Canada: Toronto's New Zoning By-law - Impacts on Landowners: An Update - April 2013

All the signs are pointing to a new City-wide Zoning By-law for the City of Toronto (the "new By-law") being enacted at the City of Toronto's Council meeting on May 7-8. The new By-law will be a comprehensive By-law covering the entire amalgamated City of Toronto.  It is a replacement of the heavily criticized city-wide zoning By-law that was enacted in 2010, which was the subject of hundreds of appeals to the Ontario Municipal Board and subsequently repealed by the current City Council.   

While the new By-law has been said to be primarily an amalgamation or a consolidation of the various zoning standards which applied across the former six municipalities in the City of Toronto, that does not guarantee that the zoning for a particular piece of land will remain the same. Adoption of a single set of standards will result in many parcels of land being more downzone. More stringent standards may apply because the consolidated standards adopted are more restrictive than the standards which previously applied to that parcel of land. Furthermore, particularly in the commercial and industrial areas, new zones are created. As lands are shuffled into new or modified Employment or Commercial zones, uses which were permitted under the current zoning regime may disappear. Landowners may wish to determine if their lands have been downzoned and whether an appeal of the new zoning By-law is in their best interests.

Transition Provisions

One of the major controversies over the 2010 repealed By-law was its lack of a clear set of transition provisions from the old to new zoning regime. In particular, there was criticism of how development applications already in the pipeline were to be dealt with, the lack of recognition for existing minor variance and site specific By-law permissions and the treatment of existing buildings with remaining expansion potential. Since the repeal of that by-law in 2010, City planning and legal staff have developed a more concise set of transition provisions to avoid the inconvenience and confusion experienced after the 2010 enactment. 

The following is a link to Section 2 of the new By-law, which contains its transition protocol: 

http://www.toronto.ca/zoning/bylaw/ZBL_NewProvision_Chapter2.htm

The Transition provisions found at section 2.1.3 of the new By-law (the "Transition Provisions") will operate to allow development applications that are in the pipeline (including applications for a zoning certificate, building permit, minor variance, site plan approval, consent to sever, draft plan of subdivision, plan of condominium, payment in lieu of parking agreement, and part lot control exemptions) to be reviewed, processed and approved under the former zoning rules. The new By-law is intended to only apply to new applications for development submitted after the date of enactment. The Transition Provisions will be in effect for three years. 

For example, if the City determines that an application for a zoning certificate (typically a good initial step in the development process) submitted under the current zoning regime does not conform to the current zoning by-law regime, the Transition Provisions permit a minor variance application to be made to the Committee of Adjustment after the new By-law is enacted. That application would be considered and approved under the current zoning regime. Related applications for site plan approval are treated in the same way by the Transition Provisions. The current zoning regime would also be applied to a related building permit application, even one filed after the new By-law is enacted. 

Of course, as with all by-laws, the exact process set out in the new By-law must be followed in order to qualify under the Transition Provisions.

In short, the Transition Provisions allows a planning and building process initiated before the enactment of the new By-law to continue under the current zoning regime for a maximum period of three years. Within this three year time limit the owner must obtain a related building permit. 

In the same spirit, the new By-law's minor variance provisions will allow minor variances approved and acted upon under the current zoning regime to continue under the new By-law. It will permit existing buildings with previously approved minor variances to remain in continued conformity, as if they were variances to the new By-law. However, if minor variances are approved but not acted upon (constructed), the variances may be relied upon only if the varied provision(s) of the current zoning regime remain the same or become more permissive under the new By-law. The minor variance provisions explicitly state that the definitions of the former zoning By-laws will be used as needed, to apply these minor variances in the context of the new By-law.

Site Specific Appeals May Be Desirable

While the Transition Provisions are helpful, it may be that landowners are not able to file even a Zoning Certificate application before May 7. Furthermore, a landowner's desired use or proposal for its land may be significantly different from the new by-law's provisions for that land and it may not be clear that minor variances will be sufficient for the proposal to proceed. In these circumstances it may wish to consider taking steps to preserve its right to appeal the new By-law upon its enactment. A landowner must, by May 7th, have communicated to City Council its concerns with the new By-law, which we normally do by way of letter to Council asking for the client's specific proposal to be implemented in the new By-law. The request can be (but does not have to be) site-specific which can make resolving the appeal easier to deal with.

Summary

The new By-law is fast approaching. It proposes many new use restrictions and more prohibitive zoning standards than Toronto's current zoning regime. The transition provisions of the new By-law are quite generous. Anyone with clients who may be considering development in the short term can effectively, and relatively quickly, shelter that development under the current zoning regime by making application for a zoning certificate prior to the May 7-8 date. 

Consideration should be given to determining whether a particular parcel of land is downzoned even if there is currently no proposal for redevelopment and if the result of the new By-law is undesirable, appropriate communication with City Council sufficient to enable the landowner to appeal the new By-law should be sent.

Gowlings is currently advising landowners on the impact of the new zoning By-law on their rights and processing a number of applications designed to provide transition relief in anticipation of the enactment of the new By-law at the May 7, 2013 City Council meeting.

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.

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