Law Times

LAW TIMES / JUNE 30 - JULY 7, 2008 PAGE 13 Greater Golden Horseshoe, more protection has been given to lands designated for employment uses, which lawyers say has left some questions when it comes to what constitutes employment land. In 2005, the province made an More protection given to lands for employment uses U BY HELEN BURNETT Law Times nder recent changes to legislation and Ontar- io's growth plan for the While there are merits on both sides, she adds, "that obvi- ously creates a tension because if the demand isn't there for those employment lands, the landowners are sitting there with those lands designated for some kind of urban develop- ment, but they may be looking to be sitting on them to 2030, which is not what they're in the business of doing." According to the Minis- important change to its provin- cial policy statement — that was strengthened to try and provide greater protection for employ- ment lands, which are areas des- ignated for "clusters of business and economic uses" — saying that they could only be converted for non-employment use after a comprehensive municipal review, says Steven Zakem, a member of the municipal and land use plan- ning group at Aird & Berlis LLP. As a result, "one of the issues we've had to struggle with is what constitutes a conversion," says Zakem. Indeed, according to the growth plan, prepared under the Places To Grow Act, 2005 as a framework for implementing the provincial government's "vi- sion for building stronger, pros- perous communities by better managing growth in this region to 2031," municipalities are asked to plan for, protect, and preserve employment lands for current and future issues. This includes only converting lands within employment areas to non-employment uses through a municipal comprehensive re- view when there is a need for the conversion; there is existing or planned infrastructure to support the conversion; it will not ad- versely affect the "overall viability of the employment area"; and a few other factors. Under the growth plan, ma- jor retail uses are also considered non-employment uses. Susan Rogers, a lawyer with Townsend Rogers LLP in Oakville, says there is a tension between a desire by the munici- palities to maintain their em- ployment lands and the current demand for residential land. "Obviously, developers want to build as soon as they can, and if the demand is current for resi- dential, they want to sometimes take the lands that are currently designated for employment and if it makes some sense, change it into residential lands," she says. The other problem, she says, is that municipalities want to main- tain employment lands well into the future, in some cases to 2030. try of Municipal Affairs and Housing, Bill 51, which came into effect last year, "strength- ens the ability of municipali- ties to protect strategic em- ployment lands by removing an applicant's right of appeal to the Ontario Municipal Board when council refuses or fails to adopt an official plan amend- ment or pass a zoning bylaw amendment that proposes to remove any land from an area of employment . . . " The leg- islation is designed to help mu- nicipalities protect employment lands from being converted to other uses when the conversions are not supported by council. "Conversion of employment lands now under the Planning Act can only be initiated by a municipality," says Zakem. Through its growth plan and other policies, the province has tried to limit the ability of land- owners who own land designat- ed for employment uses to con- vert them to non-employment uses, says Rogers. However, the wording of the sections isn't that clear, says Rog- ers. For example, the issue of what constitutes employment land and what constitutes non- employment land. While a sub- division may clearly fall within non-employment land, "the issue is, what if you construct some- thing that is a combination of office building and retail, what if you construct something that is a combination of office building and residential?" says Rogers. Lawyers have been running into differing interpretations, says Zakem, such as whether a conversion is purely going from employment to non-employ- ment, or if there is a mixture and where to draw the line. The de- bate is still ongoing, he adds. The problem, says Rogers, is that "it's not spelled out precisely in the provincial policies. The province has said they feel that the definition of what constitutes an employment use is really kind of a locally defined issue. That causes a bit of a problem because everybody is looking to everybody else to define it." what it is they're really trying to do here," she says. Because the economy is still doing well, Rogers says she hasn't seen more landown- ers taking these issues to the OMB, as they have accom- modated the municipalities, as the costs of the accommoda- tion can be dealt with in their business plans. As the policies are new and take time to work their way through the system, developers also try and work these things out with the mu- nicipalities first, she says. She adds, however, that she At the end of the day, the is- sues have to get resolved by the OMB, which Rogers says may not be the best place for it to get resolved, and it should be between the province and the individual municipality. "The policy's there, the pur- poses are stated, but they're not stated with sufficient precision for people to really understand is not sure that this will con- tinue if the economy starts slowing down. "For the devel- opers who are in the business of developing, if they're going to be sitting with land inven- tory that's going to be sitting there until 2030, that may end up being a very expen- sive proposition and they may have to take on the fight with the municipalities," she says. Municipalities are also re- quired by June 2009 to bring their official plans into con- formity with the growth plan. "Now we're struggling a little bit with, well, what's a major retail use, so not all retail uses are pre- vented in employment areas un- der the growth plan, just major retail uses, so what's major ver- sus minor?" says Zakem. "You have to interpret each official plan policy that applies to a particular site in its proper context to determine whether or not something constitutes a conversion," he says. While the conformity with the growth plans will provide some clarity, Zakem says that he doesn't think a lot of municipalities will make the deadline. "This is a lot of planning coming together at one time, and really has the possibility of slowing development down sig- nificantly while these issues are worked out," he says. Last month, the province is- sued a background paper enti- tled "Planning For Employment in the Greater Golden Horse- shoe," aimed at initiating a dis- cussion with regard to employ- ment areas. The paper is being circulated for comment among stakeholders and is intended to hopefully provide clarity on the issue, says Zakem. "It's not clear whether this con- sultation will lead to any change in policy or whether it will just lead to some sort of additional guid- ance from the province concerning employment uses," he says. LT Trust [ Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. Marketplace COUNSELLING Dr. Valentin Shulman - Helping legal professionals to overcome depression and stress since 1989. Individual sessions, telephone coaching. Call (416) 766-6185. To advertise call 905-841-6481 www.lawtimesnews.com

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