This fall, the City of Toronto will begin its mandatory 5 year review and update of the City of Toronto Official Plan (the “Official Plan”). This newsletter update will provide stakeholders with information regarding statutory requirements for this process, information regarding timing and the scope of the review and update, and, finally, rights of appeal regarding employment lands policies will be discussed.
What Does the Planning Act Require?
Under the Planning Act, the City is required to begin its Official Plan update process no later than the fifth anniversary of the coming into effect of its Official Plan. Although the Official Plan was adopted by City Council in 2002, appeals of the Official Plan to the Ontario Municipal Board meant the Official Plan was not in effect until 2006. Some policies are still the subject of appeals but the majority of the Official Plan is now in effect by order of the Board.
Generally speaking, the City has broad discretion to examine and revise any aspect of its Official Plan, however, under the Planning Act certain matters must be addressed. Pursuant to subsection 26(1) of the Planning Act, the City must revise its Official Plan to ensure that:
- It conforms with provincial plans, including the Provincial Growth Plan for the Greater Golden Horseshoe (the “Growth Plan”), the Rouge Plan, the Green Belt Plan and Metrolinx’ Regional Transportation Plan, or does not conflict with them, as the case may be;
- It has regard to matters of provincial interest under the Planning Act;
- It is consistent with the Provincial Policy Statement 2005; and
- With respect to existing policies regarding areas of employment, including the designation of areas of employment and policies dealing with the removal of land from areas of employment, those policies are “confirmed or amended” (collectively referred to as the “conformity requirements”).
“Revisions” are amendments which result in conformity with a provincial plan and satisfy both the “conformity requirements” and procedural requirements of a 5 year review and update process.
The 5 year review and update process comes with its own public consultation requirements. Before any “revisions” may be made, the Planning Act requires City Council to hold a special public meeting and, pursuant to subsection 26(5) of the Planning Act, City Council “shall have regard to any written submissions about what revisions may be required and shall give any person who attends the special meeting an opportunity to be heard on that subject”.
City Planning Staff have their work cut out for them; the expectation is City Council will vote on amendment recommendations by the end of 2012.
Scope of 5 Year Review and Update Process
A City Planning Staff Report delivered to the Planning and Growth Management Committee (the “PGMC”) earlier this year identified key implementation goals, policies of the Official Plan which require revisions, and indicated that a concurrent study of employment lands conversion issues would be carried out.
As a part of the 5 year review and update process, City Council has directed City Planning Staff to use this opportunity to implement key elements of the City’s Avenues and Mid‐rise Buildings Study, elements of the City’s Tower Renewal Program, policies that encourage the development of residential units for households with children in the downtown, and elements of the City’s Climate Change Plan and Sustainable Energy Program. PGMC has also requested that mixed use developments require a minimum of mix of various types of development and the rezoning of community plazas or retail centres to require the retention of a similar amount and type of retail and commercial space on site.
Other planned revisions of note include rewriting existing policies regarding the preservation of heritage properties to reflect powers the City has under the Ontario Heritage Act which was passed into law in 2005.
Finally, City Planning Staff will also conduct a Municipal Comprehensive Review (“MCR”) concurrently with the 5 year review and update process. The Growth Plan states the City can permit the conversion of employment lands to non‐employment uses only through an MCR and where it can be shown the City will meet the Province’s employment forecasts, there is need for the conversion, the conversion will not adversely affect the viability of an Official employment area, infrastructure is in place to support and conversion and the lands in question are not needed in the long‐term for employment uses.
Employment Lands and Appeals to the Ontario Municipal Board
The City’s decision to proceed with a concurrent MCR is no doubt related to its review of employment lands policies in the Official Plan. Official Plan policies 4.6.3 and 4.6.4 deal with the “removal of land” from areas of employment for the purposes of large‐scale and stand‐alone retail stores by way of amendments to the zoning bylaw and the Official Plan. As a part of the 5 year review and update process, the City Council must “amend or confirm” these existing policies. If City Council amends those policies that decision provides stakeholders with an opportunity to file an appeal where no right of appeal would otherwise lie.
For example, a landowner may consider a privately‐initiated development proposal on lands currently identified in the Official Plan as an Employment Area, however, pursuing that proposal by filing an Official Plan amendment application comes with considerable risk; the Planning Act does not provide an appeal right from a refusal decision of council in those cases. Municipalities have not been shy to refuse these types of privately‐initiated applications on the basis that the existing stock of employment lands is required to meet growth targets under the Growth Plan.
The 5 year update process therefore provides a window of opportunity to bring conversion of employment lands matters to the Board that otherwise would be statute‐barred. If a landowner disagrees with City Council’s amendments to policies 4.6.3 and/or 4.6.4 or such other employment policies, the landowner may appeal those amendments provided they made oral submissions at a public meeting or written submissions to council before the amendment was adopted. An appeal may challenge any aspect of the amendment made by City Council and may include the presentation of policy alternatives for areas of employment. Those alternatives may include the merits behind an otherwise appeal‐barred privately‐initiated amendment about which evidence can be submitted to the Board and final arguments made on those submissions. Appellants should take note the City’s MCR will likely provide it with ample policy studies and rationale against the conversion of these lands but the 5 year review and update process looks to be the only opportunity over the next 5 years to argue the merits of those studies before the Board.