Bill 109 makes community input to development proposals harder

Development in Ontario is going to be made easier - and elected officials have less say - if amendments to the Planning Act are approved by Doug Ford’s government. Queen’s Park has been moving at breakneck speed to implement some of the recommendations that arose from Ontario Housing Affordability Task Force’s recent report. Likely the most impactful in Ottawa will be the removal of Council’s authority over site plan approvals, and new timelines for the approval of site plans, re-zonings and Official Plan amendments with hefty financial penalties for municipalities that don’t crank out the decisions quickly enough.

Bill 109, the More Homes for Everyone Act is being railroaded through Queen’s Park as a response to developer demands to take the reins off building new homes. The Task Force was charged with developing recommendations to make more market-rate housing available in the face of skyrocketing demand and home prices. Young residents in particular have been hard-pressed to find affordable rental and purchased housing in the current market. Its suggestions were broad-ranging, and the task force made headlines with its urging to end single-detached-only zoning (R1) and to allow four-storey multi-unit dwellings on any street.

Those recommendations weren’t pursued – for now – but Bill 109 has made moves to cut red tape.

Council control of site plans to be removed

Instead, the key focus of attention for many councillors is likely the proposal to eliminate Council control over the approval of proposed site plans. I think residents are generally aware that typically for developments in our ward, the developer first seeks a re-zoning, and possibly an Official Plan amendment from Council. Once that passes, the builder submits more detailed, technical drawings to the City to obtain site plan approval. (It is always possible that a builder will also propose something that fits within the zoning, in which case the first view the public gets of it will be that site plan).

Site plan approvals are delegated first to staff. These are technical processes looking at considerations such as the width of drive aisles, some of the materials proposed to be used, the location of things like garbage rooms, and landscaping plans. Some site plans require significant public consultation while less complex approvals require less, or even none. In general, I’ve tried to ensure that even on the less complicated ones there is some level of at least community association engagement.

Once site plan approval is provided, the builder then moves on to the various permits they need to begin demolition or construction.

The exercise of that delegated staff authority to approve site plans can only proceed so long as the ward councillor agrees to it. If the councillor wishes, they can “lift” that delegation and force a site plan to a Planning Committee vote. It’s important to note that in Ottawa this is rarely done. Because the parameters under scrutiny are technical in nature, councillors will tend to vote to approve site plans based on staff recommendations. The site plan process is not a second kick at the can to oppose an unpopular development.

The consultation process for site plans, though, and the possibility that a councillor will lift delegated authority, can and does often result in better projects through public engagement. A 26-storey building will come out the other side still a 26-storey building, but its landscaping plan or the location of an exhaust vent or the logistics of waste handling will be improved because of reasonable requests by residents.

Two of the requests I make of most projects during the site plan review and consultation is for the developer to make a commitment to hold a pre-construction meeting with neighbours, and to fund a crossing guard in the vicinity of the project during excavation (if that overlaps with the school year). As conditions of site plan approval, they have more teeth than if negotiated as a side deal.

By removing councillor concurrence from the site plan process, the changes proposed by Queen’s Park will diminish elected officials’ ability to achieve small but meaningful improvements in how projects relate to neighbours and the street. Public input will not be treated with the same level of care and attention by the developer, and I believe the end result will be less thoughtful development with greater potential to have drainage problems, more neighbour conflicts because of design issues, and poorer landscape plans.

Hefty fees for late decisions

Likely to have an even bigger impact, though, are the financial penalties that can now be applied against municipalities that fail to meet provincially-imposed timelines for development approvals.  While the approval of site plan applications would be extended from 30 days to 60 days, most current approvals take longer than that. The average application takes 196 days to approve. Under the new rules, applications approved in the 60-day timeframe would have no right to recover any of their application fees. However, developers could get 50% of their fees refunded if the City takes 60-90 days, 75% from 91-120 days, or 100% refund if approvals take more than 120 days.

For zoning by-law amendments, the City would have 90 days to render a decision (which could include Council rejection) or 120 days for an Official Plan amendment (OPA), as they do now. If a decision  takes 91-150 days (or 121-180 days for an OPA), the developer could get a 50% refund on their fees. A 75% refund would be in order for a zoning by-law decision made between 151-210 days (181-240 for an OPA), or a full refund if longer than 210 days (240 for an OPA). To put that in context, the average current time from an application to Council approval is 178 days for zoning by-law amendments.

To be clear, I don’t believe that the City should be rushing zoning and site plan approvals. The extra time for site plans described above is welcome, but 60 days is still a very short time-frame.

I think Kitchissippi residents by now are very familiar with the process. When an application is made to re-zone a property, I fairly quickly hold a public open house and start advocating with staff, the application is circulated to all the relevant city departments, and city staff take time to conduct their technical reviews. Often, the City has concerns, even strong concerns with the application. They present sometimes lengthy lists of changes that they consider are necessary before the planning department can make a recommendation to Council in support of the application. Frequently, this means significant re-working of the proposal. When those revised plans are submitted, they’re made public and the cycle of review by City staff and the community is repeated. Sometimes community members retain legal counsel with planning expertise to engage with the City to either oppose it outright or find common, more acceptable ground.

It takes time. Many of these are developments that will change our community in significant ways. The result of this engagement is frequently better projects that have been more thoughtfully reviewed by all parties. Penalties for taking a reasonable period of time to issue decisions can only diminish residents’ ability to participate meaningfully in these processes.

The consequence of enforcing extremely short timelines will be pressure on the department either to recommend approval of projects that could be much better, or else to recommend refusals that put the developments into the hands of the Ontario Land Tribunal. It will certainly reduce the amount of time that residents have to make a meaningful contribution to the consultation. The City won’t lose its application fees, but the cost and stress to community and developers alike will leave both wishing the process could have led to a more organic conclusion at the City.

I absolutely recognize that in development, time is money. Developers purchase land and have carrying costs from the moment they do. Those get passed on to homebuyers. The cost of re-working plans in response to City or community concerns is also a cost to meaningful zoning processes. But there has to be a balance between quickly approved race-to-the-bottom design and additional cost. No one wants to live in a city in which no pressure has been applied to developers to do better with design and interface with the community. Over time, that can only make Ottawa a less prosperous place.

Bill 109 contains multiple provisions, and I’m attaching here a copy of City staff’s summary of those; click on the .pdf below. While few observers expect any movement on the bill – it will pass – I would still welcome your insights and thoughts on where we go from here.