Opposition to Bill 108 More Homes More Choice Act, 2019 . Submission by the Ontario Greenbelt Alliance

June 1st, 2019

Mr. John Ballantine, Manager Municipal Finance Policy Branch
Municipal Affairs and Housing
13th Floor, 777 Bay St.
Toronto , ON M5G 2E5

Municipal Affairs and Housing
Provincial Planning Policy Branch
13th Floor, 777 Bay Street
Toronto, ON M5G 2E5

re: Ontario Greenbelt Alliance Submission on Bill 108, ERO 019-0017 and 019-0016

Thank you for considering our submission on Bill 108. The Ontario Greenbelt Alliance represents over 120 groups across the Greater Golden Horseshoe. With a short four- week submission period many of our members are unable to make submissions.  As there are only three days between the June 1st submission deadline and the proposed June 4th final vote on the Bill the Alliance is concerned that the government will not have time to fully consider our submission. Amendments are needed to ensure that this bill can deliver on its stated objective to provide more low-cost housing and protect municipal government autonomy, a healthy environment and continued citizen involvement in community planning. As a result, we encourage the government to defer the June 4th vote on Bill 108.

The More Homes, More Choice Act amends 13 pieces of legislation with the stated intention of making it easier to bring affordable housing to market. Unfortunately, as written the Province’s Housing Supply Action Plan and Bill 108 do very little to increase the supply of affordable housing (i.e. housing for the 20th-60th household income percentiles). In addition, certain policy changes contained within the Bill are actually contrary to the governments stated intention, such as restricting the use of inclusionary zoning to the vicinity of transit stations only.

Ontario Greenbelt Alliance members are generally YIMBY’s (yes in my backyard). We have been supportive of encouraging a diversity of housing types to provide housing for seniors and low-income Ontarians to create complete communities. Rather than moving forward to support this type of housing, many of the changes in Bill 108 are aimed at increasing the supply of single-family houses built on Greenfield (farm land and natural areas). Detached single family homes are the most expensive type of housing for new homebuyers and they also are more expensive for municipalities to service.

Perhaps the most discouraging aspect of Bill 108 is its bias toward the recommendations made exclusively by the development industry. The Bill does nothing to satisfy other business interests including farmers, or business owners who will suffer from increased sprawl and its associated gridlock and impact on employee commute times, health and productivity. Bill 108 reduces developer costs but increases the burden on municipal taxpayers from lower phased in development charges. Deferring development charges on commercial and industrial development projects requires taxpayers to subsidize developers and municipalities to take on debt. Collectively, the changes increase municipal debt, reduce citizen and municipal input and control and restrict appeal rights.

Increasingly Ontario has been moving to a funding model for new development that requires growth to pay most of its share of capital costs. This model has enabled our municipalities to develop parks and community facilities ready for new residents without burdening existing residents with increased capital costs.  Moving away from this model, capping fees that support sustainable growth and reducing parkland in cities will reduce the livability and prosperity of new communities and cause citizens and municipal councils to strongly resist new developments.

Other amendments severely reduce long held protections that support the health and prosperity of our communities and natural areas. These include restricting and limiting Conservation Authority oversight, changes to the Environmental Assessment Act, gutting the Endangered Species Act and weakening the Ontario Heritage Act.

The proposed amendments to the Planning Act regarding the Local Planning Appeals Tribunal favours developer interests, diminishes the important role of our elected officials in managing growth and development and limits the ability of citizens to participate in a meaningful way. Returning to the old OMB rules will result in housing delays and higher prices, the opposite of the government’s stated intention to speed up and lower the cost of new housing. 

As a result, many municipalities oppose or are requesting a deferral of Bill 108. To date, local and regional municipalities including Burlington, Halton, King, York Region, Kingston, Oakville, Aurora, Brant, Guelph, Hamilton, Archipelago and Lennox-Addington have expressed concerns with the Bill.

The Ontario Greenbelt Alliance encourages the government to provide more time for municipalities and stakeholders to comment on Bill 108 and to take the time to carefully consider our specific amendments below.

Susan Lloyd Swail
On behalf of the Ontario Greenbelt Alliance
cc. Minister Steve Clark, Municipal Affairs and Housing

Kindly consider our comments on Bill 108, Schedule 2, 3, 5, 6, 9 and 12.

Schedule 2, Conservation Authorities Act

We are concerned that the changes in Bill 108 constrain the ability of CAs to achieve their core mandate of conserving, restoring and managing the natural resources of Ontario’s watersheds and protecting our communities from flooding.  Urbanization and climate change threaten the ecological integrity of natural areas. It is vital that our government shows leadership to restore healthy watersheds, enhance the connectivity of natural features, support green infrastructure and protect clean water resources. The Ontario Greenbelt Alliance endorses the policy submissions made by OGA member Ian Attridge (see Appendix 1). We also support the recommendations made by the Canadian Environmental Law Association and Environmental Defence.

Schedule 3, Development Charges Act

Developers are thriving and housing supply is increasing with over 79,000 new housing units built in Ontario in 2017.  Higher taxes and more debt will result from the implementation of Schedule 3 as it currently stands. Bill 108 reduces the ability of municipalities to collect development charges that fund growth related infrastructure. By delaying the payment of development charges for new development, municipal debt will be incurred shifting the cost of new development to taxpayers. The proposed deferral of development charges for rental apartments is of questionable benefit given virtually all new rental units (apart from government subsidized units) are luxury units. New development needs to provide an overall benefit for the public. It is not in the interest of municipalities or taxpayers to both be footing the bill for new development and receiving reduced benefits.

Bill 108 replaces Section 37 of the Planning Act with a new Community Benefits Charge By-law. The changes proposed allow the Minister to set a cap and does not allow for parkland dedication and a Community Benefits by-law to be applied to the same development project. Further changes remove “soft services” as eligible charges such as libraries or recreational facilities. The result of these changes will be  less parkland and funding for community services. This outcome is illustrated very effectively in a City of Toronto Planning report presentation on Bill 108 (pg 9-12). As noted in the Parks People submission, under the new reduced parkland rate, a three-story development would provide the same amount of parkland as a 60-storey tower, if the land area being developed is the same size. People living vertical developments need more parkland than people with backyards, not less.

Requiring municipalities to spend 60% of parkland/community benefit funds to be spent annually means it will be difficult to assemble funds over several years for larger, needed community project or facility. Collectively, these changes significantly restrict the ability of municipalities to plan for value added infrastructure.  Economic development is supported by providing places where people want to live. As communities intensify, recreation facilities and parkland are integral to creating healthy and economically successful communities.

Overall, Schedule 3 will not help increase housing supply or affordability. There is no requirement for developers to pass along cost savings to new homebuyers. The Ontario Greenbelt Alliance urges the government to remove Schedule 3 of Bill 108.

Schedule 5, Endangered Species Act

We encourage the government to support a science-based approach to  protecting species at risk. This section of the Bill represents a draconian and regressive rollback of protections that has shocked those who work to protect and conserve species at risk . To date, over 50,000 people have voiced their opposition and 96 organizations signed a joint submission. The amendments gut protections for species at risk making it easier for industry and developers to proceed with activities that harm these species and their habitats such as pits, quarries and housing. The Ontario Greenbelt Alliance endorses the policy submission written by Ontario Nature on behalf of Environmental Defence and David Suzuki Foundation that calls on the government to remove Schedule 5.

Schedule 6, Environmental Assessment Act

The Environmental Assessment Act may be perceived as a burden for some regressive developers but it provides important safeguards to assess how projects or activities affect the health of our communities and the environment. Caught early in the process, the EAA reduces the cost of environmental problems. At a time of unprecedented environmental threats removing the requirement to mitigate is in our view the wrong course of action. Overall these changes affect the ability of citizens to have a say in potentially environmentally harmful activities, reduce the number of issues that are scrutinized under the EAA process and empower government regulations rather than a public process. Due to the short timeline for commenting on changes to the EAA our many of our members were unable to comment on the proposals. The Ontario Greenbelt Alliance endorses the submission made by the Canadian Environmental Law Association on Schedule 6 of Bill 108.

Schedule 9, Local Planning Appeals Tribunal

After an extensive public consultation process on OMB reform in 2017, it is unconscionable that the government is proposing to rollback changes that created the Local Planning Appeal Tribunal without extensive public consultation. The changes effectively revert back to Ontario Municipal Board (OMB) rules, a recommendation put forward by the Ontario Home Builders Association in their housing submission.  OMB hearings are time consuming and expensive. With the costs of hearing passed along to home buyers.  Government data indicates developer appeals delayed the adoption of municipal plans and housing starts by over three years on average. It is unlikely a return to the OMB will accomplish the goals of the government to increase the speed or lower the cost of housing. Finally, the government has not released details on how these changes will be implemented through regulation.

The Ontario Greenbelt Alliance is concerned that many of the amendments in Schedule 9 limit public participation and diminish the important role of municipal councils in shaping their communities and managing growth. We encourage the government to remove Schedule 9 or defer adoption of the Bill until a full and robust public consultation is conducted.

Schedule 11- Ontario Heritage Act

It is unclear how weakening the OHA will increase the supply of housing in Ontario. Heritage properties provide a tremendous economic benefit to Ontario supporting tourism and economic development. The Province should not transfer the authority to make final decisions with respect to heritage-related matters to the LPAT. The Ontario Greenbelt Alliance encourages the government to remove Schedule 11 as it will substantially weaken a municipality’s ability to protect historic buildings or properties, so essential to the vibrancy of small towns and big cities in Ontario.

Schedule 12, Planning Act

Inclusionary Zoning

There are some good amendments under Schedule 12 with regards to the Planning Act that encourage development around transit stations and support more rental housing. However, as the Bill currently reads any municipality without a major transit station area is precluded from considering the use of inclusionary zoning while also severely restricting the placement of inclusionary zoning within municipalities which have MTSAs. We need our governments to enable more affordable housing where it is needed most in a community, not just within major transit station areas. In the U.S. over 500 municipalities obligate private developers to include a percent of affordable units in their projects. The need for inclusionary zoning is due to the failure of the development industry to provide units affordable to many households, including rental. We encourage the government to amend Schedule 12 to allow municipalities more decision-making power when implementing inclusionary zoning.

Bill 139 changes

It is unclear why the government is making changes to the Planning Act related to land use planning disputes. Only the Ontario Home Builders Association asked that the Bill be repealed. Ontario Greenbelt Alliance members encourage the government to defer Schedule 12 until the concerns of citizens and municipal stakeholders have been heard. Many municipal governments have raised concerns about returning to the old OMB as it gives an unelected body the ability to overturn municipal decisions and reduces the effectiveness of municipal planning.

It is likely that going back to the OMB will delay housing starts and result in higher prices for new homebuyers. Under the old OMB developer led appeals delayed plans by 3 years on average. Returning to hearings de novo results in longer hearings which benefits high priced lawyers. Going back to the old rules threatens to undermine municipal decision making, increase the cost of housing (through delays and the cost of hearing that are borne by buyers), delay construction and limit public participation.

The current timelines for application processing provides sufficient opportunity for the planning system to get decisions made. Shortening timelines may result in actually slowing housing starts and increase housing costs by increasing the number of appeals of non-decisions and prompting more appeals. If the government wants to speed up new housing builds Planning Act changes should find suitable ways to reduce the number of costly time-consuming appeals of municipal decisions.

Land use planning encourages public participation in decision-making processes. Citizens that may be directly impacted by a municipality’s decision should be permitted to meaningfully participate in appeals.  

There is a lack of transparency in Bill 108 as it includes significant new authorities to impose future restrictions by ministerial driven regulations that are unknown at this time. Further time is needed to understand and comment on the impact of these proposed changes.

Appendix 1 – Submission by Ian Attridge

575 Gilchrist Street,
Peterborough, Ontario K9H 4P2

May 21, 2019

Ms. Carolyn O’Neill
Great Lakes Office
40 St Clair Avenue West, Floor 10
Toronto, ON M4V1M2

Re: Comments on Proposed Amendments to the Conservation Authorities Act – ERO# 013-5018

Dear Ms. O’Neill,

Thank you for the opportunity to comment on the review of the Conservation Authorities Act (CAA) and proposed amendments in Bill 108. I come to this subject from a number of perspectives, as an environmental lawyer, ecologist and community member. I have worked in the Legal Services and Parks and Natural Heritage Branches at the Ministry of Natural Resources, and have played key roles in the development and application of the legal frameworks for protected areas and land securement in Ontario.

With Bill 108’s proposed amendments to the CAA introduced on May 2, in the midst of this consultation (and thus not reflecting it), there has not yet been a month to consider and fully comment on the amendments. Nonetheless, in order to meet the government’s requested timeline for such comments on the Act, I offer the following comments on the proposed amendments to the Conservation Authorities Act.

General Comments

Biodiversity and natural places are under considerable and multiple threats globally, in Canada, and here in Ontario. We are experiencing the 6th mass extinction, this time at the hands of humans during the new era of the Anthropocene. Reports of declining populations, taxonomic groups, and habitats are cause for alarm, especially when climate change is accelerating and putting increased pressures on biodiversity, water systems, private property and infrastructure in this province. This situation thus calls on humans to respond clearly, creatively and also in accordance with natural law and systems, our deep relationships with other living forms, and our ethics and responsibilities. This includes the important role that Conservation Authorities (CA) play in managing our watersheds and both where we develop and where we protect. Strong legislation such as the CAA can help drive conservation efforts and resources, with resiliency to meet forthcoming challenges. Surprisingly, the descriptions of these proposed amendments refer to 1946 when the CAA was first enacted but there is no mention, nor really recognition, of the extensive work and consultations that went into the 2017 amendments to the CAA.

Much of the details in Bill 108 will be set out in the regulations: definitions, which provisions will be in effect, timelines and transitions, and the like. Further and more extended consultations will be needed on these, with sufficient timelines to address CA Board and municipal council decisions cycles, as well as summer recess periods. Such consultations will be necessary in order to ensure that such elements will work effectively to conserve watersheds, protect people’s property, health and safety, and ensure efficient, collaborative partnerships. Should these regulations erode watershed protection and programs, following the short-term desire to reduce costs for all involved, they may well result in the repeat of the lessons, and costs, of Hurricane Hazel, Walkerton, and other examples of initial savings and significant long-term costs to taxpayers and stakeholders. The Kawartha Region and Otonabee Region Conservation Authorities for our watersheds are well respected in our communities. They typically work closely with municipalities and engage broadly with civil society. In many ways, they have the most on-the-ground, accessible and applied expertise for natural resources management of any agency. In the Kawartha lakes bioregion, this is critical to our well-being, health and economy, whether it be water quality and quantity in the cottage lakes and rivers, shoreline stewardship and upland tree planting, well-planned and sustainable developments, and attractive places for tourism and employment. Given the presence of First Nations rights, reserves and traditional territories in our and other regions, the value of traditional ecological knowledge, and theimportance of water to Indigenous peoples (especially as a special responsibility of women), the amendments in Bill 108 could explicitly contemplate means to enhance partnerships and processes among CA and First Nations.

I provide more specific comments below under key changes noted in the Environmental Registry proposal and in Bill 108’s Schedule 2.

Attridge Comments on Amendments to the Endangered Species Act 2

Mandatory and Discretionary Services

CA already have mandatory and discretionary services and how they are set out for them through regulations under the Act. The proposed amendments serve to refine, narrow and, as the proposal states, “refocus” these. The mandatory services laid out in Bill 108’s revised s. 21.1 are important CA functions and deserve to be highlighted and given priority in the Act. However, these important functions are only mandatory where prescribed by regulations. Thus, it is conceivable that this or a future government could determine that they are not mandatory and thus they would not be subject to the ability of CA to levy for such services. Given their importance, it would seem more appropriate to specify in the amendments that these are the base services required to be provided as mandatory, unless otherwise subject to an exemption in regulations that specify a certain service and/or geography/CA. This would make it clearer to CA as to their mandatory “refocused” responsibilities and assist in advancing the community discussions and transitions contemplated in the amendments. Conservation Authorities are well-known for their watershed and partnership basis. I had the opportunity to meet with representatives of Australian conservation officials a number of years ago and they were impressed with the watershed basis and municipal/provincial/community partnerships that had developed in many of the CA watersheds.

Ecologically, the watershed makes much sense and fosters efficiencies for the organization of various CA programs. While the term “watersheds” is retained as a concept in the CAA purpose, it is not applied throughout the proposed amendments. It is not incorporated into the specified mandatory services, and yet it is central to the core operating principle of CA. The various potentially mandatory services, whether for natural hazards, source water protection, Lake Simcoe or CA land interests, do not add up to an integrated mandate for a watershed and more comprehensive natural resources management across the landscape. Further, the proposed mandate is limited tonatural hazards and does not extend to natural heritage, which includes the natural areas, plants, animals and ecological processes that combine to sustain us. Without incorporating natural heritage along with hazards into CA mandates, this increasingly important component of our environment will need to be addressed by other agencies and legislation, creating ongoing overlap, unclear responsibilities and additional expense. Government postings and presentations on the CAA changes identified apparent concerns regarding “overlap and duplication, inconsistency, and increased costs for proponents and conservation authorities”. Yet, Bill 108 and associated regulations and programs will themselves create a piece-meal, patchwork approach based on mandatory and then geographically-variable discretionary services. These will not be effective nor efficient, leading to gaps and questions as to responsibilities, unclear guidance for municipalities and development proponents, and additional costs for all involved – all contrary to the government’s intentions. Some municipalities will be able to sign agreements for discretionary items, while others may not, leaving a leaky watershed full of holes, with costly consequences for all. These unintended results of the Bill can be avoided by adding mandatory watershed, natural heritage or natural resources management in a new paragraph under the proposed subsection 21.1 (1).

Transparency, Investigator and Board Duties

As noted above, the Kawartha Region and Otonabee Region Conservation Authorities are well respected in our bioregion. Thus, it is not clear to me where the drivers are for increased transparency, the need for investigative and audit powers and an enhanced Board legislated duty. Rather, these seem blown out of proportion and, to some extent, cast doubt on the integrity of CA. Yes, there is a need for provincial oversight and sometimes issues arise that need further external investigation, but the reasonable grounds for these should be explicitly set out in the Bill, not be subject to arbitrariness, and, where called for by the province, should remain at the cost of the province. Rather than set up a new system specifically for a CA, a simple amendment to the Municipal Act or other legislation could extend existing authorities for such powers to cover CA. This would be simpler, reduce duplication, and help consolidate expertise when such matters are required. Further, should there be an investigation, the resulting report should be made public within two weeks after release to the Minister and the CA (see ss. 23.1(7)). One area that could be further addressed to enhance the integrity andtransparency of CA decision-making is the situation where a municipal council member, appointed to be a CA Board member, is put in a difficult position where they must decide on both CA permits or directions as well as municipal planning and/or other approvals in their respective roles. Clarification of their roles, duties and how to address any conflicts of interest would be helpful; the proposed amendment specifying that their duty is to furthering the objects of the CA (proposed s.14.1) is to some degree helpful in this regard.

Levies, Agreements and Funding

As noted earlier, much of the details for implementation of Bill 108 and the CAA will be set out in future regulations. Consultations and careful considerations will be required in order to ensure effective and efficient regulations. This includes the transition periods, such as lead times before prescribing mandatory programs  (s. 21.1) or prescribing what services and agreements are required for other programs. It would seem that the proposed provisions for CA levies and for agreements for funding are very particular. For especially the latter, it would be worthwhile to enable a more negotiated and straightforward framework for such agreements between CA, municipalities and any other contributing parties. This will create efficiencies and save costs for both CA and municipalities. Further, these services will need to contemplate within their scope the various field work, research, mapping, testing and other related functions to carry out this work.

Along with levies to and agreements with municipalities, the province will need to enable and enter into agreements to renew funding and investments with CA for the health and safety of the people of Ontario, including for funding responsibilities under the Clean Water Act. This is particularly important to establish during 2019 after the recent budget cuts during the current fiscal year. For example, where the proposed subsection 40 (4) would set out definitions of areas and limits, it will fall on the province to do sufficient field work, research and consultations in order to provide specificity in each watershed; otherwise, a CA will need to conduct additional work to apply this at the local site level for use by the CA and development proponents. Further, requiring municipalities to fund drinking water and Clean Water Act programs is problematic. Given that CA are given direction by the province, including through the CAA and regulations, the province is ultimately responsible for the funding, services and programs that CA deliver.

Finally, the proclamation of enacted CAA provisions is welcome, given the previous extensive consultations on them. This also will be important to bring enhanced enforcement powers into play for CA. I trust that these comments are helpful. I look forward to learning of and commenting further on plans for Conservation Authorities, associated regulations and conservation actions in Ontario.

Yours truly,
Ian C. Attridge,
Hons. B.Sc.(Agr.), M.E.S., LL.B.
Barrister and Solicitor

Appendix 2 – Ontario Greenbelt Alliance members, 2019