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Public Sector Digest Features Article on Ontario’s Bill 108 From Burlington Mayor


NOTE: Featuring articles, case studies and interviews, Public Sector Digest‘s monthly digital and quarterly print publication deal with topics relevant to staff across all government levels and disciplines. The publication recently reached out to me to submit an article relating to Ontario’s Bill 108 — the full feature with background on Bill 108 from Public Sector Digest  (starting on pg. 14-15) is below (my article can be found on pages 23-25, if you click the link or flip through the embedded digital version).

In a word, the Province’s Bill 108 will have a devastating impact on municipal finances and local land use planning control. It will do nothing to reduce provincial costs and will inevitably increase the costs to municipalities at a time we are all trying to find efficiencies.

Burlington City Council, Halton Regional Council, fellow mayors from the Large Urban Mayors Caucus of Ontario (LUMCO) and other mayors from across the province have all expressed significant concerns with the impact it would have on our communities.

Many municipal councils passed resolutions detailing those impacts, including Burlington and Halton. This was done prior to the Bill’s passage, but our input was ignored.

With legislation that impacts no less than 13 different Acts, we requested more time to submit our comments before a decision was made so we could better evaluate the potential impacts to our cities.

The Province did not listen. The Bill, first introduced in May, was passed on June 6.

There are key resulting changes in the areas of development charges (DCs) and the Local Planning Appeal Tribunal (LPAT). The impacts of these changes alone on numerous aspects of municipal governance and residents will be immense.

DCs are intended to ensure growth pays for growth. They don’t do that now — paying roughly 80 per cent of the costs of growth while taxpayers pick up the remaining 20 per cent for everything from community centres to parks and transit.

The changes in Bill 108 will worsen this situation as certain items we used to be able to collect for have now been removed from DCs — parkland dedication, for example — and have been included in a new “community benefits” formula that is yet to be determined.

That new formula will also have a “cap.”

The changes to the eligible services in DCs (such as parks, recreation elements and libraries) will see an estimated reduction of $8.3 million in funding to Burlington over 10 years.

The timing of collection of DCs has also changed, deferring payments over a number of years that will saddle municipalities with the up-front costs of infrastructure until our treasury is repaid.

These changes — to the timing of collection of DCs and setting a capped amount — will see increased debt borrowing costs to fund growth-related infrastructure.

The new Community Benefits Charge consolidates DC soft services, parkland dedication and Section 37 benefits into a single charge.

Section 37 benefits are cash or in-kind payments for things such as park amenities or parking, and are negotiated for extra height and density. I have long been a critic of them for several reasons, including that they provide an incentive for overdevelopment.

The consolidation mentioned earlier will mean significant new restrictions on the use of community benefits funding, including the new Community Benefits Charge (CBC) not exceeding a to-be-determined percentage of the value of land.

Further, 60 per cent of CBC funds will need to be spent or allocated in each year, which is impractical when municipalities must save over several years for multi-million-dollar land acquisitions for parks or major park development.

Bill 108 does nothing to make this system better and it will, in fact, make it less likely that growth will end up paying for growth because of the cap and deferred payments.

In addition, the elimination of separate parkland dedication funding is anticipated to significantly reduce the City of Burlington’s future financial ability to acquire and develop new parkland.

If the actual costs of growth are higher than the cap, taxpayers will again have to pay the difference.

In addition, there is no guarantee that the savings being given to developers through Bill 108 from reduced contributions to the costs of growth will, in fact, be passed on to homebuyers. That defeats the entire purpose of Bill 108, which was to make housing more affordable. Home builders can therefore benefit at the expense of home buyers.

Another key change in Bill 108 is to the LPAT. The previous provincial government worked extensively with the development industry, municipal governments and citizens to reform the powers of the former Ontario Municipal Board (OMB).

The changes significantly limited the ability of the OMB to overrule local planning decisions and sped up the process of approvals so that housing could get to market faster and cheaper.

Bill 108 essentially reverts the LPAT back to the older OMB rules and procedures where, once again, there will be extensive hearings with lawyers and witnesses that start from the beginning of the planning process and redo all the planning analyses completed by municipal governments and their trained and knowledgeable staff.

There is also ability to introduce new evidence, and restrictions on third party appeals, including by residents.

Finally, the basis of an appeal is no longer limited to a test of consistency and conformity with provincial policies, but now is the much more subjective “highest and best use.”

Reverting to the old OMB rules means longer hearings due to the examination of witnesses and broadening of issues.

Developers and municipalities both spend millions of dollars to send lawyers and experts to argue over just what that means, and the usual outcome — at least in Burlington’s case — has not been in favour of the democratically-elected council and our community.

Burlington spent approximately $660,000 in the last three years on active OMB files. This number reflects spending to-date on active files and excludes OMB files that have been completed, resolved or settled within the last three years and excludes several files where internal legal staff are handling the matters.

Burlington’s 2019 budgeted provision to our contingency reserve (for all litigation matters) is just more than $2 million. A one per cent tax increase represents approximately $1.6 million for the city.

The revised LPAT essentially now operates as the planning departments for more than 400 municipalities in the province — neither timely, efficient or cost-effective. It’s worth noting Ontario is the only province in Canada with such a Tribunal, yet communities are successfully planned and built all over the country without one.

On July 10, Halton Regional Council, which represents the growing cities of Burlington, Oakville, Milton and Halton Hills, unanimously passed a resolution asking the province to once and for all eliminate the LPAT. I’m asking other municipalities to pass similar resolutions.

Bill 108 also implements reduced timelines for Council decisions for Official Plan Amendments (120 days from 210), Zoning Bylaw Amendments (90 days from 150), and Plan of Subdivision (120 days from 180).

These are challenging timelines for complex infill developments that are the bulk of new projects in Burlington. Our city has run out of greenfield land for subdivisions.

Further, one of the biggest delays in processing is waiting for approvals from the Ministry of Transportation for lands within their highway right of ways, as well as Ministry of the Environment, for contaminated, brownfield redevelopment projects. In reducing municipal timelines, the Province must also walk the talk and commit to speedier processing.

In short, the “new” rules and procedures for the LPAT will, in fact, add more time and more costs to the delivery of housing — the exact opposite of the stated intent of Bill 108.

It is clear that as long as the Tribunal exists (in whatever form), not only will housing be more expensive and slower to market, but democratic decisions will be overruled by an unelected body.

Now that Bill 108 has received Royal Assent, Burlington staff and Council have turned our attention to the regulations that will implement the Bill, expected this fall, where there may be opportunity to limit some of the damage it will cause.


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