January 18, 2019 Ken…

January 18, 2019

Ken Petersen, Manager
Ministry of Municipal Affairs and Housing
Local Government and Planning Policy Division, Provincial Planning Policy Branch
777 Bay Street, 13th Floor
Toronto ON M5G 2E5

Sent via email only to: PlanningConsultation@ontario.ca and via Environmental Registry of Ontario comment page

Re: Bill 66 – Restoring Ontario’s Competitiveness Act, 2018, the Open For Business Planning Tool and proposed regulation.
EBR Registry Number: 013-4125
Environmental Registry Number: 013-4125
Environmental Registry Number: 013-4239

I am writing on behalf of the Town of Richmond Hill Planning and Regulatory Services Department to provide you with comments on the proposed Bill 66 changes to the Planning Act and its associated proposed regulation.

On December 6, 2018, the Province released the first draft of Bill 66. The intent of the legislation is to stimulate business investment, create new jobs, and remove unnecessary regulation. Of particular interest, is Schedule 10 of Bill 66, which proposes a new Planning Act tool: “the open-for-business planning by-law” and its associated proposed regulation.

The Open For Business (OFB) Planning Tool

The OFB planning tool permits development that may otherwise by prohibited by Provincial, Regional or Local Legislation and/or Policy to streamline the approval of development associated with major employment

An “open-for-business planning (OFB) by-law” would allow a major employment use to proceed without being subject to:
• Provincial Policy Statements issued under the Planning Act 1990, Metrolinx Act, 2006,
and the Resource Recovery and Circular Economy Act, 2016
• Provincial Plans and Acts including the Oak Ridges Moraine Conservation Plan, Greenbelt Plan, Growth Plan, Parkway Belt West Plan, Lake Simcoe Protection Plan and the Great Lakes Protection Plan
• Policies identified in source water protection plans (Section 39 of the Clean Water Act, 2006)
• Regional or local official plans, zoning by-laws, holding provisions, and
• Increased height and density provisions in exchange for community benefits

In this regard, the “open for business planning by-law” has the same effect as a Minister’s Zoning Order (MZO), wherein the Minister can impose a Zoning Order that also need not conform with or be consistent with the policies of the above noted provincial and municipal documents.

The concept, as contemplated, represents an opportunity for Richmond Hill to facilitate appropriate employment uses not presently contemplated in the Official Plan. Using this tool, the Town could capitalize on opportunities to fuel job growth for residents and increase revenue for the Town.

Recommendation 1:
The most appropriate application of an OFB By-law is within the existing Urban Area, away from sensitive environmental areas such as the Oak Ridges Moraine. Accordingly, the list of Acts/Policies that are exempt from an “open for business by-law” should be those that apply to existing urban areas. The Bill should be modified to ensure that the protection of the environment is maintained by the continued application of provincial plans, such as the Greenbelt Plan, Oak Ridges Moraine Conservation Plan, Lake Simcoe Protection Plan, Great Lakes Protection Plan and source water protection plans; as well as Sections 2 and 3 of the Provincial Policy Statement.

Incorporates Site Plan Approvals

All matters generally addressed through site plan control as well as zoning are proposed to be addressed through the “open for business by-law”, much like a development permit under a Community Planning Permit System. This is a key difference from a Minister’s Zoning Order, which still requires site plan approval.

As such, municipalities would be able to impose conditions as part of an OFB By-law, so long as such conditions are reasonable, related to the appropriate use of land, and necessary for protection of public health and safety. Staff agree that combining these planning tools creates efficiencies. Furthermore, preparing the OFB By-law at the local level ensures that the by-law is well integrated with existing zoning nomenclature and practices of the municipality.

Requires Minister’s Permission prior to passing

Before a local municipality can pass an open-for-business planning by-law, the municipality must apply for and receive written approval from the Minister of Municipal Affairs and Housing, and demonstrate that any prescribed criteria is met. The criteria would be provided in a regulation.

Presently, the proposed regulation would require that a municipality requesting permission to use this by-law would need to provide:
• information such as description of subject lands, land use planning information and details about the proposed employment opportunity
• confirmation that the proposal is for a new employment use
• evidence that the proposal would meet minimum job creation thresholds (e.g. 50 jobs for municipalities with a population of less than 250,000 and 100 jobs for municipalities with a population of more than 250,000 people)
• Identification of land uses, buildings and structures that may be authorized under the tool, such as manufacturing and research and development, but not residential, commercial or retail as the primary use

The regulation would also provide details regarding how notice is to be given to the Minister of Municipal Affairs and Housing, following the passing of an open-for-business by-law.

Recommendation 2:
Staff are concerned that a lengthy Provincial criteria to be met and reviewed by the Province may defeat the expeditious approval of employment uses. It is recommended that local municipalities define appropriate criteria surrounding the use of the OFB By-law. The Province could provide limited higher level direction to ensure that the goals of the legislation are met.

No Right of Appeal, but the Minister may Modify or Revoke the By-law

While the “open for business” planning tool appears to provide Council with extraordinary powers, the Minister is ultimately the decision maker in terms of whether or not a proposed development may be authorized by the OFB By-law. Accordingly, the municipality must notify the Minister within three days of the passing of the OFB By-law. The OFB By-law will come into effect within 20 days of its passing or a later date specified by the Minister. The Minister may by order modify or revoke the OFB By-law any time before it comes into effect. Similar to an MZO, there is no right of appeal to the Local Planning Appeal Tribunal.

Recommendation 3:
Given that there is no right of appeal, staff recommend that municipalities be empowered to undertake locally defined consultation requirements prior to the passing of the OFB By-law. This consultation process would ensure that public concerns regarding a proposed development are understood and addressed, to the extent possible.

Does not Require Public Consultation in advance of passing the by-law

Similar to the Minister’s passing of an MZO, local municipalities will be able to pass an open-for-business planning by-law without public consultation. However, public notification is required within 30 days after it is passed.

Recommendation 4:
The Bill should be modified to require that a notice of Council’s resolution to request permission to use the “open for business planning tool” be issued to prescribed persons and agencies (as is required for an amendment to a zoning by-law). This notification will inform the public of Council’s intent and provide them with an opportunity to comment to the municipality and/or the Minister, without unduly delaying the adoption of an OFB By-law.

Additional Comments – Cross Jurisdictional Issues

Presently, the Town of Richmond Hill Official Plan designates land for employment-generating uses within its Employment, Employment Corridor, and Centres & Corridors land use designations. These areas are serviced and in most cases “shovel ready” for such development. Lands outside of the settlement area are subject to the Greenbelt Plan and Oak Ridges Moraine Conservation Plan. The majority of these lands are environmentally sensitive and are not appropriate for major employment uses.

Within the settlement area, the tool should not be used in a manner that may result in creating cross-jurisdictional issues. Utilization of the “open for business” planning tool in one municipality could impact on a neighbouring municipality. If a municipality utilized the tool in an area adjacent to a municipal boundary, the proposed use may cause negative impacts on the surrounding land use owing to land use incompatibility issues and/or the need for supporting infrastructure. Impacts could include, requiring sewer and/or water services to be routed through the adjacent municipality where such services are not planned. There is also the possibility that other local infrastructure improvements may be required in the non-developing municipality in order to support the “open for business” development in the adjacent municipality. Yet, the proposed legislation does not provide for the ability of the “non-developing” municipality to participate in the planning process and ensure that the developer in the “developing” municipality is responsible for providing the required infrastructure upgrades. In a two-tiered system, the Upper Tier could play an important role of ensuring that cross-jurisdictional issues are addressed and that neighbouring municipalities are included in the planning process.

Recommendation 5:
In addition to the recommendations noted above, we recommend adjusting the Bill and corresponding regulation to require that Upper Tier municipalities and/or affected neighbouring municipalities endorse, or not “not object to,” the request of Lower Tier municipalities to use the tool, and that they are satisfied with the by-law as passed by the Lower Tier, to ensure that all cross jurisdictional matters are addressed.

Thank you for the opportunity to comment on the proposed legislation and its associated regulation. Based on the forgoing recommendations, the Town would support the use of this additional planning tool, where an economic development opportunity presented itself to the Town and the need for such an expedited and streamlined approach is warranted.

Sincerely,

Kelvin Kwan, MCIP, RPP
Commissioner of Planning and Regulatory Services

cc. Town of Richmond Hill Mayor and Members of Council
Neil Garbe, Chief Administrative Officer, Town of Richmond Hill
Paul Freeman, Chief Planner, Regional Municipality of York