The Planning Act provides a framework for municipalities to make land use decisions to fit local needs and circumstances. It also recognizes human rights as part of the planning process. In making these decisions, municipalities must make sure they do not violate the Human Rights Code.
The built environment — buildings, transport networks, green spaces, public realms, natural systems and all the other spaces that make up a community — plays a critical role in shaping the physical, psychological and social health of individuals and their communities.
Healthy communities need a mixture of rental and ownership opportunities, as well as market, non-market and social housing. Planning restrictions that result in a concentration of low-income housing in certain areas because they are effectively prohibited elsewhere in the municipality can lead to neighbourhoods that are stigmatized, resulting in social exclusion and instability. For example, grocery stores and banks often view “poor” neighbourhoods as unprofitable places to do business. The result is that people in these neighbourhoods face added barriers to their nutritional and financial well-being.
What sound land use planning does: Sound land use planning creates opportunities for inclusiveness and supports the natural evolution of welcoming neighbourhoods that are free from restrictions.
What sound land use planning does not do: Sound land use planning does not include making decisions about the types of people who are allowed – or not allowed – to live in a neighbourhood.
Did you know?
A 2010 OMB decision [Advocacy Centre for Tenants Ontario v. Kitchener (City) (2010), O.M.B.D. Case No. PL050611] identified that when bylaws result in restrictions for groups protected by the Code, a municipality may need to show that they are rationally connected to municipal objectives, they were established in good faith, and that it would be impossible to accommodate the group affected without undue hardship.
The proposed bylaw was designed to limit certain housing forms in an area the City felt was over-concentrated with single-person, low-income households, residential care facilities and social/supportive housing.
The OMB ruled that while decentralization might be a valid planning tool, it must be balanced based on Human Rights Code obligations The OMB ordered the City to revisit the bylaw, and the City ultimately repealed it due to changing planning circumstances.
The issues outlined in this decision can also be applied to other similar housing situations. For example, if a municipality enacted bylaws that limited or restricted where young people or students were allowed to live, it could face challenges before the OMB and also complaints (called applications) to the Human Rights Tribunal of Ontario.
Zone for land use, not for people
Section 34 of the Planning Act sets out the powers of municipalities to pass zoning bylaws to regulate matters including the use of land (e.g. residential, commercial, industrial), and standards associated with land uses such as location, size, setback and parking requirements.
Section 35(2) of the Planning Act says municipalities may not pass zoning bylaws that distinguish between people who are related and people who are unrelated in respect of the occupancy or use of a building. For example, a zoning bylaw cannot stipulate that a family rather than roommates must occupy a house.
Example: A community agency wants to build a rooming house with low rents, for 10 residents, who may be people with mental health disabilities, single people receiving social assistance and/or newcomers to Canada. Zoning bylaws in the city prohibit rooming houses in that neighbourhood, as well as in most residential areas in the city.
The agency wants to build this project in a residential neighbourhood, and seeks to amend the bylaw to allow this use and to reduce the parking requirements. Neighbourhood residents are opposed to the project, saying that their neighbourhood cannot sustain this type of project, and the project will decrease property values, as well as create crime and security issues.
The city listens to the residents’ concerns, but examines the potential land use impact of the rooming house and determines that it would not negatively affect the neighbourhood. Excluding the rooming house would restrict the opportunity of the residents, who are from Code-protected groups, to live in the neighbourhood. This could violate their rights under the Human Rights Code.
The city also needs to meet its goals for intensification and affordable housing targets and wants to encourage more income-integrated neighbourhoods, so it amends the bylaw and allows the parking exemption. After studying the issue more fully, the city eventually changes its zoning bylaws to allow rooming houses as-of-right in all residential areas.
Did you know?
In 2002, an Ontario court ruled that a bylaw in an Ontario municipality that restricted the number and location of foster and group homes with four or more foster children was illegal because it distinguished between related and non-related persons and thus contravened the Planning Act (Children’s Aid Society of the Region of Peel v. Brampton (City),  O.J. No. 4502 (S.C.J), aff’d  O.J. No. 2004 (C.A.)).
About minimum separation distances
Many municipalities want to use minimum separation distances as a way to manage overconcentration of some types of housing within one neighbourhood. While there may be merit in the goal of spreading housing types and services across a municipality, higher real estate costs and other factors may make this difficult.
When other factors act as barriers, minimum separation distances further limit housing options and can have a negative impact on the people who rely on these options. Instead, look at the broader issues and consider incentives and ways to encourage and facilitate affordable housing in the other parts of the municipality. This is a positive approach, instead of the punitive one that minimum separation distances often suggest.
Did you know?
The courts have stated that zoning powers do not include the power to zone by referring to the user of the land or to define the use by referring to a personal characteristic. For example, the Manitoba Court of Appeal ruled that a zoning bylaw breached s.15 of the Charter of Rights and Freedoms because it restricted the location of group homes for older persons, people with disabilities, persons recovering from addictions and discharged penal inmates to a limited number of zones, and required minimum separation distances (Alcoholism Foundation of Manitoba v. Winnipeg (City),  M.J. No 212 (C.A.): the Supreme Court of Canada denied leave to appeal).
Leadership in York Region
In December 2009, the Regional Municipality of York adopted an Official Plan that outlines specific policies for promoting an appropriate mix and range of affordable housing, including:
- Requiring local municipal official plans and zoning bylaws to permit a mix and range of housing types, lot sizes, unit sizes, functions, tenures and level of affordability that is consistent with intensification and density requirements.
- Requiring all new secondary plans to include a strategy to implement affordable housing policies, including:
- Specifications on how the affordable housing targets in this plan will be met
- Policies to achieve a mix and range of housing types within each level of affordability
- Policies to ensure larger sized, family units within each housing type and level of affordability
- Consideration of locations for social housing developments.
- A minimum of 25% of new housing units across the region must be affordable (and with a range of types and sizes to accommodate different household types), and a portion of these units should be accessible for people with disabilities. In addition, a minimum of 35% of new housing units in Regional Centres and key development areas must be affordable.
- Developing an affordable housing implementation framework in partnership with local municipalities and the development industry to achieve the targets in this plan
- Considering innovative financial arrangements to encourage and support the development and maintenance of non-profit and affordable housing, such as height and density incentives, Community Improvement Plans, and reduced municipal fees and charges.
- Encouraging the construction of new non-profit, special needs, emergency, affordable and seniors’ housing in proximity to rapid transit and other human services.
- Preparing education and awareness programs with community, government and industry stakeholders to highlight the economic and social advantages of incorporating affordable housing into our communities.
- Identifying optimal sites for affordable housing early in the development process to maximize funding opportunities.
- Encouraging accessibility features in all new housing, and building design that will facilitate subsequent conversion to provide additional housing units, such as secondary suites
- Requiring local municipalities to adopt Official Plan policies that protect rental housing from both demolition and conversion to condominium or non-residential use, and to include “as-of-right” secondary suite policies, on a municipal-wide basis.
In 2010, the City of Sarnia changed its bylaws to ensure that people with disabilities do not face additional barriers in finding supportive housing. A group of psychiatric survivors had filed a human rights complaint against the city, alleging that its zoning bylaws violated the human rights of people with disabilities living in group homes. The city changed the bylaw so that:
- distancing requirements for all group homes were removed
- the requirement that group homes with more than five residents be located on an arterial or collector road was removed
- group homes are now included in all zones allowing residential use
- residential care facilities are a permitted use in any residential zone.