BUILDING DURHAM

The provincial government’s newest housing legislation, the More Homes Built Faster Act has passed and brings forward numerous important changes that will be beneficial for OHBA members. Some measures come into force immediately, others at a future date. See the key highlights below and the breakdown document for more details.

• Up to three residential units are permitted “as of right” on most land zoned for one home in residential areas without needing a municipal by-law amendment. Depending on the property in question, these three units could all be within the existing residential structure or could take the form of a residence with an in-law or basement suite and a laneway or garden home.

• Regulatory changes to provide certainty regarding inclusionary zoning rules, with a maximum 25-year affordability period, a five per cent cap on the number of inclusionary zoning units, and a standardized approach to determining the price or rent of an affordable unit under an inclusionary zoning program.

• Affordable and inclusionary zoning units, select attainable housing units, and non-profit housing developments are exempt from municipal development charges, parkland dedication levies and community benefits charges.

o Five-year phase-in of development charge rate increases, beginning with a 20% reduction in the first year, with the reduction decreasing by 5% each year until year five when the full new rate applies. This is proposed to apply to all new development charge by-laws passed since January 1, 2022.

o Discount remains unchanged, however, further transitional matters now provided. Rental housing discounts do not apply for a development in which a building permit was issued prior to November 28, 2022, unless a Development Charges Agreement has been entered into. If there is a Development Charges Agreement, the rental housing discounts will apply to all development charges payable after November 27, 2022.

o Development charge reductions now based on development charge by-laws passed on or after Jan 1, 2022.

o Development charge by-laws will expire every 10 years, instead of every five years. By-laws can still be updated any time.

o Cap the interest paid on phased DCs for rental, institutional and non-profit housing to prime plus 1%.

• Changes to the Planning Act removed site plan control requirements for most projects with fewer than 10 residential units (with limited exceptions).

• No removal of third-party appeal rights of official plans, official plan amendments, or zoning by-laws.

o Third-party appeal rights of consent and minor variance applications significantly restricted to certain public bodies. Current third-party appeals are dismissed unless they qualify for limited transition.

• The maximum amount of land that can be conveyed or paid for as cash in lieu is capped at 10% of the land or its value for sites under 5 ha, and 15 % for sites greater than 5 ha.

• Maximum alternative dedication rate reduced to 1 ha/600 units for land and 1 ha/1000 units for cash in lieu.
• Parkland rates frozen as of the date that a zoning by-law or site plan application is filed. Freeze remains in effect for two years following approval. If no building permits are pulled in that time, the rate in place at the time the building permit is pulled would apply.

• Maximum CBC payable to be based only on the value of land proposed for new development, not the entire parcel that may have existing development.

• Maximum CBC to be discounted by 4% of land value divided by the existing building size, as a proportion to total building square footage.

• Upper tier municipalities will be removed from the Planning Act approval process for both lower tier official plans and amendments and plans of subdivision.

• Public meetings no longer will be required for applications for approval of a draft plan of subdivision.
• Developments of up to 10 residential units will be exempted from site plan control.
• Architectural details and landscape design aesthetics will be removed from the scope of site plan control.
• Minister to be given the authority to enact regulations related to the replacement of rental housing when it is proposed to be demolished or converted as part of a proposed development.

• Municipalities will not be permitted to issue a notice of intention to designate a property under Part IV of the Ontario Heritage Act unless the property is already on the heritage register when the current 90-day requirement for Planning Act applications is triggered.

Please also see the Bill 23 Key Changes Breakdown.

The City of Pickering is undergoing their budget process to plan for the service, program an infrastructure needs of the community.

Pickering is currently in its first phase of this process, and has provided their Draft 2023 User Fees for review.  Building & Planning fees can be found on pages 5 - 11, Development - 30 - 32, and Engineering on page 33.  Feedback can be provided to Stacey or directly to the City of Pickering through their survey.

The OHBA Job Ready program matches job seekers with construction industry employers offering six-month job placements and on-the-job training, in addition to wrap-around support services for success.   

In the program’s first two years, over 300 job seekers have been trained and matched with 100+ employers across the province with 96% retention rate for employees placed on site. 

The program would like to get to the root of how to bring more workers from diverse backgrounds into the industry and are examining barriers or challenges to entry. 

Please share your input and opinions on hiring challenges and solutions via this four-minute survey to help improve the Job Ready program.

Thanks in advance for your participation!

Please click here to enter the survey.

OHBA Members should be aware of the result of legal proceedings before the Ontario Court of Appeal concerning the use of Interim Control By-Laws (ICBLs) by municipal governments. We are pleased to report that the appellant was successful in appealing the municipality’s use of an ICBL in an inappropriate way and obtained a decision that builders and developers can rely on in any future disputes with municipalities regarding ICBLs. A brief summary of this decision and its potential implications for Ontario builders is set out below.

By way of brief background regarding ICBLs: 

• ICBLs are harsh planning tools that allow a municipality to effectively freeze development for up to 1 year, while they undertake a land use review or study;
• An ICBL can be extended only once and for no more than one year;
• An ICBL can only be appealed by a landowner after the first year; and
• Once an ICBL expires, a second ICBL cannot be passed for a further 3-years (the “3-year cooling off period”).

In the case of Hummel Properties Inc., the municipality enacted a second ICBL on the subject lands in contravention of the 3-year cooling off period. The lower court found that the municipality was acting within its powers, concluding that two ICBLs could apply to the same property if the ICBLs targeted different purposes. The Association intervened to argue that this was an improper expansion of the ICBL power. External legal counsel at Lenczner Slaght successfully argued that the lower court’s decision was wrong. A more detailed summary of the decision is available on their website here.

The decision has some very positive takeaways for our members: 

1. This decision should discourage municipalities from abusing the ICBL power to delay development. The Court of Appeal confirmed that there must be strict compliance with the 3-year cooling off period. There were conflicting cases about whether a second ICBL could apply to the same lands within the 3-year cooling off period if it was enacted for a different purpose. The Court of Appeal’s decision puts that debate to bed – conclusively determining that a second ICBL cannot be enacted during the 3-year cooling off period even if it is for different purposes. If an ICBL is applied to your lands, take note of when the 3-year cooling off period expires and be sure to challenge any subsequent use of ICBLs if it falls within that time period.
2. ICBLs enacted pursuant to S. 38 of the Planning Act must relate to “land use”. If an ICBL is applied to your land, be sure to carefully review the contents to ensure compliance with the legislative provisions. In the Hummel case, the ICBL prohibited subdivision, which the Court of Appeal concluded was not a “land use” under the Planning Act so the ICBL was illegal.
3. There must be strict compliance with the process for passing the ICBL. The Hummel decision also confirms that municipalities must be transparent when passing ICBLs. If an ICBL is applied to your lands and there is insufficient notice or transparency regarding meetings, the ICBL may be illegal.
4. Limitations on Municipal Powers. The Court of Appeal’s decision confirms that Courts must hold municipalities to strict compliance with statutory requirements when it comes to the exercise of powers that affect property rights. If an ICBL is applied to your land, review it with your lawyers to confirm that it is in strict compliance with all applicable legislation.

For more details or information please contact Andrew Parley and Amy Sherrard at Lenczner Slaght.

As per Town of Whitby Bylaw #7748-21, development charge rates will be indexed on February 1, 2023.  Based on the 2022 (third quarter) Statistics Canada Non-Residential Construction Price Index for Toronto, development charge rates are set to increase by 15.6% on February 1, 2023.  

The new Town of Whitby development charge rates effective February 1, 2023 to January 31, 2024 are:

Residential Development Type (per unit)	Whitby Posted DC Rate - February 1, 2023 - January 31, 2024
Category A - Single/Semi	$46,204.79
Category B - Large Townhome	$35,214.47
Category C - Small Townhome/Large Apartment	$19,397.89
Category D - Small Apartment	$14,823.20
Category E - Special Care/Special Needs	$13,177.04

The full notice from the Town of Whitby can be found here.

Oshawa's Development Services Department will provide a report to the City's Development Services Committee on November 28, 2022 regarding several matters related to planning application processes in Oshawa.  One element of this report will be about changes to planning application fees.   

A draft amendment to Schedule "D" (Planning Application Fees) of the City's General Fees and Charges Bylaw as amended has been sent out ahead of the report.

Typically on January 1 of every year, planning application fees increase by 3% automatically.  The report will consider fee increases greater than 3% for certain application types effective January 1, 2023.  Staff have said that planning applications have grown in complexity and many of the City's planning fees are well below other lakeshore municipalities in Durham.

According to City staff, further explanation regarding the fee changes will be contained in the report.  The report also addresses certain changes to planning application processes in Oshawa as a result of Bill 109.  Access to the report will be available starting Thursday, November 24, 2022 here.

The report and recommendations are anticipated to be considered by council on December 12, 2022.

If you have any comments or concerns, please contact Stacey.

CLOCA is proposing an update to their fee schedule.  The new fee structure can be found here.  

The 2023 fee schedules provide for a 7% inflationary increase, and are also intended to support and build their staff capacity to maintain or reduce review time.  In 2022, they made internal reassignments to dedicate a second staff member to natural heritage-related reviews and to add planning support for files in Clarington to respond to the increase in work there.  In 2023, they intend to increase their staff capacity for Whitby and area with a new Development Planner position.

Staff are proposing that the schedules be approved at the November CLOCA Board of Director's meeting scheduled for Tuesday, November 22nd.  Initially, the new fees were to take effect on January 1, 2023, however DRHBA has received notice from CLOCA that staff are now proposing that the new fees take effect on November 23, 2022 in order to provide more fiscal certainty and to support and build their staff capacity to maintain or reduce review times.

The City of Oshawa has released report CNCL-22-78: City Comments on Bill 23, "More Homes Built Faster Act, 2022", which will be brought to council on November 21, 2022 for approval.  

The Durham Region Home Builders' Association is reviewing the report and will provide comment if deemed necessary.  If you have any comments or concerns you would like addressed in our correspondence, please reach out to Stacey.

At the November 15, 2022 Oshawa special council meeting, nominations were heard and voted on, and the 2022-2026 standing committees were formed.

The new committee makeups are as follows:

Community & Operations Committee

• Chair: John Gray
• Vice Chair: Jim Lee
• John Neal
• Bob Chapman
• Brian Nicholson

Safety & Facilities Committee

• Chair: Brian Nicholson
• Vice Chair: Rick Kerr
• Jim Lee
• Brad Marks
• Rosemary McConkey

Economic & Development Committee

• Chair: Tito-Dante Marimpietri
• Vice Chair: Bob Chapman
• Rick Kerr
• Derek Giberson
• John Gray

Corporate & Finance

• Chair: Derek Giberson
• Vice Chair: Brad Marks
• John Neal
• Tito-Dante Marimpietri
• Rosemary McConkey

On October 24, 2022, Oshawa City Ward 1 incumbent Councillor Rosemary McConkey won the election by 8 votes over challenger Theresa Corless.  According to the City of Oshawa's procedures, an automatic recount would occur if the difference was 6 votes or less.

At the November 15, 2022 special meeting of council, John Mascarin of Aird & Berlis LLP provided a delegation on behalf of Theresa Corless requesting a recount pursuant to s. 57 of the Municipal Elections Act, 1996.

During discussion, it was noted that a total of 97 votes across the City were cast but not counted.  Fifty of those ballots were purposely spoiled or left blank and the remaining 47 were rejected by the tabulator.  The City Clerk believed that there were 7 votes in Ward 1 that were not counted because they were rejected by the tabulator.  The City Clerk also confirmed that once rejected by the tabulator, a human does not review the ballot to determine if there was a clear voting intention.

Council voted in favour of a recount for City Ward 1.  No timeline was discussed or determined.  If the challenger is not satisfied with the City's recount, she has the option to apply to the courts for a hand recount.