URBAN DEVELOPMENT INSTITUTE/ONTARIO
SOUTH ETOBICOKE COMMUNITY LEGAL SERVICES
ONTARIO PROFESSIONAL PLANNERS INSTITUTE
BOARD OF TRADE OF METROPOLITAN TORONTO
REGIONAL PLANNING COMMISSIONERS OF ONTARIO
AUTOMOTIVE PARTS MANUFACTURERS' ASSOCIATION
ASSOCIATION OF MUNICIPALITIES OF ONTARIO
ONTARIO ASSOCIATION OF CHIEF PLANNING OFFICIALS
CONTENTS
Thursday 15 February 1996
Land Use Planning and Protection Act, 1995, Bill 20, Mr Leach / Loi de 1995 sur la protection et l'aménagement de territoire, projet de loi 20, M Leach
Urban Development Institute/Ontario
Jack Winberg, immediate past chair
Lake of Bays Association
Margaret Casey, director
Robert Lehman
South Etobicoke Community Legal Services
Kenneth Hale, lawyer-director
City of Etobicoke
Bruce Ketcheson, city solicitor
Laurie McPherson, director, policy planning
Ontario Professional Planners Institute
Philip Wong, president
Marni Cappe, chair, planning and working group
Ron Shishido, chair, public policy committee
Michael Vaughan
Board of Trade of Metropolitan Toronto
Peter Gabor, chair, planning
Lionel Johnson
Regional Planning Commissioners of Ontario
Sally Thorsen, commissioner of planning and culture, regional municipality of Waterloo
Tim Marc, solicitor, regional municipality of Ottawa-Carleton
Andrew Hope, planning manager, regional municipality of Ottawa-Carleton
Sorbara Group
Leith Moore, vice-president
Automotive Parts Manufacturers' Association
Ken MacDonald, director, policy development
Association of Municipalities of Ontario
Grant Hopcroft, member of the board and past president
Gary Cousins, member of the board and member, planning task force
Ontario Association of Chief Planning Officials
John Marshall, chair
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Président: Gilchrist, Steve (Scarborough East / -Est PC)
Vice-Chair / Vice-Président: Fisher, Barb (Bruce PC)
*Baird, John R. (Nepean PC)
Carroll, Jack (Chatham-Kent PC)
Christopherson, David (Hamilton Centre / -Centre ND)
Chudleigh, Ted (Halton North / -Nord PC)
*Churley, Marilyn (Riverdale ND)
Duncan, Dwight (Windsor-Walkerville L)
*Fisher, Barb (Bruce PC)
*Gilchrist, Steve (Scarborough East / -Est PC)
*Hoy, Pat (Essex-Kent L)
Lalonde, Jean-Marc (Prescott and Russell / Prescott et Russell L)
Maves, Bart (Niagara Falls PC)
*Murdoch, Bill (Grey-Owen Sound PC)
*Ouellette, Jerry J. (Oshawa PC)
Tascona, Joseph (Simcoe Centre / -Centre PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Conway, Sean (Renfrew North / -Nord L) for Mr Lalonde
Galt, Doug (Northumberland PC) for Mr Tascona
Gerretsen, John (Kingston and The Islands / Kingston et Les Îles L) for Mr Duncan
Hampton, Howard (Rainy River ND) for Mr Christopherson
Hardeman, Ernie (Oxford PC) for Mr Carroll
Pettit, Trevor (Hamilton Mountain PC) for Mr Maves
Smith, Bruce (Middlesex PC) for Mr Chudleigh
Clerk / Greffier: Arnott, Douglas
Staff / Personnel: Murray, Paul, research officer, Legislative Research Service
The committee met at 0901 in committee room 2.
LAND USE PLANNING AND PROTECTION ACT, 1995 / LOI DE 1995 SUR LA PROTECTION ET L'AMÉNAGEMENT DU TERRITOIRE
Consideration of Bill 20, An Act to promote economic growth and protect the environment by streamlining the land use planning and development system through amendments related to planning, development, municipal and heritage matters / Projet de loi 20, Loi visant à promouvoir la croissance économique et à protéger l'environnement en rationalisant le système d'aménagement et de mise en valeur du territoire au moyen de modifications touchant des questions relatives à l'aménagement, la mise en valeur, les municipalités et le patrimoine.
URBAN DEVELOPMENT INSTITUTE/ONTARIO
The Vice-Chair (Mrs Barbara Fisher): Good morning, everybody, and welcome to the resources development committee considering the new Bill 20. Only a minute behind this morning, but with a quorum here we can start. I welcome you to our hearing process. Just so we understand the conditions or the terms on which we can work here, each of the presenters will be allocated a 25-minute period to be used as you see fit. If you would like question-and-answer at the end, make sure to leave time for that. That time will be divided evenly to give each of the parties an opportunity to ask questions. If you'd like to introduce yourselves, please.
Mr Jack Winberg: Thank you, Madam Chair and members of the committee. My name is Jack Winberg and I am the immediate past chair of the Urban Development Institute. To my left is Lucy Stocco, the current chair of the board of directors of the Urban Development Institute of Ontario.
By way of background, I'd like to thank you on behalf of the Urban Development Institute and its several hundred members, who comprise land owners, developers, planners, engineers, architects, financial institutions and the many other professionals involved in the land development process, for the opportunity of appearing before you today to speak on Bill 20.
Unlike many of the other speakers you're going to hear from or other delegations you're going to hear from, I'd like to just point out to you that the land developer or land owner is the only one who sees the process right through from the beginning of the idea to the purchase of the land to the construction and the finishing of the building and the commencement of its use. I believe we have an interest in and a perspective on the development process unlike anybody else. Where others come in for certain aspects of it and then leave, we as the development industry see the process through from beginning to end.
I'd like to begin by saying to this committee that the development industry applauds the initiatives that have been indicated and taken by this government, the current government, as evidenced by the contents of Bill 20. We see it as very much an effort to bring back a commonsense approach to planning and, more important, a sense of balance to the planning process, that is, where all matters, be they social, be they environmental, be they economic and indeed be they political, can be considered in accordance with proper planning principles, with common sense and with a view to the needs of the community that's involved for appropriate and proper planning decisions to be made.
We have provided you with a very detailed brief that sets out our many comments on the legislation, many of them positive, many of them constructively critical, we hope. I hope that you'll be grateful when I tell you that I'm not going to take you through that brief page by page. The comments are there, and some of them are very detailed beyond the scope of our submission.
Perhaps I could simply indicate to you at the outset that we are very pleased that the government has seen fit to propose in the legislation the reversion back to "have regard to" a scheme for the application of provincial policy statements. This industry was very concerned that the "shall be consistent with" format that was proposed in the previous legislation and the current legislation was simply too constraining on the councils, too disempowering, if I can use that word, of their ability and the development community's ability to make the right decision on the right set of facts -- as I've indicated, the sense of balance in the process that is required.
We think that the "have regard to" format tells people that you're to throw into the hopper all the material and important considerations and make the best decision that you have to and that you can on the facts before you. We support that initiative very strongly; it's one that is tried, it is one that is true, and although there may be differences of opinion in terms of degree, I believe when you look out at the province of Ontario, it has lived under a regime of "have regard to" since 1946. We've done pretty well, and I ask you to reinstate that. We encourage the reinstatement of that approach to planning.
We are also very pleased with and supportive of the initiatives to add further and to shorten the time frames under the legislation. Anything that can be done to ensure that there is a structure within the process that allows good planning to take place in an orderly way without unlimited and never-ending time zones is something we think will help and will help cut out a lot of the unnecessary delays in the process.
We are also quite supportive of the concept of the direct appeal to the municipal board and the one-window approach that the legislation entails. We believe by cutting out all the intermediary steps to getting to the board and by allowing the board to be invoked if it has to be that when one considers that the planning process is essentially a process which allows the competing demands on society through the planning process to be resolved, the direct right of appeal will assist in an early resolution of those concerns and those debates and we can get time running where people have to make decisions and make the compromises necessary in this society. So we see the direct right of appeal as being very important.
We also see the removal of the prematurity concept that was in Bill 163 as a very important balancing factor for the purposes of ensuring that land owners will have the right to get to the board. There's one area that our brief does discuss in some length, which is that under Bill 163 there's concern over the way in which you get time running. There's a phrase "prescribed information and material." In 163, we thought we had that pretty clear in terms of you filed the application, essentially giving the basic information regarding your application, and that was sufficient to start the time. There couldn't be any doubt about when time started, because if there was, then people would be arguing and finding opportunities for delaying things moving ahead. The rules of the game should be clear and clearly set out. We must know when time starts.
That's one change we've asked to be made in terms of the detail. We think that "prescribed information and material" ought to be the subject of a specific definition in the bill so that you don't find that some municipalities that want to delay people or might find reason to want to delay a particular application come up with new ideas for information, asking for reports on the cumulative impact of all development on Ontario, which is really quite conceivable, before time would start to run, that those problems do not occur, as they do and have often shown up in the Bill 163 process, where we thought that that might not have happened.
One of the other consequences of the direct right of appeal, however, is that, certainly on a transitional basis, the Ontario Municipal Board must have the resources available to catch and to process the applications. We're going to be substantially taking the regional governments and in particular the Ministry of Municipal Affairs out of the process in terms of their ability to assist in the resolution of problems and the clarifying of issues for the board's determination and the board's decision.
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Once this legislation comes into place, we all must be sure that the Ontario Municipal Board is properly resourced to help, not necessarily simply in the hearing aspect of it but in the pre-hearing aspect, in the identifying of issues. For example, if a secondary plan was coming down, under the legislation the whole plan would have to be appealed. There are opportunities for people to say, "I'm only appealing one particular part or another"; however, history has told us that people tend to always over-refer, and that affects and stops development that's really not a subject of contention. The Ontario Municipal Board will have to have pre-hearing procedures available to limit and define the scope of appeals and to permit development that's not under contention or appeal to proceed, and at the same time set up the hearing in proper form for the serious issues to be discussed and debated under the appeal.
Those are the few areas of concern that we have and the areas that we substantially support. There are still two or three issues in the legislation that we have substantial concerns about, and I want to just make the comment that with respect to all the technical things that we have said and submitted in our brief, we're very complimentary of the government and its staff. They pulled this together very quickly and they've done, for the most part, a very, very good job, but obviously there are a few issues that we think need a bit more thought.
The first one relates to property rights and the sections of the zoning powers under section 34 which provide for the pre-zoning of lands that might be of significant environmental impact. It has always been the law of this province that if land is developable but it has some other higher social purpose as a park or as an environmentally sensitive zone, that's a public interest and it's not something to be financed by the private sector. If there's an area that is environmentally sensitive or that is a piece of land that would otherwise be developable but for good reasons the councils decide they want it to remain in public use, the proper way to do it is to expropriate it, pay for it and keep that sense of balance that's involved.
Those provisions in subsections 34(3.1), (3.2) and (3.3) that allow for the pre-zoning of lands that are of environmental significance take the balance out of the process. If someone buys land that is ostensibly developable but, for reasons of the greater public interest -- they should be taken and paid for. So we ask that those sections be deleted. There are still ample powers for those lands to be acquired and protected, and we ask that they be left that way.
We are also concerned about the opportunity under section 41 for, on site plan approval, lands for a transit right of way to be given for free. The problem we have with that is very simply that historically a developer has never had a concern about giving up half a road-widening or a lane or a lane and a half, because that road that runs by his development services his development and he gets the benefit of it and it's proper for that developer to pay or make a contribution towards the construction of that road.
A transit way is something entirely different. An LRT line may come right through somebody's property. It may go through the middle of their property; it may take a substantial hunk off the front, but the stop is a mile one way and half a mile the other and there's no real immediate benefit to the land. Historically transit ways have always been expropriated with proper consideration to the impact that it has on the value of the land that's taken. Where we have, in many cases, no direct connection between the land and the benefit of the right of way except in a greater public purpose sense, we say that that's not an appropriate power for either regions or local municipalities to have in the site plan process.
The final area that we are quite concerned about in terms of Bill 20 is minor variances. We believe that the intentions with respect to changing around the processing of minor variance applications that are set forth in the act are good, but we believe that the process pre-163 and the process even under 163 is the process that ought to be adopted for the province of Ontario in terms of dealing with minor variances.
Minor variances are intended, and they have operated for the most part -- and no one will suggest there haven't been abuses in the past -- to solve the minor, the small problems that relate to land and land development. There has to be an easy and a quick way that's not encumbered by politics, that's not encumbered by long staff reports and circulations and the other things that the planning system may impose. It has to be there. It's a relief valve.
Let me just give you a very quick example. I've got a development that's ongoing right now where it's been a year and a half in the process: 41 affordable town houses on a corner lot. Actually, last night was the final day for the passing of the zoning bylaw -- the 20-day period expired -- and as of this morning I've got a final approved bylaw on my site.
Two weeks ago, after the bylaw was passed and before it was final, the regional municipality decided they wanted to cut through an intersection and line up a road. What that's going to do is that's going to make one corner of my development about 18 inches too close to the new property line after I have to give the road widening to the regional municipality. That has to be fixed. Now, I've got a site plan, I've got my marketing materials. I may even have a new neighbour that's just moved into the neighbourhood after the year and half of processing, and he says: "You know what, this guy, he's desperate, he can't afford a delay now. He's got all his money tied up in marketing and he's getting ready to build. I think I'm going to object because I don't like the colour of the brick and I don't like the style and it blocks my sunlight," and all of the usual stuff.
The politics have changed as well on the council that I'm dealing with, so I don't know if there are many people who have the same views. I go to the committee of adjustment today. If the committee sees the wisdom of making that small variance after all these years, and in fact it's even caused by the regional government, and I get turned down because of the politics, I'm off to the board and I guarantee you that in a case like this in two and a half or three months it'll be solved, it'll be fixed, because the board will deal with that on a motion. It's a summary matter, it's a small matter. It's pretty clear that nothing's changing except a property line for a road widening.
Under the new system, if I ran into the political problem, I'd be at the committee, probably at the council. If the politics were against me I'd be a year and a half rezoning that property again. That's just not right and that's just not fair. That is the kind of example of a case that you need to have minor variance approvals for. That's just my today's example. We have these examples every day throughout the province of Ontario where the minor variance system helps solve the problems and helps get building permits issued, jobs created and people living and paying taxes in municipalities.
Don't mess with it, I urge you in the strongest of terms. We need it, and what you're proposing is going to remove one of the most effective relief valves that the planning process has.
There are two other matters that we refer to in our brief. One of them relates to the farm assessment process in the sense that we have asked that the government consider a new amendment to Bill 20 that will allow land that although may be zoned for future development but currently in agricultural production remain taxed as if it were agricultural land and not taxed, as some recent assessment board cases have suggested, as residential land.
We're here as an industry and we say every day in terms of the planning for the future that we will leave land in agricultural production as long as it is not needed for housing. We're not anxious to bring land on any bit before. We're not anxious to see land leapfrogged where one owner says, "I can't afford those taxes; I'm going to put in my roads and I'm going to try to subdivide," any earlier than they have to or any earlier than is the most appropriate for that community. Land owners should not be penalized for having taken their land through the process and having devoted it to agricultural use as well while they're waiting for it to be ready, and we ask that this committee support, each and every party on this committee support, that amendment that allows lands to be taxed as long as they're being used for agriculture at an agricultural rate and not as an urban rate.
0920
The other comments that we've made: I guess the last one relates to transition and we ask that March 28, 1995, be the date for transition. In other words, any application that was made under either the pre-163 or during 163, that following Bill 20 they have regard to scheme and they have regard to format applied to everything so that we don't end up with a number of double standards.
Madam Chair, members of the committee, we are anxious to see this bill processed. We're anxious to see the benefits of this bill in terms of restoring some confidence and some certainty to this industry and very importantly to the people who supply the capital to this industry, which is so important. We ask that this bill be passed, that it be passed quickly. We ask that the amendments that we've suggested be taken and certainly taken in the constructively critical light that they're given. In other words, we want to deliver more of that certainty, we want to deliver more of that confidence and we want to deliver a process that will be able to bring about good development in the province of Ontario and to keep the economic engine of Ontario and of Canada humming right along.
So I thank you very much for your time.
The Vice-Chair: Thank you very much, Mr Winberg. We have about six minutes left, or just under six actually. So if we could limit our questions to two minutes per party, starting with the opposition party.
Mr John Gerretsen (Kingston and The Islands): Thank you for your brief. I must admit that I have some difficulty with the public transit right-of-way proposal that you have because surely if a right of way goes through a piece of land, even though there may not be a subway stop right in that particular area, that land is going to be worth more than if it were a couple of miles away from there, as far as the development is concerned.
Mr Winberg: That's not the case.
Mr Gerretsen: No?
Mr Winberg: The transit way might go right through the middle of the land. It may make the land undevelopable.
Mr Gerretsen: Oh, it depends on how much it is. I agree with that.
Mr Winberg: But that's not what the right says. The act says that you give up whatever they want for transit rights of way.
Mr Gerretsen: Yes, but you wouldn't develop too small a piece of land if you were going to lose 90% of it as the result of a public transit right of way.
Mr Winberg: But that's what the act says.
Mr Gerretsen: Well, I know, but you would --
Mr Winberg: Sir, with the greatest of respect, we're talking about the exercise of legislative power here, and the proposal drafts a power that would readily permit that result. That is our concern.
Mr Gerretsen: I completely concur with you as far as the minor variances to the OMB are concerned. You raised another issue relating to the OMB and the staffing needs etc. It raises sort of a general issue with me, and that simply is this: From your perspective, are there real problems with respect to the whole planning process and the time it takes, the actual time limits in the act, or the actual lengths of time that planning staff, councils, ministry staff, various ministries, take to deal with an application? It's always been my impression that this is where the real problems lie.
Mr Winberg: Yes. I think this industry from the beginning has said that to achieve good planning and a good planning process in Ontario you didn't have to change the act at all, that it's the actors, not the act; it's attitude. There are too many incentives in the process, be these bureaucratic, be these human, not to do things, not to make decisions, not to see things happen. I think it's a question of attitude, that you want to have those involved in the processing of the application encouraged in promoting good development and moving along their work. So yes, I think most of the time comes from going from person to person as opposed to whether the act said 65 days or 90 days. That's not the material point.
The Vice-Chair: Thank you. We're almost a minute over already.
Ms Marilyn Churley (Riverdale): I'm sorry I missed the beginning of your presentation, but I do have it in front of me. I think if we had lots of time we'd have an interesting discussion because I take issue with a lot of your suggestions and assumptions, in some cases, about Bill 163. However, because we don't have the time, I would like to ask you a question around the streamlining in terms of the Ministry of Municipal Affairs and Housing now being the so-called coordinator, and the only ministry which can appeal to the OMB. That sounds good. I support streamlining, and certainly I know there can be delays which have different ministries taking different positions. However, and I think you say that you're concerned about protection of the environment, I'm wondering if you have any suggestions as to how the minister can assure the public, and developers, because I think in the long run it's important to you too, that you have all the information about possible environmental problems -- how the minister, given that he is the only one who can appeal, what kind of system can we put in place to assure the public that all input is available on environmental matters before a decision not to appeal is made by the Minister of Municipal Affairs?
Mr Winberg: I think what underlies your question, is the -- as an industry we have a lot more confidence in the people, the good common sense of the people who administer applications, to know they're in a river valley, to know they're in an area of sensitivity, to know they're in an area of environmental concern, and to deal with it. You cannot legislate, and there's nothing you're going to be able to do to legislate a good result. You've got good people, you give them the right tools, the right ability, to make the assessments that have to be made -- they'll be made. As a developer I can assure you that 163, no 163; policy statements, no policy statements, we are as concerned and that we are required by the people who are reviewing our applications to demonstrate that all of the work that need be done to preserve and protect the legitimate concerns of the environment are done.
Ms Churley: So you think there doesn't need to be input from --
The Vice-Chair: Excuse me, Ms Churley, I don't mean to interrupt, but we have expired time and we were able to get one question. I'm sorry about that.
Mr Ernie Hardeman (Oxford): Good morning, Mr Winberg. Just a couple of points: the issue of the transit rights of way, giving the lower-tier municipalities the authority to take property, the site plan -- that authority already exists for the upper tier. Do you see a great difference or a need to say that the lower tier should not be able to do that, so in fact the upper tier would do that on behalf of the lower tier?
Mr Winberg: We're asking that you delete the right of the upper tier as well. We're saying please don't extend it, take it away from the upper tier, or put into it the safeguards that will allow the proper compensatory implications to be considered.
Mr Hardeman: I didn't realize you wanted it out for the upper tier too. The other issue you mentioned was the appeal to the OMB on minor variance. The nature of a minor variance -- it should be minor enough, at least in our opinion, that the local government should be able to make that decision, and their decision should be accepted. Recognizing that a lot of presenters have put forward the case that minor variances are not necessarily minor, and recognizing that you would need some type of appeal process, would you have any idea what we could put in place other than the expensive and lengthy OMB approval process that would be able to deal with that?
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Mr Winberg: The terminology of "minor variance" is one that is very well understood in the industry. What may be minor -- my 18 inches may be very minor in the case of my three-metre setback -- it's a foot and a half out of six feet. Is that minor or isn't it? Then you think that there's a boulevard next door to it. The same 18 inches may be critical in terms of someone else's window, or window separation or otherwise. There is guidance that has been given by the board, there is guidance that's been given by the courts, and the real beauty of the minor variance system that has existed in this province for 40 or 50 years is that those who are involved in the system understand it.
There will always be abuses and you're never going to draft a system that is going to exceed the imagination of humanity. There are always going to be people who are going to push things to the limit, and I don't care where you draw the line. If you say to me it's 10%, somebody's going to figure out another way of calculating the 10%; if you say it's 20% or 2%, whatever it is. The beauty of the system that we have pre-Bill 20 is that it gives that flexibility and that opportunity to turn your mind to the problem at hand and say: Is this minor? Does this require the full process or, as in the case of my own land that's been through the full process, can we all say this is minor?
Again, you can't draft a system that's going to work automatically. You've got to have people who are dedicated, people who are trained, people who are qualified running the system, involved in the system, and you've got to trust their judgement. Where are we as a society if we're not prepared to trust the people we put in charge to do their job?
The Vice-Chair: Thank you for coming before us this morning. We do appreciate your presentation.
LAKE OF BAYS ASSOCIATION
The Vice-Chair: Could we please have the Lake of Bays Association come forward.
Mrs Margaret Casey: Thank you, Madam Chair. I'm Margaret Casey, a director of the Lake of Bays Association, and I speak on behalf of LOBA. I would like to just point out that we too are property owners, but we have a fairly different perspective on Bill 20 than the previous presenter just said. We are pleased, however, to have this opportunity to present our comments on Bill 20.
The Lake of Bays Association has over 1,400 members on and around the shores of Lake of Bays, a large inland lake in the district of Muskoka. Our membership includes both seasonal and permanent residents of the township of Lake of Bays and the town of Huntsville. In 1987, LOBA developed the following vision statement to guide our activities, "The purpose of the Lake of Bays Association is to promote, maintain and enhance a clean, healthy and natural environment, a well-serviced community and a safe peaceful Lake of Bays."
Land use planning issues have long been a focus of our association. In 1993, we completed this report, Strategic Plan Towards Sustainable Development. The goals of this plan include, among others, the endorsement of the ecosystem approach to planning for our future, and the protection and enhancement of water quality in the Lake of Bays watershed.
In the last year, we were a party in an OMB hearing regarding the redevelopment of several hundred acres on Bigwin Island to waterfront and estate residential lots, a golf course and some ancillary commercial uses.
The township of Lake of Bays has just completed a process called Visioning the Future. This process was directed and executed by a steering committee of 22 permanent and seasonal residents in the community. Two of our members were on that steering committee and many of our members participated in the 55 community meetings. The result of this process was this brochure and a vision, and I'd like to read that vision to you:
"The residents of the township of Lake of Bays will nurture and sustain clean water, fresh air, natural shorelines, healthy forests and wetlands that will be the pride of the province. We will offer an outstanding combination of economic opportunity, peaceful living and recreation. This is our dream and legacy for our grandchildren's children."
This vision is remarkably similar to LOBA's; however, LOBA is concerned that Bill 20 and its associated provincial policy statement will very likely block the efforts of our association and the residents of our township to achieve this vision for our community. We have three major concerns regarding Bill 20 and the draft policy statement:
First, they ignore the interdependence of the economy and the environment.
Secondly, they will mean less public participation in the planning process that will determine the future of our community.
Finally, they do not provide the district of Muskoka and our area municipalities with the necessary tools to adequately control their planning process.
We expect that many cottagers in Muskoka, and indeed elsewhere in the province, share our concerns. First, I will explain why we believe Bill 20 ignores the interdependence of the economy and the environment.
As evident in the vision statement, the interdependence of the economy and the environment is recognized by the public. The Crombie commission boldly identified the ecosystem approach that highlights the interconnectedness of the economy, the environment and the community to achieve a balance of health and wellbeing for all inhabitants. The Commission on Planning and Development Reform in Ontario heard this same message in its extensive two-year consultation process. The current district official plan recognized this interdependence by stating, "The growth necessary to continue to rejuvenate and take forward the economy of the district must have respect for environmental constraints, physical influences and ultimately the character of Muskoka."
Donald Gordon, executive director of the Muskoka Heritage Foundation, has said: "In rural areas, such as Muskoka, our continued prosperity depends on the careful management and protection of our natural heritage. Without sound planning policies, the very basis of our economy is threatened."
LOBA believes that this well-understood interdependence is ignored in Bill 20 and the draft policy statement. This document is not under review by your committee, but we as a volunteer group will be submitting comments on that to the Ministry of Municipal Affairs and Housing. Let me identify how we believe Bill 20 ignores this interdependence.
First, the ability to ignore policy: Bill 20 reverts the Planning Act to the old standard that decision-makers "shall have regard to" provincial policies. This change, coupled with weak, confusing provincial policy, will likely increase uncertainty, inconsistency, delay, and the frequency and length of OMB hearings. As residents and property owners, we are concerned that the planning decisions that "shall have regard to" the draft policy statement will result in uneven standards applied across watersheds. We fear that, once again, there will be inconsistent application of ecosystem principles between adjacent municipalities.
It is difficult for LOBA to make a specific recommendation to address this first major concern, as we fundamentally disagree with the direction that Bill 20 is going in.
With respect to another area in this interdependence, we are very disappointed with the loss of the provincial approval function. Our watershed includes parts of two upper-tier municipalities and four lower-tier municipalities, plus parts of Algonquin Provincial Park. Not all of these various municipalities have official plans or require the careful consideration of the impact of development that our community has specified in this particular vision. As cottages, we understand that there is always someone downstream. We are the downstream recipients of others' development and our development activities will impact other cottagers downstream of us. With the delegation of provincial approval to the county of Haliburton, where there is no planning function and no planning staff, our level of concern of uneven respect for natural features such as watersheds is very real.
By delegating approval to upper-tier municipalities, we believe that environmental protection may likely be left to the public, whose only resources are volunteer hours and after-tax dollars; we cannot expense any of our costs at OMB hearings as developers can. Even provincial expertise will be difficult to enlist as MNR and MOEE offices are closed in our communities.
A third concern we have in this respect of the interdependence is the loss of quality control in official plans. Bill 20 removes the regulation that would specify the contents of an official plan and reduces the approval time for official plan amendments to 90 days before the automatic right of appeal is available for developers. It appears to LOBA that official plans will neither be official nor plans. Ontario is returning to a system of planning by amendment, thus providing property owners with no assurance of the orderly development of their communities or protection for our investments in our property in communities.
It is difficult for the Lake of Bays Association to request specific amendments when we fundamentally disagree with the direction of Bill 20. The policy statements contradict the broad consensus achieved by the Sewell commission through its two years of extensive consultation with all sectors that are affected by planning: municipalities, developers, planners and the public. As taxpayers, LOBA members understand that it is the public that ultimately pays the cost of bad planning. We pay through our municipal taxes to remediate polluted soils, to remediate polluted rivers, lakes and streams, and to correct erosion problems. We pay through taxes for alternative sources of water when groundwater is polluted. We pay through our provincial taxes for increased health costs when air quality is degraded by congested roads. We don't want to pay any more, but Bill 20 and the draft provincial policy statement will mean that we continue to pay.
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It is difficult for LOBA to make specific recommendations when we disagree with this fundamental direction that Bill 20 is going, but we do want to be involved and contribute to this process anyway. Thus we offer this one recommendation as a minimum requirement to address this first broad concern: We ask you to amend Bill 20 to grant approval function to an upper-tier municipality only after that municipality has brought its official plan into line with provincial policies and has an official plan that has received provincial approval.
I will now address our second concern: reduced public participation. Given that LOBA members own property and have expressed an interest in the process that will determine the future of their community, we deserve the right to a fair opportunity to participate. Bill 20 reduces our ability in four ways.
First, with the reduced notice requirements for official plan amendments, Bill 20 produces a 20-day notice period for public meetings for OPAs. Statutory notice in our township usually occurs through a local weekly newspaper that I receive here in Toronto about a week after it is published, if mail is good. In order to comment about any specific application, I would have to travel up to our township, review supporting information, then come back and consult with directors and other volunteers who may be scattered throughout southern Ontario in order to put forward a position on the specific application, all within the remaining 14 or so days, despite job, family or other personal commitments. Remember, we are volunteers. We do not believe this is fair. As property owners, we wish to be given a fair opportunity to participate appropriately in the planning decisions that will affect the future of our community.
Thus we ask you to amend Bill 20 to provide a 30-day notice requirement for public meetings for OPAs.
Our second concern in the reduced public participation is the removal of the requirement for a public meeting for consents and subdivisions. It is our experience that many details may not be available at the OPA stage. When details become available at the subdivision stage, it will be difficult without a required meeting for the public to ensure that its interests are acknowledged. Consents create new lots for developments on lakes. Cottagers understand that lakes have a finite capacity to accept additional development without sacrificing water quality. As absentee land owners, we are losing the opportunity to present our views at a public meeting and we may be losing our right to be notified regarding council meetings where planning decisions are made that can affect us significantly. At the same time, we have the responsibility to attend meetings where decisions are made to retain any appeal rights. It's hard to be at meetings when you don't know they exist.
The Lake of Bays Association asks you to amend Bill 20 to require a public meeting for consents and subdivisions.
Our third issue is the reduced time frames for decisions and referral process, and I've included a chart showing the specific time frames. As property owners and taxpayers in the district, LOBA members are concerned that our elected officials and municipal staff will not have sufficient time to review and consider all the implications of a development application within these time frames. We fear that the future character of our communities will be determined not through an official plan but by ad hoc decisions made by the market. Protection of the public interest is lost. The district of Muskoka has expressed similar concerns, and I will quote from their report to MMAH:
"The Bill 20 time line will present a challenge for all but the most straightforward amendments. The time frames described above really provide limited time for conflict resolution....
"Both the areas and the district will be under considerable pressure to meet the time frame....
"The revised approvals time lines will very much affect how our municipalities process development applications and what type of public participation can occur."
District staff has also expressed concern that Bill 20 removes the ability of approval authorities to consider a referral request before an amendment is sent to the OMB, as they had used this mechanism to save time and funds. "An automatic appeal also minimizes the opportunity for alternate dispute resolution," and they've identified that.
As taxpayers, LOBA believes that Bill 20, as it stands, will likely increase municipal costs and lessen the ability of our municipal staff to ensure the orderly and appropriate development of our communities. Our municipalities must have the tools they need to ensure that development applications meet the standards the community has set.
We ask you to amend Bill 20 to restore the approval time frames of Bill 163 and to restore the referral process for OPAs, subdivisions and consents of Bill 163.
Fourth in this area of concern with reduced public participation is the removal of appeal rights for minor variances. Bill 20 introduces a new process for minor variance applications that has been described as "cumbersome and problematic." That is from this particular legal analysis of it, and it's footnoted. I have limited experience here, but LOBA does support, understand and appreciate the concerns of many other cottagers' associations for this issue.
We ask you to amend Bill 20 as per the recommendations of the Federation of Ontario Cottagers' Associations which they will present to you at your committee hearing in Cobourg next week on February 22.
Our last major area of concern is municipal control over the planning process. We support the concerns identified by the district of Muskoka. Their first concern is the inability of a municipality to define a complete application. They clearly identified this concern by stating: "The legislation speaks of `prescribed' and `other information needed'; however, it is only the prescribed information that must be provided in order to start the approvals time frames. This leaves municipalities facing the new appeals time lines without the ability to require the information they feel is necessary to make a decision. Information can be requested but it will be up to the OMB to decide if the request was reasonable." Those are all their words.
As taxpayers, LOBA is concerned that the district and area municipalities will be faced with making a planning decision without the information staff feel is necessary. This is not acceptable.
We ask you to amend Bill 20 to allow a municipality to require and receive "other information needed" in order to start the appeal time lines.
The district's second concern is the loss of the prematurity test which they have described as a logical and practical tool to have available. LOBA agrees that the reinstatement of this test will avoid costly and lengthy disputes if it is not timely for development to proceed.
We ask you to amend Bill 20 to reinstate the prematurity test of Bill 163.
A third concern of the district's is the uncertain precedence of stronger official plan policies over provincial policy. While the draft Provincial Policy Statement is not being reviewed by your committee, a statement in the implementation guidelines on page 8 does give us concern, and the district as well. I'd like to read this particular statement to you: "Nothing in these policies is intended to prevent planning authorities from going beyond the minimum standards established in any of these policies, unless doing so would conflict with any other policy."
I refer to comments by the district of Muskoka to identify our concern here: "It would make sense, therefore, that once an official plan is approved by the province that it would be the document to provide policy guidance. A major benefit would be the clarity and certainty provided to ratepayers and developers on how and where development will occur."
The Lake of Bays Association asks you to amend Bill 20 to specify that policies of a municipal official plan, once approved by the Minister of Municipal Affairs and Housing, shall apply and take precedence over the policies in the Provincial Policy Statement until such time as the Provincial Policy Statement is amended.
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All of these recommendations I've been quoting from the district of Muskoka are also in their staff report, which has been approved by council and committee and is being forwarded to you.
In conclusion, LOBA believes that Bill 20 and the draft Provincial Policy Statement provide the legislative framework for land use planning in Ontario; we understand that. The Lake of Bays Association, though, does not believe that Bill 20, as it stands, provides the necessary tools for a municipality to have sufficient control of the planning process for the protection of community interests and natural features. Nor does LOBA believe that Bill 20, as it stands, provides a fair opportunity for property owners such as cottagers, and indeed the permanent residents of our township, to participate in the planning process to protect our investments in our vacation properties.
We ask that you give careful consideration to the concerns we have identified, and we also ask that you support the recommendations we have offered to provide municipalities and taxpayers with the minimum necessary tools to protect our community and its resources. Thank you very much for this opportunity and your attention.
Ms Churley: I find your brief to be very informative in terms of how ordinary property owners feel. You clearly feel that you were left out, that you're not considered to be a part of or have an interest in the development of planning issues in our province, which is wrong. This is going to come back to bite this government.
I want, because it's such a short time, to ask you to come back to the issue you brought up around the county of Haliburton not having an official plan, yet being able to have the ability to approve your lower-tier plan. Can you expand a bit on the implications of that?
Mrs Casey: Our concern is that the county of Haliburton did away with their planning department a number of years ago, yet this province is going to give them the approval authority when they have no planners, no expertise etc. They are upstream of us. We have no control over what happens there. It is extremely difficult for us to get the notices etc, to be able to participate in that process. This is such an abdication of provincial responsibility, I just cannot believe it.
Ms Churley: Am I correct? You said they did away with their --
Mrs Casey: My understanding is that about two or three years ago, as a cost-saving mechanism, the county of Haliburton did away with their planning department. How can they have approval over the lower tiers when they have no planners?
Mr Bruce Smith (Middlesex): Thank you for your presentation. I was quite intrigued by the brochure you included in your presentation, because in the community I come from we have just completed a similar exercise. Given the leadership that's indicated on this, both municipally and obviously the commitment you have made as an association, much of what you've identified here -- a sound economy, responsible leadership, quality of life -- would you not agree that to achieve many of these positive objectives, flexibility in the municipal planning process is critical to your success?
Mrs Casey: I was up yesterday morning in Dwight. I went up for the day, down and back, for about a two-hour meeting and six hours of driving. That is the personal commitment I have to put into this. They expressed concerns as well about Bill 20. They do not believe that they are going to have the time, that they can meet the time frames.
I was up at the beginning of February talking to the district of Muskoka, to their planning and economic development committee. They too understand that we will have development, but they want the tools to assess and to ensure the proper development of our communities, and that will not come with this bill.
Mr Smith: I would disagree with you in that regard. I just want to follow up on one other issue. You've made reference to subwatershed planning. In my community, we've just completed six separate subwatershed plans under Bill 163. The challenge we have now is how do we implement it. I'm suggesting to you that the same challenges under Bill 163 will be presented in a different context under Bill 20, and what I'm saying is, as we have different communities, both upstream, intermediary and downstream, even under the current legislation we're at a major stumbling block on how to implement that. Can you help me suggest to my community, irrespective of the changes, how that implementation might proceed and how the objectives of subwatershed planning might be achieved?
Mrs Casey: To do that, I have to put on another hat, a volunteer hat that I have. I have been involved for the last three or four years as a resident who has been appointed to the Don watershed, first the task force and then the Don watershed regeneration council. I go back to the Don as being the best example of why we need strong provincial policy and clear rules for public participation and clear tools for municipalities. The Don is the best example of development that was allowed to go ahead under the old system pre-Bill 163, and we are now paying the costs of that bad development. It is in the billions of dollars that we will have to spend to bring the Don back to health, and we can't afford it now.
If we set out clear rules at the beginning of the planning process and we respect our natural heritage, we respect those areas that should not have development, then we will not incur infrastructure costs down the road. I understand. You are caught in the position that we are in the Don. What I'm saying is that foresight and preventive measures are far more cost-effective than remediation.
Mr Gerretsen: It's very interesting listening to your presentation and the one that's come before this. We've heard presentations now for the last three to four days, and when we deal with the Planning Act itself rather than the apartment issue, which is sort of a side issue -- it's a planning issue as well but it's a different kind of issue -- I'm really struck with this notion of the us-and-them attitude, the development industry saying, "It's a great thing to do it," and the people who are concerned about the kinds of concerns that you've stated are saying, "No, it's the worst thing we've ever seen."
It seems to me, having been involved in the planning process from a municipal viewpoint and different other viewpoints over the last 20 years or so, that there's got to be another way. This notion has been floated about by some people that somewhere in the system there's got to be a mediation process, because after all, what we end up with are communities, and they're either badly planned communities or well-planned communities, and everybody should win in that process. Do you have any kind of comment? Do you think an effective mediation kind of process where development is concerned is something worth exploring or looking into, and could it work?
Mrs Casey: That is a tough question. I am a housewife. I am not a planner. I have never had any experience as a planner. All I have done is tried to participate in the development of our community. I was involved with the Bigwin OMB hearing and what concerned me were the resources that we had to put, our after-tax dollars and our volunteer dollars versus what the developer could expend. He expended all of his planning expenses, his consultants and his lawyers. We have to fund-raise to go to any of those.
My concern with Bill 20 is that where the resolution is going to happen is at the OMB. We have already bought into that community. We have stated that we like it. Our association understands that there needs to be jobs in our community. We have to have jobs for the permanent residents in the district of Muskoka and in our township and we have to have jobs for their children.
The Ministry of Natural Resources were also a party to this OMB hearing. They pulled out 36 hours before the mediation meeting. At the mediation meeting, in the last hour, the developer wanted to add an extra 100 units of commercial in his right, to add it into the official plan amendment. We had gone through a lot of negotiation and mediation, working ahead of the mediation meeting itself. The mediator sat there and tried to figure out how we could accept an additional 100 units. It's too late. You have to have respect on both sides. We recognize as the community that we need development, but we ask developers --
Mr Gerretsen: The best plans are those the entire community buys into in the long run. There's no question about that.
Mrs Casey: Yes. In our community we've now stated our vision and we hope this will be the mechanism that our municipality, our elected officials and the staff will be able to judge. We ask developers to respect it as well. We have property rights also.
The Vice-Chair: Thank you very much, Mrs Casey, for coming this morning and presenting your case.
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ROBERT LEHMAN
The Vice-Chair: I would ask that the representative from the Simcoe-Muskoka subcommittee, Ontario Professional Planners Institute, come forward.
Mr Robert Lehman: I'd like to start by indicating that while I am a member of the executive of the Ontario provincial planning institute and the representative of the Simcoe-Muskoka area, OPPI will be giving a separate and far more comprehensive brief, I think the next turn after mine, so I'm speaking on my own behalf today. For that reason, I'm going to have to be slightly immodest to tell you why I think I'm qualified to do that.
I have acted as a planning consultant for the past 25 years in this province through four versions of the Planning Act, and in many of the municipalities that the members of this committee represent. I've done work in Kingston; I've prepared London zoning bylaw. We currently act on behalf of about 45 municipalities from Kenora through to the Brockville area.
I've appeared about 200 times in front of the Ontario Municipal Board, many times on minor variance applications, and four years ago I was retained by the Sewell commission to prepare a report on the adequacy of the planning process from the perspective of municipalities in Ontario. I have one copy of that which I'll leave with you.
For the past three years I have been on contract to the provincial facilitator's office to act as a mediator in minor variance disputes in their pilot project, which was very successful and which I'll speak about.
On the basis of those experiences, I'd like to make two or three comments.
First of all, planning decisions at the local municipal level are usually the most significant local decisions that affect people's lives. They are the most controversial ones because they hit you where you live, literally. Whether it's at your home or your cottage -- and I'm also a member of the Lake of Bays Association, by the way -- people react generally negatively to proposed change because it represents the unknown and they don't know what it means. I think you heard a lot of that from the previous speaker. The push generally is, we need rules so that we can be sure that developers will follow them.
The Planning Act in Ontario, and I say this from the perspective of one who has reviewed the planning acts in the 10 other provinces and two territories, is in my opinion an extremely good one, and has been, and it has two key elements that make it so.
First of all, the public nature of the process, which is mandated by the Ontario legislation, makes sure that all parties, including the cottagers' associations and the next-door neighbours, have the available information. We did some research with Decima Research to investigate why people didn't like high-rise apartments, and we discovered it wasn't that they didn't like high-rise apartments; it was that they felt left out of the process. They felt they didn't know as much as other people. That led to the fear of the unknown. The act allows the information to be out; in fact, it mandates that information be available. The public meetings give an opportunity for everybody to be heard, and then you leave it to the democratic process, which I think is fair.
The second key element which is unique in Ontario to all of Canada is the nature of the Ontario Municipal Board. It allows a clear right of appeal to an objective and impartial body. I have over the last 25 years grown to believe that this is one of the most important factors that make planning in the province as successful as it has been. We change the act to bring it up to date, to reflect the philosophies of the particular government, but it has consistently maintained the role of the board. I can't tell you the number of times I have seen disputes at a local municipal level be resolved by the municipal board, not necessarily because the outcome was something that everybody liked, but because they had a chance to say something and they felt they were being listened to impartially.
I do work in these 45 communities, many of them rural ones, and nothing is worse than a planning issue that has gone on for a decade and is still unresolved, and you still have people yelling at council meetings because they think they are being ignored or they think there's something going on behind the scenes. The municipal board removes that. It leaves communities with a clean slate after these issues are done. So I'm obviously happy to see the municipal board is still being used by the legislation. I've probably conducted planning work in half the municipalities in this province, and no matter whether it's rural or urban or north or south, whether it's a minor variance application or a large-scale amendment, the role of the board is important in every one of those kinds of applications.
With respect to the proposed changes to the act, I was first of all very impressed by the delegation of authority down to local municipalities, and that comes very much from the work we did for the Sewell commission. We went out to a sample of 40 municipalities, I think it was, in Ontario, and they were sampled according to large urban, small urban, large rural, small rural, fringe municipalities, northern municipalities. We asked them what was good or bad about the act. Remember, this was prior to Bill 163.
What they told us and what we brought back to the commission was that the current problems, whether they were perceived or real, were primarily related to the administration of the Planning Act at the provincial level: not the act, but the way it was administered.
Secondly, the municipalities told us that the existing legislative framework was adequate. It needed fine-tuning, but it was adequate to provide for appropriate municipal planning right across the province. They said, and I'm quoting from the four-year-old report, "The lack of an appropriate mechanism to mediate conflicting provincial interests has led to planning decisions based on compromise rather than merit." I think the one-stop Municipal Affairs window for appeals to the board and also the provisions, to be fair, in Bill 163 that dealt with that address that issue.
The municipalities said local planning procedures and documents work well because they're geared to local circumstances, and I can tell you that it was very interesting to find that in the majority of these municipalities, the planning staffs had been there 10, 15, 20, and in some cases 25 years. They had grown with their job. They had started in their twenties; they were 45 or 50 years old. They were very competent. They knew what they needed. They knew what was the most appropriate planning for their area far more than the provincial body would. At that point in time four years ago, there was a severe degree of conflict between provincial interests and local interests.
Finally, at that time, municipalities were circumventing the provincial planning and approval process to avoid lengthy time delays. We saw things come through our office like applications for 16 severances to avoid a subdivision application in a rural area. I think that now has disappeared.
I'd also like to suggest that many of the delays that have occurred in the past both at the board and in the provincial approval process were really a function of the time. We went through an incredible building boom. It's occurred three times in the last 25 years. Just to give you some general idea, I think the municipal board five years ago had 4,000 files on hand; now they only have 2,000, and their hearing times have dropped from 18 months to four to six months. So much of what Bill 163 and your bill are reacting to in terms of shortening time frames I think you will find naturally is disappearing in any case.
That's why my comment about the time frames is that you can change the time frames. The stuff that people want will go through very well. It will be fast-tracked. The stuff people don't want will get slowed down because they'll try to resolve it, which is a good way to resolve things, by mediating it or by compromising. You can set 20 days or 30 days. Quite frankly, I've been around long enough to think that won't make a big difference. It's good to have the standards and I have no quarrel with shortening them whatsoever.
Finally, with respect to minor variances, the bill proposes to allow municipalities two choices. They can continue to send appeals of minor variances to the Ontario Municipal Board, but then they are responsible for the costs. When you start working through the details, this is unworkable. Who pays the costs?
The municipalities will not pay the costs of an appeal. They will put in an application form that if you're applying for a minor variance, you will pay the cost of the appeal, in which case let's say I want to put an addition on the back of my house and my neighbour objects; I haven't spoken to my neighbour in 10 years, and we probably are both looking for something to get at the other one with. I'm then put in the position, if he appeals my minor variance, of paying the costs for an indefinite time period which my neighbour can affect by lengthening out. It's impossible. It's like a civil court system where you pay the court costs if you bring an action. It will deny natural justice, in my opinion. I think it will literally be unworkable.
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The other choice is that a municipality does not send it to the Ontario Municipal Board and they conduct some kind of review committee. That's fine, but that's not an appeal. They're reviewing their own decision. I don't think that would be seen as an appeal, nor would the people necessarily have the experience or the knowledge to be able to properly conduct that.
I have been acting for the last three years on behalf of Dale Martin's office in mediating and I'm offering an alternative here to the removal of the appeal, committee of adjustment appeals, primarily in the city of Toronto, although some have gone outside Metro and outside the GTA.
The pilot project, for which I am sure the information is available through the Ministry of Municipal Affairs, was extremely successful. Of the appeals that were mediated over a three-year period, 80% were mediated to the satisfaction of the participants and they did not go to the municipal board. The average cost of the mediation was $800 to $1,000, an amount, in my opinion, that is certainly in line with what could be included as an application cost, or certainly in line with what a municipality, say the city of Toronto, would have no trouble funding, as opposed to sending their lawyers and staff to an Ontario Municipal Board hearing.
The key factor we found in mediating the appeals was the need for the mediator to be appointed by a neutral third party. The first question you're asked as a mediator is, "Who's paying you?" If your response is one of the parties that's in the dispute, such as a municipality, you have a problem in being an objective and neutral mediator.
It's my recommendation to this committee that if the bill continues, and I'm not recommending it does, and the right of appeal is taken away, the province offer through one office or another essentially a brokerage for mediators as a bank. Municipalities could pay into the fund through the application fees or pay after the fact, but the mediators would function at the provincial level and be appointed by provincial office. I don't think the cost is substantial. You conducted the project for three years. It was very successful and you can look at the costs and determine whether that's appropriate or not.
However, if you actually look at what you would be saving by removing the right of appeal, only 6% of the municipal board's time is spent on minor variances. They represent a relatively small proportion of their files. That number has been less in previous years, but I spoke with the secretary of the board yesterday and currently 6% of their time is spent on that; approximately 10% of their files are minor variances, but only 6% of their time. They deal with minor variance files very quickly. They often hold six hearings in one day; they're one-hour hearings.
I also act on behalf of property owners who make applications for minor variances. I have one now, before the city of Toronto next week, to create five new lots in the city and build five homes. That's a minor variance in Toronto; it wouldn't be anywhere else except maybe Toronto, and it's not 18 inches, it's substantial. It's a very effective process in Toronto. The applicant went once, the neighbours didn't like some aspect of it, he was turned down, he came back, he changed the application and he's going back to the committee. He may or may not receive approval, but this will all occur within a three-month period: very fast, very effective. All the parties have a chance to comment; all the ratepayers' groups and the ward aldermen.
If the right of appeal is not there, this developer told me he will turn his applications into rezoning applications, where the right of appeal is available. Anybody can file an appeal and the politics in certain situations are such that you simply can't allow yourself to be turned down without that right to appeal; there's too much at stake.
If even a few minor variance applications get turned into rezonings and go to the board, it takes much longer to hear rezoning applications at the board because generally they are more complicated. They take one to three days. So I'm not sure you would accomplish an efficiency of using the board's time by removing the right to appeal of minor variances, because I think they would be replaced by rezoning files.
I'd be happy to answer any questions.
The Vice-Chair: We have just about four minutes per caucus and we'll start with Dr Galt.
Mr Doug Galt (Northumberland): Thank you for your presentation and for your one sheet with all the information on it.
Mr Lehman: I take the word "brief" to have a meaning to it.
Mr Galt: Just in connection with the minor variance you discussed a bit, taking what I have thought of as a minor variance, you've kind of caught me off guard with five houses as a minor variance. I think more in terms of 18 inches or changing lot lines because a garage is too close, or whatever. Going to the OMB has always struck me as trying to kill a fly with a sledgehammer. It seems to be overkill. This proposal, this Bill 20, is trying to have a fresh look at it.
Do you see anything that might come in between, any other system -- I know you've said 6% of the time of the OMB is being held on it -- and meet your comment about six hearings in one day? That certainly streamlines it. Do you see any other system whereby this might be handled more efficiently?
Mr Lehman: The municipal board now has three mediators itself, and they are also achieving a very high success rate in dealing with applications like that. The difficulty in finding something else that's in between -- I've found in many cases I was given a file, I looked at it and it seemed open and shut; I couldn't understand why somebody was appealing. Yet, when you got into it and you heard them, they were very valid reasons. So I have tried to think about some arbitrary cutoff point, some numerical point where you'd say if it's a variance over X%, but I don't think that will work. All the circumstances are too unique to each one to do that.
But I do feel that either mediation through the board's offices or through the provincial facilitator's office would probably remove the majority of those appeals from going to the board, because those people, if they're neighbours' disputes, just want to be heard.
Mr Galt: The other areas, your very last point here is right on with Mr Gerretsen's comment earlier, "It's difficult, we want to develop, there isn't a person in this room who doesn't want to protect the environment and we want to get on with some development so that there can be some jobs." It seems like there are two big icebergs coming in collision and it shouldn't have to be that way. Do you see another system, similar to his question previously, where by mediation, whatever, these can be brought together in a less confrontational way and accomplish what we're after?
Mr Lehman: I have two comments on that. The first is that I think the theoretical arguments you hear to some degree at this committee from interest groups, at the actual, real level don't work that way. On a very large scale, yes, and we're not trying to balance seriously the economy and the environment. I think people's interests are generally much closer than that kind of a base expression. When it gets right down into an application being filed and people meeting, I don't think that conflict will exist. I don't think this bill is going to change the nature of that.
The kinds of planning that our firm is doing and that I see other municipalities doing is much more community-based. It used to be; you went there, you wrote the plan, you came back and gave it, you waited for comments and then you sent to the minister. The way it happens now is, you form innumerable committees and the plan works from the bottom up. That is not that recent; I think that's the last three, four years. I think strategic planning has flipped over into land use planning and changed the process.
I'm finding far more agreement among people on their basic values in the work we do in communities today
than I did five or six years ago. The kinds of conflicts that we're talking about, sure you're going to see them in Toronto if you're arguing about where a stadium is to go or something like that, but in 95% of the applications, and the official plan amendments that are going to go through, and the plans for communities like Lake of Bays, I think you're going to find people with a commonality of interests that's much greater than it used to be. Part of it is demographic too; we're all sweeping through at about the same time and hold much more similar values than there are among generations.
Mr Gerretsen: Of course, there's another reason as well. In some communities the political leadership sometimes brings these people together before an application is actually heard, or the planning departments sometimes start playing much more of a mediation role. I just have to congratulate you on this one-page summation of your views. You have said exactly how I felt about it then.
I've been involved in a system on one side or the other for the last 20 to 25 years. Most of the problems are administrative. They're administrative processes both at the local level and at the provincial level that simply no longer make any sense, where paper is being shuffled because it has been done in a certain way for a certain period of time. I think it would be a lot better if we took an actual situation and work it through from each side, from a developer's side, from a community group's side, and said, "What are the problems here, and how can we resolve the situation and then come back with an act?" rather than come back with an act that changes some time periods which quite frankly, and I totally agree with you, in the long run don't make an iota of difference. Whether you say 20 days or 30 days, from a practical viewpoint it takes a year to get a rezoning done, it takes nine months to get something else done etc.
This whole thing about minor variances and appeals to the OMB, I'm all in favour of local planning and that planning ought to be finally made at the local level. But what we're talking about here is people's appeal rights, which is something totally different. To in effect have an appeal go back to the same body that is somehow involved in making the original decision is against all the rules of natural justice that have been around for centuries, for ages.
I'd like to know a little bit more about this mediation process that you're talking about, because I really think that if we're interested in the overall total, final welfare of whatever community planning there is, then everybody has got to somehow buy into whatever the final project is. Can it start at an earlier level?
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Mr Lehman: I can do this quickly. It's very important, when you're mediating something, to have a negative consequence if the parties don't come to an agreement. So you have to have, in my opinion, the spectre of a municipal board hearing, with the costs associated with it, as the negative consequence, which means to some degree you can't start a formal mediation till somebody has objected. That's why the provincial facilitator's office was so successful. Mediation started when somebody formally objected to the municipal board, we called them up and we said: "Your choice is this. Go to the municipal board and spend $5,000 and get a decision that you may not like at all, or come and talk with us."
So I think what you're talking about is what many municipalities' planning departments do. They facilitate discussions among the parties. They're not formally mediating, because they have an interest. I think that works extremely well. The city of Ottawa, that's what their planning department does. They won't bring an application to council unless all the parties agree on it. Sometimes it takes four years in Ottawa, but that's the way they work. That is spreading, but it's different than the mediation.
Mr Gerretsen: I have just one other comment. The example you gave on minor variances, where in some municipalities we're talking about an 18-inch setback and another municipality's are five lots etc, that's a realistic thing, and that's why it's so difficult, would you not agree, to define a minor variance in the legislation, because what may be minor in one circumstance simply isn't minor in the next one.
Mr Lehman: There's great case law in this. I think it's good and it should be left. I guess that's what I'm saying.
Mr Gerretsen: I think the ministry would be wise in hiring you to take a look at this stuff from a practical viewpoint, which is basically what it's all about. I don't know you. Have I ever met you before? I don't think so. Okay.
Mr Lehman: No, I don't think so.
The Vice-Chair: That was for the record, right? Thank you very much, Mr Gerretsen. Ms Churley.
Ms Churley: Give my regards to Dale.
Mr Gerretsen: So you know this gentleman, do you?
Ms Churley: No, I don't; I just know Dale. Everybody knows Dale Martin is, was, whatever, a New Democrat. I hope, therefore, that the present government won't fire him. Oh-oh, I've done a disservice to him there. In fact the ideas, especially around mediation, I know Dale has been a master mediator and has a lot of insight into ways that we can solve a lot of problems through mediation.
I just wanted to ask you a very direct question. Are you saying that overall Bill 163, Bill 20, in many ways it doesn't matter that it's the administration that's basically the problem?
Mr Lehman: I'm saying that the problems that Bill 163 and Bill 20 were both trying to address I think lie more in how the act is administered than what is in the act. I'm not saying it's only that, by no means, because clearly some of the problems with administration had to be dealt with through legislation. I'm not faulting individuals or groups of people at all. It's simply that any system made up of people over a period of time needs some kind of change. I think the regular changes to the Planning Act accomplish that. But that the problems were administration, that was the perception of the planners in municipalities.
Ms Churley: I feel that in many ways I have a lot of criticisms of Bill 20, but unfortunately the administrative aspects that are problematic aren't being fixed, in that public participation is being cut down as a way to speed it up, and the ability of ministries other than the Ministry of Municipal Affairs and Housing to appeal has been cut out. Streamlining is fine, coordination is fine, but I just don't think that the real problems are being dealt with here. I think we're going to have to look at that in terms of how we amend the bill.
I wanted to get back to your comment about how you like more municipality autonomy. I was around in government when we consulted for such a very long time on changing the Planning Act. I know there wasn't a complete consensus on, for instance, "be consistent with," and that's something that comes up time and time again. It's quite interesting to me that developers love this bill, with a few exceptions here and there. They love this bill, and on the whole, ordinary property owners, environmental lawyers and policy activists don't like it, are very angry about it and feel that they're being left out. They have really big disagreements about this, for instance, "have regard for" and "be consistent with."
I remember us, as a government, going through all that and being convinced that we needed to go with being "consistent with" for this reason: Municipalities were granted more autonomy; the tradeoff was that there had to be, therefore, some kind of broad provincial policy. Forget about the stupid guidelines, which I admit caused a lot of confusion and problems; the policy had to have broad direction about protection of the environment and sensitive areas and curbing urban sprawl.
Mrs Casey, from the Lake of Bays Association, whom you know, talked about the fact that there are no boundaries when it comes to protecting the environment, and she gave a very good example of that: downstream. I think that's what is really at the centre of the disagreement around that, that there's got to be some broad provincial interest in protecting the environment. The fear is that with just having "have regard for" you can toss it away, ignore it and then go on with local planning, which may or may not have good municipal leadership, and you have a mess in one county or one area.
I guess I should stop here before my time is up and have you comment.
The Vice-Chair: Excuse me, but your time is up, I'm sorry to say.
Ms Churley: Could he answer the question?
The Vice-Chair: Ms Churley, I'm sorry, but --
Ms Churley: I have been timing, Madam Chair, and on other occasions you have allowed people to answer questions when they were out of time.
The Vice-Chair: Ms Churley, I'm sorry. I don't mean to be heavy-handed, but the point here is that it is a three-party agreement before we start the hearing process; we know what we're allowed. I'm sorry, but if you take two or three or four minutes to ask a question in a four-minute allotted time, there's not time for the answer.
Mr Gerretsen: She only had three minutes and 15 seconds, according to my time.
The Vice-Chair: Excuse me, no, she didn't.
Ms Churley: Madam Chair, I have been timing other people. Maybe you mean to stop the practice, but I've noticed people from the other parties at times have taken up all their time with the question and you've allowed time for the answer.
The Vice-Chair: I'm sorry, this is not the time to debate the rules of the committee process.
Ms Churley: Could I have unanimous consent to have this question answered, please? This is ridiculous.
Mr Bill Murdoch (Grey-Owen Sound): This guy's just a winner, isn't he? He just tells you what to do, and you jump, Marilyn. I'm really impressed with this guy. Yesterday he did the same to you. So you don't get unanimous consent.
The Vice-Chair: Excuse me, Mr Murdoch. Ms Churley has asked for unanimous consent. Do we have it?
Mr Murdoch: No.
Interjection: Sure.
The Vice-Chair: We don't?
Mr Gerretsen: I heard unanimous consent.
The Vice-Chair: No, I'm sorry, we didn't hear it.
Thank you very much for attending this morning. We have enjoyed your brief.
SOUTH ETOBICOKE COMMUNITY LEGAL SERVICES
The Vice-Chair: If we could please have the representative for South Etobicoke Community Legal Services come forward. Mr Hale, thank you very much for attending today. I just would like to outline, for the sake of defusing the situation in the future, that we do have a 25-minute allotted period of time. Your presentation can be made however you see fit. If you'd like questions and answers at the end, we will need time to do that. The remaining time will be shared equally between the parties. So please proceed.
Mr Kenneth Hale: Good morning. My name is Kenneth Hale. I'm the lawyer-director of South Etobicoke Community Legal Services, which is one of the community legal aid clinics that provide legal services across Ontario. Our office is in the southwest corner of Metropolitan Toronto, and about half of the work that we do, half of our clients are people who have housing problems. That's why we're here to ask the committee to recommend that the government delete those provisions of Bill 20 that seek to undo the changes to the Planning Act and the Rental Housing Protection Act that were brought into law in 1994 by the Residents' Rights Act; that would be section 8 and section 73. That would make unnecessary the transitional provisions in section 45 and the complicated municipal registration process in section 59, and we would recommend that those be deleted as well.
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We've been in the business of representing low-income people in our community for the last 10 years. During that time, and under provincial governments of all three major parties, the lack of affordable housing has been one of the most serious problems in our community. However, like many other places in Ontario, our community is governed by a local council that doesn't like to admit that poor people live or work within its borders and tries to maintain an image that it's an affluent suburb made up exclusively of fancy homes on tree-lined streets with professional fathers and stay-at-home mothers. That really isn't the reality of the city of Etobicoke or many of these other municipalities that try to maintain this exclusive image.
In the city of Etobicoke there is a high incidence, as there is in other municipalities, of family breakdown, of job loss, of disability. This means that the income required to maintain a single-family home on a tree-lined street just isn't there for a lot of people. Nevertheless, people, because they were brought up in Etobicoke, because they have ties there of friends and family, because they appreciate the public investment we've made in amenities there, want to live in the city of Etobicoke. Out of economic necessity a lot of these people have to live in rental accommodation, whether it be in a high-rise apartment, a flat above a store or a secondary unit in what once was a single-family home.
But the city of Etobicoke doesn't really like to acknowledge that we have tenants in secondary units and has tried its best to ban such units from certain parts of the municipality or to tie up their creation or regularization in needless in red tape. This is seen most recently in their official plan amendments which they had before the municipal board when the Residents' Rights Act was passed. They claimed the amendments were going to address the need for housing creation through second units, but they kind of rendered them not able to be passed.
They amendments they were looking at in their official plan would have said, "You can have a second unit in your house as long as the owner lives there." If the owner lives there, has a second unit, and decides to retire to Florida, they wouldn't be able to rent out the unit they had lived in. They had parking requirements for onsite parking which were completely unnecessary in most cases, and they didn't permit the exterior of the house to be altered in any way from its original appearance. It's basically a recipe for not allowing the units at all.
If Bill 20 is passed in its present form, we're sure these restrictions are going to come back in the same form or even stronger than they were originally in this official plan, and we're asking you not to let it happen.
These restrictions are completely unnecessary. They interfere with the small-scale, small-investor development of rental housing, rental housing that we need. We don't ever think of trying to limit the number of cars that individual homeowners can own or the number of children they can have. We rely on people's common sense and their sense of concern for their community to make sure they don't make their houses unattractive and unpleasant to their neighbours. But as soon as somebody from outside the family moves into some part of the building, all of a sudden these people are a threat to the social order, and it doesn't make any sense.
Our major concern is that there is a shortage of housing available in Metro for low- and moderate-income people. The overall vacancy rates are plunging. The market made up of housing low-income people can afford is even tighter; there is a very limited number of vacancies for moderately priced housing. Over the past 10 years that I've worked in this clinic, the problem has remained. It doesn't seem to have got too much better despite the fact that the previous two administrations had a commitment to address affordable housing and to provide affordable housing.
We don't really think it's going to get any better now that we have a government committed to getting out of the housing business and letting consumers fend for themselves. So far these new policies haven't created any rental housing in our community, and in fact the government has reneged on commitments previously made by the province to provide new units of affordable housing in the non-profit sector, so the situation is getting worse.
I don't think anybody would say that basement apartments or second units are going to solve the housing crisis. Even the best apartments in houses have potential problems at least, such as incompatibility of the occupants with each other, the overall safety of older structures as opposed to new structures, the lack of long-term security of tenure for tenants of these second units. We think purpose-built rental housing, whatever sector it comes from -- public, private, third sector -- has inherent advantages over second units, but when the province refuses to make any efforts to build new housing complexes, the gradual addition of second apartments takes on an added importance it might not otherwise have.
We think many of these units are going to be created whether or not the municipalities or the province permit them, but Bill 20, first, works to discourage people from creating these units, but second, it makes a choice about what kind of status the people who live in them will have.
That brings us to our concern about the status of people living in these units. We consider that they're in legal limbo, despite the fact that the Landlord and Tenant Act, if you just read it, makes it pretty clear that a tenant is a tenant is a tenant. If you live in premises used or intended for use for residential purposes, you're a residential tenant; you're protected by rent control, you're protected by the security-of-tenure provisions in the Landlord and Tenant Act. There's no exception in the Landlord and Tenant Act for illegal units, and they should have all the rights that every other tenant has.
However, in the real world, the courts and municipal officials don't always look at it that way. They don't like people to do illegal things. They tend to see tenants and landlords as working together to circumvent the municipal council's will, with the result that building inspectors won't make orders for landlords to bring up health and safety in these illegally zoned units. If a tenant calls an inspector to come in to deal with a repair problem, the inspector's more likely to order the tenant to leave the premises than to order the landlord to do the necessary work to protect the family's safety.
Similarly, the courts in many cases have refused to give assistance to tenants who have problems with illegal evictions or are seeking repair orders from the courts, because of the illegal zoning they're caught in.
But it's our position that it shouldn't be up to the tenant to determine whether an apartment they rent is in compliance with the zoning bylaws. When the landlord buys a property, they usually get a letter from their solicitor telling them what the zoning is for the property and what uses are permitted there, so the onus should remain on the landlord for the responsibility to comply with these zoning bylaws.
We see tenants who rent illegal apartments as victims, but they're the ones who end up getting punished by losing their homes. As long as these units and the tenancy agreements around them are treated as illegal, the individuals are going to be treated as second-class citizens. We believe this kind of outlaw treatment encourages landlords to evade paying taxes on the rents they receive; it encourages them to undertake renovations without building permits or inspections leading to health and safety and possibly liability problems. To let municipalities go back and re-illegalize these apartments is sort of giving the provincial seal of approval to this black-market approach.
I know there are provisions here for a registry for two-unit houses. If it were a provision that all landlords had to submit their names and addresses and emergency phone numbers and pay fees in order to carry on business as landlords, to sort of weed out the bad apples from of the landlord business, we would support it 100%. But that's not really what's proposed.
First, we allow the municipalities to continue to ban second units if they want to. If they want to allow them, they can set up the same kind of unreasonable restrictions on the creation of these units. If some units manage to get through that bureaucratic maze, we have a registry that says they're there.
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What happens to the tenants of these units if the landlord forgets to apply for registration or if the registration gets revoked? Are these people even going to be entitled to present their cases in court, or are they just going to be considered to be occupants of illegal units, ordered by the municipality to leave?
The registry seems to talk about a concern for the health and safety of tenants but doesn't really address it in any meaningful way. We're concerned about the health and safety of tenants as well, and we think the only realistic way to protect that health and safety is to recognize that the people who live in these units are tenants like everybody else. They have the right to enforced municipal or provincial housing standards, without the threat of eviction by the municipality. I can tell you, the threat of eviction by the landlord for people who make these kinds of complaints is real enough that it discourages many frivolous complaints.
What is being suggested is that we have a whole bunch of different classes of apartments without any real distinction between them. We have the existing legal apartment, we have the pre-November 16, 1995, legal apartment, we have the registered apartment, we have the non-registered apartment that would otherwise be legal, and we have the illegal apartment. How do you know when you look in the Toronto Star and see "apartment for rent, $600," which category you're in and what exactly your rights are, and what's the point of having all those different categories? It's confusion for landlords and tenants, a waste of municipal resources, which are getting scarcer by the day, and it doesn't do anything to protect health and safety.
I'd like the members of the committee to recall that the apartment-in-houses provisions that were in the Residents' Rights Act were a compromise enacted by the provincial government after a long series of consultations with all kinds of people from all kinds of interests. It placed modest restrictions on municipalities' zoning power. It didn't solve the housing crisis, but it added some new protection to tenants who were facing housing options that were shrinking and it provided new opportunities for small-scale investment in rental housing.
The Bill 20 approach turns back the clock and adds a few little decorations, but it's really an attempt to justify turning a blind eye to a serious social problem: the lack of affordable housing.
There is a clear provincial interest in the provision of affordable housing for people who live and work in Ontario. Our economy can't grow if people don't have places to live. But some municipalities, including the city of Etobicoke, would prefer that their neighbouring municipalities take on the burden of supplying schools, parks and social services to low- and moderate-income people, and they attempt to use land use policies to keep out low-income housing in many ways, even in what I would suggest has to be the most innocuous form of low- and moderate-income housing: the second unit in a house.
That's why it's necessary for the province to take action and restrict their abilities to impose these restrictions. Without an authoritative provincial statement that zoning bylaws can't be used to exclude people based on income or can't be used to regulate the relations between people who live in a building with each other, certain municipalities will keep trying to do so, and all this does is put pressure on other municipalities to accommodate those who are excluded by that municipality.
We recognize that the present government is trying its best to distance itself from the actions of the previous administrations, but we hope the committee will remind the government that not everything done in the last 10 years has to be scrapped.
The Residents' Rights Act provided something for tenants, it provided something for landlords, it provided something for the general public. If you recommend to the government that it repeal it just to make some kind of ideological point, I think that's encouraging the government to abuse its legislative power, and we hope you recommend that it doesn't.
Mr Gerretsen: I hope you're right on that last point, but I'm not sure they aren't trying to make a point. As the last speaker indicated, there are more administrative problems in this whole area than legislative problems.
The one question I want to talk to you about is this whole notion of registration of second units. I would like you to expand on why you're against that. It seems to me that this gives protection to the tenants as well. We're against this whole notion of outlawing the second units at all, that they're no longer allowed and making it a municipal decision, because once the right's there, it's there and it shouldn't be taken away. But what is really wrong with registration? I just haven't found that argument to be quite convincing.
Mr Hale: I guess there isn't anything inherently wrong with it, but it's kind of useless, in my view. There are health and safety concerns in all rental housing. The tenants who live in the two-unit houses are going to be a small minority of the tenants in any municipality, or in most municipalities, I would expect. So what's the point of registering the owners of a small, select group of apartments and leaving everybody else just to do their own thing?
We already have a system of rent registration. Then we set up this whole separate register and we empower the municipalities to set up this separate registry for one little, narrow class of apartments. It doesn't make any sense. It just seems to me to be a form of bureaucratic harassment in order to discourage people from doing this, when you get right down to it.
Mr Pat Hoy (Essex-Kent): Thank you very much for your presentation. It has some opinions that are slightly different than others who have talked about second-unit housing, or basement apartments, whatever phrase you want to use. However, I want to make a comment. The notion in a negative way against these units is maybe not as strong as it could be, the issues of parking, number of children.
I'm sure you have likely been through areas we'll call affluent that have three-car garages, and yet that very same family is parking on the street with their fourth and fifth car. I've seen it myself.
So that notion doesn't hold water with me, nor does the number of children, provided that the number of children individuals have is a choice of their own. Of course, the accommodations would have to suit the size of the family, I would have to say.
An example I know of is an uncle of mine who had the good fortune, he and his wife, of having four sets of twins. That's not predictable, that you're going to have twins on every occasion.
Mr Gerretsen: Thank goodness.
Mr Hoy: I find those particular arguments not to be very valid at all.
Mr Hale: Those seem to be the main arguments against intensifying occupancy.
Mr Hoy: I don't find it is a valid one, I want to say to you. And I think your question to the government as to what's going to happen with the registry, the non-registering of some units and whether clients within those units would be able to go to court, is a very good one for the government to consider. You call it a legal limbo, and I think it's quite valid.
Mr Howard Hampton (Rainy River): I'll ask you the same questions I've asked a number of other groups that have spoken on this issue. Regardless of what the government does, whether it continues to provide for second units or whether it in effect takes away the legal status, the legal framework for second units, my sense is there will be more second units. Whether they're legal or illegal, there will be more second units, because there's such a great demand for this kind of housing and there's a potential supply of it and the potential suppliers of it probably need additional income themselves. Would you agree with that?
Mr Hale: I think that's probably true. I think that the overall legal regime is going to influence how many there are and that if you have a supportive legal regime, there's going to be more, and if you have an atmosphere of cracking down on them more, you'll have less. But there are still going to be a lot out there, whatever the law is.
Mr Hampton: It seems to me that what really turns on this law is that if their legal status is taken away, we will have potentially hundreds of thousands of people living in the province who may be living in very unsafe conditions, from the perspective of fire safety, electrical safety and those sorts of things, and they will have no way to enforce the upgrading of those very important safety standards.
Mr Hale: Right. That's a very large concern of ours: apart from the lack of security of tenure, the lack of an ability to make complaints to municipal authorities or provincial authorities about the state of the housing. That's really where you're going to get this upgrading from. When the tenants who live there have concerns, either they'll address them with the landlord, or if the landlord won't address them, they should have somewhere to go.
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Mr Hampton: In effect, what the government's doing is sort of creating a second class of citizenship. The government's saying: "We know these apartments are going to be created. We know there's going to be a demand for them. We know that some other people will provide them, will supply them, because they most likely need additional income as well." But the people who live in them essentially won't have the citizenship rights that other folks have to ensure that they're living in a healthy and safe environment. Would you agree with that?
Mr Hale: I think generally, yes.
The Vice-Chair: Ms Churley, do you have anything to add? You have half a minute here.
Ms Churley: No, thank you.
The Vice-Chair: Mr Baird.
Mr John R. Baird (Nepean): Can I have her half-minute?
Ms Churley: No.
The Vice-Chair: No? You have three minutes.
Ms Churley: And I'm timing you.
Mr Baird: The issue I want to deal with is the issue of local autonomy. I took a great interest in Mr Gerretsen's comments that the Liberal Party was against this. I noticed in reading the minutes from the Bill 120 hearings that they had voted against this piece of legislation when my colleagues from the New Democratic Party brought it in. In fact, one said, Joseph Cordiano said in the hearings that it was using a one-size-fits-all solution right across the entire province.
I guess one of the issues coming in is the ability for the local governments to set local priorities and that they're best able to know what goes on in their own communities and best able to make that determination. They're the elected representatives who are the closest to the people. There's more of them and the community generally speaking has better access to them, because simply the ratio is smaller. I know that's certainly the case in my community. What are your thoughts on that?
Mr Hale: I think I addressed that in my brief. Tenants and people in general don't see these municipal boundaries when they're out looking for a place to live. If these kinds of apartments are excluded from the city of Etobicoke, then people are going to look for them in Mississauga or the city of Toronto or the city of York. So what it is in a way is the more affluent municipalities sort of excluding people and pawning off those potential social problems and the costs associated with that on to other municipalities that are more willing to take it.
That's why the province has to step in and say, "There's an overall provincial interest here in the provision of affordable housing for all the people of Ontario." I think it's a wider interest than the municipalities. I mean, the municipality can regulate the width of the streets and the width of the lots and the height of the houses and all that stuff, but that doesn't mean that they should be able to say this whole group of people can't live in this municipality, and essentially that's what they're doing with these kinds of restrictive legislation.
Mr Baird: Just on one quick point, Mr Gerretsen brought up the issue of, wouldn't the registry created in municipalities help tenants being able to ensure that safety standards are met? I would certainly agree with him. What are your thoughts on that?
Mr Hale: Well, you wonder how many municipalities are going to really put any substantial investment into this registry. Are tenants going to be aware that the registry is even there? What's the purpose of the whole thing? My view is it's just a decoration and the present government can say, "Well, we're not going with the old policy, which everybody realized wasn't too good. We've got this new policy which has this registration feature," but it's not really useful for anybody.
Mr Baird: I suppose the details would be the administration of it, which is I think probably a fair statement.
Mr Hale: What we would see is if tenants have the right to call up the municipal inspector and say, "My place is unsafe, I think. Will you come and inspect it?" without the fear of the municipality evicting them, that's how you're going to get the safety upgrading, because these are the people who have the concern.
The Vice-Chair: Thank you very much. We've appreciated your presentation this morning.
Mr Gerretsen: On a point of order, Madam Chair: I'm, first of all, very gratified to hear that Mr Baird listens to every word that I say here. It's certainly gratifying to hear that.
Ms Churley: He's learning a lot.
Mr Gerretsen: But I think I should also point out that once a right is given to an individual, it's much more difficult to take it away from that individual, and that's the major difference between our position now and the position then. But of course Mr Baird and I weren't here.
The Vice-Chair: Excuse me. Mr Gerretsen, I don't know that it's a point of order.
Ms Churley: Excuse me, Madam Chair. I have a couple of questions. I'd like to ask if the parliamentary assistant to the Minister of Environment and Energy, Dr Galt, has tabled a list of stakeholders, which he told us about on Tuesday, February 13, who he'd met with the previous day.
The Vice-Chair: In response to your question, the secretary is now checking with his office. To the best of his knowledge, he has not yet received them.
Ms Churley: But they are coming, to your knowledge?
The Vice-Chair: To the best of my knowledge.
Ms Churley: Okay. My second question is, I asked yesterday if the Ministry of Municipal Affairs and Housing could table the list of stakeholders he had met with during his consultations re the draft Planning Act.
The Vice-Chair: I would like to forward that question to Mr Hardeman. He's the PA to the ministry.
Mr Hardeman: We are preparing that list and it will be forwarded in due course, hopefully very quickly.
Ms Churley: Thank you very much. Could I just check with Dr Galt, because I assume that he knows the answer? You are tabling the list of stakeholders you met with?
Mr Galt: We did not agree to that on Tuesday when you requested it. I said I would look into it, and we are prepared to provide an overall list of all of the stakeholders who have given input, whether it be to staff or to the political route or to whichever ministry. There is an overall group that we will provide.
Ms Churley: But you are not prepared to provide the specific list that you yourself brought up in this committee whom you said you met with on Monday afternoon? It's that list that I'm interested in, because that is what you yourself specifically talked to this committee about, which is why I would like to see that specific list.
Mr Galt: I made reference to who I was meeting with that day. I don't think it adds any value to this committee in the hearings to be coming up with the details of who we met with and which ministry and which staff met with. I think it's an endless, ongoing request. I think the overall list of all the stakeholders who have contributed to this government should be quite adequate.
The Vice-Chair: Thank you.
Ms Churley: Madam Chair, I'm not satisfied with that answer. The parliamentary assistant made it very clear himself that he was extremely proud of the meeting that he held with these stakeholders, which included environmentalists. He talked to this committee -- indeed, bragged to this committee -- about how environmentalists approached him after the meeting and told him what a good job he had done on reaching consensus. I think, given some comments made yesterday about overall perception, real or not, about this government's consultation, if you have indeed met with a broad variety of the stakeholders, why not submit that? What are you trying to hide? What are you afraid of?
Mr Baird: Point of order, Madam Chair.
Ms Churley: I would think that you would like to have us see this list.
The Chair: Point of order?
Mr Baird: I would ask you to rule whether this discussion is related to our hearings on Bill 20. We have agreed to meet to consider Bill 20. I don't believe this is under the purview of the committee's deliberations. We have some witnesses who have taken a tremendous amount of time out of their day to appear before us and prepare presentations, and I would suggest that this is not under the purview of the committee and to move on.
Mr Gerretsen: But it's a point that was raised by your own member.
Ms Churley: He raised it in this committee, not me.
The Vice-Chair: Excuse me. The hearings are held so that we can have witnesses and delegates come forward and make presentations. If we would like to continue this discussion at the end when all of the scheduled participants have been here, prior to breaking at lunch, we could do so.
Mr Baird: Madam Chair, I'd like you to rule, though, if this is topical to our discussions.
Mr Hampton: On that point, Madam Chair: It seems to me if you're going to rule, you at least ought to allow some discussion of the point that is under consideration.
It seems to me that the parliamentary assistant came to this committee, and in front of witnesses stated that he'd had a very successful meeting and that there were all sorts of stakeholders. We asked if the list could be provided. We were told yes, it could be provided.
Mr Baird: No, you weren't.
Ms Churley: You'd look into it.
Mr Hampton: You'd look into it, and you've just indicated that, to the best of your knowledge, that is being provided. We'd simply like to know, when is it going to be provided and how detailed is it going to be?
It seems to me that as part of democratic debate, someone cannot come to a legislative committee, make statements --
The Vice-Chair: Mr Hampton, excuse me, if you don't mind. I have requested that we proceed with the hearings we're at this morning. If we would like to discuss this prior to breaking for lunch, I would be pleased to add it to the agenda at that time.
Mr Hampton: It seems to me, Madam Chair --
Mr Hardeman: Thank you, Madam Chair.
The Vice-Chair: Now I would like to call forward, please, the next delegation, from the Ontario Professional Planners Institute. Sorry, the city of Etobicoke, Laurie McPherson and Bruce Ketcheson.
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Mr Hampton: On a point of order, Madam Chair: I believe Mr Baird requested a ruling from you.
The Vice-Chair: Not to debate it further, but I also recall that you asked us to come back to the point of discussion, which we were doing. I have ruled that if we would like to stay behind after all delegations this morning, we'd be pleased to add it to the agenda and discuss the issue at that time. The people here this morning are here to make presentations and I would like to carry on with those presentations.
Mr Hampton: On a point of order, Madam Chair: I think if you want to defer it, you'll need unanimous consent for that. A point has been raised.
Mr Murdoch: The Chair's ruled. Let's get on.
The Vice-Chair: I am ruling that it is not a point of order and it does not require unanimous consent.
CITY OF ETOBICOKE
The Vice-Chair: I would ask then that the participants who are before us now proceed. We do welcome you to our hearings. Just so you are aware, we do have a 25-minute time allotment, and during that time allotment you're free to make your presentation. If you would like questions and answers, if we have time at the end, the question and answer period will be divided evenly between the three parties.
Mr Bruce Ketcheson: Thank you very much, Madam Chair. I might add, I wish I was a member of the Ontario Professional Planners Institute, but unfortunately I'm a solicitor.
Interjections: Oh, no.
Mr Hampton: Let us go back to our debate then.
Mr Ketcheson: That wasn't my presentation.
Mr Gerretsen: It's better not to admit that.
Mr Ketcheson: Well, having made that admission, my name's Bruce Ketcheson. I'm here on behalf of the city of Etobicoke and I've got with me Laurie McPherson, who's the director of policy planning for the municipality.
We thank the committee for the opportunity to allow us to come forward on behalf of Etobicoke and make some remarks to you concerning Bill 20. We have circulated with the clerk of the committee a staff report which basically outlines the comments of the municipality.
Basically what I can tell you is that Etobicoke supports many of the proposals contained within Bill 20. We think it's a useful initiative. It recognizes and enhances local planning autonomy and it also provides important reforms in terms of trying to streamline the planning process.
There are four areas within the bill that we want to comment on this morning, and these are summarized, if you have the report, on the very first page under the section "Recommendation," and those four points basically are what we're going to be addressing.
Very briefly, the first of the points relates to the proposed changes to the appeal process involving committee of adjustment or council decisions related to minor variance applications. That really is the major area of concern for the municipality.
As you're probably aware, under the Planning Act for many years we've had a system whereby an individual could go before council or committee of adjustment and request a minor variance from a zoning bylaw, and a decision would be rendered after a public hearing. Once that decision had been issued, there was an appeal right to the Ontario Municipal Board that was available, not only to the applicant, but to any other party who had participated at that time.
As a municipal solicitor, I've appeared before the board on numerous occasions with respect to minor variance appeals. I've gone for the municipality, I've gone for private property owners, and it's been my experience that this system has worked quite well. In the city's view, it would be a mistake to remove approval or appeal powers from the board and to transfer them down to the local planning level.
Etobicoke council does not want to get involved in any way with having to adjudicate appeals coming out of minor variance applications at the committee of adjustment. I think the fundamental concern they have is that they are a political body. They have a responsibility to enact the bylaw, they have a responsibility to respond to local concerns expressed by the community in a political sense and they don't have the expertise or the resources to take on essentially what is an adjudicative role of appeal.
The Ontario Municipal Board, in my view and in the view of the people I'm speaking for this morning, represents a very important safeguard in the planning process. It's an independent tribunal. It's got expertise in terms of determining issues which are essentially technical planning issues; they're not political issues. The board should be allowed to carry forward that function which it has performed for many, many years. There's a very strong concern at any suggestion that the municipality, the local council somehow should become involved in terms of the adjudication of appeals coming out of the minor variance applications.
I might note as well, in terms of the sections in the bill which talk about the process as to how this would be contemplated to be done, in terms of filing of appeals, submission of briefs, it would be very cumbersome for a municipality to try to respond within the time frames being proposed under the bill in terms of dealing with appeals that might be brought forward to council for determination.
Again, because of the political nature of council's function, there's a real concern here that if you ask the municipality, the local council to adjudicate on these types of planning appeals, there could be a perception of bias, because again, these are politicians and they're being asked to make planning decisions when their main function is one of passing bylaws and making political decisions.
There's another significant concern related to these proposals, and that relates to the suggestion that the local municipality should be required, on an appeal to the Ontario Municipal Board, to pick up the cost for the board's proceedings. As I can certainly say to you, Etobicoke appreciates the desire on the part of the provincial government to try to streamline its proceedings to try to control costs. I can tell you, in terms of the local municipalities, that they had the same constraints in terms of their budgeting, which requires them to try to streamline their process and try to control costs. In both cases, whether it's the local municipality or the province, they're dealing with taxpayer funds.
In terms of the minor variance appeals to the board, these basically are private disputes; these are disputes between property owners. When an appeal is started and sent off to the Ontario Municipal Board, in terms of Etobicoke's perception of it, that really should be the responsibility of those who cause the appeal and those who participate in the appeal to carry the cost of. The municipality should not be saddled with the burden of carrying the cost for what is basically a private dispute.
In fact, one of our concerns is that if you say to people, "The city will pay the cost for your appeal," you're simply encouraging people to file appeals. Whether they have reasonable grounds to bring the appeal forward or whether the appeal is totally frivolous and vexatious, there will be no burden to them in terms of the cost; the burden will really come out of the public taxpayer.
I can appreciate, in terms of the board's process and in terms of the government's pocketbook, that there is a need to try to control these costs, because again, it is being funded publicly. I'd like the committee to recall and remember that the city, of course, pays the cost for the committee of adjustment process and at the current time the province pays the cost for the board process. It would be our submission to you, in terms of looking at the existing system and trying to make it work better, that one thing that should be considered is raising the cost for filing an appeal, which has to be paid by the party who launches the appeal.
Another matter which has been addressed through the bill and which we think is quite useful is enhancing the ability of the Ontario Municipal Board, when an appeal has been launched, to dispose of that appeal without the necessity of going through a full hearing. Whether that's done through mediation or through motions to dispense with frivolous and vexatious appeals, it's one way to try to clear the backlog and the traffic jam which has built up over the years in terms of the board's dockets.
A third area which should be explored -- and this probably goes more towards the board's own internal processes -- is to enhance the ability to award costs against an unsuccessful party if it's found that they brought an appeal forward for improper purposes. The emphasis, the incentive, the onus really in our submission, in terms of costs, should be on those who caused the proceeding to be held and those who bring the matter forward for hearing before the board.
One other matter I might just note in term of the proposed appeal process under Bill 20 is that from a legal perspective, it's probably open to challenge because different rights of appeal are being provided depending on the nature of the committee which hears the minor variance application.
As this bill is structured now, it's open to council to take on the role in first instance as the decision-maker with respect to a minor variance application. Alternatively, council can have a committee of adjustment with a council representative, or more than one representative, on it. In both of those cases, of course, it's proposed that the decision of the committee or council is final, that there are no appeal rights. If, however, the committee of adjustment is composed with no council representation, no political element to it, then we have an appeal remedy. It's my submission to you that the courts would probably strike down that type of mechanism because it provides unequal appeal rights to parties depending on the type of committee or type of council composition that is being put forward to deal with the application. I think there would be serious concerns, with respect to natural justice considerations, about having appeals available in some cases but not in others.
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If an applicant were faced with a situation of knowing, for example, that there was no appeal right because you had to go before council or before a committee with a political representative on it, if they were concerned that they weren't going to get fair justice before the committee or council, probably what would happen here is that people would decide to start filing zoning applications in lieu of minor variance applications, because they know with a zoning application, regardless of what the council decision is, they're going to have a right to take their appeal to the Ontario Municipal Board.
I don't think that would be in anybody's interests, because as you're probably aware, in terms of zoning process, at least in Metro, it can be a very long and costly endeavour. One of the main reasons we have minor variance applications is to provide a less costly and faster route in terms of dealing with planning disputes or zoning disputes.
The second matter that I want to touch on briefly simply relates to a request for clarification of one aspect of the bill which is dealt with under section 9. This deals with the granting of exemptions from the necessity for approval of an official plan or an official plan amendment by either the Minister of Municipal Affairs or the approving authority. We've gone through the wording of the bill and, while we support the notion of these exemptions being provided, it's not clear to us as to how these exemptions would be applied for or issued or at what point in the process this would have to be dealt with in terms of the processing of the official plan documents.
So we simply ask the Ministry of Municipal Affairs staff or the Clerk of the Legislative Assembly, I suppose, whoever drafts this material, to give some thought to try to clarify exactly how that exemption would be dealt with.
The third matter I want to talk about briefly relates to section 13 of the bill, which deals with the information that must be filed in order to start the time frames running under this process for dealing with applications. As you're probably aware, under Bill 20 what is established is a fairly restrictive set of timing requirements under which the municipality, once it receives a zoning application or development proposal, has to deal with it. As I understand it, Bill 20 reduces in half many of the time frames that were established under Bill 136 in terms of the city's turnover of development applications.
Etobicoke has no problem with working with these shorter time frames -- and, again, we accept that there's a need to streamline the process -- but the one area of concern that we have relates to what starts the clock running. Under this bill, there is discussion about the notion of prescribed information. In other words, there will be a regulation, as I understand it, enacted under Bill 20 which will say, "Here is the type of information you as an applicant must file in order to get the clock started."
Under the old planning legislation that predated this, this information could be defined not only in terms of the regulation that was passed by the province but also in terms of information requirements that the municipality itself would set through its official plan and procedural bylaws. Our concern basically is that there may be information that council or staff for the municipality feel is essential in terms of responding to an application that may not be required as part of this prescribed information. The municipality doesn't want to be faced into the situation of having to deal with an application if it considers that the information base is incomplete.
The last matter I want to talk about, very briefly, relates to accessory units. I heard the presentation by Mr Hale and I can tell you that my client actually has been quite proactive in terms of providing housing opportunities within its bounds and has no interest in trying to simply exclude accessory units within any area which is appropriate to carry them within the municipality.
Etobicoke has always been concerned, like a number of other municipalities, that it should, in terms of carrying out this obligation, have appropriate powers to regulate, to inspect and to establish safety standards for what are essentially new units being carved out of existing dwellings. In that regard, we find the provisions of Bill 20 are quite appropriate and we support them.
The only concern that we would express to the committee for consideration is one related to timing. If you look at the transitional provisions which are set out under Bill 20, what they say is that from the time the bill was first enacted, November 16, 1995, from that time forward no accessory unit will be permitted as of right unless the municipality provides for it.
From a legal point of view, that creates a problem because Bill 20 currently is not in force and the municipality remains subject to the current Planning Act, which does provide for accessory units within these residential areas. In fact we have had a situation now where a building permit has been issued after November 16 to a property owner who wanted to create an accessory unit in his basement apartment. If Bill 20 in its present form is approved, then the question will come up as to what is the legal standing of that property owner in terms of his building permit. He got the permit after November 16, yet in terms of the wording of this legislation, he wasn't entitled to it.
The easy way out of this conundrum would be simply to indicate that Bill 20, in terms of this restriction, will come into force at the time it's proclaimed by the government. Up until that time, anyone who gets a building permit or occupies one of these accessory units should be simply entitled to carry on with a legal use or occupation or construction of the unit.
Those are my remarks. If there are any questions, I'm going to hand them over to my friend Ms McPherson here to respond.
The Vice-Chair: Thank you very much. We have 12 minutes remaining. Each party will be entitled to share that time equally. I would like to start with Ms Churley.
Ms Churley: Could I change the rotation here? I can't find my document. Does the clerk have an extra one? Thank you very much.
Are you the city solicitor?
Mr Ketcheson: I like to think I am and I guess I am.
Ms Churley: That wasn't clear to me. Does the city of Etobicoke allow basement apartments?
Mr Ketcheson: Currently they're allowed in accordance with provincial legislation.
Ms Churley: Yes, but prior to that legislation, as a city council, was it one of the municipalities that allowed them?
Ms Laurie McPherson: Maybe I can answer that question. The city had a new official plan that was approved in 1992 that would allow accessory units under certain conditions. Those provisions were deferred by the province when they approved the official plan because of Bill 120 at the time and the provisions of that, which were coming into effect. To date, those provisions are still deferred, so technically, no, except in areas of Etobicoke where the bylaw would permit them. There are some areas in our lakeshore that would allow them, but in the rest of Etobicoke, because the official plan has been deferred, technically, no.
Ms Churley: So how long has the official plan been deferred?
Ms McPherson: It was approved in 1992. The provisions for accessory units were deferred.
Ms Churley: For what reason?
Ms McPherson: Because Bill 120 was coming about and some of the provisions that we put in our official plan were not considered appropriate by the province at that time. When Bill 120 came in, they were permitted anyway and there wasn't really a great need to deal with the deferral, but now it will have to be dealt with.
Ms Churley: So now it will be dealt with again and at this point you don't know if the city council will approve or not approve.
Ms McPherson: Yes, it is a permissive policy, given certain conditions, and one of them was the right to inspect, and the provisions for registration will now allow that. We have made some headway with the fire regulations recently, so there were a couple of other provisions which would have to be fulfilled.
Ms Churley: Do you have concerns about the bureaucratic process of the Planning Act? It appears to me that this bill focuses mostly on trying to speed up the process, deal with red tape, limit public participation, limit time periods for notice and responses. But it doesn't deal very well and we've heard on several occasions that a big problem with the time delays is actually the province and municipalities themselves, because they don't have in some cases -- and now with downsizing and cuts to the municipalities of up to 47% from the transfer payments, a huge problem in delays within the system is actually at the bureaucratic level, getting the information out, doing the work that needs to be done. Would you say this is true, in your experience?
Mr Ketcheson: In my experience, what we've seen in Etobicoke actually is a decline in development activity over the last four or five years. My own personal observation would be that there probably is surplus capacity available within the existing resources to deal with development applications and to move them forward.
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I know Etobicoke council is quite committed to trying to streamline its process so that those who might potentially be interested in making an investment in the municipality don't have to wait for an undue period of time. It's a very competitive market out there, when you can find someone who's interested in doing something, and Etobicoke wants to be in that competition and wants to be in there effectively. Even with resources being cut back in terms of government restraints, Etobicoke, I think, is quite confident it can still meet the streamlining requirements without cutting off opportunities to the public to be notified and to participate.
Ms Churley: Have you had trouble --
The Vice-Chair: Excuse me, Ms Churley, thank you very much. Mr Ouellette.
Mr Jerry J. Ouellette (Oshawa): Thank you for your presentation today. I have a couple of quick questions. I'm glad to hear that your municipality is handling the basement apartment issue very well. I think that's representative of the community in general. But I'd like to know what your feelings are about the possibility of a loser of an appeal covering the cost of that appeal. What do you think about that?
Mr Ketcheson: In the civil litigation system, in the courts, costs usually follow the cause. That's not an unusual principle, and the Ontario Municipal Board has not, in terms of its traditional practice, awarded costs against a losing party. The only situations where they've awarded costs have usually been where someone is active in such an outrageous manner that they wanted to punish them by a cost award. Having said that, given the realities of scarce resources, that may be one area that the board should be looking at. It's not unusual in terms of the court system, and I don't think it's offensive in terms of the planning system that the board's following.
Mr Ouellette: So you would support a position like that?
Mr Ketcheson: Yes.
Mr Ouellette: Also, in regard to the minor variances, should the bill pass in its present form, what percentage increase or change would you expect in rezoning applications?
Mr Ketcheson: That's very hard to estimate.
Mr Ouellette: Would it be a direct --
Mr Ketcheson: Having acted for private property owners who have gone to the committee, I suspect that any property owner who was concerned that political influence might result in an adverse planning decision would decide not to go through a committee of adjustment process but rather to go through the rezoning application.
Certainly, if I was advising that client, I would say, "It's an important consideration for you to know that a political decision will not be the basis for the decision, it will be a planning decision, and if you need to go to the OMB to get the planning decision, you'll have an appeal right to do so." I suspect there will be a fairly significant increase in terms of applications that might have otherwise gone through the committee of adjustment ending up going through a rezoning process.
Mr Ouellette: And that ratio would be one to one for everyone that typically went through?
Mr Ketcheson: I could see it 50%: 50% of the current caseload that goes through the committee of adjustment might otherwise go through the zoning process.
Mr Murdoch: Just one thing I'd like to point out -- I thank you for your brief and some of your good suggestions and I hope the parliamentary assistant will look at some of your suggestions -- just because this bill passes, it doesn't mean there's not going to be basement apartments. I mean, we seem to get that perception that if this bill passes, there won't be any more basement apartments. All it's going to do is allow municipalities like yourself to decide where they're going to go.
The problem is that with existing stock, you have some problems there if they weren't designed for that. It doesn't seem that people come here time after time saying, "Oh, well, we got to be able to do that." But I think the power has to go back to the municipalities, because when you create new stock, you can decide whether that's where you want basement apartments to go. I just want to get that clear because it seems every time somebody says, "It's not going to permit any more basement apartments," that's not right.
Mr Ketcheson: If I can just respond to that statement, essentially what we're looking at is retrofitting existing dwellings. The concern for the fire department or the concern for the property use inspector is that if you're going to take space away from the existing dwelling and convert it into an independent dwelling, you have to make sure it's of a sufficient size, that there are a sufficient number of accesses and exits to it, in order that the occupants of that new dwelling within that existing building are going to have a reasonable atmosphere or situation for their living.
The Vice-Chair: We actually have a half a minute left, if you have a very short question, Mr Hardeman.
Mr Hardeman: On the issue of the timing of the apartments in houses, I just question you whether the local bylaw to deal with the issue following the passing of Bill 20 would not be able to deal with those that fall in the realm of having been approved beyond the --
Mr Ketcheson: The legality in terms of that unit would be established by the provincial legislation, so the municipality would have no power to legalize a unit which was otherwise illegal under the provincial legislation.
Mr Gerretsen: Just to follow up on that point, now that the second units were legalized under 120, about 100,000 of these units, and many of them are located in subdivisions where the houses are the same, is there not something inherently unfair, if you've got two houses that are side by side and somebody in one house under the current legislation has put a second unit in, it is legal, and now the next homeowner has got exactly the same circumstances there but didn't put the unit in and that person can't put that in -- do you find anything inherently unfair about that?
Mr Ketcheson: Madam Chair, no, I don't.
Mr Gerretsen: Oh, well, thank you.
Ms Churley: If you owned the house, you would.
Mr Gerretsen: Yes, I mean, it speaks for itself. Dealing with the earlier point, just from your own practical experience, what's the cost differential between applying to the committee of adjustment or applying for a zone change?
Mr Ketcheson: I think I'll turn that one over to the cost expert.
Mr Gerretsen: I'm not talking about the municipal cost. I'm talking about from your experience in acting for people as to what it would cost to -- I'm not looking at it from a fee viewpoint, every municipality is different, but just from an overall cost viewpoint.
Mr Ketcheson: From my experience in acting for clients who have gone through both routes, you're probably looking at at least four times the cost to go through a rezoning application by the time you finish it.
Mr Gerretsen: I'm sorry, I didn't mean to cut you off, but time is so limited, I want to take advantage of every moment we've got.
"Frivolous and vexatious" and how often this is applied by the OMB: We tried to get somebody administrative from the OMB here but we were stonewalled by the government. They didn't want anybody here to give us that information. It's a fact, the record will show that. From your own experience, how often has the OMB utilized that section and in effect dealt with appeals in a very summary fashion?
Mr Ketcheson: My experience is it has been very rarely used because the board will bend over backwards to give the opportunity to a party to appear before it and put forward a planning case. The board is very sensitive about not taking away appeal rights unnecessarily from parties. Having said that, I think in the last number of years we have seen more willingness on the part of the board to dismiss appeals without a full hearing because of frivolous or vexatious concerns.
Mr Gerretsen: Is Etobicoke a member of AMO?
Ms McPherson: Yes.
Mr Gerretsen: And you support AMO in all its positions?
Ms McPherson: Some of the positions. We have a different slant on some of them.
Mr Gerretsen: Because so far we haven't heard from anybody yet as to who's in favour of not appealing a minor variance decision to the OMB, and I'm kind of anticipating that the AMO position this afternoon will be that they aren't. So you don't always agree with AMO.
Ms McPherson: I think AMO has put forward some options and some of the options we would support.
Mr Gerretsen: We'll look forward to that then.
The Vice-Chair: Would anybody else like a question?
Mr Gerretsen: Oh, I've got all sorts of questions. Just a minute now. Cost to parties: How often is --
Mr Galt: Come on, let Pat ask it.
Mr Gerretsen: Do you want to say it?
Mr Hoy: He can't speak for me.
Mr Gerretsen: How often does the OMB award costs?
Mr Ketcheson: Just based on my own experience, it would be probably in the region of 1% to 2% of the cases that they hear.
Mr Gerretsen: Right. From what you've stated, there's nothing wrong with the party that's actually making the application and being a party to the proceeding bearing the cost rather than the municipality?
Mr Ketcheson: That's right. Again, the parties who initiate those proceedings through the appeal --
Mr Gerretsen: Should pay the costs.
Mr Ketcheson: -- should take some responsibility as a user to carry the cost for it.
Mr Gerretsen: I totally agree. Thank you.
The Vice-Chair: Thank you very much. That is close enough, and I do appreciate that. Thank you very much for your presentation this morning.
ONTARIO PROFESSIONAL PLANNERS INSTITUTE
The Vice-Chair: I would ask that the Ontario Professional Planners Institute come forward, please. Welcome to our hearings process this morning.
Mr Philip Wong: Good morning, Madam Vice-Chair and members of the committee. My name is Philip Wong. I'm the president of OPPI, Ontario Professional Planners Institute. We are pleased today to present to you our brief on Bill 20. With me at the table today on my right is Marni Cappe, chair of the Planning Act working group, and on my left is Ron Shishido, chair of the public policy committee.
We've provided you with a copy of the written brief, and I'd just like to give you verbal summary of it.
The Ontario Professional Planners Institute represents the professional planning community of Ontario. It is an umbrella organization that includes 2,200 planning practitioners from both the public and private sectors: provincial, municipal and federal employees, consultants, developers and academics. The diversity of experience provides OPPI with a unique opportunity or perspective from which to comment on the proposed legislative changes.
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OPPI has made significant contributions to the reform of planning in Ontario. As a major partner in the planning field, we look forward to continuing our involvement with the Ministry of Municipal Affairs and Housing and other stakeholders. We are pleased to see the government place the importance it has on Ontario's planning system as a part of its broad thrust towards greater prosperity for Ontarians. We too believe it can and should play an important role.
At the same time, the government should recognize that the planning system is not just about development control. It is about managing change and supporting responsible economic and social development. In other words, the purpose and result of Ontario's planning system parallel your drive to economic growth with fiscal responsibility. We will present our comments on key aspects of the legislation as they relate to the three stated purposes of the amendments:
(1) To give greater autonomy to municipalities.
(2) To streamline the planning process.
(3) To protect the environment within the context of economic development.
With specific regard to municipal autonomy, OPPI supports the government's intent to give municipalities more decision-making power. We generally agree that the proposed changes will place the responsibility for local decisions where it should be. However, OPPI is concerned that municipalities may be unable to achieve this objective without adequate financial resources. Secondly, OPPI generally supports the measures which have been introduced to streamline the planning process, but we are concerned that tight time lines may drive the planning process, forcing decision-makers to take shortcuts which bypass good planning. We're also concerned that streamlining may diminish opportunities for valuable public consultation.
OPPI is particularly encouraged by the government's commitment to protect the environment within the context of economic development. The main impact on the environment will come through the requirements of the policy statements or through attempts to harmonize the environmental assessment and planning processes. With respect to the former, OPPI will comment at a later date; with regard to the latter, OPPI is disappointed that the new bill does not address integrating the two processes and proposes to work with the government on this important matter.
Certain specific comments on Bill 20: the first item, greater autonomy for municipalities. The Minister of Municipal Affairs and Housing, in introducing the legislation, described a new planning system that would give municipalities the autonomy they have asked for and deserved. The system is to be guided by clear and concise provincial policy statements which will be reflected in local planning decisions. The province's defined role in the planning system is of course linked to the level of autonomy municipalities can achieve.
The province has an important role in providing sufficient guidelines to all parties participating in the process. Clearly articulated provincial policies will be the first step. OPPI will be submitting a detailed brief on the proposed provincial policy statements, as requested.
In defining provincial interests, the Planning Act is useful in helping municipalities anticipate when the province may get involved in a planning decision. Changes to section 1 of the Planning Act give the Minister of Municipal Affairs and Housing exclusive authority to file appeals to the OMB on behalf of all ministries of the province. OPPI can support this change if the intent is to ensure that provincial interests are expressed as one voice. However, OPPI seeks confirmation that the government will develop a process to ensure the important and often unique interests of individual ministries are taken into account.
Section 2 of the Planning Act defines 16 provincial interests. We regret the disregard for social matters. OPPI believes the province has an undeniable interest in linking social development with land use decisions. We recommend that a specific provincial interest in social wellbeing be included in section 2.
In previous submissions on Bill 163, OPPI had conditionally supported the recommended change regarding municipalities and agencies "to be consistent with" provincial policy statements, rather than simply "having regard to."
In the context of enhancing municipal autonomy, OPPI accepts this government's decision to return to the original wording of "shall have regard to." A more immediate concern relates to the force and effect given to the policy statements by all players in the planning system. OPPI is expecting provincial ministries to interpret the policies fairly in recognition of the diverse geography and socioeconomic conditions across Ontario.
In reality, changes to the direction given and resources available to municipalities and approval agencies may prove far more significant than the specific wording of section 3 of the act.
Bill 20 generally promotes economic growth through changes to the planning system which are based on cutting red tape and eliminating obstacles to growth. For municipalities, one of the keys to successfully achieving growth through planning is the ability to adequately finance the system.
Sections 45 to 57 of the bill contain amendments to the Development Charges Act. OPPI urges the province in its upcoming review to allow for local flexibility in determining how and in what ways development will pay its own way.
More specifically, with regard to the government's commitment to link development charges with hard services only, OPPI is concerned that the government is overlooking the clear financial linkages between local planning approvals and the provision of community facilities and services, both capital and operating. OPPI recommends that the province consider secondary plans, watershed plans and infrastructure master plans to be eligible for funding through development charges.
Second, streamlining the planning process: Amendments to the Planning Act to streamline the approvals process most significantly underscore the government's commitment to bring in a system that is faster and less bureaucratic.
OPPI's principal concern is to ensure the new planning system allows for sound and informed planning decisions, with adequate opportunities for public consultation. In general, OPPI offers no objection to the province's streamlining initiatives provided there is a complete application with adequate technical information to support the proposal. Often, the prescribed information is not enough. OPPI recommends that the Planning Act be amended to allow individual approval authorities to determine what constitutes a complete application. This would affect sections 17, 22, 34, 51 and 53.
In this context, OPPI supports the shortened time frames for processing applications or appeals on planning decisions. However, we expect approval authorities to continue making planning decisions based on informed information and local problem-solving, not expediency.
Proposed subsections 17(9) to (11) of the Planning Act establish a new alternative process for official plans and official plan amendments to come into effect. Specifically, the minister or approval authority is given the power to exempt plans and plan amendments from the requirements for approval. OPPI recommends that exemptions be applied only to categories of applications, not on a case-by-case basis. To ensure fairness in the process, exemption criteria should be established through a public process which would enable appeals. Where the upper-tier municipality is the approval authority, conditions for exemptions should be included in the official plan. The province should establish a similar public process where it has the approval authority.
Bill 20 proposes a complicated structure to govern the activities of the committee of adjustment. Amendments to sections 45 and 45.1 of the act present significant problems in the understanding and administering of the decisions on minor variances. OPPI recommends that appeals on minor variances and consents to the OMB be maintained. So I think this point, Mr Gerretsen, is that we are not coming with a different position on this one. All forms of planning applications should be treated the same under the legislation.
OPPI does not support the proposed deletion of the public meeting requirements for plans of subdivision or consent. The public meeting plays an important role in informing the general public about the big picture in planning, particularly on greenfield sites that have been prezoned. In many smaller municipalities, land division is the first and only opportunity for people to become involved in planning decisions that affect their lives.
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Proposed subsections 17(24), 17(36) and 22(7) of the Planning Act provide for an automatic appeal of official plans and official plan amendments to the OMB without the approval authority being given the opportunity to review the referral request. Given the board's extensive experience in both the mediation and hearing processes, OPPI supports the concept of direct appeals on all decision applications. This previously was a role for the ministry.
However, in support of the objectives for streamlining and municipal autonomy, OPPI recommends that the OMB be required to direct the parties to try for a local resolution of the matter within a specified time period up to the date of the scheduled hearing. The local mediation process should not be used to further delay the OMB's consideration of a proposal. Evidence of such conflict resolution should be documented, but the details of any discussions should be without prejudice and inadmissible to the OMB, should a hearing eventually be required.
OPPI recommends that the role of the board be strengthened by ensuring that adequate resources continue to be available. We are concerned about the new planning time frames, the elimination of public meetings for subdivisions and consents, and the removal of the referral request option at the municipal level. OPPI expects that the government will continue to encourage and support the board's important role in applying alternative dispute resolution techniques such as mediation. It is essential that the board continue its historic role in reviewing planning decisions.
OPPI continues to support the need for land use planning to address environmental protection and enhancement of environmental health.
The current planning reform process offers a unique opportunity to strengthen both environmental assessment -- EA -- and planning through integration of the two approval processes. OPPI recommends the province pursue integration and seek solutions in partnership with OPPI.
Most official plan amendments include some infrastructure components that are subject to the EA process, example, roads, water, waste water, stormwater facilities.
Integration is appropriate because decisions made for infrastructure are intimately connected to community planning. The demand for infrastructure is tied to the distribution of population and employment, which are approved through official plans. Separating the two processes is not logical, and has not led to efficient and economically sustainable land use decisions.
Recommendations for new procedures and practices:
The above are specific comments on Bill 20. We recognize that implementation of the new legislation will require the development of new procedures and practices for planning in Ontario. We believe the government should form an implementation partnership between the Ministry of Municipal Affairs and Housing, OPPI, and selected municipalities to explore new, cost-effective and responsible ways of achieving good planning in Ontario.
We would like to offer a few suggestions.
(1) Process re-engineering. Reducing approval process cycle time: Undertake three case studies on specific techniques which municipalities could adopt to achieve the legislated cycle time by selecting a region-county or city-township examples.
(2) Scoping of supporting documentation. Develop a reliable process for upfront consultations between the applicant and the municipal planning official regarding the scope and level of details of documentation required to support a development application.
(3) Initial mediation of appeals by OMB. Set up a pilot program with the OMB to develop an initial and quick mediation of appeals between applicant, municipality, and third parties.
(4) Provincial planning advisory committee. Establish a committee involving key stakeholders in the drafting and monitoring of provincial policies. Such a committee would contribute considerably to the community's acceptance and understanding of provincial policies.
(5) Integrate the Planning Act and Environmental Assessment Act processes. Set up a task force to explore short- and long-term solutions. The background paper currently being drafted by OPPI could serve as a starting point.
I would like to thank the committee for the opportunity to present this brief, and we are prepared to answer questions you may have.
Mr Hardeman: Just a small point of clarification. We've had a number of presenters putting forward the concern about taking away the public meeting for a plan of subdivision and an application for consent. I would just point out that in Bill 163 it was at the option of the minister through regulation to authorize those public meetings, and under the present system there is no authorization for a public meeting requirement for a plan of consent. I just wanted to straighten it out for the record. A number of presenters have made the point that we were taking away a public meeting for an application for consent. In fact, it never existed.
Mr Trevor Pettit (Hamilton Mountain): Thank you very much for your presentation. Relative to the "shall be consistent with" clause, it's quite apparent to me that you've reversed your position relative to Bill 163. I'd like you to elaborate a little more on that.
First of all, one of the groups the other day, I think the Canadian Bar Association -- I stand to be corrected -- felt that the "shall be consistent with" clause would result in far more legal battles because it hadn't yet been tested in court, as opposed to the "have regard to" language. Do you have any comments on that? Their statement was that the "have regard to" was clearly more definable than the "shall be consistent with" clause. I'd like you to comment on that. Also, by making that change, do you see that the province will be in effect having any disregard to environmental concerns?
Ms Marni Cappe: With regard to your question on what litigation or how much litigation might result or what the complications are from "shall be consistent with," I would trust the bar association to have a clearer judgement on that. I'm not a lawyer. But what we know is that "have regard to" is something we can live with. We have experience, we have case studies showing that there were good judgements made on the basis of "shall have regard to," which was one of the reasons contributing to our shift in position -- I won't say reversal -- and that's the next part that I want to address.
When we submitted our brief on Bill 163, we conditionally supported "shall be consistent with" on the basis that the provincial policy statements would not be based on a concept of zero tolerance. We also were predicating our support on the fact that implementation guidelines would be released in time for us to have a clearer understanding of the full intent and effect of the policy statements. As an institute we were disappointed that neither of those conditions actually came into being, and therefore we felt that in light of the emphasis on municipal autonomy, in light of our relative comfort with the case law on "have regard to," we would now support that clause.
Mr Pettit: Would you agree that the policy statements for Bill 163, along with all the hundreds of pages of guidelines, effectively stifled the local municipalities from making the local planning decisions they needed to make?
Ms Cappe: I would say that the policy statements now in effect under Bill 163 are more prescriptive and more directive for municipalities. I don't think I would choose the word "stifle."
Mr Pettit: On the whole, do you believe that Bill 20 will help streamline the planning process?
Ms Cappe: Yes.
Mr Gerretsen: I appreciate your presentation as well. It was very much in line with what Mr Lehman said earlier today, who I believe is a member of your institute as well.
I'm particularly intrigued by the new procedures and practices you've outlined at the end of your paper. I believe most of the problems we've had in planning is the lack of mediation and the administrative framework all the various parties play in.
I wonder if I could ask you a question about the public meeting process relating to subdivisions. We've already had an indication before the committee, and I'm wondering if you could confirm, that different municipalities deal with rezonings of properties in different ways. Some municipalities in effect have requirements that show in much greater detail what is actually proposed for the piece of property whereas other municipalities show very little detail.
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It's always seemed to me that it's only when people in an immediate neighbourhood actually know how a subdivision is being planned or actually get the plans of something that they really know what we're talking about. You usually don't have too many public meetings or much participation at public meetings that deal with general concepts rather than definite planning proposals. Would you agree with that? Is that the main reason you support the notion of a public meeting for a subdivision plan approval, so that people have something definite to react to, either positively or negatively?
Mr Ron Shishido: The decision to support the notion of a public meeting for subdivision was to address those instances where that was the only forum for the public to have a say in the process. In practice, municipalities endeavour to work with the development industry and the public to try and piggyback the public meetings, so you may see a subdivision and a zoning public meeting concurrently. You'll notice in our submission that we're saying that where a rezoning as well as a plan of subdivision are the table, one public meeting only is necessary.
Mr Gerretsen: Do it at the same time, absolutely. What has your feeling been over the years: that public meetings have generally made a development a better development, or have they allowed greater opposition to occur and in effect delay development? I know that's a very general question, but do you have any comments on that?
Mr Shishido: My view is that if a proponent is really doing his homework in advance of that public meeting, he has gone to the various publics and tried to address their concerns so that when the public meeting does come it's only those very few issues put on the table. I think it's the isolated instance where a developer or the municipality will go into a public meeting without having done some advance preconsultation.
Mr Wong: It all depends on the concerns of the public. A lot of times you can resolve certain minor, insignificant things and improve the design through the public meeting process. By the same token, I tend to agree that there are instances where people abuse the process to delay the project. But I think you're going to get it one way or the other anyway, whether you have the process or not.
Mr Gerretsen: And it's better to have it up front than have it come through the back door, something like that.
Mr Hoy: On page 8 you were talking about the single voice or the one-window opportunity for the Minister of Municipal Affairs to make appeals and that you rather agree with that idea, but then you seek confirmation that the government will develop a process to ensure that other interests make their views known. Do you have any prescription for how that might be enforced or allowed?
Mr Wong: I'm sure everybody recognizes that different ministries, MNR, MOEE, may sometimes have different opinions from the Ministry of Municipal Affairs and Housing. What we're trying to say is that we don't believe the Ministry of Municipal Affairs and Housing should have a single voice and make the sole determination to appeal to the OMB. We want to ensure that there is sufficient input and opportunity for discussion among the ministries prior to the decision being made that it should be appealed to the OMB. I'd basically leave it to the ministries to work among themselves, maybe a working group, a task force or some kind of procedure to be established internally before that referral request is made.
Ms Churley: I congratulate you on your presentation. Your approach to integrated planning and community-based planning is something I believe very strongly in, and on the whole I agree with most aspects of your presentation, although I find some of it contradictory in terms of your position on "have regard for" and what you say at the bottom of page 7.
I'd like you to give a bit more detail on your concerns about affordable housing, the natural environment and social wellbeing, where you say you believe the province has backed away from some of those. Given that you also say there are no boundaries when it comes to the environment, if there are no clear policy statements from the province on protecting the environment which municipalities can not only "have regard for" and toss aside but must "be consistent with," how can you do that with just clear policy statements the regions can totally ignore?
Second, have you been involved at all in the discussions which we understand are going on internally with the MOEE on changes to the EA?
Ms Cappe: I can answer the first part. I personally am not involved withe MOEE, but perhaps members of our institute are? Yes, they are.
With respect to concern about the policy statements, I can just signal some of the concern. We have not finalized our brief, and as you can appreciate, our institute represents quite a wide range of members.
To date, the concern we have heard with respect to affordable housing is specifically that the term "affordability" never appears, a concern that the province has not retained an interest in affordable housing. That's the first part.
With respect to the natural environment, there are concerns that the policy statement as proposed now puts more natural features in a category where development may be permitted, subject to no negative impacts, rather than certain very important features which before were absolutely protected. What we are looking for is not necessarily going back to a whole range of absolute protection for features, but rather a framework that we hope might give municipalities more support where municipalities and regions choose to identify areas where they may want to absolutely protect features such as significant valley lands, which in particular have been shifted in the policy statement from a category A or highest protection to a second-tier level of protection.
That is something we'll be exploring. We do not have a final position on that yet. We still appreciate some of the flexibility underpinning the new policy statements but hope we can develop a framework that gives a little stronger support to municipalities in those areas.
Ms Churley: Coming back to the EA process, you say you are involved in consultations. What's your involvement in those consultations?
Mr Shishido: We've had some initial discussions, a number of representatives from OPPI have been down at the Ministry of Environment talking about broad principles in terms of looking at the Environmental Assessment Act and the Planning Act. The other initiative involving the two legislations is the task force that's been proposed by the regional planning commissioners, and that initiative is just getting under way, and that relates to class EAs and municipal infrastructure.
The Vice-Chair: Thank you very much for coming this morning. We've enjoyed your presentation.
Mr Gerretsen: I wonder if this is the appropriate time to refer this bill back to the minister for further review, taking into account all the comments that have been made, and ask for an immediate vote on the issue. I'm just raising that as a question.
Ms Churley: Move it. I would move it.
Mr Gerretsen: Well, no. We have to be fair to the next delegate.
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MICHAEL VAUGHAN
The Vice-Chair: I call the next presenter, Mr Vaughan. There is no written presentation before us.
Mr Michael Vaughan: I'm grateful for those who haven't yet gone to lunch. I'm a land use planning lawyer. I'm here just as a citizen. I'm not here on behalf of any group; I don't hold a brief to be here. I have been practising as a planning lawyer for 25 years, and act mostly for developers but also for the province and municipalities, and have been chair of the provincial board, so I have some familiarity with what happens. I want to talk only about one section of the bill, and that's section 26, the section that deals with minor variances.
I would respectfully request that subsections (1) to (37) of that section be deleted, which would leave basically the minor variance process in place as it now is, and then leave subsections (38) to (40), the sections that enable a chargeback to municipalities.
I see it as two separate things; that is, there's the system side of it and then there's the money side of it. What I'm hoping is that the fiscal tail would not wag the planning dog. Maybe there's someone from the humane society here; I'd better be careful.
In terms of background, many people would see the proposal in section 26 to dramatically alter the system as a direct attack on the rights of property owners, both those who are in favour of development and those who oppose development. Section 26 really, practically, takes away their ability to appeal minor variance decisions to the OMB. People care profoundly about their homes and their businesses and their right to make alterations to their properties or to oppose what they fear might be damaging alterations by others.
Committees of adjustment generally hear applications over a six- to 10- to 20-minute period at most and normally do not permit leading of evidence or cross-examination and all the things inherent in a real hearing. That's for a very good reason, and that is that people rely on the fair, impartial and full hearing that's available later at the OMB on appeal.
Our system, like any other system, sometimes produces wrong and hurtful decisions. But what makes it tolerable is that the process is fair and impartial. Committees of adjustment are appointed by councils and they're subject to reappointment by councils, and they're often not unresponsive to the reality of political pressures.
Some people will feel uncomfortable if elected municipal councils review decisions of their own appointed committees of adjustment to which they have delegated the power to make such decisions. The parties involved may not be content to have their appeals of minor variances from bylaws adjudicated by the very council that passed the bylaw in the first place and by elected politicians who -- let us acknowledge realities -- must respond to votes.
As a legislative body, council enacts laws, much as does the Legislature, and the OMB adjudicates appeals from decisions relating to those laws, much as the courts adjudicate appeals from provincial legislation. Appellants would be uncomfortable to have their appeals from court decisions concerning provincial legislation actually decided by the Legislature instead of by the courts, and that may equally be so with reviewing appeals from zoning adjudications being decided by councils.
Our present system provides for impartial appeals from minor variance decisions with full and fair hearings. The system is efficient and, with mediation and case management, becoming more so. It avoids litigation and congestion and discourages abuse. These benefits and values would be at risk if review appeals were directed to politically elected councils.
The OMB assesses issues of substantive impact and applies the test set out in the act. It is shielded from the heat of political passions and pressures, and really only about 6% of their time is consumed with OMB appeals.
The reason I would urge that the basic system remain as it is now is really practical, that is, it's important to get things moving in the province and particularly in this city. Land development depends on confidence in the integrity and impartiality of the system. The right to a hearing at the OMB is central to our approval system and it's essential to avoid the abuses inherent in other systems which leave land development decisions up to locally elected councils. I don't mean to put locally elected councils down, particularly as some of you may come from that background, but the abuse and opportunity for abuse is obvious.
A full hearing pursuant to the Statutory Powers Procedure Act could take half a day or a day or in some cases a couple of days. If council were to make minor variance decisions, or its committee of adjustment with a council member on it, and have to follow the Statutory Powers Procedure Act -- that is, have a full hearing -- that would mean in most cases that minor variances would be dealt with by committees of adjustment without council members on them and then council would review the decisions or forward them to the OMB.
I don't have a problem with forwarding matters to the OMB, but the ability of a council to review the decisions is a little bit tainted, in my view. It amounts to the ability to extinguish a quasi-judicial process by making a political decision, and I think that would make our system dysfunctional and have some consequences.
One would be that committee of adjustment hearings may become long and full hearings, with cross-examination and so on. The second may be that instead of appealing committee of adjustment decisions, applicants would be driven to make rezoning applications because that lets them end up at least at the board.
But the third and most important thing -- and I've got to say that land development is a fragile exercise and is very much dependent on perceptions of environment, and there are tremendous risks in the process. If the system becomes politicized, some people will take comfort in that and others will not. I guess what I'm saying is that there's no real reason to monkey with the system. On the other hand, there may be no problem in downloading the cost. That hopefully may lead to some privatization of the cost, which should discourage frivolous appeals, of which there are many.
Those are my comments. If there are any questions, I'm happy to address them.
Mr Gerretsen: Thank you very much. Having been a member of a local council for 16 years and having been involved on all sides of these minor variance issues, I completely concur with what you're saying. As a local politician, I didn't like what the OMB did sometimes, quite simply because it was there sometimes to overturn local decisions. No matter what endeavour you're in, you don't like to have this notion that somebody can actually change that. But I'm a lawyer as well, and I went into court and sometimes I lost a case before a judge as well, and I didn't like what the judge was doing. But I certainly wouldn't suggest for a moment that just because of what a particular judge did in a particular case in not agreeing with my point of view, therefore we should get rid of the judicial system. That's the way I look at it.
To suggest that you're anti-municipality because you feel that an appeal should go to a completely separate body -- which has been suggested by some people, and I'm sure that will be AMO's position to a certain extent, that municipalities should have the power within their own house to make these kinds of decisions -- I think is totally wrong.
You brought out a couple of other good points dealing with the whole notion of how committee of adjustment members feel towards their council members if they know their council members can review their decisions and how that's going to affect their reappointment. That's one point of view we haven't had here, and I thought that was very well made.
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There's the other aspect as well, of course, that quite often the bylaws that somebody wants a minor variance from are passed by the same council that now is being asked to deal with minor variances to that. I can well understand how sometimes councils or individual members of council will say, "Well, no, we put in a side-yard or a rear-yard requirement of X number of feet, and I don't want to deviate from that now."
One of the reasons this is here in the manner it is in Bill 20 is to speed up the process. Obviously one of the things that takes a long time is for a matter to be heard by the OMB if there is an appeal to a minor variance. I've suggested that maybe what they could do is set up a panel with rotating members that would deal with minor variances in a more expedient way than, let's say, a zoning application, which is of much greater import in a lot of cases. Would you have any comments on that? I know we're talking administratively here, but if we don't want to wait until a minor variance appeal hearing is actually made, nine months or 12 months down the road, how can we improve, from your experience, that time period so that minor variances or appeals to them can be dealt with more quickly?
Mr Vaughan: That's certainly a useful suggestion, having special panels. The board is moving in that direction. They have collapsed the time periods, they're reducing the time periods, for hearing appeals. They're generally heard by one person.
In response to some of your comments, enabling council to review committee of adjustment decisions is an open invitation to objectors to put the pressure on the member of council to indeed review the decision and turn it down if that's the way the neighbours feel about something.
The board is moving strongly to mediation, but mediation does not work in a case where the committee of adjustment has turned down a decision. I mean, there's nothing to mediate, so you then have to get a fast hearing.
I think the board has a way to come with dealing with frivolous appeals. I had one two weeks ago in East York where the neighbour who appealed a unanimous decision of the committee of adjustment simply wanted a cash payment of $100,000. That was his sole reason for it. There was no secret, no bones about it. I thought that was so obvious, so I brought a motion to dismiss. I didn't think the Planning Act was set out for that purpose. But the board went ahead and had a hearing that went over three days. They were fastidiously careful to make sure this particular person had a fair hearing, I suppose so he wouldn't then be able to find grounds to appeal.
I think the board is coming along but is still not at the point of being courageous in terms of dismissing what are patently wrongful abuses of the process, nor is it using its power to award costs as much as it should. That's why I say, to the extent that this is privatized, that puts the pressure on municipalities, and maybe to some extent on the parties, to take a careful second look at what they're doing here.
Ms Churley: I have a quick question. Because there's no written brief, which is fine, I want to ask you to tell us again which section --
Mr Baird: Minor variances.
Ms Churley: I know it's minor variances. I'm trying to remember, actually, which --
Mr Vaughan: It's section 26, at least of my copy of the bill.
Ms Churley: Oh yes, that's right. It's right here. Which parts did you ask to have removed?
Mr Vaughan: Subsections (1) to (37).
Ms Churley: The reason I asked is that I don't think there's been one delegation before us that has agreed with this section, for the same reasons you've expressed, that it is not appropriate, that there are all kinds of problems with an elected council having the final say in an appeal. I am hoping to come forward with a motion to the committee before it leaves to go on the road. I think it would be useful if the government would be willing to look at giving notice that it's willing to make an amendment in this area, because for people who are coming to discuss this issue with the committee over the next couple of weeks, if we could reach an agreement on an amendment, it would eliminate an obvious problem that everybody agrees with.
I hope the government would look favourably at that so that people like you who I'm sure are very busy, and I appreciate your presence today, won't feel, because clearly you feel strongly about it, that you have to come down and waste part of your day commenting on it.
Mr Vaughan: If I could respond to that, I agree, this is déjà vu. We've all been here before and last time around made the same submissions. The bureaucracy last time produced a similar provision, Bill 163. The hearings were held. It was thrown out before.
Ms Churley: And here we go again.
Mr Vaughan: And here we go again. It's almost the same wording. I don't know, if it were a case of a municipality, you would say the staff was trying to launch an appeal against the decision of council.
Ms Churley: Oh, they'd never do that.
Mr Vaughan: I ought not to make those statements here, but --
Ms Churley: I recall this being an issue when we were holding hearings on Bill 163, although I wasn't directly involved. I don't know what happened. I wasn't part of the planning process here with this draft bill, but I know this is just not going to fly, and the quicker we get it out of there, the better for everybody at this point. That's all.
Mr Baird: In light of your last comments, perhaps ascribing a particular specific motive to the enclosures for that, I don't have municipal experience, which I think certainly in this area would be of great assistance and I'm pleased that a number of members of the committee do.
Obviously, the idea behind the minor variance issue not going to the OMB is to streamline and to save money. You say you have a lot of experience in this regard. What would the range of costs be for an individual to go to the OMB in terms of legal help? You mentioned three days, one you were at.
Mr Vaughan: What happens is it's sort of a little game. All an appellant has to do is send in a letter, not really with any reasons. The case law says you don't really have to have reasons, because poor Mrs Smith or Mr Smith may not be knowledgeable about the act. So you have to send a letter in and you have to send in $125, I think it is. Then you have a free ride. You can hold something up for a year. You can have a three-day hearing. You can always find a lawyer who will do it for nothing or very little. You can find all sorts of neighbours to testify. The whole process is problematic.
On the other hand, the thing about the product of the process is that we're dealing with a process that produces buildings and lots and that kind of thing. It's not a process that produces toys or cars or TV sets that you buy this year and they're gone in five years. Buildings last for a long time and cities last for a long time. If men influence cities, then cities influence men, and there is an advantage in having a process where there is participation, bona fide participation, and where people who care and have views have a chance to be heard and a chance to affect the outcome. That is a great virtue of the OMB process.
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Mr Baird: But with great respect, you ascribed a very specific motive to the inclusion of these sections 1 through 37 on the minor variance issue on behalf of why it was put in this legislation. What would it cost an individual to go before the OMB? If you're going to go before the OMB, you're going to want talented legal help such as yourself. How much would it cost to have legal representation for, let's say, the example you brought up of a three-day hearing?
Mr Vaughan: It ranges from $125 plus the cost of a stamp, and then you get to be there and talk for a long time --
Mr Baird: Sure, but going with legal help. It's a very litigious process, I would think.
Mr Vaughan: In a case I just finished a week or so ago involving the city of Toronto, they had two lawyers present, and I think about four planners. The case went on, again, for about three days. Oh, gosh, you'd be talking thousands and thousands of dollars a day for that.
Mr Baird: Plus for the individual.
Mr Vaughan: Yes. You've got to pay the lawyers, and the planners have to be there and then they've got to prepare for twice the amount of time it takes them to be there; so, many thousands of dollars.
Mr Baird: Say you have six, in this case two lawyers and four planners, there for three days; that would be 18 days' time to prepare, plus the other side, plus the OMB's costs. It's exceptionally expensive.
Mr Vaughan: Plus the other cost, notices, the whole thing.
There's a case, for example, that I was supposed to appear on tomorrow but it's been adjourned. The city of Toronto has a little thing going where the members of council can appeal decisions of the committee of adjustment sort of at will and then if the city staff won't support the appeals, which they often don't, they get funds to do the appeal. In this particular case they allocated $5,000 to retain an outside planner to give evidence on a hearing that was scheduled to last one day. That's for the planner.
It is expensive, but it is the system that's in place and generally people are happy with it. To change it to be a political thing would only lead to more abuses. That's the thrust of my comments.
Mr Murdoch: This will maybe just be a comment. I'm a little sorry to hear you say about politicians -- I come from the municipal system and I think we could make those decisions. I understand your problem of the minor variance, and maybe there should be something there. Maybe the people who object should pay for the hearings. I'm really surprised too to hear the former mayor of Kingston and the former president of AMO switch so easily once you become an MPP. They lose their roots. I'm really appalled to hear that.
I'm concerned that you don't have enough faith in our municipal governments and our democracy system. I know you were trying to tread pretty carefully, but I think they should have those decisions.
Mr Gerretsen: On a point of privilege, Madam Chair: I've indicated this in the House before. If Mr Murdoch can indicate where I switched, then I will admit that, but I have not switched on this at all. As I've stated before, I have great faith in municipalities and they should be making the initial decision, but they should not be involved in the appeal process as well.
On a further point to my friend Mr Baird, a point of information: If the final appeal was --
The Vice-Chair: Excuse me.
Mr Gerretsen: -- to the council, you'd be involved with the same cost as far as lawyers and experts are concerned. Certainly, a person would be entitled to bring the same information --
The Vice-Chair: Excuse me. Order.
Mr Murdoch: How we change when we get to be an MPP.
Mr Gerretsen: If you want all sides to be heard, you'd have a three-day hearing; you could have a three-day hearing before the OMB and you'd have a three-day hearing before --
The Vice-Chair: Excuse me, Me Gerretsen. These are points of disagreement, not points of privilege.
Mr Gerretsen: It's not a point of disagreement.
Mr Hardeman: On a point of order, Madam Chair: I think in the last two or three days Mr Gerretsen has, two or three times, raised a point of order and then proceeded to use that time to make a speech on his opinions. I believe if that's going to be afforded to one member of this committee, it should be afforded to all members.
Mr Gerretsen: On a further point of information, the parliamentary assistant has done exactly the same thing on at least two or three occasions.
Mr Murdoch: It's a sore point.
The Vice-Chair: Mr Murdoch, would you like to finish your question, please.
Mr Murdoch: I think our time is up. I appreciate your coming. I know you've got to tread pretty lightly. I think if we start taking the democratic process away -- people have a chance to elect their councils and they've got to be given back authority. We're trying to find that balance too, and I understand your problem.
Mr Vaughan: If I can respond to the question, I think there is an immensely proper role for legislative bodies that are elected, and that is to pass laws, and those laws tend to be of general application, as they should be.
What happens in a highly developed municipality such as Toronto or to some extent Kingston --
Mr Murdoch: We wonder where they've been going.
Mr Vaughan: -- is you can't legislate zoning. There's no way. There'd be roomfuls of bylaws; you'd have to deal on a site-by-site basis. Development does occur and must occur through minor variances to the bylaws. That's why the city of Toronto has a thousand minor variance cases a year. That's the only way it can happen under our system.
That process, for council to get involved in that, I think there are problems of a --
Mr Murdoch: Toronto versus rural Ontario.
The Vice-Chair: Excuse me, Mr Murdoch. Thank you, Mr Vaughan, for coming before us this morning. We've appreciated your presentation.
Seeing no other further business, I move a recess until 1 o'clock.
The committee recessed from 1225 to 1305.
BOARD OF TRADE OF METROPOLITAN TORONTO
The Chair (Mr Steve Gilchrist): Good afternoon, ladies and gentlemen. Seeing a quorum present, we'll reconvene for the agenda items this afternoon. Our first group making presentations this afternoon is the Board of Trade of Metropolitan Toronto. We have 25 minutes available for you to divide, as you see fit, between the presentation and the question and answer period.
Mr Peter Gabor: I appreciate the opportunity to represent the board of trade here. On a personal note, I'm happy, in reading and reviewing Bill 20, that this committee and the committees that prepared Bill 20 have not only listened to but also heard some of the business community, related to the building industry particularly, in making the revisions to Bill 163.
I'm going to read the information that already has been given to you and make some comments along the way to support what's written, and then you can ask questions. You can jump in at the end or jump in any time.
The board of trade agrees with the Honourable Al Leach, Minister of Municipal Affairs and Housing, that implementing Bill 20 will make the planning process more efficient and streamlined, thereby leading to economic development opportunities responsive to market demands. The board has long expressed concern that the planning process in Ontario is unnecessarily complex, restrictive, time-consuming and costly. As stated in our letter to Minister Leach on September 25, 1995, "Excessive regulations cost money to comply with, and money to administer." Bill 20 goes a long way to improving the situation.
We've reviewed the document in its entirety and we particularly like the following changes. We think they're particularly important in improving the planning system.
Deleting the requirement to "be consistent with" planning policy rather than "having regard to" is a very positive step. I know that there are other industry groups that make similar presentations. This one change restores a lot of balance to the planning legislation, and it offers the municipalities and regions the flexibility to live within a consistent set of guidelines but to modify those where special conditions warrant, and only at the local level can you really assess where those changes have to be made.
Shortening the time frames for processing applications: Bill 20 proposes several in its provisions, and we wholeheartedly support this effort. We felt that Bill 163 was particularly lacking in that application.
We support the elimination of referral requests by permitting applicants to appeal directly to the OMB. This again cuts red tape and costs.
We support introducing provisions whereby certain official plans and official plan amendments can be exempt from an upper-tier approval requirement. Where this makes sense, again, is that it will cut time frames and costs, and in the end the consumers will benefit.
Removing powers to summarily dismiss applications on the basis of prematurity, because necessary public water, sewage or road service would not be available within a reasonable time frame: I think this change recognizes that, once approved, sometimes very innovative tradeoffs are made to allow certain projects to move forward. I think it also maybe subliminally recognizes that there are technological changes that are available today and will come forward in the future that might allow projects that are approved to proceed on the basis of on-site treatment of water and sewage problems.
We also support making the Ministry of Municipal Affairs and Housing the only provincial ministry that can appeal a planning decision to the OMB. I think this will go a long way to ensuring that there is a coordinated effort on behalf of the government and a single source that we in the industry can apply to and work with, and that would be a big improvement on, again, the consistency of meeting policies and would improve the time frame as well.
Removing provisions allowing municipalities to prohibit all uses and classes of buildings on land with significant natural or cultural heritage features I think restores faith in the municipal process and doesn't tie the hands of the municipalities completely in dealing with lands that they and their citizens and constituents know how best to use.
We are also supportive of reinstating to municipalities the power to determine, through zoning bylaws, where new second units in houses are permitted and what standards apply. This restores to the different communities their own perspective and they are able to meet the needs and requirements of their own residents. There's not necessarily one rule that has to apply province-wide to meet a policy.
We do, however, have some limited concerns. They are limited in that they're primarily in three areas, but we feel that these are very important issues that still have to be dealt with and we would hope that you take into consideration these three areas.
One is the proposal to remove the right of appeal to the OMB on minor variances, and I'll go into a little bit of detail in a minute. No changes are proposed to the Municipal Act regarding site alterations and tree regulations. Finally, no changes are proposed to reduce the number of approvals by committees of adjustment; I'll go into what we mean by that in a second.
Dealing with minor variances, the board does not agree that section 45 of the Planning Act be repealed and replaced with provisions that restrict direct appeal to the OMB. Municipal councils are not appropriate bodies for matters of a quasi-judicial nature. We urge the government to retain the right of appeal to the OMB, as permitted in current legislation. Councils historically have been subject to a conflict of interest actually as they themselves appoint committee of adjustment members in the first place and they are often too influenced by a few local and vocal ratepayers. Therefore, councils do not have the objectivity and impartiality to ensure a fair hearing for the applicant.
As architects and urbanists and planners here in the GTA, we have experienced this ourselves and we have always counted on the ability to go to the OMB to get a fair hearing based on planning principles, with as little political interference as possible.
With respect to site alterations and tree cutting, the board recommends that the government withdraw new provisions in the Municipal Act added under Bill 163 that permit local municipalities to pass bylaws respecting site alterations and tree cutting. The board believes that such provisions can be used to unjustifiably stop development and have the undesirable consequence of encouraging property owners to cut down their trees. We have heard discussions by various people, sometimes homeowners, sometimes developers, who wonder if the regulation says that this calibre of tree requires a permit to be removed, while if it's three millimetres less, "We better cut it down now because then we won't have a problem in the future." I think that is working at cross-purposes to what the original intent might have been. We have noted some abuse of this regulation by municipalities and feel it is an important issue of fairness and protection of long-standing rights of property owners.
I might add that mature trees are typically valuable in and of themselves. We, in our own developments, have taken drastic measures to preserve trees, calling in tree specialists to shock-treat, prune, make sure that whatever we do, we maintain trees because they really add a lot to the value and to the ambience of a property if they are in good health after the development happens. I can personally attest, as well as add my personal support to the board's position, that history proves that trees will only be cut down as a last resort in most developments.
The third issue deals with reducing the number of approvals that have to be given by the committee of adjustment. We're hopefully all in agreement that we want to reduce, wherever possible, the use of approval agencies if there are other ways that can be found where nobody loses in the situation. In this area we have a suggestion, in that in order to significantly reduce the existing workloads of committees of adjustment related to the conformity of older buildings with setback and similar provisions of zoning bylaws, the board suggests that buildings over a specified age -- and we've written down 20 years, but it might be arguable that it should be 15 years or 25; we're not saying what that should be, but just that the principle should be adopted -- these buildings should be deemed to comply with the bylaws as they stand at the time of application for any change to the property.
This would then permit many more additions and alterations to receive building permits without having to obtain committee of adjustment approvals for historical variations from the zoning bylaws. These can lead to very great anomalies and unnecessarily scare neighbouring homeowners, because often, even if you're adding on 20 square feet for a dormer window, if you have to make other parts of the building conform, your 20 square feet that you're asking for turns into 780 square feet, which sounds like a big addition when in fact nothing more than just a small variance is being asked for. This would remove an obstacle to affordable renovations and unburden municipalities of a costly and redundant review process.
I might add that typically existing, non-conforming uses, if they're not abused, are routinely approved by committees of adjustment, so it seems to be a waste of time and money. This would be a very good way to streamline the process that's not addressed in Bill 20.
The only thing that I would add, and this is not really written in the report, is that as welcome as these changes in Bill 20 are, they don't exist in a vacuum. There are many other good initiatives that the government is taking that have to work in an interrelated fashion with what you're doing here. I'll mention just two others which we feel are important: They are changes to the Ontario building code to restore it to its original intent, and for the GTA at least to look seriously at the implications of not acting on the Golden commission recommendations.
I will just leave it at that. If you have any questions, I'd be pleased to answer them.
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Mr Hampton: You mentioned in your brief a letter you sent to Minister Leach on September 25th. Would you be willing to make that letter public?
Mr Gabor: I think it is a public document.
Mr Hampton: Is it? Can you produce a copy now?
Mr Gabor: I don't have one with me.
Mr Hampton: Can you produce one later?
Mr Gabor: Yes, I think we can.
Mr Hampton: Okay. On page 2, you refer to making the Ministry of Municipal Affairs and Housing the only provincial ministry that can appeal a planning decision to the OMB. I ask you this: Suppose there's a significant natural feature -- let's say we're dealing with a wetland or let's say we're dealing with the headwaters of an important stream like the Rouge River -- and the Ministry of Natural Resources says, "This is really important," but the Ministry of Municipal Affairs and Housing wants to see development occur. no matter what kind of environmental damage may result. Do you think in that situation the Ministry of Natural Resources shouldn't be able to appeal to the OMB?
Mr Gabor: Yes, because I don't think the Ministry of Housing or Municipal Affairs would be acting unilaterally in the first place.
Mr Hampton: You're wrong there. Those things happen all the time in government, situations I know of. The Ministry of Environment wanted to bring down very tough regulations dealing with the release of chlorine dioxin into lakes and rivers, and the Ministry of Economic Development and Trade didn't want that to happen. Those things happen all the time in government.
What you're saying here is that only one ministry should be allowed to voice concerns at the OMB. Are you saying that's --
Mr Gabor: We are proposing that that ministry be the voice of the government. Perhaps that will spur more cooperation between the ministries in developing policy, so that rather than these dichotomies of interest occurring at the times of application and response to specific initiatives, the government will have worked out policies that take into account where the priorities are, how they are applied in different situations. You might develop a program where, if the Environment ministry has a real concern, then it expresses that through the Ministry of Municipal Affairs.
Mr Hampton: Why not express it publicly? We live in a democracy. Why would you be afraid of that information being made available to the public?
Mr Gabor: We're not saying that the information shouldn't be available to the public.
Mr Hampton: If you have no problems with it being available to the public, then why not allow the Ministry of Natural Resources, if it has significant concerns about environmental damage, to make the appeal to the OMB?
Mr Gabor: Because that would mean that the government has an uncoordinated set of policies, that it can't even agree to the priorities. Therefore, how can they present a reasonable approach to commenting on any particular application?
Mr Galt: An excellent presentation. You have it on two pages, and that's just marvellous. And your response to Mr Hampton, a marvellous response. We've been struggling with them for so long. You just did an excellent job. Dead on. If the government can't get its act together, why should the government expect the public to have to coordinate all the various ministries?
We've been into a great debate, either the people coming before us are in favour of "having due regard" for or they're opposed to it and they want to support "be consistent with." Do you see municipal governments acting irresponsibly if we move ahead to "having due regard" for?
Mr Gabor: No. I think that if the guidelines are revisited -- I think right now there's just a complexity to them that makes it very difficult to follow. I think when we first got them they were a stack a foot high. I don't know how many inches have been reduced through the final process, but I think the policy guidelines would still be there. They couldn't flout those guidelines. I think they could only act responsibly in mitigating whatever those guidelines are in response to very specific local conditions.
In our mind what happened before, the government, under Bill 163, said to the municipalities, "You can do whatever you want so long as your hands are tied behind your back." Really, all this restores is some flexibility.
Mr Galt: Okay. We've had this Bill 163, "to be consistent with." We've had policy statements and some 600 pages of guidelines. First, I wonder if you've read the 600 pages of guidelines and, secondly, do you think that provides any flexibility for the needs of the local community and citizens?
Mr Gabor: I must tell you that I've been afraid to get into that document because I just thought I would never get through it, but we at the board tried to divvy it up and I have looked at parts of it. I think they go too far, they're too prescriptive and that should also be revisited.
Mr Galt: If someone in your position hasn't had time, could not get through 600 pages, I'm not sure too many other people have. Thank you very much for your thoughtful responses.
Mr Gerretsen: I found it a very interesting presentation as well, sir. What I'm particularly interested in is an issue that hasn't been raised before and this is indeed your notion on the non-conforming sites. I totally agree with you on that, by that way, sir.
Now, we could argue about what type of buildings it should apply to, what age period, but I'll give you a personal example of something I just heard about last Friday where, in a residential subdivision, a single-family home that was built in 1955 -- only now that the house is being sold and for the first time a survey is being done of the property itself, which wasn't commonly done back in the 1950s and early 1960s, they found that in effect the house is six inches too close to the street line. In order to rectify that, a situation that's been there ever since it started, a committee of adjustment application is required because they have to prove that the building was there before 1947 when the then bylaw was changed etc, which of course it wasn't, because it was built in 1955. It seems to me that in a lot of those kinds of situations, an application shouldn't even be necessary.
Mr Gabor: Exactly.
Mr Gerretsen: And your suggestion here -- and I would strongly suggest that the government take a look at this. There may be an argument made for commercial buildings. You might deal with them a little bit differently, but certainly it's something that ought to be taken a look at, and we haven't really asked anybody who's been with any municipality. I would dare say that about half of the applications of a minor variance nature are of exactly that nature, that is a waste of everybody's time and money, because what are they going to ask the person to do if a house has been there for 40 years, move it?
I know in the city of Kingston, for example, we have a situation where, as a result of its being an old city, along our main street, Princess Street, every building on the south side is two and a half feet on to the road allowance. These buildings are 100 years old. Is anybody going to suggest you move them? No, but what happens is that every time somebody wants to do something to one of these buildings, they have to go to the committee of adjustment at the same time, which is a complete waste of time.
Have you developed any further sort of policy guidelines? I know you've just put it in one paragraph here. It's certainly something that's well worth exploring, I would suggest, because that's where the real savings are, not in whether or not an appeal can be done in 20 or 30 days. It's in these kinds of things that bring totally needless issues to a committee level that never should be there in the first place.
Mr Gabor: I would agree that this is an excellent way to streamline the process, but I think it has to be taken in the context that wherever streamlining can take place, it should.
We were thinking of this exactly as you've expressed, as unnecessary, redundant requirements to the committee of adjustment, in line with similar measures that municipalities sometimes take; for instance, passing bylaws that don't conform to the existing situation in neighbourhoods. So whereas you have a number of 25-foot lots, they write the bylaw that you're only allowed a 20-foot lot. There are further improvements, but this is not the time or place that we can discuss those.
Mr Gerretsen: I think with the municipalities -- and they'll be here later on today, and I'll remember to ask them if I've got time -- there are really situations where municipalities want to control that situation, that a person has to go in for an application, where to a certain extent it's almost an abuse of process.
Mr Gabor: History proves that most of these applications -- if there's something that's a real anomaly, then that may be. I don't know how to draft legislation to respond to those situations --
Mr Gerretsen: No.
Mr Gabor: -- but I've seen very rare occurrences where there's been any kind of abuse of this. As you say, if something's been there for 75 years, then certainly we don't have to prove that it's there.
The Chair: Thank you, Mr Gabor. We appreciate your taking the time to make a presentation before us here this afternoon.
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LIONEL JOHNSON
The Chair: Our next presentation is from Mr Lionel Johnson. Good afternoon. We have 25 minutes you can divide between presentation and question time.
Mr Lionel Johnson: I'm here as a housing worker from the Church of the Holy Trinity and as somebody who's worked for six years in the non-profit housing sector, so I'm here representing a community as well as my own personal interests in the area of housing. I'm here to address the areas in which the proposed Bill 20 would affect municipalities, giving them the right to allocate certain areas within municipalities so that there wouldn't be apartments allowed in houses.
I'm speaking to this issue from the perspective of resources and development in the sense that right now the vacancy level in Metro's pretty low. I hear a lot of concerns and pleas from people looking for non-profit housing, and the only places that I can refer them have extraordinarily long waiting lists. It's a really difficult role to be in. A few weeks ago I received a phone call from somebody who was literally yelling at me and asking where are they supposed to go. They were articulating some of their concerns about the lack of housing resources in the city, and all I could do was apologize and tell them that it wasn't my wish that the affordable housing stock in this city come under threat.
So for me, I think that apartments in houses are an important resource for people who live with low and moderate incomes, and I'm really concerned that specific areas within a municipality could be zoned in such a way that they would be prohibited in that area. The other concern I have is the double standard it would create between apartments in houses that existed before a certain time and after. It would place people who need to possibly have building inspectors into their houses in an awkward situation because they would risk having an illegal apartment exposed.
These are my concerns, and I'm open to hearing your questions about them.
Mr Pettit: That was quick, but thank you for your presentation. Do you not think that the municipalities are best equipped to determine what is best for their own municipalities?
Mr Johnson: For me, it would depend on whose voice the municipalities were hearing in terms of which area they chose to designate as not being allowed to have apartments in houses. If it was the voice of people with privilege and with a lot of money, I would be very concerned.
Mr Pettit: That's an assumption --
Mr Johnson: I realize it is.
Mr Pettit: -- but let's assume that these are responsible councillors or whatever. Why would you think that they would not act in a responsible manner?
Mr Johnson: My concern is that housing stock in the general sense is at threat right now, and as somebody who looked for an apartment over a year ago, I know what bachelor apartments in houses look like in this city already and it's a pretty sorry sight. So I think resources need to be augmented and not diminished.
Mr Pettit: Why do you think that rental housing is in short stock right now?
Mr Johnson: I think it costs money to put out rental housing and --
Mr Pettit: In your view, could it be a result of too much red tape and regulations that get in the way of developers?
Mr Johnson: I don't know. I've never been a homeowner. I've always rented.
Mr Pettit: I'm saying though, do you feel that it's all the red tape and regulation that perhaps is preventing private investors from developing and building?
Mr Johnson: I don't know. I think it is part of the role of municipalities to create structures within which housing happens. So I'm not against red tape. I think structures are necessary.
Mr Pettit: Do you think that Toronto should be treated somewhat differently from any other municipality in the province when it comes to any rules and regulations relative to housing? In other words, do you think that we should impose made-in-Toronto solutions on the rest of the province?
Mr Johnson: I think every municipality is different and unique. I'm aware that there is a high need for affordable housing in this city. So my issue is specific to this municipality and the high need for resources in Metro.
Mr Pettit: You're aware that we're not making any of these second units illegal?
Mr Johnson: No. Maybe you could clarify.
Mr Pettit: I'm saying anything that's there now is not going to be declared illegal.
Mr Johnson: I understand that it's after a certain date, but the problem is that people are not aware of this, and people who are in illegal second units because they couldn't find appropriate housing would be in jeopardy of losing their unit if there were problems with it.
Mr Pettit: Do you think then if in fact we get rid of -- as you may or may not know, the government is looking at eliminating a lot of red tape and regulations -- if we do that, that will encourage the private sector to get involved again in building housing?
Mr Johnson: It depends. I have a hard time discussing this in a general sense. I'd need to know what red tape we're talking about, and I realize that's a larger conversation.
Mrs Barbara Fisher (Bruce): I just have one point to make, which will be followed by a question. I'm a member from a rural riding and I would agree with you that the demand for second-unit housing in my area is less than what you would experience here in Toronto. However, the Planning Act must accomplish for the province of Ontario the guidelines and the rules and regulations that are going to be needed and be of service to all the population in Ontario.
I would ask you this. I have, I guess like everybody else here, many friends who are highly mortgaged and probably in some cases wish today that they were renting instead of owning because of their mortgage situations. Having said that, do you think it's fair to the property owner, the person who's taken the risk to go out there and buy a home and try to be an owner of a home in a setting, that after they bought the home, a municipal council should be allowed to go in there and turn the single-family-dwelling designation into multiple housing? That does change the structure of maybe why that person bought the house and where he bought it. Do you think that's fair to the owner?
Mr Johnson: I'm sorry, I have some hearing loss and I missed a portion of your question.
Mrs Fisher: What I'm asking is, a homeowner who goes in knowingly buying a piece of property, say a single-family-dwelling unit, is it fair to that person then that a municipal council just turn around after the fact and change the parameters by which that person bought it, with the understanding of why that person bought there? Do you think that's fair?
Mr Johnson: So they bought it as a single-family dwelling.
Mrs Fisher: Yes. They live in a subdivision that's all single-family-dwelling units, which by the zoning bylaw doesn't allow for multiple units. Do you think it's fair then that the municipal council can just turn around and impose multiple-unit living?
Mr Johnson: Right. I hear your question. I think it is fair, because I do not believe multiple-unit housing mixed in with single-family dwellings poses any kind of a problem or threat. I think for me it's not a problem. All sorts of people can live together, and I believe in blended economic communities and blended communities.
Mrs Fisher: I do too, but I would wonder, does it not interfere with things like parking parameters? For example, in my municipality you can't even park overnight. Most of these places aren't even made to have multiple parking units and that type of thing. I totally believe in blended living as well, but I think that should be planned to start with. I don't think you turn around and do it to the person after the fact. Thank you.
Mr Hardeman: Mr Chair --
The Chair: Can you do it in 40 seconds?
Mr Hardeman: I just had a question -- you didn't address it -- on registration of the second unit. Do you have any comments on that? Do you think that's going to be an advantage, to make sure that everyone will register so they'll be on record as being a legal non-conforming use?
Mr Johnson: I've heard different sides of the argument. I think structures that ensure quality and that ensure really critical things, like fire codes being followed and all of that, are really important, so I think registration plays an important role in that. I realize as well that with registration, other people fear that it's going to be used as a mechanism for seeking out illegal units. So there are problems with that. I prefer the side of having structures ensure that housing is safe. That's my preference, personally.
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Mr Gerretsen: I would suggest to Ms Fisher that if you want to talk about fairness, it's no less fair than if you have two identical houses in a subdivision and one has a basement unit in it, that the government comes along and unilaterally says that the adjoining neighbour cannot have a basement apartment unit as well. But I would like to turn more to the human side of it. I think the people side of this is more important than the property side of it, from my viewpoint.
At one time we had a situation where there were at least 100,000 illegal units in the province, and many of the people who lived there were basically the most vulnerable in our society and paying sometimes low rent, sometimes exorbitant rent. Have you noticed any difference in how they feel about their units and their right to be there since Bill 120 has come into effect and in effect legalized those units? Have you noticed any difference in that respect, and could you describe that?
Mr Johnson: To be honest, one thought I have in response to this is that many of the people I work with who are low-income have lived such marginalized lives that they're not even aware of the laws that protect them, so they've never had a sense of tenure about anything. This is a reality that I've struggled with, because helping them engage the systems in order to deal with legal issues with the landlord is a real struggle. But I do know that, in the sense that I've done tenant development work with tenants and educated them about the LTA and the Residents' Rights Act and other laws that protect people's housing, they have indicated that they feel good, "This is my home, this is where I belong and there are rights that protect my housing."
Mr Gerretsen: Would it also be fair to say that a large number of these basement units or second units in houses rents at a relatively cheap rate of rent compared to what else is out there in the marketplace?
Mr Johnson: Yes. Often I've encouraged people that this is another route for inexpensive housing when they couldn't get into subsidy. It is a lot cheaper. This is a threat to the cheapest housing stock in Metropolitan Toronto and this is a big concern, given the number of calls I've had from people whose welfare allocations are really low right now and who've been leaving their places.
Mr Gerretsen: How do you feel then if this law comes into effect and any further units would in effect be outlawed unless a municipality did otherwise? How do you think this will affect the construction of illegal units? From your knowledge of this, is that going to stop this at all from a practical viewpoint?
Mr Johnson: My sense is that people will build them if they want them and they'll see how far they can go with it.
Mr Gerretsen: Obviously, you feel this will lessen the housing supply.
Mr Johnson: It will lessen the housing supply. I couldn't guarantee that people wouldn't try to get around it, but personally I think it's such a hassle already. I don't think the housing supply is going to expand because of this law; it's going to diminish, clearly.
Mr Gerretsen: I assume that within your community that you've worked there were a fair number of non-profit and cooperative housing projects that were sort of in the mill or had been approved or given conditional approvals. How are those people coping now who would have gone into those units that apparently now won't be built and won't be given allocation to? Have you had any feedback at all from the people who would have been housed in those units?
Mr Johnson: Just a lot of desperation in terms of, "Where do I go and what am I supposed to do?" and a sense of powerlessness, that if there are supposed to be resources for housing, ultimately whose responsibility is it to ensure that? They've turned to us, asking us what we can do. All I can do is to bring this here.
Mr Hoy: I was made aware of a gentleman who rents a second unit to a person. He charges them $100 a month. He's a benevolent person; he obviously wants to help, for whatever reasons he may have.
The discussion about red tape, I think it gets mixed in with the ability to pay somewhat. Obviously, streamlining the planning bill will not produce $100-a-month units, but I think your concern is more one of ability to pay rather than speed in a Planning Act or any degree of red tape. Are not the people who are in these apartments almost forced to seek those places out because they have no other place to go at all, no other option?
Mr Johnson: I don't know anybody who has actually chosen a basement apartment.
Mr Hoy: It's not the Marriott, is it?
Mr Johnson: It's about limits to resources and about, you know --
The Chair: Thank you very much. The questioning goes to the third party now.
Mr Hampton: Can I ask you again, where do you work?
Mr Johnson: I'm a housing worker at Church of the Holy Trinity.
Mr Hampton: Where's that located?
Mr Johnson: That's located right beside the Eaton Centre, downtown.
Mr Hampton: Okay. How many people would you typically deal with, say, in a week, a month?
Mr Johnson: My work is primarily around the development of an actual housing project, so at this place of employment I'm just getting the odd people calling up and asking for housing. That's not the bulk of my work, dealing with one-on-one stuff.
Mr Hampton: What are the typical income levels of the people you deal with?
Mr Johnson: Welfare and FBA.
Mr Hampton: The Conservative government believes that the private sector will build housing for low-income people. If you ask the members here, I think they would say, "Make the incentives," or as they say, clear the red tape and the private sector will build housing for low-income people. Do you think that will happen?
Mr Johnson: No.
Mr Hampton: Why not?
Mr Johnson: I don't believe the free-market economy has a morality and I don't believe the free-market economy actually does things to address human need. It's not going to encourage the building of housing. My landlord constantly, when he comes over, tells me how difficult it is, and expensive and tough. So for him it's difficult, and I'm aware for many people it's difficult. I don't think this will encourage it.
Mr Hampton: The way I've heard it described is, housing will be built where you can maximize your profits, and it's difficult to maximize your profits when you're dealing with low-income people.
Mr Johnson: Yes.
Mr Hampton: I'll tell you what I find bizarre about this part about the Conservatives, and I kid the Conservative members. It seems to me that there are low-income people out there who want and need housing, and I see them sleeping in the streets, and I'm sure some of the Conservative members see them sleeping in the streets. Then you have other folks who own a home -- they may be elderly and retired or they may be young folks who just bought the home and they're trying to pay the mortgage -- who would gladly, of their own free will, make available an apartment. It might be a downstairs apartment; it might be to convert part of the back end of the house; it might be an upstairs apartment. They would make available an apartment and they would make a free-market transaction: "You pay me the rent. I provide you with an apartment."
Ms Churley: This is what you guys believe in.
Mr Hampton: It seems to me it's one of the most legitimate exchanges we could have. It's like my going to the store and saying: "I would like to buy a loaf of bread. You provide me with the loaf of bread, I provide you with the $1.95 and we're both happy." Yet, what the Conservative government is doing is essentially criminalizing what I would call free-market behaviour.
Ms Churley: You are.
Mr Hampton: Not only is it criminalizing it in the sense of the landlord, but it's taking away rights of citizenship for all those poor people that other people have and take for granted. That's my sense of it, as I've sat here and listened to it. I can't, for the life of me, understand why the Conservative members would want to prohibit a free market exchange, which both people in the exchange would be happy with; one person gets housing, the other person has a little more retirement money or can pay off their mortgage. Do you understand why the members of this Conservative government are opposed to this very basic elemental working of the free market?
Ms Churley: Loaded question.
Mr Johnson: You'd have to ask them.
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Mr Hampton: I don't understand it either, and I'm waiting for them to provide an explanation. Let me ask you this: I'm aware that these units will be built anyway and will be used anyway, but what will happen is, the folks who live in them, yes, the folks who provide them will be breaking the law, the law you've made, and the folks who live in them will be denied the kind of fire protection, fire safety, electrical protection, electrical safety, and many of the basic health and safety rules that we regard as being part of a civilized and civil society. Do you understand why they would do that?
Mr Johnson: No.
Mr Hampton: Do you want to ask them that? I've been asking them, and they won't provide me with an answer. Maybe you'd like to ask them that.
The Chair: I don't think this is particularly the appropriate forum, Mr Hampton.
Ms Churley: Give us your opinion as to why they're doing that.
Mr Hampton: Why do you think they're doing this?
Mr Johnson: I think affordable housing or a whole diverse range of housing needs to be available in the community for people and I don't think any limit to that is appropriate. I think blended communities with different kinds of housing are important and I think municipalities have to find creative ways to make that happen in terms of parking and everything else. But for me, it doesn't make sense to limit resources. Given the human need, it makes no sense. I don't know. Maybe the question I would have is how people will benefit from this, how people looking for housing will benefit from this.
Ms Churley: Is there any time left?
The Chair: You've got about 30 seconds.
Mr Hampton: Thirty seconds. Ah, one more jab. I think it cuts along these lines, and I can't understand members of the Conservative caucus taking the side they have. It boils down to the wishes of a few -- okay? -- to avoid the free functioning of the market -- okay? -- to deprive the people who want to make the housing available of their liberty and to deprive the people who want housing of their liberty. The wishes of a few to do that have taken precedence in this case, and those few are people who say, "I don't want that kind of person living on my street" or "I don't want somebody living across the road from me who's a mere renter." I think that's what it boils down to.
Ms Churley: That's what it boils down to.
Mr Johnson: For me, it boils down to a class distinction and ghettoizing of people who need housing, and it's about sectioning off certain areas of municipalities for certain income levels. I realize it's a judgement, but that's my belief in terms of what's happening. It's a class issue.
The Chair: Thank you, Mr Johnson. I appreciate your taking the time to make your presentation, particularly as an individual, and showing the initiative to come down and see us today. Thank you.
REGIONAL PLANNING COMMISSIONERS OF ONTARIO
The Chair: Our next group up making presentation is the Regional Planning Commissioners of Ontario. Good afternoon. We have 25 minutes at your disposal to divide between presentation and question and answer.
Ms Sally Thorsen: Good afternoon, and thank you for this opportunity to present the Regional Planning Commissioners of Ontario's brief on Bill 20. My name is Sally Thorsen. I'm the commissioner of planning and culture for the region of Waterloo and I'm also the chair of the RPCO.
For those of you unfamiliar with the Regional Planning Commissioners' organization, we represent the most senior planners from Ontario's 13 upper-tier municipalities. Collectively, the members of the RPCO are responsible for planning the community fabric of approximately two thirds of Ontario's population. In addition, we also process two thirds of the development applications in this province. We have taken and will continue to take a keen interest and active role in the debate surrounding Planning Act reform.
The RPCO's brief on Bill 20 has been arrived at through the consensus of its members and does not necessarily reflect the positions of their respective councils.
I am joined today by Andrew Hope, a planning manager, and Tim Marc, a solicitor, both of the regional municipality of Ottawa-Carleton. They will act as resource persons.
The commissioners share the government's commitment to reforming Ontario's planning process and commend the government on its continuing work in this regard. We offer this brief to help the province achieve its Planning Act reform objectives of streamlining development approvals, providing municipalities greater autonomy and stimulating economic development.
Among the numerous constructive changes proposed by Bill 20 are, first, reinstatement of the section 3 "shall have regard to" phrase in place of the more onerous "shall be consistent with" phrase linking the planning process with the provincial policy statements; second, introduction of a process to exempt official plans from the review and approval by approval authorities, including the Ministry of Municipal Affairs and Housing and regions; third, reduction of the processing time lines for most classes of planning applications; and fourth, introduction of transitional provisions that allow old planning applications to be disposed of under the then prevailing policy environment.
Notwithstanding these constructive changes, the RPCO believes that there are three key components of Bill 20 which could be improved upon such that it delivers on the province's Planning Act reform objectives. These key components will be the focus of the balance of this presentation.
First of all is the exemption process for official plans and amendments. The RPCO's comfort with this process is predicated on the successful experience with undisputed official plan amendment approvals delegated to most regions under the 1983 Planning Act. As the official plan exemption model is similar to the existing undisputed official plan amendment process, we're confident the official plan exemption model can be implemented.
However, we believe that the province's streamlining objective will be better implemented by amending section 17 of Bill 20 to allow the determination of official plan exemption status to be delegated to a committee of the approval authority's council or approval authority staff.
We are concerned that the exemption process could result in an increase in direct OMB appeals involving official plans and amendments, and therefore we recommend that section 17 be further amended to give approval authorities the explicit authority to exempt official plans and amendments on a case-by-case basis rather than by blanket exemption, as is being proposed by Bill 20. Blanket exemptions will deny regions the opportunity to constructively intervene in the lower-tier official plan/amendment approvals process through the use of modifications to resolve disputes and correct errors post-adoption. Consequently, the only recourse for regions will be through the OMB appeal process.
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The second key component is the proposal for universal OMB appeals. The RPCO have identified three issues involved with the Bill 20 appeals process, namely:
(1) Without the ability to dismiss or scope disputes locally through an OMB referral process, the board will be forced to deal with many matters which it has demonstrated neither the inclination nor knowledge to dismiss without lengthy mediation or hearing procedures.
(2) Universal OMB appeals remove the authority to resolve disputes locally.
(3) Once the board is seized with an appeal, it becomes theirs alone to resolve, including all post-decision functions such as clearance of conditions, issuing final approvals etc.
The RPCO are convinced that universal OMB appeals will leave Ontarians with easier access to the board than at any time in the history of the province. This increase in workload for the board comes at a time when the OMB is receiving no additional resources. Moreover, no effort has been made to account for the increased costs the municipalities and developers will have to shoulder for this increased accessibility to the board.
Recent estimates by the RPCO suggest that the enhanced OMB access afforded by Bill 20 could result in 50% of official plans and amendments and subdivision and condominium applications requiring OMB intervention.
To put this into context, approximately 5% to 15% of pre-Bill 163 official plans and amendments reviewed by regional approval authorities involve OMB referral requests. Fewer still are ultimately referred to the board. What these figures don't reveal is the 25% to 35% of official plans and amendments where regional approval authorities impose modifications to avoid OMB referrals.
The situation surrounding subdivision and condominium applications is similar -- 5% to 10% of pre-Bill 163 applications were forwarded to the board for dispute resolution. This dispute rate would have been higher had regional approval authorities not proactively negotiated subdivision and condominium approval conditions that prevented some 15% to 30% of applications from reaching the board.
Based on the volume of official plan and amendment and subdivision and condominium applications submitted over the past five years to regional approval authorities, the RPCO estimate that the OMB referral process has saved Ontario taxpayers at least $18 million. That's the public cost only. It should be pointed out that this figure of $18 million does not begin to account for the real savings in carrying charges to developers through fast-tracking decisions that would otherwise have to wait for the board's typical 12- to 15-month period to schedule a hearing.
Given the previous success of the OMB referrals process in resolving official plan and amendment and subdivision and condominium application disputes, the RPCO maintain that the province's Planning Act reform objectives are best served by an OMB referrals process.
The final key component concerns the notion of a complete application. It has long been recognized by municipalities and by the Ministry of Municipal Affairs and Housing alike that one of the major reasons for delays in processing planning applications is the absence of sufficient information to make a sound planning decision. While this fact was not lost in Planning Act reform discussions, in the final analysis, the notion of a complete application was reduced to only the most rudimentary information in the belief that applicants will act out of self-interest to provide all the relevant information approval authorities require to make decisions by the milestone dates established by the Planning Act.
We believe the province can and should do better. While the concept of a complete application under Bill 163 is confusing because of the distinction between prescribed and required information, Bill 20 offers an alternative that in and of itself could result in more disputes as municipalities are forced to refuse planning applications owing to the lack of sufficient information to make a sound decision. In the interests of streamlining planning approvals and providing municipalities greater autonomy, we submit that the solution to this conundrum is to empower municipalities to pass bylaws specifying what information is necessary to process the classes of planning applications for which they are responsible.
In summary, I'd like to thank the standing committee for its consideration of the RPCO's input on Planning Act reform. We cannot emphasize enough the importance of maintaining the economic prosperity of the regions which after all are the province's economic engines. It is critical, therefore, that Ontario's new Planning Act strikes a balance between efficient and hassle-free development approvals and protecting the public interest.
We want to assure the province that we remain committed to working cooperatively towards the objectives of streamlining planning approvals, providing municipalities with greater autonomy and stimulating economic development. It's with these objectives in mind that we urge the province to act on the recommendations contained in this brief so that a pivotal piece of legislation can be made better. Thank you.
Mr Sean G. Conway (Renfrew North): Ms Thorsen, I've got a question for your two colleagues who are from my part of the province. I found your submission very interesting, but my friend from Kingston reminds me that, like a lot of things in life --
Mr Gerretsen: I didn't say a thing. Come on. You're on your own.
Mr Conway: We have in eastern Ontario, I think, something that's quite fascinating if not phenomenal from a planning point of view. I wanted to ask the two people from the regional municipality of Ottawa-Carleton to just provide a brief rationale for the location of the Palladium. It's open now, so those of us who drive up and down the highway quite frequently -- and I can imagine a citizen who might be listening to these discussions over the course of many days and weeks. I drive by it myself quite frequently and I'm thunderstruck by the whole proposition -- a fabulous team, a beautiful building, a really interesting location. It wasn't done in 1962 or 1973; actually, it was opened in 1996, so it's a fairly recent development.
From the point of view of the regional municipality of Ottawa-Carleton, help me understand again the rationale for the decision that located that hippodrome out in the cornfields of Kanata.
Mr Tim Marc: I thank the honourable member for his question. The Ontario Municipal Board, the first thing they accepted was that the Palladium had to be located on the Queensway. But the second and, I would have to say, the overriding factor was the recognition by the board of the key role that Mr Firestone had played in bringing forward the Palladium. The board acknowledged that it was Mr Firestone's impetus that brought the Palladium to be, that he didn't have the power of expropriation, that he had to go with land that he could purchase and while there were other sites that may or may not be better, the lands owned by Mr Firestone are in the location where the Palladium now is and the board accepted that those were the lands that the Palladium would have to be located on or nowhere and that's the basis upon which it was approved.
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Mr Conway: Given the enormous implications that a facility of that kind has certainly on the western perimeter of the regional municipality of Ottawa-Carleton, what opportunity does the regional municipality planning department have to offer some input?
For example, in the unlikely event that the National Hockey League which, as we know, is engaged on a daily basis with international charity and philanthropy might decide to relocate that franchise to Phoenix or Anaheim or God know where. When I drive by the Palladium, I wonder what would we ever do out here, God forbid, should we not have a National Hockey League franchise? Does the RMOC get a chance through the planning process to speak to those kinds of things before final decisions are made?
Mr Andrew Hope: I'll attempt to answer for our department. It was quite clear that the original thrust of the proposal was for the NHL franchise. It's quite clear that the hockey season is quite short. There are a number of other events that are held at that event and will continue to be held at that event. It is truly multi-use. If the franchise moves, that's regrettable. Certainly I think the region will suffer -- small r that is -- and that they'll have to presumably change the programming of the event. I should say the facility, but that doesn't suggest that the facility's going to disappear obviously.
Ms Churley: Were you consulted by the government on the planning reform at all?
Ms Thorsen: We participated in discussions, yes.
Ms Churley: In what capacity?
Ms Thorsen: We discussed with staff the direction in which the legislation was heading back before it was submitted.
Ms Churley: Would this have been face-to-face meeting in staff office, by telephone, documentation? How was it done?
Ms Thorsen: No documentation, I don't think. We had staff members of the Ministry of Municipal Affairs and Housing attend our meetings, our regional planning commissioners' meetings to bring us up to date. We've submitted position papers, that sort of thing.
Ms Churley: AMO has taken an overall position on the bill. Do you agree with AMO's position overall? Do you have some differences?
Ms Thorsen: I don't have a copy of their final brief, but I would anticipate that there will be differences. AMO represents largely the lower-tier municipalities. It also has a large proportion of its members on its board of directors who are from the smaller municipalities rather than the urban areas and I would anticipate that the slant will be more in that direction.
Ms Churley: You see that there are some real differences in approaches to planning between the smaller and the larger?
Ms Thorsen: Yes. It depends where you sit. If you're sitting in an urban region, obviously your perspective is different; plus the fact that the regions are largely responsible for the major servicing responsibilities, sewer, water and major roads, waste disposal and so forth, so they have a real interest in making sure development is sensitive to the region's needs. We also have approval authority for local official plans and amendments and subdivisions and condos.
Ms Churley: So here it's really big difference.
Ms Thorsen: Quite a large difference, yes.
Ms Churley: On another track, do you feel that public participation is important to the process, that in the long run you have better planning decisions, or do you find that it tends to be a necessary bother that you have to go through?
Ms Thorsen: Oh, I think it's very important to have public participation.
Ms Churley: Do you feel this bill, with the changes and the actual lessening of days that people have to study plans and get all the documentation -- do you feel that's a problem for people, that people are going to have less time to get ready for hearings and appeals?
Ms Thorsen: Our feeling was that the time limits were manageable provided all the information was there; that was a critical issue.
Ms Churley: I notice that you in fact mention that you worry that the financial needs won't be there to make sure that documentation will be ready. Is that a concern of yours?
Ms Thorsen: I don't know whether the lack of financial resources would really affect adequate information. We find that the more experienced developers and consultants will provide all the information that is required whether or not it is prescribed. It's the less experienced consultants and the people who are not developers who will come in with very little, and they haven't a hope. With the time lines that are being proposed, they haven't a hope of going through the process, so it would better if they knew up front what was required and we will be encouraging pre-consultation so that before they've put in their application they know. But there's no requirement, by Bill 20, that they provide all this information.
Mr Hardeman: Good afternoon and thank you for your presentation. First of all, just a clarification or question: Is there any member of the 13 regions that is not presently a member of AMO?
Ms Thorsen: I don't think so, no. I think they all are.
Mr Hardeman: Thank you. I just --
Ms Thorsen: You're outnumbered.
Mr Hardeman: I happen to come from one of the 13 regions so everyone considers me somewhat rural. I'm just wondering, on page 4 of your presentation, item (ii), to amend section 17, "to allow the determination of official plan exemption status to be delegated to a committee of the approval" -- could you explain that just a little more for me, to clarify that?
Ms Thorsen: We thought it would expedite the process if there was either a committee of council or staff who would review applications once they'd been received and determine whether there was a regional interest in some respect. Because often an official plan or an amendment -- not an official plan, but an OPA amendment, would be of no interest to the upper tier, but there may be cases where superficially it looks as if it's of no interest but it might impact a regional road. It could have a major effect on our major servicing.
For example, the University of Waterloo in my municipality is the largest water user in the region, of any facility. They could be proposing an expansion and, on the face of it, that isn't of significance to the region. We don't care. But in terms of the water capacity, it could have a major effect, so we need to know the details of the application.
Therefore, it was our feeling that the exemption could be reviewed and it could be determined on a site by site. Whereas, if you do it on a blanket basis, it's conceivable that, for example, site-specific official plan amendments would be exempt and that could create difficulties.
The Chair: Thank you for your presentation. We appreciate your taking time to visit us this afternoon.
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SORBARA GROUP
The Chair: Our next presentation is from the Sorbara Group. Good afternoon.
Mr Leith Moore: Good afternoon. I was going to make a brief presentation and then answer questions, if there are any. So I'll be relatively brief.
I'm very excited; I've never been here before. I took a tour on my way in.
The Sorbara Group is a private land development company. I have been working with them for about 15 years. We're a development company that's involved in land development and construction. We're in residential and industrial. We do a little bit of office; we do a little bit of retail. We have been active since the 1940s. We've probably been involved in certainly every municipality in the GTA and a few outside of it, and I'd say we're currently active in all of those municipalities, either as an active developer or as a landlord in one form or another.
As I said, I've been with the Sorbara Group for 15 years. I'm, fortunately or unfortunately, a planner by education, with a University of Waterloo planning degree.
I'm here today largely to say we like Bill 20 and the changes that are being proposed. If I could summarize why, it's really because the Planning Act, in our experience, and mine in particular, is basically a template. So much of what actually goes on in the process goes on outside of what is written in black and white in the Planning Act. The process is the process. The Planning Act for us is the template around which it's organized and it's the thing that we fall back on when things don't work. I think that's really where the importance lies and where the gist of the things that we like and the thing we'd like to see changed in the proposal lies; it is that safety net as such.
The basic organization of it that we like is the intention, as we read it, to say local municipalities will be making most of the planning decisions. The province is going to articulate its interest and set it out in provincial policy statements. The Planning Act changes that are proposed here through streamlining and one-window approaches and a number of the details that you've no doubt heard much about really say people know what they're going to do and who's doing what.
That kind of focus is really important for us now. Municipalities have scarce resources; the province has scarce resources; the 16 developers left in business have scarce resources; people who want to come and comment on the plan have scarce time. So focusing it and doing it once and not having overlapping and not having duplication, and the local municipality knowing what it's to do and the parameters within which it's to do it, and for us to understand that, is key. I think we see the bulk of the changes proposed in Bill 20 now falling within the parameters of achieving that objective.
The one key concern I have in particular relates to the OMB and the fact that minor variances aren't going to be heard by the board. I think that's important; our company thinks that's important. The changes proposed in Bill 20 that allow us a direct appeal to the OMB are important as well. I see the OMB becoming increasingly important in the next short while. We think that should be the direct route of appeal on all planning applications, in any instance.
We are active in both development and redevelopment. Anecdotal information may not be the basis of good policy, but it certainly informs out day-to-day work. In trying to do redevelopment projects within Metro Toronto, we certainly attract a great deal of opposition. There's a much wider range of interests that might be interested and might have a problem with your project. Having the time frames that are referred to in this act and also having the board available with a range of alternative dispute resolution mechanisms and perhaps even, if it could be done, a more streamlined point at which you arrive at a board hearing I think is maybe the one single most important thing that can be achieved right now.
People are not going to invest in redevelopment projects if they're going to be wound up for years, as we have been on a number of ours, before they get to a decision. if you are faced with having to spend millions of dollars in carrying costs and consultant fees and lawyers' fees to find out if you have a project, there will be few proposals. So streamlining the timing of getting to the board and streamlining the timing within which that board decision is reached and perhaps having it involved sooner on dispute resolution are themes that I think are increasingly important. All the provincial policy statements seem to be trying to encourage redevelopment in addition to new development, so that kind of board referral mechanism and timing is key.
I said I would be brief. That's really the few points I wanted to make. Our company has been a member of the Urban Development Institute for as long as I've been with it and far beyond that; we've probably been a member for about thirty years. I know Mr Sorbara was once president himself. We are aware of and support the UDI submission that has been made to you as well. Thank you.
Ms Churley: I wonder if as a redeveloper you have any interest or any comments -- I noticed that you haven't referred to it here -- on the basement apartment issue, the reversal back to it being in the purview of a municipality to decide whether or not that's allowed within its jurisdiction.
Mr Moore: As a redeveloper? We never saw a lot of change with the absolute, automatic right to have a basement apartment or a second apartment. It was like before the legislation it was a single-family house and after the legislation it was a duplex. To us, it was not comprehensible in any event. I think that those types of secondary uses need to be addressed, specifically planned for. They're appropriate some places and not others.
Ms Churley: Why do you say that? Why are they appropriate in some place and not in others?
Mr Moore: Certain houses aren't especially suited to become a basement apartment. Certain neighbourhoods aren't especially suited to it. Some that are, I don't know, a little closer to transit or are multistoried, larger homes that have been split into apartments -- that seemed suitable to us, but just to say that they could be everywhere seemed to run against what was really happening anyhow.
Ms Churley: I know that this isn't your main interest, but we're into it now. I just find it peculiar that there could be limitations on a privately owned house, property owned by a private citizen who is paying taxes, that the person would be restricted from doing what he wants in his or her home as long as it fits within proper planning and proper fire and safety codes. I just don't understand what this party and people who are involved in the work that you do -- I can't understand; it seems to be a contradiction. I really am trying to understand what this is all about, why you would feel this way, that it's okay in some neighbourhoods, not in others, and that municipalities should have a say. Whereas in so many other cases the general position seems to be that government should stay out of people's faces as much as possible, yet in this case you say there should be real restrictions on private property.
Mr Moore: I'm not saying there should be an automatic restriction against it everywhere, but neither am I saying it should be automatically permitted everywhere. I think you have to approach it from an end product point of view. Frankly, almost everything that all of us do in this business is related to the process and how we get from point A to point B, and very little time is spent on what it is we're going to do when we get there and what it is we're building.
I think to say that basement apartments or secondary apartments everywhere is okay isn't necessarily addressing the question of what kind of accommodation it is and what kind of apartment it is. Perhaps if people focused on that, the where it could go is easier once you know what it is you're doing.
Often what I heard about it -- we never availed ourselves of it, and I used to own a home -- is that it just made everybody a developer. Every resident who owned a house became a developer. How many would take advantage of it? My perception of it was it was a larger conceptual problem than a real one, and whether it's there or not there I didn't think made a big difference. The places that really want it and can meet the codes and guidelines and have the right product I think should have it.
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Ms Churley: Okay. I like your last line. That seems fair. We agree on that. I didn't mean to take up all our time on that. Your answer was quite intriguing to me, so I did get into it.
Have you found in your experience in your work that a large part of the slowing down of the process has been not the act itself but the bureaucracy slowness, within ministry departments, within municipalities, and do you see a need to deal with that as well as some of the other processes and red tape?
Mr Moore: It really varies situation to situation. Sometimes we create our own red tape. I like some of the initiatives that exist about pre-consultation, about getting a decent enough amount of information. I don't think we should have to have built our project to prove that it could work, but I don't think we need to sign our name to an application form saying we're going to build something. There has to be sometimes enough information to make a decision. I haven't encountered huge problems staffwise. Yes, between ministries, huge delays. If somebody could sort out who's doing what, having three or four agencies, whether they're an agency or a government department, commenting on the same thing from different points of view -- three guys in stormwater and two guys in environment -- that'll drive us crazy. That causes time. But most of the delay is because the system's the system and a lot of people know how to play it, and if you're opposed to a project, without time frames and direct appeal rights -- we've been in one that everybody in the world except for a few people supports, and three years later we're coming up to a board hearing. That's frustrating and that has cost a lot of money. It's not necessarily just staff; it's often those people who --
Ms Churley: The public.
Mr Moore: The public. It's fair enough if they want to be opposed. Let's be opposed; let's make a decision. But to know that you can drag it out for years and maybe bleed somebody to death before you get there and that's the way to stop it, that seems inappropriate.
Mr Galt: Thank you for an excellent presentation. You were referring in one of your positive areas about the timing and streamlining the time frames. Do you see anything negative for the public, that it's moving too fast, that they won't get a fair hearing? Do you see any problem there?
Mr Moore: No, I don't. I think that, again, oftentimes there are several public hearings held. I guess what we're talking about is a statutory public hearing which would flush out the issues. If a good application has been made and people comment on it and they have a public hearing, then everybody has a chance to say it up front before it goes 18 months into the process to find out there are some concerns. I like the idea of getting the concerns out on the table up front.
Mr Galt: So you don't see it as a problem, interfering with the democratic process. Getting rid of some of this bureaucracy, red tape, whatever, process -- do you see this as a step in the direction of affordable housing?
Mr Moore: Affordable housing and timing go hand in hand. How much money we have to spend on getting to the end really affects the end cost. It wasn't too many years ago that we had an affordable housing crisis, and today almost everything's affordable. As a matter of fact, a lot of things went down in price on our end and there are some costs that have remained fixed, but that's another debate.
Mr Galt: There's a lot of concern about creating jobs and getting on with things. Do you see Bill 20 as being a help towards creating jobs?
Mr Moore: I really do. I know what we'd like to do, and if we can get some of our ideas and work on our ideas and what we want to build rather than spending a lot of money keeping our law firms busy, and that's what I see streamlining doing, then I think that's good for everybody.
Mr Smith: Welcome. I certainly hope you enjoyed your tour of the facility.
Mr Moore: Lovely.
Mr Smith: You mentioned in your introductory statement that you are a graduate from Waterloo, and I'm assuming you have an honours degree in environmental studies.
Mr Moore: Yes.
Mr Smith: Given that and your professional background, and you alluded to the "have regard to" test, do you feel the change in that area will in any way impede your ability to adequately consider the environmental considerations that were opposed under 163?
Mr Moore: "Have regard to" instead of "be consistent with"?
Mr Smith: Yes.
Mr Moore: I don't have any problem with "have regard to." There are many examples in the GTA today where there are extremely rigorous studies -- there is a board hearing going on in Richmond Hill that's been going on for about eight months now -- all related to environment. So I think that people are having regard to it and it's rigorously reviewed and examined, notwithstanding the wording. "Have regard to" allows the municipalities to, with a little bit of flexibility, know what the rules are.
Mr Gerretsen: I would like to just follow up on this notion of administrative time delays, both within ministries and within city hall, planning staffs etc. You made some reference to that in the answer to Ms Churley. Would you not agree with me that this is really where all the time is taken up, rather than in meeting the various time deadlines as set out either in Bill 163 or Bill 20?
Mr Moore: Yes, I would.
Mr Gerretsen: Your notion of the one-window approach, and as contained in the act, is certainly something that I think most people can relate to, because at least you would know which ministry is the lead ministry. There's been some concern expressed about how that's really going to work, whether or not the Ministry of Municipal Affairs and Housing is going to broker situations where there may be different competing interests for different ministries, versus the notion that if one of the ministries feels strongly enough about a particular situation and wants to appeal, the Minister of Municipal Affairs would basically do this, as he's the lead minister, on that ministry's behalf. What is your understanding as to exactly how the process will work within the Ministry of Municipal Affairs, from a practitioner's viewpoint?
Mr Moore: I have to be honest and say I'm not exactly sure I know how it will work. We know that one window should be an improvement. Whether they're going to broker or simply represent, I don't know. I hope there'll be some brokering going on. There needs to be a substantial change here. Everybody's concerned with their end of the process and their bit of the turf, and I don't know who it is who feels responsible for, "What is it you're building, and why, and do we like it?"
We have municipalities and regions and the province and agencies, and we have to go incrementally through one after the other to explain over and over again and get all the requirements layered on. We'd really need to be able to say, "We would like to build this, what's your concern?" and deal with somebody who has some responsibility and authority to respond, and not just --
Mr Gerretsen: Would it help you if you actually got an administrative bulletin that set out exactly what each ministry is looking for and the steps that are taken in the process? I'm not talking about the application steps so much, but a more detailed administrative guideline rather than a legislative guideline. Would that be helpful to the development industry?
Mr Moore: If you were going to do it, administrative would be better than legislative. With that guideline, better you had somebody there who knew how to use it and had the authority to use it. There are a tremendous number of great people in all aspects -- government agencies, developers -- lots of good people.
Mr Gerretsen: Actually take some of the ministry people and planning staff people and have them work the other side of the fence for a little while, just so they know what kind of problems you can run into and how the other guy feels. Agreed?
Mr Moore: Yes.
The Chair: I appreciate your taking the time to make a presentation, and for your first visit you have the unique privilege of knowing your words have been recorded in Hansard.
Mr Moore: I'll send it to my mom. Thank you.
The Chair: Our next group up is the Automotive Parts Manufacturers' Association. We have people pointing and gesticulating at the back.
Ms Churley: They're not with Bill Murdoch, are they?
Mr Murdoch: Were you waiting on me? I didn't know you quit just because I left. I really appreciate that, Marilyn.
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AUTOMOTIVE PARTS MANUFACTURERS' ASSOCIATION
The Chair: Good afternoon, Mr MacDonald. Glad you could join us. We have 25 minutes for your presentation which will be divided between your talk and question and answer, as you see fit.
Mr Ken MacDonald: I understand. I kept you waiting and I apologize.
The Chair: No, only a few seconds.
Mr MacDonald: I appear on behalf of the Automotive Parts Manufacturers' Association. Briefly, that's a national association that represents about 90% of the companies that supply to auto manufacturers in Canada. That industry is situated predominantly in Ontario, representing about $21 billion in GNP in the last year and investing in 1993 about $1.1 billion in new factories and the furnishings for those factories. So the Development Charges Act can have a bearing, clearly, on our industry.
Clearly, as well, because the vast majority of our members supply their products to the Big Three -- the Big Three auto makers are their customers -- you could imagine that all their costs are subject to as great a scrutiny or as close a scrutiny as any supplier in any industry would encounter, and accordingly, sometimes the smallest factors and costs will affect the decision to buy from a supplier north or south of the border.
Against that backdrop, our views about the Development Charges Act, the regulations in Bill 20, let me start off by saying we are pleased, no question about it, to see the government undertake a review of the DCA. Development charges are, especially in their present form, a potential barrier to the establishment or expansion of business in Ontario.
The thrust of Bill 20, of course, is to require municipalities to obtain the approval of the minister for any new development charges bylaw. We understand also that Bill 20 is intended as essentially an interim transitional measure pending a more fundamental review. None the less, it is important that the requirements for a valid development charges bylaw be set out in the DCA. If instead the minister is given broad discretion over the content of these bylaws, our concern is that this approach could lead to a relative lack of uniformity across municipalities in respect of their charges.
We're going to be presenting today a proposal for a fairly ambitious reform to the act and also to ask that this ambitious reform be incorporated in Bill 20 at this time.
Under present law, the municipality sets the amount of the charges based upon a 10-year projection of its infrastructure development needs -- industrial or residential -- for the whole community. Hypothetically, that new infrastructure may be exclusively residential or may be located in one particular geographic area of the city or town.
The construction projects upon which those charges may then be imposed, however, may well be industrial, not residential, or may well be located in a very distinct other geographical area. In many situations, there may be no relationship between the works for which these changes are levied and the industry or the company paying the charge. Put another way, the industry is neither responsible for the need for the new infrastructure nor will it enjoy the benefits of that infrastructure. Indeed, our members have brought to our attention two recent instances, Cambridge and Oakville, where municipalities have imposed development charges, each in the millions of dollars, even though the construction projects in question would not involve any new infrastructure requirements that would have to be built by the municipality.
The requirement, set out in subsection 3(1) of the DCA, that charges may be imposed, and their wording is "against land if the development of the land would increase the need for services," that provision has not been effective to limit the imposition of charges. Municipal law practitioners have advised us that municipalities have gotten around that by simply saying any development increases the need for services, at least in a sense sufficient, in their view, to justify the imposition of the charge.
We believe the DCA should be revamped to include an unequivocal requirement, that the act should require the bylaw to stipulate that a development charge be imposed on a property owner on a site-specific basis only where construction undertaken by that owner would necessitate additional infrastructure being built by the municipality.
We find inexplicable and unfair that the subsection 3(7) exemption in the act for services installed by an owner at the owner's expense is limited. We propose then that the DCA stipulate that bylaws must specifically state that development charges may be imposed only if the specific development of certain land against which that charge is to be imposed would itself increase the need for municipality built services.
In addition, the DCA should require that the amount of the charge be tied to, indeed limited to, the municipality's reasonable costs of building that additional infrastructure. More than that, the DCA should require municipalities to provide to the owner details not only of the actual costs, but also in the case of tenders being let for the services, details of those competing bids so as to make possible informed scrutiny of the development charge amount.
There are several reasons we have that would support such a reform. First, the development charge being closely linked to the actual infrastructure needs engendered by that construction project will be perceived by would-be investors as being more equitable. Second, the reform would create an incentive for investors to build their own infrastructure at their own expense.
We recognize that some municipalities provide a credit to such investors that build their own infrastructure at their own expense as provided under sections 9 and 13 of the act, but there's no obligation on municipalities to give that credit. The two instances we referred to before were cases where such a credit either wasn't given or was laughably inadequate.
I might add as well that an investor would probably prefer not to have to deal with the paperwork, the dealings, the negotiations over the size of that credit. I surmise that an investor who would be building his own links to water, links to sewer, etc, would rather do it on his own expense and under the comfort that he will not be charged any tax or any charge in respect of that, not to get into details about the size of the credit.
Third reason: Would-be investors would generally not have given input into those 10-year projections I referred to, either because they were not operating in that city at the time that the projections were made or because they were mired in recession perhaps at the time and therefore not anticipating any expansion. Section 4 of the act provides for appeals to the OMB from the passage of a bylaw but also sets a short limitation period so that would bar these investors from bringing such an appeal.
Finally, we recommend that the DCA require that property owners be given the option of paying a development charge in instalments rather than as a one-time charge payable up front. Right now the DCA permits, but does not require the municipality to agree to payments after the date of the building permit is issued. Let that be a requirement under the act; otherwise it's easy to surmise circumstances where the owner, small business, not even yet starting its operation, therefore, having no cash flow, finds the charges a significant barrier.
Those are the submissions. I'd be more than pleased to clarify anything there or take any questions.
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Mr Hardeman: Thank you for the presentation. I would comment that the presentation does actually deal more with the revamping of the Development Charges Act than it does to that portion in Bill 20 that refers to development charges. I appreciate you mentioned that at the start of your presentation. I would hope that you would forward your presentation to the ministry as it reviews the Development Charges Act.
I would just question if you could maybe point out to me how you envision the developer or the industry putting in the infrastructure beyond their properties on their own initiative, provided they did it under the municipal standards, and how they would then deal with the industry between that and the sewage treatment plant and how they would recoup their cost. Under the present Development Charges Act, it allows for a special agreement so the municipality can charge it back to others. How would you envision that the developer would do that on their own and not have the municipality involved in the development charge?
Mr MacDonald: There are at least two instances where in fact the work was carried out, as I say, at the builder's, or investors' company's, own expense. No doubt there was close consultation as to exactly what the specifications of the links to what would be, the links to sewer. The precedents are there in terms of that being done with cities finding ways to deal with investors that are inclined to build that way.
The other issue, of course, not to lose sight of it, is situations where, yes, the city does have to, practically, maybe just because of the geography, build some of the links. Maybe the owner builds as much as he can but, practically speaking, the city must build some of the new infrastructure, and yet maybe the charge doesn't reflect the fact that some of the work has been done at the expense of the business owner.
Mr Hardeman: Your position then on development charges too would be that they should only be related directly to the hard services that that industry is going to utilize as opposed to covering some of the costs of other services that the population will need in the future?
Mr MacDonald: The focus is that there should be a clear common link between XYZ company building its new factory there and the charges for which XYZ is being charged. It may not be simply as direct as building the actual sewer from XYZ to the main sewer. It may well be that because XYZ is going to be bringing 20,000 new people into a town, the charges will have to reflect that. On the other hand, if there is no new employment resulting from the expansion from that building project, then they ought not to be paying charges in respect of new schools or in respect of widened streets etc.
Mr Hardeman: You would agree then that there is a correlation between the generation of the population and the generation of the industry. There should be some payment of development charges by industry to cover the cost of the infrastructure for the population?
Mr MacDonald: You're alluding to population increase.
Mr Hardeman: Yes.
Mr MacDonald: Where an increase can be attributed to that business expansion, I can see the argument. The urgency of our being here today is because there are instances where a business expands capability without adding staff, or without adding significant staff, and yet has been charged for roads, for schools, for things which are presumably supported on the argument there's going to be increased population, but no increase that can be attributable to that employer, to that company.
Mr Gerretsen: Your presentation mainly has to do with changes to the Development Charges Act, a process that I guess the ministry is undertaking. I take it then that your basic position is that with respect to the bill itself, it basically states that municipalities can extend any existing development charges under the act, but they can't make it any more onerous on developers than it already is. You would agree with that position, I take it.
Mr MacDonald: To extend existing bylaws?
Mr Hardeman: Yes.
Mr MacDonald: Bylaws of course do under the act expire after five years. So that gives us some comfort in respect to concerns such as --
Mr Gerretsen: No, but there's a provision in the current bill, the bill that's before us, that any existing bylaw can be extended as long as it isn't made any more onerous than it is right now. You would agree with that position, I take it?
Mr MacDonald: Not every bylaw will provide for such things as instalment payment of a charge or will provide for credit to be given in an instance, as I say, where a business bears some of the expense of new services. So such bylaws as those, no, I wouldn't favour their being extended, not without those aspects being amended, without a new DCA that states that these requirements shall be built into a bylaw. That would be a concern. To miss those factors and just allow an existing bylaw to be extended, no, that would be a concern.
Mr Gerretsen: So you don't think a development that's being done now should in any way, shape or form pay for any of the infrastructure that's already there? That's your position?
Mr MacDonald: They are of course paying municipal taxes on a year-to-year basis.
Mr Gerretsen: Oh, yes.
Mr MacDonald: The development charges are charges imposed to pay for new structure, new services, as per that 10-year projection. So we're not even talking about covering the cost of existing services today. I don't see that to be on the agenda.
Ms Churley: Thank you for coming to present to us today. This is a comment. I find it really interesting that this government wants to give municipal autonomy to different regions to do their own planning, make their own planning decisions. We hear over and over again from government members, when I, for instance, have opposition to autonomy in various aspects of the bill, don't I trust regional councils to make the best decisions for their regions? So we will end up with, say, a patchwork of environmental protection. I find it interesting in this one why the province feels that it needs to reach in and tell municipalities how to settle their development charges, especially at a time when the government is cutting back municipalities up to 47% in transfer payments. I think that's a bit of a contradiction.
None the less, there are therefore concerns that there will be restrictions put on the charges at a time of cutbacks. You have to ask, who's going to pay for -- and I don't know if you're being specific here or not -- the soft services, for instance, that new communities will need, new development: schools, libraries, community centres, all of those. Will the general taxpayer end up paying for those, or how do you see that working out? At the end of the day, somebody's got to pay for it.
Mr MacDonald: I guess two comments in response. One is, I'm not so sure there is a contradiction to be seen in the government's decision to have municipal approval for any bylaw. It's quite consistent with their war against barriers facing business, particularly startup business.
Ms Churley: That's true. The environment is another story, yes.
Mr MacDonald: The other half of your question, it may be the case -- I can see this hypothetically -- that the reform we propose doesn't even result in a significant downward decrease in the amount of revenue raised. It's more a matter of, let those who create the need for infrastructure costs carry their own weight, as it were, to let the user pay philosophy.
Ms Churley: So-called soft services could be included in that then?
Mr MacDonald: Soft services, for example, libraries?
Ms Churley: Yes.
Mr MacDonald: If an employer is going to bring about an increase in population of 5,000, we wouldn't argue that the costs of new schools -- I mentioned that before -- libraries, if they're warranted as a result of a 5,000 population increase, shouldn't be attributed to that business and part of their charge. But I doubt very much that the entire cost of a new library is ever going to be attributed to one particular employer.
The Chair: Thank you, Mr MacDonald. We appreciate your taking the time to make a presentation today.
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ASSOCIATION OF MUNICIPALITIES OF ONTARIO
The Chair: Our next group up is the Association of Municipalities of Ontario. Good afternoon.
Mr Grant Hopcroft: It's a pleasure to see so many former AMO members and municipal officials around the table today. I'd like to thank you all on behalf of AMO and our president, Terry Mundell, for the opportunity to appear today to provide our reaction to Bill 20, the Land Use Planning and Protection Act. My name's Grant Hopcroft. I'm deputy mayor of the city of London. With me today is Gary Cousins, director of planning in Wellington county and a member of the AMO board and of AMO's planning task force.
As many of you know, AMO represents over 700 of Ontario's 815 municipal governments, ranging from the rural section to the northern section to the small urban section, large urban, regional and county sections as well. The remarks today reflect the input of all of our sections and have the endorsation of all of our sections as well.
I'm going to address the key changes to the Planning Act and related legislation and conclude with comments on the changes to the Development Charges Act. Table 1, which is attached to the presentation, has a complete list of AMO's recommendations for the bill.
As many of you know, AMO has worked on planning reform for the last five years. During this time, we have provided many submissions to the Sewell commission. We have articulated recommendations on Bill 163 to the previous government and provided advice to this government, relying on our past work and municipal government experience with Bill 163. Our goal has been to clarify the provincial-municipal role in planning and to obtain the recognition that municipal governments are the most appropriate level of government to plan for their communities and to oversee the local planning process.
As you may know, AMO petitioned this government to not repeal Bill 163 in its entirety, since municipalities believe that some of the legislative amendments contained in Bill 163 were a step in the right direction. However, we believe that improvements can be made to achieve AMO's principles for reforming the system. These principles haven't changed and continue to be:
(1) To empower municipalities and recognize the value of municipal diversity, local accountability and municipal autonomy;
(2) To streamline the process -- and we understand this is a goal we share with the government -- and cut red tape so that the system is timely and efficient and supports sound municipal decision-making; and
(3) To integrate environmental and social values with economic considerations so that municipalities can plan and manage local needs and circumstances to make for strong and sustainable communities.
Many of the amendments to the Planning Act contained in the bill reflect the recommendations that AMO has been promoting. We are pleased this government has chosen to listen and to act and to recognize that municipalities are in fact a strong and vital order of government. The proposed changes go a long way towards recognizing that municipal governments are the most appropriate, responsible and accountable level of government for land use decisions. We are also pleased that the bill deals with the diversity of communities and has provided alternatives to the one-size-fits-all approach of Bill 163.
Bill 163 significantly strengthened the province's control over land use planning policy matters and left municipalities with the authority to make development decisions within a very constrained and restrictive policy and legislative framework that did not allow for local discretion. Bill 20 corrects this.
Bill 20 deletes the ability of the province to prescribe "any other matters" to be of provincial interest. The province will no longer have the unfettered ability to declare, by regulation, a matter to be of provincial interest, thereby circumventing the legislative and public consultation processes, and AMO supports this change. It will bring some certainty to the municipal level regarding provincial intentions.
The bill also proposes to assign approvals of official plan and plan amendments and subdivision approvals to counties, treating them as other upper-tier levels of government. It also proposes to delegate authority to planning boards. As most counties and planning boards do have qualified planning staff and many have official plans, this proposed change will streamline the system by moving the approvals process out of the Queen's Park bureaucracy and making it more accessible and open locally.
The association is also pleased that the regulatory provision for prescribing the mandatory content of official plans is to be deleted. The province has other, more appropriate ways to influence how provincial policy interests are reflected within local circumstances. This action indicates this government's trust of municipal governments and recognizes the ability of our professional staff to determine the content of their plans.
Finally, the bill restores municipal authority for zoning accessory apartments. Along with the ability to inspect and register these units, municipalities will have the tools to properly plan for these uses and ensure the health and safety standards required by our residents are met.
If I can divert from the text for a moment, speaking as an official from the city of London, we are extremely pleased to see these provisions in this bill. AMO believes that the Ministry of Municipal Affairs and Housing is the province's lead provincial planning agency, and we do support making it the provincial ministry to file an appeal on a municipal planning decision in those rare circumstances where an appeal is deemed necessary. Therefore we should no longer see several ministries battling it out at the OMB, but rather the province speaking with one voice on a unified issue. The government is to be congratulated for attaining this critical feature.
The ministry also should be the coordinator for provincial input into official plan programs. All other ministries with interests that impact municipal land use planning should reflect this front-end, coordinated approach in their business operating plans.
The proposed order exemption approach by which the minister may exempt municipalities from the minister's approval of official plan and plan amendments recognizes the diversity of municipalities. It recognizes that the province does not have to oversee or approve every municipal planning action or decision. It has the real potential to streamline the process, but only if the minister takes substantive action to limit the types of official plan or plan amendments that will require ministerial approval. To ensure that municipalities are appropriately prepared, discussion on the scheduling and content of the orders for those municipalities whose plans will be exempted should proceed as soon as possible, with orders issued shortly after proclamation. The minister has a clear opportunity to demonstrate the government's commitment to getting out of the approvals business, and we expect no less.
We also support making the time frames identical for the giving of notice and appeal periods in all of the planning processes. We feel this will improve coordination and help the public who may be confused by the different requirements.
The changes to the Heritage Act and the Municipal Act will also facilitate the planning process to make it more efficient and effective.
Bill 163 did not adequately integrate and balance the numerous policy interests in land use planning. AMO believes that the rigid operating clause "shall be consistent with," along with today's Comprehensive Set of Policy Statements, are overly directive and prescriptive. They limit municipal decision-making authority. "Shall be consistent with" requires conformity with each policy without recognizing the possible conflicts between these policies when applied to local circumstances.
We are very supportive of returning to the "have regard to" operating clause. It readily acknowledges the need to balance what are often conflicting policy interests. The association believes the term "have regard to" has been applied effectively in the past.
AMO has also promoted policy statements that focus on objectives or outcomes rather than the detailed, prescriptive approach of the current Comprehensive Set of Policy Statements. Municipalities are responsible for determining through official plan policies how best to achieve provincial objectives within the local context. Since planning, by its nature, is the resolution of competing interests, municipalities should be responsible for resolving those conflicts in their communities.
Some groups have claimed that provincial policy related to environmental protection has been weakened. There are clear environmental objectives in the draft statement with an expressed provincial interest in water quality and quantity, protection of sensitive land uses, natural heritage and energy conservation, to name just a few. Environmental protection is not exclusively the standard of just special-interest groups. It is part of our mainstream thinking and is part of our community values. As elected officials, we lead and respond to these values, and municipal governments can be trusted to act in support of the environment.
The change to the operating clause, together with a complete set of outcome-based provincial policies, gives us the opportunity to make official plans true municipal documents that have meaning for our communities. Municipalities, the development industry and the public need assurance that local interests and needs are not of secondary consequence.
How can Bill 20 be improved? While the bill has gone a long way towards meeting the association's principles, there are several recommendations that will further streamline the process and provide municipalities with better tools to manage the planning system efficiently and effectively.
First of all, a policy-led system: It is recognized and supported that the province should set out its policy interests in municipal planning and that municipalities should have regard to these policies. However, when those plans or amendments are approved or come into effect, they should replace the provincial policy statement as the document guiding development. A provision is needed that indicates that once an official plan or amendment is approved and in effect, it is deemed to have regard to provincial policy. Currently, any implementing action, whether a plan of subdivision, a consent or even a rezoning, must be evaluated against the policy statement as well as conformity to the official plan, notwithstanding that it has already incorporated provincial policy. This seems redundant.
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The official plan should be the point of closure for land use policy promulgation. Without some point of closure, we cannot achieve a policy-led system. A deeming provision supports provincial policy implementation, strengthens the role of official plans and streamlines the process. It may also encourage municipalities to review their official plans and address provincial interests sooner rather than later, since there would be a greater impetus for a municipality to invest its time and expense in an update program.
We therefore recommend that subsection 3(5) of the Planning Act, as set out in section 3 of the bill, be further amended so that the intent is achieved as follows: Until an official plan or plan amendment comes into effect under Bill 20, the provincial policy statement will be used in the preparation and assessment of official plan or plan amendment and other planning approvals required by the act. Once an official plan comes into effect, the official plan will replace the provincial policy statement and be the instrument guiding the minister, council, planning board etc in carrying out their responsibilities.
As a final point on this recommendation, the concept of "deeming" has been included in the draft provincial policy statement in relation to provincial plans. It indicates that once a provincial plan under the Ontario Planning and Development Act or Niagara Escarpment act has been approved, the policies of that plan apply and take precedence over the policies in the planning statement. Municipal official plans should receive similar status.
While the association supports efforts to streamline the system, it is concerned with the reduced time frames for decision. Municipalities dealing with a large number of applications feel the time frames will be very difficult to attain. There is no evidence that the time frames in Bill 163 are inappropriate, and the association prefers to see them retained. Altering the time lines may create unreasonable expectations and places additional pressures on already overextended staff or reduced staff complements brought on by reduced provincial transfers and other pressures.
In addition, for the official plan process, the bill requires municipalities to have the current proposed plan available for public review at least 20 days prior to the public meeting. This means that staff have to draft an amendment within 25 days of receiving the application. This will divert time from the analysis of the planning application and from technical liaison with agencies. As well, the presentation of a draft amendment can give the public the impression that council has a level of commitment to the development proposal even though that is not necessarily the intention. In other words, if you've taken the time to pen it, you must have some level of ownership.
It would be more appropriate if the bill took the approach that the Planning Act requires for zoning bylaws. Subsection 34(12) of the act requires that council "shall ensure that sufficient information is made available to enable the public to understand generally the zoning proposal that is being considered." This has served the process well, and we recommend that a similar provision be substituted for the wording proposed in subsections 17(15), (16) and (17) contained in section 9 of the bill.
Municipalities are also concerned with the ability of the applicant to appeal an official plan matter directly to the board if no notice of public meeting has been issued within 40 days of the application being received, or if no decision is made within 90 days. This is particularly worrisome if an applicant decides not to provide adequate information with an application. Under the system proposed, it's possible for an applicant to totally bypass the local process and go straight to the OMB. This runs counter to restoring municipal decision-making and accountability.
We recommend that municipalities be given the authority to set out what makes a complete application, either through a municipal bylaw or official plan policies, and the time frame not begin until that information is received.
Currently, a complete application has very cursory information. This type of prescribed information is not adequate for council to make an informed decision. For example, a preliminary stormwater management report is not prescribed information for subdivision applications, nor are soil studies etc. How can a municipality make a sound decision that safeguards the interests of the community and the environment?
The prescribed information in the regulation provides no assistance to a council to determine the impacts of the development or whether the impacts can be mitigated and how. In the absence of adequate information, the only responsible recourse a council has is to refuse the application on the basis of lack of information and then prepare for the OMB.
We must remind ourselves of the intent of the complete application concept. It was intended to reduce the number of files contained within the planning system that had inadequate information in them and to make it clear to applicants what would be required. Bill 163 did not achieve this and neither does Bill 20.
If the Planning Act does not provide for municipal bylaws to establish what it considers to be a complete application, we recommend that there be some obligation imposed on the applicant, ie, to stipulate that where matters are appealed on the basis that council failed to make a decision within the time frame due to insufficient information, the board can only consider the matter based upon the information submitted with the original application. Alternatively, a criterion could be added that the board may discuss the matter without a hearing where adequate information was not submitted to the municipality. This is similar to the criterion that the OMB may dismiss a matter where an appellant has not responded to the board's request for information.
The bill proposes to delete the provision to dismiss an appeal without a hearing on the basis that water, sewer and road services are not available or anticipated.
Prematurity needs to be expressly contained as a dismissal criterion. Municipalities should not have to incur the costs of an OMB hearing where there is clear information that there is no capacity nor an anticipation of when future capacity will be available. The money and staff time spent on hearings could be better spent on getting the services in place and getting the local economy moving. AMO recommends that the prematurity criterion be retained in the Planning Act.
Municipalities also need to fully manage the allocation of servicing capacity. We support the proposed amendment in the bill which extends the regulatory provision to include all subdivision-condominium draft plans in an allocation system, notwithstanding when draft approval was given. However, this does not go far enough.
As more and more growth over time will occur through redevelopment and intensification, particularly through rezonings, section 70.3 of the act should be amended so that it authorizes a comprehensive system for allocating water and sewer services. This will aid in achieving the transparency on available capacity and support responsible municipal land use and financial planning for services. This is in the best interests of the province, municipalities, their taxpayers and the development industry.
AMO also recommends that approval authorities have the explicit authority to partially approve draft plans. Currently official plans, plan amendments and zoning bylaws can be partially approved. Extending this provision to subdivisions would streamline the process and assist in maintaining a supply of draft-approved lots.
On the issue of minor variances, AMO has a long-standing position that minor variances are a local matter and decisions should be reviewed locally. We should not forget that minor variances are not a right, but rather a privilege. They are intended to provide relief from standards of a bylaw when the circumstances are such that compliance with the bylaw is otherwise impossible. There are many cases where a variance application should have been a rezoning application. It is ventured that where a municipality has appealed a minor variance decision, the application was more than minor and most likely a zoning matter that should've been before council in the first place.
AMO supports the bill's approach for minor variances, including the option for a council to refer variances to the OMB as an appeal. This optional approach is consistent with AMO's principles. However, we do have concerns.
The bill, as drafted, does not allow a council to delegate to municipal staff the authority for making decisions on minor variances. Councils have this ability for other planning processes, including subdivision of land, and they should have it for minor variances as well. Section 26 should be amended by adding to proposed subsection 45.1(1) the ability to delegate minor variances to staff.
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We also have a major concern with the inability of a municipality to recover the fees and costs of an OMB hearing when an applicant or another party is the appellant. This is totally inappropriate, as the municipality would not manage the hearing yet would be responsible for the costs. The OMB costs should be borne by the appellant, not the municipal taxpayer. Accordingly, we recommend that section 26 be amended by deleting the reference to "municipality" and substituting the word "appellant."
Amendments to the Development Charges Act we understand are only an interim measure until the minister has done a comprehensive review of this legislation. The minister has indicated his desire to review what services should be covered by a development charges bylaw and what are growth-related services. We have urged the minister not to change the act in any way that will further restrict a municipality's ability to recover the cost of extending municipal services through development charges bylaws, and we trust this provision will be repealed once the review has been completed.
In conclusion, we agree with most of the changes in the act. From a municipal perspective, the bill represents an improvement to the planning system, and we suggest and support the fact that the proposed amendments support streamlining and recognize local decision-making authority. We urge the committee to seriously consider its recommendations for improvements to the legislation as contained in our presentation and in table 1 attached to the presentation.
On behalf of AMO, thank you very much. We look forward to your questions.
Mr Galt: Thank you for an excellent presentation. We certainly recognize AMO as representative of the public of Ontario and part of that democratic process, carrying a lot of weight with your recommendations.
We've heard an awful lot in presentations, and especially from the opposition, that using the words "having due regard to" is going to totally destroy -- maybe not totally, but have a marked effect on the environment, and they seem very concerned. You're very comfortable that with "having due regard for," that kind of statement, the environment will be well protected.
Mr Hopcroft: We are. The previous standard in 163 simply did not recognize that the decision-making in the planning process involves conflict resolution, that there are competing policies, competing issues, and one needs to have regard to those, but you can't be consistent with all of them and still reach a decision. We feel it's a much more logical approach, one that suited us quite well prior to the amendments in 163, and we're quite satisfied it gives us the authority to deal with the issues as they come forward.
Mr Galt: Could you just expand a little in connection with minor variances, suggesting the ability to delegate it to staff. Give me some examples that you were thinking of.
Mr Gary Cousins: That authority exists within the planning legislation today for both subdivisions and severance approvals. A council has the ability to delegate those functions to either a committee or to staff. It's not used that extensively. It's primarily delegated to committees, but some councils choose to delegate those functions to staff. I would assume that if it were tied to minor variances, it would be delegated to staff with the possibility of a review by council.
Mr Murdoch: This is a fine report. It looks like the mayor of Kingston could've put that together in the 1980s sometime, but he may have changed his mind. He answered the minor variance. I just wanted to get that on.
Mr Gerretsen: Mr Hopcroft, for the length of time you've been involved with AMO, your public pension from AMO will be as good as some of the other public pensions around, because you deserve everything you can get out of it.
Mr Hopcroft: I love municipal government.
Mr Gerretsen: I know you do.
We've had a lot of comments about minor variances not being appealable to the OMB. As a matter of fact, not one person or one group has come to us and said it's a good idea. Even the city of Etobicoke was here this morning saying it's not a good idea, basically the notion that a decision ought not to be appealed to one's own body or a part of one's own body. Don't you as a lawyer feel that's the right thing to do, that if you're going to have an appeal, the same people who were involved in making the initial decision ought not to be involved in the appeal as well?
Mr Hopcroft: I'm not wearing my lawyer hat today.
Mr Gerretsen: But you are a lawyer. Come on.
Mr Hopcroft: I don't see any inconsistency with that at all. Issues come before committees and subcommittees and boards and commissions of local councils all the time. If you want to take that position to extremes, I suppose you could suggest that planning committee members shouldn't participate in council discussions because they may have already expressed a bias when the planning committee --
Mr Gerretsen: But ultimately there's an appeal to the OMB -- that's the whole point -- from their zoning and official plan decisions.
Mr Hopcroft: We suggest that in most of the cases that would be controversial, they're probably matters that should have been rezoning applications in the first place. If it's a matter of significance that really carries with it those kinds of substantive issues, in fact they should be rezonings, they should go through that full process, and of course they would be subject to appeal.
Mr Gerretsen: Another question. I've only had one question; they had three. This is my second question. I think what's always made municipal government work is its public meeting and public consultation process. I'm a great believer in that. I'm a little bit struck with the notion and the reason you give for why there shouldn't be a public meeting for subdivision approvals. You say "There is no evidence of the need for or benefit of the planning system for public meetings on plans of subdivision, as the principle of land use is established through the official plan."
Would you not agree with me that the official plan document is an abstract document and is totally different from an actual hands-on plan of subdivision so that the neighbours can see what's actually going to be placed on the land? To shove it off by saying, "The people had an opportunity to make representations on the official plan," is taking the easy way out.
Mr Hopcroft: If I can turn the question around, because you already knew the answer before you asked it, the issue for us is really whether that is a matter of provincial interest that needs to be dictated to municipal governments or whether we can make those decisions locally. We have in our community a public process on subdivision approvals that we will quite likely continue. But there are often cases where most of those issues have been resolved and there really is nothing served by going through that additional process.
Mr Cousins: There's also two other opportunities for public involvement in that process. The first is, as you've said, at the official plan stage. The other is at the zoning stage, which is far more detailed. And many communities, as Grant has already said, like to run informal public meetings as well during the subdivision process, rather than statutory meetings under the Planning Act.
Mr Gerretsen: You said "many communities," not all. I'm glad for your sake that the ministry listened to AMO, but unfortunately they didn't listen to the general public out there, which has an interest as well.
Ms Churley: Let me pick up on that. How do you define "special interest"? At the very end of your presentation you mentioned special interests. What is a special interest?
Mr Hopcroft: I think a special interest is whatever you want it to be in the appropriate circumstances.
Ms Churley: I want to know what you think it is.
Mr Hopcroft: I guess what we're suggesting is that we feel that as elected officials locally, we are accountable to all interests in our community and we should have the ability locally to balance those special interests rather than having someone from Queen's Park suggest which special interests should have a louder voice or more say in the process. We should make those decisions locally, and that's what we're saying.
Ms Churley: I should tell you, and you may be aware, that there's a real split. There are people who love this bill and there are people who hate this bill, and there seems to be not much in between, which in my view is a difficulty.
How do you explain to people like the 1,400 members from, say, the Lake of Bays Association -- AMO has to convince them somehow that their fears are unwarranted. These are ordinary human beings who own property in a certain area who believe that public participation is being cut off, who believe the environment will be harmed, who believe pretty much the opposite of everything you say. I'd think that would be of concern to you, as you're accountable, as you said, to all these different special interests. They don't believe you and they don't believe this government that this is going to protect them.
Mr Hopcroft: I have no idea what presentation they made, so it's a little hard to respond in the abstract. But having been in government for over 15 years in London, I'm certainly aware of the fact that certain people can take comfort in any status quo, and they are afraid of change because it may mean that things will change. I think that's a realistic fear that most people have when faced with change. However, we think that municipal governments are elected the same way you people are. We make mistakes sometimes, the same as you do.
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Ms Churley: Even these guys? I want that on the record.
Mr Hopcroft: I'm referring, with respect, to all three parties. I think you have to have some faith in the fact that the local municipal electoral process has some merit and that good people will be elected.
Ms Churley: I was one once, just for your information.
Mr Hopcroft: I'm pleased to hear that.
Ms Churley: I was a municipal councillor, so I understand what you're saying. But I'll give you a copy of this so you can see the kinds of concerns, and this is coming from rural areas out there. I think a process needs to be put in place to deal with these very real concerns, in my view. You were here today to give us your presentation on how you feel about the bill, but there is going to be a great polarization, and that's a problem we need to deal with.
The Chair: Thank you, Ms Churley. Thank you both for your presentation today.
Interjections.
The Chair: Order, please. Boy, if I only had a voice.
ONTARIO ASSOCIATION OF CHIEF PLANNING OFFICIALS
The Chair: For the edification of members, we've had a cancellation of the group scheduled at 3:30, Wildlands League. I'm told it's not the first time they've cancelled. Unfortunately, the East York Tenants' Alliance, scheduled for 4:45, has also cancelled. That means the last group of the day is the Ontario Association of Chief Planning Officials.
Mr John Marshall: Thank you, Mr Chairman. My name is John Marshall. I'm commissioner of planning and building for the city of Brampton and I'm the chair of the Ontario Association of Chief Planning Officials.
I'd like to structure my presentation by first of all introducing you to OACPO, who we are and what we're all about. I'd like to talk about what the objectives of municipalities and planning practitioners are in this province with regard to this reform as it relates to large municipalities.
To highlight our response, I thought an interesting slant to take on it would be to look at this process as if the private sector were to look at it in terms of process re-engineering. I think you're all familiar with the fact that it's had a tremendous impact on private industry and government. I applied the criteria of that to this process, and I'll give you a very brief rundown of that. Last, I'll answer questions.
First of all, OACPO is comprised of the planning commissioners and directors of local municipalities having a population greater than 50,000 in the province. We meet quarterly to discuss matters of common interest, to communicate with provincial officials on current issues and prepare positions such as this one on Bill 20. We have representation on the AMO planning task force and numerous provincial technical committees and committees of the Ontario Professional Planners Institute. We sit on a number of these groups and take part in all their deliberations.
As the planning practitioners who lead and manage the planning and development approvals process in the large urban centres, we feel we are key stakeholders in this whole planning system and have a keen interest in the reform of the Planning Act and provincial policy statements. We're the people who are going to have to make this work on a day-to-day basis.
The association has participated in the process of formulating and reviewing Bill 20 and the Provincial Policy Statement with provincial officials, with the AMO task force, and also involved with the development and building industry. There was also a long amount of deliberations and consultations related to the Sewell commission, and I think everybody knows where everybody stands. I think the last few months dealing with the provincial process and with AMO has brought the key players together; it's been an excellent process. There have been frank and spirited discussions and the sparks have flown. We know where everybody stands. In the final analysis, you have a very strong and clear indication from a large number of groups that provides a basis for making a decision on this bill.
Last October, the association made a written submission to Minister Al Leach setting out what we thought should happen with the bill, and many of those recommendations have come to pass.
Next, I'd just like to talk about the objectives of municipalities in terms of the whole reform area. First of all, we'd like to be empowered and trusted to carry out the planning process in an efficient and responsible manner, with minimal interference by the province and the upper-tier municipalities.
Second, since we're held accountable for planning decisions by the residents -- they look to city hall -- therefore, we should have control of the process.
Third, we feel the local official plan should mean something. It shouldn't be lost in a morass of policy documents, provincial and regional. It should be what people should go to to find out how planning should occur in a municipality.
We should have the ability to deal with the substance of planning in response to local circumstances. With the existing policy statements and 600 pages of guidelines, we're reduced to paper shufflers, to a large extent.
We think the minister should have the ability to deal with different planning systems across the province, and certainly that's happened with the order exemption process.
Last, I think everybody wants a simpler process. Less is more; addition by subtraction. It's a very complicated process in this province, and it really needs an overhaul and much simplification.
The association feels that the amendments to the Planning Act and also -- though it's not before you -- the new Provincial Policy Statement go a long way to achieving these objectives.
I'm glad I followed Mr Hopcroft, because basically we're here to say that we strongly support the AMO response to Bill 20 and commend it to you. There are, however, some specific points we'd like to emphasize. I'll set them out as follows:
First of all, deeming official plans and official plan amendments. We feel that Bill 20 should be amended by providing that official plans and amendments thereto, once approved and in effect, are deemed to have regard for the provincial policy statement. That means the official plan is the one document that people go to to evaluate development applications or to guide the planning in a municipality, not a morass of documents. Implementation actions such as plans of subdivision and rezonings would then be evaluated on this. You don't have to go back to the provincial policies or be ambushed by somebody pulling some policy out of the bottom drawer.
I think the worst example I've ever seen of this morass of documents is in the town of Caledon where at one point they had seven major policy documents they had to refer to, either approved or under preparation. That doesn't lead to any simplification or clarification of the planning process.
The next point I'd like to emphasize are community-based approvals, the order exemption approach. OACPO strongly supports the proposed amendments to the Planning Act that enable the approving authority to exempt some types of plans and amendments from the approvals process. I think it enables the minister and the upper-tier municipalities to withdraw from the approvals process and place decision-making at the local level where it's most accessible and accountable to the public.
We feel that if these powers are broadly exercised, the planning process in the province will be significantly streamlined. If there are groups that have a problem with municipal decisions, they can refer them to the municipal board and then they can have it out with the municipality, rather than the municipality having to wait, oftentimes for a very long time, for provincial officials to review their official plan amendments and then finally make a decision one way or the other to refer them. We would like to get to the board quickly if somebody has a problem with the way we do planning.
I'd next like to talk about process time frames in complete application. The existing time frames related to planning decisions on official plans and amendments thereto, plans of subdivision, zoning bylaws and consents, we feel are more realistic than those proposed under Bill 20 and should be retained.
I think there's the feeling: "Let's put a little bit more tension in the system. Let's bring these time frames in a little bit." I know in one discussion we had with UDI and the Home Builders' Association, one prominent developer-builder said, "If you can get any application through your municipality in six months, I'll be ecstatic." So I think that the existing time frames really recognize that six months is quick in terms of the kinds of workloads that a lot of municipalities have and the complications of the process.
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We also remain concerned that the time frames are triggered by a complete application which contains only basic property information, the tombstone information; that's the buzzword these days.
I think to be fair to municipalities, the province should amend the Planning Act to provide that municipalities may adopt bylaws to set out what prescribed basic land use and related information is needed to make an informed decision, and this must accompany a complete application. These bylaws can be appealed. If somebody thinks a municipality's being unreasonable, they can refer it to the board.
The act should also be amended to enable the Ontario Municipal Board to dismiss an appeal where the prescribed information set out in the bylaw has not been submitted as part of the application; and also to prevent the municipal board from conducting a hearing de novo that considers information that was not available to council. That is, somebody who just comes in, thumbs his nose at the municipality and wants to go to the board really quickly can't then show up with all his studies that council hasn't had a chance to evaluate and have the advantage of having an OMB hearing. That should not be allowed.
As far as minor variances are concerned, there was not a strong consensus in our group. I think some of the concerns that were raised -- first of all, there should be a right of appeal; even at the local level it should be retained for committee of adjustment approvals just to have their decision be final. I've seen enough instances where the committee pushes the envelope out a little bit in terms of conforming to the official plan, or whether a variance is minor, therefore that option is not one that I would support, certainly, personally.
The provisions should enable municipalities to recover the cost of a hearing conducted by the board. I see there are two streams now. The committee has the final decision if they have a member of council on it or where you take the risk of taking this other long avenue and then being stuck with the costs of an OMB hearing. Certainly it pushes you towards the direction of a committee that has the final approval.
There should be the option of delegating the approval of certain types of routine variances to a municipal official where there are criteria in the official plan and there are no objections. This was covered by Mr Hopcroft and Mr Cousins.
I think if the official plan sets out those circumstances where a minor variance could be entertained, such as a shed in a backyard with, say, a minimum six-inch difference from the bylaw, those kinds of minor things can be handled administratively, and if there are some objections, then they can be handled by the committee of adjustment or council.
Lack of servicing capacity. We strongly oppose the amendment that will remove the ability of the OMB to dismiss an appeal on the basis of lack of servicing capacity. We think that's a critical power. Developers may want to just enhance the value of their land with certain approvals well ahead of time, and oftentimes what happens in my experience is that these plans end up getting redone and the municipality spends a lot of time going through the process twice.
Accessory apartments. With the exception of the city of Toronto planners, we strongly support the amendments related to restoring municipal authority to plan and zone for accessory apartments. One point that was raised by our members was, there should be a certain time frame or a sunset clause on existing accessory apartments established under Bill 120 to declare they have come into conformity. That is, they can't 20 years from now if they get prosecuted, say, "Well, I was established 20 years ago." That's one thing we'd like you to consider.
Prescribed contents of the official plan. We very strongly endorse the amendment to delete the section that enabled the province to prescribe the contents of official plans. I think our worst fears were that here's a fill-in-the-blanks document for doing official plans, and certainly the possibility of that happening now has been removed.
Some issues that were not mentioned by AMO were raised by some of our members. This may have got in the final AMO presentation. First of all, we're concerned about subsection 17(7) in the act that makes preparation of upper-tier official plans mandatory and the preparation of local official plans permissive, the "must" versus the "may." We think this denigrates strong local land use planning that has existed in this province for a long time and is required really to effectively guide development. So we recommend strongly that subsection 17(7) be amended to make the preparation of both local and regional official plans mandatory.
I know you heard earlier in this week from the city of Mississauga about the disparity of the valuation of cash in lieu payments for parkland between site plans and subdivisions, so I won't go over that. There is some ambiguity there that should be cleared up.
Secondly, the act doesn't permit accommodation of land dedication and cash in lieu of parkland. The planning commissioner from North York raised a concern about their desire to have the act amended to permit zoning on a site to revert to a holding bylaw if the development does not proceed to be constructed during a specified period of time. This is a situation where there's a limited amount of sewer capacity, for example, in an area and the first person in gets their approvals and then just sits on them and prevents some other development going. There should be some kind of sunset clause or "use or lose it" kinds of provisions that would kick that back into a holding bylaw and give someone else a shot at the capacity.
The last point I'd like to talk about -- there aren't any provisions in the act right now for the conveyance of lands for stormwater management facilities as a condition of site plan and plan of subdivision approval. As you know, subwatershed planning is widespread in the province and the results, often, are stormwater detention ponds, and the power has to be there for municipalities to require these to be in the public ownership.
I'd like to finish off with just running down what are deemed to be the characteristics of a successfully re-engineered process and just see how that compares to what's being proposed by the province. This comes out of the book, Reengineering the Corporation, by Hammer and Champy, which is sort of the bible of re-engineering. I'll go through it quickly; I won't keep you.
The first characteristic is, several jobs are combined into one. Certainly, I think that's happening with this particularly at the subdivision level, where subdivision approvals can occur at the local level, and the order of exemption of official plans certainly allows that activity to occur at the local level without having to be split between the local, the upper tier and the province.
Second, workers make decisions. The work and planning is done at the local level and that's where the decisions should be made.
Thirdly, the steps in the process are performed in a natural order. If planners can't get that right, we're in trouble.
Fourth, processes have multiple versions. I think the act provides for a lot of flexibility. The order exemption approach says the minister or the upper tier can look at a particular circumstance and then decide whether that area should be exempted from upper-tier approval.
Fifth, work is performed where it makes the most sense, and I think that's at the local level. The whole development process gets played out at a local level. It involves people in a municipality and that's where the approval should occur.
Sixth, checks and controls are reduced and reconciliation is minimized. Certainly, this process moves in that direction where the upper tier and the province aren't armchair quarterbacks constantly reviewing local municipal decisions.
Seventh, a case manager provides a single point of contact. In this case, it should be the local municipality. If you want to find out about planning, you should go to the local municipality, and the official plan should set out the full spectrum of policies required once it's deemed to have conformed or "had regard to" the provincial policy statements.
Lastly, there are hybrid centralized-decentralized operations, and I think this fits in this system in that the province now will be responsible for broad policies and databases, the upper tiers more in terms of commenting powers. Dale Martin has this transfer-of-review project going on now where a lot of the provincial commenting powers will be going down to the upper-tier level and then the cities would basically carry out the planning process.
In summary, I think the Planning Act amendments and the new policy statement enable the process to be structured to meet our objectives and exhibit the characteristics of a successfully engineered process. We appreciate the opportunity to present our views to the committee. We're available to work with the provincial staff or through AMO to expand on our concerns and provide specific recommendations for amending or adding to the proposed amendments. Thank you very much.
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Ms Churley: Thank you very much for your presentation. You mentioned close to the beginning of your presentation that you enjoyed the consultation, that there were some sparks flying but you enjoyed it. Can you tell me about that consultation, who was involved in it, where it took place? I'm just curious as to how this draft document was arrived at. What was your part in it? Who was involved in it?
Mr Marshall: Being a representative of the chief planning officials, I was invited to a meeting including provincial staff, a representative of UDI, the home builders, AMO. I'm not sure if there were other people there, but it was mainly professional people involved in the planning and development process. Also, we participated with AMO. They have a planning task force that involves planners from across the province. Representatives of municipalities, members of council, are on that task force. So we had the consultation in that regard also.
Mr Churley: You had input, then, into drafting this -- not in the drafting itself but into the final result of this draft bill. Some of your suggestions were incorporated? Are you pleased with that?
Mr Marshall: They were. I would say yes.
Ms Churley: So you can see a reflection of some of your concerns within this draft document.
Mr Marshall: Yes, that's right.
Ms Churley: Do you see a reflection of AMO's concerns reflected here?
Mr Marshall: Yes, I do.
Mr Hardeman: Just a couple of quick questions. You made reference to the requirement of a mandatory upper-tier official plan but a discretionary power as to whether you have a lower-tier plan. I guess, coming from the rural part of Ontario, there are many; in fact, the majority of rural Ontario only has one plan. I guess from the government's perspective it would seem somewhat overkill to all of a sudden request all those municipalities to come up with a lower-tier official plan, so I think that's why it's not mandatory. It may be required in the urban centres but not in rural Ontario.
Mr Marshall: My comment to that would be that one size does not fit all. Perhaps the government could, where there are regions, look at either population size or perhaps separated cities, separating those out as maybe in a different category. I know it's difficult with so many municipalities to draw the anywhere.
Mr Hardeman: The other question, if I could quickly, is the issue of the OMB not being able to throw out an application because of its prematurity. The development industry has come in and told us that in many cases that's the issue they would like before the board so the board could decide whether it was a legitimate premature application. The water and sewer may not be available at the present time, but that could be accommodated and dealt with and that should be the issue before the board. They want to be able to go to the board with that. How would you recommend that we reconcile those two differences?
Mr Marshall: I just think the board should be able to just dismiss a thing out of hand on the basis of prematurity. I've never been involved in a hearing where that's been an issue. Whether it's just by motion that that's done -- I'm not sure exactly the legal technicalities of how it would be done. I guess I'd just have to leave that to you. I know the municipalities would like the board to be able to dismiss it before the hearing starts on the basis of that prematurity.
Mr Hardeman: The development industry tells us that the reason you've never been to a hearing where that was the issue is because if that's the issue, it never gets to the board. That's what they wanted, the clarity that if this was one of their concerns or one of the concerns expressed by the municipality, that was sufficient reason to appear before the board and debate the issue.
Mr Marshall: If I were in their shoes, I'd probably want that flexibility, if there was some intransigent municipality which had what they thought was a flimsy reason for holding them up on the basis of lack of capacity. But certainly it puts the municipality at a disadvantage in clear cases where somebody just wants to leapfrog out there and get some status for their land.
Mr Hardeman: The other issue you mentioned was the issue of deeming the official plan to comply with the provincial policy statements as opposed to having to refer to the policy statements on subsequent applications. Do you not see a problem with the issue? Once a plan has been approved and the provincial policy statements could be changed, at what point would the public be aware that the plan no longer was deemed to comply?
Mr Marshall: That's an interesting point. Being fairly familiar with the policy statement, I don't think there's any provision that requires municipal plans then to come back into conformity. That's a situation I haven't really thought of. I think I would rather, if a policy statement's going to come into place, that there be some sunset in terms of requiring municipal plans to come into conformity within a certain time period than using that as the only pretext for keeping policy statements out there parallel to official plans and then you go to, say, a municipal board hearing and somebody is trotting out all these words that you've presumably already "had regard for" or "been consistent with." That's something I haven't thought of and I'd like to give more thought to.
Mr Conway: I just have a general question, and your brief is quite good and thorough. My experience over the years, and I have no personal experience as a planner but I've watched over two decades a number of planning issues -- it's always struck me that the real fight's about who pays. In many cases the really interesting fight below the water line is who pays; irrespective of what the legislative framework is, who pays.
Mr Marshall: Who pays for what?
Mr Conway: Before you got here, I was asking some people from the regional municipality of Ottawa-Carleton -- we have this fabulous new thing called the Palladium. I drive by it all the time and I keep thinking, I wonder what will happen if there's no hockey franchise here? I'm sure this has been well canvassed, and I'm sure what happened in Winnipeg and Quebec is about to happen to Cleveland and Houston and Seattle; it'll never happen in Bytown. But if it did, I wonder what we would be looking at in terms of some planning questions.
One of the realities that I've noticed over the last 20 years is that Her Majesty in right of the government of Ontario has had a deep pocket. If the taxpayers only knew what Her Majesty got to underwrite, they would I think be really impressed. We are in a new fiscal environment; I think everybody understands that, and Her Majesty, for a variety of reasons, is in a much more straitened financial circumstance. So there will not be the ability for Her Majesty, in right of provincial, national or local government, to be the kind of unsatisfied judgement fund that she has been for lo, these many years.
My question is, do you have any sense that the planning community and the community at large have really begun to understand what this is going to mean?
Mr Marshall: Yes, I do, Mr Conway.
Mr Conway: That's very encouraging, actually. I'm very pleased to hear that.
Mr Marshall: Yes. Clearly, the message in municipalities is, "Forget about provincial grants over the long term; they're not coming down." What we've done, and I can just speak for Brampton, is that for every development application that comes into Brampton, whether it be residential, commercial or industrial, we have an impact statement in terms of what it means in terms of annual revenue to the municipality. Secondly, in the region of Peel and the city, we do a cost-of-development study where we forecast all the costs of development and look at what the impact will be on the tax rate, long-term, versus the rate of inflation, those kind of things. So it gives you an idea. It isn't just sort of broad-brush, paint the colours.
Mr Conway: Just a final quick supplementary on that. It's your impression that people are increasingly aware that should, God forbid, anybody make a mistake, a big, costly mistake, the old days where Her Majesty came in to underwrite the bailout may not in fact be there for the next round.
Mr Marshall: The message is there loud and clear. I think it's a preoccupation of planners now to look at the fiscal impact of what they're doing.
Mr Conway: That's good.
The Chair: Thank you, Mr Marshall. We appreciate your taking the time to make a presentation.
That having been the last agenda item today, this committee stands adjourned until Monday morning, 9 o'clock, in this room.
The committee adjourned at 1600.