In-depth: How new Ontario law curtails town's power over development
Residents of Niagara-on-the-Lake could soon start to feel the effects of the province’s new housing legislation, Bill 23, which became law late in November.
After news of a four-storey condominium proposal for Mary Street boiled over in mid-January, the question has slowly bubbled to the surface: With powerful new legislation passed by the province, what can the town do about projects to which council or residents object?
Town councillors have been optimistic that they will be able to work with the province to strike a fair balance between the desires of residents and the fresh directives of the province aimed at getting "More Homes Built Faster" – which is the official monicker Doug Ford's administration attached to Bill 23.
Expert Matti Siemiatycki, an urban planning professor at the University of Toronto, thinks the province is “putting its stamp on the planning system” and that the new bill places the province “in the driver's seat” when it comes to planning.
And Pierre Filion, a retired professor of urban planning at the University of Waterloo, says, “The municipality will still have a role to play, but the ultimate decisions take place at the provincial level.”
He says that's because the power to approve development proposals now ultimately rests with the Ontario Land Tribunal, a powerful provincial body created in 2021.
Because, as its website notes, the tribunal "adjudicates matters related to land use planning, environmental and natural features, heritage protection, land valuation, land compensation, municipal finance, and related matters," it is empowered to resolve disputes between municipalities and developers.
In cases where towns refuse to permit development proposals, land owners can appeal such rulings to the tribunal.
Niagara-on-the-Lake developer Rainer Hummel argues the tribunal favours developers on appeal because it “is charged with implementing the housing and planning policies of the province” – not the bylaws of the town.
Filion agrees, and concludes that because of this mandate, developers are in a “highly favourable position” when taking a case to the tribunal.
For Hummel, the question of what can be built is clear cut.
“Can you build a four-storey building in Niagara-on-the-Lake? Absolutely. Can you build a six storey? Almost impossible to stop,” he said in an interview.
NOTL town councillors have been gung-ho on collaborating with both developers and higher levels of government since election day in November.
Lord Mayor Gary Zalepa says he has concerns about Bill 23 but he is confident the provincial government has heard the town’s concerns and is open to working with the municipality on solutions.
After hearing residents speak up about the proposal for Mary Street at a public meeting Feb. 14, he said it was important for citizens to “understand the planning process.”
The proposal for the Mary Street condominium is still in the early stages.
Zalepa said he feels there is an appetite – and a need – for projects like the one proposed for Mary Street.
In NOTL, there is a “significant population base that does not have the income” to acquire “core housing,” he said.
“I think the town has an opportunity to give more clarity to where certain projects could be appropriate,” he added.
"Communicate, don't litigate"
Coun. Erwin Wiens, the town's deputy lord mayor, figures, “We should be avoiding the (Ontario Land Tribunal) at all costs.”
Ontario’s provincial policy directs towns and their planners to “permit and facilitate a range of housing options, including new development as well as residential intensification.”
That is why Wiens said it’s critical to work with the development community rather than against it.
“Communicate, don’t litigate,” he said.
“They (developers) understand what they're allowed to do,” Wiens said.
When towns end up in front of the land tribunal, it's often because they attempted to deny a project without having the legal basis to do so, he added.
And that is why NOTL, like many municipalities, has “a poor track record” in cases decided by the land tribunal.
David vs. Goliath
Alan Gordon, a resident activist seeking to preserve the Parliament Oak property, acknowledged that it's a David vs. Goliath scenario where residential developers might be favoured by the tribunal.
However, he said, residents' concerns about commercial developments, like the hotel proposed for Parliament Oak, might be weighed a little more favourably by the tribunal.
Still, he worries about the financial toll of having to fight deep-pocketed developers who could almost inexhaustibly appeal decisions and re-submit applications.
“The developer can keep coming back to the well as often as he likes,” Gordon said.
“If he doesn’t get what he wants, he can come back again and again.”
It’s difficult to fight that, said Gordon.
Density and affordability
One of the province's goals with Bill 23 is densification and allowing more units on existing properties is one way that can happen.
Bill 23 allows up to three residential units “as of right” to be built "on most land zoned for one home in residential areas without needing a municipal bylaw amendment."
That's a huge change.
But will any of these changes lead to more affordable housing being built?
Overall, what is being built by developers "is not affordable,” Filion said.
However, infill projects permitted under the new legislation “might” be affordable, he said.
But, he cautioned, “the cost of land is very expensive” and “developers want to maximize their profit.”
Hummel agrees and argues a developer would have to be “insane” to think they could “make a dime” by building affordable housing in NOTL.
It is generally acknowledged that “free-for-all development” probably wouldn’t bring down the cost of properties because they're still being sold at market value, which is dictated by demand and other factors.
A spokesperson for the Ministry of Municipal Affairs and Housing called its legislative strategy “a balanced approach” between “responsible growth” and support for the province's “municipal partners.”
Mary Street condominium
So, perhaps the question becomes: Is the four-storey building proposed for Mary Street “responsible growth"?
Many residents have weighed in unequivocally and said, "No."
The applicant’s planning justification report argues "Yes" and points to the town’s need for more diverse housing options.
It argues the nearby commercial services “contribute to reduced automotive dependence” and permit residents to “live in proximity to community amenities.”
At an open house forum sponsored by the town to discuss the proposal, residents loudly expressed their dissatisfaction with the plan.
Traffic congestion and privacy for adjacent residents were some of the most-cited concerns.
“Traffic is always an issue,” Siemiatycki said. But “traffic should not be a reason why we exclude people from housing.”
The planning professor also pointed out in some urban centres it was not unusual to see midrise buildings three to four storeys tall among single-storey houses, especially in older neighbourhoods.
Rigorous work needed
Despite the directives under Bill 23, developers still need to go through the rigorous work of planning for impacts on traffic, the environment and surrounding infrastructure.
“You've got to do your legwork,” Hummel said.
“We have to prove our point. Neighbours and politicians just say, 'I don't like it. I don't want it.' ”
And that, he said, is one reason the province is stepping in.
But it is not the only reason.
Victoria Podbielski, a spokesperson for the Ministry of Municipal Affairs, said, “One of the biggest factors slowing down developments is long approval timelines.”
The theory that cutting red tape will help to reduce costs and encourage builders is baked into the legislation, Siemiatycki said.
The “underlying philosophy” of the bill is to “build more,” so the supply can “meet the demand at a lower price,” he said.
And it does this by reducing regulations and curtailing the ability of towns like Niagara-on-the-Lake to slow development.
Many unknowns, many changes
One of municipal tools the legislation takes aim at are site plan controls.
These are used by towns to regulate a variety of features on a development site.
Under the new legislation, control over features related to "character, scale, appearance and design" have been axed by Bill 23, according to a report by a major law firm, Gowling.
And a Town of NOTL staff report says the elimination of site plan controls could cause “undesirable results and development that does not contribute to a vibrant, attractive neighbourhood.”
Siemiatycki said that in some cases towns have used the "character of the neighbourhood" as a reason to exclude street-facing entrances to secondary suites.
These are the types of concerns the new legislation appears to snuff out.
As for how this impacts the town's power to direct development, a spokesperson suggested, "It’s not a straight-forward answer, as there are many complexities around Bill 23."
Siemiatycki agreed that there are still a lot of unknowns but he said it is clear that town planners will have substantially "less input."
It doesn't necessarily mean residents and towns like NOTL won't have any say in future developments.
But Bill 23 has changed the planning landscape and exactly how much those changes will alter how neighbourhoods will look remains to be seen.
Evan Loree, Local Journalism Initiative Reporter, The Lake Report