Special Planning Areas Regulation

Special Planning Areas Regulation, M.R. 49/2016 The Planning Act , C.C.S.M. c. P80 Regulation 49/2016 Registered March 8, 2016 bilingual version (HTML) Table of Contents Section PART 1 INTRODUCTORY PROVISIONS 1 Definitions PART 2 PLANNING APPLICATIONS 2 Meaning of "planning application" 3 Initiating a planning application 4 Application to be submitted to designated employee 5 Applications that may be summarily rejected 6 Responsibilities of designated employee 7 Content of notice of hearing 8 Manner of giving notice 9 Maintenance of register 10 Designated employee's planning report 11 Hearing 12 Representations 13 Report by special planning authority 14 Referral to Municipal Board 15 Municipal Board hearing 16 Minister's decision 17 Exception for minor amendments PART 3 NON-CONFORMING USES, VARIANCES AND SUBDIVISIONS 18 Application: non-conforming uses 19 Variances 20 Application requirements 21 Criteria for approving variances 22 Disposition of applications for variances 23 Notice of decision 24 Appeal 25 Decision final if no appeal 26 Notice of appeal hearing 27 Hearing of appeal re variance 28 Notice of decision 29 No appeal 30 Expiry of variance 31 Revoking variance order 32 Termination of variances 33 Approval of conditional uses 34 Subdivision applications 35 Application for subdivision approval 36 Responsibilities of designated employee 37 Hearing by special planning authority 38 Public hearing re subdivision 39 Decision 40 Minor subdivisions 41 Expiry of conditional approval 42 Appeal to Municipal Board re subdivisions PART 4 GENERAL MATTERS 43 Postings 44 Combined hearings 45 Fees 46 Coming into force PART 1 INTRODUCTORY PROVISIONS Definitions 1 The following definitions apply in this regulation. "Act" means The Planning Act . («  Loi  ») "applicable fee" means the applicable fee set out in section 45. (« droit applicable ») "approving authority" means the minister or an employee designated by the minister. (« autorité compétente ») "department website" means a website maintained by the minister's department that is available to the public. (« site Web du ministère ») "designated employee" means an employee designated by the minister. (« employé désigné ») "minor subdivision" has the same meaning as in subsection 119(1) of the Act. (« lotissement mineur ») PART 2 PLANNING APPLICATIONS Meaning of "planning application" 2 In this Part, a "planning application" means an application to amend one or more of the following for a special planning area: (a) the development plan; (b) a secondary plan; (c) a zoning by-law. Initiating a planning application 3(1) A planning application may be initiated by (a) the minister; (b) the council of a municipality which has land within the boundaries of the special planning area; or (c) the owner of real property to which the application refers or a person authorized in writing by the owner. 3(2) A planning application must clearly set out the amendment sought. Application to be submitted to designated employee 4(1) A planning application must be submitted to a designated employee. The application must be in a form acceptable to the designated employee and be accompanied by the applicable fee. 4(2) The designated employee may, if required in his or her opinion, refer the application back to the applicant for further particulars relating to the application, or request that the application be amended. 4(3) If the applicant fails to resubmit an application within one year after the date on which it was referred back to the applicant, the application is deemed to be withdrawn. Applications that may be summarily rejected 5(1) A planning application may be rejected without any further action if (a) in the minister's opinion, the application is without merit; or (b) in the opinion of a designated employee, (i) the application is the same as or substantially similar to an earlier application that was rejected under clause 16(1)⁠(b) within one year before the day when the new application is made, or (ii) in the case of an application to amend the secondary plan or zoning by-law, the application is not generally consistent with the development plan by-law or any applicable secondary plan for the special planning area. 5(2) If an application is refused, the minister or designated employee must give written notice to the applicant. 5(3) A rejection under this section is final and is not subject to appeal. Responsibilities of designated employee 6 Subject to the planning application being referred back or rejected, on receipt of an application the designated employee must (a) circulate the application to (i) each municipality that has land within the special planning area, (ii) each municipality and planning district that is adjacent to the special planning area, if any, (iii) any department, branch or agency of the government that may have an interest in the application, and (iv) any other person that the designated employee considers appropriate; (b) prepare a planning report in respect of the application to be forwarded to the special planning authority; and (c) give public notice of the hearing to be held by the special planning authority in respect of the application, in accordance with section 7 and 8. Content of notice of hearing 7 A notice of a hearing to be held by a special planning authority about a planning application must (a) give the date, time and place of the hearing; (b) give a summary of the matter to be considered at the hearing; (c) state that any person may make a representation on the matter at the hearing; (d) state that documents related to the matter to be considered at the hearing may be found and copied on the department website or at the location specified in the notice; (e) in the case of a hearing to consider a planning application of general application, describe the area affected, by reference to designations or zones in the special planning area, or state that the by-law amendment applied for applies to the entire special planning area; (f) in the case of a hearing to consider an application affecting a specific property, identify the location of the property; and (g) give an address or specify the department website where a description of procedure to be followed at the hearing is available. Manner of giving notice 8(1) Notice of a hearing must be given by (a) publishing notice of the hearing in a newspaper with a general circulation in the applicable special planning area on two occasions at least 6 days apart, during the period beginning 40 days before the hearing and ending 7 days before the hearing; or (b) when there is no newspaper with a general circulation in the area, posting a copy of the notice of hearing in the office of the applicable planning district or municipality and at least two other public places in the district or municipality at least 14 days before the hearing. 8(2) At least 27 days before the hearing, a copy of the notice of the hearing must be (a) sent to (i) the applicant, if the applicant is not the minister, (ii) the municipality or municipalities in which the land is located, and (iii) all adjacent planning districts and municipalities; and (b) posted on the department website. 8(3) If the hearing is held to consider an application that would affect a specific property, a copy of the notice of the hearing must be (a) sent at least 14 days before the hearing to the owner of the affected property, and to every owner of property located within 100 metres of the affected property; or (b) posted on the affected property, if the property is not remote or inaccessible. Maintenance of register 9 The designated employee must maintain a register of persons who request notice of planning applications being received for a particular special planning area. The designated employee must give notice, in the form he or she determines, to such a person each time a planning application for the applicable special planning area is circulated under clause 6(a). Designated employee's planning report 10 The designated employee's planning report prepared about a planning application must (a) set out (i) a summary of the application, and (ii) a recommendation whether the application should be approved, be approved subject to the conditions specified in the recommendation or be rejected; and (b) be filed with the special planning authority before the hearing in respect of planning application is scheduled to begin. Hearing 11(1) For a hearing about a planning application, a special planning authority must, (a) at the time and place set out in the public notice of the hearing, begin the hearing; (b) hear any person who wishes to make a representation on the application being considered; and (c) keep written minutes of its proceedings. 11(2) A special planning authority may adjourn a hearing to a fixed date, but unless the new hearing date is announced at the time of the adjournment, the special planning authority must give notice of the continuation of the hearing as if it were a new hearing requiring new notice. Representations 12(1) A person may make a representation at a hearing held by a special planning authority by (a) making an oral submission at the hearing; or (b) filing a written submission with the authority, before or at the hearing. 12(2) The special planning authority must keep a record of all representations made at a hearing. Report by special planning authority 13(1) After holding a hearing on a planning application, the special planning authority must provide the minister with a report on the hearing that includes (a) a copy of the application; (b) a copy of the minutes of the hearing and of each written submission filed at the hearing; and (c) its report concerning the application, which must include (i) the minutes of the hearing, (ii) the record of all representations made at the hearing, (iii) the recommendation of the authority and the reasons for the recommendation, and (iv) any other information that the minister requires. 13(2) The special planning authority must (a) give a copy of its report to (i) the applicant, if the applicant is not the minister, and (ii) any person who made submissions at the public hearing; and (b) give notice to each person who made a representation at the hearing that the person may file an objection, with stated reasons, with the minister within 14 days after the day the notice is given. Referral to Municipal Board 14 The minister may refer an objection filed in accordance with clause 13(2)⁠(b), or a specific question or issue about a planning application, to the Municipal Board. Municipal Board hearing 15(1) If the minister makes a referral under section 14, the Municipal Board must (a) hold a public hearing to receive representations from any person on the objection, question or issue referred to it; and (b) at least 14 days before the hearing, send notice of the hearing to (i) the minister, (ii) the special planning authority involved, (iii) each person who made a representation at the hearing held under section 11 or who filed an objection in accordance with clause 13(2)⁠(b), and (iv) any other person the Municipal Board considers appropriate. 15(2) After holding the hearing, the Municipal Board must submit a report to the minister setting out its recommendations on the objection, question or issue referred to it. 15(3) The Municipal Board is to submit its report to the minister within 30 days after holding its hearing, but on request the minister may extend the 30 day period. 15(4) Despite the other provisions of this section, if the minister is reviewing a development plan or secondary plan, or an amendment to either, at the same time that the Municipal Board is considering an objection to a zoning by-law for the same area, the board may delay making its report on the objection until the minister has made his or her decision. Minister's decision 16(1) After receiving copies of the planning application, the planning report and the report of the special planning authority, and any objections filed under clause 13(2)⁠(b), and after considering any recommendations of the Municipal Board under section 15, if applicable, the minister may decide to (a) amend the development plan, secondary plan or zoning by-law, or each of them, as the minister determines, subject to the applicant complying with any condition imposed by the minister; or (b) reject the planning application. 16(2) Without limitation, as a condition for approving a planning application, the minister may require the owner of the affected property to enter into a development agreement under section 150 of the Act. 16(3) If a planning application is rejected, the minister must give written notice to the applicant. Exception for minor amendments 17 The minister may amend a development plan, secondary plan or zoning by-law for a special planning area without notice being given, a planning report being prepared or a hearing being held by the special planning authority, if the minister is satisfied that the amendment is (a) a minor one that does not change the intent of the development plan, secondary plan or zoning by-law; or (b) required to correct an error or omission. PART 3 NON-CONFORMING USES, VARIANCES AND SUBDIVISIONS Non-Conforming Uses Application: non-conforming uses 18(1) Subject to section 12.14 of the Act and this section, sections 86 to 93 of the Act apply in respect of non-conforming uses in a special planning area. 18(2) The determination of whether repairing or rebuilding a damaged or destroyed building is more than 50% of the cost of constructing an equivalent new building, as provided for under clause 89(2)⁠(b) of the Act, is to be made by the minister. 18(3) In the case of a non-conformity that may be altered by a variance, as provided in subsection 92(1) of the Act, the approval process that must be followed is as set out in sections 20 to 29, with necessary changes. Variances Variances 19 Variances which modify provisions of a zoning by-law may be approved in accordance with section 20 to 31. Application requirements 20(1) A person seeking a variance must make an application to the designated employee. 20(2) An application for a variance must be in a form acceptable to the designated employee and be accompanied by the applicable fee and any supporting material required by the designated employee. 20(3) The designated employee may, if required in his or her opinion, refer the application back to the applicant for further particulars relating to the application, or request that the applicant amend the application. Criteria for approving variances 21(1) An application for a variance with respect to a property may be approved if the variance (a) will be compatible with the general nature of the surrounding area; (b) will not be detrimental to the health or general welfare of people living or working in the surrounding area or negatively affect other properties or potential development in the surrounding area; (c) is the minimum modification of a zoning by-law required to relieve the injurious affect of the zoning by-law on the applicant's property; and (d) is generally consistent with the applicable provisions of the development plan by-law, the zoning by-law and any secondary plan by-law. 21(2) A variance order must not be made if it makes a change of land use other than (a) a temporary change of land use for a period of not more than five years; or (b) a change of land use to a use that is substantially similar to a use permitted under the zoning by-law being modified by the variance. Disposition of applications for variances 22(1) In respect of an application for a variance, a designated employee may (a) approve or reject the application; or (b) approve it subject to (i) conditions that will ensure that any development to be carried out under the variance will meet the criteria set out in subsection 21(1), and (ii) a requirement that the owner of the affected property enter into a development agreement under section 150 of the Act. 22(2) The approval of a variance must not be made subject to conditions unless the applicant has been given a reasonable opportunity to make submissions respecting the proposed conditions. Notice of decision 23(1) After making a decision on an application for a variance, the designated employee must (a) give the applicant a copy of the decision, along with a notice that the decision may be appealed in accordance with section 24; and (b) give notice of the decision by (i) giving the owner of each parcel of land that is located within 100 m of the affected property a copy of the decision, along with a notice that the decision may be appealed in accordance with section 24, or (ii) where the affected property is not remote or inaccessible, posting a copy of the decision on the affected property. 23(2) A notice that a decision may be appealed given under subsection (1) must (a) state that the applicant or the owner of a parcel of land that is located within 100 m of the affected property may appeal the decision to the applicable special planning authority; (b) state the deadline for filing the notice of appeal, which must be at least 14 days after the decision was made; and (c) set out the address for filing an appeal, and the process to be followed to appeal the decision. 23(3) A notice posted in accordance with clause (1)⁠(b) must (a) contain the information set out in clauses (2)⁠(a) to (c); (b) be posted outdoors for at least 14 days immediately before the deadline for filing an appeal; and (c) except as otherwise required under clause (b), be posted in a manner that complies with subsection 170(1) of the Act. Appeal 24 An appeal of the decision of a designated employee made in respect of a variance application must (a) be in writing; (b) identify the decision being appealed; and (c) be filed with the special planning authority before the deadline set out in the notice of decision. Decision final if no appeal 25 If the decision of a designated employee made in respect of a variance application is not appealed by the deadline set out in the notice of decision, the decision is final. Notice of appeal hearing 26 On receiving an appeal that complies with section 24, a special planning authority must (a) fix a date, time and place for an appeal hearing; and (b) at least 14 days before the hearing, give notice of the hearing to (i) each appellant, (ii) the applicant, if the applicant is not an appellant, and (iii) the owner of each parcel of land within 100 m of the parcel of land that is subject to the variance application. Hearing of appeal re variance 27(1) A special planning authority must (a) at the time and place set out in the notice of the appeal hearing, begin the hearing; (b) hear any of the recipients of the notice under section 26 who wish to make a representation on the variance application being considered; and (c) keep written minutes of its proceedings. 27(2) The special planning authority may make any decision with respect to the matter under appeal that could have been made by the designated employee. Notice of decision 28 After having heard the matter, the special planning authority must send a copy of its decision to the applicant and to every person who made a representation at the hearing held under section 27. No appeal 29 The decision of a special planning authority on an application for a variance is final and is not subject to further appeal. Expiry of variance 30(1) A variance approval will expire and cease to have any effect if it is not acted upon within 12 months of the date of the decision. 30(2) A designated employee may extend the deadline under subsection (1) for an additional period not longer than 12 months if an application is received before the initial deadline. Revoking variance order 31 A variance order may be revoked if the applicant or the owner of the affected property fails to comply with the variance order or any condition imposed under section 22. Termination of variances 32 The designated employee may terminate an approval of a variance with the written consent of every person who is the owner of real property in respect of which the variance was approved. CONDITIONAL USES Approval of conditional uses 33(1) Conditional uses of real property that are permitted under a zoning by-law may be approved. 33(2) Sections 20 to 29 apply with necessary changes to applications for conditional uses of land or buildings and approvals and rejections of such conditional uses. SUBDIVISIONS APPROVALS Subdivision applications 34 For certainty, sections 121 to 123 and sections 132 and 133 of the Act apply with necessary changes in respect of the subdivision of land in a special planning authority. Application for subdivision approval 35(1) The owner of land within a special planning area or a person authorized in writing by the owner may apply to a designated employee for subdivision approval. 35(2) An application must be in a form acceptable to the designated employee and be accompanied by the applicable fee. 35(3) The designated employee may, if required in his or her opinion, refer the application back to the applicant for further particulars relating to the application, or request that the applicant amend the application. 35(4) If the applicant fails to resubmit an application within one year after the date on which it was referred back to the applicant, the application is deemed to be withdrawn. Responsibilities of designated employee 36(1) Subject to the subdivision approval application being referred back or rejected, on receipt of an application, the designated employee must (a) circulate the application for comment to (i) each municipality that has land within the special planning area, (ii) each municipality and planning district that is adjacent to the special planning area, if any, (iii) any department, branch or agency of the government that may have an interest in the application, and (iv) any other person that the designated employee considers appropriate; and (b) if the proposed subdivision is not a minor subdivision, (i) prepare a planning report in respect of the application, which includes a recommendation respecting whether the application should be approved, approved subject to one or more conditions specified in the recommendation, or rejected, and (ii) send the planning report and a copy of the application to the applicable special planning authority. 36(2) The designated employee's planning report prepared in respect of a subdivision application must be filed with the special planning authority before the hearing in respect of development application is scheduled to begin. Hearing by special planning authority 37 Upon receiving the subdivision approval application and a copy of the material from the designated employee, the special planning authority must (a) proceed to hold a public hearing to receive representations on the proposed subdivision; and (b) at least 14 days before the hearing, give a copy of the notice of hearing to (i) the applicant, (ii) each municipality that has land within the special planning area, (iii) each municipality and planning district that is adjacent to the special planning area, if any, and (iv) to the owner of each parcel of land that is located within 100 m of the affected property or, where the affected property is not remote or inaccessible, post a copy of the notice of hearing on the affected property in accordance with section 170 of the Act. Public hearing re subdivision 38(1) A special planning authority must (a) at the time and place set out in the notice of the public hearing for the subdivision approval application, begin the hearing; (b) hear any person who wishes to make a representation on the application being considered; and (c) keep written minutes of its proceedings. 38(2) Upon completion of the hearing in respect of the application for subdivision approval, the special planning authority must (a) recommend to the approving authority that the application (i) be rejected, (ii) be approved, or (iii) be approved subject to conditions described in section 135 of the Act; and (b) give a copy of its recommendation to (i) the approving authority, (ii) the applicant, and (iii) each person who made a representation on the application at the public hearing. Decision 39(1) After receiving the recommendation and any objections to it, the approving authority may decide to (a) approve the proposal, subject to the applicant complying with any condition imposed by the approving authority; or (b) reject the proposal. 39(2) The approving authority must give written notice of the decision to the applicant, the special planning authority, the applicable municipality and any other person who made representations at the hearing held by the special planning authority. 39(3) A notice given to the applicant under subsection (2) must include written notice informing the applicant that the decision may be appealed under section 42. Minor subdivisions 40(1) For a minor subdivision, a designated employee may (a) approve the application; (b) give conditional approval to the subdivision, subject to any conditions described in section 135 that the designated employee considers appropriate; or (c) reject the application. 40(2) A conditional approval must not be made unless the applicant has been given a reasonable opportunity to make representations about the proposed conditions. 40(3) The designated employee must give written notice of his or her decision respecting a minor subdivision, along with written notice informing the recipient that the decision may be appealed under section 42, to (a) the applicant; (b) the special planning authority; and (c) each municipality that has land within the special planning area. Expiry of conditional approval 41(1) If a subdivision is approved under section 39 or 40 subject to conditions and the applicant fails to provide satisfactory evidence that the conditions have been met within two years from the date of the decision, the conditional approval expires, unless extended under subsection (2). 41(2) The approving authority, or the designated employee in the case of a minor subdivision, may extend the deadline under subsection (1) for an additional period not longer than 12 months if an application for an extension is received before the initial deadline. Appeal to Municipal Board re subdivisions 42(1) An applicant or municipality that receives notice of a decision under subsection 39(2) or 40(3) may appeal the decision to the Municipal Board by sending a notice of appeal to the Municipal Board within 30 days after receiving the notice. 42(2) A notice of appeal must include the following information: (a) the legal description of the land proposed to be subdivided and the municipality in which that land is located; (b) the name and address of the applicant; (c) the name and address of the appellant; (d) if the decision being appealed relates to conditions imposed in a conditional approval, a description of the conditions being appealed. 42(3) Sections 130 and 131 of the Act apply with necessary changes to an appeal under this section. PART 4 GENERAL MATTERS Posting 43 For certainty, section 170 of the Act applies to the posting of a notice on an affected property under this regulation. Combined hearings 44(1) If an application would require a special planning authority or the Municipal Board to hold multiple hearings because the application requires (a) amendments to more than one by-law; or (b) other approvals that require hearings; the special planning authority or the Municipal Board may hold all of the required hearings related to the proposal that it has jurisdiction to hold together in a single combined hearing. 44(2) The notice of hearing for each matter to be considered at a combined hearing may be combined into a single notice of hearing as long as that notice meets all of the requirements of this regulation. Fees 45(1) The following fees apply: (a) application to amend (i) the Inland Port Special Planning Area Development Plan By-law 45(2) The application fee for subdivision approval does not include the costs related to providing notice, which are also to be borne by the applicant. M.R. 59/2022 Coming into force 46 This regulation comes into force on the same day that The Planning Amendment Act (Special Planning Areas) , S.M. 2015, c. 26, comes into force.