Bill 23 – A Sledge Hammer To The Guardrails, Pender

Jan 18, 2023

Frontenac County Chief Administrative Officer Kelly Pender prepared a relatively short report, for members of the new Frontenac County Council’s January meeting, about how Bill 23 – the more houses more quickly act – could change the way the county, and their own municipal councils, deal with development proposals of all kinds.

Pender said that one of the reasons he did not go into a lot of detail in his report, even though the issues are extensive, is that he does not know what the real impact of the changes will be.

“I think it is going to take a lot of decisions from the Ontario Land Tribunal before we know what the process will look like going forward,” he said in a phone interview early this week. “I just wanted to let members of council know what Bill 23 says. “Councils don’t really have the right to say no under the bill.”

One example of the lack of clarity in the bill relates to “natural heritage issues”. Until Bill 23 came into effect, municipalities relied on Conservation Authorities to comment on the impact a proposed development would have on the lakes, streams and wetlands using a watershed-based approach.

“Not only do Conservation Authorities have the expertise within their staff to evaluate the impacts, they have archived data about the watersheds and how they operate as natural systems” he said.

“Even though the Conservation Authorities are no longer permitted to make comments on these issues, the municipalities are still obligated to review for natural heritage issues because they need to make sure any development that they approve conforms with what the Provincial Policy Statement says about preserving Natural Heritage.”

Another major change in Bill 23 are new limitations on who can appeal planning decisions to the Ontario Land Tribunal. Lake Associations, and neighbouring property owners can no longer appeal planning decisions.

Only municipalities, the applicant, the provincial minister, First Nations, utility and energy companies and railways can appeal decisions.

“The change to the way we have been operating are extensive. It’s kind of like the province is taking a sledgehammer to the guardrail.”

One potential consequence of Bill 23 could be an increase in the pressure on municipal council members than before, Pender also pointed out.

In South Frontenac, for example, the proposals for the Hartington Subdivision, the Johnson’s Plan of Condominium on Loughborough Lake, and more recently, the proposed expansion of Skycroft Campground on Lake Opinicon, have resulted in more boisterous and contentious public meetings than any other issue before council in recent memory.

Members of council end up in the middle of disputes between developers and opponents of the developments, but until now they are at least able to tell everyone involved that Council decisions on the matters can be appealed to a provincial tribunal that is independent.

Now, only the applicant can appeal if council turns down a proposal.

“The tendency will be for a council, let’s use the example of Lanark Highlands [since they are not in Frontenac County] to say no to a proposal to keep their constituents happy, and let the Land Tribunal overrule them. But how that will save time is unclear,” said Pender.

Under Bill 23, municipalities will no longer be required to even hold public meetings before approving a draft plan of subdivision, but Pender advises that Frontenac County, which is the approval authority for plans of subdivision for all Frontenac municipalities, should hold them anyway.

“Public meetings provide an official channel for nearby residents to provide their input and local knowledge and identify issues that may not be known by the applicant and/or reviewing staff,” he wrote in his report, adding that county and township official plans may need to be updated to identify when public meetings are required.

Another tool that municipalities make extensive use of when considering a development proposal is called ‘site plan control’ which is expressed through ‘site plan agreements’ between the municipality and developers. These agreements can stipulate where buildings can be located on a site, where septic fields can be located, what kind of vegetation needs to be maintained or established, and more.

Bill 23 does away with site plan agreements, as well, for most developments in Frontenac County.

“Any projects that propose 10 or fewer residential units are exempted from the site plan process, and architectural details and landscape design are also exempt” Pender said in this report.

Pender said that “municipalities may need to amend their zoning bylaws to ensure that specific land use issues can be addressed”.

In fact, with the planning process in a state of flux, Pender said that municipalities will rely more than ever on their Official Plans and Zoning Bylaws to steer development within their jurisdiction

He said that the work that has been done in recent years by the Frontenac townships, to update their Official Plans and Comprehensive Zoning Bylaws will stand them in good stead under the new planning scenario brought in by Bill 23.

Official Plans are policy documents that set out the goals of municipalities, in regard to land use issues and economic and residential development, and Comprehensive Zoning Bylaws are the documents that attach rules to those policies and apply them on every property within the municipality.

None of that changed under Bill 23.

Central Frontenac has a new Official Plan in place, and late last year adopted a new Comprehensive Zoning bylaw as well.

North Frontenac also has a new Official Plan in place, and is working on a Comprehensive Zoning Bylaw, with a view to having one in place by the end of 2023.

South Frontenac has done most of the work on its new Official Plan, and last summer decided to defer completion until the installation of a new council. The new South Frontenac Council is now engaged in the Official Plan process, and if all goes well the plan will be approved by the end of 2023, and work on a comprehensive zoning bylaw will follow.