Government of New Brunswick

The Community Planning Act provides local governments and planners with tools that can be used for specific purposes to manage land uses. This section highlights the various tools and their intent. These planning tools are in the form of by-laws, and must follow the same process as all other by-laws when being created or changed.

a)  Zoning By-Laws (Section 3)

A zoning by-law is a land use tool that divides a community into different zones and outlines how land, buildings, and structures are to be used. The purpose of the zoning by-law or zoning provisions is to implement the policies and proposals of the municipal plan or the rural plan.

A zoning by-law lists what is allowed to occur in which zone. For example, R1- Zone is for residential housing, whereas an industrial zone is created for industrial types of development. The zoning by-law will list what is allowed, and may prohibit certain development from occurring. In the case of a local government, it is able to create a zoning by-law that is a separate from the municipal plan. As previously noted, where a community has a rural plan, the zoning standards are included as provisions within the same document.

Sections 53(1) through 61(5) of the Act provide significant details on zoning by-laws. The Act lets a local government create zoning standards, and outlines what can be included in the zoning. The zoning by-law can be very detailed, including listing standards that any development in the zone must follow, such as the height of buildings, location of buildings, fences, signage, parking standards, etc.

Before a development can take place, a development approval (a permit in most cases) is required from a development officer. The development approval confirms that the proposed development meets the zoning and its various standards. If the proposed development does not meet the zoning or the standards, a developer can ask for a re-zoning; essentially requesting a change in the zoning rules to allow the development.

For example, the by-law can:

  • regulate minimum size and dimensions of lots and other parcels of land;
  • establish the minimize size and dimensions of lots for a specific use of land;
  • establish the maximum density of population for a zone;
  • establish the height, number of storeys, ground area, floor area and bulk of buildings and structures; and
  • establish the percentage of land that may be built on.

b) Variances from Zoning By-Law (Section 55)

There are times when a development being proposed is not permitted by the zoning by-law. Although the development is not listed in the zoning by-law as a permitted use, it may be similar to or compatible to what is in the zone. A planning advisory committee or regional service commission can allow a use of land or a building that is not permitted under the zoning by-law, if the planning advisory committee or regional service commission believes what is being proposed is similar to or compatible with a use permitted in the zoning by-law.

c) Building By-Laws (Section 62)

The Community Planning Act allows a council to make a building by-law that can prescribe standards for building, location or relocating, demolishing, altering, structurally altering, repairing or replacing of a building or a structure.

The by-law can also prescribe a system of permits (for example, a building permit) and allows terms and conditions to be attached to the permit. It can also set out the conditions for which a permit can be issued, suspended, reinstated, revoked and renewed, as well as any fees associated with the permit.

The National Building Code is a national standard set for construction of buildings and structures. A council must adopt the National Building Code or a portion of the National Building Code. A development officer or building inspector in a local government or regional service commission will review a proposed development, building or structure to ensure it meets the standards in the National Building Code. It is important to note that other permits and approvals may be required before a local government or a regional service commission will issue a building permit.

d) Deferred Widening By-Law (Sections 63 – 67)

Over time, streets within a community may need to be altered, changed, and increased in size or new streets may need to be built. Authority is provided for a council to adopt a deferred widening by-law, which allows council to acquire land to widen, alter, or divert an existing street or for the construction of a new street. The by-law must include the intention of acquiring land, set out the boundaries, establish building lines, and prohibit development between the street and the building line.

e) Controlled Access Street By-Law (Sections 68 - 69)

There are times when a community may wish to limit or restrict access to a street. This may be done for various reasons, often for reasons of safety. Authority is provided for a council to create a controlled access street by-law to declare all or part of a street controlled access. The by-law can also prohibit a development from directly abutting on the street.

f) Flood Risk Area By-Law (Sections 71 – 73)

This is a tool to manage development in a flood risk area mapped by the Department of Environment and Local Government. In this case, the Minister may designate an area within a local government as a flood risk area. This would be done by a flood map which shows elevations, and the flood risk area shown or delineated on the map.

If a map has been produced by the Minister, a municipal council can create a by-law for maintenance of the floodway, conservation of flood storage, and protection of new development from the risk of flooding. It may also provide the engineering standards, design and techniques that are to be used, and may prohibit all development unless it meets the standards. The by-law may prohibit development to ensure flood storage capacity is not reduced. Council has the ability to allow development in the flood risk area if the developer is able to provide additional flood storage area, or pays the local government an amount for it to create additional flood storage area.

g) Subdivision By-Law (Sections 74 – 90)

The subdivision by-law provides direction on the subdivision of land, parcels, and lots. The Community Planning Act defines ‘subdivide’ as meaning to divide a parcel of land into two or more parcels. There is a provincial subdivision regulation in place; however, the Act allows a local government to make a subdivision by-law specific for its community. Where a local government does not have a subdivision by-law, the provincial subdivision regulation applies.

The subdivision by-law allows council to subdivide land based on direction and authority from the Community Planning Act. Both the process and subjects that need to be addressed are clearly outlined in the Act.

This includes:

  • the content of the by-law;
  • addresses land for public purposes;
  • the subject of exemptions and variances from the subdivision by-law;
  • the approval process of a variance, including who can approve the variance;
  • details on what must be contained on the subdivision plan;
  • exemptions for certain parcels or conveyances;
  • details about the tentative subdivision plan;
  • expiry of the tentative subdivision plan;
  • how streets and lots are to be laid out;
  • application for the approval of the subdivision plan;
  • approval of the subdivision plan;
  • filing of the subdivision plan in the registry office;
  • subdivision plan for roads and streets;
  • approval of subdivision plan for streets;
  • approval of a tentative subdivision plan;
  • amendments to the subdivision plan; and
  • a subdivision plan by a local government.

h) Development Charges By-Law (Section 94)

Development charges may be imposed to ensure that the capital cost of meeting demands for services are met, without placing a financial burden on existing taxpayers. They also ensure that new taxpayers bear no more than what is necessary to provide the current levels of service appropriate for a developed area.

The council of a local government may make a by-law that authorizes entry into agreements with developers regarding development charges for land that is to be developed or subdivided.

The development charges may be used to pay for

  • - Supply and distribution of water,
  • - Collection, treatment and disposal of sewage,
  • - Provision of storm water management,
  • - Roads, streets, sidewalks and trails,
  • - Traffic signs and signals and transit facilities, or
  • Any other purpose referred to in the regulations.


Development charges come into force when filed in the land registration office, and bind the people who live in the subdivision or development where the charges apply.

i)   Incentive or Bonus Zoning By-Law (Sections 95 – 98)

Incentive or bonus zoning allows developers more density in exchange for community improvements. An increase in density encourages high-density development that is supportive of compact development. In exchange, the developer would be encouraged to include some community improvements in their projects. Community improvements may include additional open space, affordable housing, special building features, or public art.

When a plan is in effect in a community, a council may, through a by-law, provide for an incentive or bonus zoning agreement for specific zones in the community. The by-law must identify the developments subject to the incentive or bonus zoning agreement, and its location, and must set out the matters and contributions on how the Council may proceed with the agreement. The agreement may include plans, maps, terms and conditions, and how the process may help in the implementation of the agreement. It requires public notices, a public hearing, and filing in the land registration office, and binds all people to the terms of the agreement.

j) Local Government Agreement By-Law (Section 99 – 100)

A local government agreement is a new tool that allows one or more local governments to enter into an agreement to work together on land use planning matters. The local government agreement is a commitment by each local government to work towards achieving joint land use planning and development goals. The local government agreements can:

  • contain a dispute mechanism to resolve any issues that may happen between the local governments;
  • list specific infrastructure, services, or facilities that are covered by the agreement;
  • specify the proportion of funds each local government is required to contribute;
  • specify the process and procedure for amending or terminating the agreement, and
  • specify other potential matters the councils agree can be included in the agreement.

If the agreement contains parts that control or limit land uses, then the relevant regional plan, municipal plan or rural plan needs to be amended or zoning by-laws need to be amended to reflect the local government agreement.

The agreement must be filed in the land registration office.

 

k) Development Scheme By-Law (Sections 101 - 104)

A Development Scheme by-law resembles a municipal plan but it is directed at a particular area of a municipality, and it:

  • contains much more detail than could be expected of a municipal plan;
  • provides for detailed and controlled mixed development of a sizeable area of land on a stage-by-stage basis, and
  • is a complement of the municipal plan.

A Development Scheme can affect or prohibit a development that is inconsistent or at variance with a plan. It:

  • delineates the land affected and the conditions of its reservation;
  • sets out details of the development to be carried out;
  • describes the manner of implementation; and
  • prescribes how the land is to be subdivided.

It requires public notices, a public presentation and a public hearing. It also requires filing in the land registration office, and binds parties to the terms of the scheme. This process is similar to the one for the adoption of a local plan (municipal or rural). A development scheme by-law prevails on zoning or subdivision by-law / provisions.

 

l)  Overlay Zoning (Section 53)

Overlay zoning is a new planning tool that creates a special zoning district. It is placed over an existing ‘base’ zone(s), to identify additional special provisions. It typically applies when there is a special public interest in a geographic area that does not coincide with the ‘base’ zones boundaries. It can be used to protect quality/quantity of surface and groundwater, to manage storm water, to create walkable communities, to preserve/enhance rural character, forestry integrity, sensitive areas/wildlife habitat, and aesthetics of the natural environment, and it can be used to encourage economic development or preserve farmlands.

Overlay zoning defines the purpose of the district. It should map the district boundaries that relate to achieving the purpose of the district, and should develop specific rules that apply to the identified district. In a groundwater recharge district, for example, provisions may restrict development or require development guidelines that capture and filter water runoff.  

 

m)  Variances from a Zoning By-Law or Subdivision By-Law (Sections 55, 77-78)

A variance is typically a minor deviation from the set of rules a local government applies to land use planning and development, and is typically set out in a zoning or subdivision by-law. The manner in which variances are employed can differ depending on the regional service commission or the local government. A variance is granted by a development officer, an advisory committee set up by the council of a local government, or a regional service commission where zoning or subdivision provisions are in effect. They may permit a variance with or without terms and conditions.

 

n)   Re-Zoning and Amendments (Section 59)

If a property owner requests a property to be re-zoned, there is a process that must be followed, and a local government council has specific powers related to the rezoning of property.

If a person applies to a council to have an area of land re-zoned to permit a specific project or development, the council, through a resolution, can impose terms and conditions on:

  • the use of the land, buildings and structures;
  • the site layout and design, including parking areas, landscaping and entry and exit ways; and
  • any other matters council considers to be relevant.

Council can also set out time limits for the project or parts of the project, and may enter into an agreement with the person making the application.

The Act sets out other conditions that a council must follow with respect to filing in the registry office and changes to the re-zoning and any agreements.

For an amendment to the rural plan or re-zoning for a rural plan for an unincorporated area, the process is essentially the same as that for a local government. The primary difference is that the decision to approve or not approve a rezoning rests with the Minister of Environment and Local Government, rather than a council of a local government. Sections 55 -59 of the Act apply to variances and re-zoning applications for rural plans in unincorporated areas.

 

o)   Non-Conforming Uses (Sections 60 – 61)

A non-conforming use is a use of property/land that was allowed under the zoning provisions at the time the use was established but which, because of subsequent changes to the by-law or provisions, is no longer a permitted use. The use is allowed to continue if it is not discontinued for more than 10 consecutive months, or the building or structure has not been damaged to more than 50 per cent of the entire building or structure.

The advisory committee or the regional service commission may extend a use to a whole building when partly in use, or can allow for a similar one. Council may require for the maintenance of a non-conforming use, charge the expenses to the owner if necessary, or require the termination of a use if not properly maintained. The owner of the nonconforming use has the right to appeal the standards of maintenance prescribed by the council of the local government.

 

p)   Acquisition of Land (Sections 105 – 107)

Acquisition and expropriation of land relate to the right of the local government to legally take ownership of land that is in private hands, and apply it for a greater public use or benefit. The public use may include the construction or expansion of highways, water systems and other public utility systems, schools, and transportation systems such as rail tracks, airports, pipelines, or parks. Local governments or the Minister for the unincorporated areas may acquire land by gift, purchase, expropriation, or other ways to carry out a proposal in a regional or local plan (municipal or rural). Expropriation has to be done on the territory of the local government and in accordance with the Expropriation Act.