Ontario's latest move to accelerate building could land cities in legal quagmire

Ontario cities worry the province changing how and when developers can apply to build outside the urban boundary will make long-term planning difficult and saddle them with more applications, more appeals and heftier costs.

Cities have become used to evaluating developer requests all at once during a once-per-decade comprehensive review.

The new provincial planning statement (PPS), set to come into effect on Sunday, will force cities to create an ad hoc alternative.

"The decision by the province to allow piecemeal applications, one-off applications has the potential to really compromise the ability for cities in Ontario to do even midterm planning," Coun. Jeff Leiper, the chair of Ottawa's planning and housing committee, said last week. 

"I foresee chaos."

Comments posted to the province's website outline similar concerns raised by other cities — and kudos from developers, who hope cities will honour the spirit of the change. 

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Cities irked by rule change

Ottawa city councillors will vote Wednesday on a proposed process for one-off urban boundary applications that will cost developers $1.8-million. 

Unlike in the City of Hamilton, the fee will not differ depending on the size of the parcel.

Those two cities are among the many that told the province not to change the well-established process, just months after Bill 185 allowed property owners to appeal urban boundary decisions for lands outside the Greenbelt. 

"The proposed approach to the expansion of settlement areas may jeopardize planned growth within existing urban areas," wrote the City of Mississauga in its submission. 

The City of London warned about the "tremendous resource need to deal with these applications and appeals" — even when developers have barely any chance of success. 

"There is little to no certainty on the timing and outcome of Ontario Land Tribunal decisions, which can lead to a fragmented urban boundary," Hamilton weighed in.

Others expressed concerns that decisions could increase sprawl, or burden residents with expansions that are not financially viable in the long term. 

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'We will be challenged'

Ottawa councillors echoed those concerned at a recent meeting of the planning and agricultural and rural affairs committees.

"I'm sure we will be challenged on it," said Coun. Glen Gower, about the city's proposed process. "It's more than just hectares of land. It's about where does it make the most sense to focus future suburban growth. So, a bit of a mess, isn't it?" 

Coun. Matt Luloff directed staff to seek clarification from the province, noting that the process "leaves us a bit exposed" to appeals. 

"We prefer to make our decisions at the council table as elected officials rather than passing those decisions off and abdicating that responsibility to an elected board," he said.

"[The Ontario Land Tribunal] is going to deal in facts, including the fact that our numbers that we're using need to be consistent with the latest Ministry of Finance numbers. I'm not certain that that's the case at the moment."

As of late Tuesday, no news of provincial clarifications had been released. 

Province's intentions questioned

The Greater Ottawa Home Builders' Association doesn't believe the city is in line with provincial intentions, noting that the PPS said the city must comply with the latest Ministry of Finance population projections.

The city has said its plan will be compliant, even though applications will be assessed in line with infrastructure and transportation plans developed using population statistics now out of line with current forecasts.

"If you are shooting for a target that is well below what your population growth is going to get, you're never going to address the housing issues that we have today and you're certainly never going to improve them," said executive director Jason Burggraaf. 

Royce Fu, Ottawa's policy planning manager, said the city is using a "typical cyclical process" which is logical and fair.

"We don't always have to be up-to-date in the long term," he said. "Because we have a minimum land supply, we don't always have to plan for these lands in the long term." 

He also said developers concerned about the application process can wait to have their request evaluated — free of charge — at a comprehensive review that's been bumped up to next year. 

Prospects at OLT good, say staff

When asked about the city's ability to defend its process at the tribunal, Fu said it will depend on the challenge. 

"But staff is confident from the framework that we put forward, it represents a logical progression of how we will plan in the long term," he added. 

Senior legal council Tim Marc said any appeal will likely take several years, giving staff enough time to finish their comprehensive review. 

"And I have significant faith in staff and their analysis," he added. 

Burggraaf, though, is confident the province is making this change to ensure staff do something different.

"If the city does not use the higher projection numbers, I would assume that every application is going to get rejected," he said. "If that is the case, then that goes to the [tribunal]. I don't see how this city doesn't lose all those cases."