Update on Bill 23: More Homes, Built Faster Act, 2022 (Second Reading/Commitee Version)

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As an update to our October 27, 2022 Briefing Note regarding Bill 23, the More Homes, Built Faster Act (“Bill 23”), an amended version of the legislation has been released. The updated Bill 23 includes proposed changes resulting from the Standing Committee consideration of Bill 23 on October 31-November 21, 2022.

The amended text of Bill 23 can be found here.

The notable amendments to Bill 23 concern third party appeal rights; timing of requests Official Plan Amendments, Zoning By-law Amendments, and Minor Variances; Section 37 Agreements; the scope of Site Plan control; and development charge rates for certain rental projects.

Third Party Appeal Rights

The First Reading version of Bill 23 (discussed in our previous Briefing Note) proposed the elimination of appeals by third parties (with the exception of certain public agencies and bodies) of approved Official Plan Amendments, Zoning By-law Amendments, Consents, and Minor Variances.

As originally drafted, this would have prevented both appeals by neighbours of development applications, as well as appeals by landowners of municipally-initiated Official Plan and Zoning amendments.

The Second Reading version of Bill 23 continues to prevent third party appeals of Minor Variance and Consent approvals.

However, for Official Plans, Official Plan Amendments, Zoning By-laws, and Zoning By-law Amendments, the prohibition has been removed. This applies equally to municipally-initiated instruments as well as to privately-initiated and site-specific applications. Appeals such as these will be permitted as they were before Bill 23.

To the extent the originally-proposed prohibition (i.e. in the First Reading version) was meant to eliminate NIMBY and nuisance appeals of meritorious housing proposals, we note that Bill 23 continues to provide the Ontario Land Tribunal with tools to expedite certain kinds of appeals and enhanced powers to award costs in the event of appeals.

No 2-Year Moratorium on Applications

Previous amendments to the Planning Act introduced 2-year moratoriums on certain applications.

For example, following approval of a site-specific Zoning By-law Amendment, no application for a minor variance could be made for a period of 2 years, except with the express consent of municipal council.

Similarly, following the approval of an Official Plan or a Secondary Plan, no applications could be made to amend the new Plan for 2 years without council’s consent; and in the event of approval of new comprehensive Zoning By-law for a municipality (together with repeal of older by-laws), no site-specific rezoning applications would be permitted for 2 years without council’s consent.

The First Reading version of Bill 23 proposed to lift these 2-year moratoriums in the case of pits and quarries applications only.

Through Second Reading and the Committee amendments, Bill 23 now proposes to delete these moratoriums altogether, effectively allowing site-specific applications to be considered on their merits at any time regardless of the prior approval of Official/Secondary Plans, rezonings, and minor variances.

Section 37 Agreements

Previous amendments to the Planning Act which introduced Community Benefits Charges (“CBCs”) as a replacement for the prior Section 37 Benefits regime – whether by design or inadvertence – deleted the tool of statutorily-recognized Section 37 Agreements.

Although the CBC regime (which, due to transition provisions for pipeline applications, remains largely untested) did provide for “in kind contributions” in lieu of cash payments to municipalities at the time of building permit issuance, it did not provide for an explicit mechanism to secure those in kind contributions. Previously, Section 37 Agreements could be registered on title, and by operation of the Planning Act, could be enforced against future owners of a piece of property (in the normal course, positive obligations to do something cannot be enforced against future owners of land). This allowed for ongoing obligations to be enforceable and allowed for certain benefits to be delivered after the issuance of building permits, even if ownership changed or if a property were to be condominiumized. Without this mechanism, the in kind benefits concept behind the CBC regime lacked flexibility.

The Second Reading version of Bill 23 restores the ability to secure in kind benefits through an agreement that can be registered on title and will run with the lands and bind future owners, restoring the flexibility that was available under the previous Section 37 Benefits regime.

Site Plan Control – Green Standards and Sustainability

The Second Reading version of Bill 23 continues to propose reductions on the scope of Site Plan control through amendments to both the City of Toronto Act, 2006 and the Planning Act.

However, whereas the First Reading version of the Bill eliminated control over exterior design and landscape aesthetics altogether, the Second Reading version now restores control over green roofs and environmental construction standards and the sustainable design of landscape elements as a Site Plan measure.

Development Charges on Rental Housing

The Second Reading version of Bill 23 provides greater scope for reductions in development charges beyond the First Reading version in two ways:

Firstly, the capping on development charges within the first four years of a new development charges By-law (80% in the first year, 85% in the second year, 90% in the third year, 95% in the fourth year) is now proposed to apply to any municipal development charge by-law passed after January 1, 2022, rather than June 1, 2022 (as per First Reading).

Secondly, the further reductions for purpose-built rental housing (25% reduction for 3+ bedroom units, 20% for 2 bedroom units, and 15% for other units) are now proposed to apply to certain prescribed (by regulation) projects where such reductions would not otherwise have been available as a result of certain timing factors or agreements previously entered into.

The above update should be read in conjunction with our previous Briefing Note on Bill 23 (which can be found here). As previously, we will continue to monitor and comment on any further changes to the legislation and on any noteworthy regulations or further housing supply initiatives as they come forward.

Please feel free to contact us directly to discuss Bill 23 and the associated changes in further detail:

November 23, 2022.

Disclaimer: This document is for information purposes only and does not constitute legal advice to any party. The contents of this document reflect our firm’s general review and observations concerning legislative and regulatory instruments, which are subject to change. Please seek professional legal advice on matters of direct concern to you.

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Briefing Note - Bill 23: More Homes, Built Faster Act, 2022 (First Reading Version) And Related Housing Supply Measures