Minister Clark, We the…

Minister Clark,

We the undersigned are pleased to provide the following comments on the proposed Open For Business legislation that was recently introduced in the Legislature.

We are the community associations and city councillor for Kitchissippi ward in Ottawa. We have a depth of experience in planning processes.

For over a decade, the Provincial Policy Statement and the City’s Official Plan have directed significant intensification to our ward, which is a mix of “downtown” and inner suburban residential neighbourhoods, significant institutional and private employment centres, and municipal and federal greenspaces, bordered by the Ottawa River, the arterial Carling Avenue, and with a vibrant traditional mainstreet as its heart.

Our communities rely on the many protections built into land use planning processes that have been developed over the years to ensure that residents’ voices are heard in planning, as well as provide the protections and mitigations that have been built in to ensure that intensification is sustainable from a quality of life point of view.

Broadly speaking we are concerned that the protection of greenspace and our natural environment, the important role the public plays in guiding significant new developments, and the requirement that large developments contribute positively to intensifying neighbourhoods should not be subject to ad hoc municipal decision-making. While we have a great deal of respect for the City of Ottawa’s professional planning staff, we are concerned that the Open For Business legislation will make it easier for politicians to bypass important protections and ignore good planning practices when large employment project opportunities are presented to municipal Councils.

We are further concerned that the opportunity to understand this legislation’s significant implications for land-use planning and environmental protection is unduly time-constrained. The public comment period was opened on December 6, 2018 and closes on January 20, 2019; a period of time where local governments and citizens are typically focused on holidays, resulting in very few working days for either to adequately review the proposed changes.

Given that our expertise and community focus is in the area of planning, our comments on the proposed Open For Business legislation are mainly in respect of Schedule 10, Ministry of Municipal Affairs and Housing.Our review has identified a number of concerns specific to the proposed significant exemptions to the current Planning Act.

SCHEDULE 10 MINISTRY OF MUNICIPAL AFFAIRS AND HOUSING

Non Application of Planning Act Provisions:

Provincial Policy Statement (PPS)

The purpose of the Provincial Policy Statement (PPS) is to provide policy guidelines as to how our cities should evolve. It is meant to serve as a safety net safeguarding the public interest. The current PPS is the product of the Province’s long-standing and carefully crafted land use review process; one that included extensive public consultation.

Authorizing municipalities to exempt themselves from the requirements of this foundational land use planning document is a radical step; one that, if taken, fundamentally undermines the PPS and risks rendering it all but meaningless.

This is in large part because Bill 66 provides no guidelines as to what aspects of the PPS could be waived for eligible development proposals and, at the same time, it short-circuits the public consultation process.

In so doing, Bill 66 opens the door to hurried ad hoc decision-making and spot zoning. Neither is desirable.

Bill 66 increases regulatory uncertainty for businesses, for cities and for residents despite all three stakeholder groups much preferring the opposite.

What’s needed at this stage before Bill 66 becomes law is a fuller description of what the responsible Minister would consider acceptable exemptions from existing policies, legislation and regulations in a municipality’s Open For Business by-law and what, if anything, he would not.

Good public policy would require the incremental benefit of any new law, regulation or by-law to exceed its costs. However, Bill 66 includes no such requirement. Absent a regulatory impact assessment, including cost-benefit analysis, what criteria will assist the Minister in deciding whether to approve a proposed Open For Business by-law? How would the Minister know whether the compromises made for the sake of fast-tracking a development proposal are appropriate?

We have difficulty envisioning any worthwhile large-scale development proposal that requires municipal and Ministerial approval so quickly as to justify minimizing or even potentially excluding public participation in the planning process. To the contrary, the larger and more impactful an Open For Business development proposal is, the greater the need to ensure it receives timely unhurried consideration by all affected stakeholder groups.

In short, Bill 66 merits more careful consideration; including a more fulsome public consultation than the January 20, 2019 comment deadline provides.

We commend the Province for promoting growth and economic development. These are laudable goals in support of strong families, strong communities and a strong Provincial economy. However, we suggest Bill 66 would benefit from additional safeguards that better ensure new employment and economic development opportunities are pursued without eroding core land use, policy planning and governance principles.

Our overarching concern is that to pursue growth at the expense of sound land use policies and planning practices may produce impressive growth statistics in the short term but not necessarily the growth that produces the long-term prosperity and sustainability that we all want. Faster results are not always better results.

Conformity with Official Plans

The concerns we raise with respect to the PPS are even more applicable with respect to the Official Plan.

Ottawa is set to refresh its Official Plan. Like all previous OPs, it will be the product of extensive research, widespread public discussion and collaboration with key stakeholder groups over the next several years regarding current and future land use throughout the metropolitan area. The new Ottawa OP is expected to identify where industrial development should optimally be focussed.

Bill 66 allows – in effect it encourages – cities to override their carefully developed OPs. It enables them to decide on a case-by-case basis which specific development proposals are to be given fast-track approval as well as where they may be built and under what arbitrary conditions. By so doing, Bill 66 unduly politicizes the development application process.

A level playing field is essential to a well-functioning marketplace where all are able to enter and participate on equal terms, subject to the same rules. Frankly, we are somewhat surprised that the Provincial Government would be open to forsaking so fundamental a principle. Neither the Province nor our cities should be in the business of picking commercial/ industrial favourites. Our landscapes are pock-marked with too many resulting craters. The role of government is to create a level playing field with clear rules that all players should follow so that no single applicant is given an advantage over others. Ignoring sound planning rules on an ad-hoc basis can also be seen as an inappropriate subsidy for certain applicants.

Height and density by-laws

Our municipality has undertaken in recent years thorough reviews, that have included significant public consultation, of zoning by-laws and other planning documents that address height, density, frontages, yard and other provisions affecting both residential and non-residential zones. Providing new regulation that could override these planning instruments in an ad hoc manner, without reference to the local context that has informed them, would be a retrograde and unjustifiable step.

Site Plan approval

Ottawa is in the final stages of updating its site plan control approval process to make it faster, more efficient and more economical. It is an object lesson in how to fast-track and otherwise improve business processes without unduly compromising the benefits of public consultation and due process. A similar Province-wide approach strikes us as a better alternative to eliminating site plan control for “Open For Business” proposals.

Proposed Amendments to the Planning Act:

Bill 66 provides for numerous exemptions from the requirements of the Planning Act. Particularly concerning are exemptions from the following:

Sections 34 (10.1) to (10.6)

We are all for reducing red-tape wherever appropriate. However, allowing Council not to obtain information it may need to decide whether to adopt an Open For Business proposal strikes us as both unnecessary and counterproductive.

Section 34 (7)

Section 34 (7) sets out a requirement to make public the particulars for a proposed by-law amendment. No “Open For Business” by-law application, regardless of its merits, should ever be adopted under the cover of darkness. Revoking the public’s right to know in advance of its being adopted is no trivial matter. It should never be done except under exceptionally exigent circumstances, with fulsome justification and appropriate stakeholder consultation.

In creating a large informational asymmetry between stakeholders, Bill 66 unduly reduces the transparency integral to the the checks and balances and the principles of accountability that underpin our democratic institutions. That, in our view, is too a high price to pay for the sake of marginal gains in regulatory efficiency.

No appeal to LPAT

Bill 66 revokes the right of appeal to the Local Planning Appeals Tribunal (LPAT). This is a step not to be taken lightly. The right of appeal is no less a core principle of good governance than the right of the public to timely, comprehensive and accurate information.

Denying the right of appeal a priori undermines accountability and transparency. The right of appeal serves as a process for error correction and for clarifying the law. We urge that this Bill 66 measure be withdrawn.

We would note that all parties supported the establishment of the new LPAT system so we do not understand why it should be so quickly undermined.

No notice or requirement for public meeting

According to the documentation circulated by the Province, planning by-law changes will no longer be automatically subject to public consultation and will be at the discretion of the municipality, requiring public notice only after the by-law is passed.

This is an unacceptable approach to planning for a number of reasons related to principles of good governance and procedural fairness:

Transparency and Openness: Decisions would be made behind closed doors, and the credibility of the planning process would be damaged. This is contrary to principles of good decision-making.
Equality and access: Failing to notify citizens who might be affected by proposals under the act denies these citizens of their rightful opportunity to understand, evaluate and comment on these potential changes. This creates a system based on inequality of access to information and influence, and is contrary of the principles of democracy.
Representation and Accountability: Citizens would no longer participate in decision-making and the decisions taken by public officials would not be subject to adequate oversight.
Trust and Respect: Public trust in planning processes will quickly erode and respect for the outcome of this behind-closed-door decision-making related to planning will be lost.
Other Open For Business provisions

Also of concern is Schedule 5 which would repeal the Toxics Reduction Act by 2021. This would be a retrograde step, running contrary to current concerns and efforts related to preservation of the environment.

Facilitating trade-offs between employment growth and economic development on the one hand and environmental safety and public health on the other should be discouraged as much as is practicable, not encouraged.

We recognize that reasonable compromises may be necessary from time to time. However, when they are, a heavy burden of proof for the necessity of making such compromises should always rest with with those seeking exemptions that put public health and safety at greater risk. In this regard, Bill 66 looks looks to be a large misstep in the opposite direction.

We have similar concerns with respect to Schedule 10’s exempting Open For Business applications from the protections provided under Section 39 of the Clean Water Act, 2006 and the Great Lakes Protection Act, 2015.

We would ask you to take an imaginary journey with us to a water source polluted with toxins from an Open For Business development that has been granted an exemption from the protections of these Provincial laws. Would you be willing to drink? Would anyone? Should anyone ever be put in a position where this is even an option?

If the Province and a municipality approve an “Open For Business” application that gives a developer legal cover to compromise the health and wellness of a community, we would ask where would the legal liability to cover the remediation costs lie? We note that Bill 66 is silent on this.

Conformity with Greenbelt Plan

The proposal to exempt conformity with the Greenbelt Plan, while specific to the Greater Toronto Area, is of concern to Ottawa residents where a similar Greenbelt is also a legacy for future generations, providing greenspace, habitat, recreation space and agricultural lands. We understand and cherish the value the Greenbelt provides in this City, and understand the desire shared by many in Ontario that this important amenity should be preserved.

Conclusion

We are prepared to explore all of these concerns with the Ministry in any form or forum it may consider appropriate, and would be grateful for the opportunity to expand on these and how we consider they might affect our community. My office can help facilitate a conversation by writing to jeff.leiper@ottawa.ca. Thank you for the opportunity to comment.

Jeff Leiper. Councillor. Ottawa Ward 15

Roland Dorsay and Lynne Bankier. Champlain Park Community Association

Karen Wright and Kathy Kennedy. Civic Hospital Neighbourhood Association

Lorne Cutler. Hampton Iona Community Group

Larry Hudon. Hintonburg Community Association

Sybil Powell and Dan O’Hagan. McKellar Park Community Association

Lorrie Marlow. Mechanicsville Community Association

Gary Ludington and Karen Johnson. Westboro Community Association

Mari Wellman. Westboro Beach Community Association

Kimberly Patriquin and Rebecca Grace. Wellington Village Community Association