Submission to the Ministry of Municipal Affairs and Housing on land use planning and appeal system review

Ontario Human Rights Commission
Submission to the
Ministry of Municipal Affairs and Housing
Land Use Planning and Appeal System Review

January 10, 2014

The Ontario Government’s Land Use Planning and Appeal System Review

The Ontario Ministry of Municipal Affairs and Housing is reviewing the Province’s land use planning and appeal system, with the goal of ensuring that is it predictable, transparent, cost-effective and responsive to the changing needs of communities. The Ministry held six workshops around the province and invited submissions until January 10, 2014.

The Ontario Human Rights Commission (OHRC) has used a range of its functions to reduce and eliminate discrimination relating to land use planning. However, to meet Ministry goals and be consistent with Ontario’s Human Rights Code, the land use planning and appeal system needs to incorporate a human rights lens and provide human rights-related information, education and resources to those who implement and use the system. Planners and decision-makers throughout the system and in municipalities will benefit from clear guidance from the Province.

The comments below set out the OHRC’s interest in land use planning, describe long-term and emerging issues of concern relating to planning, and then respond specifically to the themes and particular questions set out in the consultation document.

The Ontario Human Rights Commission and Housing

The OHRC has a broad mandate to protect and promote human rights as set out in Ontario’s Human Rights Code. Housing is a protected social area under the Code, and international human rights documents ratified by Canada recognize that housing is a fundamental human right that must be protected.[1]

Housing has been a priority issue for the OHRC for several years. During public consultation, the OHRC heard that land use planning and municipal decision-making can lead to discrimination in housing. The OHRC has since worked to prevent and address such discrimination, including producing a policy and other resources, and through cooperation and consultation, public education, monitoring and advice, public inquiries and litigation at the Human Rights Tribunal of Ontario and the Ontario Municipal Board.

The OHRC has several public documents and statements addressing planning, such as:

• guides relating to municipal planning (In the Zone) and rental housing licensing (Room for Everyone)[2]
• previous submissions to the Ministry of Municipal Affairs and Housing[3]
• Right At Home: Report on the consultation on human rights and rental housing in Ontario[4]
• Policy on Human Rights and Rental Housing[5]

Linking Human Rights, Housing and Land Use Planning

The Human Rights Code prohibits discrimination in five social areas, including housing and services, based on 17 grounds, such as age, race, colour, disability, receipt of social assistance, sex, gender identity, creed and others.

Many groups identified by Code grounds are more likely to require affordable or supportive housing, including group homes, lodging houses, social housing or other low-cost rental housing. These forms of housing are particularly important for newcomers, people with disabilities, people who receive social assistance, racialized and Aboriginal people, students, older adults, transgender people, women and larger, young or lone-parent families. When these forms of housing are restricted, such as by limits to their number or location, Code-identified groups are disproportionately affected.

In housing, municipalities fall under the Code both as housing providers and as bodies that provide services and make decisions that affect housing in their communities. Planning decisions can be discriminatory if they target or have a disproportionate effect on some people based on Code grounds, such as by limiting or excluding affordable housing in a community or in particular neighbourhoods.

Based on issues identified through public consultation, inquiries and intervention in legal cases at the OMB and the Human Rights Tribunal of Ontario, the OHRC is working to increase awareness of how certain long-standing, well accepted planning practices may result in discrimination. For example:

• Public consultation can become discriminatory if extra meetings are required for affordable housing, or if meetings become a platform for discriminatory “not in my backyard” (NIMBY) attitudes. Such opposition is rooted in stereotypes about the people who will occupy the housing, and incorrect assumptions about the impact the housing will have on the neighbourhood.[6]
• Minimum separation distance (MSD) requirements are appropriate to ensure sufficient buffers between different uses (such as separating industrial or dump sites from housing). But they may be discriminatory when applied to residential uses, limiting the development of supportive and affordable housing.[7]
• Many municipalities use other zoning restrictions to limit or exclude affordable housing such as lodging houses, rental housing or group homes in certain residential zones. These zoning restrictions may be discriminatory if they result in restrictions for groups protected by the Code.[8]

The above zoning practices may act as a form of “people zoning,” which has long been recognized as problematic and outside the scope of the Planning Act.[9] Such bylaws may discriminate even if they do not explicitly mention the characteristics of the people who will occupy the housing, because of their impact on marginalized, Code-protected groups.

New concerns have emerged that licensing, which cannot be appealed to the OMB, sometimes appears to be a proxy for “people zoning.” In some municipalities, licensing may be linked to exclusionary zoning bylaws, or otherwise appears to target certain Code groups or forms of affordable housing, which can have a discriminatory impact. While municipalities have the right to license rental housing, licensing should be undertaken only for legitimate purposes, such as to address genuine health and safety, land use and property maintenance concerns.

The OHRC has provided advice to many municipalities and undertaken significant work in an effort to reduce and eliminate these forms of discrimination. However, clear guidance from the Province would assist planners and municipal decision-makers in preventing and removing human rights barriers.

Responses to the Ministry’s Consultation Document

Theme A:

Eight questions were set out under this theme: “Achieve more predictability, transparency, and accountability in the planning/appeal process and reduce costs”

Question 2: Should the planning system provide incentives to encourage communities to keep their official plans and zoning by-laws up-to-date to be consistent with provincial policies and priorities, and conform/not conflict with provincial plans? If so, how?

Yes. The planning system should provide incentives, and use other measures, to ensure that zoning bylaws and municipal and regional official plans are consistent with provincial policies and priorities and with the Human Rights Code.

Municipalities and regions with outdated zoning bylaws may violate the Code and inappropriately limit supportive and affordable housing. They risk costly and unnecessary litigation, they could negatively affect Code-identified groups and could lead to the OMB spending its resources hearing cases that could have been prevented.

In 2012, the City of Hamilton denied an application to allow a group home for eight girls with mental health issues to move to a nearby area. The denial was initially based on an MSD requirement in the City’s Zoning Bylaw, despite a staff report acknowledging that the proposal was consistent with the PPS, the Provincial Growth Plan for the Greater Golden Horseshoe and the Hamilton-Wentworth Official Plan,[10] as well as human rights concerns raised by the OHRC.[11] The group home brought the issue to the OMB, and the OHRC intervened in the case. In 2013, the OMB found that allowing the group home’s application would be consistent with other uses in the area and with the provincial, regional and municipal plans, and that the City’s refusal to allow the move based was not justified by any demonstrated impact on the neighbourhood.[12]

The City has since committed to undertake a review of bylaws relating to MSDs for residential care facilities, disability, human rights and Provincial policy. A few other municipalities have chosen to take similar steps.

The actions of individual municipalities in response to litigation or OHRC input are important in removing barriers such as MSDs on a case-by-case basis. However, the land use planning system would benefit from a comprehensive, province-wide preventative approach to removing municipal planning barriers. These and other barriers frustrate provincial goals of maintaining and increasing affordable and supportive housing, developing inclusive and complete communities, and the realization of human rights across Ontario.

Provincial incentives may help municipal politicians respond more effectively to discriminatory neighbourhood opposition. However, following the below recommendations will help the Province to increase predictability, transparency, and accountability within the land use planning system, and to reduce costs by helping municipalities avoid litigation at the OMB and elsewhere.

Recommendations:

1. In its communications with municipalities and regions, the Ministry should provide information and guidance on:

• the relationship between the Human Rights Code, the PPS and municipal planning and regulatory tools such as official plans and zoning and licensing bylaws
• when minimum separation distances are, and are not, appropriate, based in legitimate land-use rationales rather than “people-zoning”
• the implications of legal decisions such as those from the OMB in Lynwood-Charlton v. Hamilton and Advocacy Centre for Tenants Ontario v. Kitchener,[13] with recommendations for municipal amendments to plans or bylaws
• how updating regional/municipal plans can increase inclusion, reduce discrimination, and help to avoid litigation.

2. The Ministry should advise municipalities of zoning limitations and planning practices that appear to be inconsistent with the PPS, the Human Rights Code, the Planning Act and/or legitimate planning rationales, recommend that municipalities end such practices, and set out questions for municipalities in considering the issues.

Question 4: What barriers or obstacles may need to be addressed to promote more collaboration and information sharing between applicants, municipalities and the public?

The OMB website does not include tools that allow parties or the public to search for and/or track cases by subject matter, or involving similar issues, such as human rights matters.

Question 5: Should steps be taken to limit appeals of entire official plans and zoning by-laws? If so, what steps would be reasonable?

Recommendation:

3. Regardless of what decisions are made with respect to limiting appeals, the Ministry should ensure that the planning system has the capacity to hear and address any human rights matter raised concerning official plans and by-laws.

Themes B and C:

Theme B asked for feedback on how to support greater municipal leadership in resolving issues and making local land use planning decisions, while ensuring a balance of wider public interests and those of the local community (questions 9-13).

Theme C focused on better engaging citizens in the local planning process, making it more accessible and allowing it to address concerns that the public lacks influence in planning decisions (questions 14-15).

The OHRC holds that “wider public interest” and “local community” must be understood to include Human Rights Code-protected groups and their interests.

People protected under the Code are members of every community. Theirs may not be the most vocal or powerful voices in the room – and they may not be able to be present when planning matters are considered – but these voices are essential to ensuring social well-being and inclusive, complete communities.

Questions 9 and 14:

9. How can better cooperation and collaboration be fostered between municipalities, community groups and property owners/developers to resolve land use planning tensions locally?

14. What barriers or obstacles may need to be addressed in order for citizens to be effectively engaged and be confident that their input has been considered (e.g.
in community design exercises, at public meetings/open houses, through formal submissions)?

Better cooperation and collaboration are vital to reducing tensions; citizen engagement is a central part of this. However, some developers and groups of citizens may have more resources to advance their positions, more awareness of how they may be affected by planning, more familiarity with planning processes, and/or may hold views inconsistent with the Code. When making bylaws, municipalities must ensure that they consider the public interest broadly including the impact of their decisions of Code-protected groups.[14]

Recommendations:

4. Municipalities should:

• actively seek input from affected Code-related tenants, their advocates, and the organizations that serve them, to ensure they are included in planning processes
• undertake additional research to include and properly understand the needs and perspectives of Code-protected groups, and assess the impact that different decisions may have on people based on Code grounds.

Taking these steps early in the planning process so that it can feed into the development of final reports and recommendations is more cooperative, inclusive and fair. It can help to prevent land use planning tensions and avoid legal actions.

Human rights can be infringed, and tensions inflamed, at different parts of the planning process. Discriminatory “not in my back yard” opposition often flares up in response to development of supportive and affordable housing, or relating to zoning or other bylaws affecting other forms of housing or services that are important for Code-protected groups.[15] Municipalities should ensure that they do not make decisions based on stereotypes about persons who require such housing or services, and take steps to prevent and address any discriminatory comment or actions.

Recommendations:

5. The Ministry should:

• advise municipalities to include human rights statements on public notices for statutory public meetings
• recommend the steps set out below for municipalities.

6. Municipalities should:

a. Communicate to their staff, decision-makers and the public that human rights will be respected in the planning process, by:

• including human rights statements in planning reports and on public notices for statutory public meetings
• providing information about human rights and how they can come into play in planning decisions
• including human rights impact analysis in internal briefing materials.

b. In public planning reports, describe: how the proposed project may affect people based on Code grounds, and the steps taken to include the perspectives of these groups, meet their needs, and mitigate any negative impact.

c. Ensure that planning decisions do not subject housing or services important to marginalized, Code-protected groups to more onerous standards or requirements than other housing or services.

d. In committee, council and public meetings about affordable and low-cost housing, or other planning issues related to housing or services affecting Code groups, set out and enforce the parameters and guidelines of the discussion, including:

• focusing on legitimate land use planning issues such as built form, rather than on the presumed characteristics of the people who will live in proposed housing or use particular services
• refraining from stereotypical and discriminatory comment.

e.  Provide realistic framing of what community engagement is, and is not meant to do, including:

• that the role of consultees in providing input does not include choosing who will or will not live in a neighbourhood
• that the municipality must obtain and consider community views expressed, but must balance these with the broader public interest, including human rights protections and provincial goals to advance affordable housing

f. Public communications must be accessible: plain language, density, style, use of graphics and distribution, placement and promotion of documents
and announcements can make the planning process more inclusive.

Question 15: Should communities be required to explain how citizen input was considered during the review of a planning/development proposal?

Yes.

Recommendation:

7. Municipalities should demonstrate that their planning process included consideration of the Human Rights Code, as discussed above, including that:

• the views and needs of affected Code groups were sought and taken into consideration in the consultation process
• relevant research was reviewed and incorporated
• the effect of the decision on Code groups was considered, as required.[16]

Theme D:

This theme asked for input on how to “protect long-term public interests, particularly through better alignment of land use planning and infrastructure decisions and support for job creation and economic growth” (questions 16 and 17).

An early section of the Ministry’s report refers to goals such as “meeting the changing needs of communities” and building “strong, healthy and complete communities,” which includes “social well-being” (pg. 2). However, these elements were absent from the two questions posed by the Ministry under Theme D.

Strong, healthy and complete communities include families of many sizes, single people, couples and mixed households of all ages, backgrounds, economic statuses and abilities. These communities include group homes and other supportive housing and a range of low-cost and affordable housing to meet the long-underserved and growing demand. They also include the services and facilities that enable all people to meet their needs.

Long-term public interests cannot be protected, and social well-being cannot be advanced, without considering human rights principles and legislation and including the needs and perspectives of Code-related groups. Taking these steps increases social well-being, decreases discrimination, and, by increasing inclusion and opportunity, contributes to the economic growth of a community.

Recommendation:

8. In considering what is in the public interest, the Ministry and municipalities should consider the Human Rights Code and the needs of people identified by Code grounds, and ensure that any decisions do not have an exclusionary impact.

Conclusion:

The OHRC would like to underscore the importance of affordable and supportive housing for many Code-identified groups, and the importance of strengthening tools and measures to support its development. We heard similar concerns from community members and groups at the Toronto meetings, and encourage the Ministry to closely consider the submission of the Ontario Non-Profit Housing Association (ONPHA).[17]

We encourage the MMAH to consider the Human Rights Code in this review process and all of its decision-making, and to take steps to ensure that municipalities are aware of their human rights obligations in planning.

Without awareness of the need to incorporate human rights principles and protections, organizations and municipalities may continue to make planning decisions that are inconsistent with Ontario’s Human Rights Code, land use policy and plans, and related case law, and risk litigation which could have been prevented. There is also a real and significant human cost to such decisions, which can exclude groups and leave them underhoused or otherwise underserved in their communities.

Ensuring that Human Rights Code protections are considered in Ministry and municipal decision-making will promote inclusion and encourage the full participation of all people in their communities.