Bill 77 - An Act to Amend the Community Planning Act

BILL 77

An Act to Amend the Community Planning Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 1 of the Community Planning Act, chapter C-12 of the Revised Statutes, 1973, is amended by adding the following definitions in alphabetical order:

“building inspector” means a person appointed under one of the following provisions: (inspecteur des constructions)

(a) subparagraph 7(4)(a)(ii);

(b) subparagraph 7(4)(a)(iii) to supply a building inspection service in an unincorporated area; or

“planner” means an individual who is entitled to use the appellation MCIP or FCIP under the by-laws of the Canadian Institute of Planners; (urbaniste)

“type 1 subdivision” means a subdivision of land that is not a type 2 subdivision; (lotissement de type 1)

“type 2 subdivision” means a subdivision of land that requires the development of (lotissement de type 2)

(a) one or more streets, or

(b) a form of access other than a street as may be approved by an advisory committee or commission as being advisable for the development of the land;

2 Paragraph 2(i) of the Act is amended by striking out “on commissions and advisory committees” and substituting “on commissions, advisory committees and development officers or their delegates”.

3 Subsection 4(2) of the French version of the Act is amended in the portion preceding paragraph a) by striking out “situés” and substituting “situées”.

4 Paragraph 7(4)d) of the French version of the Act is amended in the portion preceding subparagraph (i) by striking out “de”.

5 The Act is amended by adding after section 16 the following:

CERTIFICATION OF PLANNING DOCUMENTS

Certification of planning documents

16.1(1) A planner shall certify the following documents before they are adopted, enacted or amended:

(a) a regional plan;

(b) a municipal plan;

(d) a basic planning statement;

(e) a development scheme;

(f) an urban renewal scheme;

(g) a zoning by-law under section 34;

(h) a flood risk area by-law under section 41.1; and

(i) a zoning regulation under section 77.

16.1(2) To indicate his or her certification of a document under subsection (1), a planner shall affix his or her seal to the document or stamp the document.

6 Section 34 of the Act is amended

(a) in subsection (3)

(i) in paragraph (h)

(A) in subparagraph (i) by striking out “and” at the end of the subparagraph;

(B) by adding after subparagraph (i) the following:

(i.1) to authorize, for an additional temporary period not exceeding one year, a development otherwise prohibited by the by-law if

(A) the applicant holds an authorization under subparagraph (i) that is to expire or has expired,

(B) an application with respect to the land has been made to amend the applicable zoning by-law, basic planning statement or rural plan, and

(C) the advisory committee or commission has received a resolution from the council confirming that the council will consider the application referred to in clause (B); and

(ii) by adding after paragraph (h) the following:

(h.1) empower the advisory committee or commission

(i) to delegate its authority under subparagraph (h)(i) to the development officer, and

(ii) to authorize a delegate under subparagraph (i) to further delegate his or her authority under subparagraph (h)(i) to any person;

(iii) in paragraph (j) by striking out “not exceeding the maximum fee set in accordance with the regulations”;

(b) by adding after subsection (9) the following:

34(10) A delegation authorized by a by-law under paragraph (3)(h.1) shall be in writing and shall set out the following:

(a) the manner in which the delegate shall exercise his or her authority; and

(b) any limitations, terms or conditions on the manner in which the delegate may exercise his or her authority.

7 Section 35 of the Act is amended

(a) by renumbering the section as subsection 35(1);

(b) by adding after subsection (1) the following:

35(2) A development officer may, subject to the terms and conditions that he or she considers fit, permit a reasonable variance from the requirements of a zoning by-law falling within subparagraph 34(3)(a)(i), (iii), (iv), (v), (vii), (viii), (ix) or (xiii) if the development officer is of the opinion that the variance is desirable for the development of a parcel of land or a building or structure and accords with the general intent of the by-law and any plan or statement affecting the development.

35(3) If an advisory committee or a commission has made a determination with respect to a request for a variance under paragraph (1)(b), a request with respect to the same variance shall not be made to a development officer.

35(4) If a development officer has made a determination with respect to a request for a variance under subsection (2), a request with respect to the same variance shall not be made to an advisory committee or a commission.

35(5) A development officer may delegate the power to permit a variance under subsection (2) to any person.

8 Section 36 of the Act is amended

(a) by striking out the portion preceding paragraph (a) and substituting the following:

36 If requested to permit a proposed use or variance under section 35, the advisory committee, commission or development officer may give notice to owners of land in the neighbourhood of the land in respect of which the request is received

(b) in paragraph (c) by striking out “the advisory committee or commission” and substituting “the advisory committee, commission or development officer”.

9 Section 37 of the French version of the Act is amended by striking out “hors-rue mais” and substituting “hors-rue, mais”.

10 Subsection 41.2(8) of the French version of the Act is amended by striking out “qu’a” and substituting “qu’à”.

11 Section 42 of the Act is amended by adding after subsection (4) the following:

42(5) If, pursuant to paragraph (3)(a), a by-law includes a fee to be paid for the approval of a tentative plan, the by-law may include different fees for the approval of tentative plans for type 1 subdivisions and type 2 subdivisions.

12 Paragraph 44(1)(j) of the Act is amended by striking out the portion preceding subparagraph (i) and substituting the following:

(j) shall, within six weeks of receiving an application for approval of a tentative plan that complies with the requirements of section 49,

13 Section 46 of the Act is amended

(a) in subsection (1)

(i) in paragraph (a) by striking out the semicolon at the end of the paragraph and substituting a comma;

(ii) in paragraph (b) by striking out the semicolon and substituting a comma;

(b) by adding after subsection (1) the following:

46(1.1) A development officer may

(a) subject to the terms and conditions that he or she considers fit, permit a reasonable variance from the requirements of a subdivision by-law falling within paragraph 42(3)(b) or (h) if the development officer is of the opinion that the variance is desirable for the development of land and accords with the general intent of the by-law and any plan, statement or scheme affecting the land,

(b) require that the subdivision plan include any terms and conditions attached to a variance permitted under paragraph (a), or

(c) withdraw any or all terms and conditions included under paragraph (b) and the withdrawal shall only be effective on the filing of an approved amending subdivision plan in the registry office.

(i) in the portion preceding paragraph (a) by striking out “under paragraph (1)(a), the advisory committee or commission” and substituting “under paragraph (1)(a) or (1.1)(a), the advisory committee, commission or development officer”;

(ii) in paragraph (c) by striking out “the advisory committee or commission” and substituting “the advisory committee, commission or development officer”;

(d) by adding after subsection (2) the following:

46(3) If an advisory committee or a commission has made a determination with respect to a request for a variance under subsection (1), a request with respect to the same variance shall not be made to a development officer.

46(4) If a development officer has made a determination with respect to a request for a variance under subsection (1.1), a request with respect to the same variance shall not be made to an advisory committee or a commission.

14 Section 50 of the Act is amended by striking out “six months” and substituting “one year”.

15 Section 54 of the Act is amended

(a) by repealing subsection (2) and substituting the following:

54(2) Unless filed in the registry office prior to the expiration of the period, the approval of a subdivision plan by a development officer is valid for one year only.

(b) in paragraph (3)b) of the French version by striking out “toiles” and substituting “toile”;

16 Paragraph 58(2)(a) of the English version of the Act is amended by striking out “as the case may be” and substituting “as the case may be,”.

17 The Act is amended by adding after section 64 the following:

FEES

Fees

64.1(1) The council of a municipality or a rural community council may by by-law prescribe fees for the following community planning and development services provided by a municipality, rural community or commission:

(a) providing a zoning confirmation letter;

(b) providing a letter confirming that a use of land, a building or a structure is in compliance with a community planning and development by-law;

(d) processing and considering requests under section 35; and

(e) examining an instrument under paragraph 44(1)(l).

64.1(2) If a fee is prescribed under subsection (1) and the municipality or rural community imposing the fee is in a planning district, any such fee collected by a commission shall be paid to the respective municipality or rural community.

18 Paragraph 69(1)(a) of the Act is repealed and the following is substituted:

(a) subject to subsection (1.1), apply to the Minister for approval of the document as conforming with the requirements of the following provisions of this Act:

(i) section 16.1;

(ii) paragraph 23(2)(a);

(iii) subparagraphs 23(5)(a)(i), (ii), (iii) and (iv);

(iv) clauses 23(5)(a)(vi)(A), (B), (E), (I) and (J);

(v) paragraphs 27.2(2)(a) and (b);

(vi) paragraphs 29(2)(a), (b) and (c);

(vii) paragraphs 69(2)(a) and (b); and

(viii) paragraphs 77(2.3)(a) and (b).

19 Subsection 71(2) of the French version of the Act is amended by striking out “l’arrête” and substituting “l’arrêté”.

20 Section 72 of the Act is repealed and the following is substituted:

Review of planning instruments

72(1) A by-law under this Act, a municipal plan, a rural plan under subsection 27.2(1), a basic planning statement or a development or urban renewal scheme may include a provision specifying when and how it shall be reviewed by council.

72(2) If a by-law, plan, statement or scheme includes a provision referred to in subsection (1), the provision shall require that council review the by-law, plan, statement or scheme not later than ten years from its commencement or the last review.

72(3) If a by-law, plan, statement or scheme does not include a provision referred to in subsection (1), council shall review the by-law, plan, statement or scheme not later than five years from its commencement or the last review.

72(4) An amendment of a by-law, plan, statement or scheme is not a review for the purposes of this section or a provision referred to in subsection (1).

72(5) Notwithstanding that a by-law, plan, statement or scheme includes a provision referred to in subsection (1), the Minister may require a council to review the by-law, plan, statement or scheme if the Minister considers a review necessary.

21 Section 76.1 of the Act is repealed and the following is substituted:

Fee regulations

76.1(1) The Lieutenant-Governor in Council may make regulations

(a) prescribing community planning and development services provided in unincorporated areas for which a commission may charge fees;

(b) prescribing the amount of a fee for a service referred to in paragraph (a).

76.1(2) Notwithstanding the Financial Administration Act, if a fee is prescribed under subsection (1), the fee shall be paid to the commission providing the prescribed service and shall be credited to the cost of the delivery of the land use planning service under subsection 27.2(2) of the Municipalities Act.

22 Section 77 of the Act is amended

(a) by repealing subsection (2.94) and substituting the following:

77(2.94) Section 72 applies with the necessary modifications to a regulation under subsection (2.1).

(b) in subsection (6)

(i) by adding after paragraph (a) the following:

(a.1) if the power mentioned in subparagraph 34(3)(h)(i.1) is provided for in the regulation, a letter from the Minister shall satisfy the requirement of clause 34(3)(h)(i.1)(C);

(a.2) the power mentioned in paragraph 34(3)(h.1) may be vested in a commission, and if it is, subsection 34(10) applies with the necessary modifications to the regulation;

(ii) in paragraph (c) by striking out “relevant commission” and substituting “relevant commission or development officer, as the case may be”;

(b.1) prescribe the fee to be paid for the approval of a tentative plan, including prescribing different fees for the approval of tentative plans for type 1 subdivisions and type 2 subdivisions;

(d) in subsection (8)

(i) in subparagraph a)(ii) of the French version in the portion preceding clause (A) by striking out “entraine” and substituting “entraîne”;

(ii) in paragraph (b) by striking out “the commission” and substituting “the commission or development officer, as the case may be”.

23 The Act is amended by adding after section 77.1 the following:

Regulations respecting approval of development

77.12 The Lieutenant-Governor in Council, on the recommendation of the Minister, may make regulations

(a) prescribing matters that a development must be in conformity with before a building permit or a development and building permit may be issued under subsection 81(1); and

(b) respecting what may be considered by a development officer to be adequate proof that a development is in conformity with a matter prescribed under paragraph (a).

24 Subsection 81(1) of the Act is amended

(a) in subparagraph (b)(ii) by striking out “and” at the end of the subparagraph;

(b) in paragraph (c)

(i) in the portion preceding subparagraph (i) of the French version by striking out “un règlement” and substituting “à un règlement”;

(ii) in subparagraph (ii) by striking out the period at the end of the subparagraph and substituting a semicolon followed by “and”;

(d) such other matters as may be prescribed by regulation.

25 Paragraph 86(2)(a) is amended in the portion preceding subparagraph (i) by striking out “81(1)” and substituting “paragraph 81(1)(a) or (b)”.

26 Subsection 93(1) of the Act is amended by striking out the portion preceding paragraph (a) and substituting the following:

93(1) If a development is undertaken in contravention of this Act, a by-law or regulation under this Act or terms and conditions imposed on the development, the Director, council or rural community council, as the case may be, or a development officer, building inspector or other person duly authorized by the Director, council or rural community council, may order

27 Section 95 of the French version of the Act is amended

(a) in paragraph (1.1)b) by adding a comma at the end of the paragraph;

(b) in paragraph (1.2)b) by adding a comma at the end of the paragraph.

28 Subsection 101(4) of the French version of the Act is amended by striking out “déposé” and substituting “déposée”.

29 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.

EXPLANATORY NOTES

Section 1

New definitions.

Section 2

Consequential amendment.

Section 3

A correction is made in the French version.

Section 4

A correction is made in the French version.

Section 5

New provision.

Section 6

(a)

A) Consequential amendment.

B) New provision.

C) Consequential amendment.

ii) New provision.

iii) Consequential amendment.

(b) New provision.

Section 7

(a) Consequential amendment.

(b) New provisions.

Section 8

The existing provision is as follows:

36 Where requested to permit a proposed use or variance under section 35, the advisory committee or commission may give notice to owners of land in the neighborhood of the land in respect of which the request is received

(a) describing the land,

(b) describing the use proposed or variance requested, and

(c) giving the right to make representation to the advisory committee or commission in connection therewith within the time limit set out in the notice.

Section 9

A correction is made in the French version.

Section 10

A correction is made in the French version.

Section 11

New provision.

Section 12

The existing provision is as follows:

44(1) Where a subdivision by-law is in effect, the development officer ...

(j) shall, within six weeks of receiving a tentative plan submission, ...

Section 13

(a) Corrections are made.

(b) New provision.

(d) New provisions.

Section 14

The existing provision is as follows:

50 The approval of a tentative plan or an exemption from submitting a tentative plan is null and void at the expiration of six months from the day such approval or exemption was given, except as regards any portion of the land in respect of which a subdivision plan corresponding to the tentative plan or the instructions of the development officer pursuant to paragraph 44(1)(b) has been approved by such officer.

Section 15

(a) The existing provision is as follows:

54(2) Unless filed in the registry office prior to the expiration of such period, the approval of a subdivision plan by a development officer is valid

(a) for six months only, with respect to a plan of land not in an integrated survey area, or

(b) for one year only, with respect to a plan of land in an integrated survey area.

(b) A correction is made in the French version.

Section 16

A correction is made in the English version.

Section 17

New provision.

Section 18

The existing provision is as follows:

69(1) With respect to any by-law enacted hereunder, and any municipal plan, rural plan under subsection 27.2(1), basic planning statement or development or urban renewal scheme adopted thereby, the council shall

(a) subject to subsection (1.1), apply to the Minister for his approval thereof as conforming with the requirements of this Act; ...

Section 19

A correction is made in the French version.

Section 20

The existing provision is as follows:

72 A by-law hereunder, and any municipal plan, rural plan under subsection 27.2(1), basic planning statement or development or urban renewal scheme adopted thereby, shall be reviewed by the council

(a) when the Minister considers a review necessary,

(b) when the council considers a review necessary, or

(c) not later than five years from the coming into force of the by-law, plan, statement or scheme or from the last review.

Section 21

The existing provision is as follows:

76.1 The Lieutenant-Governor in Council may, on the recommendation of the Minister, make regulations respecting the maximum fee under paragraph 34(3)(j) for the amendment of a zoning by-law.

Section 22

(a) The existing provision is as follows:

77(2.94) The Minister shall review a regulation respecting a rural plan not later than five years after its commencement or the last review.

(b)

i) New provisions.

ii) Consequential amendment.

(d)

i) A correction is made in the French version.

ii) Consequential amendment.

Section 23

New provision.

Section 24

(a) Consequential amendment.

(b)

i) A correction is made in the French version.

ii) Consequential amendment.

Section 25

The existing provision is as follows:

86(2) Subject to subsection (3), any person including the Director may appeal to the Board if he alleges that

(a) the terms and conditions imposed or the prohibition of his development, pursuant to paragraph 34(4)(c), or the refusal to approve his regional or other development pursuant to subsection 19(1) or 81(1) or to grant him a permit under this Act, or the terms and conditions attached to a permit, ...

Section 26

Consequential amendment.

Section 27

Corrections are made in the French version.

Section 28

A correction is made in the French version.

Section 29

Commencement provision.