Report to: Development Services Committee Report Date: April 3, 2007

SUBJECT: Bill 51 – An Act to amend the Planning Act and the Conservation Land Act – Implementation Strategy

PREPARED BY: Dave Miller, Senior Project Coordinator, Extension 4960

RECOMMENDATION:

That the staff report entitled “Bill 51 – An Act to amend the Planning Act and the Conservation Land Act – Implementation Strategy”, dated March 6, 2007 be received.

That staff report back to Development Services Committee regarding:

i) the merits of amending the Official Plan to add policies regarding complete Consent, Official Plan, Draft Plan of Subdivision and Zoning By-law amendment applications;

ii) procedures to properly evaluate Consent, Official Plan, Subdivision and Zoning By-law application completeness;

iii) complete application notification procedures for Official Plan, Subdivision and Zoning By-law applications;

iv) the merits of amendments to the Official Plan and Site Plan Control By-law to add policies regarding external building design detail, to address matters such as sustainable design, character and appearance;

v) the merits of amending the Town’s Official Plan to add policies relating to zoning with conditions, following Provincial release of the Regulations;

vi) the merits of, and making recommendations about, the enactment of a pre-application consultation By-law to require applicants to consult with municipal staff before submitting Official Plan amendment, Site Plan approval, Draft Plan of Subdivision and Zoning By-law amendment applications;

vii) procedures to ensure that site plan applications sufficiently display sustainable design elements on boulevards and municipal rights-of-way;

viii) the pros and cons of introducing policies into the Official Plan regarding reductions to the amount of money paid to the Town for cash-in-lieu of parkland in exchange for redevelopment meeting minimum sustainability criteria;

ix) the Official Plan employment lands protection policies, to ensure that the existing policies adequately protect employment lands from being converted to other uses, despite Council’s wishes; and

x) the merits of the expanded Community Improvement Plan provisions.

And that Staff be authorized and directed to do all things necessary to give effect to this resolution.

EXECUTIVE SUMMARY:

In the fall of 2003 and the spring of 2004 the Province of Ontario proposed changes to and amended the Planning Act (Bill 26). At that time the Province recognized that the changes proposed in Bill 26 only addressed some of the concerns and issues associated with municipal planning processes. Consequently, the Province released a discussion paper on Planning Act Reform and Implementation Tools in June 2004. (Development Services Commission staff, in an August 2004 report, generally supported the planning reforms contained in Bill 26.) Bill 51 is the product of that consultation. Third reading and Royal Assent happened in October 2006. The Bill came into force on January 1, 2007.

Bill 51 makes numerous amendments to the Planning Act. These amendments modify many aspect of the land use planning process. The changes are intended to:

i. provide tools to strengthen implementation of provincial policies and municipal priorities;

ii. rules to encourage early consultation with both the applicant and the public;

iii. prescribe new requirements for information, materials and parties at Municipal Board hearings; and

iv. improve administrative planning processes, and clarify existing provisions in the Planning Act and related regulations.

Implementation of the many changes Bill 51 makes to the Planning Act will take sometime. This report provides an overview of the operational implications for the Town, which includes opportunities to add policies to the Official Plan regarding: Zoning with Conditions, Expanded Site Plan Control Powers, Cash-in-lieu of Parkland Dedications, Complete Applications, and Protecting Employment Lands. The report also identifies areas where new Town procedures are recommended: for example, Complete Applications, Notice of Refusal to Adopt Official Plan and/or Zoning By-law Amendments, Up-to-date Official Plan and Zoning By-laws, Up-to-date Decisions, and Early Consultation. The PowerPoint presentation from the March 20, 2007 Development Services Committee Part A presentation is attached.

The changes to the Planning Act do give additional powers, with added responsibility, to the Town. However, there is some flexibility that will allow implementation to be customized to suit the Town’s needs.

FINANCIAL CONSIDERATIONS:

The ultimate financial implications of Bill 51 will be outlined in subsequent staff reports that deal with each affected area. It is anticipated that Development Services Commission and Clerks Department staff will be required to spend more time administering and processing applications, such as in confirming that applications are complete and that required notices are sent out. Staff also expect that consultant and staff resources will be required to develop the policies and implement new procedures.

1. Purpose 2. Background 3. Discussion 4. Financial

5. Others (Environmental, Accessibility, Engage 21st, Affected Units) 6. Attachment(s)

PURPOSE:

This report outlines the major changes made by the Province to the Planning Act by Bill 51. Bill 51 received Royal Assent in October 2006 and came into force on January 1, 2007.

The intent of Bill 51 is to modify aspects of the municipal land use planning process to provide additional tools for implementation of provincial policies and to give further support to sustainable development, intensification and brownfield redevelopment. Bill 51 also encourages greater public input and enhances municipal control and responsibility. The report also reviews and makes recommendations about the operational implications of Bill 51.

BACKGROUND:

In the fall of 2003 and the spring of 2004 the Province of Ontario proposed changes to and amended the Planning Act (Bill 26). At that time the Province recognized that the changes proposed in Bill 26 addressed only some of the concerns and issues associated with municipal planning processes. Consequently, the Province released a discussion paper on Planning Act Reform and Implementation Tools in June 2004. (Development Services Commission staff, in an August 2004 report, generally supported the planning reforms contained in Bill 26.) The Provincial discussion paper identified additional changes for consideration and comment including:

i. requiring additional information to be provided with land use planning applications;

ii. changing the implementation provisions to make the planning system more responsive to the needs of municipalities;

iii. requiring municipalities to review and update their land use planning documents;

iv. harmonizing the Official Plan and Environmental Assessment processes;

v. clarifying the transition provisions for implementing Bill 26; and

vi. expanding planning tools such as newly defined Community Improvement Plans, a Development Permit System, and implementation support materials.

Through the August 2004 report, the Town provided comments to the Province, in response to the additional changes proposed (the future Bill 51). In February 2006 the Town again provided comments to the Province about Bill 51. These comments flowed from the recommendations in a Development Services Committee report entitled “Comments on Bill 51 – An Act to amend the Planning Act and the Conservation Land Act” dated February 7, 2006.

OPTIONS/DISCUSSION:

Bill 51 includes numerous amendments to many sections of the Planning Act. The majority of the changes proposed modify aspects of the municipal land use planning process, designed in part to make it a more open and accessible process. Additional tools for the implementation of provincial policies and for support of sustainable development, intensification and brownfield redevelopment are also added to the Planning Act by Bill 51. The changes can be grouped into four general categories:

Planning and financial tools;
New processes and procedures;
Ontario Municipal Board reform; and
Other Important Changes.

The following sections highlight the substantive changes in each area.

1. Planning tools

Planning and financial tools, intended to allow municipalities to regulate land use, resources and infrastructure in more strategic and efficient ways, to support intensification, sustainable and compact communities include:

1.1. Area, Densities and Height

The inclusion of minimum densities, heights and parcel areas into the Planning Act supports intensification initiatives designed to facilitate implementation of provincial and municipal growth strategies. The Town has already included minimums in some Zoning By-laws, but the new Planning Act regularizes and clarifies that the Town has the authority to require minimum and maximum densities and height in zoning By-law.

1.2. Zoning with Conditions (Official Plan Policies required)

If the Official Plan contains policies relating to zoning with conditions Council can pass By-laws to impose condition(s) on zoning through its Zoning By-law. When prescribing conditions the Town may also require an agreement relating to the conditions, which may be registered on title.

Although the Planning Act has been amended to allow zoning with conditions, the regulations have not yet been published. Staff will report back to Development Services Committee with recommendations about how the Town can best utilize the new zoning with conditions powers, after the regulations are released. In addition to amending the Official Plan new administrative procedures will need to be developed to ensure the fulfillment of conditions, including conditions in registered agreements.

1.3. Architectural Design

Expanded Site plan control powers (Official Plan Policies required)

The Planning Act previously specifically excluded from site plan approval: colour, texture, type of materials, window detail, construction and architectural details. The revised list of exclusions is as follows:

· interior design;

· layout of interiors, except interior walkways, stairs, elevators and escalators to which the public has access; and

· manner of and standards for construction.[ToM1]

Consequently, through site plan control approval, the Town will be able to legally regulate character, scale, appearance and design features, but only to the extent that Official Plan policies and Site Plan Control By-law contain provisions relating to exterior design. An amendment to the Official Plan will be required. The site plan control By-law may have to be amended as well. Staff will report back with recommendations regarding exterior design policies that should be incorporated into the Official Plan. This report will also include a discussion about where, and to which land use designations these provisions will apply.

Facilities for accessibility for persons with disabilities

The Planning Act, through site plan control, now allows municipalities to require provision of facilities, designed to have regard for accessibility for persons with disabilities, be shown on the drawings submitted with the application.[ToM2] Staff will continue to request that these features be shown on plans submitted with site plan applications. No amendments to the Official Plan and site plan control By-law are required to implement this provision.

Definition of “Development”

The definition of “Development” has also been amended. It now specifically excludes the placement of portable classrooms on a school site, of a district school board, if the school site was in existence on January 1, 2007.[ToM3] Portables on school sites created after January 1, 2007 will still be subject to site plan approval.

1.4. Sustainable Design

Sustainable design elements on municipal right-of-ways

Through site plan control, the Town can request drawings showing plan, elevation and cross-section views which are sufficient to display elements, on the road allowance, such as:

· trees, shrubs, hedges, plantings or other ground cover, permeable paving materials, street furniture, curb ramps, waste/recycling containers and bicycling parking facilities.

Amendments to the Official Plan and Site Plan control By-law are not required to implement this provision of Bill 51. However, new protocols and procedures must be established to ensure that these elements are adequately incorporated into the plans submitted with site plan applications. For example, minimum design guide lines and standards must be available for developers and the public. Application forms may have to be revised to ensure that sufficient details of the elements proposed for the right-of-way are provided.

Cash-in-lieu of Parkland dedication (Official Plan Policies required)

To encourage sustainable redevelopment, the amount of money paid to the Town for cash-in-lieu of parkland may be reduced, provided sustainability criteria and policies related to the reductions are set out in the Official Plan. The merits of, and recommendations about incorporating sustainability criteria and policies into the Official Plan will be evaluated in a subsequent report to Development Services Committee. The review will also discuss the Town’s policies for cash-in-lieu of parkland assessment for infill and affordable housing projects.

1.5. Second Suites

To promote a range and mix of housing types the Province has provided municipalities with the ability to adopt second suite Official Plan policies without appeal, except at the time of a five year Official Plan update. The passing of a Zoning By-law to implement these policies can not be appealed.

The Town’s Official Plan currently includes provisions that will allow “second suites” in the Residential (Low Density), Agriculture, Hamlets and Rural Residential designations. Some areas, such as parts of Cornell and Markham Centre, already have zoning in place permitting “second suites”.

Development Services Committee had identified that the resolution of the illegal front yard parking issue was an important step in developing a strategy to deal with second suites. Council enacted a By-law in June 2006 that incorporated new driveway standards into the Town’s Zoning By-laws. Development Services Committee may wish to again consider the Town’s second suite strategy, including comprehensive zoning permissions.

2. New processes and procedures

Process changes intended to ensure that complete and transparent information is provided to the municipality and the public, to give stakeholders more opportunity to understand the development of their community, include:

2.1. Complete Applications (Official Plan Policies required)

Additional information to be provided with Consent, Official Plan, Subdivision and Zoning By-law applications

Council can require additional information and material it may need to assess and make decisions about consents, Official Plan, Draft Plan of Subdivision and Zoning By-law applications. (This is in addition to the information and material required by the Planning Act and its regulations.) To implement this the Town’s Official Plan must be amended, administrative procedures changed and application forms and notices revised.

This requires a review of what constitutes a complete application, including possible exemption criteria for less complex applications. The submission requirements may vary depending on the size and type of application and should be clarified and scoped at a pre-application consultation meeting. Staff anticipate that additional materials may include, amongst other items, the following:

· agricultural lands impact study

· drainage plan

· environmental impact assessment

· flood plain and erosion hazard study

· functional servicing study

· landscape plans

· municipal connection drawing

· phase I & II site assessment for contaminated lands

· retail market or other economic impact study

· sanitary design calculations

· site grading plan

· site plan application

· site servicing plan

· stormwater (quality and quantity) management control study

· traffic impact study

· tree inventory & preservation plan

To ensure that this is information can be made available to the public, (see: “Notice requirements for a complete application” below) it may be appropriate to require all information and materials to also be submitted in an electronic format, such as a PDF.

Until the required information is provided, Council may refuse to accept or consider an application and the statutory time period for Council to make a decision does not begin until a complete application (as defined in the Official Plan) is received.[ToM4]

The Town must notify the applicant that the application is complete or not complete within 30 days of receiving the application. If there is a dispute over whether the application is complete the Municipal Board can, by summary motion, determine whether the information provided by the applicant meets the requirements and/or the requirements are reasonable. The appeal period is 30 days from the day the negative notice is given.

Prior to Development Services Committee’s consideration of an amendment to the Official Plan, regarding complete applications, the development industry will be consulted. Town staff will also consult with the Region and external agencies, such as the Toronto and Region Conservation Authority, to determine if they are proposing to adopt complete application policies.

The prescribed application information required by the Planning Act regulations are generally unchanged.

Notice requirements for a complete application

The Town is now required to determine if an application for Official Plan Amendment, Zoning By-law Amendment and Draft Plan of Subdivision is complete, within 30 days of their submission. After it has been determined that the application is complete, a notice of the complete application must be prepared within 15 days, and delivered to the applicant and all specified parties, including the public. It is anticipated that, the notice of the complete application will be circulated in the same fashion as the notice for a Public Meeting is currently circulated.

If it is determined an application is incomplete the Town does not have to accept or further consider the application. The applicant must be notified of missing information, and the information provided before the application can be reviewed. The statutory time periods regarding filing of appeals to the Municipal Board do not begin until a complete application has been received. However, the applicant can appeal the determination of an incomplete application to the Ontario Municipal Board.

New procedures must be established to properly evaluate application completeness and to provide the required notification.

2.2. Notice of refusal to adopt Official Plan and/or Zoning By-law amendments

When Council refuses an Official Plan and/or Zoning By-law amendment, the Town must, not later than 15 days after the day of the refusal, give written notice of that refusal. The notice is to be sent to the applicant, anyone that filed a written request to be notified of a decision and any prescribed persons. New procedures must be established to implement this process.

2.3. Up-to-Date Official Pans and Zoning By-laws

A municipality must update its Official Plans every five years to conform with provincial plans and to be consistent with the Provincial Policy Statement. Provisions in the Act have been rewritten to strengthen and clarify the requirement to update Official Plans with respect to provincial plans, matters of provincial interest, provincial policy statements and designated areas of employment. Our Official Plan will need to be revised to ensure that it:

· conforms with provincial plans or does not conflict with them;

· has regard to the matters of provincial interest;

· is consistent with policy statements.[ToM5]

Within three years of completing a five year Official Plan update all Zoning By-laws shall be amended to ensure they conform with the Official Plan.[ToM6]

This will require the significant allocation of resources to ensure that the Town’s planning documents (Official Plan and Zoning By-laws) are updated within the prescribed timelines. The resources required will include staff time and money to pay for consultants to help with the updates.

2.4. Up-to-date Decisions

All municipal planning decisions will have to “be consistent with” Provincial Policy Statements in effect at the time of the decision, not those in place at the time an application is submitted.[ToM7] Decisions of Council shall also conform with, or not conflict with, provincial plans in effect at the time of the decision, not those in place at the time the application is submitted.

The new regulations require a statement that Council’s decision is consistent with the Provincial Policy Statement, conforms or does not conflict with any applicable provincial plan, and conforms to our Official Plan.

2.5. Protecting Employment Lands (Official Plan Policies required)

By adding policies to the Official Plan the Town will be able to refuse proposals to convert employment lands into other uses, with no right of appeal to the Municipal Board, except at the time of a five year municipal comprehensive official plan review.[ToM8]

“Areas of employment” are defined to include, without limitation: manufacturing, warehousing, office, and retail associated with manufacturing, warehousing and/or office.

The Town’s Official Plan already includes policies regarding the consideration of applications to delete, change or extend an assigned industrial land use category. However, these policies should be reviewed to ensure that the Town’s Official Plan contains provisions that adequately protect employment lands. New procedures may be required to monitor the Town’s employment land needs.

The merits of, and recommendations about incorporating policies about protecting employment lands into the Official Plan will be evaluated in a subsequent report to Development Services Committee.

2.6. Early Consultation

Pre-application consultation (By-law required)

The Town must allow applicants to consult prior to submitting an Official Plan [ToM9] , Site Plan [ToM10] , Draft Plan of Subdivision and/or Zoning [ToM11] By-law applications. Also, by By-law, the Town may require applicants to consult with the municipality prior to making an application.

It is our practice to allow and encourage applicants to meet and consult with staff prior to the submission of an application.

However, pre-consultation meetings should be required for more complex applications, in part to ensure that the applications being submitted are complete.

Staff recommend the enactment of a pre-consultation By-law, to require applicants to consult with staff before submitting Official Plan, Site Plan, Draft Plan of Subdivision and/or Zoning By-law applications. The most appropriate structure for such a By-law will be evaluated in a subsequent report to Development Services Committee. The report will include a discussion about new procedures that will have to be established as well.

Information to be Provided to the Public

Bill 51 amends the Planning Act to clarify and broaden the requirements regarding application information that must be available to the public. Any information and material that is required by the Town must be made available to the public. This not only includes all prescribed information and material, but also all additional information and materials required for a complete application submission. Process and application form changes will be required to ensure that applicants are aware that all materials submitted with an application will be shared with the public.

To ensure that this is information can be made available to the public, it may be appropriate to require all information and materials to be submitted in an electronic format, such as a PDF, in addition to required paper copies.

Public Open Houses required in certain circumstances

Municipalities are now required to hold statutory Public Open Houses no later than seven days before a Public Meeting in certain circumstances. A Public Open House is required for the five year Official Plan update, the subsequent three year Zoning By-law amendments, and Official Plan and By-law amendments where a Development Permit system is in effect.

These Public Open Houses are in addition to the statutory Public Meetings and will require some additional resources to organize and staff. New protocols and notification procedures will have to be developed. However, this process won’t be too onerous to implement. Only requiring Public Open Houses in certain circumstances is a change from earlier drafts of the Bill. Earlier drafts required a Public Open House prior to all Public Meetings.

3. Ontario Municipal Board reform

The Municipal Board reforms are intended to ensure municipalities are more accountable on local planning matters, while allowing the Municipal Board to continue to hear appeals on matters that have the greatest impact on the broader public interest, including appeals relating to official plans, zoning, subdivision, site plans and development permits. The amendments do not change the essential powers of the Municipal Board. The reforms proposed can be categorized into three areas:

3.1. How Municipal Board hearings will occur

a) the Municipal Board making a decision, relating to a planning matter, will be required to “have regard to” decisions made by municipal Councils about the same planning matter. Previously, the Municipal Board only had to “consider” the municipal decision;[ToM12]

b) the Municipal Board may only consider information that was provided to the Town during the application process. This is intended to eliminate new information and materials from being presented to the Municipal Board. If new material is presented at the Municipal Board that could have material affected Council’s decision the Board will adjourn the hearing, and send the matter back to Council for further consideration. Resources will be required to review and comment on the additional material;

c) new provisions have been added to the Planning Act that refine the legislation regarding who may appeal a decision to the Municipal Board, and who may be added as a party to a hearing. There are variations depending on the application and the nature of the hearing; and

d) the Municipal Board will be required to rule on whether an application is “complete”. Additional resources will be required to prepare for and attend these hearings.

3.2. Local Appeal Bodies

Municipalities may, by By-law, establish local appeal bodies, comprised of citizens from the community, to deal with appeals of matters of local significance, such as minor variances and severances.

a) the Province has set minimum criteria for establishing local appeal bodies, process and standards;

b) members of the local appeal body will be appointed by Council under the Municipal Act and the terms will not extend beyond the term of Council;

c) matters, such as Official Plan, subdivision and zoning applications, that have the potential to affect the broader public interest will continue to be heard by the Municipal Board;

d) if there are related matters before the Municipal Board and the local appeal body, the Municipal Board will generally hear all matters related to the proposal; and

e) if a municipality chooses not to establish a local appeal body, all appealed matters will continue to be heard by the Municipal Board.

Prior to the Town being able to establish a Local Appeal body the Town’s Official Plan and zoning By-laws are required to be up-to-date and conform to any applicable provincial plans, and be consistent with the Provincial Policy Statement. Only after this is complete could a Local Appeal body be formed and staffed.

The administrative matters and costs associated with establishing and running a local appeal body will likely outweigh any benefit of such a body.

Table A below, shows the number of applications and appeals by type (variance and consent) that have been submitted to the Town in the last three years. The Town receives an average of approximately 170 variance applications per year, for the last three years with, on average, 7 appeals per year. There has been an average of approximately 36 consent applications per year, for the last three years, with on average 2 appeals per year.

Table A
YEAR	Number of Applications	Number of Appeals
2004	170 minor variance	6 minor variance
2004	36 consent applications	2 consent
2005	174 minor variance	7 minor variance
2005	45 consent applications	3 consent
2006	165 minor variance	7 minor variance
2006	26 consent applications	1 consent

Given the extra costs and relatively small number of appeals, the establishment of a Town of Markham local appeal body is not practical, at this time. Staff will continue to monitor the nature of, and number of appeals received. If the current trends change we will report back to Development Services Committee on the establishment of a Local Appeal Body, at that time.

4. Other Important Bill 51 changes

4.1. Transitional Matters

The provisions introduced into the Planning Act by Bill 51 only apply to applications received on or after January 1, 2007. Applications filed before January 1, 2007 are subject to the provisions of the Planning Act as it read on December 31, 2006. Town initiated matters are subject to the provisions that are in place at the time of the decision.

4.2. Development Permit System

Amendments to the Regulations allow all municipalities in the Province to implement a Development Permit System (DPS). A DPS combines zoning, site plan and minor variances into a single process. The system promotes development by providing for faster timelines, eliminating potential duplication, incorporating flexibility for uses and development standards, and providing a “one-stop” planning service. This process will be most valuable in new large scale development and/or brownfield re-development areas. The merits of the DPS will be outlined and discussed in a staff report when an appropriate opportunity to implement a DPS arises.

4.3. Community Improvement Plans

The definition of community improvement has been expanded to include construction, improvements of energy efficiency and provision of affordable housing. Eligible costs for CIP grants and loans have been clarified. To implement these provisions a review of the Town’s Official Plan and CIP policies, and changes to administrative procedures will be required. For example, clerk’s certificates and public notice requirements, and registering grants and loans on title.

Bill 51 also includes provisions that will allow prescribed upper tier municipalities to designate community improvement areas, as well as permit upper and lower tier municipalities to participate in each others grant or loan programs. The merits of the expanded community improvement plan provisions will be discussed in a future staff report.

4.4. Energy Undertakings

Bill 51 includes provisions that will exempt projects related to energy from provisions of the Planning Act, where the project is approved, or is the subject of an exempting regulation, under the Environmental Assessment Act.

4.5. Sustainable Subdivision Design

To promote sustainability and to help manage the design of communities the criteria, to which Council shall have regard for when considering approval of a draft plan of subdivision, has been expanded to include the extent to which the proposed plan optimizes the available supply, means of supplying, efficient use and conservation of energy.

The conditions regarding highway dedication have also been expanded to include pedestrian and bicycle pathways, and public transit rights of way.

4.6. Amendments to the Conservation Land Act

Bill 51 also amends the Conservation Land Act with respect to conservation easements and covenants. The purpose for which conservation easements and covenants may be established have been expanded to include protection for water quality and quantity, and watershed protection. Technical amendments have been included to facilitate the creation and preservation of conservation easements and covenants. Provisions for the registration of conservation easements and covenants will be established by regulation.

CONCLUSION

Bill 51 modifies many aspects of the municipal land use planning process to provide additional tools for implementation of provincial policies, and to give further support to sustainable development, intensification and brownfield redevelopment. Bill 51 also encourages greater public input and enhances municipal control. These changes to the Planning Act not only give additional powers to the Town, but also include prescribed

responsibilities. However, there is some flexibility, that will allow implementation to be customized to suit the Town’s needs.

ACCESSIBILITY CONSIDERATIONS:

None.

RECOMMENDED BY:

_______________________________ _______________________________

Valerie Shuttleworth, M.C.I.P., R.P.P. Jim Baird, M.C.I.P., R.P.P.

Director of Planning and Urban Design Commissioner of Development Services

ATTACHMENTS:

Appendix ‘A’ - PowerPoint presentation from March 20, 2007 Development Services Committee Part A presentation.

Q:\Development\Planning\MISC\MI485 Smart Growth\Planning Reforms\Bill 51 report to DSC (draft 2).doc