On August 25, 2010, Toronto City Council is scheduled to adopt its proposed new comprehensive zoning by-law (the New Zoning By-law). Changes reflected in the New Zoning By-law are relevant not only for future development but also for existing properties and development projects. The most recent draft of the New Zoning By-law, released on July 29, 2010, and interactive zoning map are available online on the City of Toronto website at www.toronto.ca/zoning. For a brief overview on the City of Toronto New Zoning By-law, please read below.
History of Zoning Harmonization
For the last eight years municipal staff at the City of Toronto have undertaken to harmonize the individual zoning by-laws of the six former municipalities by creating a single, comprehensive, city-wide zoning by-law. The mandate of the new zoning by-law project has been to capture the intent of existing zoning by-laws in two phases. In the first phase, staff confronted the problem of inconsistency in the application of existing by-laws by adopting a 'best practices' approach to accommodate such variance. In the second phase, a wholesale review of the existing standards was undertaken with more focused scrutiny on the appropriateness of existing standards and attention to meaningful change.
Protecting Old Standards
The New Zoning By-law will include a number of provisions that deem properties and their existing buildings in compliance with the regulatory standards, essentially 'grandfathering' such properties. In cases where a property contains a use that is currently lawful under the existing zoning by-laws but that will not be permitted under the New Zoning By-law, the Planning Act will operate to protect that use as a legal non-conforming use. More specifically, the Planning Act protects existing uses from changes occurring in zoning by-law amendments that fail to recognize those uses, for so long as those uses continue. Particular attention should be paid to how such a protection may limit or expand future development for that property.
Site specific zoning by-laws in force prior to the passage of the New Zoning By-law are intended to be incorporated as exceptions, but nevertheless, a review is necessary to confirm that the existing meaning of defined terms are also integrated. Any term not specifically defined in the site specific exception, such as 'gross floor area,' will be interpreted by its new definition under the New Zoning By-law which may create unintended or unwanted consequences.
Similar to site specific zoning by-laws, a minor variance also effectively provides a site specific zoning permission but these are not incorporated in the New Zoning By-law as of right, particularly if they relate to increased development permissions. Even if a building permit has been obtained, such sites will likely be deemed as legal non-conforming use.
Creating New Standards
While the New Zoning By-law creates common zoning standards, it also introduces substantive changes. Comprehensive performance standards are set out for each zone category and include new standards related to built form, minimum heights in commercial/residential (CR) zones and restrictions on retail uses in employment zones. For example, the height of structures or buildings is now determined in accordance with zone specific regulations. Tall buildings will be permitted as of right in the areas of Downtown Toronto (including the Central Waterfront) with a height limit of 46 meters or more and will be subject to regulations around minimum heights, setbacks, tower floor plates and separation distances between two or more towers on the same lot. In addition, the New Zoning By-law will introduce new regulations relating to parking, space for bicycles and loading requirements, as well as new definitions such as "gross floor area" and "green roof.
The New Zoning By-law aims to protect existing development permissions and active applications through transitional provisions. Some properties and/or areas within the City have been deliberately left out of the New Zoning By-law and can be identified on the zoning maps as "Not Part of this By-law." Determining whether your site qualifies for one of the exceptions may depend on which stage of the development approval process you are in. Decisions to exclude certain sites or areas are based on criteria set out in a report by City Staff. As none of the former general zoning by-laws will be repealed, where a property is shown to be not subject to the New Zoning By-law, the zoning regime and regulations that currently exist will continue to apply after the New Zoning By-law is passed.
Maintaining Your Right of Appeal
According to the Planning Act and regulations, if a person or public body does not make oral submissions at a public meeting or make written submissions to the City of Toronto before the New Zoning By-law is passed, that person or public body is not entitled to appeal the decision of the Toronto's City Council to the Ontario Municipal Board and, similarly, may be refused party status at the hearing of an appeal before the Ontario Municipal Board. The City of Toronto's final Statutory Public Meeting for the New Zoning By-Law will be held on August 19, 2010 at 11:00 a.m. at City Hall.
Owners of existing properties and development projects will wish to ensure that existing uses, development permissions and zoning standards are maintained and not undermined under the New Zoning By-law. Should there be any questions respecting the interpretation and application of the New Zoning By-law, please feel free to contact the authors of this Update (listed above).
Michael Bowman is a Partner and his practice includes land use planning and development; property assessment, municipal taxation and finance; expropriation and environmental law. Stephen Luff is a Partner in his practice focuses on all aspects of real estate transactions, including project development vehicles (such as co-ownerships and other joint ventures), financings, acquisitions and dispositions, and leasing. Mahira Mohtashami is an Associate and her practice involves all aspects of commercial property transactions, including the acquisition, disposition and financing of commercial real estate, and leasing of office, industrial and retail space.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.