22 June 2011 / le 22 juin 2011
Submitted by/Soumis par :
M. Rick O’Connor, City
Clerk and Solicitor/Greffier et Chef du contentieux
(613) 580-2424 x21215, rick.oconnor@ottawa.ca
Contact Person/Personne ressource :
Tim Marc, Senior Legal
Counsel/Conseiller juridique principal
(613) 580-2424 x21444,
timothy.marc@ottawa.ca
SUBJECT:
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OBJET :
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That the Planning Committee
receive this report for information.
Que le Comité de l'urbanisme prenne
connaissance du présent rapport.
As Members of Council have been advised, the decision of the Ontario Municipal Board (the “Board”) regarding the Urban Boundary Phase 1 hearing was released on June 3rd, 2011. Pursuant to the Council direction of May 26th, 2010, that staff provide an information report when the City has not been successful before the Board, this report is being submitted to Committee.
The Board decision can be divided into three parts:
1) The appropriate time period for the residential housing supply;
2) The calculation of the land requirements for the determined time period;
3) Other policy issues that arose in the hearing.
1)
Board’s Determination of Appropriate Time Period
In its June 10th, 2009 decision respecting Official Plan Amendment No. 76 (OPA 76), City Council modified the amendment to provide that, rather than having a land supply for all uses to 2031 (being 850 gross hectares of land), the Official Plan would provide for a residential urban land supply for at least 15 years and a land supply for all other land uses of at least 20 years. This resulted in 230 gross ha of land being added to the urban area. Staff indicated that they could support this change as the Provincial Policy Statement requires a land supply for residential purposes of between 15 and 20 years.
The question of the appropriate time frame for the residential urban land supply was extensively reviewed in the Board’s decision. Six pages of the 23 page decision are devoted to a summary of the history of the process that led to OPA 76.
This summary commenced with the initial report concerning the scope of the Official Plan review, considered and approved by Council on May 23rd, 2007. This report provided a general outline of the Official Plan Review process. Within the report it was stated:
The Official Plan review will investigate the adequacy of both employment and residential lands to around 2031.
The Board proceeds to note through its continued review of the process that the 2031 timeframe remains part of the Official Plan review through the reports that were considered by Committee and Council later in 2007, through 2008 and up to the release of the draft Official Plan modifications in February, 2009 and the public hearings in March/April and May, 2009.
The recommendation of the Joint Committee was to add 850 hectares on the basis of a timeframe to 2031 (a timeframe of 20 years) but as noted above, as supported by staff, Council reduced this to 230 hectares for a timeframe of 15 years for residential land supply.
The Board noted its statutory obligation to “have regard” for the decisions of Council. However, on pages 12-15 of the decision, the Board expressed its concerns with respect to the City’s change in the “planning” or “time horizon”:
The time horizon is a choice for the municipality. Once the choice is made everything that happens in a very complex land need and supply forecasts that follows is dependent on the timing of the forecast...
The Board must be cautious with a late attempt in the planning process to change the planning horizon in an attempt to reduce the numbers in a planning exercise so carefully followed with Council approval. Significant public consultation has followed the setting of the original planning horizon. It was chosen in part to coincide with census years and projections with opinions to propensities followed for the purpose of adjustments. However, the constant is the planning horizon selected by the planning authority...
The Board does not agree with the City argument that the planning horizon only arises at the time of the adoption by Council. This may be accurate formally, however, the planning horizon arose in early approvals of the Council in the planning process and is the most fundamental basis of the ensuring planning exercise.
As a result, the Board concluded that OPA 76 should provide for an urban residential land supply to 2031.
2)
Calculation of the Land Requirements
Approximately two-thirds of the hearing was devoted to the question of the calculated amount of land required to meet the urban residential land demand. The parties in opposition to the City at the hearing focused on the question of the calculation of land requirements to 2031 rather than 2026.
The urban land requirement is a function of the existing vacant land with the urban area as well as the forecast need for further lands through to the planning horizon, 2031 as determined above by the Board. Subsequent to the adoption of OPA 76, additional information had been gathered. By the time of the hearing, it was acknowledged by the City that, to provide an urban residential land supply to 2031, 997 gross hectares of additional urban land was required rather than the 850 hectares discussed in 2009.
The position of the appellants going into the hearing was that somewhere between 2,500 and 3,000 gross hectares should be added to the urban area. At the conclusion of the hearing, the figure of 2,500 hectares was specifically requested.
In reviewing the extensive evidence on all aspects of the calculation of the urban land requirement, the Board quoted from a passage in the 2005 Del Brookfield decision. That case stated that the decision as to urban land requirements is one of the “most fundamental planning decisions [a municipality] can make”. The Board further quotes the Del Brookfield decision where the earlier panel stated that the Board should not interfere in this decision unless it is clear that:
1) that the municipality has made a fundamental error in its assessment of its need for urban land to achieve its projected urban growth and approved development strategies, or
2) that the decision to expand or not to expand the urban boundary is at odds with the directions of the Provincial Policy Statement, or
3) that there has been a breach of the prescribed planning process afforded individuals as a matter of right.
In the end, the Board concluded that there was no fundamental error by the City in its calculation of the need for urban land. While acknowledging the value that additional evidence brought forward can have and the value of the testing of evidence that takes place at Board hearings, the Board noted that the City’s methodology and calculations had been available for review and comment throughout the process leading to the adoption of OPA 76.
Therefore, based upon the information that was available to Council when its decision was made, the Board approved the figure of 850 hectares as the appropriate amount of land to be added to the urban area.
3)
Other Policies Issues
In addition to the main question of the urban boundary, there were several associated policy issues before the Board for consideration. These issues and their determination are as follows:
A. Intensification
OPA 76 proposes to modify the Official Plan to provide targets for intensification and density. In providing a definition for intensification, the City largely follows the definition from the Provincial Policy Statement. The appellants sought to add the following words:
Notwithstanding and in addition to the units included in the definition of residential intensification above, all units located within the Central Area, Mixed Use Centre, Mainstreets and Town Centres designations on Schedule B shall be included as intensification units for the purposes of the residential intensification target as set out in Policy 5.
The Board was of the view that the proposed change was overly broad and therefore did not approve it as a modification.
During the evidence, staff advised the Board that the City’s unwritten practice is to include any new units built four years after the substantial completion of a development as intensification. The Board directed a modification to the Official Plan to incorporate this practice.
B. Intensification Linkage
The Provincial Policy Statement, Policy Section 1.1.3.6 states:
Planning authorities shall establish and implement phasing policies to ensure that specified targets for intensification and redevelopment are achieved prior to, or concurrent with, new development within designated growth areas.
In order to implement this provision, the following policy was proposed for OPA 76 (Section 2.2.1, Policy 3e):
3. Every five years, the City will undertake a comprehensive review to assess the need to designate additional urban land to meet its requirements. This assessment will consider such matters as:
e) The achievement of the intensification target as identified in Section 2.2.2, policy 5, of this Plan. An urban expansion will only be considered if the intensification target of this Plan has been met
The Provincial Policy Statement requires that the City have at all times a minimum 10 year supply of designated residential land (as Official Plan reviews take place every five years, this means a fifteen year supply at the time of the review). However, Policy 1.1.3.6. appears to say that the intensification targets are to be achieved prior to, or concurrent with, new development in the designated growth areas.
As stated in Official Plan Policy 3e) above, Provincial Policy Section 1.1.3.6 was proposed to be implemented by stating that a future urban expansion would only be considered if the intensification target had been met. The Board was of the view that the approach in Policy 3e) placed an emphasis on the word “target” in Provincial Policy Section 1.1.3.6 that was not supported by Provincial Policy Statement as a whole. The Board therefore deleted the last sentence in Official Plan Policy 3e).
In summary, there was an apparent conflict in the Provincial Policy Statement between the requirement for a minimum residential land supply and the goal of intensification. The Board resolved this conflict by concluding that greater weight should be placed on the former requirement.
C. Miscellaneous Issues
Sections 1.1 (The Roll of the Official Plan), 2.0 (Strategic Directions), 2.1 (The Challenge Ahead), 2.2 (Managing Growth), 2.2.1 (including 2.2.2 which was renumbered as part of 2.2.1) (Urban and Village Boundaries), 2.2.3 (renumbered as 2.2.2)(Managing Growth in the Urban Area) , 3.12 (Urban Expansion Study Area) and 3.13 (Developing Community (Expansion Area)) of the Official Plan, subject to modification to address the 2031 horizon year for urban residential land, were largely approved as presented to Council. The employment provisions in renumbered 2.2.2 (policies 19 and following) will be the subject of a future hearing.
POLICY RECOMMENDATIONS
The significant area in which the City was unsuccessful was the question of the time horizon for the Official Plan Review. A time frame to 2031 having been established in May 2007, the Board was of the view that to alter that period in June 2009 was inappropriate.
To preserve the fullest possible range of options to Council to the end of the Official Plan process, Council could direct staff to explore two or more horizon years throughout the process with the outcomes from those different horizon years each being carried forward at the various interim reports to Committee and Council throughout the Official Plan review. There are however concerns that would arise from doing so:
i) With two or more options being carried forward, the review would be more complex;
ii) As there would have to be analysis done for each of the options, the time and cost involved would increase;
iii) While the Board would have to have regard for whatever option was finally chosen by Council, appellants could seek to pursue the other option(s). As a decision made by Council at the end of the process, the degree of regard that the Board may have for it may be less than a decision made two years earlier that had then been subject to lengthy public consultation and comment.
The environmental aspects of the candidate parcels for addition to the Urban Area were analyzed as part of the process prior to the adoption of OPA 76.
RISK IMPLICATIONS
There are no risk implications associated with this report.
There was extensive consultation in the process that led to OPA 76. Persons who made submissions during that process were entitled to seek party status before the Ontario Municipal Board.
N/A
It was agreed by all parties to the hearing, in determining the allocation of population growth, to accept the nine per cent assignment of dwelling units and 10 per cent assignment of population growth to the rural area.
There are no technical implications associated with this report.
The final cost of the hearing, which was originally
estimated at $400,000, was $408,775 (inclusive of Legal fees, disbursements and
Planning costs). Funding was provided from the City Clerk/Solicitor Department
($328,775) and the Planning & Growth Management Department
($80,000).
N/A
The parties are to provide to the Board proposed final wording for the formal order by August 2nd, 2011. Legal Services will work with Planning and Growth Management and the parties to the hearing to provide wording that implements the Board’s decision.
A second phase of the Urban Boundary hearing is to be held to determine which lands should be added to the Urban Area. This matter is the subject of a separate report from the Planning and Growth Management Department.