BUILDING DURHAM

Report 2022-COW-33: Implications of Bill 23 on the Region of Durham was brought to the Region of Durham’s Committee of the Whole on December 14, where it was passed.

The report was then brought to council on December 21, where it was also passed.

The report identified key concerns of the Region, which include:

• Removing Regional Council’s role as an approval authority in land use planning decisions, and the Regional Official Plan as the guiding document for integrating land use, infrastructure and financial planning; or the ability to act as an approval authority for major planning decisions with Regional implications;
• Reducing development charge funding and other development financing necessary to pay for the infrastructure required to support significant growth of new housing;
• Removing the ability to collect development charges to support the delivery of critical assisted housing for vulnerable populations;
• Requiring York and Durham Region to build capacity in the York Durham Sewage System (YDSS) and the Duffin Creek Water Pollution Control Plant to service development known as Upper York (Aurora, East Gwillimbury, Newmarket); and
• Servicing impacts of additional unplanned densification.

Conclusions of the report include:

• Bill 23 has significant impacts to planning processes and to the Region’s ability to fund infrastructure related to growth.  There remain many unknowns about how Bill 23 will affect coordination between Regional and Municipal and local infrastructure planning, and the delivery of Regional capital projects such as growth-related road projects as certain aspects of the Bill still need to be defined.
• The Region submitted staff-level feedback on Bill 23 to the province through a letter and direct comment to the ERO postings.  Council endorsement of this feedback is being sought with a further recommendation that Regional Council call on the province to amend the Act to address the unintended and financially harmful consequences noted in this report.  As enacted, it remains doubtful if this legislation will result in more homes being built faster.  Builders will typically charge whatever the market will bear for a new home, regardless of any financial breaks they may receive, so the impact of this legislation on affordability is similarly questionable.  The focus of this legislation is on supply, but more emphases could be made on demand to address whether the right types of units will be built to accommodate the needs of the current and future population.
• It is important that the Region’s taxpayers understand the impacts of Bill 23.  Recent public comments by the province imply that there is either current capacity to absorb these costs or that the costs could be borne by the additional assessment revenue stream from the new homes.  That would have the unfortunate result of not leaving assessment growth capacity for the operating impacts of that growth such as paramedics, policing, road maintenance as well as all other Regional services impacted by population service levels.  An information campaign will support accountability to property taxpayers and ratepayers about potential increases in tax increases and fees, and impacts on the delivery of Regional infrastructure.

The Town of Ajax hosted a General Government Committee meeting on December 12, 2022, which was followed immediately after by their council meeting.

The Committee, then Council, passed Report 2022-PDS-29: Bill 23: More Homes Built Faster Act, 2022 Town of Ajax Comments. 

Key comments from the report include:

• The Town does not support amendments that remove a funding source for land acquisition and studies for DC projects.  Based on the current DC Background Study, this would impact $14.7 million in planned growth-related studies and land costs.
• The Town does not support discounting new DCs.  After examining the previous 5 years of DC collections, the discounting of DCs would have resulted in $4.6 million less DC collections.
• The known impact to the Town would be approximately $1.9M annually, which equates to an annual tax levy increase of 2.5%.  This figure does not include anticipated funding loss from the exclusions for attainable/affordable housing, the extension of historical service level from 10 years to 15 years, the discount on purpose-built rentals, and amendments to Parkland Dedication and CBC calculation and exemptions.
• The Town does not support the exemption for ‘attainable’ housing units from paying DCs, Parkland Dedication and CBCs as the province has not identified what an ‘attainable’ unit is.
• The Town does not support extending the timeframe for calculating the historical service level from 10 to 15 years, as the historical level of surface would decrease the calculated cap, thereby further reducing the charge, and would not be reflective of the needs of the community.
• The Town does not support amendments to Section 42 of the Planning Act related to Parkland Dedication, as it will have consequential impacts on parkland within communities across Ontario, especially in high density communities.
• The Province recently required municipalities to update parkland dedication by-laws by September 18, 2022, many of which have already been appealed by the development industry.  Poor coordination of legislative changes is unnecessarily costing municipalities significant financial resources.
• The Town does not support the amendment that prevents Conservation Authorities from providing non-mandatory programs and services related to development application review.  Conservation Authorities provide informative and cost-effective services related to environmental management, ecology, habitat restoration, species at risk, and water quality, watershed planning, among many other matters.  This will require lower-tier municipalities to take on this function and will substantially increase development application costs.  The ability for municipalities to enter into service agreements should be implemented.
• The Town does not support the amendment to the definition of Headwater Drainage Feature (HDF) as HDFs are integral to watershed health and play a critical role in flood control, source water conveyance, infiltration, water quality, and improved habitat quality.
• The Town has concerns with the Region’s OP being transferred to the Town as servicing and transportation infrastructure planning is inherently tied to growth management and could result in construction delays and higher costs for infrastructure.
• Amendments to Section 41 (Site Plan Control) should be repealed.
• The Town does not support limiting Inclusionary Zoning units to 5%.

The Town of Whitby hosted a special council meeting in late November to discuss the potential impacts of Bill 23.  The meeting included a presentation from Roger Saunders, Commissioner of Planning and Development, that focused on municipal planning in Ontario.  In addition to explaining how planning works, he also detailed the current and expected growth in Whitby, as well as current and approved proposals pending or under construction.

A second presentation was made by Lori Tesolin, Supervisor of Policy and Heritage and Principal Planner, and Jennifer Hess, Manager of Development Financing and Long Term Financial Planning that focused on providing an overview of proposed changes included in Bill 23.

Both presentations can be viewed here.

Council then approved report PDD-65-22: Bill 23, More Homes Built Fast Act, 2022.  Staff outlined their concerns in the report, which included:

• Removing planning authority from the Region will increase the burden on lower-tier municipal staff and will result in uncoordinated planning for critical infrastructure that crosses local municipal boundaries, as well as uncoordinated long term planning for intensification, population and employment growth.
• Allowing up to three units per lot will cause safety issues if units are not appropriate for the building/lot size; will cause or exacerbate on-street parking issues and traffic impacts; increases burden on municipal by-law staff to enforce compliance.
• With affordable and attainable housing, demand on infrastructure such as parks, rec centres, libraries, fire services, etc. will increase.  An increase in property taxes will be needed to maintain service levels.
• Changes to site plan control will prevent the municipality from incorporating sustainable design practices; limits the ability of staff to work with developers to create good urban design and pedestrian friendly environments in new development.
• By removing third-party appeals to the OLT, it limits residents and neighbouring landowners from participating in the appeals process; leaving the Town with the burden of being the only party able to represent the public interest, potentially resulting in the Town participating in more Tribunals appeals.
• Parkland dedication changes will lead to “have” and “have-not” communities with respect to availability of park space; developers can offer land that the Town considers unacceptable; accepting encumbered parkland presents significant risks to the Town; spending or allocating 60% of funds each year may not be practical for the Town.
• In regards to DC changes, some of the cost of infrastructure will have to be passed on to taxpayers; may result in delays of delivery of infrastructure; cost of studies and land required for new roads and facilities to support population growth will need to be fully paid by existing taxpayers; could result in inefficient servicing, further limiting the supply of serviced land.
• Changes to the OLT – parties that bring forward appeals in good faith should not be penalized because they are not successful, discourages public participation in the appeals process.
• Ontario Heritage Act – increases burden on staff to review every two years; overall reduces ability to protect properties.
• Conservation Authorities – their expertise helps protect sensitive lands; Town does not have in-house experts.

At the December 12, 2022 council meeting, Clarington Council passed report PDS-054-22, which included key comments and concerns on Bill 23.

Some of those comments included:

• That Bill 23 may not achieve its goals to increase housing supply, but will remove key partnerships and areas of expertise and assessment, as well as eliminate quality control checks and balances built into the planning and development approvals process that are designed to ensure growth and development takes place in an environmentally respectful and socially responsible way.
• Staff has concerns about the removal of urban landscape from the scope of site plan approval.
• Staff want the province to amend the legislation to maintain the regional planning role for the purposes of coordinating long-range land use planning and infrastructure.
• Concerns that requiring municipality to accept encumbered lands for parks purposes will detrimentally impact the municipality’s ability to deliver access to quality, safe and functional park spaces for residents.
• Requests that the province not change parkland dedication ratios.
• Requests that financial shortfalls from the changes to development charges be made up for from funding from the province.
• Concerns that changes to conservation authorities will add more work for municipal staff.

At the meeting, council added the following comments:

• The proposed changes in Bill 23 would significantly reduce municipal collections from developers to pay for and deliver infrastructure to support population growth (e.g. development charges for road improvements, stormwater infrastructure, parks, recreational facilities, libraries, etc.);
• The Municipality of Clarington supports the principle that growth should pay for growth;
• Staff have reviewed the proposed changes to Development Charges, Parkland Dedication, and Community Benefit Charges and have quantified the anticipated financial impact on Development Charges over a 10-year period to be a reduction of approximately $18.3M, equating to $1.8M per year or an annual tax levy increase of 2.6% and which does not include funding shortfalls related to other exclusions, discounts, Parkland Dedication and Community Benefit Charges;
• With the proposed reduction in municipal revenues from development charges (DCs), community benefit charges and cash-in-lieu of parkland dedication fees collected from developers, a larger burden of the growth-related infrastructure costs will shift to property taxes/existing residences and businesses;
• While Bill 23 may provide for more housing units, significantly reducing land use and infrastructure planning oversight of upper and lower tier municipalities, as well as conservation authorities, has the potential to cause public safety impacts (e.g. traffic, parking, flooding issues, water quality, air quality), as well as the loss of natural heritage resources, parkland, and overall good land use planning practices that would otherwise provide for a mix of housing options in sustainable, livable communities;
• By limiting third-party appeal rights, Bill 23 may result in faster approval processes, but limits public participation in a process that has long-term impacts on the local community;
• It also limits the ability of neighbours to bring forward concerns about a development that may directly affect the use of their property;
• Bill 23 will require that Heritage registers be reviewed and decisions made whether listed properties are to be designated, and if not, then removed from the register within 2 years; once removed, those properties cannot be added back to the Register for another 5 years;
• Bill 23 provides no mechanisms to ensure, and it is unclear how, any potential savings from the proposed changes would be passed on to the homebuyer to ensure long-term affordability;
• An increase in supply does not necessarily mean an increase in affordability;
• Bill 23 will create a significant burden on municipal staff resources to implement the proposed changes, at a time when many municipalities are dealing with increased (financial and staffing) constraints;

Council also added that provincial intervention in the form of settlement area boundary expansions, Minister’s Zoning Orders and changes to the Greenbelt is not required; nor is it supported; and that Clarington is concerned about the impacts that the More Homes Built Faster Act, 2022 (Bill 23) could have for the people of Clarington, including seniors and those on fixed income who cannot afford property tax increases that could result from the loss of development charges; and that community services, building design, park space, sprawl and unplanned density are also a concern.

Council has directed staff to work with AMO, Ontario Big City Mayors (OBCM) and Durham Region to mitigate the impacts of Bill 23 on the quality of life in the community.

A copy of the report and these comments be sent to the provincial government, including the Premier and specific MPPs, as well as neighbouring municipalities, the Region and AMO.

The provincial government’s newest housing legislation, the More Homes Built Faster Act has passed and brings forward numerous important changes that will be beneficial for OHBA members. Some measures come into force immediately, others at a future date. See the key highlights below and the breakdown document for more details.

• Up to three residential units are permitted “as of right” on most land zoned for one home in residential areas without needing a municipal by-law amendment. Depending on the property in question, these three units could all be within the existing residential structure or could take the form of a residence with an in-law or basement suite and a laneway or garden home.

• Regulatory changes to provide certainty regarding inclusionary zoning rules, with a maximum 25-year affordability period, a five per cent cap on the number of inclusionary zoning units, and a standardized approach to determining the price or rent of an affordable unit under an inclusionary zoning program.

• Affordable and inclusionary zoning units, select attainable housing units, and non-profit housing developments are exempt from municipal development charges, parkland dedication levies and community benefits charges.

o Five-year phase-in of development charge rate increases, beginning with a 20% reduction in the first year, with the reduction decreasing by 5% each year until year five when the full new rate applies. This is proposed to apply to all new development charge by-laws passed since January 1, 2022.

o Discount remains unchanged, however, further transitional matters now provided. Rental housing discounts do not apply for a development in which a building permit was issued prior to November 28, 2022, unless a Development Charges Agreement has been entered into. If there is a Development Charges Agreement, the rental housing discounts will apply to all development charges payable after November 27, 2022.

o Development charge reductions now based on development charge by-laws passed on or after Jan 1, 2022.

o Development charge by-laws will expire every 10 years, instead of every five years. By-laws can still be updated any time.

o Cap the interest paid on phased DCs for rental, institutional and non-profit housing to prime plus 1%.

• Changes to the Planning Act removed site plan control requirements for most projects with fewer than 10 residential units (with limited exceptions).

• No removal of third-party appeal rights of official plans, official plan amendments, or zoning by-laws.

o Third-party appeal rights of consent and minor variance applications significantly restricted to certain public bodies. Current third-party appeals are dismissed unless they qualify for limited transition.

• The maximum amount of land that can be conveyed or paid for as cash in lieu is capped at 10% of the land or its value for sites under 5 ha, and 15 % for sites greater than 5 ha.

• Maximum alternative dedication rate reduced to 1 ha/600 units for land and 1 ha/1000 units for cash in lieu.
• Parkland rates frozen as of the date that a zoning by-law or site plan application is filed. Freeze remains in effect for two years following approval. If no building permits are pulled in that time, the rate in place at the time the building permit is pulled would apply.

• Maximum CBC payable to be based only on the value of land proposed for new development, not the entire parcel that may have existing development.

• Maximum CBC to be discounted by 4% of land value divided by the existing building size, as a proportion to total building square footage.

• Upper tier municipalities will be removed from the Planning Act approval process for both lower tier official plans and amendments and plans of subdivision.

• Public meetings no longer will be required for applications for approval of a draft plan of subdivision.
• Developments of up to 10 residential units will be exempted from site plan control.
• Architectural details and landscape design aesthetics will be removed from the scope of site plan control.
• Minister to be given the authority to enact regulations related to the replacement of rental housing when it is proposed to be demolished or converted as part of a proposed development.

• Municipalities will not be permitted to issue a notice of intention to designate a property under Part IV of the Ontario Heritage Act unless the property is already on the heritage register when the current 90-day requirement for Planning Act applications is triggered.

Please also see the Bill 23 Key Changes Breakdown.

The City of Pickering is undergoing their budget process to plan for the service, program an infrastructure needs of the community.

Pickering is currently in its first phase of this process, and has provided their Draft 2023 User Fees for review.  Building & Planning fees can be found on pages 5 - 11, Development - 30 - 32, and Engineering on page 33.  Feedback can be provided to Stacey or directly to the City of Pickering through their survey.

The OHBA Job Ready program matches job seekers with construction industry employers offering six-month job placements and on-the-job training, in addition to wrap-around support services for success.   

In the program’s first two years, over 300 job seekers have been trained and matched with 100+ employers across the province with 96% retention rate for employees placed on site. 

The program would like to get to the root of how to bring more workers from diverse backgrounds into the industry and are examining barriers or challenges to entry. 

Please share your input and opinions on hiring challenges and solutions via this four-minute survey to help improve the Job Ready program.

Thanks in advance for your participation!

Please click here to enter the survey.

OHBA Members should be aware of the result of legal proceedings before the Ontario Court of Appeal concerning the use of Interim Control By-Laws (ICBLs) by municipal governments. We are pleased to report that the appellant was successful in appealing the municipality’s use of an ICBL in an inappropriate way and obtained a decision that builders and developers can rely on in any future disputes with municipalities regarding ICBLs. A brief summary of this decision and its potential implications for Ontario builders is set out below.

By way of brief background regarding ICBLs: 

• ICBLs are harsh planning tools that allow a municipality to effectively freeze development for up to 1 year, while they undertake a land use review or study;
• An ICBL can be extended only once and for no more than one year;
• An ICBL can only be appealed by a landowner after the first year; and
• Once an ICBL expires, a second ICBL cannot be passed for a further 3-years (the “3-year cooling off period”).

In the case of Hummel Properties Inc., the municipality enacted a second ICBL on the subject lands in contravention of the 3-year cooling off period. The lower court found that the municipality was acting within its powers, concluding that two ICBLs could apply to the same property if the ICBLs targeted different purposes. The Association intervened to argue that this was an improper expansion of the ICBL power. External legal counsel at Lenczner Slaght successfully argued that the lower court’s decision was wrong. A more detailed summary of the decision is available on their website here.

The decision has some very positive takeaways for our members: 

1. This decision should discourage municipalities from abusing the ICBL power to delay development. The Court of Appeal confirmed that there must be strict compliance with the 3-year cooling off period. There were conflicting cases about whether a second ICBL could apply to the same lands within the 3-year cooling off period if it was enacted for a different purpose. The Court of Appeal’s decision puts that debate to bed – conclusively determining that a second ICBL cannot be enacted during the 3-year cooling off period even if it is for different purposes. If an ICBL is applied to your lands, take note of when the 3-year cooling off period expires and be sure to challenge any subsequent use of ICBLs if it falls within that time period.
2. ICBLs enacted pursuant to S. 38 of the Planning Act must relate to “land use”. If an ICBL is applied to your land, be sure to carefully review the contents to ensure compliance with the legislative provisions. In the Hummel case, the ICBL prohibited subdivision, which the Court of Appeal concluded was not a “land use” under the Planning Act so the ICBL was illegal.
3. There must be strict compliance with the process for passing the ICBL. The Hummel decision also confirms that municipalities must be transparent when passing ICBLs. If an ICBL is applied to your lands and there is insufficient notice or transparency regarding meetings, the ICBL may be illegal.
4. Limitations on Municipal Powers. The Court of Appeal’s decision confirms that Courts must hold municipalities to strict compliance with statutory requirements when it comes to the exercise of powers that affect property rights. If an ICBL is applied to your land, review it with your lawyers to confirm that it is in strict compliance with all applicable legislation.

For more details or information please contact Andrew Parley and Amy Sherrard at Lenczner Slaght.

As per Town of Whitby Bylaw #7748-21, development charge rates will be indexed on February 1, 2023.  Based on the 2022 (third quarter) Statistics Canada Non-Residential Construction Price Index for Toronto, development charge rates are set to increase by 15.6% on February 1, 2023.  

The new Town of Whitby development charge rates effective February 1, 2023 to January 31, 2024 are:

Residential Development Type (per unit)	Whitby Posted DC Rate - February 1, 2023 - January 31, 2024
Category A - Single/Semi	$46,204.79
Category B - Large Townhome	$35,214.47
Category C - Small Townhome/Large Apartment	$19,397.89
Category D - Small Apartment	$14,823.20
Category E - Special Care/Special Needs	$13,177.04

The full notice from the Town of Whitby can be found here.

Oshawa's Development Services Department will provide a report to the City's Development Services Committee on November 28, 2022 regarding several matters related to planning application processes in Oshawa.  One element of this report will be about changes to planning application fees.   

A draft amendment to Schedule "D" (Planning Application Fees) of the City's General Fees and Charges Bylaw as amended has been sent out ahead of the report.

Typically on January 1 of every year, planning application fees increase by 3% automatically.  The report will consider fee increases greater than 3% for certain application types effective January 1, 2023.  Staff have said that planning applications have grown in complexity and many of the City's planning fees are well below other lakeshore municipalities in Durham.

According to City staff, further explanation regarding the fee changes will be contained in the report.  The report also addresses certain changes to planning application processes in Oshawa as a result of Bill 109.  Access to the report will be available starting Thursday, November 24, 2022 here.

The report and recommendations are anticipated to be considered by council on December 12, 2022.

If you have any comments or concerns, please contact Stacey.