BILL 54 An Act to Amend the Community Planning Act

BILL 54

 

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

(a) in paragraph (b) of the definition "development" by striking out "respecting land use and development under paragraph 77(1)(h.1)";

 

(b) in the definition "non-conforming use" by striking out "existing rural plan under subsection 77(2.1) or a proposed rural plan under subsection 77(2.1) for which the first notice has been published under paragraph 68(1)(b) and six months has not elapsed since such publication, if such use existed on the day the by-law was enacted, the plan was made, the resolution was adopted or the notice was published" and substituting "existing rural plan or zoning regulation under section 77 or a proposed rural plan or zoning regulation under section 77 for which the first notice has been published under paragraph 68(1)(b) and six months has not elapsed since such publication, if such use existed on the day the by-law was enacted, the plan or regulation was made, the resolution was adopted or the notice was published";

(c) by adding after the definition "rural community" the following:

"rural community clerk" means a rural community clerk appointed under subsection 27.5(5.2) of the Municipalities Act;

 

2 Subparagraph 7(2)(a)(i) of the Act is repealed and the following is substituted:

(i) any zoning by-law provision under paragraph 34(3)(g) or (h) or paragraph 34(4)(c) with respect to particular uses of land, and any similar provision in

 

(A) a rural plan under subsection 27.2(1), or 77.2(5), or

(B) a rural plan or zoning regulation under paragraph 77(6)(a);

3 Paragraph 13(a) of the Act is amended by striking out "section 77" and substituting "section 77 or 77.2".

4 Subsection 27.2(5) of the Act is repealed.

5 Section 40 of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out "zoning by-law" wherever it appears and substituting "zoning by-law or regulation";

(b) by repealing subsection (2) and substituting:

40(2) A non-conforming use may continue notwithstanding the zoning by-law or regulation or rural plan but

(a) if such use is discontinued for a consecutive period of ten months, or such further period as the advisory committee or commission, as the case may be, considers fit, it shall not be recommenced and any further use of the land, building or structure shall conform with the zoning by-law or regulation or rural plan; and

 

 

(b) if a building or structure so used has, in the opinion of the advisory committee or commission, as the case may be, been damaged to the extent of at least half of the whole building or structure, exclusive of the foundation, the building or structure shall not be repaired or restored or used except in conformity with the zoning by-law or regulation or rural plan, unless the advisory committee or commission agrees otherwise, and, in the case of a by-law, the council may purchase or otherwise acquire the parcel of land on which such building or structure is situated.

6 Subparagraph 44(1)(k)(i) of the Act is amended by striking out "zoning by-law or deferred widening or controlled access street by-law or regulation" and substituting "or any zoning, deferred widening or controlled access street by-law or regulation".

 

7 Section 71 of the Act is amended by adding after subsection (2) the following:

71(3) A rural community committee may act by resolution under this section.

 

8 Section 77 of the Act is amended

(a) by repealing subsection (2.7);

(b) by striking out the portion preceding paragraph (6)(a) and substituting the following:

77(6) With respect to a zoning regulation or to zoning provisions in a rural plan under this section

 

(c) in paragraph (11)(b) by striking out "subsection (2.1)" and substituting "subsection (1) or (2.1)";

(d) in subsection (11.1) by striking out "with respect to a rural plan under subsection (2.1) or an amendment to zoning provisions in a rural plan under subsection (2.1)" and substituting "with respect to a zoning regulation under subsection (1) or a rural plan under subsection (2.1)".

 

9 Subsection 77.2(5) of the Act is amended by adding after paragraph (a) the following:

(a.1) where a person applies to a rural community committee to have an area of land re-zoned to permit the carrying out of a specific proposal,

 

(i) the rural community committee may act by resolution under section 39,

 

(ii) the Minister may enter into an agreement with the person respecting those matters set out in the resolution, and

(iii) the provisions of section 39 with respect to a resolution or agreement apply with the necessary modifications to a resolution or agreement, respectively;

10 Subsection 81(1) of the Act is repealed and the following is substituted:

81(1) Except as otherwise provided in this section, no person shall undertake a development and no building permit or development and building permit shall be issued for such development unless the development officer having jurisdiction approves such development as conforming with, where it applies to the land on which the development is located,

(a) any municipal plan, basic planning statement, rural plan, development scheme or urban renewal scheme

 

(i) in effect,

(ii) in respect of which an adopting by-law has been the subject of a resolution under paragraph 68(1)(a); or

(iii) in respect of which the Minister has published a first notice under paragraph 68(1)(b);

(b) subject to paragraph (a), any zoning or deferred widening or controlled access street by-law or regulation

 

(i) in effect, or

(ii) in respect of which the council has adopted a resolution under section 71, or the Minister has published a first notice under paragraph 68(1)(b); and

(c) a regulation under subsection 77(1)(h.1),

 

(i) in effect, or

(ii) in respect of which the Minister has published a first notice under paragraph 68(1)(b).

11 Section 93 of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out "the Director or council, as the case may be, or a person duly authorized by the Director or council," and substituting "the development officer";

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

93(1.1) The development officer shall notify the Minister or the council, as the case may be, of the issuance of an order under subsection (1).

(c) in subsection (4) by striking out "Director" and substituting "Minister";

 

(d) in subsection (5) by striking out "Director" and substituting "Minister".

 

12 Subsection 97(1) of the Act is amended in the portion preceding paragraph (a) by striking out "clerk of the municipality" and substituting "clerk of the municipality or rural community clerk, as the case may be,".

 

13 The Act is amended by adding after section 98 the following:

98.1 The Minister is authorized to enforce a rural plan by-law and sections 91 to 98 apply with the necessary modifications to the enforcement of a rural plan by-law by the Minister.

 

14 The Act is amended by adding after section 99 the following:

99.1(1) Where, prior to April 30, 1999, a rural plan regulation or a rural plan by-law has been made in respect of an area designated for the application of a basic planning statement regulation or zoning regulation under subsection 77(2), the Lieutenant-Governor in Council may, without following the procedure under subsection 77(11), amend or repeal the basic planning statement regulation or zoning regulation made under subsection 77(2).

 

 

99.1(2) Where, after April 30, 1999, a rural plan by-law or a rural plan regulation is made and would apply to an area designated under subsection 77(2) or 77 (2.2), such rural plan by-law or rural plan regulation shall not be effective unless the prior basic planning statement, zoning or rural plan regulation has been amended or repealed under subsection (3).

 

 

99.1(3) The Lieutenant-Governor in Council or the Minister, as the case may be, may for the purposes of subsection (2) amend or repeal a basic planning statement, zoning regulation or rural plan regulation without following the procedure set out in subsection 77(11).

15 Section 21 of the Agricultural Land Protection and Development Act, chapter A-5.11 of the Acts of New Brunswick, 1996, is amended

 

(a) in subsection (1)

(i) by repealing paragraph (a) and substituting the following:

(a) by repealing paragraph (b) of the definition "development" and substituting the following:

(b) where the purposes for which land, buildings and structures may be used are set out in a regional plan, municipal plan, rural plan, basic planning statement, development scheme, urban renewal scheme, zoning by-law or regulation, any change in the purpose for which any land, building or structure is used,

 

 

(ii) by repealing paragraph (b) and substituting the following:

(b) by repealing the definition "non-conforming use" and substituting the following:

"non-conforming use" means a use of any land, building or structure, including that lawfully under construction or for which a building permit or a development and building permit to undertake construction is in effect, that is not permitted by regulation under paragraph 77.01(1)(c), or an existing zoning by-law or an existing rural plan under subsection 27.2(1) or 77.2(1) or a proposed zoning by-law or a proposed rural plan under subsection 27.2(1) or 77.2(1) for which a resolution under section 71 has been adopted by the council or rural community committee and remains effective, or by an existing rural plan or zoning regulation under section 77 or a proposed rural plan or zoning regulation under section 77 or a proposed regulation under paragraph 77.02(2)(a), 77.03(2)(a) or 77.04(2)(a) for which the first notice has been published under paragraph 68(1)(b) and six months has not elapsed since such publication, if such use existed on the day the by-law was enacted, the plan or regulation was made, the resolution was adopted or the notice was published;

(c) by repealing subsection (7) and substituting the following:

21(7) Subsection 40(2) of the Act is repealed and the following is substituted:

40(2) A non-conforming use may continue notwithstanding the zoning by-law or regulation or rural plan or regulation made under paragraph 77.01(1)(c) but

(a) if such use is discontinued for a consecutive period of ten months, or such further period as the advisory committee or commission, as the case may be, considers fit, it shall not be recommenced and any further use of the land, building or structure shall conform with the zoning by-law or regulation or rural plan or regulation under paragraph 77.01(1)(c); and

 

 

(b) if a building or structure so used has, in the opinion of the advisory committee or commission, as the case may be, been damaged to the extent of at least half of the whole building or structure, exclusive of the foundation, the building or structure shall not be repaired or restored or used except in conformity with the zoning by-law or regulation or rural plan or regulation under paragraph 77.01(1)(c), unless the advisory committee or commission agrees otherwise, and, in the case of a by-law, the council may purchase or otherwise acquire the parcel of land on which such building or structure is situated.

 

16 Section 45 of an Act to Amend the Community Planning Act, chapter 95 of the Acts of New Brunswick, 1994, is repealed.

17(1) Section 6 of the Municipalities Act, chapter M-22 of the Revised Statutes, 1973, is amended by striking out "municipality" and substituting "municipality or a rural community committee".

17(2) Section 19 of the Act is amended

(a) by adding after paragraph (1)(b) the following:

(b.1) make adjustments in respect of the provision of services for any local service district or rural community affected by the incorporation, annexation or decrement;

 

(b) by adding after subsection (14) the following:

19(15) Where an Order in Council is made under subsection (1), the Lieutenant-Governor in Council may

(a) amend or repeal a rural plan or any other regulation made under the Community Planning Act to make adjustments respecting areas affected by the incorporation, annexation or decrement, and

(b) amend or repeal a regulation made under section 23.01 or 27.4 to make adjustments in respect of the boundaries of any local service district or rural community affected by the incorporation, annexation or decrement.

 

 

19(16) Sections 24 and 25 do not apply to subsection (15).

19(17) Subsection 77(11) of the Community Planning Act does not apply to paragraph (15)(a).

17(3) Section 27.2 of the Act is amended by adding after subsection (2) the following:

 

27.2(3) For the purposes of subsections (1) and (2), the provision of a land use planning service includes the enforcement of basic planning statement regulations, zoning regulations, rural plan regulations and rural plan by-laws made or adopted under the Community Planning Act.

 

 

17(4) Section 27.4 of the Act is amended

(a) in subsection (2)

(i) in paragraph (e) by striking out "listed in the First Schedule";

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

(e.1) respecting adjustments in relation to the provision of services for any local service district or other rural community affected by the establishment of the rural community;

 

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

(h.1) designating any rural plan under subsection 77(2.1) of the Community Planning Act or any portion of a rural plan or any other regulation under the Community Planning Act as the basic planning statement, rural plan, zoning regulation or other regulation, as the case may be, of the rural community or portion of the rural community;

(b) by repealing subsection (3) and substituting the following:

27.4(3) Where an area outside a municipality is established as a rural community under subsection (2), any service provided in the area shall, subject to paragraph (2)(e.1), continue to be provided in the rural community or that portion of the rural community until the service is discontinued under subsections 25(1) and (2).

 

(c) by adding after subsection (4) the following:

27.4(5) Where a regulation is made under subsection (2), the Lieutenant-Governor in Council may

(a) amend or repeal a rural plan or any other regulation made under the Community Planning Act to make adjustments respecting areas affected by the establishment of the rural community, and

(b) amend or repeal a regulation made under section 23.01 or 27.4 to make adjustments in respect of the boundaries of any local service district or rural community affected by the establishment of the rural community.

 

27.4(6) Subject to subsection (3), sections 24 and 25 do not apply to this section.

27.4(7) Subsection 77(11) of the Community Planning Act does not apply to paragraph (5)(a).

 

17(5) The Act is amended by adding after section 27.4 the following:

27.41 A basic planning statement, rural plan, zoning regulation or other regulation designated under paragraph 27.4(2)(h.1) shall remain in force in the rural community or portion of the rural community until amended or repealed under the Community Planning Act.

 

17(6) Section 27.5 of the Act is amended by adding after subsection (2) the following:

 

27.5(2.1) A rural community committee shall have a corporate seal which the rural community committee may alter or change at pleasure.

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

 

EXPLANATORY NOTES

Section 1

(a) The existing definition is as follows:

"development" means

(a) the erecting, placing, relocating, removing, demolishing, altering, repairing or replacing of a building or structure other than utility poles and wires, traffic control devices or statutory notices,

 

 

(b) where the purposes for which land, buildings and structures may be used are set out in a regional plan, municipal plan, rural plan, basic planning statement, development scheme, urban renewal scheme, zoning by-law or regulation respecting land use and development under paragraph 77(1)(h.1), any change in the purpose for which any land, building or structure is used,

 

 

(c) any excavation of sand, gravel, clay, shale, limestone or other deposit for a development mentioned in paragraph (a) or for purposes of the sale or other commercial use of the material excavated, or

 

(d) the making of land by cutting or filling to a depth in excess of one metre;

(b) The existing definition is as follows:

"non-conforming use" means a use of any land, building or structure, including that lawfully under construction or for which a building permit or a development and building permit to undertake construction is in effect, that is not permitted by an existing zoning by-law or an existing rural plan under subsection 27.2(1) or 77.2(1) or a proposed zoning by-law or a proposed rural plan under subsection 27.2(1) or 77.2(1) for which a resolution under section 71 has been adopted by the council or rural community committee and remains effective, or by an existing rural plan under subsection 77(2.1) or a proposed rural plan under subsection 77(2.1) for which the first notice has been published under paragraph 68(1)(b) and six months has not elapsed since such publication, if such use existed on the day the by-law was enacted, the plan was made, the resolution was adopted or the notice was published;

Section 2

The existing provision is as follows:

7(2) The powers and duties of a commission are

(a) those accruing under

(i) any zoning by-law provision under paragraph 34(3)(g) or (h) or paragraph 34(4)(c) with respect to particular uses of land, and any similar provision in a rural plan under subsection 27.2(1), paragraph 77(6)(a) or subsection 77.2(5),

 

Section 3

The existing provision is as follows:

13 The powers and duties of an advisory committee are

(a) those accruing under the provisions mentioned in paragraph 7(2)(a) other than the provisions of section 77 mentioned therein;

Section 4

The existing provision is as follows:

27.2(5) Where in the councilís opinion it is necessary, the council may invoke section 81 and section 81 applies with the necessary modifications.

Section 5

(a) The existing provision is as follows:

40(1) The enactment of a zoning by-law that amends or repeals an existing zoning by-law or the enactment or making of zoning provisions in a rural plan that amend or repeal existing zoning provisions

(a) may cause uses then existing to become non-conforming, and

(b) does not change the date on which a use became non-conforming.

(b) The existing provision is as follows:

40(2) A non-conforming use may continue notwithstanding the zoning by-law or rural plan but

(a) if such use is discontinued for a consecutive period of ten months, or such further period as the advisory committee or commission, as the case may be, considers fit, it shall not be recommenced and any further use of the land, building or structure shall conform with the by-law or rural plan; and

 

(b) if a building or structure so used has, in the opinion of the advisory committee or commission, as the case may be, been damaged to the extent of at least half of the whole building or structure, exclusive of the foundation, the building or structure shall not be repaired or restored or used except in conformity with the by-law or rural plan, unless the advisory committee or commission agrees otherwise, and, in the case of a by-law, the council may purchase or otherwise acquire the parcel of land on which such building or structure is situated.

Section 6

The existing provision is as follows:

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

(k) shall approve a subdivision plan that

(i) subject to subsection (3), conforms with this Act and any municipal plan, rural plan, basic planning statement, development scheme, urban renewal scheme, zoning by-law or deferred widening or controlled access street by-law or regulation, which affects development under section 81, or

 

(ii) conforms as mentioned in subparagraph (i) except for a variance permitted by the advisory committee or commission;

Section 7

The new subsection 71(3) provides that a rural community committee is authorized to act by resolution under section 71.

 

Section 8

(a) The existing provision is as follows:

77(2.7) Where in the Ministerís opinion it is necessary, the Minister may invoke section 81 and section 81 applies with the necessary modifications.

(b) The existing provision is as follows:

77(6) With respect to zoning provisions in a regulation under subsection (2.1),

(a) the powers and functions mentioned in paragraphs 34(3)(g) and (h) or paragraph 34(4)(c), with respect to particular uses of land, may be vested in a commission;

(b) where a fee mentioned in paragraph 34(3)(j) is provided for in the regulation, it shall be paid into the Consolidated Fund, but may be returned in whole or in part on the advice of the Minister;

(c) the powers mentioned in sections 35 and 36, with respect to certain proposed uses and variance, shall be deemed to be vested in the relevant commission; and

(d) where a person applies to the Minister to have an area of land re-zoned to permit the carrying out of a specific proposal,

(i) the Minister, in relation thereto, may make an order or enter into an agreement with such person, and

(ii) the provisions of section 39 with respect to a resolution or agreement thereunder apply mutatis mutandis to an order or agreement, respectively, hereunder.

 

(c) The existing provision is as follows:

77(11) Before recommending or making a regulation under this section, the Minister shall

(b) if the regulation is to be made under subsection (2.1) and would have effect in a local service district that has an advisory committee, request the advisory committee to give its views on the regulation,

(d) The existing provision is as follows:

77(11.1) Notwithstanding paragraph (11)(c), with respect to a rural plan under subsection (2.1) or an amendment to zoning provisions in a rural plan under subsection (2.1), the provisions of section 68 shall not be read as requiring the Minister to make available for public consideration the proposed rural plan or amendment if the Minister makes available for public consideration a written summary of the proposed rural plan or amendment.

 

Section 9

The new paragraph 77.2(5)(a.1) provides that where a person applies to a rural community committee to have an area of land re-zoned to permit the carrying out of a specific proposal, the rural community committee may act by resolution under section 39, the Minister may enter into an agreement with the person respecting those matters set out in the resolution, and the provisions of section 39 with respect to a resolution or agreement apply with the necessary modifications to a resolution or agreement.

 

Section 10

The existing provision is as follows:

81(1) Except as otherwise provided in this section, no person shall undertake a development and no building permit or development and building permit shall be issued for such development unless the development officer having jurisdiction approves such development as conforming with, where it applies to the land on which the development is located,

(a) any municipal plan, basic planning statement, development scheme or urban renewal scheme

 

(i) in effect, or

(ii) in respect of which an adopting by-law has been the subject of a resolution under paragraph 68(1)(a);

(b) subject to paragraph (a), any zoning by-law or deferred widening or controlled access street by-law or regulation

(i) in effect, or

(ii) in respect of which the council has adopted a resolution under section 71, or the Minister has published a first notice under paragraph 68(1)(b); and

(c) a regulation under paragraph 77(1)(h.1) respecting land use and development policies

 

(i) in effect, or

(ii) in respect of which the Minister has published a first notice under paragraph 68(1)(b).

Section 11

(a) The existing provision is as follows:

93(1) Where a development is undertaken in contravention of this Act, a by-law or regulation hereunder or terms and conditions imposed pursuant thereto, the Director or council, as the case may be, or a person duly authorized by the Director or council, may order

 

(a) cessation of the development,

(b) alteration of such development so as to remove the contravention, or

(c) the doing of anything required to restore the land, building or structure to its condition immediately prior to the undertaking of such development.

(b) The new subsection 93(1.1) provides that the development officer shall notify the Minister or the council, as the case may be, of the issuance of a order under subsection (1).

(c) The existing provision is as follows:

93(4) Where an owner of property fails to comply with an order under this section, the Director or council, as the case may be, may cause the ordered action to be undertaken and may recover the costs thereof from such owner in an action in any court of competent jurisdiction.

 

(d) The existing provision is as follows:

93(5) The costs incurred by the Director or council under subsection (4) shall constitute a lien on the property concerned until recovered from the owner.

 

Section 12

The existing provision is as follows:

97(1) Notwithstanding the Evidence Act, proof of a by-law enacted hereunder may be given in proceedings in any court or tribunal by an affidavit of the clerk of the municipality that states

(a) that he has compared the copy of the by-law attached to the affidavit with the original by-law and confirms that it is a true copy thereof;

(b) that the requirements of the Municipalities Act and this Act with respect to the enactment of the by-law have been satisfied;

(c) the date on which the by-law was enacted as shown by the original record thereof;

(d) the date on which the by-law was approved by the Minister; and

(e) the date, time and place of filing of the by-law in the registry office.

Section 13

The new section 98.1 provides that the Minister is authorized to enforce a rural plan by-law and sections 91 to 98 apply with the necessary modifications to the enforcement of a rural plan by-law by the Minister.

 

Section 14

The new section 99.1 contains transitional provisions relating to rural plan regulations and rural plan by-laws.

 

Sections 15 and 16

Consequential amendments related to the amendment made under section 1 of this amending Act.

Section 17

17(1) The existing provision is as follows:

6 The Corporations Act does not apply to a municipality.

 

17(2)(a) The Lieutenant-Governor in Council when making an Order in Council effecting an incorporation, annexation or decrement is authorized to make adjustments in respect of the provision of services for any local service district or rural community affected by the incorporation, annexation or decrement.

 

 

17(2)(b) The new subsection 19(15) provides that where an Order in Council is made under subsection (1), the Lieutenant-Governor in Council may amend or repeal a rural plan or any other regulation made under the Community Planning Act to make adjustments respecting areas affected by the incorporation, annexation or decrement, and amend or repeal a regulation made under section 23.01 or 27.4 to make adjustments in respect of the boundaries of any local service district or rural community affected by the incorporation, annexation or decrement.

 

 

The new subsection 19(16) provides that sections 24 and 25 do not apply to subsection (15)(a).

The new subsection 19(16) provides that subsection 77(11) of the Community Planning Act does not apply to paragraph (15)(a).

17(3) The new subsection 27.2(3) provides that the provision of a land use planning service includes the enforcement of basis planning statement regulations, zoning regulations, rural plan regulations and rural plan by-laws made or adopted under the Community Planning Act.

 

17(4)(a)(i) The existing provision is as follows:

27.4(2) The Lieutenant-Governor in Council may, on the recommendation of the Minister, make regulations Ö

(e) respecting the services listed in the First Schedule to be provided in a rural community or any portion of it;

 

17(4)(a)(ii) The new paragraph 27.4(2)(e) authorizes the Lieutenant-Governor in Council when creating a new rural community to make adjustments in respect of the provision of services for any local service district or other rural community affected by the establishment of the rural community.

 

17(a)(iii) The new paragraph 27.4(2)(h.1) authorizes the Lieutenant-Governor in Council when creating a new rural community to designate any rural plan under subsection 77(2.1) of the Community Planning Act or any portion of a rural plan or any other regulation under the Community Planning Act as the basic planning statement, rural plan, zoning regulation or other regulation, as the case may be, of the rural community or portion of the rural community.

 

17(4)(b) A consequential amendment relating to the amendment made under subparagraph 17(4)(a)(ii) of this amending Act.

17(4)(c) The new subsection 27.4(5) provides that where a regulation is made under subsection (2), the Lieutenant-Governor in Council may amend or repeal a rural plan or any other regulation made under the Community Planning Act to make adjustments respecting areas affected by the establishment of the rural community, and amend or repeal a regulation made under section 23.01 or 27.4 to make adjustments in respect of the boundaries of any local service district or rural community affected by the establishment of the rural community.

 

 

The new subsection 27.4(6) provides that subject to subsection (3), sections 24 and 25 do not apply to section 27.4.

 

The new subsection 27.4(7) provides that subsection 77(11) of the Community Planning Act does not apply to paragraph 27.4(5)(a).

17(5) The new section 27.41 provides that a basic planning statement, rural plan, zoning regulation or other regulation designated under the new paragraph 27.2(2)(h.1) shall remain in force in the rural community or portion of the rural community until amended or repealed under the Community Planning Act.

17(6) The new subsection 27.5(2.1) provides that a rural community committee shall have a corporate seal which the rural community committee may alter or change at pleasure.

Section 18

Commencement provision.