Recommendations:…

Recommendations:

1.  THAT the Recommendation Report dated July 24, 2017 from Natasha Rea, Policy Planner, Planning & Development Services and Nupur Kotecha, Legal Counsel, Litigation and Administrative Law Section, Corporate Services to the Council Meeting of August 9, 2017, re: Recommendation Report, BILL 139 - Building Better Communities and Conserving Watersheds Act, 2017: Proposed reforms to the Ontario Municipal Board Act and the Planning Act, File: BAX Bill139 and GBB.OMB, be received;

2.  THAT staff be directed to forward to the Province this report as the City’s submission on Bill 139 prior to the August 14, 2017 deadline;

3.  THAT staff be directed to participate in any future public consultation process and provide submissions to the Province regarding Bill 139; and,

4.  THAT a copy of this report be sent to the Region of Peel.

Overview:

•   Bill 139 proposes significant changes to the way local planning decisions are made;

•   Changes to the OMB will help with the implementation of the revised Growth Plan and staff generally support the proposed reforms;

•   The report includes input from a cross-departmental working committee, which was created to ensure that the City is well-positioned to take advantage of the proposed changes under Bill 139; with specific regard to:

o    Moving away from de novo hearings;
o    Mandatory case management;
o    New Local Planning Appeal Tribunal rule-making authority;
o    The establishment of the Local Appeal Support Centre; and,
o    Limiting what can be appealed to the Tribunal and the scope of appeals.

•   A copy of this report will be sent to the Province for consideration as part of their public consultation exercise, which concludes on August 14, 2017;

•   Staff will report to Council with an update on Bill 139 when further details are available.

Background:

On May 30, 2017, Bill 139 received First Reading by the Province. If passed, Bill 139 proposes significant changes to the way local planning decisions are made. The deadline to provide comments to the Province on the proposed Bill 139 changes is August 14, 2017. Key changes proposed to Bill 139 will:

•   Replace the Ontario Municipal Board with Local Planning Appeal Tribunal (LPAT), eliminate de novo hearings and restrict the scope of the LPAT, thereby giving greater weight to local decision-making;

•   Introduce mandatory case management conferences for certain types of appeals;
•   Streamline the appeal process through written hearings and stricter timelines;
•   Strengthen public access to the appeal system through the development of a Local Planning

Appeal Support Centre;

•   Introduce a new test for certain types of appeals, where appeals can only be made to the LPAT where they are not consistent with the Provincial Policy Statement (PPS), do not conform with provincial plans or applicable official plans;
•   Create a 2-step appeal process where if the LPAT determines that the municipal decision is not consistent with the PPS or is not in conformity with provincial plans or applicable official plans, then the municipality will be given the opportunity to make a new decision within 90 days. If the second decision is appealed, the LPAT would make the final decision; and,
•   Extend timelines for municipal decisions on planning applications by 30 days.

This report provides a staff review of the proposed changes to the OMB and the Planning Act. Input has been provided from a cross-departmental working committee; consisting of staff from Planning, Legal Services, Public Works, Finance, Economic Development, Government Relations and Clerks in order to develop a strategy to ensure that the City’s internal processes and procedures are updated. This will ensure that Brampton is prepared when the proposed changes under Bill 139 are implemented.

The Ontario Municipal Board

In October 2016, the Ministry of Municipal Affairs (The “Province”) released a public consultation document and sought feedback on potential reforms to the OMB. Planning staff submitted recommendations in November 2016 on specific provisions in the public consultation document that may impact the City of Brampton. Several staff recommendations from the November 2016 submission are reflected in Bill 139. These include:

•   removing the ability to appeal Official Plans/Official Plan amendments;
•   support for the move away from de novo hearings;
•   more regard for municipal decision-making by only considering information that was available to Council at the time the decision was made; and,
•   greater support to make the appeal process more user-friendly for the public and allowing for in-house experts.

Current Situation:

Staff do not have comments in relation to proposed changes to the Conservation Authorities Act under Bill 139. Staff generally support the proposed changes under Bill 139. Specific comments, grouped by theme, are considered below:

Local Planning Appeal Tribunal (replaces the OMB)

Move away from de novo hearings

A significant change proposed under Bill 139 is the move away from “de novo” hearings for certain planning appeals. Under the current system, the OMB conducts de novo hearings, which enables overturn a municipality’s decision and substitute its own decision. The move away from de novo hearings will require the LPAT to focus on the validity of the decision under appeal instead of seeking the “best” decision. Under Bill 139, the LPAT could only overturn a municipality’s decision if it finds that the municipality’s decision is inconsistent with the PPS or does not conform to provincial plans and applicable official plans.

•   Staff supports moving away from de novo hearings, as limiting appeals to issues of consistency and conformity would afford greater weight to local planning decisions made by municipalities. This proposed change would potentially reduce the time and resources required for hearings.

Case Management

Under Bill 139, a mandatory case management conference must be held for appeals of Official Plans (“OP”), Zoning By-laws (“ZB”) and plans of subdivisions before a hearing is conducted. If a person other than the appellant or the municipality wishes to participate in the appeal, written submissions are required 30 days prior to the case management conference. It is anticipated that the case management conference will consider the matters typically addressed in an OMB Pre-hearing conference such as establishing the number of hearing days, start date, issues to be considered, format of the hearing and applicable timelines. Further details in the forthcoming regulations will likely provide more information in this regard.

•   Staff agree that mandatory case management conferences will assist in hearing organization, result in early resolution of issues and will potentially reduce hearing time and City resource required for hearings. However, additional details on the cost and the City’s role in organizing case management conferences are needed so that the City can effectively implement the required internal processes and procedures. Rule Making Authority

The LPAT will have greater powers than the Ontario Municipal Board to make/establish rules such as the ability to adopt alternative approaches to traditional adjudication and hold written hearings. In addition, the LPAT will have the authority to appoint a class representative among parties, who will present arguments on behalf of the group, if there is a common interest.

•   Staff feels this is a reasonable proposal but note that it will demand a greater role of LPAT Members at the case management conference meeting, when the order of events and issues are identified.

Oral Hearings

Where the LPAT holds an oral hearing, no party or person allowed to participate in an appeal is permitted to call evidence or cross examine witnesses when considering an appeal of an OP, ZB or plan of subdivision. Further, the LPAT will be required to send significant new information that arises back to the municipal Council for re-evaluation of the original decision. This would ensure the LPAT has the benefit of Council’s perspective on all significant information.

•   Staff is of the view that limiting cross examination may create a less adversarial hearing process, however, additional details on the hearing process and submissions are needed to fully comprehend the effect of this significant change.

Establishment of the Local Appeal Support Centre

The proposed Local Appeal Support Centre under Bill 139 will serve as a resource for the public in terms of providing free and general information about the land use planning system in Ontario. It will also provide guidance on the LPAT’s appeal process and procedures and provide free in-house legal and planning advice, including the potential for representation in certain instances at case management conference meetings and hearings.

•   Staff believes the proposed Local Appeal Support Centre would be helpful to the public by making the appeal process less intimidating and information more accessible. More details on the criteria to secure representation would be helpful, specifically: would this option only be available to parties who are direct appellants? Can parties secure representation at any stage in the appeal process or only at the onset, before the actual hearing takes place? Where the LPAT appoint legal or planning representation for a party, how will this information be communicated to the parties in advance of the hearing?

Planning Act Changes

New Test

Under Bill 139, where municipally-adopted and approved OP/OP amendment or ZB/ZB amendment are appealed, the appellant must provide reasons as to why the part of the planning tool under appeal is not consistent with the PPS and does not conform to provincial plans or the applicable OP.

•   Staff supports this change because it would bring predictability and certainty to planning matters, such as the boundaries of the Greenbelt or provincially significant wetlands. However, more clarification on what tests/criteria will be applied by the LPAT to determine whether an OP/OP amendment or ZB/ ZB amendment is consistent with the PPS or conforms with provincial plans, and applicable official plans, will be necessary. Further, it is not clear how this new test will be applied to “non-decision” appeals, where the municipality has not made a decision within the required timeline under the Planning Act.

New Appeal process

The new proposed appeal process is described as follows:

-   The appeal is dismissed if the appellant does not meet the new test;
-   If the test is met, the LPAT would issue notice to the municipality to reconsider the decision on the matter;
-   If a further decision on the reconsideration is not rendered within 90 days, the non-decision can be appealed to the LPAT;
-   When the municipality makes a decision on the reconsideration, this decision can be appealed to the LPAT a second time; and,
-   If a second appeal is received, and the LPAT determines that the new test is met, the LPAT then has the authority to substitute its own decision to bring resolution to the matter.

•   Staff requires clarification on whether a public process will be required on matters that are reconsidered by Council. If so, a separate notice that stipulates the new appeal timeline and method of appeal must be developed by the City.

Limiting the scope of appeals: Restricting appeals on development that supports provincially funded transit

The proposed changes suggest that upper and single tier municipalities can identify a protected major transit station area (MTSA) “zone” in their OPs. These identified areas will be subject to designated land uses, heights and minimum employment and residential densities that support major transit station areas. Lower tier municipalities, such as the City of Brampton, would have to amend the City’s OP to conform with the Upper Tier municipality, Region of Peel OP.

The City would have to prepare OP policies and accompanying zoning to clearly identify:

•   the minimum number of people and jobs to be accommodated in the protected transit area;
•   the land use designations in the protected MTSA zone; and,
•   the minimum densities in the protected major transit station area zone.

Once in effect, identified MTSA OP and ZB designations/policies would not be subject to private appeals and can only be amended by the municipality. Staff supports this provision because it will help to ensure that the desired densities are in place to support transit investments. Further, transit infrastructure requires certain densities to be viable. This provision builds on the direction in the Planning Act that sets out requirements for greater densities along higher order transit corridors.

•   Staff would appreciate more direction on how to pre-zone for the MTSA protected zone at the local level. Staff also notes that this provision must address whether appeals are allowed in situations where proposed densities and heights are in excess of what would be required to support the MTSA protected zone.

Secondary Plan Two-Year Freeze

The proposed legislation will enforce a two-year moratorium on new secondary plans once adopted and in force, unless permitted by Council.

•   The Province should also consider whether such a provision could apply to tertiary plans and block plans.

Interim Control By-laws (ICBL)

Bill 139 proposes that only the Minister can appeal the passing of an ICBL. However, any person who received notice of the passing of the interim control by-law may appeal a further by-law to extend the period of time during which the ICBL remains in effect.

•   Staff supports this change, as ICBLs are necessary to ensure that municipalities have enough time to complete any studies that are required in an area that is experiencing rapid change or is in transition.

Non-Decisions

For non-decision appeals, the private OP amendment appeal period is now extended from 180 days to 210 days. The private ZB amendment appeal period is now extended from 120 days to 150 days, unless the ZB amendment is tied to an OP amendment, then the greater 210 day appeal period would apply. Where a matter is being reconsidered, as per the 2-step appeal process, the appeal period is reduced to 90 days regardless of the planning tool.

•   Staff recommends that the reconsideration period be increased to 120 days to give a municipality sufficient time to make a decision on an application.

No Appeals of Minister’s Decision

Where the Minister of Municipal Affairs is the approval authority, the ability to appeal is removed.

•   This is significant in the context of OP reviews/conformity with Provincial Plans.

Consideration for Climate Change

Bill 139 proposes that OP policies must consider climate change policies, with specific regard to goals, objectives and actions to mitigate greenhouse gas emissions and provide for climate change adaptation and increasing resiliency.

•   This is consistent with the direction staff has received from Council and will be reflected in a future update to the Natural Heritage policies in the City’s OP.

Next Steps

Transition and operational details are anticipated when the accompanying regulations are available at a later date. The Province should provide more information on the timing of the proposed changes.

Bill 139 has received First Reading and must undergo two further readings in Provincial legislature before it is enacted. There is potential for refinements and public consultation opportunities on the proposed provisions before the Bill becomes legislation. No timeline is available on subsequent readings, however, staff anticipate additional detail by the end of 2017.

Corporate Implications:

If passed as proposed, Bill 139 will necessitate updates to the City’s OP and ZB. Additionally, new operational procedures must be developed. A number of City departments will be impacted by the forthcoming changes including: Clerks, Legal, Public Works, Economic Development and Finance.

Financial Implications:

If passed in the current form, Bill 139 may impact City resources associated with proposed procedures (such as reconsideration of a decision by Council). Additional detail and clarification are required before a thorough understanding of potential financial and corporate implications can be determined.

Strategic Plan:

This report supports the Smart Growth strategic priority of the City by building complete communities to accommodate growth for people and jobs.

Conclusion:

On May 30, 2017, the Province tabled Bill 139 the Building Better Communities and Conserving Watersheds Act, 2017 for First Reading. If passed, this Bill proposes significant changes to the way in which local planning decisions are made and will have operational impacts on a number of City departments. The content of this report is intended to be the City’s submission on Bill 139 to the Province prior to the August 14, 2017 deadline.

A further report will be prepared when more detail on Bill 139 is available, and is anticipated by the end of 2017.

Respectfully Submitted:

Below is the Council Resolution:

C254-2017
1. That the report from N. Rea, Policy Planner, Planning and Development Services, and N. Kotecha, Legal Counsel, Litigation and Administrative Law, Corporate Services, dated July 24, 2017, to the Council Meeting of August 9, 2017, re: Bill 139 – Building Better Communities and Conserving Watersheds Act, 2017 – Proposed Reforms to the Ontario Municipal Board Act and the Planning Act, be received;

2. That staff be directed to forward to the Province this report as the City’s submission on Bill 139 prior to the August 14, 2017 deadline;

3. That staff be directed to participate in any future public consultation process and provide submissions to the Province regarding Bill 139; and,

4. That a copy of this report be sent to the Region of Peel.

[Original Comment ID: 210732]