the community planning act and the role of the development officer melanie tompkins, llb ken...

The Community Planning Act and the Role of the Development Officer

Melanie Tompkins, LLB

Ken Forrest, MCIP

City of Saint John

Seminar Overview

• An Introduction to the Community Planning Act.• Municipal Plans• Zoning Bylaws• Subdivision Bylaws• The Bylaw Adoption Process• Prohibition Re: Development (Section 81)• The Appeal Process• Enforcement

And….the role of the Development Officer within this system.

Seminar Overview

An Introduction to the Community Planning Act

The purpose of the Act is defined at section 2:- The division of the Province into 7 planning regions, adoption of regional development plan (there are no regional development plans);

- Establish planning districts;

- Establish provincial planning policy (there are none);

- Adoption of municipal plans;

- Adoption of development schemes and urban renewal schemes;

- Establish district planning commissions and planning advisory committees (PAC);

- Administration by Development Officers of the municipal plans and by-laws;

- Confers variance powers onto planning commissions, PAC and the DO;

- Provide for by-laws re zoning, subdivision, building, etc; and

- Confer administrative powers to administer planning bylaws.


The Minister of Environment is responsible for the administration of the CPA - or his designate (s. 1)

To fulfill its purpose, the CPA creates 2 scenarios:– 1) Planning Regions and Planning Districts for which the Minister

creates Planning Commissions (ss. 5-6)– 2) Municipalities which are not in a Planning Districts which shall by

by-law create a Planning Advisory Committee (s. 12)

** Much of this is about to change with regional service commissions.


A. Planning Commissions

– Created by the Province under ss. 5 and 6.

– Have their own budget.

– Separate legal entity – removed from municipality – see s. 7(1) “A commission is a body corporate, having only such powers as are given to it by this Act.”

– Planners and other staff are hired by and are employees of the Commission.

– Municipalities forming part of Planning District appoint Commissioners to the Planning Commission (s. 6(2)).

– The result: In Moncton’s case, Salisbury makes recommendations regarding Moncton.


B. Advisory Committees

– Municipalities not part of Planning Districts provide their own planning services.

– Pursuant to s. 12, they must by by-law create a Planning Advisory Committee (PAC) and appoint members to it.

– PAC serves same purpose as Planning Commissions in Planning Districts with respect to land use planning decisions.

– In Saint John, the City Solicitor provides advice to the planning director and represents the PAC in proceedings where its interests are not adverse to the City’s.

– The result in Saint John: more diverse range of planning services because planning lens is applied to a wider range of issues - planning has an impact on all services offered by a municipality.


C. Powers and Duties of the PAC

The powers and duties of the PAC are set out at s. 13:– Those accruing under the zoning and subdivision by-laws, as well as those

accruing under the Act.

– Advise and make recommendations to the Council on any matter relating to community planning;

– Give its views to the Council on any by-laws proposed to be enacted under the Act whether or not such views have been requested;

– Exercise powers and perform duties relating to community planning as are given to it by the Act.


D. Planning Director

• Where a municipality or rural community chooses to engage in land use planning, it must appoint either a planning director – WHO MUST BE A PLANNER -, or a municipal planning officer. (s. 16(1))

• Such appointee is the Development Officer for the municipality (s. 16(2))

Questions?

Municipal Plans - Section 23

• Are not mandatory in New Brunswick.• Are prepared by under the direction of the municipal planning

director (a planner) or a planning consultant .• Prepared on the basis on technical background studies.• Contain statements of policy, proposals, and a five year capital

budget for the municipality.• Must be adopted by a majority of the whole of Council.• Plan adoption prevents developments inconsistent with:

– Any policy or proposal in the case of the municipality;– Any proposal for the Province or a person.

• The municipal plan prevails over a zoning or subdivision bylaw.

Rural Plans for Villages - Section 27.2

• Are essentially a hybrid municipal plan and zoning bylaw.• Contain policies, proposals, and zoning provisions.• Policies or proposals prevail over zoning provisions.• A village or the Province are not committed to undertake

any proposal in the plan.

Zoning Bylaw - Section 34

http://www.andertoons.com/cowboy/cartoon/0309/well-ill-be-darned-accordin-to-this-here-zoning-law-this-town-plenty-big-enough-for-both-of-us/


• If you have a municipal plan, you must have a zoning bylaw.• A zoning bylaw:

– Divides the municipality into zones;– Prescribes the purposes for which land, buildings, and structures

may be used and prohibits any other use;– Contains standards for such matters as:

• the size and dimension of lots;

• Maximum density;

• Building height, bulk and design;

• Access to streets;

• Parking;

• Landscaping, excavation, and the altering of land levels;

• Signage;


– Prescribe a system of permits;– Prohibit the erection of buildings where there are not satisfactory

arrangements for infrastructure;– Sets out the process to amend the bylaw; and– Authorizes the levying of a fee.

Temporary Uses - Section 34 (3) (h)

• A development otherwise prohibited by the zoning bylaw may be authorized for a one or two year period.

• A PAC may delegate approval authority for temporary uses to the Development Officer (only for one year approvals)

• A second year can only be approved if:– An application to amend the Zoning Bylaw has been submitted for a

permanent approval and the council confirms that it will consider the application.

“Good Faith” Variances - Section 34 (8)

• The Act does take pity on those who make an honest mistake.

• Section 34(8): Where in good faith, a building or structure encroaches up to 60 cm. on a setback requirement or up to 30 cm. on a yard requirement, such encroachment does not constitute a violation.

• Whether the building encroached in good faith is up to the Development Officer (Section 34(9)).

Variances - Section 35

• PAC may permit, subject to such terms and conditions as it considers fit:– Similar/compatible uses; and– Variances from the requirements of the zoning bylaw that are:

• Reasonable;

• Desirable for the development of land or a building; and

• In accord with the general intent of the bylaw and any plan.

• PAC or the development officer may give notice to neighbours.

Development Officer Variances – Section 35 (2)

• Regardless of whether you have a zoning bylaw or zoning provisions in a rural plan, a development officer may, subject to terms and conditions, permit variances for:– Size and dimensions of lots;– Height, ground area, floor area, and bulk of buildings;– Percentage of land to be built upon and depth, size or area of yards,

courts, parking areas and open spaces;– Placement , location, and arrangement of buildings;– Placement and height of landscaping and fences;– Types, dimensions and location of access to streets;– Off-street parking and loading facilities; and– Location, dimension, and construction standards for signs.

Development Officer Variances – Section 35 (2)

• The Development Officer needs to decide whether he/she will deal with the variance or whether it will be sent to PAC.

• PAC cannot overrule a DO decision. A DO cannot overrule a PAC decision.

• The normal appeal provisions apply for DO variances.• The DO may delegate the power to permit a variance to any

person.• Many of the larger communities in New Brunswick have

adopted common procedures for DO variances.• Since 2009, Saint John has processed 153 DO variances,

or about 65% of the total number of variance applications.

Zoning Confirmation Letters

• Development officers often provide letters to interested parties providing zoning information.

• It is common to receive requests confirming that a use of land, a building, or a structure is in compliance with bylaws.

• Caution must be exercised in this area. Before indicating that the use or situation is legal, you need to know exactly what’s there.

• A fee may be charged for this service (Section 64.1(1)).

Questions?

Subdivision – Section 42

• A municipality/rural community may adopt a subdivision bylaw.

• A bylaw must be consistent with a municipal plan or rural plan.

• A subdivision bylaw may:– Contain application requirements and fees;– Provide standards for laying out streets, lots, blocks, and LPP;– Provide that lots shall abut a street or such other access approved

by PAC;– Provide for the dedication of lands for public purposes;– Require that subdividers contribute to the cost of infrastructure;


• A subdivision bylaw may:– Provide that the development officer shall not approve a plan if, in

the opinion of the Council, the subdivision does not have adequate streets, water and sewer lines, light, recreational areas, or other facilities required by the bylaw or satisfactory arrangements cannot be made for these facilities.

– Require a subdivider to enter into a binding agreement to provide the required facilities.

– Provide that a development officer shall not approve a subdivision plan if, in his opinion and in the opinion of the committee:

• The land is not suited for the intended purpose or may not reasonably be expected to be used for that purpose within a reasonable time.

• The subdivision will prejudice further subdivision of the subject or adjoining properties.

The Development Officer’s Role in Subdivision – Section 44 (1)

• Where a subdivision bylaw is in effect, the DO:– Is the receiver of tentative and final subdivision plan submissions;– May exempt a person from meeting certain requirements for plans;– May grant exemptions in accordance with Section 48;– Shall forward tentative plans that involve streets or LPP to the

council;– Shall forward plans involving utility or other easements to the power

and telephone companies; and– Shall forward subdivisions that require variances to the committee.

Approval of Tentative Plans – Section 44 (1) (j)

• A DO must approve or reject a tentative plan within 6 weeks of receiving an application that complies with the requirements.

• The DO shall approve plans that confirm with any applicable municipal plan, rural plan, zoning bylaw, and other planning bylaw.

• Rejections must be in writing stating the features of the plan objected to.

• Approval of a tentative plan shall not be shown on the Plan (Section 49 (3)).

• The approval of a tentative plan is null and void after 1 year.

Approval of Instruments – Section 44 (1) (l)

• The DO must examine each instrument and any attached plan that transfers an interest in land and shall:– Shall approve it for registration;– Shall exempt it pursuant to Section 48;– Shall refuse to approve it if prohibited by the Act and may refuse to

approve it if it is inaccurate or fails to include relevant information.

• Approval is signified by the DO signing and dating the instrument.

• A municipal planning director may delegate his powers but a municipal planning officer requires approval in writing from the Minister.

• A fee may be charged for reviewing instruments (64.1(1))

Financial Responsibility for Existing Infrastructure – Section 45

• A subdivision bylaw may require that a subdivider pay for facilities installed by the municipality or others.

• Where a bylaw contains this provision, the DO shall not approve a subdivision unless the subdivider has paid or agreed to pay the costs required.

• Repayment to the municipality shall go into a special account to be applied against the cost of the facility.

• If a person other than a municipality bears the cost, the municipality forwards the money to that person.

Variances from the Subdivision Bylaw – Section 46

• The committee may permit variances from the subdivision bylaw and may do so subject to terms and conditions.

• A development officer may permit variances from the standards for streets, lots, blocks, and land for public purposes and may do so subject to terms and conditions.

• The committee or DO may provide notice to neighbours.• Either PAC or the DO must consider the variance.

Subdivision Plans with Streets and/or LPP - Section 44 (2)

• Subdivision plans that:– Include public or future streets or LPP require the assent of council.– Require variances shall not be approved until the variances have

been approved by the committee.– Include utility or other easements have either received advice from

the utility, more than 2 weeks has passed, or is approved by the DO despite their being an objection from the utility.

Exemptions – Section 48

• A development officer may exempt from a subdivision bylaw:– Any subdivision in which each parcel is not less than 2 hectares in

area, fronts of a publicly owned street, and has at least 150 metres of width and the minimum setback;

– The conveyance of a part of a parcel that is distinct from other parts by reason or separate possession, occupation, or use and was so before a subdivision bylaw was enacted under this or a previous Act;

– The conveyance of a part of a parcel that is distinct from other parts by reason of a public street, railway, lake, or river separating it from other parts;

– Any transaction that grants an interest (in total) for a period not exceeding 10 years;


• A development officer may exempt from a subdivision bylaw:– The conveyance of any easement or right of way;– A sale pursuant to a power in a mortgage before a subdivision bylaw

was enacted under this or a previous Act;– A conveyance being acquired by the Crown for highway purposes.

• A DO may refuse to grant an exemption if in her opinion and in the opinion of the committee the exemption:– Is undesirable for the development of the land or neighbouring land;– Is not in accord with the general intend of the Act or a bylaw made

pursuant to the Act.

Final Subdivision Plans (Section 52)

• Applications for approval of a final plan are submitted to the development officer.

• Approval of the plan shall be shown on the face of the plan and include a stamp or certificate of approval, the signature of the DO, and the date.

• The approval of the DO is a pre-requisite for filing of the plan in the registry office.

• Copies of the approval plan retained by the DO shall not be provided to anyone outside the organization (Section 54(5)).

The Assent of Council (Section 56)

• Subdivision plans that involve public or future streets and/or land for public purposes require the assent of the council or rural community council.

• A committee recommendation is required before assent is given.• The committee shall consider topography, determine that lots are

suitable for the intended use, appropriate street intersections and access to the subdivision and lots, and convenient further subdivision.

• The clerk of the municipality shall certify an assent by signing the plan and affixing the corporate seal.

• Vesting occurs on the filing of the plan in the registry office.

An Approved Subdivision Plan

Questions?

The By-Law Adoption Process

• By virtue of s. 65 of CPA, each by-law enacted under the authority of CPA is subject to the rules pertaining to the passing of by-laws stipulated at s. 12 the Municipalities Act:– Read 3 times by title – though only two readings by title may take

place at one meeting of the Council;– Read in its entirety at least once (publication exception);– Sealed with the corporate seal;– Signed by Mayor and Clerk; and– State thereon that it is enacted by the Council of the municipality.


Additional Requirements for By-Law enacted under CPA (ss. 66-68)

– Before enacting a by-law under the CPA or an amendment to such a by-law, the Council MUST request in writing the written views of the PAC ;

– The by-law is not valid unless such views have been requested;– If the by-law does not give effect to the written views of the PAC, a

majority vote of the whole council is required for by-law to be valid;– PAC has 30 days (or such longer period as the council may decide)

to provide its written views. If it fails to do so, it is deemed to have recommended approval of the by-law or amendment.

– The by-law comes into force when filed in the Registry Office.


Additional Requirements, continued ...– Amendments to the Zoning By-law are not valid unless Council has

held a public hearing for the consideration of objections to the by-law or amendment;

– No public hearing requirement for subdivision, building, flood risk area or Planning Advisory by-laws;

– Amendment to a Municipal Plan requires approval of the Minister; and

– The Council must file in the Registry Office a certified copy of the by-laws and amendments.

Questions?

Prohibition re: Development – Section 81

• No person shall undertake a development and no building or development permit shall be issued unless the development officer approves.

• The development officer must indicate that the project conforms with:– Any municipal plan, rural plan, or other plan; and– Any zoning or deferred widening bylaw.

• Permits must be posted in a prominent place.• Approval authority may be delegated by the municipal

planning director or with the approval of the Minister.

The Appeal Process

1. When may a person appeal to the APAB? (s. 86)

A. The Applicant

– If terms/conditions imposed or the prohibition of development or the refusal to approve a development or grant a permit or the terms/conditions of a permit:

• Resulted from an unreasonable use of power or a misapplication of the Act/Regulations/by-laws;

• Would cause the person special or unreasonable hardship

**Appeal period is 60 days from the giving of the decision or from the date of the permit.

The Appeal Process


A. The Applicant, continued ...

- If the refusal of the Development Officer to approve a plan, approve an instrument for registration or exempt an instrument from registration resulted from a misapplication of the Act/regulations/by-laws.

** Appeal period is 60 days from the date of the refusal.

The Appeal Process


B. Others

- if approval of another person’s development or the granting of a permit to such person

– Resulted from a misapplication of the Act/Regulations/by-laws;– Would cause the person special or unreasonable hardship

- If the standards prescribed by the Council under s. 41 or the proposed action of Council

- Are not necessary to protect the best interest of the municipality;- Would cause the person unreasonable hardship.

** Appeal period is 10 days from the date of approval, date of posting permit or from the giving of the Notice.

The Appeal Process

2. Powers of the Assessment and Planning Appeal Board (s. 87)

– Dismiss the appeal.– Revoke the approval or permit.– Attach terms/conditions to an approval or permit.– Affirm/revoke/vary Council’s prescribed standards or actions.– Order the Development Officer to approve the plan or the instrument

for registration, or to exempt an instrument from registration.– Refer a matter back to the PAC, Council or Development Officer with

directions.

The Appeal Process

3. Decisions of the APAB (s.88)

– a decision of the majority of the Board is a decision of the Board.– The Minister must publish annually those decisions of the Board

“he/she considers to be of significance”.• Hard copies sent to Planning Commissions and Departments

periodically;

• Available on CANLII (1992-date)

** APAB is governed by the Assessment and Planning Appeals Board Act, R.S.N.B. 2011, c. 114.

Questions?

Enforcement

1. Powers of Minister (s. 91)

-The Minister may quash a by-law made under the CPA if it is in the public interest to do so, by giving notice to that effect in the Royal Gazette.

Enforcement

2. Right of Entry (s. 92)

– Director/Development Officer or a person authorized by Council has the right to enter at all times upon any property within his jurisdiction for the purpose of making any inspection necessary for the administration of a by-law/regulation under CPA.

– The act provides for a mechanism to follow in cases where a Development Officer is refused access.

Enforcement

3. Orders (s. 93)

– If a development is undertaken in contravention of a by-law/regulation or of terms/conditions imposed on a development, the Director, Council, Development Officer, Building Inspector or such other person duly authorized by Council may order:

• The cessation of the development;

• The alteration of the development so as to remove the contravention; or

• The doing of anything required to restore the land/building/structure to the condition in which it was prior to the development.

Enforcement

3. Orders (s. 93), continued ...

– Subsection 93(2) list the conditions related to such an Order:• Must be in writing; and

• Be served on the owner.

– An owner must comply with an Order at his own expense. (s. 93(3))– If an owner fails to comply with an Order, the Council may cause the

ordered action to be undertaken and may recover the cost of doing so from the owner in an action. (s. 93(4))

• The costs incurred by a Council in this case constitute a lien against the property until they are recovered from the owner. (s. 93(5))

Enforcement

4. Application to the Court of Queen’s Bench (s. 94)

– The municipality may make an application to the Court of Queen’s Bench if a person contravenes:

• any provisions of the Act/Regulation/By-laws;

• an Order made under the Act;

• terms and conditions imposed under the Act; or

• a decision of the Board.

– Upon such application, the Court may:• Make an order restraining the continuance of the contravention;

• Make an order directing the removal/destruction of a building/structure;

• Make an order as is required to enforce the relevant provisions; or

• Make an order as to costs and as to the recovery of the expense of the removal.

Enforcement

5. Application to the Court by others (s. 94.1)

– Any person directly affected by the operation or non-enforcement of a by-law, resolution or order made under CPA may apply to the Court of Queen’s Bench.

– Upon, such application, the Court may by order:• Quash it in whole or in part for illegality; or

• Declare that it is in force and effect.

Enforcement

6. Offences (s. 95)

– A person who violates or fails to comply with s. 81(3) or any provision of a by-law made under CPA commits an offence punishable as a Category B Offence (Fines: $140-$640 – s. 56(2) POPA).

– For violations of an order made under CPA or decision of the Board or for obstructing a person in the performance of his duties under the CPA is an offence punishable as a Category E offence (Fines: $240-$5,200)

– A conviction for an offence does not operate as a bar to further prosecution for continuation of the offence.

Enforcement

7. Crown Lands (s. 96)

– The Crown and its agents are exempt from the application of the Community Planning Act.

– Others who operate on Crown Land are subject to the Act.

Questions?

the community planning act and the role of the development officer melanie tompkins, llb ken...

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