1. BILL
51 - REFUSALS OF APPLICATIONS AND OPENING STATEMENT AT COMMITTEE PROJET DE LOI 51 – DEMANDES REFUSÉES ET DÉCLARATION PRÉLIMINAIRE
DEVANT LE COMITÉ. |
That Council receive this
report for information.
Recommandation du comité
Que le Conseil prend connaissance de
ce rapport à fin d’information.
1.
Chief Corporate Services Officer report dated 21 March
2007 (ACS2007-CRS-LEG-0002).
2.
Extract
of Draft Minutes 6, Planning and Environment Committee meeting of 27 March
2007.
Report
to/Rapport au :
Planning and Environment Committee
Comité de l'urbanisme et de
l'environnement
and/et
Agriculture and Rural Affairs
Committee
Comité de l’agriculture et des
questions rurales
and Council / et au Conseil
21 March 2007 / le 21 mars 2007
Submitted by/Soumis par : Greg Geddes, Chief Corporate Services
Officer/Chef des Services généraux
Contact
Person/Personne ressource : M. Rick O'connor, City Solicitor
Legal Services/Contentieux
(613) 580-2424 x21215, rick.oconnor@ottawa.ca
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SUBJECT: |
BILL 51 - REFUSALS OF APPLICATIONS AND OPENING
STATEMENT AT COMMITTEE |
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OBJET : |
PROJET
DE LOI 51 – DEMANDES REFUSÉES ET DÉCLARATION PRÉLIMINAIRE DEVANT LE COMITÉ. |
REPORT RECOMMENDATION
That the Planning and Environment Committee and the Agriculture and
Rural Affairs Committee recommend Council receive this report for information.
Que le Comité de l’urbanisme et de l’environnement et le Comité de
l’agriculture et des questions rurales recommandent au Conseil de prendre
connaissance de ce rapport à fin d’information.
BACKGROUND
The Planning and Conservation Land Statute Law Amendment Act, 2006, (Bill 51) came into force on 1 January 2007. While this Act amends a number of provisions in the Planning Act and other legislation, this report is to address two matters, refusals of development applications by Committee and Council and the passage that should be read out at the commencement of Agriculture and Rural Affairs Committee and Planning and Environment Committee.
Prior to the enactment of Bill 51, there was no time limit to appeal an official plan amendment or zoning by-law amendment application that had been refused by a municipality. Thus, at least while the parent zoning by-law or official plan was in existence, an applicant could theoretically have appealed to the Ontario Municipal Board an amendment request that had been turned down by the Council some five years earlier. While it could be expected that the Board would have serious questions as to why the applicant had waited that long to appeal, the Board would have the jurisdiction to deal with the appeal.
Bill 51 has introduced into the Planning Act a time limit for appealing the refusal of the municipality to adopt zoning or official plan amendments. This time limit is 20 days after notice of the refusal is given. However, the regulations made under the Planning Act also require that written reasons for the refusal must be provided.
Given that under the transitional regulation, the provisions of Bill 51 only apply to applications made after 1 January 2007, there is of course no case law on the provisions concerning refusals. However, as discussed below, there is a very strong likelihood that it will limit the case that a municipality can put before the Ontario Municipal Board.
In the past, where Council has refused a zoning or official plan amendment, the case brought by Legal Services to the Board has not been limited to the matters that were discussed at Committee and Council. Rather, it was open to legal counsel for the City to review the record and the development application to determine the full range of grounds as to why the Board should not on appeal approve the application.
With the requirement that written reasons for a refusal be provided, it can be anticipated that this practice will change. This is especially likely given that applicants are now limited in the information that they can present to the Ontario Municipal Board. Applicants are now restricted from presenting to the Board studies that have not been considered by Council. Applicants will undoubtedly argue that the municipality’s case should be limited to those reasons that were identified at the time of the Notice of Refusal.
As a result, it is vital that where a zoning or official plan amendment request is refused, that attention be focused on the rationale for the refusal. The reasons may find their basis in the planning policy documents applicable to the application, which pursuant to Bill 51 include not only the Provincial Policy Statement and the Official Plan, but also any policy document endorsed by Council. Or the reasons may find their basis in background studies (transportation, servicing, environmental etc.) done either by the City, the applicant or others that are relevant to the application. Finally, the reasons may find their basis in the oral and/or written submissions made to Committee and Council.
In order to ensure that Legal Counsel are not limited in their ability to bring a full case before the Board, it may be thought that the best means of proceeding is to simply use a “boiler plate” approach by which the full range of potential planning issues are enumerated in every refusal. It is not recommended that this approach be taken. If Council enumerates every possible planning ground, then the applicant will find it necessary to prepare a defence on all those grounds for the Board. Where the City does not ultimately have a case to make to the Board on particular issues, it can be expected that the applicant will seek its costs for dealing with those issues, even if the City succeeds on having the appeal dismissed by the Board.
Therefore before a reason is included in the rational for refusing an application, that reason should be clearly relevant to the development application before Committee or Council and there should be some level of plausibility and merit with respect to it.
Where there is a staff recommendation for refusal with which Committee and Council concur, it will still be necessary for Members of Committee and Council to turn their attention to the reasons for the refusal. If there are reasons additional to those given by staff as to why Members of Committee or Council believe an application should be refused, then it would be appropriate for a motion to be introduced to amend the recommendation to provide for those additional reasons.
Where a refusal is recommended by Committee, either through a staff recommendation or as a result of a motion adopted by Committee, Legal Services will review the item in order to determine if the Branch can be assistance in refining the wording. If a motion for refusal is to be introduced at Council, Legal Services will be pleased to assist with the drafting of the motion.
ONTARIO MUNICIPAL BOARD RECORD
With each by-law that is appealed to the Ontario Municipal Board, staff are required to prepare a record to be sent to the Board in accordance with the regulations under the Planning Act. This record consists of most of the public record with respect to the by-law, essentially only excluding any background studies. The regulations also require that staff provide an opinion as to whether a zoning by-law or official plan amendment is consistent with the Provincial Policy Statement, and in the case of a zoning by-law, whether it conforms to the Official Plan.
Where a zoning by-law or official plan amendment is adopted contrary to the recommendation of staff, as a result of the obligation of staff to provide an opinion to the Ontario Municipal Board on consistent/conformity, there will be instances where the provision of this information in the record will not be supportive of Council’s position, e.g. notwithstanding the adoption of a zoning by-law by Council, staff will be advising the Board that in their view it does not conform to the Official Plan or is inconsistent with the Provincial Policy Statement. Notwithstanding that staff will have provided this opinion to the Board, such is not an impediment to Legal Services seeking to retain an outside planner whose view on consistency and/or conformity is different than that of staff. However, as the record must be forwarded to the Board within 15 days of the end of the appeal period, there will not be sufficient time to retain a planner who could certify consistency/conformity.
OPENING STATEMENT AT COMMITTEE
The Chairs of Agriculture and Rural Affairs Committee and Planning and Environment Committee open the meeting with a warning that the failure to make oral or written submissions could lead to the dismissal of an appeal to the Ontario Municipal Board. Prior to the enactment of Bill 51, a party was entitled to bring a motion to the Board to seek to dismissal an appeal if the appellant had not made oral or written submissions prior to the adoption of the zoning by-law or official plan amendment.
The wording of the Planning Act has been modified to provide that, other than in the case of the applicant, if a person does not make oral or written submissions, that person is not even entitled to appeal. The Act has been further amended to require that this fact be made known to those present at the public meeting.
As a result, until such time as all pre-2007 applications have been processed, this will result in the need to make two statements at Committee. For the pre-2007 applications, the statement used today can continue to be utilized. For any applications submitted on or after 1 January 2007-03-12, the following statement would be appropriate:
For the zoning by-law and official plan
amendments listed as Items A, B, C etc on today’s agenda, only those who make
oral submissions today or written submissions before the amendment is adopted
may appeal the matter to the Ontario Municipal Board. In addition, the applicant may appeal the matter to the Ontario
Municipal Board if Council does not adopt an amendment within 120 days for
zoning and 180 days for an official plan amendment of receipt of the application.
The agenda for Committee should also indicate whether a matter is a pre-January 1, 2007 or post-January 1, 2007 and the statement that applies to each.
CONSULTATION
This memo relates to the process of Committee and Council and therefore public consultation was not undertaken.
FINANCIAL IMPLICATIONS
The changes discussed in this memo do not necessarily lead to extra costs by the City. However, as noted above, if broad reasons were given for refusal, which reasons could not be substantiated at the Board, there would be the possibility of costs awards against the City.
SUPPORTING DOCUMENTATION
DISPOSITION
Upon request by Members of Council, Legal Services will assist in the drafting of any motion with respect to a refusal of an application.