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HomeMy WebLinkAboutPD-104-94THE CORPORATION O, Meeting: General Purpose and Administration Committee Date: Tuesday, September 6, 1994 Report #: P..-D=aDA- _A4File #: R]aa. - -1? 1 Subject: RESIDENTIAL RIGHTS ACT (BILL 120) APARTMENTS IN HOUSES LEGISLATION File: Pln. 11.1 File # L) I , /-1 P Res. #(-x(00 - 1�� By -Law # Recommend 1. TWA` Report PD- 104 -94 be received for information. 1. BACKGROUND 1.1 On June 18, 1992, the Provincial Ministers of Housing and Municipal Affairs released a consultation paper entitled "Apartments in Houses: A Consultation Paper on Legislative Amendments to Allow One Apartment in a House ". This consultation paper contained proposed legislative amendments to the Planning and Municipal Acts and proposed zoning and property regulations (standards) to allow one apartment in a house as -of- right. The consultation also proposed to permit garden suites (also known as granny flats) through amendments to the Planning Act. On September 14, 1992, Council adopted Report PD- 198 -92 as the Municipality of Clarington's submission to the Province regarding the consultation paper. 1.2 Bill 120 ( "The Residents Rights Bill ") received second reading on December 13, 1993. In March 1993, Bill 120 was reviewed clause by clause by the Standing Committee on General Government of the Legislative Assembly of Ontario. On July EaYER PAPER ER TH I515 PAWED W RECVC£DPAPER REPORT NO.: PD- 104 -94 PAGE 2 14, 1994, the Apartment in Houses provisions of Bill 120 became law. 1.3 The Residents Rights Bill authorized a Regulation (384/94) under the Planning Act on June 23, 1994 which set limits on the planning standards which can apply to houses with two units. This Regulation covers such standards as: size, unit density, age of structure, units below grade, amenity area, flood plains, parking, etc. 1.4 The Province has supported the creation of apartments in houses for a number of reasons: • such units tend to be more affordable than other private market rental units; • such units can generate a rental income which can help first time home buyers, and current owners on fixed or reduced incomes; • such units are "environmentally friendly "; and, • such units are an appropriate housing solution in a society where there has been a decline in household size. 1.5 This report has been prepared by the Planning Department in consultation with the Fire Department, and the By -law Enforcement Division of the Clerks Department. The purpose of the report is to identify the implications of this legislation for the Municipality of Clarington. 2. OVERVIEW OF THE LEGISLATION 2.1 Bill 120 amends the following acts: the Landlord and Tenant Act, the Rent Control Act, 1992, the Rental Housing Protection Act, the Planning Act and the Municipal Act. The amendments to the first three Acts are concerned with legislation regarding care homes. �� `` 4 q REPORT NO.: PD- 104 -94 PAGE 3 2.2 The amendments to the latter acts are an attempt to allow owners of detached, semi - detached and row houses to have one, self - contained apartment in their house provided that the unit meets Building Code, Fire Code and reasonable planning standards. Secondary objectives of the amendments are to encourage the creation of garden suites, improve municipal powers of entry and enforcement, and clarify that for planning purposes, distinctions should not be made based upon the relationship of members of a household. 2.3 The primary concern to the Municipality of Clarington is in regards to the amendments to the Planning Act and the Municipal Act. These amendments are summarized below. Bill 120 amended the Planning Act to: • permit people to create one accessory apartment (self - contained residential unit) in existing or new single detached, semi - detached or townhouse dwellings on an as- of -right basis in any residential area; • ensure that official plans and by -laws cannot be used to prohibit two residential units in a detached house, semi- detached house or row /town house; • clarify that the authority to approve a plan of subdivision does not include the authority to prohibit the construction, locating, or use of two residential units in a detached house, semi - detached house or townhouse; • clarify that zoning by -laws cannot distinguish between persons based upon relationship (related or non - related) ; • exempt detached houses, semi - detached houses or rowhouses serviced by prescribed classes of "sanitary, septic or sewer system "; • improve the ability of municipal officials to obtain a search warrant to search for evidence that certain offenses have been committed and to make it illegal to obstruct or attempt to obstruct officials in this regard; 5 9`) 4j REPORT NO.: PD- 104 -94 PAGE 4 • include the amended definition of a residential unit which permits means of exit ( "egress ") through another unit; and, • permit municipalities to use temporary use by -laws to authorize the temporary use of garden suites for up to ten years. Bill 120 amends the Municipal Act to: • ensure that the power of a municipality to license lodging houses does not extend to residential units; • define "lodging house "; and, • define "residential unit" as in the Planning Act but add the following clause to the definition: "is used as a single housekeeping unit, which includes a unit in which no occupant has exclusive possession of any part of the unit ". 3. IMPLICATIONS FOR THE MUNICIPALITY OF CLARINGTON 3.1 Bill 120 has a number of implications for various departments serving the Municipality including the: Planning and Development Department, Fire Department, and By -law Enforcement. This next section will review the implications or the various departments. 3.2 Implications For The Planning Division The apartment in houses provision of the Residents' Rights Act applies to houses with two residential units. "Residential unit" is defined in the legislation as being a residential premises which is self contained (with its own kitchen and bath) except that the exit may be through another unit. The legislation does not apply to a house with two "lodging units" where residents in different units share a kitchen or bath. 5 9`), 4 REPORT NO.: PD- 104 -94 PAGE 5 In order to ensure that planning standards do not preclude the legalization of existing second units or the creation of new ones, Section 49 of the Residents' Rights Act authorizes a Regulation under the Planning Act which sets limits on the planning standards municipalities can apply to houses with two units. Documents which are affected by this provision include: official plans, property standards by -laws, zoning by -laws, site plan control by -laws, and Minister's zoning orders. The Planning Act Regulation authorized by the Residents' Right Act has three objectives: - to identify the types of accommodation and the areas to which the apartments in houses provisions of the legislation apply; to ensure that planning standards do not have the effect of preventing the creation of or legalization of second units where they meet reasonable health and safety standards, and where they are compatible with the surrounding area; to provide the forms which are required to implement the search warrant provisions of the Residents' Rights Act. The Planning Act Regulation does not: directly alter the authority of municipalities to regulate the physical character of neighbourhoods, although this authority is limited; generally affect the authority of municipalities to apply maintenance and occupancy standards to houses with two units; - affect the authority of municipalities to prohibit or establish standards of their own for houses with three or more units; affect the authority to prohibit or set standards for houses with second units in cases where the houses are not covered by the legislation or the Regulation (e.g. houses on septic system); �9` 4i REPORT NO.: PD- 104 -94 PAGE 6 - affect the requirement that municipal standards comply with other applicable provincial regulations; although, if a municipal standard is more restrictive than the Provincial standard, the Provincial standard will be in effect; and, allow municipalities to restrict houses with two units to those where the owner lives on the premises. The Planning Act Regulation generally takes precedent over local documents, although it allows a municipality to continue to apply certain standards. Where the municipal standard is more restrictive than the Provincial standard, the Provincial standard will be in effect. If a standard in a planning document is less than the standard in the Regulation, then the municipal standard continues to apply. The Regulation covers such standards as: • the types of detached, semi - detached and row houses which are considered suitable for apartments • the applicability of the legislation for houses in all areas except those in certain zoning areas zones where the only uses permitted are industrial or commercial activities are excluded houses connected to private or septic systems are excluded areas which only permit residential uses which are ancillary (secondary) in nature are excluded • tenure status of house no distinction is made based on whether or not a houses sits on its own lot, is part of a rental project, or is part of a condominium project • size of house - cannot require that a house with two units have a minimum size of floor area that exceeds the requirement for a house with one unit 59 �� REPORT NO.: PD- 104 -94 PAGE 7 • unit density cannot prohibit a second unit on the grounds that the presence of that unit would mean certain "unit - related" density measures have been exceeded • age of structure cannot restrict second units to houses built before ,or after a certain date, or built during a certain time period • units below grade cannot prohibit units on the basis that they are located below the ground floor, or require that a least a certain proportion of a unit be located above ground level • amenity area Regulation does not prevent municipalities from requiring that a certain proportion of a lot be designated as an amenity area • parking Regulation deals with on site parking requirements, driveway parking, garages, on- street and front yard parking • installation and renovation of second units exterior changes houses that do not conform with planning standards - interior alterations Actions To Be Taken As a result of Bill 120, the Planning Department will be undertaking a number of tasks including: a) amending the draft Official Plan to reflect the legislation; b) amending the Zoning By -law to reflect the legislation; C) establishing a data base for apartments in houses; d) handling public inquiries regarding apartments in houses and garden suites; e) updating the street numbering system to include apartments in houses to ensure emergency vehicles can respond quickly; and 5 9`1 4 REPORT NO.: PD- 104 -94 PAGE 8 f) producing a standard garden suite agreement which would be entered into by the Municipality and the land owner. 3.3 Building Division Implications For a second unit in a house to be considered "legal ", the house in which it is found must meet applicable planning standards, standards of safety and construction in the Ontario Building Code, fire safety standards in the Ontario Fire Code, and property standards. The standards are intended to allow flexibility in creating and upgrading units while maintaining reasonable levels of safety. Different provisions of the Ontario Building Code apply depending on the scenario under which a second unit is added to a house. The Building Code specifies requirements for the health and safety of a building being altered or constructed. The owner must obtain a building permit prior to starting any changes to the structure or to the use therein. The alterations must be performed as outlined in the building permit and in accordance with the Building Code. The areas being renovated or constructed may be subjected to periodic inspections while construction is ongoing in order to ensure that construction will comply with the Building Code. The legislation makes a distinction between standards that apply to existing dwellings more than five years old and existing dwellings less than five years old. Existing Dwellings More Than 5 Years Old Second units that are created by renovating a house more than five years old are regulated under Part 11 (Renovations) of the Ontario Building Code. Renovation Standards are different than for new construction, reflecting the need for 59` REPORT NO.: PD- 104 -94 PAGE 9 flexibility in the treatment of buildings built before the current edition of the Building Code. The Building Code only applies to portions of the building that are subject to construction, plus any upgrading that is specifically required elsewhere in the building to restore safety standards to minimum requirements. Existing Dwelling 1 -5 Years Old Second units that are created by renovating a house less than five years old will be subject to Part 9 of the Building Code. Part 9 provides simple requirements to ensure a minimum level of fire safety and structural adequacy. Section 9.41 establishes the required upgrading of dwellings 1 -5 years old. Dwelling units constructed in this time period often have the necessary components ready for establishing a second dwelling safely. For all conversions, the Ontario Building Code will require adequate exits and smoke detectors in both dwelling units to help ensure early warning and safe evacuation of the occupants in the event of fire. Actions To Be Taken ' Building officials, when required, will need to inspect apartment units to determine if they meet the Ontario Building Code. It is expected that if there is an increase in renovations, alterations, or construction of units, the amount of time that is necessary to process a building permit will increase since many applications require substantial review and sometimes negotiation. However, the processing time can be substantially reduced if plans and specifications are prepared by individuals who have knowledge of the relevant 5 9 J REPORT 0; ., PAGE 10 sections of the Ontario Building Code and who are familiar with renovation practises. 3.4 Fire Department Implications The requirements for fire safety in apartment units are regulated under one of two provincial regulations, either the Building Code or Section 9.8 of the Fire Code. The Building code regulates the construction of new buildings, additions, material alterations, and changes in use within existing buildings. With respect to apartments in houses, the Building code applies to situations where someone intends to construct or install a second dwelling unit. Retrofit Section 9.8 of the Fire Code regulates minimum provisions for fire safety in existing residential buildings which contain two existing dwelling units operated as housekeeping units situated in a detached house, semi - detached house or row house. The owner must ensure that requirements for fire separations, means of egress, smoke alarms and electrical safety are satisfied in order to provide for the life safety of the building occupants. This may require that repairs or alterations are carried out in the building in order to comply. Depending upon the nature and the extent of the alterations required within the building, the owner may also need to obtain a building permit before making the material alterations. This would need to be discussed with the Chief Fire and Building Officials serving the municipality where the building is located. The legislation states that when it is necessary to comply with the Retrofit provisions, the required alterations made within the building are not considered to be in contravention of the Building Code. 59) 5 REPORT NO.: PD- 104 -94 PAGE 11 Compliance Section 9.1 of the Fire Code requires that each building regulated under Retrofit Section 9.8 must be brought into compliance within specified periods of time. The legislation required that smoke alarms be installed in each dwelling unit as of August 13, 1994. This requirement provides a nominal degree of protection for the occupants within each dwelling unit until other fire safety features can be provided where required. The legislation also requires those portions of the building which do not comply with requirements for fire separations, means of egress, and electrical safety be brought into compliance by July 14, 1996. If the owner is not able to complete all of the required work by the time period specified, the owner must apply for an "Extension of Time" or submit a "Life Safety Study" to the Chief Fire Official. If an extension is not granted, the owner may appeal the decision to the Fire Marshall or to the Fire Code Commission. Actions To Be Taken It is expected that the legislation will produce many requests for fire inspections, which will be very time consuming for the Fire Department. It will not be possible to conduct house to house inspections to locate all unsafe and unregistered apartment units. However, it is anticipated that a number of these units will be identified as a result of citizens wanting to make their units comply with standards. The Fire Department placed newspaper advertisements in July 1994, informing residents of the compliance measures. In addition, residents in Bowmanville and Courtice will also be receiving brochures during Fire Prevention Week (October 10 - 14) . 59-) J REPORT NO.: PD- 104 -94 PAGE 12 3.5 By -Law Enforcement Implications The legislation has a number of implications for By -Law enforcement in terms of Council's previous moratorium on enforcement and improved abilities to obtain search warrants. Council's Moratorium At its regular meeting on June 22, 1992, Council passed a resolution stating, in part: "THAT the Town of Newcastle deems it advisable to suspend the enforcement of the Zoning By -law as it applies to accessory apartments." Since that time, By -Law Staff have received in excess of one hundred complaints concerning accessory apartments. In each incident, Staff have had to advise the complainant that nothing could be done as long as the moratorium remained in effect. Several of the complaints were from disgruntled tenants who were attempting to use the by -law as a means of getting back at their landlords. Staff will not be re- opening these files since in some cases, complainants and subjects have moved, while in other cases, the problems have been resolved. Search Warrant A major disadvantage to enforcing the zoning by -law related to accessory apartments has always been the limitations on the ability to gain access to the unit. Section 49(3) of the Planning Act reads as follows: "Except under the authority of a search warrant issued under Section 158 of the Provincial Offences Act, an officer or any person acting under his or her instructions shall not enter any room or place actually used as a dwelling without requesting and obtaining the consent of the occupier, first having informed the occupier that the right of entry may be refused and entry made only under the authority of a search warrant." ST) ilk . • • This section of the Provincial Offences Act limited an official's ability. Usually once informed that they are not required to permit entry, many tenants would refuse to allow an officer in for inspection. The warrant referred to in the section is made up of two separate and distinct parts. Commonly known as a search warrant, it is in fact a warrant to search and seize. Despite indications in the Act to the contrary, Justices of the Peace would not issue a warrant strictly to inspect a property for an illegal apartment. Justices of the Peace required hard physical evidence which the officer needed to specify. If the evidence to be seized could not be specified, a search warrant was not issued. Bill 120 has improved the powers of entry for municipal officials. This legislation has removed the reference to the Provincial Offences Act and has replaced it with Section 49.1 which has created a new type of warrant. The officer can now obtain a warrant to enter and inspect without the need to seize any evidence. The officer may apply for a warrant to enter and search any building, receptacle or place if the Justice of the Peace is satisfied on reasonable and probable grounds that, an offence has been committed under either the property standards or zoning by -laws, and that entry and search will afford evidence relevant to the commission of the offence. The Bill further assists the investigating officer by creating a specific offence for obstructing or attempting to obstruct an officer in his or her investigation. A conviction for obstruction carries the same fines as other zoning offences, that being a maximum fine of $25,000 for a first offence and for a subsequent conviction, not more than $10,000 per day for each day of continued contravention. For a corporation, the 59 :_� REPORT NO.: PD- 104 -94 PAGE 14 fines are $50,000 maximum on first conviction and $25,000 per day for continued contravention. Actions To Be Taken The new legislation will be dealt with in the same manner as the existing by -law. Enforcement will continue to be handled on a complaint basis only. Staff will not investigate anonymous complaints. It is anticipated that there will be a significant increase in complaints received as public awareness of the existence of the new law increases. 4.0 CONCLUSION Bill 120 has become law and as a result various departments serving the Municipality of Clarington will be required to carry out certain tasks. The Planning and Development Department, Fire Department and By -law Enforcement will cooperatively place an advertisement in local newspapers informing residents of the new legislation and the implications it has for the homeowner. This advertising should increase the number of inquiries which will be handled by the appropriate departments. Any assistance with inspections and renovations will be provided by the Building Division, Fire Department and By -law Enforcement. In addition, these departments will deal with any grievances concerning apartments in houses on a complaint basis only since a door -to -door inspection would be impossible. Any planning documents that are not in conformity with the new law will need to be amended to eliminate any confusion concerning the Provincial standard and the Municipal standard. REPORT NO.: PD- 104 -94 PAGE 15 Respectfully submitted, Franklin Wu, M.C.I.P. Director of Planning and Development TH *DC *FW *df 25 August 1994 Reviewed by, W.H. Stockwell r Chief Administrative Officer Interested parties to be notified of Council and Committee's decision: Fred Storsbergen Box 416 Orono, Ontario LOB 1MO D 9` J%