right now it's rather vague. The example that I gave in the brief is the fact that we have in the past three years purchased a substantial amount of woodland because there's no other way of obtaining it, and yet we feel it is that kind of saving of the natural environment -- if it is important and consistent with provincial statements, there should be a provision within legislation that would make sure that kind of natural area is preserved.
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Mr White: So you would like, at the local level, to be able to regulate that preservation of the natural environment without having to purchase it all?
Mr Mulkewich: Essentially. Ros wants to add to that.
Ms Minaji: If I might just add, the fact that it would now be allowed to be zoned is extremely helpful to us. What we're looking for, though, is some kind of consistency in approach across Ontario so that different municipalities and regions aren't going about this in a different way, perhaps purchasing 50% or 25%. We need to know how these areas would be maintained, who would own them and do indeed the land owners deserve compensation for this open-space designation on their properties?
Mr Gary Wilson (Kingston and The Islands): That's actually one of the questions I had, so I'm glad to have that clarified. The other question I had has to do with minor variances and whether you can suggest, since you'd like to see the appeal process continue to the OMB, how the OMB might be able to facilitate the quicker processing of these appeals.
Mr Mulkewich: I think there are two areas. One is, I can tell you that in our municipality there are very few appeals to the OMB, and I think that therefore one of the things that should happen between the province and the municipalities and the committees of adjustment is that you make the kinds of decisions for which there isn't a great deal of appeal. That's one thing. I think if you look at the record, you'll find that's the case in the city of Burlington.
Secondly, the question of what the OMB does to deal with its case load is a major one. I don't think that the problem at the OMB is committee-of-adjustment decisions. I think it's a lot of other decisions that it's been backlogged with. I think it's more important to consider the whole planning process and that's the purpose of the legislation: to make sure that there are fewer issues that get to the OMB in the first place, and that has to do with early consultation and making the system more confrontational and so on. I don't think it's in anyone's interests to have a lot of cases go to the OMB.
Mr Eddy: Thank you very much for your presentation. You make some excellent points that should be considered. I note in the presentation from another city they advised us that, in talking to the officials, the bureaucracy, the provincial staff have indicated that the government will not consider any further changes to the comprehensive set of policy statements.
Others who have come before the committee have said that after we do this exercise we are now doing, we should take the time to look at the entire package of planning proposals and completely review them: the policies, the legislation, the regulations and now the implementation guidelines that are being prepared. That would take more time, but I would ask you your feeling about that. Should the government indeed take the time to do that or should we get on with the bill as it's proposed, realizing that there will be some amendments submitted by the government and by the opposition parties?
Mr Mulkewich: I certainly am in no position to speak for council in this matter because that matter did not come up in our deliberations. I think I can say we generally welcome having clearly stated provincial policies in areas that are clearly of provincial interest, and therefore obviously what's in those statements is important. I would say that the amount of time you take may depend on how much consensus you've reached through these committee processes. Certainly our experience at the municipal level is that it's very important to try to reach that consensus on what the provisions would be. It saves time later on.
So I guess the short answer is that if you can't reach sufficient consensus at this level through this process that you're going through, if that's what you're talking about, likely it's time well spent to take the time and do it at the beginning.
Mr Eddy: That's consensus with the municipalities and the other groups that make presentations to us.
Mr Mulkewich: I would say so. Now, you've got a lot of stakeholders, and there's the difficulty. I think that's going to have to be balanced with a reasonable time line at the end of the day as well, because I think all the stakeholders in the system, whether it be municipalities, whether it be the private sector, are anxious to have these reforms in place and to have the certainty that comes with them. At a certain point I think you have to recognize that certain things you may not have consensus on, and maybe it's eliminating those, and at that point a decision would have to be made.
Mr Eddy: I note your point about delegating the approval plans of subdivisions to the local municipality. I think that's an excellent point and I agree with that. Planning used to be termed "local planning," and it should be kept as local as possible, and that's what you're trying to do.
I agree with your point that there be some very small municipalities. There are some cities around the 20,000 mark in Ontario, separated cities, and separated towns even smaller. But why would the upper-tier planning staff and council want to be involved in that sort of detailed, time-consuming, costly conflict with the local municipalities? You may have some other reasons for wanting it delegated. I think you make a good point.
Mr Mulkewich: Clearly, the public doesn't understand this. The public doesn't understand why you have to have all these levels of government involved.
Mr Eddy: Exactly.
Mr Mulkewich: The public think they come to city hall and they should be able to get a decision. Frankly, we're going into the municipal election season and the public is speaking very clearly that they would like to see an end to this kind of duplication. They see it as duplication --
Mr Eddy: And conflict.
Mr Mulkewich: -- and let's call it what it is. Simplifying things and bringing it down to the lowest level would become very, very important.
Mr Eddy: And very efficient, cost-effective, I suspect.
Mr Mulkewich: I would think it would have to be, yes.
The Chair: One last question, Mr Eddy.
Mr Eddy: I was very interested in your recommendation "that the province provide the legislation required to support the protection of those significant natural features identified by provincial policy without the necessity of public purchase or ownership," because many people have come before the committee complaining about the loss of development rights on significant natural terrain. It is a big problem, and I note your saying about enhanced values. I don't know how this would work, but I'd like to explore it, if you have any other comments. I think you make a good suggestion.
Mr Mulkewich: I think obviously the context within which we are making that suggestion is that if there are planning changes, whether they be through a rezoning or through official plan change, whatever the planning change is, whatever regulation or whatever legislation is put into place should recognize the fact that the zoning or planning change by the municipality does add value to that property, and that should be part of the total mix. That's all we're suggesting and that's the context. We're not talking about land grabs or being unfair to individual land owners.
Mr Eddy: Mrs Sullivan agrees with me that you've been helpful to the committee, and we appreciate you coming forward.
Mr Mulkewich: I am pleased to see Mrs Sullivan here. As you know, she does represent a good part of Burlington.
The Chair: Mr Hayes, with some clarifications.
Mr Hayes: On page 4, about the financial disclosure statement, you comment about candidates not knowing in advance what is required of them, and of course their decision may have been influenced one way or the other. In fact, are you aware that we sent out in late May the form, the disclosure of financial information and instructions and general information, to all the clerks and requested that all the clerks contact candidates in the area who were running to let them know up front just where they stand and what is required of them? So we feel that we have done this and that was a way of preparing them.
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Mr Mulkewich: We're aware of that and I did mention in my comments that we're aware that -- I think I put it that "there's a form floating around." I think our concern was that as we understood it, and correct me if I'm wrong, the form, which in fact I have seen a copy of and I do have it in a file somewhere back in the office, is a draft or suggested form and may not in fact be the form that is prescribed in the regulations when they are finally made. We're saying that the elections are coming up and there should be the certainty, so that even at this point there could be an announcement that the form that has been sent out and what is to be put in is what's going to happen. We don't have that level of certainty. If you could give us that level of certainty today, I think we'd be very happy.
Mr Hayes: Well, the level of certainty I can give you is that if there is any change at all, it would be very, very minor. So it's pretty well what you've seen on that form.
Mr Mulkewich: That's good to know.
Mr Hayes: The other point I want to make is, just to be very blunt, the cost of the commissioner will be borne by the province.
Mr Mulkewich: Will be borne by the province. Well, that's good news. We understand that there's only one taxpayer.
Mr Hayes: We're listening.
The Chair: I want to thank the city of Burlington for the submission they made to this committee today.
KATHRYN DEAN
The Chair: We invite Ms Kathryn Dean. Good morning, Ms Dean. I just want to say that you have 10 minutes for your presentation.
Ms Kathryn Dean: Yes.
The Chair: If you want the members to ask you questions, please leave as much time as you can.
Ms Dean: I'll try to be as fast as I can without skipping important things. Should I start now?
The Chair: Yes, please.
Ms Dean: I grew up on a productive, 150-acre farm in the heart of the Niagara Peninsula. This fruit-growing operation sustained four families and provided seasonal employment for people who lived in the local community.
At the time, the Niagara Peninsula and much of the Golden Horseshoe were places of beauty and neighbourly community. Urban areas existed in balance with prosperous farms in areas like Niagara, Mississauga, Oakville, Markham. The farms provided Toronto, Hamilton, St Catharines and other nearby cities with food and the benefits of a healthy rural community.
In my lifetime I've seen the fragmentation and destruction of the Golden Horseshoe, and I would put it to you today that governments at all levels have acted irresponsibly in allowing the farming community to die in the Niagara Peninsula, and the Golden Horseshoe in general.
If this was just a question of personal grief over loss of a family farm, I wouldn't be speaking to you today. There are hundreds and hundreds of acres of broken farm lands, broken communities lying under pavement around Toronto, Oakville, Mississauga, Markham, Scarborough, former places of beauty to which settlers and, later, immigrants came because of its prosperous agricultural potential which allowed later commercial development.
What's happened is that the commercial and industrial development has fouled the nest, and I applaud the initiative that this government has taken in attempting to put through reforms that will hopefully stop the insanity that we're currently participating in by allowing rampant development, creating a megalopolis that will end up looking like Los Angeles, New Jersey, greater New York City, and will have with it the concomitant alienation and crime. It only makes common sense. We see the historical precedents, and now I am very grateful that we have a chance to stop this ridiculous development and create a community where we can have appropriate levels of commercial and industrial development but where the balance can be redressed.
Farmers and people in rural communities have been bulldozed, literally and figuratively, and it's about time that something started to be done about it. As Ralph Krueger said in a report that he wrote in 1958, and this isn't news, "Future generations will rise up and condemn us for our lack of stewardship if we don't do something to stop the foolishness."
Well, the foolishness continued: Some 8,800 acres of farmland in the Niagara Peninsula alone were paved over. Two to three times as much land was used in the Niagara Peninsula as was necessary; wastefulness, greed, shortsightedness, people working from paradigms that are now out of date that seemed like a good idea at the time. In the days of Toronto's own Mayor Gardiner, expressways seemed to be the way to do it. We know now that this is not the case. For future immigrants coming to the country, if we continue in the way we're going, we're desecrating a treasure that they should be allowed to come to.
Many of the principles, obviously, that I back are in the Sewell commission report, and I only regret that more from the Sewell commission report weren't included in the bill. But I'll move on to the bill now so that we can get into some specifics.
Where I feel that the bill is strong is where it has included provision for preserving ecosystems, agricultural resources and, I would note, land base as well. "Land base," as a phrase, is sometimes not included in the bill where it should be.
Time lines of decision-making at the municipal level: It is important that some of the bureaucratic struggle be eliminated, but in the process it appears that in certain sections this has been done at the sacrifice of public involvement. The idea behind the reforms, apparently, was that public involvement could happen earlier and later amendments would happen more efficiently. It seems the efficiency has happened at one end, but the public involvement hasn't been ensured at the other end.
Just as a case in point, there is one council which is proposing to eliminate the 30-day interval between the public meeting regarding amendments of official plans and the actual adoption of official plans. Presumably, that means you can have a public meeting about an official plan, with public input, and the next day the official plan amendment can go through. That may or may not be the case, but on the books it appears that way. That's a general principle that I'd ask people to address.
Also, it appears the drafting of the bill requires some improvement. I'm a copy editor of about 15 years' experience, and it appears that there are a number of inconsistencies. More precise definitions are needed; for instance, "significant wildlife habitat" in one of the sections. It's not clear what "significant" means. Agricultural resources are slated to be protected, as I mentioned, but not agricultural land bases, so there's presumably room for ambiguity there.
If I could ask you to flip to page 11 of my submission, notably in the purpose section there is material that has been included from the Sewell commission report that is helpful. However, certain terms have been deleted and new, confusing ones have been added.
The most significant of these confusing terms is the phrase "sustainable economic development," which was rejected by the Brundtland commission on the basis that the term "economic" meant that there wasn't the opportunity to embrace the broader notions of environmental, social, cultural and community development in addition to economic development. So it's very surprising to see it in the bill.
I would suggest that the word "economic" be struck from "sustainable economic development." In fact, the phrase "sustainable development" was also rejected by the Sewell commission, as I understand, because it has developed such ambiguity and perhaps is inherently self-contradictory in common usage now. So I have proposed a rewording, which you can see there, that is more specific and is more consistent with the recommendations on the final report of the Commission on Planning and Development Reform in Ontario on page 8.
Skipping over to page 13, regarding decisions of the council of a municipality etc including only the Ministry of Municipal Affairs, "shall be consistent with policy statements issued under subsection 1," the purpose statement appears. Obviously this doesn't bind other ministries to act consistently with this policy, and it would only make common sense for a government's ministries to act in concert. So I would suggest that other ministries, as reworded in the rewording at the bottom of the page, and other government agencies, including Ontario Hydro, also be required to act consistently with the policies in the purpose section.
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Page 14, regarding contents of official plan: Notably, there was no provision for consideration of effects on ecosystems or again for protection of the province's agricultural land base, so my request would be for a stronger wording there, as you can see on page 14.
At the bottom of page 14, regarding public availability of copies of official plans, I've had this experience with a certain municipal council that documents were supposedly available. Well, "available" meant between 8:30 and 4:30, Monday to Thursday. This particular council was using it as an excuse perhaps to have Fridays off.
Interjection.
Ms Dean: That's right. This meant that in a particular instance it was very difficult to get hold of documentation, because the people involved were only able to be there out of office hours. I would make a request that there be accommodation for that. This same council has passed a bylaw to make it possible to hold confidential meetings, which are not in accordance with MMA guidelines.
I would also make a request that there be some provision for enforcement on the part of the province to come down to make sure that municipalities are acting according to the law. I don't think it should be incumbent on a private citizen to bring a city council to court because it's not following correct procedure.
At the bottom of page 15, regarding council's prerogative to set a time limit for comments on written copy of the official plan before the adoption of the plan, again, I feel that gives the city council too much power. You will see on page 16 too that the city council also has the prerogative to decide who has an interest in receiving certain documentation. I've proposed a rewording at the bottom of page 16.
Flipping over to page 18 -- and then I'll leave it open for a few questions which you may have -- regarding the power to rule regarding minor variances, I understand there is the thought that this will help clear up bureaucratic backlog. But it is to be pointed out that the large majority of the cases do come from the city of Toronto.
As I propose here, it may be appropriate to isolate or group together truly minor variances, such as someone wanting to construct a back porch that goes across the property line, and treat them more like traffic court. This still would be a division of OMB, so there would still be an independent body to which private citizens may appeal. Then the OMB can get on with the business of the major appeals.
I insist on the point about the minor variance just because a particular council has used the tactic of rezoning -- this isn't minor variance; this is even one step up -- in particular zoned areas an incompatible zoning use. Then in a meeting I had with one staff member of this council, they suggested that now the entire area should be rezoned to the incompatible use, incompatible with official plan. In other words, this is incremental rezoning, and that shouldn't be legal.
That's quite a race through the documentation. I know you have a lot of documentation; I'd appreciate it if you could possibly read it. I would like to say I appreciate the initiative the government's taken.
The Chair: Thank you very much, Ms Dean. Unfortunately, if we get into questions, it will take a long time and that would delay us with the next submission. So we just want to say that we appreciate the personal interest you've taken in this bill and the brief that you have made to this committee. The members, of course, have listened with interest.
Mr Eddy: Could I just add and acknowledge the real concern expressed about preserving agricultural land.
Ms Haeck: Absolutely.
Mr Eddy: That's really a deep concern here.
The Chair: I agree. Thank you.
Ms Harrington: Thank you very much for all the work that you've done.
Ms Dean: If I could add too, it's not just for farmers. I believe the entire community will be degraded with the complete debasement of the agricultural community, and we have to be thinking of new forms of agriculture, CSA -- community-shared agriculture, that is -- new configurations of urbanization, such as intensification and so on, so that we all can survive better.
The Chair: Thanks very much.
MORRY SMITH
The Chair: We invite Mr Morry Smith. Welcome, Mr Smith.
Mr Morry Smith: Thank you for this opportunity to say a few words. As one who has been active in ratepayer and municipal affairs in North York for many years, may I present the following recommendations for your consideration. I have six suggestions that I believe could improve local government.
First, the planning procedure: Besides stressing the streamlining of the planning process, emphasis should also be placed on improving the integrity of the process. Nearby residents and ratepayer groups should be given an opportunity to express any concerns regarding new developments before, not after, planning staff make their recommendations.
The present procedure in North York, for example, is completely unsatisfactory. Planning staff first meet and discuss development proposals with the applicant and make their recommendations. These then go to a meeting of the planning advisory committee to which only the applicant is invited. Only after this stage is the public notified and asked to attend a public hearing. Unfortunately, by this time everything has already been decided.
Perhaps I should give you an example. About two or three years ago, I appeared before the planning advisory committee on behalf of our local ratepayer association. We were objecting to a high-rise development that was going up along Yonge Street, and our objection basically had to do with the fact all these buildings were going up right against the edge of the sidewalk. We felt that was not the way to make downtown a people place. The building should be set back a little bit from the street. There should be wider sidewalks. The public would be able to have room to walk and there would be room for a few trees, some flowers, some benches and so on.
During the meeting, one of the councillors who is on this committee agreed fully with us. She also said: "That isn't the way North York should do these developments. They shouldn't be a bunch of cereal boxes right against the road practically." But they all voted for the application to go ahead.
So after the meeting, I approached her and I said: "Well, you know, you supported us. Why didn't you make a motion to that effect?" She said, "Well, at this stage of the game, it's too late to make any changes." Now, this was the first opportunity ratepayers had to put any input into it. If it's already too late in the game to make any suggestions, the whole thing is a farce.
Second, the committee of adjustment: A clear and detailed definition of the term "minor variance" is required so that everyone will know what variances can be decided by this committee. At present it seems that only the committee of adjustment itself decides what is within their jurisdiction and can define major changes as minor variances.
In North York, the committee of adjustment, for example, often deals with applications to divide a single lot into two lots, each with insufficient frontage to meet the minimum requirements. In an area of 50-foot minimum frontage, they divide a 60-foot lot and permit two homes each with only 30-foot frontage. Is this a minor or a major variance? If council approves the decision, what is the procedure for residents to request a judicial review by the courts? It's all not very clear in this Bill 163.
It seems to me that a definition of minor variance, for example, 10%, would be a better, simpler and more economical way to solve these types of problems. Or I would suggest to leave the possibility of appealing the committee of adjustment decisions to the OMB, as is now the case.
Third, limit the terms of office: Members of council and local boards should be limited to two or three consecutive terms in office to allow new people with fresh ideas to serve the community. After the term of office is over, incumbents can take a leave of absence or run for some other level of government. At present it is very difficult for unknown newcomers to defeat established councillors, many of whom have over 80% of their election expenses paid by developers.
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Fourth, limit spot-specific rezonings: What is the use of spending substantial time and money carefully drawing up official plans every five years if councils ignore them by permitting spot rezonings? In my view, the present system is an invitation to bribery and corruption and works against the public interest. Traffic and other laws have to be obeyed by everyone until such time as they are changed. Why should the same not hold true for our building and zoning laws? New official plans should decide what changes are necessary, rather than developers requesting changes.
Fifth, clarify the conflict-of-interest rules: The present regulations are a sham as long as they allow councillors to accept substantial election contributions from developers but do not prohibit them from participating in the consideration of rezoning applications submitted by the same developers. Is it any wonder that those who pay the pipers end up calling the tune? It is questionable whether the $750 maximum that any one person can contribute to a candidate and the disclosure requirements under the Municipal Act provide adequate protection of the public interest. The recent convictions of York councillors demonstrate this. Candidates usually hold fund-raising dinners long before their election campaigns, and I am not aware of any law that limits the number of tickets one can purchase.
Sixth, intervenor funding at OMB hearings: For citizens and ratepayer groups who care about their community, proper legal and planning support is essential at OMB hearings. For example, North York sends its staff to support developers when residents object to rezoning applications, but our own local ratepayer association had to hire a planner to defend North York's official plan for our area, as the city refused to send a planner to defend its own official plan when a developer opposed it. To eliminate frivolous appeals, perhaps funding of individuals and citizen groups should be limited to 75% of their expenses. I believe that this would be money well spent in protecting the public interest.
I trust that you will give the above suggestions due consideration and that your work and recommendations will succeed in improving our local government. Thank you very much.
The Chair: Thank you. There are five minutes remaining. If people want to ask a question, we can allow that.
Ms Haeck: Just a quick question. I really appreciate your taking some time. I think it's important that citizens get involved in this process, as well as some of the other agencies and groups that have come forward.
You raise one of the thorny issues that we've tried to deal with in the last couple of weeks, and that's how to define the term "minor variance." We see things locally where projects are doubled in size and that's handled under a minor variance. How would you assist us in giving us a limitation of what really, truly is a minor variance?
Mr Smith: Well, at the Sewell commission I presented basically the same brief. I remember John Sewell suggesting that he thinks perhaps a limit of 10% variance from whatever zoning and building regulations exist in that area should be the limit that they should be able to go. That would be at least a rough idea of limiting what they can do. Otherwise, what we're having is, many things that should go through the planning process are going through the back door via the committee of adjustment.
Ms Haeck: A little supplementary?
The Chair: All right.
Ms Haeck: If in fact you have, let's say, an industrial development or a commercial development which is of a considerable size, 10% of 180,000 square feet or something is still a substantial amount. Would you propose that there would be a different process according to whether or not it was zoned residential or a commercial matter to basically reflect what would normally be a difference in size? Most commercial developments tend to be larger than residential, but I would defer to you as far as a comment in this regard.
Mr Smith: I don't see any problem with that. It would be up to the committee to decide these things. Basically, I think some rules should be set down. It shouldn't be the way it is now where the committee of adjustment itself decides what's minor and major and can decide anything. At least up till now we could appeal the matter to the OMB. Now we won't even be able to do that, and I don't know what the procedure is as far as Bill 163 that I read; I didn't see any procedure how citizens can go ahead and appeal their decision.
Ms Haeck: We're definitely hearing a lot about this, so thank you for your remarks.
Mr Grandmaître: The fact that you cannot appeal a decision of the committee of adjustment: Don't you think 10% is very generous?
Mr Smith: I just threw out what John Sewell suggested. Perhaps you can make it 5%. I think there should be some limit as to what is their authority so they themselves would know. Right now neither they know nor the citizens know nor anybody else knows.
Mr Grandmaître: You're absolutely right. Nobody around this table knows what a minor variance is.
Mr Smith: I think that is a deficiency in Bill 163 that you should certainly address.
Mr Grandmaître: Let's hope that the government, before third reading, can define minor variances. I would like to see maybe a 2% or maybe a 3% difference, but not a 10%; 10% is quite --
Mr Smith: I didn't make that recommendation. I just threw it out as a suggestion that John Sewell had thrown out.
Mr McLean: Thank you, Mr Smith, for appearing before the committee and expressing your views. I want to ask the parliamentary assistant the very question that you have asked. Is that a minor or a major variance? What's the government's position on that?
Mr Hayes: Which one are you talking about there, Mr McLean?
Mr McLean: Well, if you want to split two lots. Is that a minor variance or a major one?
Mr Hayes: In my opinion, it would be a major, if you want my opinion, but I'll let the staff respond back there.
Mr McLean: Right.
Mr McKinstry: Maybe I could clarify. Committees of adjustment in fact have different roles. One of those roles is of course to grant minor variances from zoning bylaws. Another of their roles, if they're given that authority by council, is to create land severances, in other words, split lots. In this case, it was probably them acting in that other role, rather than granting minor variances.
Mr Smith: My understanding is, splitting a lot does not come under -- the question is that when they allow homes on these lots, then they're minor or major variances.
Mr McKinstry: And they may or may not have had to have a rezoning or a minor variance. I don't know the situation here.
Mr McLean: But they would have to be rezoned?
Mr McKinstry: One would think they would have to be rezoned, yes.
Mr McLean: So it would be a major amendment to the official plan and zoning bylaw to allow that to happen.
Mr McKinstry: To the zoning bylaw.
Mr McLean: So that would not be classified under a minor variance procedure.
Mr McKinstry: No.
Mr Anthony Perruzza (Downsview): No, but severances, I remember cases where the city of North York committee --
Mr McLean: Thank you for appearing before the committee today.
Mr Perruzza: -- severed a 22-acre lot from the city limits.
Mr McLean: You're out of order.
The Chair: I know you're trying to be helpful, but he has the floor. I'm sorry. Go ahead, Mr McLean. Please, one more.
Mr McLean: I'm finished. Thank you.
The Chair: All right. Ms Haeck has a question of staff then.
Ms Haeck: Yes, I do, and I would like to actually ask staff if they could give me a written comment but share it with the other members of the committee.
Ms Ros Minaji from Burlington raised I thought an interesting point, that she felt development permits would provide municipalities the opportunity to regulate appearance. She definitely used the word "appearance," and I would like to get an interpretation, an opinion, from staff as to whether a development permit would in fact allow that and under what circumstances, because very clearly this is something my residents would be very interested in, and I'm quite sure other people would be as well. So I thank you for any help you can give me.
The Chair: Do you want an answer at this time?
Ms Haeck: It can happen later. That's fine.
Mr McKinstry: Okay. We will prepare a response to that.
Ms Haeck: Thank you very much.
The Chair: Mr Smith, we want to thank you very much for taking the time to prepare and to present the submission to us.
Mr Smith: Thank you for taking the time to listen.
The Chair: We appreciate it.
One last comment. I think one or two members may have raised the issue of inviting the Minister of Environment and Energy to speak to the issue of septic tanks. I'm not sure whether there is a general interest by all of the members and I'm canvassing to see whether that is the case. If that is so, we will then need to find some time to include them, which would leave us September 19 as the date. If that is something you all want to do, we either meet with them some time during that lunch period or at the end of the delegations, which would be at 6 o'clock.
Mr Grandmaître: How many delegations do we have?
The Chair: We will go from 9 till 6.
Interjections.
The Chair: Can we just arrange --
Mr Grandmaître: If you buy lunch, we'll go.
Mr McLean: The last delegation is 5:30 in the afternoon, according to my schedule.
The Chair: So it would get us till 6. So it's either after 6 for half an hour or during lunch, 12 to 12:30 or 1 to 1:30.
Mr Eddy: We agree with either or both. Whichever you would like.
The Chair: Any preference? Leave it to us?
Mr McLean: Is it going to be the minister or staff?
The Chair: Sorry. It would be some staff members that we would be inviting.
Mr McLean: I wonder if they could send us a brief ahead of time so we could have a look at it, have an idea of what they're going to present.
The Chair: We could try to do that. We would ask them to appear, but if they have a presentation that is prepared, we could ask them to send it to us in advance. All right?
Ms Haeck: I think everyone's in agreement.
The Chair: Very well. The clerk and I will attempt to fit it in either after 6 or during that lunch spot. Thank you very much. This committee's recessed until 1:30.
The committee recessed from 1201 to 1339.
The Chair: I'd like to call the meeting to order.
CANADIAN ENVIRONMENTAL LAW ASSOCIATION
The Chair: I would call upon the Canadian Environment Law Association, Ms Kathleen Cooper. Welcome, Ms Cooper. Just as brief reminder, you have half an hour for your presentation. Leave as much time as you can, please, for the members to ask you questions once you've given us your main ideas.
Ms Kathleen Cooper: I would actually like to keep this as informal as possible and have lots of questions because I've put together this brief and that was enough work. So I didn't put together speaking notes. I also want to apologize for --
Mr Curling: You're assuming that we've read it already.
Ms Cooper: No, no, I realize you've just gotten it. I will go over it for you briefly. I also want to, off the top, apologize for single-sided photocopying. We have a very tired old photocopier that can't handle double-sided copying. It's very embarrassing, but there you are.
Just by way of introduction to this submission, this work is the culmination of three years of effort on the part of staff in our organization, as well as joint work with environmental and citizens' groups from across the province for three years and work before that as well. So the recommendations that are made here reflect the concerns of those groups, who have considerable direct experience with the land use planning process.
There are two major themes that run through this brief in terms of making suggestions for changes to Bill 163. The first is, we feel there's insufficient attention to environmental protection and we have a number of recommendations to address that, and then the other major area is insufficient attention to matters of what I've called process integrity.
In the area of environmental protection, the concern I would raise, which I've raised here and drawn from research of looking at all of the submissions that were made to the Sewell commission, is that there was a broad consensus built during the Sewell commission consultation that I think needs to be more adequately reflected in this bill, and that can be done and can preserve the intent of what was passed in the Legislature on second reading.
Off the top, including environmental protection is one of the purposes of planning, and we've made suggestions for using language that the Sewell commission recommended. We specifically don't like the use of the words "sustainable economic development." If you must use those words, then drop "economic" because it's a much more narrow interpretation of what sustainable development is supposed to be about. But even better, I think what the Sewell commission recommended is preferable, so we have recommended that.
The other major area to improve environmental protection measures in the act would be to incorporate into section 16, which has to do with content requirements, first, that the language of section 16 be changed so that it builds in ecosystem protection, and we've made suggestions for language. All the way through we've made specific language suggestions for how to make these changes in the bill.
The second thing is the second section of section 16 that has to do with an optional prescribed process. It is a mystery to me why you would have a prescribed process that would then be optional. We think that process for dealing with the overlap and problems between the Environmental Assessment Act and the Planning Act could be much better addressed, and we've made suggestions for doing that and also recommendations for you to ensure that the elements of content requirements and the procedures for environmental planning are amplified by two associated regulations.
I should add that I'm involved with the implementation task force and am very keen on working there as part of the mandate for that task force on those regulations -- and others, of course.
Very briefly, two major additional environmental recommendations are with respect to section 34 and the setting of bylaws to restrict the use of lands. We've suggested a change there to support the intent of the policy statements on natural heritage protection.
Also, on the matter of pre-approval site alteration, we've suggested, as was suggested over four years ago by Ron Kanter and by many others in between, that there be a prohibition in the Planning Act for site alteration prior to receiving planning approvals. Then, in the alternative, if you decide to stick with what you've got in the Municipal Act amendments, we think that the setting of bylaws on this matter should be mandatory, not optional, and that the matters to be controlled prior to the granting of approval should be expanded to include removal of vegetation and fill. We've given you a list of items that ought to be included there.
On the other broad area of what I've called process integrity, there are a good 15 or 20 recommendations in here having to do with ensuring that the province and municipalities effectively implement this new system.
The most important one is the change that has been made to subsection 3(5). We strongly support the stronger language of "shall be consistent with." However, an additional change has been made to subsection 3(5) where the drafters of the bill have taken out the crown, essentially, and only have this section now applying to the Ministry of Municipal Affairs.
This matter was not raised during the consultation, either during the Sewell commission consultation or by the government when it consulted on this change to subsection 3(5). It was not a matter debated during that consultation, nor was it raised as a concern during the consultation. I've combed through all of the submissions. Other issues were raised about concerns about limiting flexibility at the local level and the impact on existing policy statements, but this notion of restricting the purview of subsection 3(5) to the Ministry of Municipal Affairs we think is unacceptable.
We've made suggestions with specific language changes to bring the crown back into subsection 3(5) by adding specifically, "all other ministries, the joint board" -- and there's an error in the executive summary, actually; it should include the joint board -- "the Environmental Assessment Board, the Ontario Energy Board and Ontario Hydro." The way the bill is worded now, only Ontario Hydro has to "have regard to" policy statements. Other ministries don't even have to do that any more, and that's a very serious change and not one that's supported by the consensus that was developed during the consultation.
I'm going to just briefly touch on the range of other issues that we've got in here having to do with access to the process. We're concerned about having to pay the fees prescribed under the Ontario Municipal Board Act in order to send planning applications forward to the OMB. These fees can be very, very large in some cases if a matter is very complex, and for citizens' groups, having to pay those fees would be a financial barrier to participation at the OMB and to access to that process. It's not a barrier that currently exists at the Environmental Assessment Board, for example, so we've suggested that that be changed.
On the grounds for dismissal of referrals and appeals, there are two serious problems that we've identified in there where we've made suggestions for change. We disagree with the notion of adding in "valid land use planning grounds" and suggest it be deleted or, in the alternative, if it stays in there, that it be specifically linked to the purposes of planning, to the policy statements and to the matters of provincial interest in section 2.
As I believe you've already heard others say, the ability to dismiss referral and appeal requests on the basis of citizens not having made oral or written submissions at public meetings we feel is really a denial of basic democratic rights and should come out of there. It does not recognize the problems that people face in their lives in being able to participate in these decisions that affect them in their communities, and we think it should come out of there. If it stays, it absolutely must be accompanied by changes to the notice requirements, where you ensure that people know not just at the public meeting but in advance, in the notice, that these grounds for dismissal exist.
A related issue is full access to information, so you can actually make a decision about whether you have a concern and want to raise it, and access to information outside of regular business hours, in recognition of the fact that you're talking about volunteers here who are doing this outside of their own regular jobs.
I've skimmed over a few other points. Finally on the matter of minor variances, I laboured over this a lot and discussed it with a lot of people. People are very concerned about no longer having the ability to appeal minor variances, and the conclusion that I've drawn from this is that yes, there's a problem with too many minor variance appeals going to the OMB, and it's a reflection of the provision of minor variances being abused. So don't take away the appeal rights; fix the problem. Put in the definition of minor variances and constrain the ability to use it, and then you won't have as many appeals because the provision won't be abused. That seemed like the most logical recommendation there.
That's skimming over a lot of different areas, so I'll just stop there and take questions.
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The Chair: That gives us approximately five minutes per caucus. Mr Eddy, to begin.
Mr Eddy: Thank you for your presentation and the important matters that you've raised. We understand that the timetable for the passing of the bill is later this year, but several people have said we should review the entire planning package, that is, the planning policies -- and they're not under review at this time, of course; they're there, they haven't been reviewed and we question the amount of input into them -- the legislation, the regulations, and you've mentioned the implementation guidelines, and that we should be reviewing the entire package so we know what is going to come into being. What would be your view on that suggestion?
Ms Cooper: On the policies, I support the government's position of closing the debate on them. I don't believe that we have had limited debate; I think we've had extensive debate on policies both during the two years of the Sewell commission consultation and then afterwards. What we've got in this final package, as far as I'm concerned, warts and all, we should hold onto because I think opening them up again is just going to start raising exactly the same debate and issues that we've gone over and over and over.
I think that we have a set of policies that are acceptable and that the implementation guidelines that are being developed will, if that process works -- and it's trundling along. It's pretty good in terms of, people are meeting deadlines and we're working on the task force to provide the input, and other stakeholders are as well.
In terms of reviewing the entire package, I think that's what we are doing right now, certainly in the work in putting this together. I make these comments in the context of dealing with those other elements of the package, having dealt with them up till now and continuing to deal with them in the task force, and I think people have that opportunity. I just think there's a historic opportunity here that we should not let pass. All of us across the province have been involved in this and it's been an incredibly extensive consultation. We have done an enormous amount of work. Let's finish it.
Mr Eddy: Thank you. It's been pointed out there is conflict between the policies, and that's why I wanted your opinion on it.
The task force developing the implementation guidelines: You wouldn't be aware of the proposed government amendments to the legislation or to the regulations at this time.
Ms Cooper: I'm keen on seeing them.
Mr Eddy: Is that a difficulty, do you see, or not much?
Ms Cooper: Yes, it's a difficulty and it's been a judgement call for me in knowing how to respond to the bill because of what's in the regs. At the task force we are seeing draft outlines and then drafts of regs and are able to contribute to their development. The fact that we haven't seen the government amendments certainly is a problem; exactly. We have to see how this is all going to take shape and work together, but I just consider that to be part of the job that I have over the next four months.
Mr Eddy: We may have amendments too, but of course the government amendments will be seen as more important. Go ahead, Mr Grandmaître.
Mr Grandmaître: Maybe my question should be directed to the parliamentary assistant. As you know, subsection 3(5) has been mentioned by just about every group that appeared before this committee, wanting to broaden the environmental to include all provincial ministries, the Environmental Assessment Board, the Ontario Energy Board and Ontario Hydro. Is it the position of the government that an amendment will be brought in? Is it your intention to broaden subsection 3(5) to include Ontario Hydro?
Mr Hayes: A very good question, and it's an issue that many people have raised in this committee. We are certainly looking at making some changes to address that situation.
The Chair: There you go.
Ms Cooper: We've tried to recommend specific language to be helpful in all cases.
The Chair: Last question.
Mr Curling: Do you know about this study we've talked about, A Proposed Action Plan for Looking Ahead: A Wild Life Strategy for Ontario? Are you familiar with this?
Ms Cooper: Who's the author?
Mr Curling: It was prepared by the Wild Life Strategy Action Plan Ad Hoc Committee on behalf of the wildlife forum.
Mr Eddy: For MNR, the Ministry of Natural Resources.
Ms Cooper: I haven't seen that specifically, no.
Mr Curling: Well, we just got a copy and we gather that some people have gotten it. We here have not been privy to that. I just wondered --
Ms Cooper: Can I have a copy?
Mr Curling: Well, this is the only copy that I have, you see.
The Chair: Mr Curling, I'm sorry. I don't want to interrupt you, but --
Mr Curling: You are, though.
The Chair: Yes, but when I ask you to make a short question, you should place it. Otherwise we go way over time.
Mr Curling: I would have done that while you were talking, actually.
But you said you have not. It seems to me that if we had had that, if there were a great input into the planning and amending of the Planning Act itself -- but I understand you don't. Neither there has the minister seen it itself. I just wanted to know if you had, that's all.
Ms Cooper: There is all kinds of other work that's been done that's been valuable input to this reform effort. I'm sure that's just as valuable, but there's been lots and lots of other work done as well.
Mr McLean: Welcome to the committee, Ms Cooper. I have three questions I wanted to ask you.
One is with regard to minor variances. You made it clear here that the new definition be included in Bill 163 to define "minor variance": "`minor variance' means development or use of land, a building, or a structure that, while not in conformity with the bylaw pertaining to the land, building or structure, does not deviate significantly from the use or development permitted by the bylaw."
That's "deviate significantly." If I was putting up a four-storey complex and wanted to add another floor to it, would you classify that as a major modification and not a minor variance?
Ms Cooper: It depends on what's in the official plan and the secondary plan for that area. But if you're talking four storeys up to five storeys, you need to be considering the impact that has on the local infrastructure, the hard and soft surfaces, everything. So it's hard to respond. You need to know the site-specific issues.
I'm aware of a situation like that, and I don't know if you're using a specific example, where exactly that kind of situation existed. It was in violation of the plan. It was appealed to the OMB and the OMB ruled in favour of the fact that it was not a minor variance.
Mr McLean: Right. Okay, we've been having some difficulty getting some clarifications.
There was a delegation here that indicated that maybe hearing times, OMB should have a deadline, that when after three months they have looked at it and seen whether they're going to go through with an OMB hearing, there should be a deadline put on when that OMB hearing could be held. Would you agree with a deadline?
Ms Cooper: The issue of putting time limits on all of these various decision points has been dealt with fairly well in the bill. I'm not sure exactly which deadline you mean. You mean if you've already sent your referral; it's been referred and the OMB has to decide?
Mr McLean: Yes, they're going to now deal with it; they're going to accept that they will deal with it. Should there be a deadline of how long they should have to deal with that?
Ms Cooper: I would support things happening faster at the OMB, but if they can't meet the deadline, that doesn't mean that they should never hear it. I mean, you'd have to add that.
Mr McLean: Okay, fine. The other question I have is, "Delegate authority to staff." That goes back to the minor variances and some of the modifications that are not being objected to. Would you agree that staff should be able to do that, senior planning staff in a municipality -- Burlington, say?
Ms Cooper: Yes.
Mr McLean: Great.
Mr Gary Wilson: Thank you for your presentation, Ms Cooper. I think you provide a very good example of the amount of work that has gone into not only the hearings on the bill, but the prior consultations that went on in the last two to three years. I certainly commend you and I'm sure the committee does as well for it, because it really helps in our deliberations.
Although I haven't checked out to see exactly what you say on "sustainable economic development," you like Sewell's wording. Can you think of why it was changed to "sustainable economic development"?
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Ms Cooper: I asked, and the idea was they wanted to come up with balance. I think maybe the drafters of the bill wanted to shorten what Sewell tried to explain in his language, what "sustainable development" essentially means. It's a multifaceted notion. The problem that happens with "sustainable development" is that it's just such a weasel term. It's an oxymoron to some people. It's not useful, and then adding "economic" in there is really problematic. The Brundtland commission didn't even try and do that. I think the language that the Sewell commission recommended is preferable.
Mr Gary Wilson: I'd like to ask you about the phrase to "be consistent with" the policy statements and municipal planning, because we've had some submissions which suggest that's too onerous, that it should be to "have regard for." I'd like you to say why you support "to be consistent with."
Ms Cooper: The key criticism that was made constantly before and during the whole reform effort that is under way is that policy didn't mean anything. There was an enormous amount of debate on the need for stronger language and then there was an enormous amount of debate about what the language should be. A lot of people wanted even stronger language: "conform to."
I think that this, the "shall be consistent with" language, is the compromise that reflects a consensus across the many, many stakeholders that are involved and concerned about this.
Mr Gary Wilson: Do you think it's feasible; that is, that provincial policies can be adapted to the local conditions under the "shall be consistent with"?
Ms Cooper: Yes. However, they need to be incorporating matters of provincial interest. That's the whole point of this. So yes, with that caveat.
There's something else I thought of. It's gone.
Mr Gary Wilson: Okay, maybe it will come back.
The Chair: Ms Haeck has a question or two, perhaps.
Ms Haeck: I just wanted to quickly thank you also for your remarks, and specifically your recommendations with one of those thorny issues called "minor variances" and the fact that you do make some clear recommendations that I think will go at least some way in addressing that issue.
There are others who have come before this committee and, in dealing with wetlands or other elements of the proposed bill, raised the issue of the word "significantly," which is on page A-15 in your document. It relates to whether something is minor. Again, it sort of is quantifying whether or not a variance is minor or major. You are a lawyer; I'm a librarian --
Ms Cooper: I'm not a lawyer.
Ms Haeck: Oh. Well, okay.
Ms Cooper: It's a matter of some pride, actually.
Ms Haeck: Well, I feel the same way, actually, many times in this job. People sort of make assumptions and I say: "No, thank you. I'm thankful not to be."
But the public views the word "significantly" one way and then you get into the legal debate of what words like "significant," "major" or "minor" mean. To your way of thinking, will this deal with the issue to your satisfaction?
Ms Cooper: I think it will deal with it in a way that's a lot better than the current situation. I think you'll still have misuse of the provision and therefore you still have to give the public the right of appeal.
Ms Haeck: Very good.
The Chair: Ms Cooper, we ran out of time. We thank you for your submission and for the preparation that went into the writing of this brief.
Ms Cooper: You're welcome, and thank you. Good luck.
DUFFERIN-PEEL ROMAN CATHOLIC SEPARATE SCHOOL BOARD
The Chair: We invite the Dufferin-Peel Roman Catholic Separate School Board. Welcome to this committee. Again, just as a brief reminder, we know that some of the reports that have been written are very long and that much can be said on anything. But if you would like to members to ask you questions, try to leave approximately 10 to 15 minutes for that, all right?
Mr Art Steffler: As representatives of the Dufferin-Peel Roman Catholic Separate School Board, we welcome this opportunity this afternoon to share our concerns with the current Planning Act and Bill 163. By way of introduction, my name's Art Steffler, chairperson of the Dufferin-Peel separate school board. With me are trustee Ken Adamson; Mike Bator, superintendent; Peter Howarth, associate director of corporate services; and Thane Munn, planner.
As a trustee representing students and parents in the Dufferin-Peel separate school board jurisdiction for over 30 years, I have been witness to the incredible growth that this board has encountered since its inception in 1968, from a responsibility at that time of 27 schools and 9,000 children to the current 105 elementary and secondary schools serving over 74,000 students in a geographical area that covers three municipalities within the region of Peel and Dufferin county. This growth in the student population, coupled with the financial constraints of the government, has created a severely overcrowded educational setting. Included in our submission are copies of submissions from our school principals detailing the impact of overcrowding on schools and children.
In our opinion, the Planning Act does not contain the appropriate provisions that would allow school boards to deal with the impact of this type of growth on student population. We are here today to request changes to the act that would address the overcrowding crisis and allow our board to fulfil its mandate.
Trustee Ken Adamson will now address the committee with the specific concerns that this board has with the Planning Act.
Mr Ken Adamson: As you may be aware, school boards in the province of Ontario are mandated by the Education Act, which states that every school board shall provide instruction and adequate accommodation during each school year for the pupils who have a right to attend a school under jurisdiction of the school board. It is because of this mandate that we are appearing today.
As mentioned previously, our school board provides educational instruction and accommodation for over 74,000 students in 105 schools. The 105 school buildings provide the school board with 48,180 pupil places. The remaining 25,820 pupil places are accomplished through the placement of 705 portable classrooms placed on school sites. To accommodate these 25,820 temporarily accommodated students in permanent facilities would necessitate the construction of 30 elementary schools and four secondary schools.
Our school board acknowledges that it recently received a provincial allocation for eight capital projects from the province. However, the existing need for additional school facilities, coupled with the construction of residential development projects already approved within the school board's jurisdiction, continues to put a severe strain on school facilities. Based on projected student yield from residential projects already approved in the area, the school board will require eight additional elementary schools by 1998.
As you can see, our school board is fulfilling its legislative mandate in severely overcrowded facilities, which will continue for some foreseeable future. As Art mentioned, you have a package of information from school principals that indicates the severity of the problem.
We are here today seeking the legislative authority for school boards to become a full and equal partner in the planning process. It is our contention that the lack of authority for school boards under the Planning Act has helped create the severely overcrowded situation that our school board and other school boards operate under.
I would like to speak about our school board's submissions to the Commission on Planning and Development Reform. As we are all aware, we are here today to provide input on Bill 163, which is the next step in the process that the province initiated in 1991 by the appointment of the Commission on Planning and Development Reform.
Throughout the commission process and the preparation and approval of the new provincial policy statements, our school board has made a number of submissions to both the commission and the Ministry of Municipal Affairs detailing our school board's concerns and requesting the necessary changes that would give school boards the appropriate authority when dealing with development applications. Copies of our earlier submissions are attached in our package for your information.
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It is interesting to note that in the final report of the commission, titled New Planning for Ontario, it was reported that a number of school boards advised the commission that they are experiencing difficulties in accommodating students and that development should be staged to meet the accommodation needs. The commission recognized that the current Planning Act provisions regarding adequacy of school sites are no longer valid. School sites can be designated or reserved in plans of subdivision, but with no resources to acquire the site and construct a facility, the school boards' needs are not being met.
The commission proposed that municipalities be required to develop policies in the municipal plans addressing the provision of educational facilities rather than just sites. I would point out, however, that despite the recognition by the commission of the overcrowding concerns of school boards, the new policy statements issued by the Ministry of Municipal Affairs did not make provision for ensuring that both school sites and facilities would be available in new development areas. It is our contention that both the policy statements and the legislation should require that the pace of residential developments be phased in conjunction with the availability of school sites and facilities.
This brings us to a residential evaluation policy that I'd like to explain. Before I get into our specific requests regarding changes to the Planning Act, I would like to advise the committee of the actions that this school board has taken in order to gain some control of the student growth within our jurisdiction.
Earlier this year our school board implemented what is known as the residential evaluation policy. The intent of the policy is to evaluate residential development applications in light of the availability of adequate school accommodations. The policy set out criteria to determine whether adequate school accommodation is available, and if a particular application did not meet the criteria, the school board would request the local approval authority to phase the development or not approve it. The policy would not stop development, but rather would put in place some control to allow for our school board to meet the student accommodation needs. It was hoped that through the implementation of the policy, the local official plans would be revised to include policies requiring phasing of development related to school accommodation, much the same as official plans contain policies related to the phasing of development because of other community requirements such as transportation and servicing facilities.
It is the contention of the school board that the Planning Act provided the board with the authority to implement this policy based on section 2 of the Planning Act, which states that:
"The minister, in carrying out his responsibilities under this act, will have regard to, among other matters, matters of provincial interest such as,
"(e) the equitable distribution of educational...and other social facilities."
While there is some empathy on the part of the development industry and the municipal governments to the school overcrowding faced by our students, the policy has met with strong opposition. One of the first actions of the school board in implementing the policy was to request the region of Peel to refer four draft plans of subdivision to the Ontario Municipal Board in order to achieve phasing conditions. It was the legal opinion of the regional solicitor that the school board has no authority under the Planning Act to request a referral based on the lack of school accommodation. The commissioner of planning subsequently declared our referral request frivolous and vexatious, and the draft plans were draft-approved by the commissioner of planning for the region. In order to protect its rights, the school board initiated through the courts a judicial review of the actions of the commissioner of planning.
In continuing to pursue its policy, the school board subsequently referred three zoning bylaws to the OMB. As is their right, the applicants of the three zoning bylaws applied to the OMB for a motion to dismiss the school board referral requests and have the applications approved without a full hearing. The school board was extremely disappointed that the OMB granted the motion and dismissed the school board's referral requests without a full hearing.
In its decision, the OMB ruled that section 2 of the act had been complied with because the official plan provides for school sites, and clause 51(4)(j) of the Planning Act has been complied with because school sites are made available through the processing of the required draft plans of subdivision. Therefore the board ruled that the school board has no authority to request phasing of residential development because the actual school facility does not exist at the time of residential development. There is a copy of the OMB ruling included in your package.
The OMB contends that the primary problem for the school boards is the shortage and delay and lack of funding for school construction, and this is not specifically included in the provisions of the Planning Act. The school board agrees with this finding, but has difficulty understanding that under subsection 34(5) and clause 51(4)(i) of the Planning Act, a municipality can prohibit or phase residential developments because of adequacy of utilities and municipal services, which are also subject to the timing of provincial subsidies and grants. School boards, however, are unable to phase residential developments when the same funding problems occur for school construction.
As the committee can see, school boards are hindered by the fact that the Planning Act does not recognize that school facilities are an integral component of the community structure and as such should be provided for as part of the planning process.
Let us now refer to the Planning Act changes. The following are the specific amendments to the Planning Act that our school board is requesting:
While section 2 sets out matters to have regard to when making decisions under the proposed Planning Act, the implementing clauses have not been included.
Under the current planning process as prescribed in the act, school boards provide comments on official plan amendments, zoning bylaws, minor variances, severance and subdivision applications and make their requirements known to developers, regional and municipal planners and councils. School boards under the act may be consulted, but they are not specifically referenced as an entity that must be consulted.
School boards should be involved at the beginning of the development process. Ideally, the school boards should be consulted by the developer and the municipality during preliminary discussions prior to the submission of a formal residential development application to the municipality and to the region. Notification would ensure that the school boards have the opportunity to plan cooperatively with the region and the area municipalities.
Therefore, we would request that subsections 17(14) and (20), 34(15), 45(8), 45.1(3) and 51(14) and (16) of the Planning Act be amended to include school boards as an entity which the minister shall consult with and whose policies the ministry shall have regard for.
As detailed previously, the minister's delegate, the commissioner of planning, and the Ontario Municipal Board have interpreted the Planning Act to read that it does not provide school boards with any powers to control development or residential intensification.
We would request that subsection 34(5) of the act be amended to include "lack of school facilities" as a reason for which a municipality may prohibit or delay a residential development. Further, we would request that clause 50(4)(j) of the act be amended to read "the adequacy of school sites and school facilities."
It is our opinion that should the province adapt these changes to the Planning Act, the school boards' job of fulfilling its mandated responsibilities will become more manageable.
Thank you again for this opportunity to make a submission. We are available to answer any questions that you may have.
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The Chair: Thank you. Mr McLean, three minutes and a half, please.
Mr McLean: Welcome to the committee and thank you for your presentation. I've said for a long time that the school boards should all be part of the planning process and when you plan a subdivision that should be part of it. To date, you've had no input on anything that's gone on in Dufferin-Peel with regard to planning. Simcoe county board I know does do some surveys, which I guess you have done now, to determine what your increased growth is going to be. But there's nothing there and what you're asking for is proper.
You're the first one I've seen that has mentioned such a thing as transportation. That, to me, is a major issue also with regard to development, and when I look at what's happening in the town of Markham and along Highway 2 and along Highway 7, it just makes me shudder to think of the major development that's taking place without any major transportation links being put in there.
So while I agree with what you've presented here today, it will be interesting to see what the ministry's reaction is in regard to your request, and I thank you for attending here.
Mr Adamson: Thank you, Mr McLean.
Ms Harrington: Thank you very much as a group for coming before us. I think what you've pointed out makes a whole lot of sense. It is a real problem, especially, I gather, in your area.
I think most of us believed that in the process of making an official plan, a municipality would think about very many needs of the future of that community, whether it is the commercial development or industrial development, the economic base of the community and then the social requirements of that community, whether it's recreation, schooling, health care, libraries, transportation, and have a vision for what we want that community to be. I would have thought that schooling would be a very important part. I know at least in my community of the city of Niagara Falls, when the northwest area of the city was developed, both school boards owned adjacent pieces of property, and that was part of the official plan. Mind you, it did take several years before that school was built. The residential area was built first.
So I understand what you're saying, but I do think the vision is to have that as part of the making of an official plan and have the whole community involved in that. Either you can comment on that or maybe the ministry would like to comment on this particular problem. Would they be interested in doing that at this time?
The Chair: Mr McKinstry?
Mr McKinstry: Thank you, Mr Chair. Yes, certainly in the view in planning reform we would see that schools are very much a part of the equation in developing official plans, as well as in the approval and the circulation, for that matter, of subdivisions. It seems to me that in the past municipalities and the ministry have circulated subdivisions to the school board, even though there is no absolute requirement, but that that is part of the normal review of a subdivision, and we agree that planning for schools is a critical part of the planning process.
Ms Harrington: How do we ensure that, though, that these needs will be taken into account?
Mr McKinstry: I guess, if I can digress a little bit, one of the issues that's come up in the planning process is that the planning process has been slowed down by a lot of circulation to agencies and ministries that may not or may need to see it. So we have avoided putting in the legislation requirements that say municipalities must circulate, because it's our contention that in fact municipalities are responsible and will take into account things like schools and will therefore circulate to school boards where there are significant development applications.
The Chair: Mr Eddy, would you like further clarification?
Mr Eddy: Just a clarification. It's not schools we're talking about. There's a difference between school sites and school buildings. The sites are provided for at times, but it's the buildings that are the big problem, providing the buildings for the kids to go to.
Mr Adamson: Well, both are important. But if I could comment with respect to the present Planning Act, as we mentioned in our brief here, the present Planning Act does mention infrastructures in that section that I referred to. However, it's not enshrined, and the fact that the OMB ruled against us in our residential evaluation policy does not give credibility to the existing act in that area and has resulted in the situation where we have over 30% of our students housed in portables. The present act, with its reference to an infrastructure, does not accommodate what we require. We want it enshrined. We're requesting that it be enshrined and that we become an entity in the planning process.
The Chair: Mr McKinstry?
Ms Harrington: I think you make your point very clearly.
Mr McKinstry: If I could just give one more clarification, in fact you did mention in your brief section 2 of the Planning Act, and in fact in section 2 in Bill 163 it says that the minister and the municipalities will have regard to "the adequate provision and efficient use of communication" -- oh sorry, I'm on the wrong one, it's (i), "the adequate provision and distribution of educational, health, social, cultural and recreational facilities," and we did include in that "facilities." I think you mentioned that in your brief.
The Chair: Thanks very much. Mr Curling.
Mr Curling: Thank you very much. I think that is an excellent presentation. We've heard before about the school board playing a more integral part in formulating an official plan, and I think the example you use of the Ontario Municipal Board, the ruling, is something the ministry should study very much, because you're being hit on both sides. You're not talking about identifying sites, but the arbitrary way the government came about intensification also has an impact on the schools themselves, and that's why the growth of portables is there.
The problem we have too is with the policy. John Sewell had asked if the policy of this planning could be reviewed every five years, because communities do change, and I think the Ontario Municipal Board ruling was on the basis of that, that if they were reviewing the policy every five years, just like the plan, maybe you can also have some sort of input there.
I just want to ask you to reflect on whether the government should have the policy being reviewed every five years so that if there are changes like intensification the arbitrary way, a school board could have some input into those kinds of strategy. Would you like to see that?
Mr Adamson: Yes, certainly. Our school board has been a consolidated school board now for 25 years. The problems that we've had with portables have been around for 25 years, and if we review it just every five years, I think it will just continue, the situation that we're in now just continuing. In the figures that I did mention of the number of schools we require, it's predicated on the fact that 30% of our students are still in portables. So I'm not quite sure the --
Mr Curling: What I was saying is that the community had changed. As a matter of fact, the growth has gone to an extensive manner where you have to put people in portables. The way this Planning Act is going about, you cannot change the policy, and if they have been changing the policy, you'd have a chance yourself to say, "Let's have another look at what is happening in our community in regard to the policy and also the legislation." But in this government it says you cannot change the policy. You cannot review the policy every five years, but you can review the plan.
Mr Hayes: Not at all.
Mr Curling: But that's --
Mr Steffler: If I could elaborate on the seriousness of where we are because of the existing Planning Act, while Ken has said that we are over 30%, that's the average of the whole area. There are some areas which are 160% over, and these are these review areas that we have thought about. So the urgency is there to do something now, and to review it every five years, certainly I can't see anybody having a problem with that, but to get it in place where we have some say to understand what is happening.
The Chair: Mr Curling, we've run out of time. We want to thank the Dufferin-Peel Roman Catholic Separate School Board for taking the time to come and for sharing some of your suggestions with this committee.
Mr Adamson: Thanks for the opportunity.
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ASSOCIATION OF MUNICIPALITIES OF ONTARIO
The Chair: We invite the Association of the Municipalities of Ontario. We welcome you and we'd like to ask one of you to introduce everybody at the table or not sitting at the table but present.
Mr Bill Mickle: Thank you very much, Mr Chair. Committee members, good afternoon. I am Bill Mickle, reeve of the town of Exeter, president of AMO, the Association of Municipalities of Ontario.
As background just briefly to the members here, AMO, the Association of Municipalities of Ontario, is a non-profit organization with membership of approximately 700 of Ontario's 817 municipal governments, representing over 95% of the province's population. The mandate of the organization is to promote, support and enhance strong and effective municipal government in Ontario.
I would like to begin by thanking the committee members for allowing AMO the extended time period to present its briefs today in response to Bill 163. Given the diversity and the impact of the bill on the municipal sector, the association has developed two responses, which will be addressed separately today. A delegation from AMO's planning task force will first present the association's response to the proposed Planning Act amendments. A second delegation, from AMO's local government disclosure-of-interest task force, will then present the association's response to the Local Government Disclosure of Interest Act and to the Municipal Act amendments as they relate to open meetings and the disposal of real properties.
Mr Chair, with these two presentations, I would suggest that the presentations be equally split at 45 minutes each, and I would ask that you accommodate this request.
The Chair: Can I ask you, would you prefer questions to be asked at the end of both presentations, therefore, or will you be reading for 45 minutes approximately or talking to the issue for 45 minutes?
Mr Mickle: There are two distinct, different presentations, so they'll each be handled in a normal way of presentation and questions.
The Chair: Very well.
Mr Mickle: Fine. Thank you.
I would like to introduce the AMO representatives who will be presenting our brief concerning the Planning Act amendments. Councillor Terry Mundell, from the county of Wellington, is AMO's first vice-president and has chaired the association's planning task force for the past three years. With him, we have the co-chair of that task force, Peter Atcheson, who is the planning director for the city of Brantford. Also present today is Rash Mohammed, the commissioner of planning for the region of Halton. Rash is also a member of AMO's board of directors and past chair of the regional planning commissioners.
Terry will be presenting our brief, outlining some fundamental amendments that the association believes are necessary if the reforms contained in Bill 163 are going to work and actually deliver the improvements to Ontario's planning system that municipalities and many other interests have been seeking and advocating.
But first I want to take a moment to point out the connection between this part of our presentation and the principles for provincial-municipal reform contained in AMO's major policy paper, Ontario Charter: A Proposed Bill of Rights for Local Government.
The Ontario charter is based on principles which echo one of the principles of planning reform, that is, municipal empowerment. For municipalities, this is a principle which stands for local autonomy, greater municipal decision-making authority, permissive provincial legislation and a clear division of provincial-municipal responsibilities. We believe that planning reform is an opportunity for demonstrating how these principles can be implemented.
It is important to note that next to the Municipal Act, the second most significant piece of legislation affecting municipal operations is the Planning Act. Therefore, we believe it is crucial that the province's planning reform, through the stated commitment to empower municipalities, becomes a model for demonstrating how a new relationship between the province and municipalities can be forged.
It is within the general theme of the principle of greater municipal decision-making authority that AMO has prepared its response to Bill 163. During initial discussions with the Minister of Municipal Affairs on the Ontario Charter, the minister stated that Bill 163 adheres to, and implements, this principle. The association does not agree and has identified key amendments which, if adopted, would more closely bring planning legislation in line with both the Ontario Charter and the principles advocated by the government of Ontario.
Mr Terry Mundell: AMO initially welcomed the introduction of the government's planning reform package, because the association and its members believed that improvements to Ontario's planning system are badly needed and it is in everyone's interests that the process move forward. However, the association believes that Bill 163 contains some fundamental flaws and will not lead to the improvements to Ontario's planning system that municipalities and many other interests have been seeking. AMO's assessment is that while the legislative amendments contained in Bill 163 are a step in the right direction, they fall significantly short of fulfilling the principles for reform, that is, greater municipal empowerment and a streamlined planning process with the integration of social, economic and environmental policies.
AMO has worked diligently on planning reform for the past three years, and we've articulated major concerns at each stage of the process. It is therefore with great disappointment that we continue to have some major concerns at this late stage in the process, when the government is ready to entrench changes in legislation. We believe this is a non-partisan process. We believe it is a process which deals with municipal roles and provincial roles. We believe it deals with provincial planning in that atmosphere. We believe the bureaucracy has developed this particular document, but it is now time to talk, politician to politician, about accountability -- accountability to the electorate, accountability to our ratepayers -- those decisions which are made by us, the politicians.
This particular presentation therefore focuses on major amendments to Bill 163 which the association insists are necessary if the reform package is going to work and receive the support of Ontario municipalities. What we'd like to do, first of all, is assess the principles.
At the beginning of the Sewell commission's work, the association established principles and objectives to guide planning reform. These particular principles and objectives largely mirror those promoted by the province.
Province's principle of increased municipal control leading to greater accountability and openness: AMO supported greater accountability, increased municipal decision-making authority and a limit on provincial and judicial review of municipal decisions. As noted previously, the Ontario Charter principles also support this.
Province's principle to cut red tape to make the planning process faster and more efficient: Again, our association called for timely decision-making and integration of planning and environmental assessment processes.
Province's principle of environmental protection through clear policy statements that integrate social, cultural, economic and environmental values: AMO supported the adoption of a comprehensive set of policy statements which set out economic, environmental and social goals and objectives within which municipalities would define specific implementation policies for balancing these often conflicting goals.
It's AMO's position that the package of planning reforms has several flaws that work against achieving each of the principles. The main failings are summarized.
Increased municipal control leading to greater accountability and openness: Our evaluation is that the province has strengthened its policy direction and control over land use decision-making, yet only minimally reduced its own powers in the legislation. Putting it in another way, while municipalities are given the authority to make most development decisions, this is constrained by more restrictive policies and legislation which give the province extraordinary powers to prescribe decision-making at the local level. The reasons for this evaluation and key recommendations for amendments to Bill 163 follow and are in appendix A, which contains the summary of those recommendations.
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The policy statements continue to be too directive and prescriptive, focusing on means, not ends. Coupled with the change to the more rigid enabling cause "shall be consistent with," municipalities will have limited decision-making authority on the form and nature of development in their communities. It is generally agreed, by the province and other interests, that "be consistent with" is a stronger and more rigid enabling clause. There is less agreement, though, on what it actually means and, therefore, until such time that case law can provide some understanding of this new terminology, there will be significant questioning and challenging of its application.
Furthermore, it is agreed, and the government has stated in its paper A New Approach to Land Use Planning, that there are bound to be situations where two or more of the statements apply to a local area, and where it may not be possible to be consistent with all applicable policies. The "have regard to" status readily acknowledges the need to balance sometimes conflicting policies whereas the "be consistent with" clause implies that planning decisions must conform with each of the policies.
The association believes the term has been applied effectively and that there is no need to tamper with the clause. In fact, AMO and other groups have argued that the province's failure to produce a clear, comprehensive and balanced set of policies has been one of the most significant barriers to the effective use of this policy tool.
A second concern with this section of Bill 163 is that it changes the list of public bodies to which this section of the act applies. The existing act states that every municipality, every local board, every ministry, board, commission or agency of the government, including the municipal board and Ontario Hydro, "shall have regard to." Bill 163 excludes application of this section to provincial agencies and commissions, Ontario Hydro, and ministries other than the Ministry of Municipal Affairs.
This is contrary to the Sewell commission's recommendations and the association's position. The association agrees with many other submissions put forward to the committee that all arms of the province should have to play by the same rules. Therefore, AMO strongly believes that this section of the act should not be changed and that subsection 6(2) of Bill 163 should be deleted, which is our recommendation 4.
Furthermore, uncertainty remains about the status of other provincial guidelines and directives on land use planning, giving the province further opportunities to prescribe local decisions. The act should specify that these shall be of an advisory status only. In speaking to a member from the Ministry of Environment and Energy, a bureaucrat, I asked him a question on what exactly "advisory status" means and he told me. The advisory status of his particular guidelines means that he advises us to follow the guidelines or he advises his staff to take us to the Ontario Municipal Board.
Bill 163 amends section 2 of the Planning Act, matters of provincial interest, by applying this section inappropriately to municipalities and not to other ministries and agencies of the crown.
First, municipal decision-making should be governed by policy statements and, as such, this section should not apply to municipalities, as is currently the case in this section of the Planning Act.
Second, as recommended by the Sewell commission, section 2 of the act should apply to all ministries and agencies of the crown and, as such, provide consistency and guidance across all parts of the government on the exercise of provincial responsibilities under the act, our recommendation 2.
The Ministry of Municipal Affairs has stated in its background document on planning reform that the new policy-led planning process will "still ensure a level of flexibility that will allow for local considerations and objectives." However, nowhere in the act is this recognized. For example, the new purpose of the Planning Act section recognizes the province's lead role in policy but does not acknowledge the municipal role. It ignores that the Planning Act also provides for a land use planning system within which municipalities have the authority and responsibility to make decisions on the application of provincial policies to their local areas.
This section should be amended to state that the act should provide for a "land use policy system led by provincial policy which respects the decision-making authority and accountability of municipal councils and the economic interests of the participants." Furthermore, the act should also be amended to include a section which states that policies are to be interpreted with reasonable flexibility in local application.
The act gives the minister the extraordinary provincial power to require regard to any other matters prescribed. This amounts to enabling the province to regulate municipalities in land use planning on any matter, thereby circumventing the legislative and public consultation process and perpetuating the uncertainty at the local level regarding provincial intentions to intervene in new policy areas.
The province should only be able to regulate or prescribe on those matters for which it is given explicit authority under the act. In this way, municipalities and other interests can be fully consulted on the policy question as to whether the province should have this authority in the first place. Our recommendation 2 deletes these provisions.
Bill 163 does not repeal the crown's extraordinary power to declare a provincial interest immediately prior to an OMB hearing or to confirm, vary or rescind decisions of the OMB on matters of a declared provincial interest. The result is that a declaration of provincial interest can be made very late in the decision-making process, at the stage of an appeal to the Ontario Municipal Board. The removal of this power was recommended by the Sewell commission and continues to be supported by AMO, our recommendation 3.
The act does not acknowledge that an approved official plan and subsequent planning decisions which conform to the approved official plan should be deemed to have regard to provincial policies, such as is the practice in other provinces. AMO's recommendation 7 calls for explicit recognition of this in the act.
The act provides for the establishment of new municipal joint planning authorities without giving first priority to utilizing and supporting existing county planning structures. Bill 163 does not differentiate between municipalities and areas where there already exists a county planning structure and/or official plan versus those where neither of these conditions applies.
Bill 163 therefore permits the creation of a municipal planning authority in counties that may have established county planning operations, or that may be prescribed by regulation to adopt an official plan. Not only could this lead to a duplication of services in areas where county planning structures currently exist, it could undermine existing county planning operations or create conflicts within counties. Ultimately, priority should be given to first utilizing existing county structures for joint planning, prior to the creation of new structures.
The mechanism for ensuring this should be a requirement that local municipalities situated within counties with official plans or those prescribed to adopt one must obtain the consent of their county councils as a precondition for the establishment of municipal planning authorities. AMO also believes that county finance issues in general and the specific reference to exempt a local municipality that is part of a municipal planning authority from paying the county levy for land use planning purposes should not be legislated in the Planning Act. Existing county official plans have evolved in those counties which first established planning departments through the use of the county levy. This provision will discourage the formation of planning departments in counties and will prevent new county official plans from evolving. Recommendations 12 and 13 deal with these issues.
The delegation of the authority to approve local municipal official plans and plans of subdivision is only given to regional municipalities, and not to counties with approved official plans or those prescribed to prepare one. As such, Bill 163 has created an imbalance between counties and regions. The association maintains that the bill should extend the same privileges the regions enjoy regarding the approval of official plans and plans of subdivision of local municipalities to counties that have approved official plans.
The act includes the province's intent to prescribe the mandatory contents of official plans, which would include detailed requirements of things that must be included in the official plan, which would thereby also prescribe the distribution of planning responsibility between the two tiers of local government. This not only adds another set of specific requirements for a municipality, but represents a blatant distrust of municipal governments and the ability of the professionals who work for them to write the table of contents of their own official plan. Recommendation 15 deletes this provision.
We want to talk about cutting red tape to make the planning process faster and more efficient. Greater municipal decision-making authority is recognized as a significant measure not only for achieving local empowerment but for also streamlining the process and ensuring more timely decisions. In addition to the above, the association recommends the following amendments to Bill 163 to ensure that this principle is achieved.
The measures to streamline and integrate environmental assessment and planning process for municipal infrastructure are insufficient, since the Planning Act does not state that the completion of the optional process will mean that the approved plan will be deemed to have met the requirements of subsequent processes under the Environmental Assessment Act. Recommendation 16 amends the Planning Act to ensure that the approval of an official plan or amendment which has followed the prescribed process means that the steps under the Environmental Assessment Act will not have to be repeated.
A significant initiative which would help streamline the process which Bill 163 does not address is the council authority to delegate the approval of official plans and plans of subdivision and consents to a committee of council or municipal official. Recommendation 17 amends the act to provide for this delegation.
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Bill 163 includes an amendment which will require that councils wait 30 days after a public meeting before adopting an official plan. This requirement is arbitrary and presumes that councils will not be able to judge, based on the input received at the public meeting, whether further time and deliberation is required on a matter. We therefore recommend deletion of this amendment, recommendation 26.
The province will prescribe requirements for public meetings, for plans of subdivision, even though during the official plan or official plan amendment stages, public meetings are already required and in many cases deal with the matters of public interest which arise at the stage of subdivision approval. Recommendation 20 deletes this provision.
Appeals of a change in condition of a plan of subdivision can be made by any person or public body, instead of just those requesting and affected by the changed condition. Recommendation 21 confines notice to only those parties affected by the changed condition.
Automatic appeals are part of the act in that all objections of plans of subdivisions and consents go straight to the OMB and do not have to go through a request for referral to the approval authority first for a test of validity. AMO recommendation 23 calls for objections to first be referred to the approval authority.
The act includes a provision allowing municipalities to use alternative dispute resolution techniques, but no recognition or support of this alternative process is provided for in the legislation. Recommendation 24 calls for the recognition in the act that non-participation in alternative dispute resolution can be deemed a reason for refusing a referral request.
Furthermore, objections to municipal official plans and amendments, plans of subdivision and consents are filed at the end of an approval authority's decision-making process, as opposed to at the front end. Consequently, objectors can wait a considerable period of time before filing a request for referral and there is no support for the use of alternative dispute resolution processes to resolve objections before a request for referral to the OMB is filed. Recommendation 26 amends the process for official plans and amendments such that once an approval authority has received an application, it should immediately notify all parties and require that objections be filed within 30 days. This would allow councils to resolve disputes and make recommendations for changes, instead of just waiting for the 150 to 180 days to elapse while the approval authority is making a decision.
Bill 163 once again gives provincial ministries special status by allowing that public bodies, unlike persons, are not required to file objections to official plans prior to or during municipal public hearings. This perpetuates the existing situation, which involves interventions very late in the decision-making process. This special treatment for public bodies is absolutely unfair and once again allows provincial ministries to intervene late in the process without having to provide early input. Recommendation 25 deletes this provision.
Environmental protection through integration of social, cultural, economic and environmental policies: The policy statements and legislation will to a great degree meet the principle of environmental protection. However, the principle addresses the integration of social, cultural economic and environmental values. AMO believes that Bill 163 does not adequately deal with the issue of integration and the balancing of the numerous policy interests and land use planning. The following changes are therefore recommended:
As recommended previously, the association does not support changing the enabling clause to "be consistent with." AMO believes that "have regard to" recognizes the necessity of balancing a number of policies and considerations in making a decision, whereas "be consistent with" implies conformity with each policy without recognition of possible conflicts.
There is no commitment to review provincial policies on a periodic basis, whereas municipalities are required to review their official plans every five years. This is yet another key recommendation made by the Sewell commission which the government has excluded from Bill 163. The Planning Act should be amended to require that the Minister of Municipal Affairs give consideration every five years to whether there is a need to review and revise provincial policy statements, recommendation 6.
All ministries of the crown can request referral of or appeal municipal plans, as opposed to just the Ministry of Municipal Affairs, and therefore there will not be one provincial interest, voice or position on local planning matters. Municipalities will have to continue to deal with individual ministries who often do not agree with each other.
Recommendation 8 amends the act so that only the Minister of Municipal Affairs may file an appeal on behalf of the crown.
In conclusion, the association supports the principles for planning reform, but has argued in this presentation that unless substantive amendments are made to Bill 163, the planning reform package will not work and will not provide the improvements to Ontario's planning system that municipalities and many other interests have been seeking. The association therefore insists that its recommendations for major amendments to Bill 163 are necessary if the principles for reform are to be achieved.
During the past several weeks the committee has received numerous deputations and presentations on Bill 163. We have also been reviewing this input and can confidently say that a number of our concerns and recommendations have been echoed and supported in many of these submissions. There's a lot of support for changes to Bill 163 and we urge you to give those serious consideration.
We also believe that our recommendations improve the necessary balance that policies and legislation must achieve between the various interests in land use planning: municipalities, provincial government, the development industry, environmentalists and the citizens of this province. Achieving this balance is crucial since environmental protection, economic growth and community economic development are inextricably linked to planning policy and legislation. Therefore, it is imperative that planning reforms be balanced and work towards achieving the principles agreed to during these three years of discussion and debate.
Thank you very much for your time.
The Chair: Thank you. There are approximately six minutes per caucus on this matter. Government members?
Ms Haeck: In the absence of other members -- you go first, then.
The Chair: If you like, Mr Eddy.
Mr Eddy: Thank you for your presentation and the hours and hours of work in presenting it. It's unfortunate that you found so many details, and I feel that I've been misled somewhat because I understood that AMO was on side with the new act -- I think we were told that on several occasions -- and here I find that you're supporting the principles but many of the things you disagree with. I see you're insisting -- I noted that word "insisting" -- on some changes, so thank you for presenting them so forcefully.
We've had a presenter say that what we need to do now -- we have the bill, we've heard a lot of presentations on it and a lot of requests and demands for changes -- is take some more time, that this doesn't need to be passed before the end of 1994, and what we should do is look at the whole planning program that's being pronounced here: the policies, which are not under review and there is conflict between them, the legislation, the regulations -- which we don't have access to; maybe you've seen some of them -- the proposed amendments by the government that will be coming forward, and the implementation guidelines and the whole package. That would take some time. Would you like the opportunity to do that, or is that too big a job?
Mr Mundell: Thank you for the question, Mr Eddy. I think it's very important, and one of the things that we've said as an association from day one is that it's very hard to understand what the effects of this particular planning reform will have on the province of Ontario without the ability to see the whole package. We spoke forcefully early in the process that we wanted to see the policy, we wanted to see the legislation, we wanted to see the regulations, the implementation guidelines, all as a package so that we could totally understand how this would have effect on municipal government in the planning process today. We're very, very supportive of that. We believe we need some time to review this package as a whole instead of piecemeal.
Mr Eddy: We're feeling much more that way too, I'll tell you, as time goes by. Mr Grandmaître.
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Mr Grandmaître: I think your presentation would have been very much shorter if you would have told us what you like about this bill. We could have taken 10 minutes. There isn't much that you do like or appreciate with this bill.
Were you disappointed that -- I think Mr Sewell did do a good job in consulting people right across the province and I thought that Mr Sewell had done a good job with AMO. Are you disappointed that this bill doesn't really reflect the understanding that you had with Mr Sewell?
Mr Mundell: There's no doubt there's disappointment in that venue. Mr Sewell and his commission went through a very open and public process throughout the province of Ontario and probably one of the best public consultation processes any government has ever been involved in, and the commission I think did a good job in that. What has happened, though, since that process is that it has not been very public and very open, the forum to discuss these issues. Mr Sewell's work was not reflected in Bill 163 totally, and we feel that his work through the public process has indeed changed. So, yes, we have some disappointment in that.
Mr Grandmaître: Would you like to see the regulations before this bill is given final approval?
Mr Mundell: Absolutely.
Mr Curling: We have some concern here too in respect of -- and I think you highlighted that, that the entire legislation, and regulations and the hundreds of amendments that may come in afterwards, are based on this policy, but again the premise immediately is that the policy is not under discussion, not under review. That's one part.
The other part, as I asked quite a few of the presenters here, is that, like the official plan, every five years it should be reviewed because of just the dynamics of how cities grow or change. What is your feeling about reviewing that policy every five years so that we can reflect the growing and the diversity of cities?
Mr Mundell: Our association's position is very supportive of that. We firmly believe, as did the Sewell commission, that policies should be reviewed every five years. I think the reason for that is that we can continue to have a Planning Act which meets the needs and changes of the province of Ontario and how we deal with global markets. I think it's extremely important from an economic basis that the Planning Act is able to reflect the circumstances of the day, and a five-year review is very important to that and we're very supportive of that.
Mr McLean: That's the issue I wanted to follow up on, had my questions on: with regard to the five-year review. You know and I know, as municipal councillors, what you spend on planning and consultants and planners. I'm wondering if five years is long enough. Five years goes pretty quickly. Are we going to review the Planning Act every pretty near term of office of a council? Would 10 years maybe not be a more suitable time? You could do it in less, but it would have to be reviewed in 10, or it could be reviewed in less if you've seen the need to happen. But to say that it's got to be reviewed every five -- I'm wondering if maybe we're being pretty tight on that schedule.
Mr Mundell: I think the difference in what we speak of, we don't believe the Planning Act needs reviews every five years. Believe me, I don't need to go through another three years like the last three. I think what we believe is that the policy statements need to be reviewed every five years to see whether or not those particular policy statements are standing the test of time. So there is a separation between the two issues, as we see it.
Mr McLean: Broad policy statements can mean anything. They can be reviewed till the cows come home, but it doesn't really matter. It's all right to review them but if you're not going to change them, then nothing's going to happen.
I want to ask you a question with regard to delegating authority to staff. I know there's a problem on a lot of the delegations we've had and the wardens of the counties with regard to the counties not having the approval process in place which we think they should have. To delegate authority to staff on official plan amendments or on minor variances that are not being challenged, do you think that that's the right thing to do?
Mr Mundell: The delegation of authority to staff is really a recommendation which we have which actually represents some situations which happen in the province of Ontario right now and work quite well in those particular areas. Ottawa-Carleton happens to be the one that comes to mind where that authority is delegated and it works quite well. It's permissive authority. It's not something which must be done; it's something which may be done. So we believe that that's an appropriate action.
Mr McLean: We've had some delegations that have suggested that perhaps there should be an OMB deadline. Once they've wanted to proceed with a hearing, there should be a process whereby there is a deadline when that process should end. Do you think there should be a deadline? It's a tough one whether we should, but there have been some who have made that recommendation, and I'm wondering what your association thinks of that.
Mr Peter Atcheson: If I understand the question correctly, you're suggesting that the board be given a deadline when it must hold a hearing?
Mr McLean: Yes.
Mr Atcheson: We would certainly concur with that. I can give you an example in my municipality where one objector held up a plan of subdivision. It had an official plan amendment that had been approved; the draft plans of condition of the subdivision had been approved. We changed one zone from a park to a single-family residence and we were 18 months before we were able to get a hearing in front of the board.
Mr Eddy: And what about the decision? How long for the decision?
Mr Atcheson: The decision was rendered in about 40 days, I believe.
Mr McLean: I've got three minutes left, so I'll just do a couple of short questions here. The other question I have is with regard to the minor variances. A lot of people have said that we still want the OMB to have that final appeal there. They indicate to us that 6% of the OMB hearings are on the minor variance process, and very strongly a lot of people, the majority by far, think that we should maintain that process of the OMB referral for minor variances.
Mr Atcheson: The position of AMO has been that this matter should sit with local municipalities. If local councils can pass the bylaws in the first instance, they certainly should be able to vary them or amend them without the requirement of the Ontario Municipal Board being called in. Councils in many other areas have far higher responsibilities that are not subject to any appeal or review at all.
Mr Bill Murdoch (Grey-Owen Sound): Just a short question, and I appreciate your brief and thank you very much for bringing it to us, but I'm like Mr Eddy. I'm very surprised that you have so many problems with it because many a time the minister stood in the House even and told us that AMO's right on side and agrees with everything we're doing and that we should not be telling him that AMO doesn't support us. I know this government's always talking about the cooperation and the partnership it has with its municipalities. Can you explain maybe what would happen to the partnership if this bill's rammed through like so many other bills that they have?
Mr Mundell: I think maybe if I can initially clarify, the association's position has been from day one that we do support planning reform. In no way, mean, shape or form should that be construed as this association supporting Bill 163, and there is a substantive --
Mr Murdoch: I guess maybe the minister misunderstood that. I can understand that.
Mr Mundell: As far as the relationship between the province and the municipal sector is concerned, in terms of Bill 163 moving ahead, obviously it is one which we have grave concern on. Bill 163, to our liking, is a step by the province to move into municipal decisions. It really is. We think that the present act in Bill 163, there's not a lot of substantive change in terms of municipal empowerment. We firmly believe that it's a government intrusion into municipal decision-making and if we are being elected and we are being accountable for those decisions, then let us make them and let our ratepayers tell us every three years at election time whether they like it or not.
Ms Haeck: I wanted to ask you a couple of questions. On page 3, section 2.1.1, you talk about the whole issue of "shall be consistent with" and you obviously feel that is far too strong. Obviously, there are other folks who have presented to us who would like it to be "to conform with," as opposed to what we are suggesting, so that they would wish it even stronger. Their concern relates to, as well, page 8, section 2.2.4. This is your recommendation 20, which relates to public meetings and you say again there's a prescription of requirements for public meetings.
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There is a sense among my constituents, and I can show you newspaper articles from the last few weeks, where they are extremely concerned about where local councils, to their minds, have ignored them entirely and have ignored environmental issues, have ignored heritage issues, and as a result, they feel that the stronger the policy statements are, the better, and that the public should be as involved as it possibly can be. I have to say that I support them in that, and your remarks would be appreciated.
Mr Mundell: Yes, thank you for the question. I guess we want to talk first of all about the clause "be consistent with," which is a stronger and more rigid enabling clause. What it does in our minds is tend to affect the interpretive ability of a local council to make a local decision understanding the local situations.
This great province of ours is not the same from one end to the other, and we all realize that, and we believe that we as a municipal council need the ability to try and adapt and interpret local situations that we can then put the proper plans and policies in place so that our municipality can survive and so that our people are best represented. We believe there has to be that interpretive ability, and we don't believe the new clause allows us to do that.
Ms Haeck: Just a quick interruption here: You don't believe that the general nature of -- and they are relatively general -- the policy statements that have been put forward allow you the flexibility to recognize your local situation? Because there are definitely those citizen ratepayer groups, environmental groups who have been before this committee who feel that they should be much more prescriptive than they currently are.
Mr Mundell: Our feeling is that the policy statements are just the opposite. We feel they're too prescriptive. We feel they're too directive. We feel they don't allow us any opportunity whatsoever to move to interpret local situations. We have other groups on side with that. The home builders' industry are on side with us on that same particular issue.
Ms Haeck: I disagreed with him too.
Mr Mundell: Some of the economic development issues which we talk about across the province -- we believe that the policy statements will not lead to better and faster decisions. We just don't believe that.
To your comment about public involvement, and I want to clarify that this association is not by any means against public involvement in this process: This association believes that the involvement should come at the front end of the process for everybody. There's no problem whatsoever with the public getting involved. We prefer that, and we prefer that to help us make decisions which represent our ratepayers and our municipalities. So I want to make that very clear.
Under the issue of plans of subdivision and the extra public meetings: We believe that it's a front-end process that your official plan, your official plan amendments and your zoning bylaw amendments all require public processes to deal with those issues in terms of plans of subdivision, and we believe that that's where the public involvement should be: at the front, not at the back.
Ms Haeck: There are other members who wish to raise some points so I will defer to them, although I don't agree with what you're stating.
Ms Harrington: I'm glad to hear that basically we're starting from the same point, and that is that the planning process needs a lot of reform. We believe that we need accessibility for the public, timeliness of decisions and a fairness of the process.
When we were in London a couple of weeks ago, we heard from Michael Smither, who is with Municipal World magazine, and he expressed to us that the people of Ontario are feeling isolated, that was his word, from the process, and we have heard from several citizens' groups as well.
My question to you is with regard to what I like to call the Dale Martin process, and that is, he wants to change the nature of the process so that people are involved from the front end and therefore the process will go more smoothly, will go more quickly and will save money, and that's what we want as well, and encourage development and encourage competitiveness across this province. Do you not feel that changing the nature of the planning process in this way of citizen involvement will be the direction to go?
Mr Mundell: I guess to clarify once more, there's no doubt that this association stands firmly in its regard that the citizens of the province of Ontario should be involved in the planning process, and there's no doubt that we believe, to make this process work better, that they as well as all other agencies of the province should be involved in the front end so that we can make this process work. That's our position.
The disagreement comes in that Bill 163 we do not believe does that. We believe that there are substantive flaws and substantive changes needed to make that process be front-end, not back-end. And those particular recommendations which we have put forward we believe help to achieve that goal.
Ms Harrington: Thank you for your suggestion.
The Chair: Thank you very much. We've run out of time for the first half of the presentation. Please move on.
Mr Mundell: Thank you very much for your time.
Mr Mickle: Thanks again, Mr Chair. The next portion of AMO's presentation will focus on the Local Government Disclosure of Interest Act and the proposed amendments to the Municipal Act as they relate to open meetings and the disposal of real property.
AMO has considerable interest in the content of this legislation and appreciates the opportunity to provide comments. The association has prepared a detailed response to the draft legislation as well as an abridged report, both of which have been submitted to the committee. The abridged report focuses on the major concerns of the association to the various proposals set out in the legislation and will be the reference for today's presentation.
My colleague John Harrison, councillor, township of Delhi, will present AMO's response. John is a member of the task force which developed the association's response to these components of the bill.
Before John addresses the specifics of the legislation, I would like to comment on an issue which was not referred to in the legislation: that is, the operation of the commissioner's office. The association is quite concerned with the lack of information provided on how the commissioner's office will be administered, in particular the funding arrangements for such a body.
AMO has continually been advised that an announcement by the minister would be forthcoming, but to date the association has not seen or heard any mention of this matter which may have significant financial implications for the municipal sector. We urge the province to provide further details on this component of the reform as soon as possible. I'll ask John to take us through our submission.
Mr John Harrison: Mr Chairman, members of the committee --
The Chair: Excuse me, John. Mr Hayes has a comment.
Mr Hayes: Bill, on that point about how the commission is going to be funded, I think we've said this several times and I'm actually surprised if it hasn't been communicated to you that it will be funded by the province.
Mr Murdoch: When did you write your letter?
The Chair: All right. Anyway, there's a point of clarification.
Mr Hayes: Who do you suggest, Bill?
The Chair: Mr Hayes, that's fine. Mr Harrison, please continue.
Mr Harrison: It's nice to hear that the reason we haven't heard about the structure and the funding of the commissioner's office is the fault of Canada Post rather than the fault of anyone else. We certainly look forward to receiving the detail of that as soon as possible.
It's not my style to read a brief, so I'm not going to read this one to you. I will make some comments and highlight what I see as the important things. I'm sure that you'll all have lots of spare time to read the brief at your leisure.
There has been a long history of consultation in regard to this particular matter. I want to acknowledge at the beginning of my presentation that many of the issues that AMO has raised during the period of that consultation have been dealt with to our satisfaction in this draft legislation. That's not to say that we're entirely satisfied, and I'm here to highlight the issues with which we are not entirely satisfied, but many of our concerns have been addressed.
The editorial issues which we've identified have been provided to the ministry, and we live in the assumption that since those are all so clearly justified they will be coming forward to you as amendments to the draft in due course, so there aren't many editorial comments in this particular paper. Having said that, our first point is in fact to a certain extent editorial.
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The legislation requires that after the disclosure of a pecuniary interest at a council meeting, the member "shall immediately leave the meeting and remain absent" etc. We have two editorial problems with that. It's the standard practice for municipal councils to have an agenda item at the beginning of the agenda for disclosures of interest. If in fact I have to disclose my interest under an agenda item at the beginning of the meeting and then immediately leave the meeting until after that matter has been dealt with, then I'm going to have to miss most of the meeting rather than the specific part of the meeting that relates to the particular interest that I may have. The use of the word "immediately" is clearly inappropriate.
Secondly, we would like to clarify the phrase "leave the meeting." We're concerned that it might at some point in time be construed by some that if one rises from one's place at the council table and removes oneself to the back of the room, one has left the meeting. We would suggest to the committee that it be clarified that the intention here is that an individual in fact remove himself entirely from the room in which the meeting is taking place.
I'm going to go through fairly quickly here in terms of skipping from point to point.
We're requesting that the ministry provide you with a definition of the term "gift and personal benefit" so we'll know, when something is offered to us for some reason or another, whether or not it is in fact a gift which is covered by the legislation. AMO is always chewing on the government's ear and the Legislature's ear to give us the opportunity to have local decision-making. This is perhaps a departure for AMO. In this particular case we're requesting the opposite: We think that if in fact there's a $200 maximum for disclosure of gifts, that should be standard across the province and the confusion resulting from individual municipalities being allowed to change that maximum is unnecessary and may burden the commissioner in the performance of his or her duties.
We have a concern that there are a number of members of municipal council who sit on two municipal councils at the same time: a lower-tier council and an upper-tier council. The legislation as it's drafted at the moment appears to necessitate a filing of financial information at both levels. We feel that's unnecessary duplication and that the legislation should be amended to indicate that the disclosure should be filed at the lower-tier council level when that particular situation pertains.
We have from the beginning indicated that we felt that the requirement for the disclosure of financial information by members of council gives an undue advantage to non-members of council at subsequent elections. We believe that the legislation should be changed to require that candidates for municipal council should be all on the same level playing field and that all candidates for municipal council should file the same information that members of council are required to file once they're elected.
We feel that there are two problems we can identify, with what we know at the moment about the commissioner's office. Those are: In the first place, we feel that the legislation should be enhanced to identify the role of the commissioner in giving advice and counsel to members of council and members of the public in regard to the interpretation of the act. That is an important role that you might be able to read into the legislation as it stands but hasn't been clearly set out, and we feel it's an important enough role that it should be clearly set out in the legislation.
Further, there's no provision in the legislation requiring the commissioner to notify a member of council once a complaint against that member of council has been filed. This is so obviously an issue of fairness that we can only assume that it's been omitted by error. We suggest that the government seriously consider putting in a mandatory provision that when a complaint is filed with the commissioner, the commissioner must then tell the individual who's being complained about that such a complaint has been lodged.
It's been our position for some time that the purpose of the commissioner is to be the gatekeeper to the courts in regard to allegations of municipal conflict of interest. The legislation as it stands at the moment allows individuals a right to go to court after the commissioner has made a determination that in fact there is no breach that the commissioner feels justified taking to court himself or herself. We urge you to amend the legislation to make the commissioner a gatekeeper to the court process in regard to municipal conflict-of-interest allegations.
That seems so clear to us as an appropriate thing to do that it's hardly necessary to go on to the next point. However, if you should not heed that particular advice and allow individuals still to go to court after the commissioner has made a determination, we do think that the legislation should be amended to provide that the commissioner is not a compellable witness in regard to those particular proceedings when an individual is going to court. The commissioner has very significant powers of investigation. The commissioner will get together a very significant file about the affairs of an individual member of council against whom an allegation has been made. If the commissioner is compellable, all of that information, which would not normally be available to the litigant, will also be compellable. We don't think that's fair.
Secondly, we feel that it's going to hinder the commissioner in the performance of his or her duties if he or she is a compellable witness. If internally, inside the commissioner's office, an investigator feels that it's important to write a memo saying his or her view is this or that and subsequently the commissioner makes a different determination, if the commissioner is compellable that internal memo can be brought forward into court and questioned. What we think that will result in is that nobody in the commissioner's office will put anything on paper, and the whole functioning of the office will be made more difficult because any paper that's internal may be made available in subsequent litigation. We think the way to solve that is to have it specifically in the legislation that the commissioner is not compellable.
The current legislation has two saving provisions for the benefit of members of council. One of those is that the member of council didn't know that he or she was perhaps offending against the legislation. We feel that's been covered off in the draft that's before you. There is, however, also a provision in the current legislation for bona fide error. We think that particular provision should be carried forward and we've made recommendations as to how that could be done.
Let me put to you the situation where a member of a municipal council -- and I know this deals with school boards and other local boards as well, but I'm here to talk about members of council -- apprehends that he or she may have a problem and goes to the commissioner and/or his or her own legal counsel and gets legal advice. The advice from legal counsel and/or the commissioner is that no, there's not a problem, and then subsequently it appears to a judge that there has been a problem. We think that if someone has made every possible effort to be advised as to whether or not there's a problem, if it subsequently appears that there's a problem, contrary to that advice, he or she should have some sort of ability to receive some sort of diminution of penalty.
Second to last, the issue of the filing of financial disclosures. We realize that there's an issue here of paralleling at the municipal level the position that members of the Legislature are in. However, we have a serious, honest -- let me say to you again that this is an honest concern, that people who otherwise would run for municipal council, particularly in small municipalities, may well be deterred from running for municipal council by the fact that they have to hang out on the line information about themselves which everyone else, as members of the public, does not have to hang out on the line.
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We have, with the ministry, hashed over all sorts of possible ways of resolving this and the details of what might or might not be disclosed. However, we don't intend to do that again before this committee. What we would like to do is have the committee and the government seriously consider looking at the solution to this problem which has been discovered in the province of Manitoba.
Here I will refer you to the brief. On page 9, we've reproduced the provisions in the Manitoba Municipal Council Conflict of Interest Act which relate to this issue. Those provisions basically say -- I won't read them word for word -- that the clerk who is the holder of this information doesn't release it to every individual, or probably reporter from the local weekly paper, who wanders in to the front desk and says, "I'd like to see the member's file." The clerk's responsibility is, again, to be a gatekeeper, if you will, of the process.
If some member of the public has a concern in regard to a potential conflict of interest, that member of the public writes the concern down, writes down where he or she thinks the conflict may be, provides that written request to the clerk, and the clerk is then responsible for going to the information that's been filed in his or her office, reviewing that information and advising the member of the public as to whether or not there in fact appears to have been a contravention of the legislation or whether there might be a conflict arising.
I know it is not the tradition of the Ontario government to follow in terms of drafting legislation but to lead valiantly and have every other province in the country adopt what we so cleverly do here in regard to issues like this, but we think that here perhaps Manitoba is just a tad ahead of us and it would be a good thing for us to seriously look at this provision from Manitoba.
There is also, I'll just point out, a request in the brief that the same legislative protection that's afforded to members of the Legislature in regard to statements made in the Legislature and protecting those statements from subsequent civil action should be afforded to municipal councils. I'd be happy to respond to any questions.
The Vice-Chair: Thank you for your presentations. Each party has about eight minutes. We'll start with the PCs this time. Mr McLean.
Mr McLean: There was another group that wanted to deal with that very same issue, the Manitoba model, at our hearings, I believe, in Chatham. I happen to agree with that. I think it is a good model and it's there for people to see. I agree with what you're saying with regard to the conflict of interest. There is one area that I wanted to talk about, and that was the bona fide error. Perhaps you can just explain that a little more broadly for me.
Mr Harrison: Our position is that if a member of a municipal council takes all reasonable steps to inform himself about whether or not there is a conflict and acts on the professional advice he receives, and then subsequently it's found that the advice was in error -- even lawyers make mistakes -- the individual who has requested the advice, who has acted on the advice in good faith, should not subsequently be subject to the mandatory penalties that are in the act. This act says that if you are found in conflict, there will be a penalty imposed. We feel that if you are found in conflict but it is also discovered that you made every effort to avoid that conflict, there in fact should be no penalty, that it is the one circumstance under which the mandatory penalties that are contained in the draft legislation should not be imposed.
Mr McLean: Once a complaint is made and the commissioner does his investigation, the commissioner then would recommend whether or not there is going to be a hearing before a judge.
Mr Harrison: The commissioner decides whether or not he or she will take the matter to a judge. We say the commissioner should decide whether or not it goes forward; the legislation doesn't go that far.
Mr McLean: But the commissioner has done an investigation into their assets and liabilities or whatever, the disclosure. They have done an investigation of his disclosure and the commissioner determines that there is cause to go before a judge. You're saying the commissioner's evidence that he has cannot be used in the court of law.
Mr Harrison: No, no, we're specifically not. What we're saying is, under the circumstance where the commissioner has decided not to go to court -- the commissioner has looked at it, the commissioner has said, "No, we the commission, we the powers that be, should not take this to court" -- there's still a provision that says an individual member of the public can take the matter to court.
So what I'm saying is, if the commissioner decides, "No, we shouldn't go ahead," and a member of the public decides to go ahead in any case, despite the commissioner's determination, that member of the public should not then be able to subpoena the commissioner, bring the commissioner into court and force the commissioner to testify in court about either the internal operations of the commissioner's office or about information that the commissioner may have discovered during the course of his investigation which would not otherwise properly be before the court.
Mr McLean: So an individual could then decide he's going to take that person to court, regardless of what the commissioner finds, if he wants to.
Mr Harrison: That's right. But we say, first of all, the individual should not be able to take that matter to court. Second, if it's determined that an individual should be able to take the matter to court, the individual should not then be able to drag the commissioner, who has already made a determination that it shouldn't be in court, into the matter and have him as a compellable witness in court.
Mr McLean: I would have thought the commissioner's decision would have been final and that would have been the end of it, but apparently not.
Mr Harrison: If that's the determination of the Legislature, we will be more than happy. That is our primary representation.
Mr McLean: It's well founded.
"Shall leave the room immediately": You're so right with regard to when they look at the agenda and three quarters of the way down the agenda they've got a conflict. I hope the ministry is certainly going to take another look at this, because I think it should be changed, if that is what's in that amendment you're talking about; and the gifts section too.
I think your brief is very clear and I hope the ministry will look it. Bill, I think, has a question.
The Vice-Chair: Mr Murdoch, you have about two minutes.
Mr Murdoch: John, thanks for your presentation. I certainly appreciate it. You didn't talk too much about open meetings, and there are concerns here. Do you want to mention a bit how you feel about that?
Mr Harrison: Frankly, the concerns that we have about the draft legislation in regard to open meetings and disposal of property are purely editorial. We don't have, as an association, any difficulty with the direction this legislation takes in regard to open meetings and disposal of property.
The Vice-Chair: We'll move to the government members. Who would like to have a question? Ms Haeck, please go ahead.
Ms Haeck: We had, actually in Napanee, several people from Belleville come forward who had some very grave concerns about what was happening at their city council. What appeared to be concerning them was that the kind of procedural questions that you say seem to be consistent across the province are far from being that. Councils tend to follow their own processes, I wouldn't say in all instances but at least in some, so that consistency isn't necessarily a blanket statement that one can make. So I would suggest maybe that you look at the presentations that were made to us at Napanee by some of the Belleville citizens, because they definitely laid out some very strong concerns about the process there.
I did want to refer to page 4 of your brief where you refer to the number of disclosure statements. In the case of the elected member sitting on two councils, it's usually the mayor. It's only my own experience, so excuse me. I can see the nodding of heads, so my apologies. But the mayor is the one who sits on regional council on behalf of the municipality, and when he is sitting on regional council at this point, he is also making decisions.
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This is a bit of a stretch, I admit, but not everyone recognizes the names of all the mayors of the region and may in fact recognize that person as a regional councillor and may wonder why he or she cannot get information about the decision of that individual at the regional level, as opposed to having to then go into the lower tier. I'm just wondering why a copy of that disclosure statement could not be filed, even if it's just a straight photocopy, with the higher tier.
Mr Harrison: If I could respond, I did not suggest that the procedure of municipal councils across the province was consistent. Certainly, it's not. All municipal councils have control of their own procedure and there are many differences. Legislation does require that every council adopt a procedural bylaw and I would think that may tend to greater consistency over a period of time.
What I did suggest was that there's a fairly consistent practice of having an agenda item close to, if not at, the beginning of a meeting requesting members of council to identify their conflicts early in the meeting, and that's the problem we see with the use of the word "immediately" in the particular section that we pointed out. It's not universal, but I would guess you'd find 80% of councils had such an agenda item, if not more.
In regard to members who sit on two tiers, there are all sorts of different situations. It's not just mayors, certainly, who sit on two tiers. We just simply feel that keeping duplicate records, particularly in the circumstance where we've suggested that under the Manitoba model, which we very strongly put forward to you -- we think the Manitoba model may in fact be the solution to the problem we've identified about discouraging people from running for council. Particularly under a situation like the Manitoba model, if you have doublefiling of that financial information, what you're really doing is allowing double-dipping in terms of requests for information. You're putting two clerks in the position of having to express themselves on the same issue, and we just don't think it's necessary.
The information, when filed with a lower-tier clerk, will be available to any member of the public who wishes to have access to it, and somebody who is concerned about the actions of a member at an upper-tier council, whether or not there was a conflict, we would think would probably be an individual who would be sophisticated enough to know or to find out -- it's not going to be a secret -- that the necessary information they need to have to resolve their concern is in the clerk's office of the local municipality from which that member comes from.
The Vice-Chair: Mr Wilson now with a question.
Mr Gary Wilson: I'd just like to pursue this line a bit. You mentioned with regard to smaller municipalities, and I think the common wisdom, say, about smaller municipalities is that everybody knows everybody else's interests, that in fact you wouldn't even have to worry about the provision of that kind of information. But we know that's not true. Our information is that 40% of the conflict-of-interest court cases originate in municipalities of fewer than 5,000 people. So obviously this is a concern and there would be good grounds for providing that. Do you want to comment?
Mr Harrison: Let me go, and then Bill can follow up. We're not for a moment indicating that there's any less likelihood that there will be conflicts in a smaller municipality than in a larger municipality.
What we do say is that in rural, small-town Ontario where, as you say, everybody may well think they know everything about everybody else's business, in fact in many cases they don't, and if we force people, as a precondition of running for council, to write down on a piece of paper their significant assets and their significant liabilities and hand that to a municipal official so that it's in the town hall -- I mean, in my town probably in a week, 80% of the people walk through the front door of the town hall. Under this legislation, all any one of that 80% has to do is sort of take two steps to the right and say to the clerk, "I want to know everything that John Harrison owns and I want to know everything that John Harrison owes," and the clerk has to hand it to them.
While there may be good reasons for that information to be filed and to be available in a controlled manner, we think that may well deter good, capable people from putting their names forward as municipal councillors, and we want to avoid that if we can.
The Vice-Chair: Mr Mickle, did you want to comment?
Mr Mickle: Regarding the 40% that you mentioned, I would like to have it clarified. What do you mean, that 40% of the people who have been in conflict come from small municipalities? If that's the case, you're talking about the few people who come into conflict and the percentage that are from small municipalities. But as a percentage of the number of elected people, it's certainly not 40%. It's at a much, much lower number. So I think to throw out the 40% may be misleading.
Mr Grandmaître: How many are convicted?
The Vice-Chair: I think that is clear now. Mr Wilson, is it clear? Mr Hayes?
Mr Hayes: Forty per cent of the cases. That's what we're saying, right? Forty per cent of the cases, that's all we're saying, under 5,000.
The Vice-Chair: If you have a quick question, Mr White, you may go ahead.
Mr White: A very quick question: You were suggesting that municipal councillors might be discouraged from running if information about them was available, about their financial wherewithal, and yet I see that despite their knowledge of the complete, rather encyclopaedic knowledge that the Conflict of Interest Commissioner has in regard to members of provincial Parliament, many municipal councillors run for provincial office. I'm wondering why that would be.
Mr Harrison: We think, frankly, it's because the commissioner of conflict at the provincial level acts as a gatekeeper, not in exactly the same way that we're suggesting from the Manitoba model, but in a similar way. We suggest that if we can get past what information should be filed, and we've tried to do that, we then have to talk about access to that information. We would suggest to you that the information that's on file with the commissioner in regard to members of the Legislature is much less accessible to members of the public than would be the case under this proposal. What we're saying here is, okay, we'll file it, but let's have a system of access that controls that access and doesn't just make the information on the street for purposes that don't have any relationship to the reason for which it was filed.
The Vice-Chair: Thank you, Mr Harrison. We'll move to the Liberal Party and their questions. Mr Grandmaître.
Mr Grandmaître: Madam Chair, this is not the first time we've heard about the Manitoba Municipal Council Conflict of Interest Act. Is it possible to obtain a copy of the Manitoba model so all members would --
The Vice-Chair: I'll ask staff.
Mr Harrison: If staff here can't provide it to you, we can provide it to you.
The Vice-Chair: Yes, we will be able to provide it for you, Mr Grandmaître.
Mr Grandmaître: Madam Chair, again, I'm going to try my luck. Last week I wasn't successful in obtaining a reasonable or a satisfactory answer to my question, and I want to go back to "Duties of a Member" on page 2 of AMO's presentation. Disclosures are provided at the beginning of the meeting, and I want to give you an example. Let's say I have a conflict of interest on item number three on the agenda, and I stand in council and I state my conflict of interest. Who is the judge of my declaration? Maybe it's frivolous. Maybe I don't want to vote on this issue.
The Vice-Chair: You're asking staff?
Mr Grandmaître: Yes.
The Vice-Chair: Would you be prepared to answer?
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Mr Sidebottom: In the first instance, members have to determine for themselves whether or not they have a pecuniary interest in the matter before the council. It's the member's responsibility, having identified the interest, to then determine whether or not one of the prescribed exceptions would apply, and those exceptions include things like voting on salary or voting on appointments on a public body, an interest that may arise from drainage works or local improvement works.
If you have satisfied yourself that you have a pecuniary interest in the matter and it is not an exempted interest, then it is your responsibility and yours alone to make that oral declaration that you have an interest and that you will not be participating in the discussion or in the vote of the matter.
For any person to stand in judgment of you, they would have to be an Ontario judge. Both under the current legislation and under the proposed legislation, the ultimate determination is by the courts and it would be up to some person to initiate an action against you.
In the current legislation, any elector can initiate an action against you. Under the proposed legislation, a person may bring the matter to the attention of the commissioner, describing the alleged contravention, describing the details surrounding it, and then it would be up to the commissioner to determine whether the commissioner would proceed with the matter or not. As the AMO delegates have pointed out, even if the commissioner chose not to proceed, then a person could bring it themselves.
But in the first instance, you must judge yourself whether or not you have an interest, and then if a person doesn't believe that you have fulfilled your duties properly, they must take it before the courts.
Mr Grandmaître: Yes, but I'm going beyond this. I'm going beyond this because I've had this happen to me, people standing in council declaring a conflict of interest. They thought they had a conflict of interest and the mayor, knowing full well that this person was using this escape -- I better be careful of how I say it -- as an excuse not to vote on the item. That's why I'm asking you, who is the judge of the member's declaration? He can say, "Well, look, I think I've got a conflict of interest," and he can sit down. Who's going to question him if he thinks he's got a conflict of interest? Because there's no such thing as a possible conflict of interest or a conflict of interest?
The Vice-Chair: Is there any further comment on that?
Mr Sidebottom: I can only repeat that it's the members themselves, first, who must determine whether they have an interest, and if a person's not satisfied with your declaration, then, you know, there are the court remedies, and then presumably the electorate will make a determination if they find that you're perhaps, if you like, overdeclaring for frivolous reasons.
The Vice-Chair: Mr Grandmaître, are you complete?
Mr Eddy: Yes, he's --
Mr Grandmaître: Yes.
The Vice-Chair: Mr Eddy.
Interjection.
Mr Eddy: We work very well together, as you can see.
You say the legislation lacks clarity, and I think it's a good point. We've got to make sure that this third, or is it the fourth, trip around the block on this finally is clear, because we've been around the block too many times. There are things now that are hopefully going to be included that should have been included the first time, and it was recommended they be, but they're not. So let's be clear and if there's any problem, let's get it cleared up.
On the duties of a member to declare, you make a good point there. I think it can be changed with the wording because it's when the person declares a pecuniary interest and therefore, to avoid a conflict of interest, they leave and withdraw from the room in which the meeting is taking place; very important. But we have to be sure that it's at the time when that's coming up in a report, rather than the entire meeting. It's got to be changed, and I thank you for bringing that forward.
I tend to agree with you, filing the financial disclosure statement at the lower tier, except that if we went to the Manitoba model, it wouldn't be a problem if it was filed at both tiers, would it? I think we really should, because it's not given out freely to anyone who asks. It's used by the clerk when someone charges or states that there is a violation. Is that right?
Mr Harrison: That's what the Manitoba model proposes, but what we're saying is that if in fact the determination is made to go to the Manitoba model, the position in regard to filing only at the lower tier becomes even more important because if you file at both tiers and the information is accessible at both tiers under the Manitoba model, the risk that you then run is an individual making a request at the lower tier and at the upper tier and having potentially the two clerks give different interpretations of the same filing. We think that the information should be available at the tier closest to the electorate but that there should only be one clerk who was responsible for holding the information and making the determination under the Manitoba model.
Mr Eddy: That wouldn't be a problem even though a citizen charges that there has been a conflict of interest by a member at the other one?
Mr Harrison: No, no, not at all.
The Vice-Chair: Our time is almost complete. At this point, the parliamentary assistant would like to make a couple of points of clarification.
Mr Hayes: In regard to the duties of a member, you're talking about if a member has a pecuniary interest, he or she "(d) shall immediately leave the meeting and remain absent from it until the matter is no longer under consideration...."
I do know, and I think most of us do, that members do declare pecuniary interest at the beginning of the meetings. You could do that when you come to that item. There's nothing stopping the person from declaring again at that time or just automatically leaving the meeting at that time.
However, the one thing here, you made a recommendation, "shall leave the room in which the meeting is taking place." Madam Chair, if you feel that would be maybe a little better wording, I think we can take a look at that and maybe add those particular words in there, "the room."
Mr Harrison: Let me disagree with the parliamentary assistant, if I may. I'll tell you, I do this stuff, and if this legislation is passed and I stand up at the beginning or a member of council stands up at the beginning of the meeting and says, "I've got a conflict in regard to item 25 on this agenda," and does not then immediately leave the meeting --
Mr Hayes: I don't think it says that.
Mr Harrison: That's what it says.
Mr Hayes: Excuse me, I think I've got the wrong one.
The Vice-Chair: Let's see if we can get this clear.
Mr Eddy: While we're waiting for the parliamentary assistant, I must say I agree that candidates for office must file a statement as well to be on an equal footing. If we're going to have it, it should apply to all, otherwise it's unfair, I think.
Mr Hayes: "Shall immediately leave the meeting and remain absent from it until the matter is no longer under consideration...."
Mr Harrison: I say that "immediately" refers back to clause (a), when you have done what it says under clause (a) of disclosing, you then "shall immediately."
The Vice-Chair: We don't have time.
Mr Hayes: We'll resolve it, and if people want to take it that far, it's fine.
The Vice-Chair: We don't have time to further debate it, but I'm sure we will be looking into it. I would like to thank the representatives from the Association of Municipalities of Ontario for coming forward this afternoon with all your detailed presentation; we appreciate it.
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CANADIAN INSTITUTE OF PUBLIC REAL ESTATE COMPANIES
The Vice-Chair: I would like to call forward the Canadian Institute of Public Real Estate Companies, if you would come to the microphones. I believe we have Mr Ross Cullingworth, Mr Ron Daniel and Mark Noskiewicz. If you would, in a moment, introduce yourselves, you have half an hour for your presentation, and we hope to have some of that time for questions.
Mr Ross Cullingworth: Thank you, Madam Chair, committee members. I'm Ross Cullingworth, chairman of Coscan Development Corp, and we have with us here today Ron Daniel, who is the executive director of CIPREC, and Mark Noskiewicz.
CIPREC is an important voice for the Canadian real estate development industry. A copy of our annual report was, I think, included with our submission, which we did get in last week to the committee. The member firms of CIPREC include most of Canada's largest real estate investment and development companies whose shares are publicly traded on recognized securities markets, plus real estate subsidiaries of public companies, trust companies, life insurance companies and banks. The total real estate assets of CIPREC members is in excess of $50 billion.
I would like to make a few general comments before turning it over to Mark, who is with Goodman and Goodman and is our technical adviser on dealing with the specific aspects in our submission.
I've been involved in the land development business in Ontario for 30 years. I thought the basic objective of reviewing the Planning Act was to streamline the system and make it more possible to process developments on a more timely basis. The proposals included in Bill 163 will do the opposite. They will slow the process down and provide people who want to impede development with new methods to delay bringing property to the customer.
House prices are affected very directly and significantly by supply and demand. When land is not available to satisfy new growth in markets, we can have severe pressure on pricing. In 1985, a lot at the south end of Vaughan or Markham had a value of approximately $80,000. In 1988, just three years later, that same lot sold for $275,000. There are many examples of that. This occurred because the market was unable to supply sufficient housing to satisfy the demand, and this constraint was due entirely to land being unavailable to the building industry. These same lots would sell today for approximately $160,000. In the last few years supply has outstripped demand.
I can't emphasize enough to encourage the committee to ensure that the changes you implement cannot be misused to delay the development process. We do not need another dislocation in the market, as occurred in the late 1980s.
Now I'd like to ask Mark to deal with the specific items and recommendations we have as an institute.
Mr Mark Noskiewicz: Madam Chair, members of the committee, on the second page after the cover page of our brief there's an executive summary which sets forth four main concerns, and I wanted to speak primarily to those four main concerns.
The first concern is that Bill 163 would inappropriately permit approval authorities to refuse requests to refer official plan matters to the Ontario Municipal Board on the basis of prematurity. The specific provision in question is proposed subclause 17(29)(a)(iv), and what that subclause says is that an approval authority, typically a regional municipality, could refuse a request to refer a proposed official plan amendment to the Ontario Municipal Board if it is of the opinion that the proposed amendment is premature. That provision would apply both to amendments adopted by a municipal council or to amendments requested by a private land owner.
CIPREC believes that this provision would create a dangerous and in fact draconian opportunity for approval authorities to unilaterally decide that an official plan matter cannot be dealt with by the municipal board, and essentially the official plan proposal would be stopped dead in its tracks.
By way of an example, if a local municipality adopted an official plan amendment to expand its urban boundary or adopted an amendment to redesignate lands within its urban boundary from, say, industrial to residential, the approval authority, which again typically is a regional municipality, could simply decide that the application is premature, and that would be the end of the matter.
CIPREC believes that this provision is inconsistent with the general scheme for resolution of planning matters that the Sewell commission suggested. As we understand that scheme, it had three main elements: (1) policy-making would occur at the provincial level, (2) decisions would be made at the municipal level and (3) dispute resolution, if necessary, would continue to occur at the Ontario Municipal Board.
It is important for the committee to understand that the development industry views recourse as a last resort to the Ontario Municipal Board as a fundamental component of our planning system, and the provision in question here, we believe, would significantly water down that right of recourse to the Ontario Municipal Board by effectively setting up approval authorities as gatekeepers as to whether a matter could proceed to the board.
Planning applications, no matter how worthy of approval, invariably attract some opposition. Prematurity is a frequent issue raised by objectors. More and more one hears the call for further studies. To allow an approval authority, not the municipal board, to unilaterally decide the question of prematurity is a recipe for further delay, and in some cases indefinite delay. As Ross has indicated to you, delays in the process, in the end, restrict the supply of developable land, which in turn leads to increased prices to the ultimate consumers. So our recommendation would be to delete that clause.
Our second main concern is that Bill 163 would unwisely require all planning decisions to be consistent with provincial policy statements. The committee has heard, I am sure, quite a debate on this issue. We recognize that the government appears to feel that a consistency test is appropriate, given the increased emphasis on provincial policy statements. I should make it clear that CIPREC is not objecting to the notion of a planning system led by provincial policy, but it does feel that the legislative change to a consistency test is inappropriate. You've heard that this is not just a concern of the development industry but also a concern voiced by the Association of Municipalities of Ontario. I won't repeat all the points they've made.
We've listed many reasons in our brief as to why we think the change to a consistency test is inappropriate. Firstly, the change appears to have been fuelled, in our view, by a misconception that the have-regard-to test under the existing act has resulted in policy statements being ignored. We simply feel there's no basis for that. By way of an example, the housing policy statement was introduced a few years back and clearly has been applied in planning decisions over the last few years. We echo the concern of the Association of Municipalities of Ontario that a consistency test is inconsistent with the notion of trying to reconcile conflicting policies.
I guess CIPREC's biggest concern is that the consistency test is inappropriate, given the lack of clarity that appears in many of the policy statements. We've given one example in our brief. Policy statement A contains general policies aimed at prohibiting development in environmentally sensitive areas. As an example, development is not to be permitted in significant ravine, valley, river and stream corridors. When one then looks for a definition of "significant," one finds the statement that "significance will be determined based on criteria and guidelines established by the province or on comparable municipal evaluations." So in the end the policy statement doesn't establish the meaning of "significant," and in effect the real substance of the policy, which is where development can and cannot take place, is missing from the actual policy statement.
That really is the nub of CIPREC's concern: that by introducing vague policy statements into the planning process and then requiring decisions to be consistent with those vague statements, there is certainly no sense of any clarity being added to the process. In the end, CIPREC believes that it is just giving opponents of development proposals more ammunition with which to oppose development and, as Ross said, create more delays in the process.
The third major area of concern as set forth in our executive summary is that Bill 163 would give municipalities vague, expanded zoning powers to prohibit development in environmentally sensitive areas. The paragraphs in question here are 34(1)3.1, 3.2 and 3.3. Again, I should make it clear that CIPREC endorses the need for the planning process to have strong regard to environmental concerns.
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The concerns with the proposed new zoning powers are as follows: When read in conjunction with the new policy statements, there is still great uncertainty as to how wide the net is being cast in terms of what constitutes an environmentally sensitive area; second, no direction is given in the legislation as to how to balance the environmental concerns with the economic interests of private land owners; and third, it is CIPREC's view that environmental concerns are thoroughly debated under the present Planning Act. Development proposals, even on lands that are clearly within established urban areas, are today routinely met by environmental objections and concerns, and land owners must, quite properly, establish that their proposals address or mitigate in some appropriate way these environmental concerns.
In CIPREC's view, the expanded zoning powers are not needed and if they are introduced they will again simply provide more ammunition for those trying to delay or block planning approvals. We've set forth two specific recommendations in this area; the first is to delete the proposed clauses that would give municipalities new zoning powers, and the second recommendation is to amend proposed clause 1.1(b), which is the purpose section of the act, to introduce some notion that the application of provincial policy has to respect the economic interests of land owners.
The fourth and last major concern has to do with the fact that Bill 163 leaves major matters to be dealt with by regulation, and we've listed some of those on page 7 of our brief. They include: the fact that regulations would prescribe material that must be submitted and processes that must or should be followed in the processing of planning applications; there are regulations that would prescribe certain mandatory content requirements for official plans; and there are regulations which would prescribe the manner in which municipalities could adopt development permit systems potentially as a substitute for zoning and site plan controls.
CIPREC questions the need for many of these regulations. Presumably, prescribing material that must be submitted with applications and processes that must be followed is intended to assist the streamlining objective by defining more clearly what is expected in the processing of a land use application, but it is our concern, without having seen the proposed regulations, that what will result instead is opportunities for people to debate whether an application is complete, whether the application should be processed, and we really question what in the end is being accomplished.
Again, it is difficult to comment properly without having seen the implementing regulations, and our major recommendation in this regard is that Bill 163 should not be introduced until the public has had an opportunity to review and comment fully on the implementing regulations and any guidelines and criteria that are intended to provide some understanding of how the legislation will actually work.
Following our brief we've set forth nine additional concerns, some of which are of a technical nature but many of which again relate to this concern that the legislation will not accomplish the streamlining that it is supposedly intended to accomplish. I won't go through them with the committee at this time, but they're there for you to review. Again, we've tried to make specific recommendations that would make the legislation more compatible with the government's stated streamlining objective.
The Chair: Thank you very much. There are five minutes per caucus. We have Mr White first and then Ms Haeck if there's time.
Mr White: Thank you very much for your presentation. I'm interested, as you are of course, in the issue of streamlining. You bring up a number of very important recommendations, and I just want to see if I understand one or two of them.
On the issue of what can and cannot be appealed, you suggested not the first, second or third as being problematical, but the fourth item, which was the issue of prematurity. I'm wondering if the parliamentary assistant might be able to assist us on that issue of what is considered premature in terms of an application.
Ms Pat Boeckner: The issue of prematurity has been argued by municipalities, by the province, by agencies and by citizens over the years, and it has come to mean a number of different things. I guess primarily it's been interpreted as the essential services for development not being present. Usually that means sewer and water is not present or available. It can mean other things such as major roads or a transportation structure are not there. But usually that's the meaning, that some basic service requirement is not present and therefore a development is premature.
Sometimes it can also mean required studies or reports have not been done. An example would be a development that may be proposed on wells and tile beds is put forward but there's been no information to support -- no environmental information like a hydrogeological study or something like that. The response or the decision given by the board in that kind of case may be that the development is premature until the studies are done.
Mr White: Many of the submissions we've had before this committee speak about other issues in terms of prematurity; that is, the capacity of social service systems, of schools etc, that should be taken into consideration and that aren't included in the act as yet. What we've heard, then, is a stance that says we should be going further in the direction of defining what is premature and overhasty development, and here we have a suggestion that we should have a further definition of what's premature?
Mr Cullingworth: The language that we have in the act, as we understand it, does not define what "premature" is. So with no definition, I think it's basically our concern that this can be misused. We don't deny at all that there are all sorts of examples that are appropriate to say they're premature. However, we find that the system gets used. I think, simply stated, all developments automatically have people who will object against them. They have those objections because there's a neighbour or a next-door position and it doesn't matter what's approved on it, they would rather see it as a piece of land than they would as any form of use. So the more facilities you provide for people to use arguments, the more they get used. I think in essence, Mr White, that's really what we're saying. Presumably, with no definition of what "premature" is, we have no way of -- if someone says it's premature, then it's stopped in its tracks. We have no way of referring it to the OMB.
I think we could find it quite acceptable if the OMB could look at some of these types of things, and it could make decisions more arbitrarily and reject things as frivolous and premature, but there is no other body that's not a political situation that can deal with it.
Mr White: So you would need to have some jurisprudence, some sense of what is premature so you're not finding yourself shadow-boxing, fighting in the dark.
Mr Noskiewicz: I think the point that Ross was making is that, first of all, there is no guidance in the bill, as drafted, as to what premature means. But secondly, I think it's very difficult to come up with a definition that is going to work in every situation. It's not just municipalities and agencies that have debated the question of prematurity, but the municipal board routinely decides, on the facts on a given case, whether a particular amendment is premature.
I think CIPREC's overriding position is that ultimately it should be the Ontario Municipal Board, when various parties can't agree, that should decide the question of prematurity, not simply one political body in the middle of the process.
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Mr White: Thank you very much. As I was explaining earlier, of course, we've had delegations that have put the opposite case, that we should be going further in terms of defining what's premature and developing larger barriers. So I'm glad to hear your presentation say, "This makes it very difficult for us to do our business."
Mr Eddy: I'd like to talk about the matter of going to the OMB or referrals to the OMB. I think you're right on, because there seems to be a level of happiness with the OMB's functions in the province that has come out of these hearings that I was not aware of, but it is an independent body that holds an independent hearing, and the proponent is there to give whatever information they wish to give and the objectors are there to counter that and give what they -- and the municipality, the municipal council, may or may not be represented, as they wish, apparently. So it's an independent hearing, and having seen some of the decisions on the "premature" test of applications and the board going different ways, they explore all of the avenues. So it's probably the best way to go, the best way for the council, to refer it to the OMB for an independent hearing. I agree with that.
You've mentioned about the consistency test, and people have come forward. Municipalities are concerned about that "be consistent with" the policies, saying it will eliminate any and all flexibility. We've had the suggestion that the words should be changed, that the decision should be "maintain the principles and intent" of provincial planning policies, and it seems to ease the situation. Maybe you'd want to comment on that.
The only other thing I'd say is that your point about looking at the regulations is well taken in this case. Regulations are much more important with some bills than others because there are so many of them. It's been proposed that after the bill has been reviewed, as it will be finally next week, we should then look at the policies, the legislation and amendments, because there are going to be amendments from the government, regulations and the implementation guidelines, to really know what we're going to be faced with. Maybe you'd like to comment on that, either of you.
Mr Noskiewicz: Just on that point of the consistency test, we actually have indicated in our brief that as an alternative to keeping the "have regard to" test, if the words "be consistent with" were replaced with "be consistent with the general intent," that again would retain some of the flexibility that we think is essential to the planning process.
The other point I would make on policy statements, which is an interesting point to make, is that the act has allowed since 1983 for policy statements to be introduced. CIPREC doesn't quarrel with the legitimate desire of the province to lead more through its policy statements, but since 1983 there really have been very few policy statements introduced, and we think the focus should be there rather than tinkering with a test which we really feel has worked quite well.
Mr Murdoch: Thank you for your brief. We certainly appreciate it. As Mr Eddy noted, we've heard a lot of people sort of talk good about the OMB. That just shows you how bad this bill is, if it's forcing people to talk good about the OMB. I mean, I might even have to say this if I hang around much longer, but I still can't draw myself to that conclusion yet.
I want to note that your last recommendation really sums it up, where you say we should not be bringing this bill forward before we see the regulations because they're going to generate what this bill's all about. I think most people would agree that the bureaucrats and the planners of Queen's Park have pretty well messed the planning system up in the past and we do need something new, but this doesn't address it. I just want to congratulate you on that last recommendation, because we've had it from many other people. It's just unfortunate that when they've made such a mess down here, they couldn't have come up with a better solution.
I just want to thank you again for bringing your concerns to us.
Mr Cullingworth: I think generally it's unusual, or at least people have the tendency to think that the development industry is at odds with the municipality so much, but I would say that we, in general terms, concurred; we sat through the AMO presentation and we concurred very much with most of the points they were making. We thought there was a lot of similarity between what we were looking for and probably what they were looking for.
The Chair: We thank you for your brief and for bringing your concerns to the attention of this committee.
As a reminder, the bus leaves to the airport at 5 o'clock, in the front: as punctual as possible, please. This committee is adjourned.
The committee adjourned at 1626.