An Overview of FoNTRA’s Planning Reform Recommendations – 2010

June 8, 2010 · 0 comments

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Planning Reform Strategies for 2010, Discussion Paper (pdf)

Primary Planning Reform Recommendation
I. Strengthen both the planning substance and improve the quality of the planning process, while complementing the recent provincial planning reforms, with only minimal changes to the Planning Act as follows:
• Official Plans should be required to provide population densities and land-use intensities in order to offer intelligent guidance for site-specific re-zonings; and
• Site-specific amendments to the Official Plan by individuals (developers) should be eliminated in order to maintain the validity of public policy in between the mandatory comprehensive OP updates every five years.

II. Specifically (with respect to item I above), we recommend the Planning Act be modified to:
1) include population densities and land-use intensities as part of the official plan contents in Section 16(1) (a); and
2) delete the words “person or” to read as follows: “If a public body requests a council to amend its official plan, the council shall…” in Section 22(1).

Other Planning Reform Recommendations
1. Amend the City of Toronto Act (2006) so that the Ontario Municipal Board (OMB) functions solely as an appellant body that shall not conduct de novo hearings with respect to Toronto planning matters. Also, change the appropriate Planning Act wording so the OMB “shall have regard” rather than “should have regard” to municipal decisions.
For example: “When the OMB makes a decision under the Planning Act that relates to a planning matter, it shall: (a) have regard to any decision that is made by a municipal council; and (b) consider any information and material that the municipal council considered in making the decision described in (a) and any submission related to (a).”
2. Amend the Planning Act to prevent non-elected members of the OMB from reversing the decision of democratically elected members of municipal councils.
Note: The exceptions would be in instances of demonstrated unfairness, patent unreasonableness, error in law or fact, or material inconsistency with the provincial policy statements that are in effect on the date of the council decision or are in material non-conformity or conflict with the provincial plans that are in effect on the date of the council decision.
3. Amend the Planning Act with respect to planning matters so that the role of the OMB is limited to reviewing amendments to the Official Plan and Zoning By-law within the context of a stable Official Plan.
4. Provide assistive/intervener funding for residents’ associations so they can access the OMB on an equal financial footing with developers.
5. Improve the hearing and record keeping procedures at the OMB to bring it to a standard similar to the judiciary such that the Board can be held legally accountable for its actions.
6. Amend the Planning Act so that the language in Section 45(1) codifies the July 2005 Vincent v. Degasperis Divisional Court decision that confirms there are four distinct tests, each of which must be satisfied in order to permit (but not require) approval of a minor variance application.

FoNTRA’s “Concluding” Comments/Recommendations Re: OMB Reform (August 2006)
[These recommendations were not included in the provincial OMB reform legislation – Bill 51.]

[Items 2 & 3 above.] Where Council decided not to amend its Official Plan (e.g., turn down a proposed development that does not conform to the OP) the Ontario Municipal Board (OMB) should be required to “defer” to that decision except in instances of demonstrated unfairness, patent unreasonableness, error in law or fact, or material inconsistency with provincial policy.

Thus, to further reform the role of the OMB, the following should be included as part of an amended Planning Act.

“The Municipal Board shall defer to any decision of a municipal council or approval authority consistent with the official plan in effect on the date of the decision, except in instances of demonstrated unfairness, patent unreasonableness, error in law or fact, or material inconsistency with the policy statements issued under subsection 3(1) of Bill 51 that are in effect on the date of the decision or material non-conformity or conflict with the provincial plans that are in effect on that date.”

Also, amend the Planning Act to strengthen provisions pertaining to so-called second suite by-laws to enable groups to appeal second suite by-laws that allow the character of neighbourhoods to be “degraded”.

[Item 6 above.] Currently, many significant changes to land-use designations evade detailed municipal examination by being submitted as minor variance applications. Also, if Committee of Adjustment appeals are appealed to the OMB, in many instances, they are not thoroughly examined using the four distinct tests as outlined in the July 2005 Divisional Court decision (Vincent v. DeGasperis).

Therefore, refine Section 45(1) of the Planning Act as follows to codify the “2005 Vincent Decision” that confirms there are four distinct tests, each of which must be satisfied in order to permit (but not require) approval of a minor variance application.

“The committee of adjustment, upon the application of the owner of the land, building or structure affected by any by-law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, grant a variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, provided that the variance application meets each of the following tests:

“1) it is minor in size, nature, importance and impact;
“2) it is desirable for the appropriate development or use of the land, building or structure in relation to the broad public and planning interest;
“3) upon analysis, the general intent and purpose of the by-law are found to be maintained; and
“4) the variance conforms with any official plan in effect on the date of the application.

“For greater certainty, where the four tests are met, the committee retains residual discretion as to whether or not to approve the variance.”

If acted upon, the above changes to the Planning Act would solve most of the problems related to Committee of Adjustment appeals as well as their possible subsequent appeal to the OMB.

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